Legal Eye: Smoking bans in advertising

"Smoking can cause a slow and painful death" - EU Directive 2001/37/EC

Contrary to popular belief, the EU does not regulate the manufacture, advertising or sale of tobacco products based upon public-health concerns, but instead derives such rights based upon its competency to preserve and promote the internal market. The protection of public health, for the most part, remains within the competency of each member state. In effect, both the EU and individual member states share regulation of the tobacco industry, albeit based upon different sources of law and, at least at first glance, with the intention of achieving different goals.

Preservation of the internal market

EU regulation of the tobacco industry is based upon Articles 14 and 95(1) of the EU Treaty, by which the EU is charged with ensuring the smooth operation of the internal market.

Attempts by the EU to regulate the tobacco industry based upon public health concerns have previously been struck down by the EU Court of Justice, as was the case in a landmark decision issued on October 5, 2000, against former Directive 98/43/EC in which the Court of Justice reiterated that protection of public health remains, subject to a limited number of exceptions, within the exclusive competency of the individual member states.

The EU may issue "recommendations" with respect to public health, including the finance of anti-smoking campaigns, but for the most part such activities are limited to complementing national policies.

Manufacturing and sales restrictions

Directive 2001/37/EC regulates the content, labelling and sale of tobacco products at an EU level in order to "promote the smooth operation of the internal market."

Cigarettes manufactured or sold in the EU may not contain more than 10mg of tar, 1mg of nicotine and 10mg of carbon monoxide. With the exception of Greece and the Czech Republic, all EU member states are now required to be in compliance with this Directive. Greece and the Czech Republic have until January 1, 2007 to comply with the content requirements.

Additionally, two compulsory warnings covering at least 40 percent of a cigarette pack's label must be affixed. Specifically, cigarette packaging must include either the warning "Smoking kills" or "Smoking seriously harms you and others around you" (first warning) plus an additional warning chosen from one of 14 possibilities as defined in the Directive, including "Smokers die younger" or "Smoking can damage your sperm and decrease fertility."

Advertising restrictions

Directive 2003/33/EC regulates the advertisement and sponsorship of tobacco products in general, together with Directive 89/552/EC, which regulates the use of television advertising in particular. Both Directives were enacted into law, in part, to "ensure the proper functioning of the Internal Market". Directive 2003/33/EC prohibits the advertising of all tobacco products in the press, including newspapers, magazines, billboards and other manners of print. Advertising in a trade publication intended for professionals engaged in the tobacco trade, however, is permitted. Radio broadcasting is also prohibited, including the sponsorship of a radio program by a tobacco company.

Public events that cross internal EU borders (or have such potential) may not be sponsored by a tobacco company as well; however, a tobacco company may sponsor local events.

Paul Fogo is a senior attorney with Miller, Canfield, W. Babicki & Partners