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Fact sheets

Tobacco advertising

February 2004

Latest developments:

German company files complaint against tobacco ad ban

The Court of First Instance has not dismissed the case of Kreuzer Medien GmbH against the Council of the European Union and European Parliament on advertising and sponsorship of tobacco products. Parties are still preparing written exchanges, a process that could take another five to six months. This complaint is in addition to the complaint filed by the German Government last September 2003.

Existing EU legislation:

A ban on all tobacco advertising and sponsorship products was adopted in 1998 but subsequently annulled by the European Court of Justice following legal action taken by the German Government based on the challenge to the Commission’s reliance on article 100a of the Treaty – which is designed to ensure free movement of goods.

The EU Treaty guarantees free circulation of goods and services on the condition that they comply with the rules of the country of origin.

To see the previous directive, go to: http://wwwdb.europarl.eu.int.

However, in July 2003 the EU signed the WHO Convention on tobacco control and the Directive banning cross border sponsorship of events or advertising of tobacco products was published in the Official Journal.

The Directive does not include a ban of poster or point-of-sale advertising or press and Internet advertising emanating from outside the EU.

EPC position:

The EPC says that the ban on tobacco advertising has implications beyond tobacco and health. A directive banning press advertising has wider repercussions than the loss of tobacco advertising, setting a damaging precedent for the future freedom to advertise and the free circulation of newspapers and magazines (in print and on the Internet) throughout the internal market of the EU.

According to the EPC, singling out the advertising of tobacco products in the press raises three major issues of concern:

• The implications of a ban on tobacco advertising along single market principles are far-reaching. According to the legal base for the Commission’s arguments, any form of advertising where there are divergent rules at national level which might in theory lead to obstacles of importation of press (and Internet) services are under threat;
• This directive is disproportionate according to the Treaty and the specific principles agreed by the European Commission in the Commercial Communications legislation;
• This directive w creates unfair competition between EU-based publishers and those outside the EU wherever Member States are obliged to allow the free circulation of publications from third countries containing tobacco advertising. Any future directive dealing solely with press advertising – ignoring all other forms of sponsorship and commercial promotion (billboards, cinema advertising, promotional products etc) is discriminatory to the press.
• According to the EPC, there was no attempt to quantify the cross-border effect of the press. The highest percentage of circulation found by the EPC was El Pais, with a total 3% circulation outside Spain. Newspapers and magazines are produced for national markets, usually aimed at regional or local markets. These are subject to the laws of these countries, some of which ban tobacco advertising. In fact, only 1-2% of newspapers are sold in their original form outside their home country – and these mainly to citizens living outside their home countries. Most publications which are marketed across borders, are printed in special editions for each market they are sold in – and are therefore already subject to different national legislation.

Self-regulation in the EU:

EASA - European Advertising Standards Alliance – set up by the EPC and other industry bodies to ensure the co-ordination of national self-regulatory systems for advertising and to ensure that consumers complaining in their home country about advertising from another member state have their complaints dealt with by the self-regulatory body in the country of origin of the advertisement.

http://www.easa-alliance.org

Facts and figures:

• National advertising bans exist in: Italy, Portugal, France
• Member States with the highest number of smokers: Italy, Portugal, France
• 49% of publishers’ revenue comes from advertising
• For magazines, banning advertising for tobacco [and alcohol] products would be equivalent to a reduction in net profit of almost 35%
• The Commission has never provided concrete evidence of obstacles in the newspaper market of actual disruptions to cross-border trade
• Only three member states (France, Italy and Sweden) had imposed a tobacco ad ban without providing for a free trade clause for imports – and no attempts had been made to prevent the importation of foreign publications containing tobacco advertising into these countries
• The Commission provides numerous widely-acknowledged statistics on the consequences of tobacco consumption, but never attempted to prove the link between consumption of advertising contained in foreign media and smoking habits

Key players:

Commissioner David Byrne

For further information

FOR JOURNALISTS on this or other topics, please contact Heidi Lambert Communications on Tel: +44 1245 476 265 or heidilambert@hlcltd.demon.co.uk.

FOR EPC MEMBERS AND GENERAL ENQUIRIES please contact Angela Mills on Tel: +44 1865 310 732 or angela.mills@epceurope.org.

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