More than half a million EU citizens die every year as a direct result of tobacco-related disease. On average they lose 14 years of life.

In order to maintain its market, the tobacco industry has to recruit at least 1350 new smokers a day throughout the EU just to replace those it has killed. These new smokers are inevitably young people - children and teenagers. Hardly anyone starts to smoke beyond the age of 18. Recent research has shown that it takes very few cigarettes to create nicotine addiction. At that point, the industry has captured yet another lifelong customer, hooked into a habit that becomes increasingly difficult to give up. Nicotine is the gift of the gods to unscrupulous manufacturers who continue to market and promote a product knowing full well that it will kill one in every two regular smokers when used exactly as intended.

Young people start to smoke for many reasons. Mostly they do so as an act of rebellion, a sort of rite of passage towards ersatz adulthood. They can be pushed along in this direction by various pressures - by their peers, by the behaviour of adult role models who have some significance in their lives (whether immediate family or public personalities) and by the ubiquitous nature of the imagery that surrounds tobacco in the media. Primary amongst these, of course, is tobacco advertising. For children and young people think to themselves (with touching confidence) that ‘if they allow it to be advertised, it must be alright - musn’t it?’

In the child’s mind, ‘they’ are the government or some sort of public authority - who would surely be concerned to protect the health of individual citizens, and of the community as a whole. The industry, however, is not concerned about the child - except as a potential long-term customer. The industry argues the case for tobacco advertising on two grounds:

* Tobacco is a legal product. We live in a free market economy. As the product itself is legal, we must be allowed to promote it in the market place.

* Tobacco advertising has nothing to do with persuading young people to start smoking. Smoking is a mature adult choice. We market to adult smokers in order to encourage brand switching and to provide product information to our customers.

Tobacco is a legal product solely as an accident of history. Tobacco products had been marketed, and smoking had become entrenched as an acceptable social habit, for hundreds of years before the direct link between tobacco consumption, ill-health and premature death was first clearly recognised in the mid 1900’s.

Let us assume that nobody had discovered tobacco until today. Suddenly some entrepreneur discovers its properties (including its potential addictive and harmful effects). But he also realises its economic potential. So he goes to the government and says: ‘I want to sell this product. I know that it will kill half the people who use it. But it will be great for employment and will also contribute a sizeable chunk of tax revenue. Please give me your blessing.’

No government would condone the marketing of such a product, knowing what we now know about the inevitable consequences. But whilst the real facts were not known, tobacco become part of life. Today, tobacco exerts a powerful hold on society, not only because of nicotine addiction amongst so many individuals but also because of the influence of the industry itself, especially the way in which it manages to promote its vested interests in the corridors of power.

Last week the tobbaco industry scored a spectacular success. It managed to get the European Court of Justice to overturn the EU Directive on Tobacco Advertising. The Directive, agreed in 1998 and due to take effect progressively from 2001 onwards, was meant to ban all tobacco advertising except at points of sale, to prohibit brand stretching (i.e., using tobacco logos and brand names to advertise other products) and eventually to remove all the publicity for tobacco products that presently surrounds tobacco industry sponsorship of sporting and cultural events.

The Directive had been agreed after all three Community Institutions had received legal advice, and following the proper co-decision procedure, as an Internal Market measure. It was intended to remove the distortions to competition that currently exist within the EU, given that seven Member States (B, F, IRL, I, P, FIN, S) already ban tobacco advertising and that most of the others have in place a variety of voluntary agreements restricting advertising in one way or another. Following the adoption of the Directive, a further three Member States (DK, NL, UK) confirmed their intention to transpose its provisions into national law.

The Comunity as a whole had expressed strong political support for an internal market measure which had as its base (as the Treaty allows) a high level of human health protection. It was perhaps inevitable that the tobacco industry, which had fiercely resisted the proposed Directive throughout the 1990’s, should seek to mount a legal challenge. It is a shame that they should have been supported so strongly by one Member State, Germany, who - having lost the debate - then sought to overturn the political consensus through the Court.

The Court’s judgement was based on the advice of Advocate General Fennelly, who had delivered his opinion on 15th June. Several of the conclusions reached by the Advocate General were welcomed by the health lobby. He had dismissed several of the arguments presented by the applicants, concluding that:

* The principle of subsidiarity was not applicable to the Directive

* It was perfectly legitimate to pursue two simultaneous objectives, namely the removal of trade barriers and the protection of human health

* A comprehensive prohibition on the advertising of tobacco products would not breach the right to freedom of expression

However, he did feel that the Directive breached the principle of proportionality, the right to property and the right to pursue a professional activity. The Court has upheld this approach; making it quite clear in its judgement that the economic interests of commercial players are considered more important in the Internal Market than any concern for health protection or consumer safety.

Last Thursday’s annulment sends a quite clear message to European citizens: public health does not mean much in the EU. It is as if the EU has learnt absolutely nothing from the crises of recent years. Not so long ago there was a major scandal concerning mad cow disease. Bad management and political irresponsibility lead to a human tragedy, with a death toll now approaching 100 in the UK alone. When the full scale of the disaster was finally recognised (and admitted publicly) the EU reacted. At last it seemed that the EU was on the side of its citizens.

There are many of us who believe in the European ideal and would like to believe in ‘Europe with a human face’, to trust a Europe that really did promote the interests of its citizens rather than those of big business. However, the Court judgement tells us that it doesn’t matter if 1350 EU citizens die every day. The interests of a totally unacceptable industry have to be put first.

There is a clear lesson in all this. Those of us who truly believe in Europe will now have to campaign for Europe to be given the tools to do the job properly.

Disease, rather like environmental pollution, knows no boundaries. The peddlers of disease know no boundaries. They are busy promoting their deadly products on a world stage. If the EU really wants to protect the health of its citizens, it now has to acquire the Treaty powers to do so - i.e., to harmonise national legislation in the interests of public health.

AH/BXL/9.x.00