Publication of the UK Government’s Draft Regulations to implement Directive 98/43/EC, the European Ban on Tobacco Advertising
17 June 1999
"The Government is totally misguided, and has acted with blatant disregard for the legal position, in pushing ahead with the European advertising and sponsorship ban before the European Court has ruled on its legal validity" said David Swan, chief executive of the Tobacco Manufacturers’ Association.
The European directive is currently the subject of legal challenge by four UK tobacco companies, the German Government and others. If these are upheld by the European Court of Justice, any legislation brought in by the UK Government will automatically become invalid.
David Swan added: "Despite the uncertain legal status, the Government apparently intends to introduce the ban even earlier than the European directive requires. This shows complete disregard for the practicalities involved and the impact on organisations affected. Tens of thousands of jobs are at risk in tobacco retailing, publishing, advertising and other marketing services companies, while tobacco-sponsored sports will also be severely hit financially.
"Under the Draft Regulations, direct mail will be prohibited, which means adult smokers who wish to receive information about tobacco products will no longer be able to do so. This is tantamount to censorship of people’s mail and clear violation of individuals’ right to information about a legally available product
"The Draft Regulations propose that some sports but not others should be exempt from the ban on tobacco sponsorship until 2006. There is no logical reason for this discrimination and it is grossly unfair to many popular grass-roots sports enjoyed by millions of people in this country.
"The tobacco industry has already offered to discuss with the Government the possibility of extending the Voluntary Agreement to avoid a legal hiatus. Instead, far-reaching legislation to restrict a legal product is now being rushed through with no regard for its legal basis or for legitimate personal and commercial freedoms. The Government is setting an alarming precedent, which should be of concern to every industry whose products are subject to marketing restrictions."
Ends
Notes to Editors
1. The European Directive came into force on 30th July 1998 and Member States are obliged to bring its provisions into effect by July 2001. The Government is proposing to accelerate this date to 10th December 1999.
2. Four companies applied for a judicial review of the European Directive 98/43/EC and the High Court has referred the matter to the European Court of Justice. The companies are: British American Tobacco Investments Ltd ("British American Tobacco"); Gallaher Ltd; Imperial Tobacco Ltd; Rothmans (UK) Ltd.
3. The companies are challenging the validity of the Directive on the grounds that:
- It is outside the competence of the community and has no legal basis.
- It is incompatible with fundamental rights, in particular freedom of expression and the right to property (eg trademarks) as safeguarded by Article 10 and Article 1 of the First Protocol to the European Convention on Human Rights (ECHR).
- It is incompatible with the general principle of proportionality, namely it was not necessary to introduce a complete ban on advertising and promotion; there were less restrictive alternatives; and it is disproportionate to its objectives.
- It is also incompatible with the principle of subsidiarity, which provides that the EC may only act where the objectives cannot be sufficiently achieved by Member States or can be better achieved by Community Action.
4. The validity of the Directive is also being challenged by:
- An action to annul the Directive, brought by the Federal Republic of Germany under the provision of Article 173 of the EC Treaty.
- Four separate actions brought by Salamander AG (Germany), Alma Media (Greece), Davidoff (Switzerland) and Una Film (Austria), also under Article 173.
5. There are 14 million adult smokers in the UK. Millions of them have indicated, by registering their names, that they wish to receive personal communications from the manufacturer or brand owner of the product they buy. If the definition of advertising as a commercial communication is also to include such personal communications, they will have been treated wrongly and unfairly. An important personal liberty will have been infringed.
6. Sports benefiting from tobacco sponsorship include: British Darts Organisation, Clay Pigeon Shooting Association, English Pool Association, Ice Hockey Super League, National Federation of Anglers, World Professional Billiards and Snooker Association.