Since the late 80ies it's always been almost impossible to
advertise tobacco products throughout the European Union. Directive
no. 89/552/EEC introduced a strict and general ban as to
"all forms of television advertising for cigarettes and
other tobacco products" (so Article 13), while Directive
no. 2003/33/EC set restrictions or bans with respect to advertising
and sponsoring of tobacco products in other media (see Articles 3,
4 and 5).
In recent times Directive no. 2010/13/EU has confirmed a total
and general ban of "all forms of audiovisual commercial
communications for cigarettes and other tobacco products"
provided by media service providers (so Article 9/1/d). In
addition, it prevents "undertakings whose principal
activity is the manufacture or sale of cigarettes and other tobacco
products" from sponsoring "audiovisual media
services or programmes" (so Article 10/2).
To no one's surprise companies active in this critical
sector area have welcomed electronic smoking devices (so-called
"e-cigs") as a viable alternative to traditional
tobacco products. In Italy over the last two years shops
distributing such devices have been set up at an impressive speed
and in simply booming numbers. Big Tobacco has realized the
business potential and has shifted significant investment to
production and distribution of e-cigs.
In parallel criticism against such devices has grown and concern
about potential negative effects was voiced. Regulators are
therefore deserving increased scrutiny to the phenomenon and
recently a special Advisory Board ("Consiglio Superiore di
Sanità") has released a formal opinion and
recommendations to the State Department for Public Health on the
use of e-cigs. In detail the Advisory board: (a) called
for a ban of such smoking devices at school and in public places,
(b) recommended particular caution when such devices are used by
individuals falling into 'risk categories' (e. g. pregnant
or breastfeeding women), (c) strongly suggested that such devices
should not be available for sale to minors of age (i. e. under the
age of 18) when their cartridges contain nicotine, (d) proposed to
establish a special 'Observatory' in charge of monitoring
the effects deriving from the use of e-cigs, (e) finally,
called for specific regulation both as to labeling and consumer
information as well as to advertising of such devices.
Such suggestions and recommendation have been partially accepted
by the Department for Public Health, which issued a Ministerial
Order, banning sales of e-cigs to individuals aged under
18 as well as their use at schools and prescribing additional
information and labeling requirements for such devices.
But more is likely to be on the horizon. In Italy tobacco
products are subject to significant taxes, which make up more than
70% of the final sales price. As already 500.000 individuals make
use of e-cigs on an ongoing basis, the Financial Administration is
not exactly happy about the new product escaping taxation
(according to recent estimates, the loss sums to approx. 700
million Euro). It doesn't therefore take much to predict that
soon the taxation currently applied to tobacco products could be
extended to electronic smoking devices.
While France is also considering banning the sales of
e-cigs to minors and of their use in bars and restaurants,
the topic is likely to be addressed soon on a transnational level.
The European Commission announced plans to present a revision
proposal of the 'tobacco products directive' (no.
2001/37/EC) and a draft text was finalized and released on December
12th, 2012 (but final adoption of the amended Directive
is unlikely to occur prior to year 2015). In a meeting held in
Luxembourg on June 21st, 2013 the Council of the
European Union agreed that the revisited tobacco directive will
specifically address, among other issues, "nicotine
containing products (such as electronic cigarettes)"
where these products "would be allowed on the market below
a certain nicotine threshold provided they feature health warnings;
above this threshold such products would only be allowed if
authorized as medicinal products (e.g. nicotine replacement
Under these premises Marketers will need to carefully consider
their business and advertising strategies.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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