The European Publishers’ Council has consistently opposed the imposition of all statutory advertising bans or restrictions on any product or service that is legally manufactured and sold to the general public in the European Union for the following reasons:
- A ban would be contrary to fundamental rights of freedom of expression enshrined in the European Convention of Human Rights. Article 10 guarantees freedom of expression subject to the provisions of Article 10(2). If Member States wish to invoke article 10(2) by way of justification for legislating on health grounds, then the correct EU legal base (Article 129)should be used (see below).
- A ban on tobacco advertising in the press is disproportionate. An advertising ban would not achieve the stated objectives, i.e. a reduction in overall consumption. Furthermore a ban would have a detrimental effect on advertising revenues which serve another function: financial support for a pluralistic press. Independent statistics consistently show that in countries where advertising to the general public has been banned,overall consumption of tobacco products increases, and that advertising is not even a factor with starting smoking in the first place. The EU Member States with the highest numbers of smokers are Italy,Portugal and France all of which have imposed tobacco advertising bans over the last 10 years. Since 1987 consumption in Italy has risen by 8%, in Portugal by 7.39% and in France by 5.24%. In Norway a total ban was introduced in 1975; of Norwegian children born since the ban in 1975, 36% of 15 year olds were smoking in 1990. In Hong Kong, where advertising is unrestricted, only 11% of the same age group were smokers.
- The EPC has consistently challenged the use of article 100(a) as the legal base for a ban on tobacco advertising and objects to the addition of articles 57 and 66 which are clearly designed to promote, not prohibit free movement of goods and services. If the EU adopts legislation with clearly stated objectives based on the protection of health, it should do so on the correct legal base which is currently Article 129. The use of articles 100(a), 57 and 66 is an abuse of the decision making processes of the EU and will be subject to legal challenge. A statutory ban, based on articles 100(a), 57 and 66 creates an untenable precedent for other product categories of advertising in the future. Even the Legal Service of the Council has advised Ministers that Article 129 is the correct legal basis in this case.
- The EU Treaty guarantees free circulation of goods and services so long as they comply with the rules of the country of origin. Thus, newspapers,regardless of their content (both editorial and advertising) have been allowed to circulate within the EU under the principle of mutual recognition.A statutory advertising ban based on article 100(a) undermines the entire principle of mutual recognition.
- An EU ban would introduce, for the first time, unfair competition between EU-based publishers and those outside the EU wherever Member States continued to allow the free circulation of publications from third countries containing tobacco advertising within their jurisdiction;such action will rightly be subject to scrutiny by the WTO.
- The proposed exemption for Formula One racing sponsorship, together with proposals to phase out all forms of sports’sponsorship over a period of time beyond a press advertising ban further discriminates unfairly against publishers.Motor racing and other types of sport which attract sponsorship by tobacco companies are undoubtedly more glamorous and appealing to certain groups than newspaper publishing. These exemptions undermine the stated objectives of wishing to reduce overall tobacco consumption particularly amongst young people whilst unfairly discriminating against publishers.
In February 1991 the EPC adopted a set of Principles and in January 1992 a Declaration for which we have received widespread support within the EU Institutions and at national level. These can be summarised as follows:
- A written press, free and independent of government, is a fundamental institution in political democracies, performing a vital role in providing electorates with information;
- Advertising performs a vital role in providing consumers with information about goods and services which are legally for sale and guarantees competition in a free market economy;
- Freedom of expression is secured by plurality; and advertising revenue is essential to maintaining plurality. Unreasonable and poorly-justified restrictions on advertising directly affect the freedom of the press and violate Article 10 of the European Convention on Human Rights;
- Advertising bans lead to reductions in the revenues of newspaper publishers. Advertising revenues cover over 50% of our costs of production and distribution. Any reduction in revenues has a direct link to how many editorial pages are published;
- Advertising content should be monitored in the Member States by effective methods of self-regulation and we support readers’ rights to complain about publication of misleading or unfair advertising.
In defence of these Principles, between November 1991 and February 1992 the EPC ran an advertising campaign in over 250 newspapers and magazines in Europe which called on the Institutions of the EU and the Member States to stop restricting the freedom of expression through advertising bans or restrictions. The European Commission soon after undertook to take a more coherent approach to advertising, acknowledging its key role within the single market and to enforce the principle of mutual recognition and country of origin control. Any new legislation that restricts the freedom of commercial speech will be contrary to proposals contained in the Commission’s 1996 Green Paper on Commercial Communications which recognises that advertising bans and restrictions are disproportionate. Advertising bans and restrictions will be vigorously resisted and challenged by Europe’s Newspaper and Magazine publishers in the future just as in the past.