With most tobacco product advertising illegal now in the UK, the regulators are now moving in on point of sale. Tobacco companies have challenged in court new POS rules due for 21 December 2004.
Who: British American Tobacco, Imperial, Gallaher, Philip Morris and other tobacco companies and the Secretary of State for Health
Where: Queens Bench Division of the High Court, London
When: November 2004
Tobacco manufacturers challenged the Tobacco Advertising and Promotion (Point of Sale) Regulations 2004 ("Regulations"). They sought judicial review of this measure, then due to come into force 21 December 2004.
The Regulations provide exceptions to the total ban on the advertising of tobacco products contained in the Tobacco Advertising and Promotion Act 2002. They impose limitations on ads at point of sale and restrict advertising on vending machines to a picture of the packets available from the machine.
The manufacturers argued that the line between what was allowed and forbidden had been drawn in such a way as to be an unlawful interference with their commercial freedom of speech such as to be contrary to the Human Rights Act.
Virtual ban on information?
The rules were so tough, they argued, they amounted to a virtual ban on informing customers about products that were legally on sale. This was disproportionately restrictive, they said, when less tough regulations, which did not impose a blanket ban on the non-pack shot promotional material on vending machines in supermarkets, nightclubs and catering establishments, for example might well have been equally effective in protecting young people from the risks of smoking.
The rules also made it virtually impossible, the tobacco companies argued, for a new brand to establish itself.
Having heard the arguments Mr Justice McCombe refused the tobacco companies' application. The Judge held it was entirely legitimate for the Secretary of State to regulate in this way, bearing in mind the will of Parliament as articulated in the 2002 statute. The Judge went on to say that the Court was in no position to weigh up the pros and cons of bans on particular types of advertising and that the Secretary of State was to be permitted considerable discretion in deciding where to draw the line.
Why this matters:
One suspects that as they are in the last chance saloon here, the tobacco companies may take this case all the way, but their position seems hopeless and the new Regulations look set to be in force on the appointed day.