9 July 2002 – AER’S VIEWS ON THE EUROPEAN COMMISSION’S PROPOSAL FOR A NEW DIRECTIVE ON TOBACCO ADVERTISING
The European Commission has attempted to adjust its proposal for a new Directive on the prohibition of tobacco advertising and sponsoring, dated 2nd June 2001, to the judgement of the European Court of Justice. In the judgement of 5th October 2000 the Court had annulled the preceding Directive 98/43/EC (Case C-376/98).
The Commission bases its new proposal on the EC competence for the harmonisation of law within the European Community pursuant to Article 95 of the Treaty and the corresponding article concerning the free exchange of services. Instead of a total ban on tobacco advertising, the new proposal contains enumerative prohibitions for press, radio and internet advertising and the sponsoring of cross border events by tobacco companies.
The Commission has seized upon its internal market remit, founded on the basis that because media can cross borders there is a need to harmonise tobacco advertising laws in order to avoid obstacles to free circulation of such media.
The case of Europe’s commercial radios
Radio programmes, therefore radio advertisements, are produced for national markets and are most often only aimed at regional and local markets. Thus, they are subject to the laws of their Member States, most of which already ban tobacco advertising.
Because cross-border radio listening takes place only in the rarest cases, the prohibition of advertising by Article 4 of the Commission’s proposal fails the Court’s test of effectiveness. The Commission has tried to justify the ban on radio advertising because of the existence of radio services in the Internet. However, the percentage of Internet listeners by comparison to those listening to terrestrial transmissions in their intended market, is so small that we cannot agree that it represents a problem large enough to be tackled by a European Directive. The prohibition of tobacco-company sponsored radio programmes planned elsewhere leads to the same results.
In its proposal, the Commission does not substantiate what the problems of radio tobacco advertising and the functioning of the internal market are. It examines national regulations individually but fails to make concrete references to actual disruptions to cross-border trade. If, as claimed, the Commission has evidence of obstacles in the radio market, these should be clearly pointed out in order to verify their relevance. Furthermore, following the principle of proportionality, the measures envisaged would have to prove necessary and adequate to promote the free circulation of goods and services.
In our view, the ban on radio tobacco advertising is both unlawful and against the subsidiarity principle. Radio advertising issues because of their national, regional and local nature, should be dealt with by national or regional governments depending on Member States.
For AER, this is not just a “tobacco issue”. A Directive banning one type of radio advertising would set a damaging precedent for the future of free advertising and free circulation of services. It is important to note that the approval of this Directive could have negative implications on the freedom to advertise other legally sold products.
We therefore ask the European Parliament and Council to vote for a deletion of Article 4 of the proposed Directive that bans radio advertising and sponsorship.
NOTES: Brussels-based AER (the Association of European Radios) represents the interests of 12 national private radio associations in ten EU Member States and Switzerland, whose combined membership is approximately 4,500 private/commercial radio stations. The AER web site provides further information on membership www.aereurope.org