Report from the Commission to the Council, the European Parliament and the European Economic and Social Committee - Report on the implementation of the tobacco advertising directive (2003/33/EC)
Date: 2008-05-28
Institutions: European Commission
Subjects: advertising, approximation of laws, report, sponsorship, tobacco

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.5.2008 
COM(2008) 330 final 

REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

Report on the implementation of the Tobacco Advertising Directive (2003/33/EC) 

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REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN 
PARLIAMENT AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

Report on the implementation of the Tobacco Advertising Directive (2003/33/EC) 

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1. 

2. 

3. 

4. 

Introduction .................................................................................................................. 4 

Background .................................................................................................................. 4 

Transposition by Member States.................................................................................. 5 

Implementation by Member States .............................................................................. 6 

4.1. 

Print media ................................................................................................................... 6 

4.1.1.  The term "printed publications" ................................................................................... 6 

4.1.2.  Transposition by Member States.................................................................................. 6 

4.1.3. 

Implementation ............................................................................................................ 6 

4.2. 

Information society services ........................................................................................ 7 

4.2.1.  Transposition by Member States.................................................................................. 7 

4.2.2. 

Implementation ............................................................................................................ 8 

4.3. 

Sponsorship issues ....................................................................................................... 9 

4.3.1.  Transposition................................................................................................................ 9 

4.3.2.  Sponsorship of events .................................................................................................. 9 

4.3.3.  Tobacco promotion in films ....................................................................................... 10 

4.3.4.  Corporate promotion .................................................................................................. 10 

4.4. 

4.5. 

Penalties ..................................................................................................................... 11 

Access to justice......................................................................................................... 11 

4.5.1.  Transposition by Member States................................................................................ 11 

4.5.2. 

Implementation .......................................................................................................... 11 

4.6. 

Cross-border enforcement.......................................................................................... 12 

5. 

Conclusions ................................................................................................................ 13 

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1. 

INTRODUCTION 

In accordance with Article 6 of the Tobacco Advertising Directive1 (hereinafter 'the 
Directive'),  this  report  on  the  implementation  of  the  Directive  is  submitted  by  the 
Commission  to  the  European  Parliament,  the  Council  and  the  European  Economic 
and Social Committee. 

The Directive does not make provision for a Committee to help the Commission with 
monitoring,  exchange  of  information  or  cooperation  in  the  implementation  of  the 
Directive  between  Member  States  and  the  Commission.  In  order  to  exchange 
information on the implementation of the Directive, the Commission established an 
informal group of Member State liaison officials on tobacco advertising.  

Feedback from discussions in this group shows that the competent enforcement and 
control  authorities  in  Member  States  are  willing  to  have  a  forum  to  exchange 
information  and  share  best  practices  on  the  implementation  of  the  Directive.  Since 
the deadline for transposition of the Directive (31 July 2005), the group has met four 
times.  

This report is based on information received by the Commission from the competent 
authorities  in  Member  States  through  the  above-mentioned  group,  from  citizens, 
from  non-governmental  organisations  and  from  observations  of  the  services  of  the 
Commission.  

Given  the  short  period  of  time  since  the  transposition  of  the  Directive,  including 
delays  in  some  Member  States,  it  is  too  early  to  evaluate  the  effectiveness  of  this 
Directive  on  public  health.  However,  it  is  expected  that  the  comprehensive  cross-
border advertising ban introduced by the Directive will help to reduce the prevalence 
of  smoking  within  the  European  Union  in  the  long  run,  as  such  an  effect  is  a 
recognised outcome of comprehensive tobacco advertising bans2. 

2. 

BACKGROUND 

The scope of the Directive (2003/33/EC) results from the Court’s finding that the EU 
could legitimately only introduce a ban on certain types of tobacco advertising and 
sponsorship  with  cross-border  implications  on  the  basis  of  Article  95  of  the  EC 
Treaty (internal market)3.  

The  Directive  regulates  tobacco  advertising  and  sponsorship  with  cross-border 
implications in the media other than television. On 12 December 2006 the Court of 
Justice  confirmed  the  validity  of  the  Directive4.  The  Court  held  that  the  conditions 

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Directive  2003/33/EC  on  the  approximation  of  the  laws,  regulations  and  administrative  provisions  of 
the  Member  States  relating  to  the  advertising  and  sponsorship  of  tobacco  products,  OJ  L  152, 
20.6.2003, p. 16. 
See  e.g.  the  World  Bank  Publication  "Curbing  the  epidemic:  Governments  and  the  Economics  of 
Tobacco Control (1999)", p. 50-51. 
Case C-376/98 Germany v. European Parliament and the Council, judgment of 5 October 2000. 
Case C-380/03 Germany v. European Parliament and the Council, judgment of 12 December 2006. 

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warranting  the  choice  of  Article  95  of  the  EC  Treaty  as  the  legal  basis  were  met. 
Notably,  the  Court  held  that  journalistic  freedom  of  expression,  as  such,  remains 
unimpaired and the editorial contributions of journalists are therefore not affected5. 

Tobacco  advertising  and  sponsorship  on  television  is  banned  by  the  Television 
Without Frontiers Directive (89/552/EEC). This will be replaced by the Audiovisual 
Media Services Directive adopted in December 2007, which extends the application 
of  this  ban  to  all  forms  of  audiovisual  commercial  communications,  including 
product placement.6  

In  the  context  of  the  Framework  Convention  on  Tobacco  Control  (FCTC),  the 
European Community is active in the development of strict international guidelines 
to protect its population against tobacco advertising from third countries. The EC is a 
key  facilitator  in  the  working  group  whose  task  is  to  develop  comprehensive  draft 
guidelines  on  the  implementation  of  Article  13  of  the  Convention7  and  to  present 
recommendations  on  key  elements  of  a  protocol  on  cross-border  advertising, 
promotion and sponsorship, which would be complementary to these guidelines. 

3. 

TRANSPOSITION BY MEMBER STATES  

The  deadline  for  bringing  into  force  the  laws,  regulations  and  administrative 
provisions to comply with the Directive was 31 July 2005.  

Most  Member  States  met  this  deadline.  However,  a  few  Member  States  did  not 
transpose  the  Directive  in  time  and  the  Commission  opened  infringement 
proceedings  against 
in  question  subsequently 
communicated  their  measures  to  transpose  the  Directive  and  the  Commission  was 
able to close these cases during the first half of 2006, with the exception of Germany, 
whose transposal measures were communicated in December 2006. 

them.  The  Member  States 

As a result, by the end of 2006 all Member States had communicated their laws and 
regulations  to  transpose  the  Directive.  However,  scrutiny  of  the  transposition 
measures revealed that a few Member States originally introduced exemptions from 
the  sponsorship  ban  for  certain  big  events  of  great  economic  interest  (such  as 
Formula  One  and  motor  cycle  GP).  The  Commission  swiftly  proceeded  with 
infringement  cases  against  these  Member  States.  As  all  Member  States  rapidly 
changed  their  legislation  following  the  Commission's  intervention,  the  Commission 
was able to close the infringement cases.  

In general the tobacco advertising and sponsorship bans in Member States are wider 
than and/or go beyond the bans laid down in the Directive and apply also to activities 
at local level, such as advertising in cinemas or at points of sale, sponsorship of all 
events and free distribution.  

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Paragraph 156 of the judgment. 
Directive 2007/65/EC, OJ L 332, 18.12.2007, p.27. 
Article  13  of  the  Convention  lays  down  the  obligations  of  the  Parties  to  ban  or  restrict  tobacco 
advertising, promotion and sponsorship. 

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This is in line with the Council Recommendation on the prevention of smoking and 
on  initiatives  to  improve  tobacco  control8.  This  Recommendation  invites  Member 
States to prohibit, in accordance with national constitutional principles, any forms of 
advertising,  sponsorship  or  practices  directly  or  indirectly  addressed  to  promote 
tobacco products. 

All  Member  States  have  fully  transposed  the  Directive.  The  Commission  is  not 
aware of any transposition gaps at the legislative level.  

4. 

IMPLEMENTATION BY MEMBER STATES 

4.1. 

Print media 

4.1.1.  The term "printed publications" 

Article 3(1) obliges Member States to ban tobacco advertising in the press and other 
printed publications. There are two exceptions: professionals in the tobacco trade and 
publications  which  are  printed  and  published  in  third  countries,  where  those 
publications are not principally intended for the Community market. 

The Court of Justice has clarified that the term ‘printed publications’ used in Article 
3(1)  of  the  Directive  covers  publications  such  as  newspapers,  periodicals  and 
magazines. The Court has stressed that the rationale of Article 3(1) is to ensure free 
circulation  throughout  the  internal  market  for  all  such  media,  and  therefore  it  is 
necessary  to  limit  tobacco  advertising  therein  to  those  magazines  and  periodicals 
which  are  not  intended  for  the  general  public  (the  fourth  recital  of  the  Directive). 
Thus,  the ban does not cover bulletins produced by  local associations,  programmes 
for  cultural  events,  posters, 
leaflets  and 
prospectuses9. 

telephone  directories  and  various 

4.1.2.  Transposition by Member States 

Member  States  have  fully  transposed  Article  3(1)  of  the  Directive.  Most  of  the 
Member  States  have  done  this  by  adopting  a  general  ban  covering  all  forms  of 
tobacco advertisement, promotion and sponsorship. Thus, in most Member States the 
ban covers also publications of a local nature and thus has a wider scope than Article 
3(1). 

All  Member  States  also  apply  the  two  exceptions  allowed  by  Article  3(1)  of  the 
Directive.  

4.1.3. 

Implementation 

In  general,  the  ban  on  tobacco  advertising  in  print  media  is  complied  with. 
Traditional  cigarette  brand  advertisements  appear  to  be  absent  from  publications 
intended  for  the  general  public.  However,  print  media  within  the  EU  is  not  yet 
completely free from tobacco advertising and promotion.  

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No 2003/54/EC, OJ L 22, 25.1.2003, p.31. 
See Case C-380/03 Germany v. European Parliament and the Council, paragraphs 84-86. 

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Tobacco advertising may take the form of references in press stories and print media 
content.  Experience  shows  that  such  references  may  either  be  coincidental  or 
organised.  For  example,  tobacco  brand  logos  were  inserted  in  the  background  of 
fashion photos in a fashion magazine. Tobacco brand emblems with reverse colours 
as  well  as  graphical  tobacco  logos  were  used  besides  the  editorial  content.  This 
indicated  that  the  display  of  tobacco  brand  logos  in  the  background  was  organised 
and not coincidental. 

In addition, tobacco advertising has occasionally been spotted in catalogues at certain 
points of sale. Typical examples are tax-free shop catalogues on cross-border vessels 
and in-flight magazines.  

Furthermore,  tobacco  advertisements  are  often  visible  in  news  images  (e.g.  from 
sports  events)  from  third  countries  where  tobacco  sponsorship  of  events  and 
activities is still legal. The scope of this problem will depend on how well the Parties 
of  the  FCTC  implement  the  comprehensive  ban  on  tobacco  advertising,  promotion 
and  sponsorship  in  events  in  line  with  its  Article  13.  The  Commission  is  closely 
involved in the international efforts to enhance speedy and effective implementation 
of this Article.  

The Directive exempts publications that are intended exclusively for professionals in 
the  tobacco  trade.  The  Commission  has  been  informed  about  advertisements 
published  by  several  tobacco  companies  in  magazines  targeted  at  the  ‘hospitality’ 
business  in  general  (hotels,  restaurants,  cafes,  bars,  etc.)  on  the  grounds  that  these 
magazines are aimed at persons working in the tobacco trade.  

In  general,  the  implementation  of  Article  3(1)  of  the  Directive  is  satisfactory:  no 
traditional cigarette brand advertisements in press and other printed publications 
in the sense of Article 3(1) of the Directive have been reported to the Commission.  

4.2. 

Information society services 

4.2.1.  Transposition by Member States 

Article  3(2)  of  the  Directive  extends  the  advertising  ban  in  printed  media  to 
information  society  services10.  In  other  words,  Member  States  also  need  to  ban 
tobacco  advertising  in  information  society  services,  with  the  same  exceptions  as 
those  for  printed  media  (publications  intended  exclusively  for  professional  traders; 
publications printed and published in third countries and not principally intended for 
the Community market).  

Member States have transposed this obligation either by adopting a general ban or by 
introducing a specific ban covering information society services.  

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Article  2(d)  of  Directive  2003/33/EC  defines  information  society  services  as  "services  within  the 
meaning of Article 1(2) of Directive 98/34/EC", OJ L 204, 21.7.1998, p.37, Directive as amended by 
Directive 98/48/EC, OJ L 217, 5.8.1998, p.18. Directive 98/48/EC defines information society services 
as:  "any  service  normally  provided  for  remuneration,  at  a  distance,  by  electronic  means  and  at  the 
individual request of the recipient of services". 

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Most Member States also apply the above-mentioned exemptions of Article 3(1) to 
material posted on the internet. 

4.2.2. 

Implementation 

Virtual  environment  is  the  most  common  cross-border  platform  for  tobacco 
advertising  and  the  biggest  challenge  for  the  effective  implementation  of  the  EU 
advertising  ban.  The  pace  of  change  of  communication  technologies  provides  for  a 
variety  of  platforms  for  tobacco  advertising  and  sponsorship.  The  challenge  is  also 
well-known in areas such as child pornography, arms trade and terrorism. 

Elements of tobacco advertising and promotion are regularly inserted into a variety 
of  digital  media  contents,  including  internet  sales  of  tobacco  and  specialised 
communication  applications  that  function  in  the  virtual  environment.  In  addition, 
promotional  material  primarily  designed  for  other  platforms  –  such  as  print  media 
and various events – is often made readily available through the internet as well.  

The  key  challenge  of  implementing  the  tobacco  advertising  ban  in  the  virtual 
environment is how to recognise covert forms of advertising. Tobacco advertising in 
the internet is normally not advertising in the traditional sense, but takes a variety of 
forms, mostly indirect.  

For  instance,  buying  tobacco  through  the  internet  has  become  easier  and  more 
common. The Directive does not cover the sale of tobacco products, but the websites 
selling tobacco often involve an element of promotion (“buy cheap”). The problem is 
not only linked to advertising bans but also includes sales to minors, tax evasion and 
unfettered  advertising,  marketing  and  promotion.  Some  Member  States  have  made 
retail sale of tobacco subject to a licence that may be granted only to vendors with a 
fixed retail sale outlet.  

Cross-border selling of tobacco via the web is in almost all cases completely illegal 
for fiscal reasons, as the vendors generally do not respect the obligation to pay excise 
duty and VAT in the Member State of destination. 

Another challenge is the number of entities involved in the virtual environment and 
their  identification.  Almost  anybody  (citizens,  traders,  smoker  organisations)  may 
produce advertising and promotional content, post it on the internet and thus make it 
available worldwide11 . 

The  international  dimension  poses  the  biggest  challenge  in  terms  of  implementing 
the  tobacco  advertising  ban  in  the  virtual  environment.  Servers  hosting  the 
advertising content may be located in another Member State or in third countries.  

Practice has shown that it may be difficult to identify the natural or legal person who 
put  the  material  on-line.  This  person  might  rapidly  close  up  the  site  and  reopen  it 
elsewhere.  This  is  further  discussed  in  the  context  of  cross-border  enforcement  in 
Section 4.6 below. 

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For example, a website of a student network displaying tobacco brand logos attached to pictures taken 
from a student party. 

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As  regards  third  countries,  guidelines  and  upcoming  decisions  of  the  Third 
Conference  of  Parties  under  the  FCTC  are  expected  to  improve  exchanges  of 
information with third countries.  

The  virtual  environment  is  one  of  the  most  common  cross-border  platforms  for 
tobacco advertising. The major challenge here is the covert nature of advertising 
and the difficulty in identifying and reaching the persons behind such advertising, 
especially in so far as they establish themselves in third countries.  

4.3. 

Sponsorship issues 

4.3.1.  Transposition 

Article  5(1)  of  the  Directive  obliges  Member  States  to  ban  tobacco  sponsorship  of 
events or activities taking place in several Member States or otherwise having cross-
border  effects.  Most  Member  States  have  banned  sponsorship  of  not  only  cross-
border events, but also local events.  

Article  5(2)  of  the  Directive  obliges  Member  States  to  ban  any  free  distribution  of 
tobacco products in the context of cross-border events. Many Member States have a 
total ban on free distribution of tobacco products, i.e. not only in the context of cross-
border events as required by the Directive. 

4.3.2. 

Sponsorship of events 

The ban on tobacco sponsorship of cross-border events is well implemented within 
the EU. Shortly after the transposition deadline the Commission found problems in 
those  countries  that  still  maintained  exemptions  to  enable  sponsorship  at  certain 
sports events.  

However,  tobacco  sponsorship  arrangements  within  the  EU  have  not  completely 
stopped.  Instead,  they  have  taken  indirect  and  more  insidious  forms  that  pose  a 
challenge to the enforcement authorities in Member States. There are indications of 
exclusive selling arrangements and free distribution of tobacco products at festivals 
for  young  people.  There  are  also  attempts  to  glamorise  tobacco  products  by 
associating  them  with  events,  festivals,  celebrity  artists,  movie  stars  and  different 
products  in  various  ways,  e.g.  colours,  shapes,  de-branded  logos,  emblems,  font 
faces, fun phrases, words, designs, modified brand names or other campaigns.  

Tobacco advertising and sponsorship is still visible in media coverage received from 
third  countries  which  allow  it.  Such  advertising  and  sponsorship  is  not  covered  by 
the  Directive,  but  it  risks  undermining  the  EU  ban.  The  most  visible  events  are 
famous sports and cultural events that get wide media attention, such as Formula One 
races12. The Audiovisual Media Services Directive (2007/65/EC), which now clearly 

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Article  13  of  the  FCTC  requires  each  Party  to  prohibit  tobacco  sponsorship  of  international  events, 
activities  and/or  participants  therein.  The  only  exception  is  adherence  to  constitutional  principles,  in 
which case restrictions must be applied.  

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prohibits  product  placement  for  tobacco  products,  could  be  relevant  in  such  cases 
after its transposition deadline of 19 December 2009.13  

Visibility of tobacco advertising and sponsorship in motor sports races has shown a 
diminishing trend in recent years. Only three countries organising Formula One races 
allowed  tobacco  sponsorship  during  the  2006-2007  season:  China,  Bahrain  and 
Monaco.  

4.3.3.  Tobacco promotion in films 

While  sponsorship  of  events  is  often  concrete  and  visible,  sponsorship  of  other 
activities  is  more  hidden.  It  might  be  difficult  to  find  evidence  of  whether  a 
sponsorship  arrangement  exists  or  not.  This  requires  investigation  and  additional 
resources. 

Although the Directive does not expressly address smoking in films, it bans tobacco 
sponsorship  of  cross-border  activities.  Direct  or  indirect  promotion  of  tobacco 
products  in  films  could  fall  within  the  notion  of  sponsorship  of  cross-border 
'activities' forbidden under Article 5(1) of the Directive if a contribution by a tobacco 
company is given to the film producer or actor. Thus, tobacco sponsorship in films 
and DVDs is illegal under EU law.  

4.3.4.  Corporate promotion  

One  of  the  remaining  common  marketing  practices  is  to  advertise  the  tobacco 
manufacturer with a positive image as a responsible market operator. Even if brands 
are  not  directly  presented,  such  corporate  promotion  is  a  method  of  marketing  the 
company's reputation and its products. 

Corporate  promotion  may  happen 
through  a  paid  advertisement,  usually 
accompanied  by  messages  about  the  excellent  quality  of  raw  materials,  use  of 
technologies,  responsible  concerns  about  product  safety  or  social 
modern 
responsibility of the company. In some Member States such practices are subject to a 
fine. 

One  method  for  such  promotion  is  corporate  social  responsibility  (CSR)  reports 
published  in  corporate  websites.  Companies  seek  to  reinforce  their  reputation  by 
drawing  attention  to  their  "socially  responsible"  business  practices,  e.g.  relating  to 
employment or environmental stewardship. 

Since the full transposition of the Directive by Member States, the Commission has 
not  observed  or  been  informed  about  direct  tobacco  sponsorship  of  cross-border 
events organised within the EU. However, different forms of indirect sponsorship 
pose a challenge to the enforcement authorities in Member States.  

13 

At present indirect television advertising resulting from appearance of screen hoardings visible during 
the retransmission of sporting events does not constitute a separate broadcast announcement in order to 
promote  goods  or  services  within  the  meaning  of  the  Television  Without  Frontiers  Directive 
(89/552/EEC) and thus does not amount to 'television advertising' in the sense of the Directive. 

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Work needs to be done within the FCTC in order to prevail on third countries to 
adopt comprehensive tobacco sponsorship bans. 

Corporate  promotion  still  exists  as  a  cross-border  method  to  market  tobacco 
products.  There  is  a  need  to  streamline  ways  in  which  different  Member  States 
address such cases.  

4.4. 

Penalties 

Article  7,  first  paragraph,  of  the  Directive  requires  that  penalties  be  effective, 
proportionate and dissuasive. Most Member States use criminal law sanctions (fines 
and, in more serious cases, jail sentences). Sanctions of an administrative nature are 
also generally applicable, such as warnings and administrative decisions to stop and 
not repeat the advertising with the threat of a periodic penalty payment. 

Practice has shown that the enforcement authorities in Member States are able to stop 
most of the dubious practices by administrative means (contacts, meetings, warnings, 
administrative  decisions).  Therefore,  penalties  have  a  proven  deterrent  effect  and 
court proceedings are needed only in a few controversial cases.  

Administrative  enforcement  is  successfully  employed.  Criminal  penalties  have  a 
deterrent effect and court proceedings are needed in a few controversial cases. 

4.5. 

Access to justice 

4.5.1.  Transposition by Member States 

Article  7,  second  paragraph,  of  the  Directive  obliges  Member  States  to  provide  for 
access  to  justice  for  persons  or  organisations  which,  under  national  legislation,  can 
justify a legitimate interest in the suppression of tobacco advertising or sponsorship. 
This may involve bringing a case directly before a court, or making a complaint to an 
administrative body that has the power to make an administrative decision or to bring 
about legal proceedings.  

Member States either apply the general procedural rules on access to justice or have 
adopted a specific access to justice regime for tobacco control purposes. 

4.5.2. 

Implementation 

Article  7,  second  paragraph,  involves  two  ways  of  activating  legal  proceedings: 
through  competent  authorities  and  through  civil  activity.  Implementation  of  this 
Article  varies:  in  some  Member  States  government  action  is  the  primary  means, 
mostly  through  specialised  government  agencies,  while  some  Member  States  rely 
more on NGOs' action, mostly through direct litigation and precedents in courts. 

NGOs in the field consist of many specialised organisations, such as cancer groups, 
health  and  medical  organisations  as  well  as  specific  tobacco  control  organisations. 
Action by consumer groups is also essential to achieve good implementation of the 
Directive.  

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Enforcement  is  ensured  by  specialised  government  agencies  and  by  providing 
direct  access  to  legal  proceedings  for  non-governmental  organisations.  The 
Commission  has  received  no  complaints  about  difficulties  in  gaining  access  to 
justice  in  Member  States  for  the  suppression  of  tobacco  advertising  and 
sponsorship.  

4.6. 

Cross-border enforcement 

The  Directive  does  not  contain  any  provision  concerning  cooperation  between  the 
enforcement authorities in Member States. However, modern media platforms do not 
recognise  national  borders.  In  the  absence  of  an  effective  enforcement  mechanism, 
possibilities to detect, investigate and bring about the cessation of illegal advertising 
are  limited.  This  enables  wrongdoers  to  evade  enforcement  attempts  by  relocating 
themselves.  

Practice shows that Member States are willing to learn from approaches developed in 
other Member States to similar problems, specifically cases solved by administrative 
or legal interventions. When faced with a cross-border advertising problem, Member 
States  could  share  best  practices  and  request  enforcement  assistance  from  other 
Member States. For this purpose, the Commission has  taken  the  first  steps towards 
facilitating the exchange of information between contact points in Member States.  

Mechanisms for cross-border enforcement have already been developed in consumer 
matters.  The  Regulation  on  Consumer  Protection  Cooperation14  establishes  a 
framework for mutual assistance which covers the exchange of information, requests 
for enforcement measures and coordination of market surveillance and enforcement 
activities.  This  mechanism  is  already  applicable  to  certain  Directives  on  consumer 
protection that could be relevant for tobacco advertising and promotion particularly 
in the internet15. 

The  Commission  will  explore  the  possibility  of  making  the  cross-border 
enforcement  mechanism  in  the  Regulation  on  Consumer  Protection  Cooperation 
applicable to the Tobacco Advertising Directive. 

The  Commission  invites  the  Member  States  to  designate  enforcement  liaison 
offices,  exchange  information,  take  all  necessary  enforcement  measures  to  bring 
about the cessation of any infringement and respond without delay to enforcement 
requests of other Member States.  

The EC should support the development of a similar mechanism in the context of 
implementation of Article 13 of the FCTC. 

14 
15 

Regulation (EC) No 2006/2004, OJ L 364, 9.12.2004, p.1. 
Directive 97/7/EC, OJ L 144, 4.6.1997, p.19 ('Distance Selling Directive') and Directive 2005/29/EC, 
OJ L 149, 11.6.2005, p.22 (‘Unfair Commercial Practices Directive’). This Directive bans misleading 
actions and misleading omissions, e.g. false claims of "tax free" (Article 6 and 7). These Directives also 
require  that  the  consumer  is  informed  on  the  identity  and  the  address  of  the  trader  and  on  the  price 
inclusive taxes (Article 4 of the Distance Selling Directive and Article 7(4) of the Unfair Commercial 
Practices Directive). 

EN 

12 

   EN 

 
                                                 
5. 

CONCLUSIONS 

On the basis of the information available to the Commission, it can be concluded that 
the laws to transpose the Directive are in place and are well implemented. In general, 
Member States have wider advertising and sponsorship bans than those required by 
the Directive. 

Following the introduction of the EU-wide ban, traditional tobacco brand advertising 
and  direct  sponsorship  of  a  cross-border  nature  has  ceased  within  the  European 
Union. 

On  the  other  hand,  there  are  indications  that  tobacco  promotion  has  intensified  in 
local  merchandising  and  at  points  of  sale,  especially  in  Member  States  that  either 
allow it or do not effectively control it.  

The  Directive  is  wide  enough  to  cover  changing  patterns  of  cross-border  tobacco 
advertising and sponsorship. On the other hand, it leaves ample discretion to Member 
States  in  its  interpretation  and  application.  There  is  a  risk  of  inconsistent 
interpretation and application of the Directive in different Member States.  

There  is  a  need  to  continue  to  streamline  monitoring  and  provide  guidance  to 
Member States so as to avoid differences of interpretation, on the basis of a common 
approach to be defined in consultation with MS authorities and experts.  

Mechanisms for cross-border enforcement need to be developed and strengthened.  

Virtual  environment  is  the  big  challenge.  It  is  difficult  to  control  because  of  the 
covert  nature  of  advertising  and  the  fact  that  the  wrongdoers  can  easily  relocate 
themselves. 

At this point in time, the Commission does not see any need to propose to amend the 
Directive.  

EN 

13 

   EN