Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products
Date: 1998-07-06
Institutions: Council of the European Union, European Parliament
Subjects: advertising, approximation of laws, public health, sponsorship, tobacco, tobacco industry

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DIRECTIVE  98/43/EC  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

of  6  July  1998

THE  EUROPEAN  PARLIAMENT  AND  THE  COUNCIL  OF
THE  EUROPEAN  UNION,

Having  regard  to  the  Treaty  establishing  the  European
Community,  and  in  particular  Article  57(2),  Article  66
and  Article  100a  thereof,

Having  regard  to  the  proposal  from  the  Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting  in  accordance  with  the  procedure  laid  down  in
Article  189b  of  the  Treaty (3),

laws, 

(1)  Whereas there are differences between the Member
States’ 
regulations  and  administrative
provisions  on  the  advertising  and  sponsorship  of
tobacco  products;  whereas  such  advertising  and
sponsorship  transcend  the  borders  of  the  Member
States  and  the  differences  in  question  are  likely  to
give  rise  to  barriers  to  the  movement  between
Member  States  of  the  products  which  serve  as  the
media for such advertising and sponsorship and to
freedom  to provide services  in  this  area,  as well as
distort 
the
functioning  of  the  internal  market;

competition, 

impeding 

thereby 

(2)  Whereas  those  barriers  should  be  eliminated  and,
to this end, the rules relating to the advertising and
sponsoring  of 
should  be
approximated,  whilst  leaving  Member  States  the
possibility of introducing, under certain conditions,
such  requirements  as  they  consider  necessary  in
order  to  guarantee  the  protection  of  the  health  of
individuals;

tobacco  products 

(3)  Whereas, in accordance with Article 100a(3) of the
Treaty, the Commission is obliged, in its proposals
under  paragraph  1  concerning  health,  safety,
environmental protection and consumer protection,
to  take  as  a  base  a  high  level  of  protection;

(4)  Whereas  this  Directive  must  therefore  take  due
account  of  the  health  protection  of  individuals,  in
particular  in  relation  to  young  people,  for  whom
advertising  plays  an  important  role  in  tobacco
promotion;

(5)  Whereas  in  order  to  ensure  the  proper  functioning
of the internal market the Council adopted, on the
basis of Article 100a, Directive 89/622/EEC (4) and
Directive  90/239/EEC (5)  concerning  the  labelling
of tobacco products and the maximum tar yield of
cigarettes, respectively;

(6)  Whereas  advertising  relating  to  medicinal  products
for  human  use 
covered  by  Directive
is 
92/28/EEC (6);  whereas  advertising  relating  to
products  intended  for  use  in  overcoming  addiction
to  tobacco  does  not  fall  within  the  scope  of  this
Directive;

(7)  Whereas 

exclusively 

this  Directive  will  not  apply 

to
communications 
for
intended 
professionals in the tobacco trade, the presentation
of  tobacco  products  offered  for  sale  and  the
indication  of  their  prices,  and,  depending  on  sales
structures,  advertising  directed  at  purchasers  at
tobacco  sales  outlets  and  the  sale  of  third-country
publications  which  do  not  satisfy  the  conditions
laid  down  in  this  Directive,  provided,  however,
that  they  comply  with  Community  law  and  the
Community’s  obligations  at  international  level;
whereas 
is  for  the  Member  States,  where
necessary,  to  take  appropriate  measures  in  these
areas;

it 

(1)  OJ  C  129,  21.5.1992,  p.  5.
(2)  OJ  C  313,  30.11.1992,  p.  27.
(3)  Opinion  of  the  European  Parliament  of  11  February  1992
(OJ  C  67,  16.3.1992,  p.  35),  confirmed  under  the  Article
189b  procedure  on  3  December  1993,  Council  Common
Position  of  12  February  1998  (OJ  C  91,  26.3.1998,  p.  34)
and  Decision  of  the  European  Parliament  of  13  May  1998
(OJ  C  167,  1.6.1998).  Council  Decision  of  22  June  1998.

(8)  Whereas,  given  the  interdependence  between  the
various  forms  of  advertising  —  oral,  written,

(4)  OJ  L  359,  8.12.1989,  p.  1.  Directive  as  amended  by

Directive  92/41/EEC  (OJ  L  158,  11.6.1992,  p.  30).

(5)  OJ  L  137,  30.5.1990,  p.  36.
(6)  OJ  L  113,  30.4.1992,  p.  13.

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or 

rules 

circumventing 

printed,  on  radio  or  television  or  at  the  cinema  —
and  in  order  to  prevent  any  risk  of  distorting
competition 
and
regulations, this Directive must cover all forms and
television
means  of  advertising  apart 
advertising  already  covered  by  Council  Directive
89/552/EEC  of  3  October  1989  on 
the
coordination  of  certain  provisions  laid  down  by
law, regulation or administrative action in Member
television
States 
broadcasting activities (1);

the  pursuit  of 

concerning 

from 

(9)  Whereas  all  forms  of  indirect  advertising  and
sponsorship,  and  likewise  free  distribution,  have
the  same  effects  as  direct  advertising,  and  whereas
they  should,  without  prejudice  to  the  fundamental
principle  of  freedom  of  expression,  be  regulated,
including 
indirect  forms  of  advertising  which,
while not mentioning the tobacco product directly,
use  brand  names,  trade  marks,  emblems  or  other
tobacco
distinctive 
products;  whereas,  however,  Member  States  may
defer  application  of  these  provisions  to  allow  time
for  commercial  practices  to  be  adjusted  and
sponsorship  of  tobacco  products  to  be  replaced  by
other  suitable  forms  of  support;

features  associated  with 

(10)  Whereas, without prejudice to the regulation of the
advertising  of  tobacco  products,  Member  States
remain  free  to  allow  the  continued  use,  under
certain  conditions,  for  the  advertising  of  products
or services other than tobacco products, of a brand
name  which  was  already  in  use  in  good  faith  both
for  such  products  or  services  and  for  tobacco
products  before  this  Directive  entered  into  force;

(11)  Whereas existing sponsorship of events or activities
which  Member  States  may  continue  to  authorise
for a period of eight years after the entry into force
of  this  Directive  ending  not  later  than  1  October
2006 
to
voluntary-restraint  measures  and  decrease  of
expenditure  levels  during  the  transitional  period
should  include  all  means  of  achieving  the  aims  of
sponsorship  as  defined  in  this  Directive;

and  which  will 

subject 

be 

(12)  Whereas  Member  States  must  take  adequate  and
effective 
the
implementation  of  national  measures  adopted
pursuant to this Directive in compliance with their
national legislation,

control  of 

ensure 

steps 

to 

HAVE  ADOPTED  THIS  DIRECTIVE:

Article  1

The objective of this Directive is to approximate the laws,
regulations  and  administrative  provisions  of  the  Member
States  relating  to  the  advertising  and  sponsorship  of
tobacco  products.

Article  2

For  the  purposes  of  this  Directive,  the  following
definitions  shall  apply:

1.  ‘tobacco  products’:  all  products 

intended  to  be
smoked,  sniffed,  sucked  or  chewed  inasmuch  as  they
are  made,  even  partly,  of  tobacco;

2.  ‘advertising’: any form of commercial communication
with  the  aim  or  the  direct  or  indirect  effect  of
promoting  a  tobacco  product,  including  advertising
which,  while  not  specifically  mentioning  the  tobacco
product,  tries  to  circumvent  the  advertising  ban  by
using  brand  names,  trade  marks,  emblems  or  other
distinctive  features  of  tobacco  products;

3.  ‘sponsorship’:  any  public  or  private  contribution  to
an  event  or  activity  with  the  aim  or  the  direct  or
indirect  effect  of  promoting  a  tobacco  product;

4.  ‘tobacco  sales  outlet’:  any  place  where  tobacco

products  are  offered  for  sale.

Article  3

1. Without prejudice to Directive 89/552/EEC, all forms
of  advertising  and  sponsorship  shall  be  banned  in  the
Community.

2. Paragraph  1  shall  not  prevent  the  Member  States
from  allowing  a  brand  name  already  used  in  good  faith
both for tobacco products and for other goods or services
traded  or  offered  by  a  given  undertaking  or  by  different
undertakings  prior  to  30  July  1998  to  be  used  for  the
advertising  of  those  other  goods  or  services.

However,  this  brand  name  may  not  be  used  except  in  a
manner  clearly  distinct  from  that  used  for  the  tobacco
product, without any further distinguishing mark already
used  for  a  tobacco  product.

(1)  OJ  L  298,  17.10.1989,  p.  23.  Directive  as  last  amended  by

Directive  97/36/EC  (OJ  L  202,  30.7.1997,  p.  60).

3.  (a)  Member  States  shall  ensure  that  no  tobacco
product  bears  the  brand  name,  trade  mark,

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emblem  or  other  distinctive  feature  of  any  other
product or service, unless the tobacco product has
already been traded under that brand name, trade
mark,  emblem  or  other  distinctive  feature  on  the
date  referred  to  in  Article  6(1);

(b) the  ban  provided  for  in  paragraph  1  may  not  be
circumvented, in respect of any product or service
placed  or  offered  on  the  market  as  from  the  date
laid  down  in  Article  6(1),  by  the  use  of  brand
names, 
emblems  and  other
distinguishing  features  already  used  for  a  tobacco
product.

trade  marks, 

whereby  persons  or  organisations  with  a  legitimate
interest  under  national 
in  the  withdrawal  of
law 
advertising which is incompatible with this Directive may
take  legal  proceedings  against  such  advertising  or  bring
such  advertising  to  the  attention  of  an  administrative
body  competent  to  give  a  ruling  on  complaints  or  to
institute  the  appropriate  legal  proceedings.

Article  5

To this end, the brand name, trade mark, emblem
and  any  other  distinguishing  feature  of  the
product  or  service  must  be  presented  in  a  manner
clearly  distinct  from  that  used  for  the  tobacco
product.

This  Directive  shall  not  preclude  Member  States  from
laying down, in accordance with the Treaty, such stricter
requirements  concerning  the  advertising  or  sponsorship
of  tobacco  products  as  they  deem  necessary  to  guarantee
the  health  protection  of  individuals.

4. Any free distribution having the purpose or the direct
or indirect effect of promoting a tobacco product shall be
banned.

Article  6

5. This  Directive  shall  not  apply  to:

—  communications intended exclusively for professionals

in  the  tobacco  trade,

—  the  presentation  of  tobacco  products  offered  for  sale
and  the  indication  of  their  prices  at  tobacco  sales
outlets,

—  advertising  aimed  at  purchasers  in  establishments
specialising  in  the  sale  of  tobacco  products  and  on
their  shop-fronts  or,  in  the  case  of  establishments
selling  a  variety  of  articles  or  services,  at  locations
reserved for the sale of tobacco products, and at sales
outlets  which,  in  Greece,  are  subject  to  a  special
system  under  which  licences  are  granted  for  social
reasons  (‘periptera’),

—  the  sale  of  publications  containing  advertising  for
tobacco  products  which  are  published  and  printed  in
third  countries,  where  those  publications  are  not
principally  intended  for  the  Community  market.

Article  4

Member  States  shall  ensure  that  adequate  and  effective
means 
the
implementation  of  national  measures  adopted  pursuant
to  this  Directive.  These  means  may  include  provisions

and  monitoring 

exist  of 

ensuring 

1. Member  States  shall  bring  into  force  the  laws,
regulations,  and  administrative  provisions  necessary  to
comply  with  this  Directive  not  later  than  30  July  2001.
They  shall  forthwith  inform  the  Commission  thereof.

When  Member  States  adopt  these  measures,  they  shall
contain  a  reference  to  this  Directive  or  shall  be
accompanied  by  such  reference  on  the  occasion  of  their
official  publication.  The  methods  of  making  such
reference  shall  be  laid  down  by  Member  States.

2. Member States shall communicate to the Commission
the  text  of  the  main  provisions  of  domestic  law  which
they  adopt  in  the  field  covered  by  this  Directive.

3. Member  States  may  defer  the  implementation  of
Article  3(1)  for:

—  one  year  in  respect  of  the  press,

—  two  years  in  respect  of  sponsorship.

In  exceptional  cases  and  for  duly  justified  reasons,
Member  States  may  continue  to  authorise  the  existing
sponsorship  of  events  or  activities  organised  at  world
level  for  a  further  period  of  three  years  ending  not  later
than  1  October  2006,  provided  that:

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—  the  sums  devoted  to  such  sponsorship  decrease  over

Article  8

the  transitional  period,

—  voluntary-restraint  measures  are  introduced  in  order
to  reduce  the  visibility  of  advertising  at  the  events  or
activities concerned.

This  Directive  shall  enter  into  force  on  the  day  of  its
publication  in  the  Official  Journal  of  the  European
Communities.

Article  7

Article  9

This  Directive  is  addressed  to  the  Member  States.

to 

shall 

submit 

The  Commission 
the  European
Parliament,  the  Council  and  the  Economic  and  Social
Committee not later than 30 July 2001, and subsequently
every  two  years,  a  report  on  the  implementation  of  this
Directive, with particular reference to the implementation
and  effects  of  Article  3(2)  and  (3)  and  Article  6(3).
Where  appropriate,  it  shall  submit  proposals  for  the
adaptation  of 
to  suit  developments
identified  in  the  report.  Such  adaptation  shall  not  affect
the  periods  provided  for  in  Article  6(3).

this  Directive 

Done  at  Brussels,  6  July  1998.

For  the  European  Parliament

For  the  Council

The  President

The  President

J. M.  GIL-ROBLES

R.  EDLINGER