Schedule 18: Advertising of less healthy food and drink Amendment
148 Moved by Lord Moylan 148: Schedule 18, page 254, line 34, after
“State” insert “which may not include products containing more than
20% of their calorific value by way of protein and not more than 5
grams of Sugar per 100 grams in their composition”
Member’s explanatory statement This amendment, along with others to
Schedule 18, ensures that foods that can be...Request free trial
Schedule 18: Advertising of less healthy food and drink
Amendment 148
Moved by
148: Schedule 18, page 254, line 34, after “State” insert “which
may not include products containing more than 20% of their
calorific value by way of protein and not more than 5 grams
of Sugar per 100 grams in
their composition”
Member’s explanatory statement
This amendment, along with others to Schedule 18, ensures that
foods that can be advertised as “low Sugar
and “high protein” under Regulation (EC) No 1924/2006 of the
European Parliament and of the Council of 20 December 2006 on
nutrition and health claims made on foods are exempt from the
restrictions on advertising proposed in that Schedule.
(Con)
My Lords, in moving Amendment 148, I will also speak to
Amendments 150 and 152 in my name. There are a number of
interesting amendments in this group but I intend to stick to my
last, broadly, and speak only to the ones in my name.
I had a number of amendments to this schedule—it has been
renumbered; it was Schedule 17 but is now Schedule 18—in
Committee, but I have decided to stick with just these three. I
apologise that there are three; there is only really one, of
course, but the schedule is drafted in such a way that everything
has to be said three times. This amendment effectively relates to
high-protein, low-sugar bars. Noble Lords may wonder why I have
developed an interest in such bars; to answer that, I will tell
them a story. That is all I am going to do. I will tell noble
Lords a story about a real business; I will then ask my noble
friend the Minister a question.
9.30pm
In 2015, in response to a government campaign for confectioners
to develop new alternatives to overly sweet snacks, a husband and
wife living near Solihull set up a company and produced a product
called Grenade. In fact, its proper name is the Grenade Carb
Killa. It is a high-protein, low-sugar bar. Frankly, it is not
something I would particularly want to eat. It may be something
that other noble Lords find equally not high on their agenda. It
certainly is not marketed at children; it is largely marketed at
and taken up by young people who enjoy going to the gym,
exercising and doing all the things my noble friend frequently illustrates
himself doing on Twitter, such as plunging into cold pools in the
middle of winter. What they want—perhaps my noble friend is an
example of this—is an alternative on-the-go snack that is full of
protein and will not give them too much Sugar
That is what this product was aimed at; it was not aimed at
children in any sense at all.
What is it that allows the manufacturers of this product to call
it a high-protein, low-sugar bar? The answer is Regulation (EC)
1924/2006 of the European Parliament and the Council, which
defines what you may call particular types of food. It says that,
to be able to call something low-sugar, the product must
contain
“no more than 5g of Sugar per 100 g for
solids”.
Similarly, it says that, to call something high-protein,
“20% of the energy value of the food”
must be “provided by protein”. Of course, the Grenade Carb Killa
was carefully crafted to match these regulations so that it could
be called a high-protein, low-sugar food. The product is a
success. It is heavily promoted online and on social media. Not
counting manufacturing staff, there are 82 staff there. The net
sales are now around £35 million a year.
So what does this Bill do to its producers? I take them only as
an example that I am aware of, as they have approached me and
explained their business to me. First, the Bill says that the
criteria set out in the EU directive will effectively cease to
apply, so the parameters by which they have created their product
will no longer have any effect. This was confirmed to me in what
has turned out to be quite a full correspondence with my noble
friend Lady Penn; let me say how I grateful I am for the effort
she has put into it.
Secondly, the Bill says that the Government will now consult on
whether products will be allocated to one of 15 groups set out in
the draft guidance. It is by no means clear to the Grenade
company which group their product might be allocated to, as the
groups are very broad. One of them is “sweet biscuits”, for
example, so not all food will be allocated to a group; a chicken
breast will not be allocated to one of these groups because that
is not what is in scope, but biscuits and things like that might
be. This allocation is phase 1 of a process, as I understand it.
Assuming that a product is allocated to one of those groups, it
is then rated against the nutrient profiling model.
Now, noble Lords may think that we might just see some light at
this point since the very high level of protein in the product
should get it racing through the nutrient profiling model—but no,
because the Bill requires that there should be a protein cap in
the nutrient profile modelling applied to the 15 groups. This is
because the Government are terrified that companies might put
protein in the cornflakes and get around the regulations that
way, so the large amount of protein does not help it very much at
all because of the protein cap.
My noble friend may say that all this is mildly fantastical
because—have I not noticed?—there is an exception for companies
with fewer than 250 employees, and, as I said earlier, this
company has 82 employees. The problem, however, is that two years
ago, so successful were they that they were taken over by a
larger company. It is now completely unclear to them—and it is
not clear from the Government—whether the 250 cap applies to them
as a stand-alone subsidiary or is to be applied to the larger
group of which they are now part; nobody knows.
It also has some rather bizarre consequences. It means that the
food that will be risky and dangerous would not have been risky
had it continued to be produced by a small company—it would have
been perfectly okay as long as they kept their employment down. I
thought we wanted employment to go up. The second thing of
course, is that no small company manufacturing compliant food
will ever dare to be taken over by a larger company in the
future, so this has a real consequence for business practice.
The only hope the company has is to reformulate its products,
which is expensive and, as we all know, takes a long time and can
go awry. Noble Lords may remember the Cherry Coke episode, which
was a disaster for the Coca-Cola company when it reformulated the
product. Against what criteria will Grenade reformulate its
product anyway? Nobody knows; and this sort of thing is being
replicated up and down the country.
In the meantime, zealous Lords have other amendments in this
group saying that what the Government really need to do—so clear
is their understanding of business requirements—is move ahead
more rapidly with this and have a hard deadline against which it
must all be brought into effect, irrespective of the consequences
for jobs, businesses and prosperity, and all to save three
calories a day. So, that is my story. I am sure that the Grenade
company is watching this now on parliamentlive.tv. I ask my noble
friend: when I speak to the company tomorrow, what comfort can I
offer? I beg to move.
(Con)
My Lords, I support my noble friend on these amendments. Of
course, this is an extension of the debate that we had on the
eighth day in Committee on the Bill. I want to look at the
central problem behind the case history that my noble friend has
outlined so clearly this evening. We need to remind ourselves
that we are dealing with the food industry, one of the largest
industries in the United Kingdom.
To the best of my knowledge having contacted all the trade
associations, all parties want to reduce childhood obesity. There
is no argument about that anywhere and, in the case of this
industry, there are several areas of trade association activity,
through ISBA, the IPA, the Food and Drink Federation and—of
particular relevance to digital advertising—the IAB, which has
worked very closely with DCMS. In a sense, that is part of the
problem, because my noble friend on the Front Bench is not
speaking on behalf of DCMS but about the Health and Care Bill on
behalf of the DHSC.
The IAB, representing all food manufacturers dealing with digital
advertising, has worked very closely with DCMS. It has kept it up
to date on the latest developments, but DCMS has not engaged or
worked with the industry in finding a solution. The industry has
worked constructively for a long time to propose a tech-based
solution that would achieve the Government’s objective of a
further reduction in the number of HFSS advertisements that are
viewed by children. This proposed solution would use proven,
targeted technology and includes an element of advertising
campaign evaluation which would be future-proof—this is
important—and ensure that it continues to improve. The irony is
that the industry wants to work with the Government on this
matter, but so far the Government are sadly ignoring this
industry’s expertise and dismissing its proposals.
I had the privilege of working in the advertising industry for 25
years, and I have seen these sorts of developments in other
fields. When you have an industry working with government on an
area that is important to both parties, it is a tragedy that Her
Majesty’s Government, through DCMS, are not working. Yes, it is
new technology, and the Government might feel happier if there
was some experimental work in special test markets or whatever,
but the sad thing is that this technology is there, and is
proven, but still Her Majesty’s Government are refusing to use it
and are seemingly—perhaps I am being too critical from the
outside—unable to understand whether it will work. This is hugely
frustrating for any company in this market.
I am sure my noble friend on the Front Bench is aware that the
Prime Minister wants this country to lead digitally, and here we
are on the frontiers of this area where we are leading, yet we
cannot move forward. If the Government have reservations—and it
is difficult for someone from another department, in this case
the Department of Health and Social Care, who has therefore not
been party to what has been going on—would it not be more
sensible to have another look and evaluate it properly with those
who really understand how it works and how it is developing? If
the Government are still not convinced, I suppose we will have to
try again later. As someone who comes from that industry—I have
no involvement now and am not speaking for any particular party—I
want to see companies in this area, like the one my noble friend
described this evening, to be able to succeed in future.
Finally and frankly, the Government’s blunt and disproportionate
advertising ban will not be effective. When there is another
system on the table, my noble friend ought to take it back, have
another look at it and see whether it will help everybody.
(Con)
My Lords, I am speaking to Amendment 151A in my name and to four
other consequential amendments which relate to the responsibility
of online platforms for enforcing the ban on HFSS advertising.
The amendments have been signed by the noble Baroness, Lady
Merron, the noble Lord, and the noble Viscount,
, a cross-party
group which underlines how important the issue is, and I am
grateful to them.
I declare an interest as a director of the Advertising Standards
Board of Finance and deputy chairman of the Telegraph Media
Group, and note my other media interests as set out in the
register. I am also a vice-chairman of the APPG on ITV.
I intend to be very brief as these issues were discussed at great
length in Committee. Indeed, over a marathon three-hour session,
when many noble Lords raised concerns about the implementation of
the proposed ban, they noted that it would not be effective as
structured: it was not proportionate, it was an infringement on
freedom of expression, and it was unfair and unbalanced because
it penalised broadcasters and publishers and did not provide for
any enforcement by the platforms—Google, Facebook, and
others—where the vast majority of HFSS advertising sits.
9.45pm
To be clear once again, like all other noble Lords, I recognise
the scale of the obesity challenge. I recognise too the strong
political impetus behind the ban on HFSS advertising. Therefore,
I am not seeking to swim against the tide and try to unpick this
policy—rather, to ensure that the ban is implemented effectively
and equally. That is what these amendments seek to do.
In essence, the Bill as drafted simply will not work, because it
places all the responsibility for compliance with the online HFSS
ban on advertisers. It places no responsibility on online
platforms which control when and where advertising is placed, and
which profit directly from it. That cannot be right or just.
These amendments simply ensure that the online platforms are also
held responsible for compliance, just as the Bill requires of the
broadcasters. It does this by supplementing the Bill’s
requirement not to “pay for” online advertising—which restricts
the actions of advertisers—with the requirement not to “market,
sell or arrange” online advertising, which levels the playing
field between media owners and platforms. This is modelled on
Ofcom’s existing regulatory regime for online advertising for
some UK video-sharing platforms. It is not inventing a new
concept, but simply building on what has been proven to work. It
will be easy to implement through the Advertising Standards
Authority which already regulates advertising online, and which
has been designated as Ofcom’s statutory co-regulator in relation
to online advertising controlled by the video-sharing platforms.
This means that responsibility for compliance sits with those who
control when, where and to whom advertising is served. It is
vital that this is a statutory requirement.
I will make two other simple and brief points. First, these
amendments are absolutely not about watering down the policy
relating to HFSS advertising restrictions. They ensure only that
they will be effective by making those responsible for
controlling advertising, and who profit substantially from it,
are held responsible. There is no reason at all why it should
delay the implementation of the new regime.
Secondly, these amendments ensure that this Bill aligns with
government policy in other crucial areas, and does
not—ironically, as it stands at the moment—run counter to it.
According to the Secretary of State, the online safety Bill seeks
to ensure that the platforms are held accountable for scam
advertising and other illegal content. If that legislation makes
the platforms accountable, what could possibly be the objection
to this flagship Bill doing the same for HFSS advertising? It is
not just a question of joined-up government, but of ensuring the
quality of public policy.
I know that my noble friend will say that all this can be
addressed in the long-awaited online advertising review. That has
already taken two years just to get to a second consultation, and
that excuse is not good enough. We are not talking about just
long grass—it is deep in the jungle. I doubt that it will see the
light of day in this Parliament, joining other much-needed
legislation levelling the playing field between platforms and
content providers. If this legislation goes through without
appropriate amendments, it will be years before another
legislative vehicle comes along to right these wrongs. In the
meantime, the HFSS ban will have completely failed under the
weight of its own contradictions. Is that really what the
Government want?
These amendments are actually about making the Government’s own
policy work, which it will not, as it stands. They are about
fairness, the sustainability of the media and ensuring that
platforms are responsible. I hope they will find support across
the House from those who support the ban and those who do not—
that point is actually now behind us—because they are designed to
strengthen this important Bill and make the implementation of the
policy more effective. I hope, therefore, that my noble friend
will say that the Government will accept them, so that it is not
necessary to divide the House.
(Con)
My Lords, I shall speak to Amendments 149, 151 and 153 in my name
and those of the noble Lord, , and the noble Baronesses, Lady
Walmsley and Lady Boycott. The amendments refer specifically to a
deadline for the implementation of the junk food advertising
restrictions.
I completely applaud the Minister for the approach of bringing in
government amendments to try to refine the terms of the Bill; it
is a collaborative approach, which I think all of us have really
appreciated. However, in this matter, a government amendment has,
I think, overshot, by removing the previous deadline in the first
draft of the Bill. These amendments seek to rectify that.
I will not speak at length, but many have said, both in Committee
and at Second Reading, how urgent it is to address the issue of
obesity in this country. We cannot have any delay or rolling
procrastination around these measures, so it is entirely right,
proper and suitable for there to be a deadline in place in a Bill
such as this.
It is also right to have certainty. I have huge consideration for
Grenade and its low-sugar, high-protein bar. I will certainly
look out for its excellent product when I am next in the gym, and
I think the uncertainty it faces, which my noble friend has described, is
heartbreaking. That is why it is important to start the
mechanisms now for answering its quite reasonable questions and
to put a deadline on when those answers should be delivered.
I am not blind to the fact that many in the industry have voiced
concerns that the deadline is too tight. I have looked at it and
I do not accept those concerns. I think the bans have been around
and on the books for a very long time and preparations have been
in place. I worked in publishing during the tobacco ban: the
turnaround for that was quite tight, but it was quite transparent
and it happened without too much trouble. I think that a deadline
is entirely right and suitable and that the deadline proposed is
reasonable. I would like to hear reassurance from the Minister
that there will be clear scheduling for these measures.
I would also like very briefly to address Amendment 151A, from my
noble friend Lord Black, and the related amendments. On this, I
feel utterly conflicted. The harms caused by online advertising
have been mounting over several years. They are currently far too
damaging and they are set to grow, both in scale and
sophistication, without any clear sight of regulatory control.
That is of grave concern, and the points made by my noble friend
were very persuasive: I think he was right about bringing in
compliance by the platforms. On the other hand, I accept that
government regulation in this area is so off the pace; the online
harms Bill is so far behind and the online advertising review has
taken so long that the Government are just not in a position to
implement the measures in this amendment.
I shall not be supporting these amendments in any votes that
might happen, but my sentiments are very much along those lines.
I ask the Minister to say very clearly what the Department for
Health and Social Care and the Government will do around these
concerns, not just on junk food advertising but on the
advertising of alcohol, betting and non-surgical cosmetics, which
all face similar concerns around the explosion of complex and
persuasive online advertising which is underregulated.
(CB)
My Lords, I shall speak in support of the amendments in the name
of the noble Lord, , to which I have added my
name. I do not really need to say anything more than has already
been said. We know that this country, according to the World
Obesity Atlas published last week and supported by the World
Cancer Research Fund, is now top of the European league table for
projected levels of female obesity by 2030 and joint top for
projected levels of male obesity. Sadly, it is probably already
too late to stem this trend, but by acting now on these measures
we might be able to protect the next generation. That is why I
support the idea of having a firm deadline by which time the
measures will be introduced.
I actually wanted to speak in slightly more detail about
Amendments 148, 150 and 152 in the name of the noble Lord, . As he explained, they are
really just one amendment.
I promise you that this was not set up, but I have in my hand the
very Grenade bar to which the noble Lord, , referred. I wish to explain
why this Grenade bar should definitely not be excluded. I am
grateful to Dr Emma Boyland, of the University of Liverpool’s
Institute of Population Health, for giving me a briefing on the
Grenade Carb Killa bar—this particular one is high-protein,
low-sugar, white chocolate and salted peanut. I bought it at the
weekend from Holland & Barrett, in its health food section;
it is marketed and advertised as a healthy product. Is it a
healthy product? The answer is no.
First of all, no age group in this country is short of protein.
We simply do not need to eat more protein. So the fact that this
bar is high-protein is completely irrelevant in terms of health
benefits. Secondly, remember that HFSS is high fat, salt
and Sugar The bar may be
low-sugar, but what about fat? It contains two-thirds of the
recommended daily limit of the intake of saturated fat; it is
definitely high in fat. It also contains more salt than a bag of
salted crisps. Is it right to exclude something that is fatty and
salty from the definition of HFSS? I am convinced it is not
right, and therefore I completely reject the argument of the
noble Lord, . These products should not be
excluded from the measures proposed in Schedule 18 to the
Bill.
(Lab)
My Lords, I have two amendments in this group—Amendments 154 and
155—though they are rather different from those discussed in the
debates that we have just heard. I declare my interest as the
president of the Hospital Caterers Association.
We have heard a lot about the risk of obesity, but we also know
that many patients coming into NHS hospitals come in with
nutritional issues, where good food and good nutrition could very
much help them on their way to recovery. The research has
indicated problems where patients are not feeding properly.
We are very grateful to Ministers for the meeting we had with the
Hospital Caterers Association and the National Association of
Care Catering, with the noble Baroness, Lady Barker. We are very
grateful too that Clause 161 sets out specifications for hospital
food standards.
There are just two quick points I want to make. First, it is a
great pity that we do not have a similar process in relation to
the care sector—care homes, in particular. One of the amendments
relates to that: we want to see the provisions extended to the
care sector. We also want to ensure that staff working in the
care sector are suitably trained and that there is a suitable
framework to ensure there is a high level of professional
staffing.
My second point relates to the National Health Service. Although
lip service has always been paid to good standards of hospital
food and nutrition, unfortunately the boards of NHS organisations
have often found it difficult to provide the resources to enable
that to happen. The suggestion in my first amendment is, in fact,
that a board-level director should be appointed to oversee this
to ensure that the standards laid out as a result of the Bill,
when it becomes law, will be put into practice. Alongside it go
similar provisions in relation to ensuring that we have
high-quality staff who can take advantage of a focused approach
to training, which, at the moment, has been missing because a lot
of the national infrastructure for training for staff in the NHS
in the ancillary services has been neglected.
I hope that, following the discussions we had with Ministers, the
noble Baroness will be able to be positive in relation to this
tonight.
10.00pm
(LD)
My Lords, the noble Lord, Lord Black, has put a convincing and
comprehensive case for his amendments, which I have signed. He
has knocked back nearly every argument made by the Government in
this House and in correspondence against a level playing field
being established for platform liability.
In his letter after Committee, the noble Lord, , said:
“The scale and speed of advertising online, as well as the
personalised nature of advertising and the lack of transparency
in this system, makes it difficult for platforms to have control
over what is placed on them.”
They have far more control than the broadcasters. They run their
own digital advertising agencies. Facebook and Google have
massive market share in their own individual digital markets.
It is extraordinary that the Government are buying these
arguments from the social media platforms. They are on extremely
thin ground. If the noble Lord, , pushes these
amendments to a vote, we will support him.
(CB)
My Lords, I support noble Lord, , in his amendments demanding
a timescale for the ban on such adverts. Advertising is the only
business in the world that spends an enormous amount of money and
then suggests that it does not work. It is a curious state of
affairs that the advertising industry, as well as the food
industry, which spends upwards of £0.5 billion a year on
advertising HFSS food, says that advertising does not work, but
the fact is that it does.
Research has shown that half of all food ads shown in September
on ITV, Channel 4, Channel 5 and Sky One were for HFSS products.
That number rose to nearly 60% between 6 pm and 9 pm. Ofcom
research also suggests that children’s viewing peaks in the hours
after school, with the largest number of child viewers
concentrated around family viewing time, between 6 pm and 9 pm.
People in food policy have worked, as I have worked, for a very
long time for this ban. We thoroughly applaud the Government for
doing it. I also applaud my noble friend for taking apart that protein
bar, because it illustrates the way in which the food industry
works. I have heard all too often, especially when I first came
into this House—albeit not so much now—people saying, “All you
need to do is exercise to get rid of the excess weight.” We know
that that is a line put out by the industry. The industry is very
clever. Yes, they have managed to sell the noble Lord, , their protein bar, but they
have not sold it properly. I hope that, with this ban, the
Government will look at all the other sneaky ways in which food
companies put things through, whether it is high-energy drinks or
whatever, that are incredibly destructive to our health. As my
noble friend , said, we have an unenviable
first position in the scale of obesity around the world, and we
need to end it now.
(Con)
My Lords, I should declare that I am chairman of the
Communications and Digital Select Committee. I support Amendment
151A and the others in the name of my noble friend . I do so because
this is a matter of fairness.
Following on from what the noble Baroness, Lady Boycott, has just
said, the broadcasters have accepted that a pre-watershed ban on
junk food advertising is coming. They and I also understand that
the online platforms face a complete ban. However, once again,
the legacy or heritage media businesses are the only ones which
will face serious financial penalties if they make a mistake and,
for whatever reason, allow a non-compliant piece of advertising
to slip through and appear on air. I am sure that my noble friend
the Minister will emphasise that the difference between the
online platforms and broadcasters is only therefore about
regulatory burdens and sanctions, but that is the point, and it
is why this is unfair.
Why should the media businesses which will be significantly
disadvantaged commercially by the ad ban be the only ones fined
if something goes wrong? Why should the media businesses which
continue to lose ad revenue to online platforms stand by and
watch as those same platforms—Google, Facebook, YouTube—are not
yet subject to any statutory regulatory regime to prevent their
unfair market dominance? How can it be right that they shrug
their shoulders when it comes to liability for the ads they
profit from? They profit from them to a much larger degree than
the broadcasters profit from the ads they run.
When I spoke in Committee, the Minister said in reply that all
this would be dealt with via the online advertising programme and
that a consultation would start shortly. Any progress on that
will be welcome, but there is a limit to how much consultation
the media industry can take. What it needs is action, which means
legislation to deal with these various digital market and
competition issues that currently favour big online platforms and
are detrimental to everyone else, including consumers. To fail to
do that while prioritising legislation that hits the traditional
broadcasters more harshly than online platforms is unfair.
As I have said, those of us who support the amendments in the
name of my noble friend Lord Black do not want to delay the ban
on junk food advertising, but in introducing it, we should make
sure that liability for mistakes and failures to comply with
regulations is fair. The Bill as it stands is not. I am very
grateful to the Minister for the time she has given to hearing
these arguments, but urge her to reconsider the merits of these
amendments, especially bearing in mind that we are still a long
way from new legislation that will finally level the playing
field across the media sector. If my noble friend divides the
House, I will vote with him.
(CB)
My Lords, I too am very pleased to support Amendment 151A and the
following amendments. I also read the letter from the noble Lord,
, to Peers following the debate
on this in Committee. He said that it was
“difficult for regulators to keep pace with advertising code
breaches without the cooperation of platforms who hold
significant data on the process, and host the services”.
That seems to me a recognition of their responsibility in the ad
process. As the noble Lord, Lord Black, said, ads create the vast
majority of the platforms’ revenue and so they are responsible
for controlling their content.
I read a recent survey on the effect of online advertising on
young people, which was carried out by the healthy living
charity, Global Action Plan. It showed that the average teen sees
on Instagram alone one ad every eight seconds. That is the
equivalent of 444 ads per hour. The survey also revealed that
Facebook’s ad manager directly targeted young people with risky
and unhealthy advertising, including for fast food and alcohol.
It was the platforms’ data and algorithms which directed these
ads, and they need to be made responsible for any restrictions on
HFSS advertising as quickly as possible. There are other, more
insidious forms of online advertising, such as product placement
in digital content, especially among influencers. All these
should be made the responsibility of the platforms to control. I
hope the amendments will do just that.
I was glad to hear that the Government are looking at the online
advertising programme, but I, like many noble Lords, am concerned
by the laggardly start. Can the Minister say when she thinks the
consultation will conclude? I hope that will happen quickly,
because every day, thousands of young people are going to be
harmed by the delay. I also ask the Minister to guarantee that
platform liability for hosting product placement and others sorts
of insidious advertising will be in scope of the
consultation.
(LD)
My Lords, at this late hour, I simply want to express my support
for the noble Lord, Lord Hunt, and Amendments 154 and 155 in his
name by making three simple points. First, we are learning all
the time about the importance of nutrition and health. We are
also understanding increasingly how poor nutrition can have a
devastating effect on recovery and health inequality. It is
therefore remarkable that in both hospitals and, more
particularly, care homes we have no standards or training for the
people involved in the preparation and delivery of food. That is
a serious omission.
Therefore, it is time for us to move away from the traditional
way in which care catering has developed, which is by scandal and
omission, turning it round into a positive by developing new
standards of training. We also need to try to get particularly
teachers in colleges to get young people to understand that
catering in care settings is far more complex then catering in
restaurants. Within the NHS we have the opportunity to drive some
world-beating standards on nutrition and care, and that is all
that we are asking for by asking for this framework and these
amendments.
(Con)
My Lords, I am tempted to express my concern that the computer of
the noble Lord, , may have been hacked by the
noble Lord, , with the coincidence of the
Grenade bar being at the heart of their contributions to this
debate.
That said, I offer a word of warning about the imposition of a
hard deadline for the implementation of the advertising ban.
However desirable a deadline, it is actually impractical. I do
not seek here to delay anything; I accept totally that the
argument about the futility of an advertising ban has been lost,
and we move on to the implementation. A deadline of 1 April—and
all the delegated powers—creates a huge number of time-related
consequences following that. Advertising, as well as the
delegated powers and the need to produce and consult on guidance
on secondary legislation, is a consequence of this. Companies
will have no time to assimilate what the new rules mean for their
advertising campaigns. Advertising campaigns can take up to a
year from conception to final production. The Government have yet
to publish the secondary regulations consultation, which will lay
out exemptions, such as how SMEs are defined for the purposes of
the restrictions.
Once the Bill becomes law, which will not happen for several
months, Ofcom—that wonderful organisation —will then need to
delegate to the relevant regulator, which, according to the
amendments, will not happen until two months after the Bill
receives Royal Assent. The designated regulator—most likely the
ASA, as we heard—will then need to hold a consultation on the
details of the guidance and process the consultation responses
before putting out final guidance, which will then take several
months. Only once this final guidance is published will brands be
able to implement it when it comes to their marketing
campaigns.
Some noble Lords may argue that the Government have already made
clear what are permissible and what are not identifiable HFSS
products and that industry and businesses can prepare around
this. The questions and detail of the guidance are far more
complicated than that. Industry has a plethora of unanswered
questions that need to be resolved and which will take time,
covering everything from how liability will apply to third-party
delivery companies to the definition of transactional content and
what rules might mean for loyalty apps. I hope that your
Lordships will reject Amendments 149, 151 and 153 to avoid a
chaotic transition to the new rules.
I finish by speaking in support of my noble friend Lord Black’s
Amendment 151A and the resulting amendments. My noble friend laid
out the case extremely well and I hope he will seek the opinion
of the House on this matter. I can add nothing to the arguments
that he and other noble friends have laid out. If there is a
vote, the simple choice of the House is: do we want to let these
monolithic, monopolistic platform giants carry on getting away
with murder in this country? They have been allowed to get away
with stealing copyrights, they do not regard themselves as
publishers, and they create more harm—which, one hopes, the
online safety Bill will seek to amend.
This is discriminatory legislation, which makes a difference
between two people doing the exactly the same thing: the
broadcasters, who will be liable, and the online platforms, for
which there is no parity at all. It is about time we recognised
that we must deal with these people and regulate them properly
and sensibly. This is a perfect opportunity, and I hope your
Lordships will support the amendment.
10.15pm
(GP)
My Lords, I wish to briefly reinforce a point made by the noble
Lord, , backed up by the noble
Baroness, Lady Boycott, about how so much food is advertised as
being healthy when it is clearly nothing of the sort. I want to
pick up the point made by the noble Lord, . I will not advertise any
further a particular brand of allegedly healthy food for
athletes, but these foods are presented as though they are
consumed by people who have just done extraordinary physical
efforts—as exemplified in your Lordships’ House by the noble
Lord, , who, I can attest, I saw at
the APPG for Running, looking like he was appropriately involved
in the acts that he was supporting. However, more than half the
calories consumed in the UK are in ultra-processed foods. That
figure rises to 65% for children and teenagers. We need action
urgently. This is a health crisis; it is an epidemic.
(LD)
My Lords, I wish we were talking about restricting the
advertising of gambling; that would have more effect on the
health of the country than this. However, these are very
important measures. Before I talk about the three major groups in
this grouping of amendments, I thank the noble Lord, Lord Hunt,
and my noble friend Lady Barker for raising the really important
issue of nutrition to patients in hospital and people living in
residential care homes.
The rest of the amendments fall into three broad groups. First
are the amendments in the name of the noble Lord, . While he was telling us the
very sad story about the manufacturers of the Grenade bar, about
how much protein it has and how little carbohydrate, I was
wondering: what about the other major nutrient, fat? Noble Lords
will remember from their biology lessons that, gram for gram, fat
has twice as many calories as either carbohydrate or protein, and
if you eat an awful lot of those bars, you will get fat—the “F”
in HFSS foods. Of course, one “S” in HFSS foods stands for salt,
and the noble Lord, , has now told us exactly what is
in that bar—far too much fat and far too much salt.
However, the noble Lord, , raises a point which I raised
in Committee: the nutrient profiling model is 11 years old. I
asked the Minister whether there are any plans to update it,
because companies really need up-to-date information about
exactly what will fall within the ban and what will not. So I ask
the question again: are there plans to update that 11 year-old
guidance? We really do need it, because then companies such as
the one mentioned by the noble Lord, , and many others, will really
know what they are dealing with. It certainly does not sound to
me as though that bar will fall outside the restriction on
advertising.
I have added my name to the amendments in the name of the noble
Lord, . I remember when, in
Committee, the Government introduced this power to extend the
deadline—they did not say how long for—and I asked what this was
for and why the Government needed to extend the implementation of
these restrictions. The Minister, the noble Baroness, Lady Penn,
said it was just in case there were any hitches with the
consultation. I think the noble Lord, , is right and there is
certainly a hint of long grass in what the Government were trying
to do. I was a bit suspicious about it in Committee, and I still
am. I support what the noble Lord, , is trying to do.
All the industries concerned with these measures have had plenty
of notice of what the Government wanted to do, and I think, once
the detail comes forward, they will have had plenty of time.
Perfectly reasonably, the noble Lord, , is asking for that power
that was taken to extend the deadline to be limited to just three
months. That is quite enough.
As for the amendments from the noble Lord, Lord Black, I agree
with my noble friend , although not
necessarily for the same reason. Of course, there is a fairness
issue here, but I think that, if the responsibility for
implementation and making sure there was compliance was extended
to online platforms, it would strengthen the objectives of these
measures from the Government, which I support. Therefore, if he
puts his amendment to the vote, we will vote for him.
(Lab)
My Lords, we have had a considerable debate on these issues, in
Committee and this evening in your Lordships’ House. From these
Benches, we absolutely support the provisions to tackle obesity.
The reasons have been gone over many times, but I make one point
in respect of children—that children with obesity are five times
more likely to become adults with obesity, and increase their
risk of developing a range of conditions, including type-2
diabetes, cancer and heart and liver disease. It is incumbent on
us to take the steps that are necessary.
Given the lateness of the hour—and I know that noble Lords wish
to get to the question whether there is to be a Division—I shall
focus my comments on the amendments relating to advertising,
Amendment 151A, in the name of the noble Lord, Lord Black, and
the subsequent amendments, to which I have put my own name. There
has been a great clarity of argument as to why those amendments
deserve favour, but the one that sticks out for me is about
ensuring the effectiveness of the legislation that we are
speaking about.
We already know that legislation can have a huge impact. For
example, the soft drinks industry levy has led to manufacturers
reducing 44 million kilograms of Sugar each year
from drinks in the UK. We also know of the support for the
measure of the watershed for advertising of
high-fat Sugar and salt
products—in other words, to protect children from those
influences. We know that the measure is supported by
organisations such as the British Heart Foundation, the Food
Foundation and many other experts as being able to make the
difference, because children are influenced by advertising. We
should really be ensuring that children see adverts for healthier
food and drinks.
Should the will of the House be tested on these amendments, these
Benches will certainly be in support, because we feel that the
Government should make sure that the proposed pre-9 pm ban on
advertising unhealthier foods on TV, with a total ban online, has
to be implemented effectively and appropriately across all media
and platforms. If it is not and remains as it stands, it will not
do the job that it is intended to do, and we will miss an
opportunity, which we hope the Minister will reflect on, as the
case has been made so clearly and directly.
(Con)
My Lords, I thank noble Lords for this debate. I will turn first
to the amendments in the name of my noble friend . As noble Lords are aware,
the Government introduced an amendment in Committee to enable
adjustments to the date of commencement of the HFSS advertising
restrictions, should emerging issues require it to be moved.
We will continue to work with regulators and businesses to ensure
that guidance is produced promptly to support timely
implementation; our intention remains to implement restrictions
from 1 January 2023. We think that date balances ambition with
the importance of sufficient time for business to prepare.
However, limiting this flexibility to a period of only three
months, as proposed by my noble friend’s amendment, would be
counterproductive, as that timeframe may not allow us to respond
adequately to any unforeseen challenges or ensure smooth delivery
of this policy.
Turning to the amendments tabled by my noble friend , I seek to reassure him that
our current approach provides an overall assessment of the
nutritional content of products, as it accounts for nutrients of
concern as well as beneficial nutrients. As such, we consider it
to be an effective mechanism for permitting healthier products to
be advertised, while still restricting those which are less
healthy overall. The detail of the products in scope will be
underpinned by secondary legislation, which can provide the
necessary detail and be adapted in response to future changes to
products on the market. The Government will consult soon on this
and other definitions included in the draft regulations, such as
the small and medium enterprise exemption.
I turn now to the amendments on platform liability. The
Government believe that the online advertising programme remains
the best way to address such issues on an industry-wide basis,
rather than in a piecemeal fashion. I am pleased to be able to
confirm that the DCMS consultation, which should launch in the
next fortnight, will examine the harms associated with paid-for
advertising online and consider the measures that could apply to
platforms and others in the supply chain in order to increase
accountability and transparency.
It is our intention to legislate on those conclusions in this
Parliament, as we share the view that it is the right time to put
in place holistic measures to tackle platform liability. However,
it is also right to bring forward powers in this Bill now, so
that we can begin to tackle obesity via restrictions to TV,
on-demand programme services and online, in line with current
enforcement frameworks for advertising that are familiar to
industry. Platforms are not able to pre-vet adverts in the same
way that broadcasters can. We recognise that there is a need to
address that issue, but to do so in the round.
Amending this Bill in relation to online platforms without wider
consultation and at a late stage risks unintended consequences.
Those could include undermining the clear responsibility of
advertisers to adhere to the restrictions that we are debating;
interfering with the competitive dynamics that apply across the
online advertising supply chain; not addressing accountability
and transparency issues that apply elsewhere in that ecosystem;
the danger of the restrictions applying to a wide range of
internet service providers beyond those intended, including
intermediaries and publishers; and not providing regulators with
the right tools, funding or structures to regulate effectively.
Were this amendment to pass, the Government would need to
consider very carefully whether implementation from 1 January
2023 remained possible. The risks posed by creating a more
complicated regulatory framework are likely to result in a
delay.
(Con)
My Lords, I am grateful to my noble friend the Minister for
giving way. Do the Government understand the difference between
mass brand advertising on free-to-air linear television and the
direct addressability to individuals online, where they have all
the data—the address, postcode, email address and phone number—of
the kids they are advertising to? The Government seem not to
understand the pernicious nature of advertising online.
(Con)
My Lords, in our 2020 consultation on advertising, we outlined
our concerns about online targeting of adverts, so we did look at
the approach suggested by my noble friend. There is no evidence
to suggest that targeting online does not account for the use of
shared devices and profiles between parents and children, the
communal viewing of content or false reporting of children’s
ages. This—combined with concerns around the accuracy of
internet-based targeting and other behavioural data as a way of
guessing a user’s age and a lack of transparency in reporting
online—shows why the Government believe that we need to introduce
these advertising restrictions online in the way that we
have.
10.30pm
I was about to address the points that my noble friend made. He
spoke against the amendment restricting the flexibility that the
Government have in implementing these provisions because of the
time that it might take to implement these measures, because they
are complex and have a long feed-in time, because we must get
guidance out to industry, and all the other measures that we have
talked about. We consulted on these measures and on different
approaches to them previously. We have engaged business in the
way that we are taking these measures forward to give them time
to prepare.
However, there is a tension between that and what the noble
Baroness, Lady Walmsley, said: businesses have plenty of notice
on the approach that we are taking and plenty of time to prepare,
and that a fundamental change in approach to how we are dealing
with online advertising in this Bill for these measures today
would not result in any delay. I emphasise that we completely
agree on targeting online advertising as well as broadcast
advertising. That is why it is in the scope of this Bill and the
provisions that we are talking about. We also agree that we must
address the question of platform liability. We are committed to
doing so as part of that wider piece of work on the online
advertising programme.
My noble friend Lady Stowell talked about the issue at heart
being one of parity between broadcasters and online platforms. I
understand how important that is, but we must not forget the
issue at the heart of all of this, which is bringing in measures
to protect children who are unhealthy and at risk of obesity so
that they do not them see messages which are inappropriate; we
know the statistics. This Bill, and the measures in it which we
do not want to delay, do this. We will address the question of
online liability.
Turning to the amendments tabled by the noble Lord, , as he is aware,
officials are working closely with NHS England to implement the
recommendations from the Independent Review of NHS Hospital Food,
which was published in October 2020. One of the recommendations
from that review was for NHS England to publish an updated
version of the NHS food and drink standards document. It is
intended to be published in May and I assure your Lordships that
it will contain a standard which requires that NHS trust boards
have a designated board member with responsibility for hospital
food.
We have been clear that the detailed standards and requirements
in relation to hospital food should be provided in secondary
legislation and not in the Bill. As with the advertising
restrictions, this approach will enable Ministers to act in
future years if new or emerging evidence suggests that amendments
are needed.
The standard of food in social care settings is just as important
as the standard of food in health settings but the context is
different. This Bill already includes powers to set food
standards across the hospital estate. However, adult social care
settings are fundamentally different from hospitals, with
services based on the principles of personalisation and choice.
Regulated care settings that provide food will mostly be
residential care. These are people’s homes. As such, their needs,
wishes and preferences should be well known to staff, and blanket
requirements are unlikely to be appropriate.
The Care Quality Commission regulates hydration and nutrition
across health and social care as one of the fundamental standards
of quality and safety. It also ensures that staff are adequately
trained, and its guidance recommends that all staff complete the
care certification which includes content on food standards. The
Government are currently working with the sector on a new
delivery model for the care certificate to improve the quality of
training, so setting out those levels of training in legislation
would not be proportionate at this time.
Therefore, I hope that my noble friend can withdraw his
amendment, and that other noble Lords will not move theirs when
they are reached.
(Con)
My Lords, especially at this time of night, it is very taxing to
try to summarise what is a complex debate raging across a number
of issues, and in particular to thank everyone who has spoken. If
I fail to thank everybody by name, I hope I will be forgiven in
the interests of brevity, but I thank my noble friend the
Minister again, not only for her remarks but for the attention,
care and hard work she has put into addressing all these issues
with me and many other noble Lords who have spoken on the various
topics we are addressing.
I have to thank one or two other noble Lords. In particular, I
express my gratitude to the noble Lord, , who went out, no doubt at
considerable personal risk and with some arduousness, to purchase
an example of the Grenade Carb Killa. I had never seen one in
captivity or in nature until he produced it in the Chamber today.
That in itself is something I am very grateful for. He chose the
one that I think is called “white chocolate” or something like
that.
Here the noble Lord, , has been helpful to me. I
believe there are 14 different flavours of Grenade Carb Killa. It
is the view of the confectioner that manufactures them that some
will comply with the profiling model while others will not.
Perhaps next time the noble Lord could try a different flavour
and have it tested in Liverpool, I think it was, and that would
generally help to advance things. The difficulty for the company,
though, is that this is not a game. It needs to know which of
these products has to be reformulated and how for it to remain
compliant and stay in business. This was a very helpful
illustration of the difficulties.
One other noble Lord I will mention is my noble friend , who referred to the tobacco
advertising ban as if it were some sort of comparison. There is
no comparison. Nobody had to carry out a profiling exercise to
decide whether something was a cigarette: it was a cigarette or
it was not. There was no question of putting it through a model
to discover it was a cigarette. Nobody in the cigarette
manufacturing business had to reformulate their product and
market test it to make it compliant with regulations. What you
can do with a tobacco ban very quickly is simply irrelevant to
the hurdles the Government are setting in front of
businesses.
Apart from that, the many noble Lords who spoke on other aspects
of the Bill, some with great knowledge and experience, have
illustrated something that I hope everyone in the House can agree
on, with the possible exception of my noble friends on the Front
Bench: it really is a crying shame that issues of such importance
and complexity should be rammed into a major Bill in a schedule
when in fact it must be clear to us all now that this schedule
should really have been a Bill in its own right, and should have
received the attention and scrutiny these complex commercial and
nutritional issues deserve. With that, I beg leave to withdraw my
amendment.
Amendment 148 withdrawn.
|
