CELEX: 51991PC0111
Language: en
Date: 1991-06-06
Title: MODIFIED PROPOSAL FOR A COUNCIL DIRECTIVE ON ADVERTISING FOR TOBACCO PRODUCTS

27. 6. 91                               Official Journal of the European Communities                              No C 167/3
                                                                II
                                                        (Preparatory Acts)
                                                   COMMISSION
                     Amended proposal for a Council Directive on advertising for tobacco products (')
                                                          (91/C 167/03)
                                                 COM(91) 111 final — SYN 194
               (Submitted by the Commission in accordance with Article 149 (3) of the Treaty on 17 May 1991)
 THE COUNCIL OF THE EUROPEAN COMMUNITIES,                           Whereas these rules must take due account of public
                                                                    health protection, in particular in relation to young
                                                                    people;
 Having regard to the Treaty establishing the European
 Economic Community, and in particular Article 100a
 thereof,                                                           Whereas, given the interdependence between the various
                                                                    forms of advertising, printed, written, oral, by radio and
                                                                    television broadcast and cinema, and to prevent any risk
 Having regard to the proposal from the Commission,                 of distorting competition and circumventing the rules
                                                                    and regulations, such harmonization should cover all
                                                                    advertising forms and media apart from television adver-
 In cooperation with the European Parliament,                       tising, which is already convered by Council Directive
                                                                    89/522/EECO;
 Having regard to the opinion of the Economic and
 Social Committee,                                                 Whereas the European Council held on 28 and 29 June
                                                                    1985 in Milan stressed the importance of launching a
                                                                    European action programme against cancer;
Whereas there are differences between the provisions of
the Member States on advertising for tobacco products;
whereas such advertising transcends the borders of the
                                                                   Whereas the Council and the representatives of the
 Member States and whereas such differences are likely to
                                                                    Governments of the Member States, meeting within the
constitute barriers to free circulation of products, means
                                                                    Council, in their resolution of 7 July 1986 on a
of support for this advertising, and the free provision of
                                                                   programme of action of the European Communities
services in this area, as well as to distort competition and
                                                                    against cancer (}) set for this programme the objective of
thus impede the establishment and operation of the
                                                                   contributing to an improvement in the health and quality
internal market;
                                                                   of life of citizens within the Community by reducing the
                                                                   number of illnesses due to cancer and, accordingly,
                                                                   regarded measures to counter the use of tobacco as their
Whereas obstacles to trade should be eliminated and, to            prime objective;
this end, the rules relating to tobacco advertising should
be harmonized, leaving to Member States the intro-
duction, under certain conditions, of measures they
consider necessary to guarantee public health protection;          Whereas tobacco consumption constitutes a very
                                                                   important death factor each year in the Member States
                                                                   of the European Community;
Whereas, in conformity with Article 100a (3) of the
Treaty, the Commission is obliged, in its proposals under
paragraph 1 concerning health, safety, environmental               Whereas advertising plays a fundamental role in
protection and consumer protection, to take a high level           promoting smoking, particularly among young people;
of protection as a basis;
                                                                   O OJ No L 298, 17. 10. 1989, p. 23.
(') OJ No C 116, 11. 5. 1990, p. 7.                                (') OJ No C 184, 23. 7. 1986, p. 19.
 ---pagebreak--- No C 167/4                            Official Journal of the European Communities                                  27. 6. 91
Whereas, at the Council of Ministers meeting on 3                    tries to circumvent the advertising ban by using brand
December 1990, the Member States came out in favour                  names, trade marks, emblems or other distinctive
of full harmonization of advertising for tobacco                     features of tobacco products;
products;
                                                                — tobacco products: all products intended to be smoked,
Whereas, given the current state of Member States' legis-            sniffed, sucked or chewed, inasmuch as they are,
lation and bearing in mind the likely further devel-                 even partly, made of tobacco;
opment, full harmonization can only take place on the
basis of a ban on advertising for tobacco products;
                                                                — tobacco sales outlets: establishments specializing in the
                                                                     sale of tobacco and with enclosed indoor premises
Whereas the tobacco industry must be able to inform
                                                                     for serving customers. Shops with several counters
consumers of the various types and brands of tobacco
                                                                     for a range of different goods on sale are excluded
products in compliance with market laws and the rules of
                                                                     from this definition.
competition;
Whereas, however, the use of tobacco is extremely                                          Article 2
damaging to health and such information should
therefore be restricted to interested parties only, i.e. the     1.    Without prejudice to Directive 89/552/EEC, all
consumers of tobacco products;                                  forms of advertising for tobacco products shall be
                                                                banned in the territory of the Community.
Whereas avertising must, to this effect, be authorized
only in establishments specializing in the sale of tobacco
                                                                 2.     Member States shall ensure that brands or
and with enclosed indoor premises for serving their
                                                                trademarks whose reputation is mainly associated with a
customers;
                                                                tobacco product, are not used for advertising in other
                                                                 areas, if this brand or trademark is being used for adver-
Whereas by retaining the possibility for displaying adver-      tising of a tobacco product.
tising within such outlets, advertising can thus fulfil its
essential purpose; whereas it will thus be possible to
guarantee the protection of the population in general            3.     Member States shall ensure that new tobacco
and of young people in particular;                              products do not make use of the reputation acquired by
                                                                 certain brands or trademarks already used in association
                                                                with products other than tobacco products.
Whereas all forms of indirect advertising produce the
same effects as straight advertising and a ban should
therefore be imposed on such indirect forms of adver-
tising which, while not actually mentioning the tobacco          4.    Any free distribution of tobacco products shall be
product, use trade marks, emblems, symbols or other             banned.
distinctive elements associated with tobacco products;
Whereas persons or organizations who, under national                                       Article 3
law, have a legitimate interest in the matter must be            Member States may authorize advertising within tobacco
given the opportunity to take action against any adver-         sales outlets, provided that it is not visible from outside
tising which does not conform to the rules established by       the premises.
the Member States in application of this Directive,
                                                                                           Article 4
HAS ADOPTED THIS DIRECTIVE:
                                                                Member States shall ensure that there exists appropriate
                                                                and effective means to control the implementation of the
                          Article 1                             national measures adopted in accordance with this
                                                                Directive. These means must include provisions ensuring
For the purpose of this Directive, the following defi-
                                                                that persons or organizations which, according to the
nitions shall apply:
                                                                national legislation can justify a legitimate interest in the
                                                                suppression of advertising which is incompatible with this
— advertising: any form of communication, printed,              Directive, may take legal action against such advertising
     written, OKal, by radio and television broadcast and       or bring such advertising to the attention of an adminis-
     cinema, with the aim or direct or indirect effects of      trative body competent either to pronounce on
     promoting a tobacco product, including advertising         complaints or to institute the appropriate legal
     which, while not specifically mentioning the product,      proceedings.
 ---pagebreak--- 27. 6. 91                           Official Journal of the European Communities                           No C 167/5
                         Article 5                            When Member States adopt these provisions, these shall
                                                              contain a reference to this Directive or shall be accom-
This Directive shall not preclude Member States from          panied by such reference at the time of their official
introducing measures concerning advertising for tobacco       publication. The procedure for such reference shall be
products, in accordance with the Treaty, which they           adopted by Member States.
deem necessary to guarantee the health protection of
their citizens, provided that such measures comply with
this Directive.                                               2. Member States shall apply the provisions referred
                         Article 6                            to in paragraph 1 from 1 January 1993.
1. Member States shall adopt and publish by 31 July
1992 the laws, regulations and administrative provisions                              Article 7
necessary to comply with this Directive. They shall
forthwith inform the Commission thereof.                      This Directive is addressed to the Member States.