Government stubs out tobacco advertising
Ardi Kolah examines the forthcoming tobacco advertising, promotion and sponsorship ban in the UK and looks at the marketing challenges that lie ahead for the tobacco industry
Advertising as well as promotions and sponsorship of events by tobacco companies become unlawful in the UK as at 00:01 on Friday February 14, 2003.
The Independent Television Commission's Code of Advertising Standards and Practice already prohibits the advertising of all tobacco products on TV, so this recent move effectively extends it to all other media. By implication it makes redundant the Cigarette Code, which has been the tobacco industry's self-regulatory code governing the way it advertised and promoted its products.
The government's choice of Valentine's Day to commemorate this historic step is perhaps its way of saying there are no hard feelings towards a lawful industry that contributes billions to the Exchequer in taxes every year.
But this has nothing to do with Cupid. Let's face it. There're no votes in smoke.
Forget freedom to choose. This could be the beginning of the end of an industry that has become demonised. The government has in effect taken away the oxygen of publicity for tobacco.
Tobacco Advertising and Promotion Act 2002
This is the key piece of UK-wide legislation and was given the Royal Assent on November 7, 2002. The ban on tobacco advertising and promotion is widely defined under the 2002 Act as "a prohibition on any advertisement that has the purpose or effect of promoting a tobacco product".
This includes any form of advertising in any of the following media:
The 2002 Act also bans:
The legislation will be fully implemented by July 31 2005, when tobacco sponsorship of international sports such as Formula 1 and World Snooker are also banned.
At first look, the 2002 Act appears very comprehensive, but on closer inspection there's still room for manoeuvre.
Under the 2002 Act, there's also a raft of further regulations:
These regulations deal with transitional arrangements for sponsorship, the particular arrangements for 'brand-sharing' and for advertising at point of sale.
There has been consultation on the draft regulations outlining the government's intentions but only the sponsorship regulations have been published so far. The other regulations are subject to scrutiny by the European Union (under the Technical Standards Directive), which will cause a delay of up to six months before they come into force in the UK.
A EU directive was agreed on December 2 2002 and supplements the 2002 Act.
This EU directive deals with four types of cross-border advertising:
This EU directive comes into effect on July 31 2005 and has forced the UK government to bring forward its ban on tobacco sponsorship of Formula 1 from October 2006 to July 2005 -- effectively two Grand Prix seasons.
In 1997, the UK government attempted to have Formula 1 made exempt from the EU ban and quickly became engulfed in the "Berniegate" controversy over a £1m donation to the Labour party from the Formula 1 supremo Bernie Ecclestone, which was subsequently returned.
The UK eventually accepted a compromise of October 2006 after pressure from other EU states but further moves brought this date forward to July 31 2005.
The EU directive now faces a legal challenge from the German government, which alleges it goes too far in banning advertisements in printed publications that do not cross borders (for example, tobacco advertising in German local newspapers).
Television advertising was already banned under the Television Without Frontiers Directive 89/552/EEC.
Room for manoeuvre?
Despite the noose tightening around the neck of tobacco marketers, there is still room for manoeuvre if you look hard enough:
Although the above may appear to give some level of comfort to tobacco marketers, there is likely to be litigation surrounding the controversial activity of brand stretching, according to anti-tobacco pressure group ASH.
It is certainly unclear where the boundary between a tobacco ad and a genuine non-tobacco ad will be. The legal burden of proof is on the authorities to show, beyond reasonable doubt, that a given ad has the purpose or effect of promoting tobacco.
This will test the ability of the courts to make such fine distinctions on the evidence when the whole purpose of brand stretching is, of course, to introduce an element of ambiguity and identity/reputation transfer to non-tobacco products that could assist in helping sales of tobacco products indirectly.
Tobacco marketers are free, however, to use their ingenuity to create eye catching point-of-sale advertising and we could expect to see more investment from the tobacco industry in confectionery-tobacco-newsagents and independents as they switch advertising budgets into retail operations.
Displays for tobacco products could become a new art form.
The 2002 Act deals with the internet in Section 2, the general prohibition of advertising in particular at Section 2(3) and Section 2(4).
Section 2(3): Distributing a tobacco advertisement includes transmitting it in electronic form, participating in doing so, and providing the means of transmission.
Section 2(4): It is not an offence under subsection (1) for a person who does not carry on business in the United Kingdom to publish or cause to be published a tobacco advertisement by means of a website which is accessed in the United Kingdom; and, in that case, devising the advertisement or causing it to be devised is not an offence under subsection (2).
This legal double-negative means that it will be illegal to advertise tobacco on the internet and allow it to be accessed in the UK if you are carrying on a business in the UK, but not so if you are outside the UK.
So tobacco marketers, start packing now... you have been warned.
Ardi Kolah is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.
If you have an opinion on this or any other issue raised on Brand Republic, join the debate in the Forum here.
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