Explanatory Memorandum to COM(2001)283 - Approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (presented by the Commission pursuant to Articles 47(2), 55 and 95 of the EC Treaty)

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dossier COM(2001)283 - Approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and ...
source COM(2001)283 EN
date 31-05-2001
1. INTRODUCTION

This proposal for a Directive of the European Parliament and of the Council is intended to regulate the advertising of tobacco products and related sponsorship, apart from that on television, already covered by other Community legislation. It also regulates to the extent necessary for the completion of the Internal Market the rules concerning tobacco advertising using information society services, and free distribution of tobacco products likely to undermine these provisions.

It is intended to replace Directive 98/43/EC of 6 July 1998 which has been annulled by the Court of Justice of the European Communities i.

It also takes account of the legislation of the Member States and of the development of international rules in this matter. It is intended to approximate the laws, regulations and administrative provisions of the Member States in order to eliminate barriers to the functioning of the Internal Market, with the objective of ensuring the free movement of goods and services which respect the rules of the Directive.

This proposal does not deal with issues such as indirect advertising, monitoring of tobacco companies' expenditures on advertising, or vending machines, which will be examined in the context of a proposal for a Council Recommendation based on Articles 152 and 153 of the Treaty that the Commission is presently preparing.

Contents

1.

2. BACKGROUND


The regulation of tobacco advertising and sponsorship at Member State level is motivated by concern at the link between tobacco consumption and promotion. The prevention of tobacco consumption is a public health priority in Member States, and many have chosen to limit and regulate tobacco promotion in order to reduce the attraction of this addictive product. In doing so, the resulting variation in national laws and regulations has given rise to differences in treatment of economic operators across the Internal Market.

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3. LEGAL BASIS


This proposal is based on Articles 47 i, 55 and 95 of the Treaty, taking as a basis a high level of public health protection. Account is also taken of public health issues raised by the Member States, which have been brought to the attention of the Commission (Article 95, paragraph 8).

In the drafting of this proposal, the Commission has taken due account of the abovementioned ruling of the Court of Justice. This judgment annulled Directive 98/43/EC on tobacco advertising and clarified the requirements for the adoption of directives under the legal basis provided by Article 95 of the EC Treaty i.

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4. REVIEW OF NATIONAL LEGISLATION


Most Member States have adopted legislative measures to regulate tobacco advertising and related sponsorship. Others are developing legislative initiatives in this field. The scope of this national legislation varies greatly. However, all Member States have transposed Directive 89/552/EEC which imposes a prohibition on television advertising of tobacco products (Articles 13 and 17).

Three categories of countries of countries may be distinguished if one compares the national legislation on advertising of tobacco products and related sponsorship.

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4.1. Limited restrictions on tobacco advertising


4.1.1. Luxembourg i

Advertising is allowed only in sales outlets, in press and under certain conditions on posters. There are restrictions on advertising content and health warnings are compulsory.

4.1.2. Sweden i

All forms of tobacco products marketing must be moderate, e.g. it is not possible to advertise outdoors in public places, or in indoor places attended mostly by people under 20 years of age. Free distribution and sponsoring are subject to the same condition of moderation. Commercial advertising in press, TV and radio are prohibited in so far as the advertising is aimed to market tobacco products to consumers.

A ban on indirect advertising is planned (it requires however an amendment to the Freedom of the Press Act).

4.1.3. Spain i

Tobacco advertising is only prohibited on TV and in places where tobacco sale or consumption are prohibited. Sponsorship of TV programmes by persons or companies is banned if their principal activity is the production or sale of products for which advertising is prohibited. Some Autonomous Communities go further, prohibiting for instance advertising in programmes or publications destined to minors, or an outdoor advertising, or free distribution (for minors or for everybody).

4.1.4. Greece i

Direct or indirect tobacco advertising is prohibited on TV and radio. In other media - cinemas or press - tobacco advertising is possible only if it carries a health warning. Tobacco products advertising is forbidden in health care services, educational establishments, youth centres and athletic facilities.

4.1.5. Germany i

Tobacco advertising on TV and on radio is prohibited. For other media, restrictions exist on the content of this advertising: it cannot carry statements or descriptions which could give the impression that the use of tobacco products is harmless for health; it cannot be destined to a young public; it cannot present smoking as recommendable; it cannot present tobacco products as natural. It is also forbidden to promote tobacco products by any means that are misleading or deceptive.

4.1.6. Austria i

Tobacco advertising is prohibited in certain cases: on TV and radio, on cinema-shows accessible to young people, within the view of schools and youth-centres, or when it is specially addressed to the youth. Some restrictions are put on the advertising of certain cigarettes (without filter ...) or on the content of this advertising (featuring young smoking models or using comics ...). Free distribution of tobacco products is prohibited, as are prohibited the distribution of articles having a connection to tobacco products to children or adolescents or the distribution of advertising-articles destined for children. Moreover, advertising for tobacco products must not be combined with advertising for other products; advertising by posters, print media or cinema has to carry a health warning. Restrictions must not be evaded by indirect advertising for tobacco products that are made up like tobacco products. Sponsoring is allowed when in compliance with the abovementioned restrictions.

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4.2. Total ban on tobacco advertising


4.2.1. France i

France has regulation based on a total (direct and indirect) advertising ban on tobacco products, although exceptions are permissible (point-of-sale advertising, under strict conditions). The prohibition is extended to sponsorship and free distribution. Each tobacco product conditioning carries a health warning.

4.2.2. Italy i

All forms of direct or indirect advertising of tobacco products and other products (with a symbol of a tobacco product) whose purpose or effect is to promote tobacco are prohibited. A health warning shall figure on tobacco conditioning. However, sponsorship of events for the benefit of tobacco products is not regulated.

4.2.3. Portugal i

Portugal applies a total ban on all forms of advertising of tobacco products, through whatever media under the jurisdiction of the Portuguese State (derogation for certain sportive events until 2001). Sponsorship of TV programmes by persons or companies whose principal activity is the production or sale of tobacco products is prohibited.

4.2.4. Finland i

Direct or indirect advertising of tobacco, tobacco products, tobacco imitations and smoking accessories is prohibited. Indirect advertising includes promotion of tobacco products through advertising of other commodities using an identifiable symbol of a tobacco product; associating tobacco with the sale of other products or provision of services is prohibited. This Act does not apply to advertisements in foreign printed publications whose main purpose is not the advertising of tobacco.

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4.3. Legislative change in process


4.3.1. United Kingdom i

The Tobacco Advertising and Promotion Bill bans advertising and promotion whose purpose or effect is to promote a tobacco product; it includes advertising in press or electronic media, free distribution, brandsharing and sponsorship (if the purpose or the effect is to promote a tobacco product). Main exemptions concern advertising at points of sale; communications made for the purposes of the tobacco trade made to persons involved in that trade; advertising in publications whose principal market is not the UK. Specialist tobacconists are able to advertise more widely within and outside of their shops.

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4.3.2. Ireland


Current situation: The Tobacco Products (Control of Advertising, Sponsorship and Sales Promotion) Act, 1978 (No 27 of 1978). A secondary legislation (Statutory Instruments) followed in 1991, 1996 and 2000.

Advertising in electronic and print media is banned (with very limited derogation), as well as sponsorship which gives rise to advertising of tobacco products.

New legislative proposal: all forms of advertising of tobacco products or of the manufacturers' name or brand image is to be prohibited, including point of sale advertising. The sale, distribution or preparation of material containing tobacco advertising are to be offences. All forms of sponsorship are to be prohibited, including sponsorship which does not directly lead to advertising.

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4.3.3. Netherlands


Current situation: there is a self-regulation code of the tobacco industry for all forms of tobacco promotion (except tobacco advertising on radio and television and sponsoring of television programmes by tobacco companies which are banned - Tobacco Act, Media Act): some major provisions are restrictions of tobacco commercials in cinemas, of sampling and of advertising at youth.

Legislative proposal: there is a new (government) amendment to the current law proposal to the Parliament to strengthen the Tobacco Act (Kamerstukken II, 1998-1999, 26 472, nrs. 1-7). All forms of direct and indirect tobacco marketing, advertising, promotion and sponsorship shall be banned as soon as possible (exemption for limited forms of advertising at points of sale). Derogation shall concern the time application for sponsoring and advertising in press.

4.3.4. Denmark i

All forms of advertising of tobacco products are prohibited. Main exemptions relate to the notices addressed to specialists within the industry; advertising at points of sale (under strict conditions); advertisements in publications published in other countries, unless the main objective is to advertise tobacco in Denmark; the use of a name, used before 13 December 2000 both for tobacco products and for other products to advertise such other products in a form in which it differs clearly from the appearance of the name of the tobacco product; the use of a name, which is well-known from tobacco products, in advertising of other products and services, provided that the other product or service is only marketed in a restricted geographical area. Sponsorship for the benefit of tobacco products is prohibited, as any form of distribution aimed at promoting the sale of tobacco products.

4.3.5. Belgium i

Tobacco sponsorship and advertising are prohibited either on direct or indirect forms (free distribution and brand diversification products advertising are considered as indirect forms of advertising). The exceptions are related to outlet sales and publications printed outside Belgium if their principal market is not Belgium.

The Cour d'arbitrage (Decision No 102/99 of 30.9.1999) annulled the provisions related to sponsorship of international events and indirect advertising. Other court cases are still pending.

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5. INTERNATIONAL RECOMMENDATIONS AND CONVENTIONS


These measures are in line with Recommendations made by the Commission's Advisory Committee for Cancer Prevention i, and those of the World Health Assembly of the WHO i. The measures proposed also take account of the Commission's Consumers Committee opinion on a socially responsible Community tobacco policy adopted on 14 June 1998.

Attention is particularly drawn to the work on smoking prevention under way in the World Health Organisation (WHO). The 52nd World Health Assembly on 24 May 1999 decided to establish an intergovernmental negotiating body to draft and negotiate a proposed WHO Framework Convention on Tobacco Control and possible related Protocols, open to participation by regional economic integration organisations. The Commission is participating in the negotiations on the basis of a mandate granted by Council in October 1999. The first negotiation session has already taken place and the second took place from 29 April to 5 May 2001.

In the framework of the negotiations for this Convention, attention is being given to developing provisions regulating tobacco advertising, sponsorship and other forms of promotion. This will have an impact on the existing Community acquis.

The World Bank report on tobacco control i concludes that bans on advertising and promotion prove effective, but only if they are comprehensive, cover all media and all uses of brand names and logos.

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6. DEVELOPMENT OF COMMUNITY RULES


Tobacco advertising and sponsorship on television is completely banned by Council Directive 89/552/EEC, as amended, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. The text provides for all forms of television advertising of cigarettes and other tobacco products to be prohibited (Article 13). It also provides that TV programmes may not be sponsored by tobacco manufacturers (Article 17).

Directive 98/43/EC of the European Parliament and the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products was annulled by the Court of Justice on 5 October 2000 in Case C-376/98.

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7. CONTENT OF THIS PROPOSAL


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7.1. Introduction


The ways and means of circulating information in the fifteen Member States are increasingly of a trans-frontier nature. As a result, people in one Member State are increasingly coming into contact with other Member States' media, be it in the form of radio, television, in film projections, the written press, information society services and posters. Advertising for tobacco products is following this trend, particularly because of its centralised nature and the fact that the multinational producers use themes which have a Community-wide - not to say international - appeal.

Advertising is an important economic activity which stems from the most fundamental rights. However, legislators in Member States have felt the necessity to restrict the exercise of those rights in order to protect public interest and especially to protect health. These restrictions which often reach a total ban, concern in particular advertising for certain products, no matter whether their sale is legal or not. Such restrictions exist in Member States for drugs, guns, pharmaceuticals, alcohol, toys, etc.

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7.2. Tobacco advertising and the Internal Market


These differences in the regulations of the Member States, as indicated above, create barriers for the circulation of the advertising media, products and services. These barriers are not just potential but real ones. In this context, the Commission has already received complaints originating in several Member States.

The establishment of the Internal Market foreseen in Article 14 of the Treaty requires the harmonisation of national provisions on advertising for tobacco products in certain information media, including radio broadcasting.

It is important to ensure the free movement of products, means of support for their advertising, and the free provision of services in this area and to prevent the emergence of barriers to trade on the grounds of non-compliance with national provisions regarding direct advertising for tobacco products and related sponsorship.

In this context, given the current state of Member States' legislation and the case-law of the Court of Justice of the European Communities i harmonisation can only be logically based on banning advertising in the press and other printed publications, as well as sponsorship involving more than one Member State. Internet advertising and free distribution also need to be covered by these provisions in order to ensure applicability and coherency.

Health protection requirements are clearly stated in the provisions of Article 95 of the Treaty which concerns the establishment of the Internal Market. Article 95 i states that: 'The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection ...'. Therefore, the Community legislator must take into account the requirements of health protection which directly affect the establishment and the operation of the Internal Market.

As seen in the review of national legislation, future developments in many Member States are heading for increasingly stringent advertising restrictions. Eventually, even in the absence of any Community action, natural evolution in this area seems to lead legislation of individual EC Member States in the direction of a total ban of any tobacco advertising. However, substantial differences of approach and content at national level still exist despite this trend.

This is also the trend at the international level, as in the negotiations underway to develop a World Health Organisation Framework Convention on Tobacco Control. Therefore, in this area, a first step in harmonisation by regulating advertising in the press and trans-boundary sponsorship would contribute to ensure the free circulation without any barriers of such advertising means and products. A complementary provision concerning advertising in information society services, in radio broadcasting and by means of free distribution also appears necessary for the purpose of completing these Internal Market rules, and avoiding circumvention.

Restriction of conditions of competition can also occur due to the variations in rules on tobacco sponsorship, particularly as regards sporting events.

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7.3. Health consequences of tobacco consumption


In the European Union tobacco consumption - and more particularly cigarette smoking - has generally become an accepted social habit, acquiring particularly among young people a positive image which has been fostered by advertising. Tobacco consumption has now become one of our major health problems. The hazards of smoking can be divided in two categories:

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7.3.1. Hazards for the individual smoker: half are eventually killed by their habit, unless they can give it up


Studies of the hazards of persistent cigarette smoking, starting in early adult life and not giving up the habit, show that the risk is big. Overall, half of all persistent smokers are eventually killed by tobacco, one quarter in old age and one quarter in middle age (35-69) i. Those killed by tobacco in old age might well have died of something else a few years later, but those killed while still in middle age lose, on average, some 20-25 years of life expectancy. But even in middle age, those who stop before they become ill avoid most of their risk of being killed by tobacco, and stopping before middle age is even more effective i.

7.3.2. Hazards for the EU population: 0.5 million (0.4M male + 0.1M female) tobacco deaths per year

In most European countries men started smoking before women, so although the male epidemic has now levelled off at 0.4 million EU tobacco deaths per year, the female epidemic, which already involves 0.1 million EU tobacco deaths per year, is still rising. Of these EU tobacco deaths, 0.2 million involve cancer and 0.3 million involve other diseases. Tobacco now causes about 25% of all EU cancer deaths (39% male, 8% female - but, female tobacco deaths are still rising). Death in old age is unavoidable, but death in middle age is not, and a quarter of all EU deaths in middle age are now caused by tobacco. If current mortality patterns continue, then there will over the next 40 years be 20 million EU tobacco deaths, half in middle age and half in old age, and only if there is widespread cessation among adults who now smoke will these numbers be substantially reduced i.

As regards the subtle implications of the advertising of a product such as tobacco, the United Kingdom example is significant. In this Member State two thirds of the adult smokers say they want to stop, but half agreed with the statement that smoking cannot be all that dangerous, or the government would not allow tobacco to be advertised i. This is now being addressed for that Member State by draft legislation. Similarly, in a report commissioned by the German Ministry of Health, it is concluded that 'the data are so conclusive as to justify a package of health policy measures that includes bans on advertising' i.
& Operational Research Division. Effects of tobacco advertising on tobacco consumption (page 21). UK Department of Health 1992.

The Member States are aware of this situation and established the prevention of smoking as one of the priority aims of the 'Europe against Cancer' programme already in 1986. This has been continued as a priority in subsequent programmes. Furthermore, a Recommendation was adopted by the Commission's High Level Cancer Experts Committee in Helsinki in October 1996 which was included in the Annex to the Commission's Communication on the present and proposed Community role in combating tobacco consumption i. This priority aim was also reflected in the Commission Report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions on progress achieved in relation to public health protection from the harmful effects of tobacco consumption i.

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7.4. The influence of advertising on tobacco consumption


In this context, advertising would appear to be one of the factors responsible for the expansion of the market for tobacco products. The abundance of words and images seeking to promote the consumption of tobacco products glosses over any hint of harmfulness of tobacco and incites young people to adopt what appears to be a socially acceptable behaviour pattern.

Although it is not universally accepted that advertising has been shown to be uniquely and directly responsible for people trying out smoking or getting addicted to the habit, the fact remains that it does play a fundamental role in promoting tobacco products. The smoking habit tends to be acquired in most cases in childhood or adolescence. Some 60% of smokers start smoking at the age of 13, with more than 90% starting before the age of 20. Given that only something like 10% of the current smokers actually start smoking as adults, adolescents form the group from whom the largest number of new smokers are recruited i. The addictive nature of the product differentiates it from other consumer products which are marketed to the general public in such an intensive manner.

According to the tobacco industry, the aim of advertising is simply to persuade smokers to change brands, and as such enhances the competition between the various products on the market i. Any form of advertising by definition seeks to increase the targeted product's share of the market. However, different studies show that smokers are very loyal to their tobacco brand and that cigarettes are among the products which have the highest brand loyalty i.

Omnipresent tobacco advertising impinges on the consciousness of all sections of the population, children and adults, smokers and non-smokers, not to mention smokers who would like to quit. In particular, concerning children, a large number of whom make acquaintance with cigarette-smoking at a very early age, it is reasonable to assume that having been educated by advertising to brand-loyalty, they may, for that reason alone, become regular smokers. If advertising had no effect on the amount actually consumed, there can be no doubt that tobacco consumption would very quickly plummet as a result of demographic trends and the premature death of smokers afflicted with tobacco-related diseases.

Highlighting the role of advertising for tobacco products does not mean that there are no other factors contributing to inducing young people to start smoking, including the behaviour of friends, teachers, parents and relations and role-model personalities. It is a fact, though, that tobacco advertising sets out precisely to conjure up an image of congeniality, adventure and the personality cult - in other words, it appends to the imagination.

In the fifteen Member States, the advertising budget for tobacco products does not exceed 3% of the total advertising budget for all products or services.

In Norway, where a total ban on tobacco advertising exists since 1975, in the eight years that preceded the application of the ban, sales of advertisements - of all kinds - increased by 3.9%, whereas there was a 5.6% increase in the eight-year period that followed the entry into force of the ban. This example of Norway shows that an advertising ban does not worsen the economic situation of the press.

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8. REVIEW AND REPORTING


It is clear that scientific data on tobacco and on its consumption is in constant development. In addition, the technical elements regarding advertising of such products need to be kept under review in respect, for example, of the definition of information society services, the enforcement of the restrictions on tobacco advertising by information society services and the methods of indirect advertising, while ensuring a high level of public health protection and taking into account new scientific facts, and consumer protection and information. Legislative developments in the Member States also necessitate review. A review procedure is thus important in order to ensure a smooth operation of the Internal Market.

Therefore, in order to ensure transparency and rapid circulation of information, it is proposed that the Commission reports to the Council, the European Parliament, and to the Economic and Social Committee on the application of this proposed text, and if necessary make further proposals to adapt it to developments in the field of tobacco-product advertising, and taking account of any new development based on scientific facts, using as a basis a high level of public health protection (Article 95).

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9. PENALTIES FOR BREACHES OF COMMUNITY LAW IN THE INTERNAL MARKET


The Communication from the Commission to the Council and the European Parliament on the role of penalties in implementing Community Internal Market legislation i of 3 May 1995 establishes initial guidelines on penalties in the Internal Market field. This was followed by Council Resolution of 29 June 1995 on the effective uniform application of Community law and on the applicable penalties for breaches of Community Law in the Internal Market i. Following the intense legislative activity required in order to establish the Internal Market, it is now important to focus on the effective operation of the common rules introduced. In particular, it is necessary to ensure that Community measures are effectively implemented.

A standard clause has therefore been included to ensure that Member States take adequate and effective steps to ensure control of the implementation of measures adopted pursuant to this Directive in compliance with their national legislation. It is also provided for the intervention of persons or organisations with legitimate interest in the suppression of activities that are not in conformity with this Directive.

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10. CONCLUSION


The present proposal for a Directive is intended to regulate the advertising of tobacco products and related sponsorship, apart from that on television, already covered by other Community legislation. Its objective is to approximate the laws, regulations and administrative provisions of the Member States in order to eliminate barriers to the functioning of the Internal Market, so as to ensure the free movement of goods and services which respect the rules of the Directive. It finally provides for a reporting procedure to take account in particular of new scientific developments in so far as the above affect the establishment and operation of the Internal Market.