CELEX: 51992PC0196
Language: en
Date: 1992-04-30
Title: Amended proposal for a COUNCIL DIRECTIVE ON THE APPROXIMATION OF MEMBER STATES' LAWS REGULATIONS AND ADMINISTRATIVE PROVISIONS ON ADVERTISING FOR TOBACCO PRODUCTS

21 . 5 . 92                              Official Journal of the European Communities                     No C 129 / 5
                                                                 II
                                                         (Preparatory Acts)
                                                       COMMISSION
              Amended proposal for a Council Directive on the approximation of Member States' laws, regu­
                        lations and administrative provisions on advertising for tobacco products (')
                                                          (92 /C 129 /04)
                                                   COM(92) 196 final — SYN 194
              (Submitted by the Commission pursuant to Article 149(3) of the EEC Treaty on 30 April 1992)
              (') OJ No C 167 , 27 . 6 . 1991 , p. 3 .
                      ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,                            Unchanged
Having regard to the Treaty establishing the European
Economic Community , and in particular Article 100a
thereof,
Having regard to the proposal from the Commission,
In cooperation with the European Parliament,
Having regard to the opinion of the Economic and
Social Committee ,
Whereas there are differences between the laws , regu­
lations and administrative provisions of the Member
States on advertising for tobacco products ; whereas such
advertising transcends the borders of the Member States
and whereas such differences are likely to constitute
barriers to free circulation of products, means of support
for this advertising , and the free provision of services in
this area, as well as to distort competition and thus
impede the establishment and operation of the internal
market ;
 ---pagebreak--- No C 129/6                                  Official Journal of the European Communities                21 . 5 . 92
                       ORIGINAL PROPOSAL                                               AMENDED PROPOSAL
Whereas obstacles to trade should be eliminated and, to
this end , the rules relating to tobacco advertising by the
above means should be harmonized, leaving to Member
 States the introduction, under certain conditions, of
measures they consider necessary to guarantee public
health protection ;
Whereas , in conformity 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 a high level
of protection as a basis ;
Whereas these rules must take due account of public
health protection, in particular in relation to young
people ;
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
of distorting competition and circumventing the rules
and regulations , such harmonization should cover all
advertising forms and media apart from television adver­
tising, which is already covered by Council Directive
89/ 552 / EEC (');
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 the Council and the representatives of the
Governments of the Member States, meeting within the
Council, in their resolution of 7 July 1986 on a
programme of action of the European Communities
against cancer (J) set for this programme the objective of
contributing to an improvement in the health and quality
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 tabacco as their
prime objective ;
Whereas     tobacco     consumption         constitutes  a very
important death factor each year in the Member States
of the European Community ;
Whereas advertising plays a fundamental role in
promoting smoking, particularly among young people ;
Whereas at the Council of Ministers meeting on 3
December 1990 the Member States came out in favour
of full harmonization of advertising for tobacco
products ;
(') OJ No L 298 , 17 . 10 . 1989 , p . 23 .
(2) OJ No C 184 , 23 . 7 . 1986 , p . 19 .
 ---pagebreak---  21 . 5 . 92                           Official Journal of the European Communities                No C 129 / 7
                      ORIGINAL PROPOSAL                                           AMENDED PROPOSAL
Whereas , given the current state of Member States'
 national legislation and bearing in mind their likely
 further development, full harmonization can only take
 place on the basis of a complete ban on advertising for
 tobacco products ;
Whereas the tobacco industry must be able to inform
 consumers of the various types and brands of tobacco
products in compliance with market laws and the rules of
 competition ;
Whereas , however, the use of tobacco is extremely
damaging to health and such information should
therefore be restricted to interested parties only, i . e . the
consumers of tobacco products ;
Whereas advertising must, to this effect, be authorized
only in establishments specializing in the sale of tobacco
and with enclosed indoor premises for serving their
customers ;
Whereas by retaining the possibility for displaying adver­
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
and of young people in particular ;
Whereas all forms of indirect advertising produce the
same effects as straight advertising for tobacco products ;
whereas a ban should therefore be imposed on such
indirect forms of advertising which, while not actually
mentioning the tobacco product, use trade marks ,
emblems, symbols or other distinctive elements asso­
ciated with tobacco products ;
Whereas persons or organizations who , under national
law, have a legitimate interest in the matter must be
given the opportunity to take action against any adver­
tising which does not conform to the rules established by
the Member States in application of this Directive,
HAS ADOPTED THIS DIRECTIVE :
                          Article 1
For the purpose of this Directive , the following defi­
nitions shall apply :
advertising : any form of communication , printed ,
written , oral , by radio and television broadcast and
cinema, with the aim or direct or indirect effects of
promoting a tobacco poduct, including advertising
 ---pagebreak--- No C 129 / 8                           Official Journal of the European Communities                            21 . 5 . 92
                      ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
which, while not specifically mentioning the product,
tries to circumvent the advertising ban by using brand
names , trade marks , emblems or other distinctive
features of tobacco products ;
tobacco products : all products intended to be smoked,
sniffed , sucked or chewed , inasmuch as they are, even
partly, made of tobacco ;
 tobacco sales outlets : establishments specializing in the
sale of tobacco and with enclosed indoor premises for
serving customers. Shops with several counters for a
range of different goods on sale are excluded from this
defintion .
                           Article 2
 1 . Without prejudice to Directive 89/ 552/EEC, all
forms of advertising for tobacco products shall be
banned in the territory of the Community.
2.     Member    States    shall  ensure  that   brands  or
trademarks whose reputation is mainly associated with a
tobacco product are not used for advertising in other
areas , if this brand or trade mark is being used for
advertising of a tobacco product.
                                                                 2a. The provisions of paragraph 2 shall not affect a
                                                                 company's right to advertise under its brand or trade
                                                                 mark products other than tobacco products on condition
                                                                 that :
                                                                 (a) the turnover from tobacco products marketed under
                                                                      the same brand or trade mark, even by a different
                                                                      company, does not exceed half the turnover from
                                                                      non-tobacco products of this brand ;
                                                                 (b) the brand or trade mark was first registered for
                                                                      non-tobacco products .
3.     Member States shall ensure that new tobacco
products do not make use of the reputation acquired by
certain brands or trade marks already used in association
with products other than tobacco products .
4.    Any free distribution of tobacco products shall be
banned .
                           Article 3
Member States may authorize advertising within tobacco
sales outlets, provided that it is not visible from outside
the premises .
 ---pagebreak---  21 . 5 . 92                             Official Journal of the European Communities                No C 129 /9
                       ORIGINAL PROPOSAL                                            AMENDED PROPOSAL
                            Article 4
 Member States shall ensure that there exists appropriate
 and effective means to control the implementation of the
 national measures adopted in accordance with this
 Directive. These means must include provisions ensuring
 that persons or organizations which , according to the
 national legislation, can justify a legitimate interest in the
 suppression of advertising which is incompatible with this
 Directive , may take legal action against such advertising
 or bring such advertising to the attention of an adminis­
 trative body competent either to pronounce on
complaints or to institute the appropriate legal
 proceedings .
                           Article 5
This Directive shall not preclude Member States from
introducing measures concerning advertising for tobacco
products , in accordance with the Treaty, which they
deem necessary to guarantee the health protection of
their citizens, provided that such measures comply with
this Directive .
                           Article 6
 1 . Member States shall adopt and publish by 31 July
 1992 the laws, regulations and administrative provisions
necessary to comply with this Directive . They shall
forthwith inform the Commission thereof.
When Member States adopt these provisions, these shall
include a reference to this Directive or shall be accom­
panied by such reference at the time of their official
publication . The procedure for such reference shall be
adopted by Member States .
2 . Member States shall apply the provisions referred
to in paragraph 1 from 1 January 1993 .
                           Article 7
This Directive is addressed to the Member States .