UK: Good for the Heart?

St Valentine’s Day will be the date when the UK Government’s policy on the banning of tobacco advertising will be visibly kick-started. From 14 February 2003 there will be a prohibition on advertisements for tobacco products on billboards and in the press. Further prohibitions will follow throughout the course of 2003 and beyond in an attempt to implement a comprehensive ban on tobacco advertising.

A scheme has been introduced by the Tobacco Advertising and Promotion Act 2002 ("TAPA"), which received Royal Assent on 7 November 2002, that will ban the advertising and promotion of tobacco products in the UK. A manifesto commitment made in the 1997 election campaign is now legislation and TAPA represents what has been described as one of the landmark pieces of public health legislation.

So what does TAPA require and who and what will it affect?

First of all, TAPA’s provisions apply to "tobacco advertisements". A tobacco advertisement is defined as an advertisement "whose purpose or whose effect is to promote a tobacco product" – pretty all-encompassing, especially considering the term "advertisement" is not defined and will, therefore, bear its natural and common meaning. TAPA quite politely defines a tobacco product as a "product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed". Billboards and newspaper advertisements, the most visible forms of tobacco advertising, will be subject to TAPA.

As of 14 February 2003 it will be an offence for any person who, in the course of a business, publishes or causes to be published a tobacco advertisement in the UK. Furthermore, it will also be an offence for anyone, again in the course of business, who prints, devises or distributes in the UK a tobacco advertisement which is published in the UK. Anyone causing such an advertisement to be printed, devised or distributed is similarly guilty of an offence. Distribution is expressly said to include transmission in an electronic form as well as by more traditional methods. Effectively, the entire chain of those involved in getting an advertisement seen by the public, from the creatives who formulate the idea for the ad through to those responsible for pasting up the billboard posters, are potentially liable under TAPA. The "in the course of a business" requirement ensures that TAPA does not apply to individuals acting in their own private capacity.

With the global possibilities created by the advent of the internet and the ability for advertisements to be posted on websites and accessed across the world, consideration has had to be given to how TAPA’s prohibition can extend to the internet. The simple answer is that it cannot, or at least not comprehensively. TAPA provides that it will not be an offence for a person who does not carry on business in the UK to publish or cause to be published a tobacco advertisement by means of a website which is accessed in the UK. In this respect we are concerned with advertisements appearing anywhere on the internet. However, in the future the Secretary of State may provide, in the form of regulations, that no offence will have been committed under TAPA for advertisements that appear on websites that offer tobacco products for sale.

So what will the effect of this be? Well, on the face of it, any tobacco company may advertise its products on the internet provided it does not carry on its business in the UK. Most major tobacco producers are American and, therefore, are likely to be considered as carrying on their business outside the UK. This is despite the fact that these companies produce nearly all of the famous brands of cigarettes available in this country. So, will a strange anomaly occur as a result?

Following recent case law on this issue it is likely that, if the non-UK companies can successfully argue that advertisements were directed at their home market and not the UK, ie by displaying prices in the local currency or providing local retail addresses, then despite the brands of cigarettes being available in the UK they are unlikely to have committed an offence under TAPA. However, should the website advertisements somehow, either directly or indirectly, be aimed at the UK, for example, if the advertisement provides prices in sterling or provides retail addresses in the UK, then it is likely that an offence will have been committed under TAPA.

TAPA specifically provides for those in the printed media industry who will be directly responsible for the publication of tobacco advertisements and who will be guilty of an offence under TAPA. If any newspaper, periodical or other publication containing a tobacco advertisement is published in the UK then any proprietor or editor of the publication will be guilty of an offence under TAPA. Further, any person who procured, either directly or indirectly, the inclusion of the advertisement in the publication and any person who sells the publication, or offers it for sale or otherwise makes it available to the public, will also be guilty of an offence. So, editors, advertising departments, advertising agencies and newsagents beware!

An offence will not be committed if the tobacco advertisement is contained in a publication whose principal market is not the UK, or if it is contained in any internet version of the same. Advertisements in USA Today or Le Monde will not, therefore, infringe TAPA. However, advertisements in an in-flight magazine will, if it is published in the UK and, it would appear, regardless of the airline on which it will be read, be subject to TAPA.

An offence will not be committed under TAPA by any person if he/she did not know, and had no reason to suspect, that the purpose of the advertisement was to promote a tobacco product. Similarly, a person does not commit an offence if he/she could not reasonably have foreseen that the effect of the advertisement was to advertise a tobacco product.

It is also a defence under TAPA for a person to maintain that they did not know, or had no reason to suspect, that the tobacco advertisement would be published in the UK. For ‘traditional’ distributors, it is a defence to argue that they did not know and had no reason to suspect that what was being distributed was, or contained, a tobacco advertisement. For electronic distributors it will be a defence to maintain that either: (i) he/she was unaware that what was distributed was or contained a tobacco advertisement; (ii) having been made aware, it was not reasonably practicable for him/her to prevent its further distribution; or (iii) he/she did not carry on business in the UK at the relevant time. So, for example, the ISP or the provider of a telephone system who are unlikely to be aware that they are distributing a tobacco advertisement on their respective networks would be able to rely on this defence. Reliance could still be placed on the defence even where the network provider is aware of the distribution, provided that it is not reasonably practicable to prevent its further distribution. It has been suggested that, for example, the defence would still hold good where the only way of preventing further distribution of the advertisement would be to shut down the entire network.

For the newsagent, it will be a defence to argue that he/she did not know, and had no reason to suspect, that the publication contained a tobacco advertisement.

In effect, the defence ‘structure’ relies somewhat on the entity before it in the "supply chain" of tobacco advertisements complying with the ban – effectively cutting the "supply" off at its source. Realistically one would have thought that efforts at imposing the ban will, at least initially, be focussed on those higher up the chain, ie those directly responsible for the creation and publishing of the advertisements. It is advertisers, publications and publishers that should consider the prohibition on tobacco advertising as directly affecting their business.

As of 14 May 2003, any free distribution carried out in the course of a business – whose purpose or effect is to promote a tobacco product – is to be banned under TAPA. The ban is intended to prohibit the practice of giving away branded products such as cigarettes. TAPA also prohibits the practice of inserting coupons into cigarette packets that can be collected and later redeemed for tobacco products. There are necessary exclusions provided in TAPA for those involved in the tobacco trade. If it emerges that distributions are being made at a nominal price or at a substantial discount in an effort to get round the ban then the Secretary of State can introduce appropriate regulations (following consultation) to prohibit such practices.

In time the sponsorship of sporting events and competitions such as Formula One and Snooker by tobacco brands will end. Not before 1 October 2006 will such sponsorship be prohibited under TAPA. The very simple provisions for what will be prohibited are provided in TAPA. Briefly, any person who is a The defences, generally, are limited in their scope and one cannot envisage their being successfully maintained in all but a few cases, not least because they will apply for those who have little control over the advertisements appearing in the first place party to a sponsorship agreement is guilty of an offence if the purpose or effect of anything done as a result of the agreement is to promote a tobacco product in the UK. Both the sponsor and the recipient will be guilty of an offence under TAPA. Quite purposely, TAPA does not specify that the agreement has to relate to anything in particular, such as a sporting event. So, although the ban will encompass sporting events, it will also prohibit sponsorship of, for example, a building, a research facility or an exhibition.

Brandsharing, or brand extension, is a form of indirect advertising involving the use of tobacco branding on nontobacco products or services, or vice-versa. The obvious examples of this practice are in respect of clothing manufactured by and emblazoned with the branding of Marlboro and Camel – indeed the former have their own retail outlets for the sale of their goods. The prohibition on brandsharing is to become the subject of separate regulations to be made by the Secretary of State. It is anticipated that the regulations will permit brandsharing only in very limited circumstances. A consultation on the full scope of the regulations has already been concluded.

TAPA does not generally apply in relation to anything included in a service provided under the regulation of either of the Broadcasting Acts 1990 and 1996. Neither does TAPA apply to the BBC in so far as its television services are concerned. So, if a television programme is produced outside the UK and, in some manner, the programme advertises tobacco products (be it in the form of advertising at a sporting event or in the form of product placement in a television programme) then if and when it is shown over here the relevant UK broadcaster will not fall foul of TAPA. The obligations upon television and radio broadcasters will continue to be monitored through the likes of the ITC and the Radio Authority.

TAPA also makes various provisions for allowing limited forms of tobacco advertising to continue within specialist tobacco retailers and at points of sale, ie at the vending kiosks in your local supermarket. The Secretary of State does, however, retain the power to introduce regulations in both these areas should stricter obligations be required.

Local trading standards officers and their equivalents around the UK will be the ‘responsible authorities’ charged with enforcing TAPA within their areas. Overall supervision will be maintained by the appropriate Ministers in England and Wales and can direct that any enforcement functions be taken over by them in any particular case. Enforcement authorities will have powers of entry under TAPA subject to various conditions to enable them to conduct their powers, and obstruction of them will be an offence. A person found guilty of an offence under the main provisions of TAPA will be liable on conviction in the Magistrates Court to either imprisonment for no more than six months or a fine "not exceeding level five on the standard scale" (currently £5,000), or both. On conviction by the Crown Court, the maximum imprisonment term is two years.

TAPA will become a socially and morally important piece of legislation. TAPA has teeth and it will bite. Initially, that bite will be felt most, not only by those who manufacture tobacco products, but also by those in the advertising and publishing fields. In time, and as regulations are introduced, the ban on tobacco advertising and promotion will be built up and become more comprehensive, culminating in the prohibition of tobaccorelated sponsorship.