Foreword

The proposal to ban tobacco advertising in the EU has been blocked for the past five years, as a result of failure to reach agreement in the Council of Health Ministers. The situation changed on 4^th December 1997, when the Council decided, by the bare minimum numbers of votes necessary for a qualified majority, to adopt a ‘common position’ on the proposed Directive.

The Council decision marks a major achievement on behalf of the public health interests of European citizens. It shows that the EU is no longer prepared to tolerate the promotion of an addictive product that kills 548,000 EU citizens each year. It provides for the elimination of all tobacco advertising and sponsorship, over a phased timetable leading up to October 2006.

The text agreed on 4^th December has now been referred to the European Parliament for second reading. Health organisations throughout Europe are united in recommending the Parliament’s straightforward approval of the common position - which will lead to the certain eventual removal of all tobacco advertising in the EU.

This document sets out the questions that are most commonly raised in the debate about tobacco advertising, and seeks to answer them one by one. However, the tobacco industry itself provides the strongest reason to ban tobacco advertising. Internal industry documents (*), recently released in the United States, describe 14-24 year olds as ‘tomorrow’s cigarette business’. This is what advertising is all about: attracting young people, to maintain future markets and profits for the industry.

We hope that our colleagues in the European Parliament will support the Health Council, in seeking to stop the promotion of an addictive and highly dangerous product and thus to protect the future health of today’s young Europeans.

* Internal document from R J Reynolds, reported in Newsweek, 26^th Jan 1998

1. Why ban advertising for tobacco products?

• Tobacco is responsible for 548,000 deaths in the European Union each year (1).
• Half of all regular cigarette smokers will eventually be killed by their habit (2).
• Smoking kills more people than car accidents, alcohol, homicides, illegal drugs and suicides combined (3).
• Tobacco is the most dangerous consumer product known - the only one that kills when used as the makers intend.
• Tobacco is advertised in order to stimulate demand and increase consumption.

• Smoking is far, far more dangerous than either alcohol or traffic accidents. The New England Journal of Medicine published a report in December 1997 on the causes of death of 490,000 men and women who reported their alcohol and tobacco use in 1982. The authors compared alcohol and cigarette smoking as risk factors for death in middle age. Whereas moderate alcohol consumption slightly reduces the risk of death between the ages of 35 and 69 years, cigarette smoking approximately doubles the risk (4).
• Smoking causes 12 times more deaths than traffic accidents in the European Union, despite the fact that two thirds of the adult population does not smoke. There were 45,115 deaths due to traffic accidents in 1994 in the European Union compared to 548,000 deaths attributed to smoking (5,6).
• There is no safe level of smoking. Only excessive drinking or unsafe driving increases the risk of death.

3. Why not ban tobacco instead of its advertising?

• Smoking prevalence among adults in the European Union was 33% in 1995 (7). Most smokers continue to smoke without being able to stop "freely". Through nicotine, tobacco is powerfully addictive. Addiction undermines freedom of action by diminishing the ability to choose not to smoke. A smoker who makes a serious attempt to stop smoking has less than a 5 % chance of being off cigarettes a year later (8). A ban on tobacco would lead to an illegal market, comparable to the illegal market for alcohol during the unsuccessful prohibition period in the USA.
• If tobacco were to be introduced on to the market now, it would certainly be banned. Tobacco has existed in Europe for more than 500 years and the widespread and addictive power of smoking makes it impossible to ban the product.
• The marketing of certain types of tobacco for oral use has been prohibited by Directive 92/41/CEE in the European Community since July 1992. This prohibition was only possible as the use of this type of product was still uncommon in the Community. The situation was different in Sweden. The popularity of moist snuff became a major stumbling block in EU negotiations. An agreement was reached which allows Sweden an exemption to the EU-wide ban on the sale of moist snuff. As long as the use of tobacco products remains widespread, it is impossible to ban it.

4. Why ban the advertising of a legal product?

• There can be little doubt that were tobacco to be discovered today, its production and sale would be illegal. Therefore its legality is a product of history and not a justification for its promotion (9).
• There are many precedents where advertising of dangerous or potentially dangerous products is restricted even if these products remain on the market (e.g. firearms, fireworks or pharmaceutical products). According to Council Directive 92/28/EEC it is for instance forbidden to advertise to the general public medicinal products in the European Union which are only available on medical prescription or contain psychotopic or narcotic substances.

5. Is a tobacco advertising ban a threat to the freedom of speech, or the freedom of trade?

• Article 10 of the European Convention of Human Rights stipulates:
1. Everyone has the right to freedom of expression (…)
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions or restrictions or penalties as are prescribed by law and are necessary in a democratic society, (...) for the protection of health (...)".
• As in any law, there are no rights without responsibilities, the extent of which depends on the right concerned. The freedom to advertise may be restricted for health reasons, if it concerns a product such as tobacco which kills half its users. In Belgium for instance the Supreme Court of Appeal indicated in a case dated 9 December 1981, that a tobacco advertising ban is not unconstitutional (10). In France the French Constitutional Council followed the same line on 8 January 1991 and declared that the French advertising ban for tobacco products is not unconstitutional as it is based on the requirement of public health protection and does not interfere with the freedom of trade (11). In the Netherlands article 7 §4 of the constitution makes an exemption for the freedom of speech for commercial communications (12). Five Member States in the EU have implemented tobacco advertising bans without constitutional problems.

 6. Is it fair to say that tobacco advertising has no effect on global sales, but only on switching between brands?

• This assertion is often backed up by claims that the tobacco market is mature – that is that the number of smokers has reached a ceiling and will not increase whatever the industry's marketing people do (13). In other words the effect of tobacco advertising is not that more people will smoke, in the same way as the effect of soap advertising is not that more people will wash.
• The idea of a mature tobacco market – a market that can grow no more - cannot be supported. According to the US Surgeon General's Report of 1989 the direct mechanisms by which advertising and promotion might increase tobacco consumption are the following:
• by inducing children and young people to begin experimenting with tobacco products and in this way to initiate regular smoking
• by encouraging adults to take up smoking
• by encouraging existing smokers to smoke more
• by undermining existing smokers' motivation to give up
• by encouraging former smokers to resume the habit (14).

The Food and Drug Administration concluded in 1995 that the preponderance of studies of cigarette advertising suggested: a causal relationship between advertising and youth smoking behaviour, and a positive effect of stringent advertising measures on smoking rates and on youth smoking (15).

 7. Is the claim of the industry correct that they are targeting only adult smokers?

• Many confidential marketing plans of the tobacco industry, which were revealed in court cases, have shown that the industry was targeting young people. RJ Reynolds internal documents, released in January 1998, revealed for instance that the tobacco company sought to reverse its declining sales by targeting 14-24 year olds. Memos described the success of the Joe Camel cartoon in France and stated that the campaign was "about as young as you can get, and aims right at the young adult smoker Camel needs to attract" (16).
• In an article in one of the best known marketing journals, Pollay and colleagues argue that no isolation or immunity protects children and adolescents. Teenagers and younger children are in no way isolated from cigarette advertising's attractiveness and inducements. There is no magic curtain around children and teenagers who seek to learn how to fit into an adult world, nor is there any convincing defence of a view that would make young non-smokers immune (17).
• The main conclusion of this article in the Journal of Marketing (17) is that young people operate as trend-setters to define the degree of success of brands which are « in », with tobacco advertising sensitivity being three times larger among teenagers than among adults. The most advertised cigarette brand in the world is Marlboro. Marlboro has a market share in the U.S. of 59 % among adolescents and of 22 % among adults. The authors argue that cigarette competition between firms is dominated by the battle for market share among the young, and that assertions to the contrary, without supporting evidence, should be treated with scholarly scepticism.

 8. Is a tobacco advertising ban effective in reducing consumption?

• A report of the UK Department of Health of October 1992 reviewed various forms of evidence to assess whether tobacco advertising affects the aggregate demand for tobacco products. Four countries (Norway, Finland, Canada and New Zealand) were chosen, as these countries introduced an advertising ban and enforced it effectively. In all four countries enough data were available to evaluate the ban scientifically. The main conclusion of this report was that current evidence available on these four countries indicates a significant effect. In each case the banning of advertising was followed by a fall in smoking on a scale which cannot reasonably be attributed to other factors (18).
• Five years later in a report for the International Union against Cancer, the available data in the same four countries were examined. Canada was, however, replaced by France (advertising ban 01/01/1993), as in Canada a legal vacuum was created by the Supreme Court of Canada's decision of 21^st September 1995 to abolish the 1988 Tobacco Products Control Act, which was later replaced by the Tobacco Act of 25th April 1997. In the four countries per capita consumption of cigarettes (15 years +) dropped between 14 and 37 % after the implementation of the ban.

In three out of the four described countries, smoking prevalence among young people decreased, while in one it remained stable. The conclusion of the UICC is that advertising bans do work if they are properly implemented as part of a comprehensive tobacco control policy (19).

 9. Is the use of article 100a of the Treaty justified as the legal basis for the Directive?

• The completion of the Single Market means that goods and services can circulate freely between the fifteen Member States of the European Union. Differences between laws of the Member States on advertising and sponsorship can constitute barriers to the free circulation of tobacco products between the Member States.
• Tobacco already has a special status: it is the only product which is freely available whose advertising is banned on television in the European Union since October 1991 (Directive 89/552/CEE). Six Member States have laws which ban tobacco advertising: Italy (1962), Finland (1976), Portugal (1982), France (1991), Sweden (1994, only a ban on direct advertising) and Belgium (1997), one Member State has announced the intention to introduce a ban (UK) and two have declared that they would like to adopt one but their size and geographical position do not permit it (Ireland and Luxembourg). In accordance with Article 100a of the Treaty, the Commission is obliged, in its proposals concerning health, safety, environmental protection and consumer protection, to take a high level of protection as basis. For tobacco advertising it seems too difficult to harmonise Members States' legislation other than on the basis of a ban on tobacco advertising.

 10. Why ban indirect advertising?

• Indirect advertising for cigarettes includes those advertisements which, while not specially mentioning the tobacco product, tries to circumvent the advertising ban by using brand names, trademarks, emblems or other distinctive features of tobacco products. In the European Union, France was the first country where tobacco companies evolved the art of indirect advertising, in answer to the law of 1976, known as "la Loi Veil", which restricted their activities. The French marketing magazine, "Stratégies" explained in 1984 the process as follows: "Camel has clearly developed methods of communicating its brand, in spite of legal restrictions. (…) Camel uses lighters as an alibi or Camel Adventure Tours, which achieves and strengthens the image of the brand" (20). The Loi Evin of 1991 strengthened the provisions on indirect advertising, but did not disarm the tobacco industry. The French Justice Department discovered on 2 February 1995 in the headquarters of RJ Reynolds France internal documents called "World Brands Inc Strategic Plan 1993-1997" which described the way to circumvent legal restrictions by promoting products and services such as Camel Boots, Camel Trophy or Winston Clothes (21).
• British American Tobacco has similar plans as RJ Reynolds to circumvent legal restrictions through indirect advertising by legally promoting their cigarette brand in new ranges of coffee products. The scheme is being tested in Asia by BAT under the Benson & Hedges name. David Bacon, head of corporate communications of BAT, said the Benson & Hedges coffee brand was just one of a number of spin-off products being developed by the company. Others include Lucky Strike clothing, John Players whisky and Kent Travel, a travel agency (22).
• In Finland direct advertising for tobacco products was banned in 1976. This ban was extended in 1994 to include a ban on indirect advertising as research has shown that half of the youngsters were familiar with tobacco products through indirect advertising (23).

 11. Is a ban on indirect advertising not an infringement of the Paris Convention for the protection of industrial property?

• Following a request from Dr H. Nakajima, Director General of the World Health Organisation, Mr A. Bogsch Director General of the World Intellectual Property Organisation, has advised that the interpretation of the Paris Convention remains within the competence of the countries party to the Paris Convention (letter of 22 February 1995). The Paris Convention presents no impediment to Member States that wish to implement WHO recommendations calling for bans on direct and indirect tobacco advertising. It will be necessary, however, to construct legal requirements in such a way that they restrain only the use of trademarks but do not interfere with their registration (24).

 12. Why ban sponsorship for tobacco products?

• The tobacco industry does not engage in sponsorship for philanthropic reasons, but to encourage smoking. As one RJ Reynolds Executive said:

• A survey, reported in the Lancet of 15 November 1997, shows that boys who cited motor racing as their favourite television sport were more likely than others to be able to name the leading tobacco sponsors. Worryingly, if they were not regular smokers then, nearly twice as many became regular smokers than the boys who did not watch motor racing (26).
• According to a report, published in The Journal of Consumer Affairs of winter 1997, there are several reasons why allowing sponsorship by tobacco companies (especially sponsorship of sports) undermines attempts to curb tobacco consumption:
1. sponsorship functions like advertising,
2. sports sponsorship reaches the youth market very effectively,
3. sponsorship associates smoking with healthy, popular activities and images, and
4. the international nature of sponsored events may allow exemption from national sponsorship bans (27).

 13. Surely the economic damage that would be done by an ad ban would be out of proportion to the measure?

• Following the BSE crisis in 1996 the EU initiated a range of actions on food law, food quality and hygiene, human and animal protection, which had a huge economic impact, especially on beef farmers in the UK. By September 1997, there were 21 confirmed cases and 1 probable case of Creutzfeldt-Jacob Disease (the human equivalent of BSE) in the EU (28). The (low) risk of CJD was regarded as worth the economic cost in order to protect consumers. Tobacco is responsible for 548,000 deaths in the EU each year. A ban on advertising is a moderate response to the EU’s biggest health problem; especially, compared to all the efforts invested in combating mad cow disease.

 14. What is the economic impact of a tobacco advertising ban?

• A study on tobacco consumption and employment, released by the Society for the Study of Addiction and the Centre for Health Economics of the University of York, shows that vigorous policies to reduce smoking are likely to increase and not decrease employment. The reason is that when people stop smoking the money does not disappear from the economy. It is spent on other goods and services, which the study shows are more labour intensive, and thus produce more jobs. If a total ban on tobacco advertising in Britain resulted in a reduction in consumption of 5-10 % (an estimate of the 1992 UK government’s own report), the authors expect a net increase of 15,000 jobs (29).
• Tobacco advertising represents only a small fraction of the total advertising budget. In 1988 tobacco advertising represented on average only 1,6 % of the total advertising budget in the European Community (30). In France tobacco advertising represented 0,5 % of the total advertising budget in 1990 (31), in the UK 0,7 % in 1994 (32) and in Belgium 1,8 % in 1995 (33).
• The prospects for growth in overall advertising expenditure are positive in Europe. Projections predict an increase in total advertising expenditure from $ 79,727 million in 1996 to $ 97,704 million in 2000 (34). In other words, the growth in total advertising will more than compensate for the minor tobacco advertising lost revenue.
• Member States may also consider imposing a one–off ‘health tax‘ on tobacco companies to buy out tobacco sponsorship of sport. In a number of Australian states, Health Promotion Foundations have been established to provide an alternative to tobacco sponsorship of sports, the arts and popular culture (35). The foundations were funded by an increased levy on tobacco license fees and provided funds to the arts and sports sector which exceeded the amount previously available from tobacco sponsorship.

15. Will an ad ban have a negative impact on tobacco production in Southern Europe?

• Trans-national tobacco companies have mainly been promoting "American blend " type of cigarettes, such as Marlboro and Camel, which use a lot of flue cured tobacco. As a result there was a strong demand for this type of cigarettes and for flue cured tobacco. Imports of flue cured tobacco into the EU increased from 233 000 tons in 1990 to 277 000 tons in 1996. Flue cured tobacco is also grown in Europe, but not the higher–quality flue cured tobacco essential for the American blends. An ad ban would mean less promotion for American cigarettes and is certainly not against the interest of tobacco growers in Europe who produce more dark and sun cured varieties.

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