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EU advertising ban in trouble, but UK Government must respond with a Tobacco Bill through Westminster

The Advocate General of the European Court of Justiceproduced a legal opinion arguing that the 1998 EU Directive (98/43/EC) banningtobacco advertising and sponsorship has an inappropriate legal base under theEU Amsterdam Treaty.  The AdvocateGeneral has recommended that the ECJ annuls the directive when it decides oncomplaints of the German Government and tobacco industry latter this year.

Clive Bates, Director of ASH comments:

"It's a setback and we are disappointed.  The law governing the single market is notsupposed to promote trade at any cost, but with a high level of health andconsumer protection.  We hope theEuropean Court will recognise this proper interpretation of the AmsterdamTreaty Article 95."

But ASH highlighted the likely response to an adversedecision in the ECJ.

"Despite this setback, there is a very big andbright silver lining.  Ministers will now come under intense pressure tointroduce a bill through Westminster to meet Labour's 1997 manifesto commitmentto ban tobacco advertising.  If a Tobacco Bill is introduced inWestminster it will be enable the Government to close all the loopholes in theadvertising ban, introduce some of the Health Select Committee recommendationsand implement the tobacco product directive that went through the EuropeanParliament yesterday".  said Bates.

"Paradoxically, this setback in Europe could giveus much tighter legislation in Britain. This will be better in the long term though we will have yet morefrustrating delay and further unnecessary harm to health while sound tobaccopolicies are blocked with legal manoeuvring" said Bates.

Notes:

• Advocate General's report www.curia.eu.int  +352 4303 3355 for press office
• The ECJ does not have to follow the Advocate general's opinion, but thisis likely to be influential.  The ECJ'sdecision is expected in the autumn.
• The Advocate General's opinion will influence the House of Lords whichis deciding whether to allow the UK government to introduce the first phase ofthe advertising ban.  The Government hadproposed to do this on 10 December 1999, but was blocked by a legal challengeby the tobacco industry.  This wasoverturned at the Court of Appeal, but the block on the ban was kept in placepending a decision by the House of Lords. The HoL heard the case in May and a decisionis awaited, but it is likely that the Lords will keep the block in place untilthe ECJ makes its ruling.
• Loopholes in the advertising ban include brand-stretching, point of saleadvertising, specialist shops, and the Internet.  More details at: www.ash.org.uk/papers/dir9843ec.html

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