One UK statute, two sets of UK regulations, two EU directives and a set of stiff European Ministers’ “Recommendations”. The tobacco industry never had it so bad.
New Law: The Tobacco Advertising and Promotion Act 2002, the Tobacco Advertising and Promotion Act 2002 (Commencement) Order 2002, the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002, EC Directive 2001/37/EC, a further EU tobacco advertising Directive and an EU Council of Ministers Recommendation
On October 5 2000, the European Court of Justice annulled the European Union's first attempt to introduce strict union-wide tobacco advertising and promotion controls. This was by way of the ill-fated directive 98/43 on tobacco advertising. Undaunted, the European Commission immediately started working on the adoption of a replacement Directive. The new Directive 2001/37/EC, began its way through the EU law making process in May 2001 and was agreed, with implementation due across the union by September 30 2002. Just over a year previously, however, a challenge to that Directive was launched by British American Tobacco (Investments) Limited and Imperial Tobacco Limited. As previously reported on marketinglaw, however, that challenge was ultimately unsuccessful, judgement being handed down in favour of the Commission on 10 December 2002.
Whilst this case was pending, the UK had been in the process of preparing its own domestic legislation to implement the terms of directive 2001/37. But these have not been the only moves to introduce further tobacco advertising controls. In the UK, after an earlier initiative to introduce a tobacco advertising ban fell foul of the calling of the last general election, the legislation was subsequently revived and the Tobacco Advertising and Promotion Act 2002 received the Royal Assent on 7 November 2002. Much of the Act's provisions, however, needed subsidiary regulations to bring them into effect, and the first and most important set of these has now come into force.
Next up, not satisfied with directive 2001/37, the European Commission has been busy preparing yet more EU-wide legislation in the area. For the first time since the ill-fated Directive 98/43, a new proposed Directive does envisage total EU wide tobacco advertising bans. Agreement has now been reached between the European Parliament and the Council of Ministers on the terms of this instrument. Finally, as if that were not enough, EU ministers have now agreed a "Recommendation" for yet more smoking-related controls across Europe,
Now, from this veritable blizzard of legislative and regulatory developments in this area, lets perm some of the main changes that will be coming our way over the next short while.
What will change:
1.Implementation of EU directive 2001/37.
In the UK this has been implemented by way of the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002. These came into force on 31 December 2002. The key features are as follows:
since 1 January 2003 there have been maximum permitted levels of tar, nicotine and carbon monoxide applicable to all cigarettes manufactured for circulation, advertising and sale within the European Union. These levels are 10mg per cigarette for tar, 1mg per cigarette for nicotine and 10mg per cigarette for carbon monoxide. As regards cigarettes to be exported from the European Union, the same rules will apply as from 1 January 2007;
all cigarette packets must carry statements of the cigarettes' tar, nicotine and carbon monoxide yield. Also on the issue of ingredients, tobacco product producers must provide the Secretary of State for Health with an annual statement of the ingredients of their tobacco products, the reasons for including these ingredients and toxicological data showing their effects on health;
tobacco product packaging must carry a specified health warning covering not less than 30% of the surface. There are three permitted warnings: "smoking kills", "smoking can kill" or "smoking seriously harms you and others around you";
there will also need to be an additional warning covering not less than an additional 40% of the surface, but there will be a period of grace for non-compliance expiring 30 September 2003;
also from 1 January 2003, with a transitional period expiring 30 September 2003, no indication may be given on tobacco product packaging which suggests, either by way of text, names, trademark, images or other indication, that a particular tobacco product is less harmful than others, for instance, "light", "lite", "smooth" or "mild". As a result of this, two recently announced brand name changes are Lambert & Butler Lights to Lambert & Butler Gold and Super Kings Lights to Super Kings Blue; and
tobacco product packs must also carry markings which enable the place and time of manufacture to be determined, so that non-compliers can be tracked down and suitable action taken.
Implementation of the Tobacco Advertising and Promotion Act 2002
Most of the provisions of this Act are implemented by way of the Tobacco Advertising and Promotion Act 2002 (Commencement) Order 2002. The key features are as follows:-
a ban on all tobacco advertising on posters, newspapers, magazines, the internet and by direct marketing from 14 February 2003 except that a stay of execution until 14 May 2003 has been given to (1) direct marketing distributed to individuals who before 8 October 1999 opted in to receive such communications (2) point of sale advertising in shops or on websites selling tobacco products and (3) in circumstances in which the tobacco advertisement uses the name, emblem or other feature of a tobacco product in connection with a product (other than a tobacco product) which has a function in addition to that of carrying advertising and the advertisement is not published in a newspaper, periodical or other electronic or paper publication or carried on a billboard, wall or other fixed or moveable surface which serves a function similar to that of a billboard.
an offence under this Order will be committed by any person who, in the course of business, prints, devises or distributes in the UK a tobacco advertisement which is published in the UK or causes such a tobacco advertisement to be so printed, devised or distributed. The liability for publishing a tobacco advertisement in a newspaper or other prohibited medium will also extend to any person who procured the inclusion of the advertisement in the publication and any person who sells the publication or offers it for sale or otherwise makes it available to the public, thus rendering newsagents and vendors equally liable;
there are savings, however, for advertisements which are trade communications directed to persons with senior or managerial responsibility. There will also be no offence if a relevant communication is made in reply to a specific request by an individual for information about a tobacco product, or if it is contained in a publication (other than an in-flight magazine) whose principal market is not the UK, or if it is contained in any internet version of such a publication. Other defences will apply, for instance where a person did not know and had no reasonable cause to know that the advertisement was to be published in the UK, whilst newsagents and news vendors will have a similar "lack of knowledge" defence;
there is a special saving for "specialist tobacconist" shops, where more than half of their sales derive from the sale of cigars, snuff, pipe tobacco and smoking accessories. This calculation is to be made on the basis of the most recent 12 month period for which accounts are available. The saving applies to tobacco advertisements fixed to the outside of those premises, but there are to be yet more regulations applicable to such advertising and generally to the display of any tobacco products for sale, whether in shops or on the net;
tight controls are imposed on the giving away of products or coupons whose aim or effect is to promote tobacco products. These apply regardless of whether they are given with a product or separately but will not apply where they are given away to individuals engaged in the tobacco trade at senior or managerial level or the person charged did not know or had no reason to suspect that the product or coupon offer was intended to or would have the effect of promoting a tobacco product. There may also be future regulations controlling not just freebies but also offering products for a nominal sum or a substantial discount. However there is a small let-off for coupons enclosed within a pack containing a tobacco product which have a nominal cash value not exceeding 1p and are capable of being exchanged for goods provided these are not tobacco products. These can carry on being used until 14 May 2003;
so far as sponsorship is concerned, as previously reported on marketinglaw, this has a very wide definition. All sponsorship agreements already in force as of 14 February 2003 will be permitted to continue until 30 July 2003 subject to certain conditions, while global events that have existing deals with tobacco companies amounting to more than £2.5 million a year may continue in force until 31 July 2005. These conditions require significant reductions in expenditure on and visibility of tobacco advertising;
in the area of "brand-sharing", in other words the use of tobacco branding on non-tobacco products or services or vice versa, there will be separate regulations introduced in due course.
New EU Tobacco Advertising Directive agreed on 2/12/2002
This provides for a general ban across all the European Union on tobacco advertising in the press as well as a ban on tobacco advertising on the internet. The advertising of tobacco products via the radio and sponsorship of radio programmes by tobacco companies will also be banned, in the same way as existing rules applicable to television advertising already introduced long since by the "Television without frontiers" Directive 89/552.
Also in the area of sponsorship, the Directive applies a ban on sponsorship by tobacco companies in relation to events or activities with cross border implications by July 31 2005 at the latest. This chimes in with the longstop date for that sort of activity contained in the UK's own legislation as indicated above.
The EU Council of Ministers' Recommendation on Smoking Prevention
Not content with the above measures, European Union Ministers agreed in December 2002 on a far-reaching "Recommendation" on smoking prevention. The idea is to reduce the availability and supply of tobacco products to children and adolescents.
The Recommendation calls on member states to take steps to ensure that tobacco manufacturers disclose the expenditure they incur on advertising, marketing, sponsorship and promotional campaigns.
Member states are also urged to introduce adequate protection against passive smoking in the work place, on public transport and in enclosed public spaces.
Also recommended are measures requiring the removal of tobacco products from self service displays, preventing the sale of cigarettes in packs of fewer than 20, restricting tobacco distance and internet sales and tightening up legal requirements on retailers to ensure that those under age do not purchase tobacco products.