Opinion of the Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (presented by the Commission pursuant to Articles 47(2), 55 and 95 of the EC Treaty)"

(2002/C 36/20)

On 3 July 2001, the Council decided to consult the Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 3 October 2001. The rapporteur was Mr Fuchs.

At its 385th plenary session held on 17 and 18 October 2001 (meeting of 17 October), the Economic and Social Committee adopted the following opinion by 50 votes to 18, with seven abstentions.

1. Introduction

1.1. The ESC notes that, as part of the move towards the completion of the single market, the draft Directive under review is to replace Directive 98/43/EC of 6 July 1998, which has been annulled by the Court of Justice of the European Communities(1). The draft Directive is to regulate the advertising of tobacco products and related sponsorship. The goal is to harmonise the legal and administrative provisions of the Member States in order to remove obstacles to the operation of the single market, thereby ensuring freedom of movement for goods and services.

1.2. Most Member States have adopted legislation to regulate tobacco advertising and related sponsorship. The scope of these national laws varies. Directive 89/552/EC banning television advertising of tobacco products has, however, been incorporated into national law by all Member States. In its proposal the Commission points out that Member States fall into one of three groups, namely:

a) states which have introduced limited restrictions on tobacco advertising: Luxembourg, Sweden, Spain, Greece, Germany and Austria;

b) states which have introduced a total ban on tobacco advertising: France, Italy, Portugal and Finland;

c) states which are in the process of amending their laws: United Kingdom, Ireland, The Netherlands, Denmark and Belgium.

Divergencies between national laws may have the effect of strengthening barriers that impede the free circulation of advertising and sponsorship products and services between the Member States. These barriers are to be removed.

1.3. The draft Directive is based on Articles 47(2), 55 and 95 of the EC Treaty. Article 95(3) of the Treaty establishes a high level of health protection as a basis on which to act. The proposed approximation of the laws of the Member States is designed to protect public health by preventing young people from being induced to smoke and becoming addicted to tobacco products at an early age as a result of advertising.

Account has also been taken of the public health concerns brought to the attention of the Commission by the Member States and scientific bodies (Article 95(8)).

1.4. The draft Directive seeks to regulate the advertising of tobacco products and related sponsorship, apart from television advertising, which is covered by other EU provisions. The aim of the draft Directive is to bring about the most extensive possible ban on both the advertising of tobacco products in all media and on sponsorship, in a form which is fully in accordance with the case-law of the European Court of Justice. The draft Directive also makes provision for a reporting procedure which takes account of new scientific developments having an impact of the implementation and operation of the single market.

1.5. The ESC notes that the proposed measures tally with the recommendations of the Commission's Advisory Committee for Cancer Prevention(2) and of the World Health Assembly of the World Health Organisation(WHO)(3). The proposed measures also take account of the opinion on a socially responsible Community tobacco policy adopted on 14 June 1998 by the Commission's Consumers Committee(4).

1.6. The WHO's work on smoking prevention is particularly important. The 52nd World Health Assembly decided, at its meeting on 24 May 1999, to set up an intergovernmental negotiating body to draft a proposed WHO Framework Convention on Tobacco Control. In the framework of the negotiations on this Convention, a further aim is to adopt provisions governing tobacco advertising, sponsorship and other forms of promotion; these provisions will have an impact on the existing body of Community legislation.

1.7. A report commissioned by the World Bank on curbing the consumption of tobacco products(5), concludes that complete bans on tobacco advertising, which cover all media and all uses of brand names and logos, are effective.

2. General comments

2.1. The ESC welcomes the Commission's Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products.

2.2. The ESC shares the view that the harmonisation and approximation of Member States' existing legal and administrative provisions, as proposed by the Commission, will make these provisions easier to apply. The ESC is in favour of more extensive harmonisation or approximation of Member States' legal provisions, where this is clearly necessary for the completion of the single market. The ESC notes with regret that the Commission has not produced any evidence of actual trade barriers in the field of tobacco advertising.

2.3. The ESC draws attention to the fact that the Commission's initiative may be regarded as a further step towards improving public health in the EU. The ESC has already endorsed the growing importance of public health at EU level on a number of occasions(6).

2.4. The ESC sees the Commission's initiative as a further measure to prevent damage to health as a result of smoking. With this aim in view, the ESC points out that the adoption of a broad transnational strategy for preventing tobacco-related damage to health is the only way of achieving lasting success in this field. The ESC therefore unreservedly endorses the Council's conclusions of 19 June 2001(7) on the WHO Framework Convention on Tobacco Control, and the fact that the Commission is lending its support to the WHO in its bid to draw up the Framework Convention on Tobacco Control.

2.5. The ESC welcomes the fact that the draft Directive acts on its demands for a ban on direct and indirect advertising of tobacco products expressed in its opinion of 9 July 1997(8).

2.6. The ESC draws attention to its many earlier opinions(9) highlighting the fact that tobacco products are damaging to public health and are a cause of heart and circulatory diseases, cancer and other illnesses. The WHO(10)(11) estimates that approximately 500000 people in the EU die prematurely each year from the effects of smoking. Eighty per cent of young people start smoking before they are 18. Given the EU's objective of ensuring a high level of health protection and the need to protect consumers, there is a need for a complete ban on advertising tobacco products, as part of a comprehensive package of measures to prevent smoking. Such an approach would prevent children and adolescents, who are in special need of protection, from being induced to smoke and becoming addicted to tobacco products at an early age as a result of advertising.

2.7. Epidemiological and clinical research in the field of smoking should be stepped up. The importance of additives and carcinogens represent areas of particular interest in this respect.

2.8. The ESC assumes that the Commission has taken due account of the judgement of the Court of Justice of the European Communities of 5 October 2000.

3. Specific comments

3.1. The ESC welcomes the objectives of the draft Directive, which are to improve the level of health protection within the Member States. However, it regrets that the Commission's draft offers no evidence of the effectiveness of an advertising ban from the experience of those Member States where a ban already applies.

3.2. Article 1

The ESC deplores the fact that the draft Directive has a limited field of application and that there is to be no comprehensive regulation of the advertising and sponsorship of tobacco products, which also includes cinema and outdoor advertising.

3.3. Article 2

The ESC draws attention to the fact that IT services are expanding and changing rapidly and that it is not likely to be easy to monitor these services, including their use for advertising.

3.4. The ESC assumes that Article 3, in particular, will be subject to careful legal review. This review should also consider whether newspapers and other printed publications that are of an exclusively local and regional nature, that do not therefore obstruct the single market and that are governed exclusively by national legislation, should be exempt from this ban, in line with the arrangements for sponsorship and printed publications issued outside the European Union.

3.5. Article 5

The ESC wishes to highlight the issue of "dumping prices", i.e. the sale of tobacco products in the EU for less than their value in some cases. The ESC welcomes the Commission's plan to tackle this barrier to the operation of the single market in a separate directive.

3.6. Article 6

The ESC welcomes the obligation upon the Commission to submit a report.

Brussels, 17 October 2001.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Case C-376/98 of 5.10.2000, Germany v. Parliament and Council.

(2) COM(96) 609 final - Annex.

(3) WHO, Tobacco or Health. A global status report, Geneva, 1997, page 49.

(4) Opinion of the Consumers Committee on a Socially Responsible Community Tobacco Policy (14.6.1998).

(5) Curbing the Epidemic, World Bank, Washington, 1999; Tobacco control in developing countries, Oxford University Press, Oxford, 2001.

(6) OJ C 407, 28.12.1998, p. 21.

(7) OJ C 174, 19.6.2001, p. 1.

(8) OJ C 296, 29.9.1999, p. 32.

(9) Opinion on a programme of Community action in the field of public health (2001-2006) - OJ C 116, 20.4.2001, p. 20. Opinion on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products, "recast version" - OJ C 140, 18.5.2000, p. 24. Opinion on combating tobacco consumption - OJ C 296, 29.9.1997, p. 32.

(10) WHO, Tobacco or Health. A global status report, Geneva 1997.

(11) Peto et. al. Mortality from smoking in developed countries 1950-2000, Oxford University Press, Oxford 1994.

APPENDIX

to the opinion of the Economic and Social Committee

The following passages from the Section's opinion were deleted by the Committee as a result of proposed amendments. At least a quarter of the votes cast were, however, in support of the retention of these passages:

Point 2.2

"Existing trade barriers are to be removed. The ESC is in favour of more extensive harmonisation and approximation of Member States' legal provisions, which it regards as an essential additional step towards the completion of the single market."

Voting on the deletion of the above passage:

For: 44, against: 28, abstentions: 3.

Point 3.1

"The ESC welcomes the objectives of the draft Directive. It trusts that the draft Directive will remove barriers to the operation of the single market and also bring about a high level of health protection within the Member States."

Voting on the deletion of the above passage:

For: 39, against: 33, abstentions: 0.