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Brussels, 27 July 2005

Questions and Answers on tobacco advertising

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 events or activities. 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’s powers to regulate its internal 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’s powers. However, the Court stated that 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] The WHO’s 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 advertising 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, Poland 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’s point of view is that 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 – and does – initiate infringement proceedings 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 Nürburgring motor racing circuit have lodged a challenge with the Court 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:

[1] Wolrd Bank Report on the Economics of Tobacco Control, 1999

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