Communications Act 2003 (Restrictions on the Advertising of Less Healthy Food) (Effective Date) (Amendment) Regulations 2022

Motion to Regret

Moved by

That this House regrets that the Communications Act 2003 (Restrictions on the Advertising of Less Healthy Food) (Effective Date) (Amendment) Regulations 2022 (SI 2022/1311) will delay for 33 months, until 1 October 2025, the implementation of the ban on advertising less healthy foods and drinks before the 9pm watershed on television, on radio and on online media.

My Lords, the increasing level of obesity represents a clear and present danger to the health of our nation. I will not recite all the issues caused by obesity, but I direct anyone wanting to learn more to the Obesity Health Alliance.

Recognising this risk, Parliament has agreed on a number of tools to try to arrest, and ideally reverse, that increase, including restrictions on advertising less healthy foods which were agreed to in the Health and Care Act 2022. But while Parliament can will the ends as well as the means, in the shape of the proposed new advertising restrictions, it depends on the Executive to bring them into effect and to do so in a timely fashion, and yet we are faced here with the Government telling us that they cannot implement what we have asked them to do for the best part of two years. This makes the Government look powerless to respond to a public health crisis that needs action right now, and their defence seems to be that they are not impotent but merely incompetent.

We can expect the Minister’s response to explain the challenges of all the different processes that they have to go through to introduce the restrictions and why these all take time. While I am generally sympathetic to the need to regulate properly by consulting with affected organisations, I am afraid that my response on this occasion has to be that my heart bleeds custard for the Government. The need to go through these various steps was entirely predictable, as these measures have been under discussion since 2018 and were formally consulted on after the Government’s much-heralded tackling obesity strategy of 2020. With the additional delay proposed today, we are looking at these measures taking seven years to get from farm to table. The Minister can have a go at explaining this, but I hope that he will not try too hard to defend it.

I expect to hear about the challenges with Ofcom’s workload. Again, I certainly understand that it is stretched by all the new work coming under the Online Safety Bill, but this delay on these regulations now risks making matters worse. It would have been better to have had this all in place before the wave of new demands comes along. I fear that we may be back here again being told that, unfortunately, there has to be a further delay while more important online safety measures take up all of Ofcom’s bandwidth. We need to ask if there is more to this delay, and if the Government are backsliding on their commitments to anti-obesity measures; they are happy to announce and reannounce them but less willing to get the job done.

Assuming the Minister will say that the Government are still committed to a robust anti-obesity strategy, I close my remarks with a suggestion for how they might make swifter progress and look a little more competent. I assume that the first stage of developing the regulations will be to identify the extent and nature of advertising for less healthy foods that is likely to come within the scope of the new rules. This scoping and definitional exercise will have to be done quickly, if indeed it has not already happened.

Once those major advertisers have been identified, I suggest that the Government call them in and invite them to adapt their advertising strategies now, so as to be compliant with the incoming rules, rather than waiting to be ordered to do so in 2025 under threat of sanction. The Government should also then inform the public about how companies have responded to this request, so that we can judge for ourselves the extent to which each company has a sense of genuine corporate social responsibility that goes beyond mere minimal legal compliance.

Such an identify, invite and inform process—yes, that is a polite way of saying “name and shame”—could easily be done within the timeframe of 2023, based on work that will have to be carried out anyway as part of developing the regulations. I expect that businesses will want to meet with government, to lobby perhaps for slower movement on the new restrictions, creating perfect opportunities for government to lobby them back to move faster in areas where they have considerable discretion: their marketing strategies. If some of the major businesses accept an invitation to change, this could make a real difference in 2024, as well as creating a solid foundation for the order-and-enforce phase that will eventually come in 2025.

I hope that the Minister will, after the obligatory defence of the Government’s tardiness for reasons beyond their control, wish to explore this modest proposal. I beg to move.

My Lords, I support the regret Motions from the noble Lord, Lord Allan of Hallam, and the noble Baroness, Lady Merron. At the noble Lord’s invitation, I will kick a slightly different ball into the open goal.

I share the Government’s concerns about levels of obesity in the UK, but the failure to adequately explain or justify both the delay to and the rationale for these regulations is further evidence that the Government’s strategy to tackle obesity is disjointed, partial and careless of unintended consequences, and that it falls far short of the integrated public health approach that will be required if we are to meet this major public health challenge.

Research in obesity and eating disorders has often followed separate paths, but it is increasingly recognised that eating and weight-related problems need to be seen on a spectrum that goes from diagnosable eating disorders, through to disordered eating behaviours such as fasting, vomiting or laxative use, to body dissatisfaction, binge eating, being overweight and obesity. Studies show that individuals often present with more than one problem concurrently or move between different problems at different times in their lives, so eating disorders and obesity cannot be seen as separate and distinct issues. There is a raft of risk factors common to both: poor body image and low self-esteem; weight-related teasing; the modelling of poor eating behaviours at home; the stigmatising attitudes of teachers or sports coaches; and the socio-cultural norms around body shape that underpin everyday life. Any of these can increase the risk of both eating disorders and obesity in adolescence and adult life.

The interactions between the two mean that any strategy to address them needs also to be integrated. This is especially important when it comes to messaging. Many campaigns position being overweight and obesity as issues of personal responsibility and choice, shaming and stigmatising people, rather than acknowledging and addressing societal and environmental factors, as well as the powerful impact of genetics, epigenetics, metabolism and biology.

My Lords, it is a pleasure to follow the noble Baroness, Lady Bull, who set out so clearly that we have to get away from blaming individuals for the fact that we have, as a society, a deeply damaging and disastrous relationship with food. Perhaps going even further than the noble Baroness, I stress that what is behind that is a broken food system—that what is supplied into the system is deeply unhealthy and damaging in all kinds of ways. It is both what is presented to people and what comes into the system that are problems.

It might be fairly said, as the noble Baroness just did, that tonight we are talking about partial, inadequate measures—and I offer the Green group’s support for both these regret Motions—but they are, at least, measures to do something. We can look at another partial, inadequate measure that has come into effect and we are starting to see the results of: the Soft Drinks Industry Levy Regulations 2018. It is very small and partial, but a recent study published in PLOS Medicine showed that we have seen an 8% reduction in obesity in girls aged 10 and 11 as a result of that. There is a gender aspect that I do not think anyone yet fully understands. It is a limited state of progress, but it is better than heading in the opposite direction.

Looking where we are now, here is one figure that is truly shocking: last year, 660 under-fives were admitted to hospital with obesity given as the primary cause of their admission. That is what our broken food system is doing. Restrictions on advertising were hard fought for and much discussed during the Health and Social Care Bill, and I remember sitting in your Lordships’ Chamber over what I suspect was many hours. Yet here we are today, and I cannot help reflecting on an earlier discussion in your Lordships’ House in which it was suggested that the Scottish Government were bringing in the bottle return scheme far too quickly. That was a three-year delivery from the regulations being passed to them being implemented. That was something Westminster could not imagine.

My Lords, I am afraid I am a weary veteran of discussions about these regulations. As your Lordships know, the House’s Secondary Legislation Scrutiny Committee has absolutely slated them and the information provided with them. It mentions:

“The Explanatory Memorandum (EM) states that in 2019”—

that is a year after the industry was first warned that this sort of ban was going to be implemented—

“under current voluntary restrictions, children were exposed to 2.9 billion ‘less healthy food and drink TV impacts and 11 billion less healthy food and drink impressions online’”.

That is 13.9 billion hits. That was four years ago. In the four years between the measures first being announced and us legislating for the ban last summer, there were 13.9 billion every year, coming to 55.6 billion hits for unhealthy foods, which is an existential scale of influence on children’s food choices. Now we are being told there is going to be another three years of it; at the same rate, that is another 41.7 billion hits to persuade children to eat unhealthily. That comes to 97.3 billion adverts—a figure 12 times the population of the world. There cannot be a child in this country over that period of time who has not seen hundreds and thousands of adverts persuading them to make the wrong food choices.

We are told that the industry needs longer to prepare and the Government need longer to consult. The Government are consulting on simple technical issues that should not take many weeks, let alone another three years. Indeed, I understand there is an idea of changing the definition of these foods, but we already have a clear mechanism for deciding what these foods are. It is called the nutrient profiling model, and the industry knows it perfectly well, because since 2007, it has not been able to advertise those foods around children’s television programmes. So why do we have to wait another three years? How on earth do these delays line up with the Government’s strategy to halve childhood obesity by 2030? These things simply do not match up.

My Lords, I am grateful to the noble Lord, Lord Allan, for his Motion to Regret and for the excellent way in which he presented it, and to all other speakers who have contributed. I feel sorry for the Minister. He is one of several Ministers we have seen since 2015, since the Conservatives have been totally in charge of government, and, during that period, of course, we have seen obesity grow—it is the one area in which we have seen growth, growth, growth. It is an area that has now worryingly spread down, particularly to children. We can say what we will say today, but I know the Government are not changing their mind; they are kicking this ball into the long grass, into the next election and beyond. Really, I think we in this Chamber should start addressing ourselves to who will be in power next time around, and what we might try to do in persuading them to have policies that will effect changes, because the one thing that the Government should have learned is that relying on voluntary conversations and a voluntary response from the private sector and the businesses in the food and drinks industry rarely produces a response.

Yesterday, I had experience of where the Government have taken some action. I went out for lunch and I had a choice on the menu: I saw the number of calories available to me with the various foods that were in front of me. I chose to have food with 1,000 calories, as opposed to 1,500, which I might have chosen had they not got that legislation through—with our support. Where they failed, of course—we pointed this out at the time the legislation was going through—was when my colleagues sat down, my friends and family, and had the bottles of wine, the gin and tonics before and the rest of it. They had no idea what they were consuming. I have been talking about labelling on alcohol for years, and the Government have done nothing at all. They have relied on the private sector to try to effect changes; there have been some marginal ones, but we still do not have any knowledge of what people are consuming when they come to take alcoholic drinks. Often, they can be consuming far more calories in the form of drink than in food.

My Lords, the Children’s Minister recently admitted that the nation had a problem with childhood obesity that should not be ignored. I am sure that noble Lords who have spoken today, and I am grateful to them, will share that view, not least because children with obesity are five times more likely to become adults with obesity, increasing the risk of developing conditions including type 2 diabetes, cancer and heart and liver disease. This is an extremely serious and pressing matter, as the Minister has been reminded yet again.

Two in five children in England are above healthy weight when they leave primary school and we now see the fastest increase in childhood obesity on record, as my noble friend Lord Brooke highlighted in his remarks. But it gets worse. Children starting school in the most deprived areas are three times as likely to be severely obese as those in the wealthiest, while NHS data shows that almost half of boys in England’s poorest areas are overweight or obese when they leave primary school. Last year, there were 3,400 severely obese children aged four or five in the most deprived parts of the country, as compared with 630 in the richest. So will the Minister give some indication as to what account is being taken of this great disparity between those who have more and those who have less in the Levelling-up and Regeneration Bill currently being considered in your Lordships’ House?

As we have heard today, it is absolutely right that we make informed choices about what we eat and drink, but choice can only really be choice if there is no distortion, and if those who are making the decisions have all the information they need and are able to interpret it. As the noble Baroness, Lady Bull, said, we actually need an integrated health approach to tackle the complexities of achieving a healthy weight. So the question for the Minister that has run throughout this debate is: how will the statutory instrument support this integrated health approach to tackle the complexities we know we have?

My Lords, I congratulate the noble Lord, Lord Allan—despite his wish to invite people to kick our balls—and the noble Baroness, Lady Merron, for securing the debate to discuss these regulations. I also thank the Secondary Legislation Scrutiny Committee for its report on this, and I thank all noble Lords for their constructive discussion on how to tackle the pressing challenge on obesity. I thank the noble Baroness, Lady Bull, in particular, for her thoughtful contribution showing the complexities of the subject with regard to the impact on eating disorders, as well as obesity.

I like to think that we are all agreed on the scale and the gravity of the issue at hand. Data from the latest child measurement programme, as mentioned by others, shows that 38% of children leaving primary school were either overweight or living with obesity. One in four were living with obesity. This, as we know, is fuelled by the regular overconsumption of food and drink that is high in calories, sugar and fat—or HFSS food and drink for short. As the noble Baroness, Lady Merron, mentioned, we know that being overweight or living with obesity at a young age increases the risk of being overweight as an adult which, in turn, significantly increases the risk of diabetes, coronary heart disease, musculoskeletal issues and certain cancers. This impacts on both the individual’s well-being and wider society. As we all know, it comes at a very high cost. Not only does it cost the NHS £6.5 billion a year in the latest estimates—there is an economic cost estimated to be as much as £58 billion. For all those reasons, this Government are committed to tackling obesity: it is the morally and fiscally responsible thing to do.

I would like to think that the steps we have taken so far actually do show a well-thought-out approach of meeting our goal of halving childhood obesity by 2030. If we look back at those, we see that in October 2022 we introduced restrictions on where products that are high in fat, sugar and salt can be placed in stores. If you walked around our supermarkets today, you would see a big change in their look and feel. Our conservative estimates suggest that these restrictions alone will reduce excess calorie consumption by children by 50 calories a day. This would reduce the number of children living with obesity by over 400,000 over 25 years. We expect that those restrictions will be the most impactful policy in tackling obesity and early data from Kantar—the data provider in this area—shows that these results are starting to come through.

In April 2022, we implemented regulations requiring large out-of-home businesses such as restaurants, cafés and takeaways to provide calorie labelling on the food they sell, which is estimated to reduce calorific intake by eight calories per day. I take the point made by the noble Lord, Lord Brooke, about alcohol labelling, but I note there are a number of low-calorie beers—this is close to my own heart—and other low-calorie alcohol. In fact, if you look closely at the label, you can see the number of calories. However, you do have to look very closely, so I think he makes a good point about making people more aware of them, as happens with menus. As I said, those out-of-home restrictions reduce intake by eight calories per day. The other big thing we did—again, there was cross-party support for all these things—was the soft drinks industry levy, which has reduced sugar content by almost 50% in the last five years. That is estimated to reduce calorific intake by 18 calories per day. So these three measures—these three solid actions—reduce excess calories by an estimated 76 calories per day.