Legal possibilities of a European wide ban on alcohol advertising

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Legal possibilities of a European wide ban on
alcohol advertising
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• EUCAM European Centre for Alcohol Marketing
• The European Centre for Monitoring Alcohol
  Marketing or EUCAM was established in 2007. The
  Board of EUCAM is by STAP (The Netherlands),
  ACTIS (Norway) AV.OG.Til (Norway) IOGT-NTO
  Sweden, Eurocare Italia and PARPA (Poland).
• EUCAM is set up to collect, exchange and to
  promote knowledge and experience about alcohol
  marketing throughout Europe. The objectives of
  EUCAM are
• 1. Promoting the Monitoring of Alcohol
  Marketing2. Promoting and disseminating impact
  research

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Introduction

• Voluntary rules by the industry are generally
  ineffective to protect young people (de Bruijn et
  al 2010, Vendrame Pinsky 2010 Babor et al
  2010) which underlines the need for legal
  restrictions of alcohol advertising
• Econometric studies (Saffer 1991 Saffer 2002
  Saffer Dave 2006) suggest that overall bans of
  alcohol marketing can be successful in decreasing
  the total alcohol consumption of adolescents.
• .

4
In violation with EU Law?

• Existing alcohol marketing restrictions in
  Norway, Sweden and France show that national
  alcohol advertising bans do not necessarily
  violate EU law.

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Norway

• Complete ban on alcohol advertising, upheld after
  several court decisions in previous years (de
  Bruijn Roseth 2009).
• Court of Oslo (2009) Advertisement bans create
  virtual monopoly for products and brands that
  were marketed before the placement of the ban and
  therefore make it hard for new products and
  brands to reach consumers.
• However, the Court also noted that a ban of
  alcohol advertisements is still justified if it
  is suitable and necessary to uphold the states
  alcohol policy.
• Ban not only affects direct marketing but also
  indirect marketing (e.g. advertorials) (Grill
  case 2011).

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Sweden

• Shows the difficulty in upholding an overal ban.
• The European Court of Justice left it up to the
  national courts to determine whether the
  advertising ban was suitable and necessary
  (C-405/98).
• The Swedish market Court spoke against the ban,
  and new legislation was passed allowing print
  advertising for products over 16 alcohol volume
  (Baumberg Anderson 2008).

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France

• Shows that alcohol advertising bans in certain
  marketing channels (eg television and sport
  sponsorship) can be upheld before European Court.
  
• The alcohol industry has challenged but failed to
  suppress the legal foundation of the Loi Evin
  (Johansen 2009)
• In 2004, Bacardi took Loi Evin to the European
  Court and lost (Johansen 2009 C-262/02
  C-429/02).

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Practical considerations

• It is likely that in most European countries a
  comprehensive alcohol advertising ban at the
  national level is legally possible to protect
  minors and to prevent harmful alcohol use.
• It complies with fundamental EU rights, provided
  that sufficient communication channels for
  advertising (with content restrictions) are to be
  kept open.

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EU competency to create an overall advertising
ban

• EU has limited power in making legislation,
  because the main focus is on creating a single
  European market
• However, European restrictions on advertising
  tobacco, gambling and prescriptive drugs show
  that there are possibilities of the EU to protect
  its citizens by adopting extensive advertising
  bans.
• A European comprehensive alcohol advertising ban
  can be justified on health or on economic grounds.

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Justification on grounds of protecting public
health (1)

• Ban might be considered to be trade constrictive.
• EC Treaty (2006) article 28 stipulates that
  Quantitative import restrictions and all
  measures with equivalent effect shall be
  prohibited.
• However, even if the policy measure is considered
  to be trade-distorting the instrument can be
  justified if it is proportionate and
  appropriate (Baumberg Anderson 2008).

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Justification on grounds of protecting public
health (2)

• Article 30 of the EC Treaty states that the
  provisions of Articles 28. . . shall not preclude
  prohibitions or restrictions . . . justified on
  grounds of . . . the protection of health and
  life of humans.
• Clear link between exposure to alcohol
  advertising and youth alcohol drinking behavior
  (Anderson et al 2009 Smith Foxcroft 2009) an
  important argument in favor of a ban is the
  protection of public health.

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Proportionate?

• Less restrictive, cheaper and equally efficient
  alternatives for a comprehensive advertising ban
  available?
• informative educational campaigns are ineffective
  measures (e.g. Babor et al 2010)
• content restrictions or partial volume bans will
  still lead to exposure of minors (STAP 2011)

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Justification on economic grounds

• EU has the competence to harmonize legislation
  for the implementation of the internal market
  (goods, services) (article 95 of the EC Treaty ,
  article 57 paragraph 2, article 66 of the EC
  Treaty. )
• Harmonization of Member States legislation was
  used as an argument for introducing an EU
  directive on Tobacco Advertising (Alegre 2003).
• European wide ban was used to streamline the
  large variety of national restrictions.

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Conclusion

• France, Norway and Sweden show that a ban on
  alcohol marketing is not in conflict with EU
  legislation.
• Tobacco, gambling and prescriptive drugs show
  that the EU is competent to protect its citizens
  by adopting extensive advertising bans
• When considered trade-distorting, a European ban
  can be justified on health grounds when the
  policy instrument proposed is seen as
  proportionate and appropriate.
• Alternatively, a European ban can be justified on
  economic grounds, wiping away unfair competition
  between member states by harmonizing the
  regulations