Following the European Court of Justice ruling three years ago that the 1989 directive on tobacco advertising was invalid and must be annulled, the Commission has been forced to think again about how best to use its powers to regulate the tobacco industry.

In May of this year, it issued a proposal for a new directive which it hopes will meet the objections of the Court. In the meantime, it has decided to replace its earlier directives on the maximum permitted tar yield of cigarettes and on the labelling of tobacco products with a new, single purpose directive. This will tighten the rules governing the manufacture and labelling of tobacco products in the hope of better protecting consumers.

MANUFACTURE AND LABELLING
Directive 89/622/EEC concerning the labelling of tobacco products and the prohibition on marketing of certain types of tobacco for oral use, and directive 90/239/EEC on the maximum tar yield of cigarettes, have both been repealed and replaced with a single directive. The new directive sets a limit of 10mg per cigarette for tar and 1mg per cigarette for nicotine, from 1 January 2004. Additionally, it sets a limit for carbon monoxide of 10mg per cigarette.

The preamble to the directive justifies this by saying that cigarettes have been shown to produce amounts of carbon monoxide which are hazardous to human health and capable of contributing to heart disease and other ailments. Several member states told the Commission that if the EU did not impose limits for carbon monoxide, they would adopt their own. In the case of export cigarettes, member states may delay introduction of the new limits until 1 January 2007. Cigarette packets will have to show the yields for all three substances on one side in such a way that at least 10 per cent of the surface is covered.

The directive, which has been warmly welcomed by the organisation Action on Smoking and Health (ASH), sets out the following general warnings to be carried on each unit packet for tobacco products, except those for oral use and other smokeless products:

• smoking kills/smoking can kill; or
• smoking seriously harms you and others around you.

These warnings must appear by rotation on the most visible surface of the packet and on any outside packaging. They must cover not less than 30 per cent of the external area of the surface on which they are printed. In addition, a second warning, to be chosen from a list of 14 options set out in the directive, must appear on the second most visible surface. Among these are:

• smoking causes fatal lung cancer;
• smoking may reduce the blood flow and causes impotence;
• smoking causes ageing of the skin; and
• smoking can damage the sperm and decreases fertility.

This secondary warning must cover not less than 40 per cent of the external area of the surface on which it is printed.

The directive sets out rules on the colour, font and precise location of the warnings. With regard to the use of more graphic warnings on cigarette packets, such as colour photographs and illustrations of adverse health effects, rules governing these are to be drawn up by Commission no later than 31 December 2002. The directive retains the old prohibition on the marketing of tobacco for oral use but exempts Sweden, where it is permitted but must carry a health warning to the effect that smoking is damaging to health and is addictive. The same warning must be carried on all smokeless tobacco products.

In a bid to prevent consumers being misled by terms such as "low tar" and "ultra light" the directive outlaws, from 30 September 2003, the use on packaging of texts, names, trade marks and figurative or other signs suggesting that a particular tobacco product is less harmful than others.

From 31 December 2002, manufacturers and importers are required to submit to the member states an annual list of all ingredients, including quantities, used in their tobacco products by brand name and type. A statement of the reasons for inclusion and any toxicological data available to them, on the health and addictive effects of those ingredients, must also be provided. Member states must pass this information on to consumers, subject to rules on trade secrecy. By 31 December 2004, the Commission is to propose a common list of ingredients authorised for use in tobacco products. In the meantime, member states may individually prohibit ingredients which increase the addictive properties of tobacco products. They may also introduce other more stringent rules on tobacco products to protect public health, in so far as such rules do not prejudice the provisions of the directive. The Commission is required to review the directive every two years and suggest changes if necessary.

The implementation date for the directive is 30 September 2002.

ADVERTISING AND SPONSORSHIP
The European Court's main objection to the old advertising directive was that it applied to items which were not traded across frontiers, eg it banned advertising on stationary items such as parasols and posters and in hotels and restaurants. The Commission has no legal power to do this under single market rules. The new proposal seeks to meet these objections but in doing so is much weaker than the old one. It contains a mere 12 articles of which only three briefly address advertising itself.

Article 3 - advertising in printed media and information society services:

• Advertising in the press and other printed publications shall be limited to publications intended exclusively for professionals in the tobacco trade and to publications which are published and printed in third countries, where those publications are not principally intended for the Community market. Other advertising in the press and other printed publications shall be prohibited.
• Advertising that is not permitted in the press and other printed publications shall not be permitted in information society services. Article 4 - radio advertising and sponsorship:
• All forms of radio advertising for tobacco products shall be prohibited.
• Radio programmes may not be sponsored by undertakings whose principal activity is the manufacture or sale of tobacco products. Article 5 - sponsorship of events:
• Sponsorship of events or activities involving or taking place in several member states or otherwise having cross-border effects shall be prohibited.
• Any free distribution of tobacco products in the context of the sponsorship of the events referred to in paragraph 1, having the purpose or the direct or indirect effect of promoting such products shall be prohibited.
  

ASH has welcomed the new proposal, but is disappointed that legal difficulties mean that elements such as a prohibition on point of sale advertising cannot be included. It points out that experience shows that, unless a ban on advertising is total, the tobacco industry will divert all its energies into those options which are still open to it. ASH is hoping that the European Parliament and member states' governments will push for the proposal to be strengthened.

Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation
of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products

COM (2001) 283. Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products