Dept. de Recherche
Centre de Recherche et d'Information des Organisations et Consommateurs
18, rue des Chevaliers
1050 Brussels, Belgium
presented at the fifth W.H.O. Seminar
for a Tobacco-free Europe,
Warsaw, Poland, 26-28 October 1995
Mr. LUK JOOSSENS
OCTOBER 1995
This document was scanned and subject to Optical Character Recognition and reproduced on GLOBALink with the autorization of the author
Contents:
The first European conference on Tobacco Control Policy held in Madrid in November 1988, was jointly organised by WHO, the Commission of the European Communities and the Spanish Ministry of Health.
The Madrid conference was a clear indication that the Commission wanted to take an active part in the development of a tobacco control policy. Until that tire, the activities of the Commission in the health area had been rather limited. Its activities were intended more to stimulate the free movement of goods than to provide a healthier Europe.
The original 1957 version of the Treaty of Rome, which established the Community, did not contain a specific article which gave the Community a competence in public health.
Amendments of the Community's treaties introduced by the 1986 Single European Act indicated soon progress.
The most important health provision was found in Article 100 a, in particular paragraph 3, which states that, when the Community takes harmonising measures to create a single market, the Commission should take a high level of health protection as basis for its proposals.
The EC tobacco control legislation on labelling, advertising or tar limits are all based on this article 100 a.
When, for instance, legislation on tobacco labelling was considered, the model chosen was from Ireland, where health warnings were tougher, larger and better placed on the cigarette pack than in the any other country.
The Treaty of Maastricht which, finally, formalised the Community's competence in public health in its article 129 which is, since 1993, the direct legal basis for EU health policy (see Annex 1).
As early as 1985, however, two European political leaders (President Mitterrand of France and Prime Minister Craxi of Italy) felt strongly that the Community should become involved in areas other than the purely economic ones. At their bi-annual meeting in Milan (1985) the heads of governments of the Members States of the European Community called on the European Commission to launch a European Programme against Cancer.
The objective of the programs was to reduce the number of deaths from cancer by 15% by the year 2000 (150,000 lives each year). In order to reach this objective, the Commission elaborated a first action plan 1987-89, which covered the following areas : prevention, information and health education, training of health personnel and cancer research.
The first action plan was implemented according to schedule. Many campaigns, studies and research projects of European interest were launched and in the legislative area, proposals for Council Directives, notably in the field of tobacco prevention, were transmitted by the Commission to the Council.
As the fight against cancer can only produce tangible results if continuous efforts are made, a second action plan 1990-1994 was adopted in May 1990. It maintained the same objectives, priorities and strategies which were followed during the first action plan.
The third and latest action plan will run until the end of 2000.
Perhaps the most significant action of the "Europe against Cancer" programme has, however, been the initiation of a series of legislative measures in the area of smoking prevention which have helped improve the control of tobacco use within the Union.
Because of the controversy of the proposed tobacco control legislation, tobacco has probably received more attention than the actions of the programme which have to do with nutrition and cancer.
14 of the 75 proposed actions of the "Europe against Cancer" programme were related to tobacco control.
The 14 planned-actions covered the following 10 fields :
In order to obtain a good exchange of information, the European Bureau for Action on Smoking Prevention (BASP) was created in 1988 within the framework of the "Europe against Cancer" programme. A major part of its information activities were carried out through the publication of regular newsletters and the production of reports on various issues relating to the prevention of smoking in the European union.
The initial 14 tobacco control proposals were quite ambitious and their implementation was rather successful, at least during the period 1988-1991.
The EU tobacco control legislation
The labelling of tobacco products is regulated by two European Directives (Directive 89/622EEC and Directive 92/41EEC). Since January 1992, tar and nicotine yields must be indicated on cigarette packets and all tobacco products must carry the general warning "Tobacco seriously damages health". Cigarettes packets must also carry an additional specific warning to be chosen from a set list. The warning must be printed in the official languages of the country of final marketing and should cover at least 4% of each large surface of the unit packet, excluding the indication of the responsible authority. This percentage is increased to 6% for countries with two official languages and to 8% for countries with three official languages. The warning should be clear and legible, printed in bold letters on a contrasting background. They should not be printed on a place where they may be damaged when the pack is opened or on a transparent wrapper or any other external wrapping.
By 1 January 1994, tobacco products other than cigarettes should also carry supplementary specific warnings.
Directive 92/41/EEC also introduces a ban on the marketing of certain tobacco products for oral use recently introduced and specifically targeted at a young market. The sale of these products is banned in all European union member States since 1 July 1992.
The tar yield of cigarettes marketed in the European union is regulated by an EC Directive adopted in May 1990 (Directive 90/239/EEC). This Directive states that the tar content of cigarettes marketed in the European Union should not exceed 15 mg per cigarette as of 31 December 1992, or 12 mg per cigarette as of 31 December 1997.
In July 1989, the EC adopted a Resolution inviting Member States to adopt measures banning smoking in public places and on all forms of public transport. The Resolution foresees that in the event of conflict, the right to health of non-smokers should prevail over the right of smokers to smoke. Unlike Directives, Resolutions are not binding on Member States but merely represent a guideline for action.
The advertising of tobacco products on television is banned in all European Union Member States since October 1991 (Directive 89/552/EEC).
The Commission has, furthermore, proposed to introduce a total ban on the advertising of tobacco products except within specialised tobacco sales outlets. A draft Directive on this subject has already received the approval of the European Parliament in Strasbourg and the final decision now rests with the Ministers of Health of the EU Member States. Although this proposal has the support of the majority of Member States, tour Member States are forming a blocking minority (Germany, the Netherlands, the United Kingdom and Denmark). This draft Directive has been the object of intensive lobbying within the European Union by both public health organisations and the tobacco industry.
Although the taxation of tobacco products does not f all under the responsibility of the public health sector, pressure has been put on Economic and Finance Ministers to take account of public health concerns in debates on the harmonisation of taxes in the European Union. The Commission is already required to carry out a review of rates every two years, taking account of the proper functioning of the internal market and the wider objectives of the treaty.
The price of tobacco products still varies quite considerably from one country to another. As price has been shown to have a strong influence on consumption patterns, particulars among young people, measures to increase tobacco taxation in low-taxed countries are an important public health measure.
Three Directives on tobacco taxation were adopted in October 1992 which define -the taxation structure for tobacco products (Directive 92/78/EEC) and set certain minimum levels of taxation (Directives 92/79/EEC and 92/80/EEC) effective as of 1 January 1993. Taxes on cigarettes should, for example, represent a minimum of 70% of the final retail price.
Tobacco subsidies represent a contradiction in terms of EU policy. Although, reducing tobacco consumption in the European Union is one of the major objectives of the "Europe against Cancer"' programme, the Community also heavily subsidises the production of tobacco in the EU. In 1992, 1,600 million US dollars was spent subsidising tobacco or 800 times more than its budget for smoking prevention.
Following protests over the amount spent on supporting tobacco production, the EC has set up in September 1993 a fund for research and information which will finance projects both in the area for research into less harmful varieties and for information projects on smoking. The budget will not be used to investigate ways in which tobacco growers can convert to the production of other crops. So far, at the end of 1995, no project has yet been financed in the framework of this fund.
Under the Treaties, the Commission of the European Union, in cooperation with the 15 governments and the European Parliament, has the power to enact legislation in all EU countries. Regulations are directly applicable in all Member States. Directives are binding on Member States as to the result to be achieved whereas Recommendations and opinions have no binding force.
The impact of the first Directive on tobacco labelling was enormous.
As Directives are binding on the Member States, even countries with almost no tobacco control legislation, such as the Netherlands, Denmark and Greece had to strengthen the health warnings on tobacco packaging.
In the UK, the government was obliged to supersede the system of voluntary agreements by legislation. While EU legislation is binding for its Member States, it is also becoming a source of inspiration for those countries who want to join the European union, such as EFTA countries and countries in Central and Eastern Europe. Most EFTA countries have already implemented the EC legislation on labelling and tar content in their national legislation.
The proposal for the Directive on labelling was introduced in February 1988 and drafted by a committed European civil servant, Stelios Christopoulos.
Smoking prevention organisations were pleased with this initiative. The main principles of the proposal were, for instance, discussed at an informal meting of tobacco control experts at the Madrid conference in November 1988. All agreed that the proposal contained some real progress, such as the provision to have two warnings, the principle of rotating warnings and the placement of the warnings on the back and the front (and not on the side of the packs).
The Directive was adopted in November 1989 and came into force from I January 1992. In order to evaluate the efficacy of the Directive, BASP conducted a comparative study of the labelling of five of the most sold cigarettes brands in each EC country in 1993, which covered approximately 60% of the European cigarette market. The survey revealed the weaknesses of the Directive and of its implementation: the small size of the warnings and the use of non-contrasting colours.
The size of health warnings is one of the principal factors determining their visibility (and their legibility). It is generally accepted that they should cover at least 25% of the front and back surfaces of cigarette packs. The small size of warnings presently in force in the countries of the European Union (a minimum of 4%) and in many other countries in the world means that warnings can, in many cases, barely be seen and are difficult to read. Moreover, the smaller the warning is, the easier it is for the industry to "submerge" it in the general design of the pack.
A study carried out in the United Kingdom by the Health Education Authority showed that the size of warnings also has important psychological implications. Persons interviewed for this study had, in fact, a tendency to associate the small size of the warnings presently in place in the European Union with a certain duplicity on the part of the government and even more seriously with the extent of the risk involved.
The European labelling Directive states that warnings on cigarette packs must be clear and visible, printed in bold and printed on a contrasting background. They must not be printed in a place where they way be damaged when the pack is opened or on the transparent wrapper or any other external wrapping. The first two of these requirements are difficult to judge objectively which leaves them open to a minimalist interpretation. What, for example, does clear and visible mean ?
The most vulnerable point of the Directive and the easiest to comment on, is the requirement that warnings be printed on a contrasting background. In the Oxford English dictionary "contrasting" is defined as "a juxtaposition or comparison showing striking differences".
It is significant that the most frequent choice of colour for the lettering of It is gold (68% of the warnings). The use of gold lettering for warnings and product information was considered by BASP to be against the spirit of the EC Directive as it offers only a minimum contrast given that it is a reflective colour. This means that the lettering changes with the light and that at certain angles can hardly be seen at all. The overwhelming preference of tobacco companies for gold lettering is a clear indication of their intentions to minimise the impact of the Directive.
BASP was not alone with this opinion: in France, the Court of Appeal of Rennes has condemned the tobacco company Rothmans in September 1995 for its use of golden letters on a beige background in the health warnings of its Golden American brand, because it was difficult to read and not all contrasting.
At the opening ceremony of the ninth World Conference on Tobacco and Health, in October 1994, EU Commissioner Padraig Flynn made it clear that he was aware of the weaknesses of the Directive : "Netherless the commission has been concerned at recent reports of circumvention of the labelling rules, notably by printing the health warnings in ways which make it very difficult to distinguish the lettering. The Commission is now examining implementation and enforcement of the labelling laws and will bring forward proposals to strengthen the existing measures if this is considered necessary."
So far, no initiative has been taken by the Commission to improve the labelling Directive. The EC Directive has even served to undermine in countries such as Sweden and Norway more advanced warnings that were not envisaged at the tire that the Directive was adopted. Sweden was the first country to introduce a system of rotative warnings in 1977. Each pack carried a framed health warning covering approximately 20% of the pack. Unfortunately, plans to further improve these warnings by increasing their size and adding pictogrammes were abandoned following Sweden's decision to join the EU. The labelling regulations have consequently been changed to correspond more closely with the regulations presently in force within the EU. Warnings must now cover only 4% of the pack and no longer appear in a frame.
It is clearly regrettable that a European Directive, based on the principle of ensuring "a high level of protection of health" should result in certain countries being unable to adopt stricter and more complete measures for the labelling of tobacco products.
It is also clear that the 4% rule is now been considered by the tobacco industry as acceptable. Since the adoption of the Directive, three countries (Canada, Australia and South Africa) have laws which oblige companies to have warnings which cover 25% of the surface. In the negotiations between the industry and the government in South Africa, the industry was willing to accept the EC 4% rule (personal communication of the South Africa Minister for Health, Dr Zuma) which means that the EC legislation on labelling becomes now the international standard of ineffectiveness, accepted by the tobacco industry.
Tobacco control in the EU in 1995
The general political environment in the European Union is not the same in 1995 as it was in 1985 on the one side, the adoption by Single European Act in 1986 and the White paper for the creation of the Single Market in 1993 had strengthened the Union.
On the other hand, the ratification of the Maastricht Treaty was only possible after endless discussions, consultations procedures and referendums which highlighted nationals feelings and stressed more the need of a diversified than an united Europe.
Some felt that the power of the Community had become too important and that too many Directives were adopted in the period 1986-1992. Generally speaking, it became much more difficult to propose new Directives in 1993 than it had been in 1987, as EU action is only possible when the objectives cannot be achieved by the Member States themselves (the so-called subsidiary principle).
Even the adoption of article 129 (the public health article) has not led to more concern for public health as its formulation is rather weak and its interpretation quite different according to the Member States.
At the same time, some significant changes occurred within the "Europe against Cancer" programme: Richonnier and Christopoulos left the unit respectively in 1990 and in 1991 and in 1992 the program became part of the Commission's "Health Division" which is located in Luxembourg.
The programme which was previously dynamic due to its independent structure, came under the strict control of both European and national civil servants. While during the first period of the program (1987-1991) efficiency was the main objective, during the following period, it was the respect of the formal of bureaucratic inertia.
Some were very pleased with this evolution towards inefficiency, as the programme had soon strong opponents, also among the Member States. Germany, the United Kingdom and the Netherlands were strongly opposed to the proposed advertising ban and obtained for instance in June 1995 a reduction of the budget of the program for the period 1996-2000. It is not a coincidence that these three countries are also the biggest producers and exporters of cigarettes in the Union.
Other characteristics of the actual situation are:
Since 1990, Philip Morris has for instance an office 50 metres from the main building of the Commission and pays as consultants persons such as a former Prime Minister. They seem to be better informed on developments within the Commission than most civil servants themselves and have directly attacked "European" legislation on smoking in public places in a European-wide press campaign.
The impact of EU legislation is enormous as Directives are binding on the Member States and a source of inspiration for those countries who want to join the European Union.
A ban on tobacco advertising in the European union would lead within 5 years, to a ban on advertising in almost the whole of Europe.
The list of legislative measures in the union is already impressive but its impact is weakening every year, as no more legislative proposals have been introduced since 1991.
The EC labelling Directive of 1989 strengthened tobacco control in many countries, but has now become, without the necessary revision, the international standard of ineffectiveness, accepted by the tobacco industry.
In the mean time, the Union is still subsidising very heavily its tobacco production and dun-ping its high tar tobacco in Central and Eastern Europe and in Northern Africa.
The tobacco industry is more and more present in Brussels and able to effectively lobby all decision-making bodies of the Union.
Annex 1
The Treaty on European union
Title X
Public Health
Article 129
1. The Community shall contribute towards ensuring a high level of human health protection by encouraging cooperation between member States and, if necessary, lending support to their action.
Community action shall be directed towards the prevention of diseases, in particular the major health scourges, including drug dependence, by promoting research into their causes and their transmission, as well as health information and education.
Health protection requirements shall form a constituent part of the Community's other policies.
2. Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes s in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. In order to contribute to the achievement of the objectives referred to in this Article, the Council: