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BRIEFING FOR MEMBERS OF THE EUROPEAN PARLIAMENT ON THE
DRAFT DIRECTIVE TO BAN ALL TOBACCO ADVERTISING AND SPONSORSHIP RAPPORTEUR: MR C CABROL, MEP (ENVIRONMENT COMMITTEE)
(opinions to be provided by the Legal, Economic and Culture Committees)

 
The Council of Ministers on 12 February 2024 agreed a Common Position on a draft directive to ban advertising and sponsorship of tobacco products (though with some notable exceptions – see paragraph 9) based on Articles 100A, 57/2 and 66 of the Treaty.

Before Parliament votes on this important legislation, the European Publishers Council (see membership list attached) would like to you to consider the wider implications for the freedom of expression. This is not just a "tobacco" issue. This is not just a health issue. A vote in favour of this legislation will have wider repercussions than the loss of tobacco advertising. A vote in favour will set a damaging precedent for the future of the freedom to advertise and the free circulation of newspapers and magazines throughout the internal market of the EU. 

Advertising and sponsorship are treated as services in the European Treaty and are afforded the full rights of the freedom of expression under Article 10 of the European Convention on Human Rights. Articles 100A, 57/2 and 66 of the EU Treaty are designed to promote the free movement and provision of goods and services. The Council of Ministers has agreed to ban these services based on the very legal bases designed to guarantee their freedom. 

This raises two major questions: 

    1) What are the implications of such a Directive for the freedom to advertise any product or service in the European Union in the future?
    2) Is the action of the council of Ministers appropriate at Law?
Please consider our arguments carefully before making up your mind. We are relying on you as a Member of the European Parliament to ensure that all sides of the argument are tested rigorously in open debate within a democratic forum. We as publishers are opposing the draft directive banning tobacco advertising and sponsorship for the following reasons:
    1) A ban would be contrary to fundamental rights of freedom of expression enshrined in the European Convention of Human Rights. Article 10 guarantees freedom of expression, including the freedom to advertise. This freedom may be regulated or restricted (according to the provisions of Article 10(2)) only if this is necessary to meet one or more of the prescribed purposes, which include the protection of health and morals. If a national Government wishes to invoke article 10(2) by way of justification for banning advertising of tobacco products on health grounds in their own country that is their prerogative. However, if EU Member States collectively decide to regulate or restrict the freedom of expression throughout the European Union, they should only do so using the correct EU Treaty legal base.

    2) The EPC has consistently challenged the use of Article 100A – the legal base for facilitating the completion of the internal market - as the legal base for a ban on tobacco advertising. We further object to the recent addition of articles 57/2 and 66 which are clearly designed to promote, not prohibit the free movement of goods and services. If the EU Member States wish to restrict advertising for the protection of health, they should do so on the correct legal base which is currently Article 129. Article 129 does not provide the facility for harmonising legislation but would allow Member States, on the basis of a unanimous decision, to agree collective action for the protection of health. 

    3) Instead, Member States are proposing to circumvent the need for a unanimous decision to protect health by basing the proposed ban on Treaty articles which only require a qualified majority. The use of articles 100A, 57/2 and 66 is an abuse of the decision making processes of the EU and will be subject to legal challenge before the Court of Justice (see paragraph 4 below). Even the Legal Service of the Council has advised Ministers that Article 129 is the correct legal basis for action based on protecting health.

    4) When the Council of Ministers formally adopted their Common Position, the German delegation issued a statement which we fully endorse: 

    "The German delegation would again stress the considerable difficulties it has with the Proposed Directive, which it regrets owing to legal and substantive concerns. The Federal Government's doubts about the sustainability of the powers in Article 100A 57/2 and 66 of the Treaty as the basis for the Proposal have not been removed. Nor have the contradictions between the planned ban of advertising and principle of proportionality. The Federal Government also feels that the Proposal is not in accordance with the principle of subsidiarity." 

    5) Furthermore, a statutory advertising ban, based on articles 100A, 57/2 and 66 creates an untenable precedent for the freedom to advertise other product categories and services in the future. The EU Treaty guarantees free circulation of goods and services so long as they comply with the rules of the country of origin. Thus, newspapers, regardless of their content (both editorial and advertising) have been allowed to circulate within the EU under the principle of mutual recognition. A statutory advertising ban based on article 100A undermines the legal principle of mutual recognition.

    6) In addition to our concerns about the legal base, we believe that a ban on tobacco advertising in the Press is disproportionate. An advertising ban would not achieve the stated objectives, i.e. a reduction in overall consumption of tobacco products. However, a ban would have a detrimental effect on advertising revenues which serve another function: financial support for a pluralistic Press. Independent statistics consistently show that in countries where advertising to the general public has been banned, overall consumption of tobacco products increases, and that advertising is not even a factor in encouraging people to smoke in the first place. 

    7) The EU Member States with the highest numbers of smokers are Italy, Portugal and France all of which have imposed tobacco advertising bans over the last 10 years. Since 1987 consumption in Italy has risen by 8%, in Portugal by 7.39% and in France by 5.24%. In Norway a total ban was introduced in 1975; of Norwegian children born since the ban in 1975, 36% of 15 year olds were smoking in 1990. In Hong Kong, where advertising is unrestricted, only 11% of the same age group were smokers.

    8) An EU ban would introduce unfair competition between EU-based publishers and those outside the EU wherever Member States continued to allow the free circulation of publications from third countries containing tobacco advertising within their jurisdiction. 

    9) The proposed exemption for Formula One racing sponsorship, together with proposals to phase out all forms of sports' sponsorship over a longer period of time than the immediate press advertising ban, further discriminates unfairly against publishers. Motor racing and other types of sport which attract sponsorship by tobacco companies may appear more glamorous and appealing to certain groups than advertisements in newspapers. These exemptions undermine the stated objectives of wishing to reduce overall tobacco consumption particularly amongst young people whilst unfairly discriminating against publishers.

In February 1991 the EPC adopted a set of Principles and in January 1992 a Declaration for which we have received widespread support within the EU Institutions and at national level. These can be summarised as follows:
    A written Press, free and independent of government, is a fundamental institution in political democracies, performing a vital role in providing electorates with information;

    Advertising performs a vital role in providing consumers with information about goods and services which are legally for sale and guarantees competition in a free market economy;

    Freedom of expression is secured by plurality; and advertising revenue is essential to maintaining plurality. Unreasonable and poorly-justified restrictions on advertising directly affect the freedom of the press and violate Article 10 of the European Convention on Human Rights;

    Advertising bans lead to reductions in the revenues of newspaper publishers. Advertising revenues cover over 50% of our costs of production and distribution. Any reduction in revenues has a direct link to how many editorial pages are published;

    Advertising content should be monitored in the Member States by effective methods of self-regulation and we support readers' rights to complain about publication of misleading or unfair advertising.

ACTION

We, therefore, ask you to reject the Common Position of the Council of Ministers to ban the advertising and sponsorship of tobacco products because it:

    1) undermines the freedom of commercial expression setting an untenable precedent for the future and 

    2) is wrong at Law because of the inappropriate legal base.

If you would like more information about our organisation or about this issue please get in touch with me (details on front page).

 

 

ANGELA C MILLS

Executive Director 12 March 2023