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)
Date: 2001-05-31
Institutions: European Commission
Subjects: advertising, approximation of laws, public health, sponsorship, tobacco, tobacco industry

25.9.2001

EN

Official Journal of the European Communities

C 270 E/97

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 adver-
tising and sponsorship of tobacco products

(2001/C 270 E/12)

(Text with EEA relevance)

COM(2001) 283 final (cid:151) 2001/0119(COD)

(Submitted by the Commission on 20 June 2001)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2), 55 and 95
thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (1),

Whereas:

(3) Article 95(3) of the Treaty requires the Commission in its
proposals for the establishment and functioning of the
Internal Market concerning health to take as a base a
high level of protection. Within their respective powers,
the European Parliament and the Council also seek to
achieve this objective. The legislation of
the Member
States to be approximated is intended to protect public
health by regulating the promotion of
tobacco, an
addictive product responsible for over half a million
deaths in the Community annually, avoiding that young
people begin smoking at an early age as a result of
promotion and become addicted.

(4) The circulation in the Internal Market of publications such
as periodicals, newspapers and magazines is subject to an
appreciable risk of obstacles to free movement as a result
of Member States’
laws, regulations and administrative
provisions which prohibit or regulate tobacco advertising
to ensure free circulation
in that medium.
throughout the Internal Market for all such media, it is
necessary to limit tobacco advertising therein to those
magazines and periodicals which are not
intended for
the general public such as trade journals and to publi-
cations published and printed in third countries, which
are not principally intended for the Community market.

In order

(1) There are differences between the Member States’

the Treaty applies. The differences

laws,
regulations and administrative provisions on the adver-
tising of tobacco products and related sponsorship. Such
advertising and sponsorship in certain cases crosses the
borders of the Member States or involves events organised
level, and are activities to which
on an international
Article 49 of
in
legislation are likely to give rise to increasing
national
barriers to the free movement between Member States
of the products or services that serve as the support for
In the case of press
such advertising and sponsorship.
advertising,
been
already
have
certain
In the case of sponsorship, distortions of
encountered.
the conditions of competition are likely to increase and
have already been noted as regards the organisation of
certain major sporting and cultural events.

obstacles

(5) The laws, regulations and administrative provisions of the
Member States relating to certain types of sponsorship for
the benefit of tobacco products with cross-border effects
give rise to an appreciable risk of distortion of
the
conditions of competition for this activity within the
Internal Market. In order to eliminate these distortions,
is necessary to prohibit such sponsorship only for
it
those
effects,
regulating sponsorship on a purely national
without
level, which otherwise may be a means of circumventing
the restrictions placed on direct forms of advertising.

events with cross-border

activities or

(2) Those barriers should be eliminated and, to this end, the
rules relating to the advertising of tobacco products and
related
be
In particular, there is a need to specify
approximated.
the extent
to which tobacco advertising in certain
categories of publications is allowed.

sponsorship

specific

should

cases

in

(1) Opinion of the European Parliament of . . .

(6) Use of information society services is a means of adver-
tising tobacco products which is increasing as public
consumption and access to such services increases. Such
services, as well as radio broadcasting, which may also be
transmitted
are
particularly attractive and accessible to young consumers.
Tobacco advertising by both these media has, by its very
nature, a cross-border character, and should be regulated
at the Community level.

information

services,

society

via

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EN

Official Journal of the European Communities

25.9.2001

(7) Free distribution of

tobacco products

to
restriction in several Member States, given its high
free distribution
potential to create addiction. Cases of
have occurred in the context of
the sponsorship of
events having cross-border effects and should therefore
be prohibited.

subject

is

(8) Internationally applicable standards

for advertising of
tobacco products and related sponsorship are the subject
of negotiations for the drafting of a World Health Organi-
sation Framework Convention on Tobacco Control. These
negotiations are intended to create binding international
rules complementary to those contained in this Directive.

(9) The implementation of

this Directive in the Member
States and the identification of further obstacles to the
smooth operation of the Internal Market should be the
subject of review. To that end, provision should be made
for the Commission to draw up a report, accompanied if
appropriate by necessary proposals. Provision should be
made in the relevant Community programmes to monitor
the effects of this Directive on public health.

(10) Member States should take adequate and effective steps to
ensure control of the implementation of measures adopted
to this Directive in compliance with their
pursuant
national
in Commission
legislation, as provided for
Communication to the European Parliament and the
Council on the
in implementing
role of penalties
legislation (1) and in the
Community Internal Market
Council Resolution of 29 June 1995 on the effective
uniform application of Community law and on the
penalties applicable for breaches of Community law in
should include
the
provision for intervention of persons or organisations
with legitimate interest in the suppression of activities
that are not in conformity with this Directive.

Internal Market (2). Such means

(11) The sanctions provided for under this Directive should be
remedy

sanction or

without prejudice to any other
provided under national law.

(12) Advertising relating to medicinal products for human use
is covered by Council Directive 92/28/EEC of 31 March
1992 on the advertising of medicinal products for human
use (3). Advertising relating to products intended for use in
overcoming addiction to tobacco does not fall within the
scope of this Directive.

(13) This Directive should be without prejudice to Council
Directive 89/552/EEC of 3 October 1989 on the coor-

(1) COM(95) 162 final.
(2) OJ C 188, 22.7.1995, p. 1.
(3) OJ L 113, 30.4.1992, p. 13.

dination of certain provisions laid down by law, regulation
or administrative action in Member States concerning the
television broadcasting activities (4), which
pursuit of
prohibits all forms of television advertising for cigarettes
tobacco products. Directive 89/552/EEC
and other
provides
television programmes may not be
sponsored by natural or legal persons whose principal
activity is the manufacture or sale of products, or the
provision of
advertising of which is
prohibited by that Directive. Teleshopping for tobacco
products is also prohibited by Directive 89/552/EEC.

services,

that

the

the Member

provisions
misleading

(14) The trans-national character of advertising is recognised
by Council Directive 84/450/EEC of 10 September 1984
relating to the approximation of the laws, regulations and
States
administrative
Directive
concerning
2001/37/EC of . . . 2001 on the approximation of the
laws, regulations and administrative provisions of
the
Member States concerning the manufacture, presentation
and sale of tobacco products contains provisions on the
use of misleading descriptions on the labelling of tobacco
products, the cross-border effect of which has also been
recognised.

of
advertising (5).

(15) 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 (6) was annulled by the Court of
Justice in Case C-376/98 Federal Republic of Germany v
and Council of
European Parliament
the European
Union (7). References
to Directive 98/43/EC should
therefore be construed as references to this Directive.

(16) In accordance with the principle of proportionality, it is
necessary and appropriate for the achievement of
the
basic objective of the proper functioning of the Internal
Market to lay down rules on the advertising of tobacco
products and related sponsorship. This Directive does not
is necessary in order to achieve the
go beyond what
objectives
third
paragraph of Article 5 of the Treaty.

accordance with

pursued

the

in

(17) This Directive

respects

fundamental

and
the
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.
In particular, this Directive seeks to ensure respect for
the fundamental right of freedom of expression,

rights

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

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

(5) OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive

97/55/EC (OJ L 290, 23.10.1997, p. 18).

(6) OJ L 213, 30.7.1998, p. 9.
(7) [2000] ECR I-8419.

25.9.2001

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Official Journal of the European Communities

C 270 E/99

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter and scope

Advertising that is not permitted in the press and other
2.
printed publications shall not be permitted in information
society services.

This Directive approximates the laws, regulations and adminis-
trative provisions of the Member States relating to the adver-
tising of tobacco products and their promotion:

Article 4

Radio advertising and sponsorship

(a)

in the press and other printed publications;

(b) in radio broadcasting;

(c)

in information society services; and

(d) through tobacco related sponsorship,
distribution of tobacco products.

including the free

is intended to ensure the free movement of

It
the media
concerned and related services, and to eliminate obstacles to
the operation of the Internal Market.

Article 2

Definitions

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

(a)

(cid:145)Tobacco products(cid:146) means all products intended to be
smoked, sniffed, sucked or chewed inasmuch as they are
made, even partly, of tobacco;

(b) (cid:145)Advertising(cid:146) means any form of commercial communi-
indirect effect of

cations with the aim or direct or
promoting a tobacco product;

(c)

(cid:145)Sponsorship(cid:146) means any form of public or private
contribution to any event, activity or individual with the
aim or direct or indirect effect of promoting a tobacco
product;

(d) (cid:145)Information society services(cid:146) means services within the
the
meaning of Article 1(2) of Directive 98/34/EC of
European Parliament and of the Council (1).

Article 3

Advertising in printed media and information society
services

Advertising in the press and other printed publications
1.
shall be limited to publications
intended exclusively for
professionals in the tobacco trade and to publications which
are published and printed in third countries, where those publi-
cations are not principally intended for the Community market.

Other advertising in the press and other printed publications
shall be prohibited.

(1) OJ L 204, 21.7.1998, p. 37.

All forms of radio advertising for tobacco products shall

1.
be prohibited.

2.
Radio programmes may not be sponsored by under-
takings whose principal activity is the manufacture or sale of
tobacco products.

Article 5

Sponsorship of events

1.
Sponsorship of events or activities involving or taking
place in several Member States or otherwise having cross-
border effects shall be prohibited.

2.
Any free distribution of tobacco products in the context
of the sponsorship of the events referred to in paragraph 1
having the purpose or the direct or indirect effect of promoting
such products shall be prohibited.

Article 6

Report

the Commission shall

No later than five years after the date of entry into force of this
to the
Directive,
European Parliament,
the Council and the Economic and
Social Committee on its implementation. That report shall be
accompanied by any proposals
to this
Directive which the Commission deems necessary.

submit a report

for amendments

Article 7

Enforcement

Member States shall lay down the rules on penalties applicable
to infringements of the national provisions adopted pursuant to
this Directive and shall take all measures necessary to ensure
that they are implemented. The penalties provided for must be
effective, proportionate and dissuasive. The Member States shall
notify those provisions to the Commission by the date specified
in Article 10 at the latest and shall notify it without delay of
any subsequent amendment affecting them.

Those rules shall include provisions ensuring that persons or
organisations which, according to the national legislation, can
justify a legitimate interest in the suppression of advertising,
related sponsorship or other matters incompatible with this
Directive, may take legal action against such advertising or
sponsorship or bring such advertising or sponsorship to the
attention of an administrative body competent either
to
pronounce on complaints or to institute the appropriate legal
proceedings.

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Official Journal of the European Communities

25.9.2001

Article 8

Free circulation of products and services

Member States shall not prohibit or restrict the free circulation
of products or services which comply with this Directive.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

Article 9

References to Directive 98/43/EC

References
references to this Directive.

to Directive 98/43/EC shall be construed as

Article 11

Entry into force

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

Article 10

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by 31 July 2005 at the latest. They shall forthwith
inform the Commission thereof.

Article 12

Addressees

This Directive is addressed to the Member States.