[Intl-tobacco] EU: Q&A on tobacco advertising in the EU

[Robert Weissman]

Questions and Answers on tobacco advertising Europa Press Release


  *27 July 2005
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*1. What is the Tobacco Advertising Directive all about?*

The Directive bans tobacco advertising in the print media, on radio and
over the internet. It also prohibits tobacco sponsorship of cross-border
cultural and sporting events. The Directive was passed by the European
Parliament and Council in 2003 (see: IP/02/1788) and gave EU Member
States until 31July 2005 to implement the rules it contains.

*2. Why did the EU pass the Directive?*

The Directive was passed using the EU=E2=80=99s powers to regulate its inte=
rnal
market. By the 1990s differing national rules on tobacco advertising and
sponsorship were becoming a barrier to the free movement between Member
States of the products and services carrying them. In 1998 the EU
attempted to resolve this problem by passing a directive banning all
forms of tobacco advertising and sponsorship. This directive was
annulled by the European Court of Justice in 2001, which ruled that a
total ban went beyond the EU=E2=80=99s powers. However, the Court stated th=
at
the EU could legitimately introduce a more limited ban on tobacco
advertising and sponsorship. The 2003 Directive adheres strictly to the
limits laid down by the Court in its 2001 judgement.

In regulating its internal market the EU, of course, strives to ensure a
high level of health protection. In the case of an additive and harmful
product such as tobacco this means having restrictive rules possible on
itsa dvertising and promotion.

Bans on tobacco advertising and sponsorship are recognised by health
experts as essential elements of an effective anti-smoking policy. A
comprehensive ban on advertising can reduce smoking prevalence by up to
7%*^[1] *
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The WHO=E2=80=99s Framework Convention on Tobacco Control, for which the EU
recently completed its ratification (see MEX/05/0630), has as one of its
objectives a world-wide ban on tobacco advertising, promotion and
sponsorship.

*3. What sorts of advertsing and sponsorship are NOT covered by the
Directive?*

Although tobacco advertising on television has been banned in the EU
since the 1990s, this is governed by the TV Without Frontiers Directive
rather than the Tobacco Advertsing Directive.

Advertising in cinemas and on billboards or using merchandising (e.g.
ash trays or parasols) falls outside the scope of the Tobacco
Advertising Directive as these media do not have a sufficient
cross-border dimension to justify EU-level regulation. Tobacco
sponsorship at events which are purely local, with participants coming
from only one Member State fall outside the scope of the directive for
the same reason.

*4. Does the sponsorship ban apply to Formula One Grand Prix races? *

Yes. After 31 July tobacco sponsorship of Grand Prix races and all other
such international or European sporting or cultural events should cease.

The version of the Directive that was annulled by the European Court of
Justice in 2001 had allowed a transition period up to 2007 for the
ending of tobacco sponsorship at international sporting events such as
Grand Prix races. However this provision was not included in the
versions of the Directive finally adopted by Parliament and Council in 2003=
.

*5. Have all Member States now implemented the Directive? *

As of today, 12 Member States have notified the Commission of their
implementation of the Directive. These are: Austria, Belgium, Denmark,
France, Estonia, Italy, Latvia, Lithuania, Malta, the Netherlands and
Slovenia.

A number of other Member States, including Finland, Ireland, Portugal
and the UK, have wide ranging tobacco advertising bans in place but have
not yet notified the Commission of how their legislation corresponds to
the requirements of the Directive.

The most important thing from the Commission=E2=80=99s point of view is tha=
t the
forms of tobacco advertising and sponsorship covered by the Directive
stop after 31 July.

*6. What sort of action can the Commission take to enforce the Directive? *

The Commission can =E2=80=93 and does =E2=80=93 initiate infringement proce=
edings
against Member States for not implementating, or not enforcing, EU laws.
These starts with an official warning from the Commission to the Member
State(s) in question and can end with judgements and fines in the
European Court of Justice (ECJ). The Commission will make use of these
powers to ensure Member States implement, and then enforce, the Tobacco
Advertising Directive.

*7. Does the Directive oblige Member States to prohibit TV pictures of
Formula 1 races from outside the EU if tobacco logos are visible on the
cars?*
Screening of sporting events on TV is covered by the TV Without
Frontiers (TVWF) Directive, which has not been changed. However, the
Tobacco Advertising Directive prohibits sponsoring of events or
activities in EU countries if they have a cross-border dimension to them.

*8. Does the Directive oblige Member States to prohibit photographs of
Formula 1 cars appearing in print media if tobacco logos are visible on
the cars? *
This may depend on the situation. Authentic news photos from events
organised in a third country are not prohibited. However, if photos of
F1 cars are used for advertising purposes, even for other products, the
photos may have a direct or indirect effect of promoting tobacco
products. The tobacco industry should not be allowed to circumvent the ban.

*9. For Grand Prix races in the EU some Formula One teams are using
colours, shapes and font faces associated with tobacco logos on the cars
(but not the actual logo itself). Is this allowed under the Directive? *
This is something that the Commission and the Member State authorities
will need to examine. According to the Directive "advertising means any
form of commercial communication with the aim or direct or indirect
effect of promoting a tobacco product".

*10. Is it possible that the latest Tobacco Advertising Directive will
be annulled by European Court of Justice? *

In September 2003 the German government aked the European Court of
Justice to review the validity of the Directive. Germany argues that EU
lawmakers exceeded their powers under the internal market provisions of
the EU Treaty (Article 95) in passing it.

In parallel to the challenge by the German government, the owners of the
N=C3=BCrburgring motor racing circuit have lodged a challenge with the Cour=
t
of First Instance claiming that the ban on tobacco sponsorship will
unlawfully cause them economic damage.

No hearing has yet been scheduled for either of these cases. It is
difficult to predict when hearings are likely to take place, or when
judgements can be expected.

The Commission is confident that these challenges will not succeed. In
its judgement annulling the 1998 Tobacco Advertising Directive the Court
explicitly stated that the EU could legitimately introduce a ban on
certain types of tobacco advertising and sponsorship with cross-border
implications. The 2003 Directive adheres strictly to the limits laid
down by the Court in its 2001 judgement.

*Further information*
For more information on EU tobacco control policies see:
http://europa.eu.int/comm/health/ph_determinants/life_style/Tobacco/tobacco=
_en.htm