Who: UK Government
Where: United Kingdom
When: 17 January 2019
Law stated as at: 1 February 2019
What happened:
The UK government has published a Brexit Statutory Instrument (Brexit SI) covering the Tobacco Advertising and Promotions Act 2002. The purpose of Brexit SIs is to ensure that existing legislation works after the UK has left the EU. Typically, this involves relatively cosmetic changes, such as substituting the name of EU regulatory bodies for UK regulatory bodies. Like other Brexit SIs, most of the amends to the Brexit SI for the Tobacco Advertising and Promotions Act 2002 are very mundane. However there is one significant point for advertising tobacco products on websites, social media or other online platforms.
The government is proposing to delete the provision that makes it an offence for a UK service provider to publish an advert which promotes tobacco, during the course of providing an information society service outside the UK. Effectively this means the ban on advertising or promoting tobacco products online is narrowed to simply those on websites targeting the UK – at least under UK law.
As a consequence, there would be a defence that an online advert is not intended to be accessed principally by persons in the United Kingdom (i.e. that the advert was targeted at citizens outside of the UK). Should this defence be successful, it is likely that this would also mean that the advert falls outside of the remit of the CAP Code because the CAP Code does not regulate foreign advertisements.
Why this matters:
Generally speaking, the trend has been to impose more and greater restrictions on advertising of tobacco. So much so that the UK is now effectively a “dark market” for tobacco advertising. As a consequence, it is in of itself noteworthy that the rules around tobacco advertising are being narrowed in scope. This is particularly the case as the sanctions for breach of the Tobacco Advertising and Promotions Act 2002 are particularly harsh compared to sanctions for breach of other advertising law. Criminal sanctions including imprisonment for company officers for up to 2 years is possible as are unlimited fines.
Notwithstanding the above, any UK service provider looking to target online adverts at EU or other non-UK citizens should still be very cautious. The UK is not the only market to have strict rules on tobacco advertising and compliance with local laws would need to be considered.
