Policy Implementation: Banning Advertisements for Tobacco Products - A lesson to learn from?

Table of Contents

I. Introduction

II. Two unhealthy Habits
II.1. Alcohol Abuse in the European Union
II.2. The Tobacco Advertising Directive
II.2.a. Tobacco Consumption in the European Union
II.2.b. The Emergence of the Ban
II.2.c. Results: The Problems of the Ban

III. Policy Implementation
III.1. The Theoretical Problem
III.2. The Structural Problem: Infringement Procedure
III.3. Results: Inherent Problems of Implementation

IV. Drawing a Lesson: Problems to avoid!
IV.1. A multiplicity of interests: Tobacco Lobbying
IV.2. Learning a Lesson?

V. Conclusion

List of References:

Annexes:

Annex 1: Legal Documents concerned with tobacco consumption

Annex 2: Advertising Bans

Annex 3: Tobacco advertising ban – decision-making process

Annex 4 Tobacco Companies

I. Introduction

Alleged 55 million adults in the European Union drink at harmful levels. Undoubtedly abuse of alcohol is insanitary. Therefore the European Commission set out a strategy in October 2006 to reduce the numbers of drinkers. Among the measures is a recommendation to ban advertisements for alcohol. Drinking is unhealthy – so is smoking. Thus the Tobacco Advertising Directive is finally implemented in the summer of this year by the last member states. But the story of this achievement reaches back nearly a decade: due to implementation deficits the process of banning advertisements for tobacco products cannot be regarded as a fast and efficient process. It started in 2003 when finally the directive 2003/33/EC was passed by the Council and the European Parliament that prohibits any kind of advertising for tobacco products in print, internet and online media. It should have been implemented by each member state until the 31st of July 2005. But two countries – Luxembourg and Germany – failed to implement up to that date. Germany sued the Commission, because they argued that the directive exceeded its legal base concerned with the internal market and competition rules. Those were the reasons the Commission had claimed to justify its directive. Germany took the directive to the ECJ, and the Commission – as the last step of the infringement procedure - sued Germany for not implementing. While both cases were pending the German government finally agreed to implement the directive in July 2006 – but only at the time where it was quite likely that they would loose their case at the court.

In total it took the Commission nearly ten years to achieve their aim. Now, with the discussion about banning advertisements for alcohol a similar process starts again. If the Commission could or should learn something from its former experience is the question that should be answered in this paper.

Research Question:

In what way can the Tobacco Advertising Directive be a suitable lesson to be drawn to achieve the similar goal of banning advertisements for alcohol?

In the second part of this introduction necessary remarks about lesson drawing in general will be made. A vital part for lesson drawing is – obviously – a similarity between the two cases that shall be compared. That this applies to the chosen examples will be shown in the first part after the introduction. Furthermore in this second part of the paper the emergence of the Tobacco Advertising Directive will be shown. A model will be developed that describes the real-life deficits of the implementation process.

In order to draw a lesson, it must be possible that the same difficulties as identified in the first case might come up in the future process. Therefore the third part of this paper is concerned with analysing not only case related, but also process inherent problems of implementation. Finally the results will be used to try to draw a lesson.

Preliminary Reference - Drawing a lesson?

Richard Rose explains in his book “Learning from Comparative Public Policy. A Practical Guide” how countries can learn from each other about the success and failure of policy initiatives. He argues that lesson drawing can on the one hand increase the range of choices policy makers have. And on the other hand lesson drawing can help to avoid committing the same mistakes as before or as other committed. “A lesson can be a warning about what not to do” (Rose, 2005: 24) and an explanation why a policy initiative failed.

Although Rose concentrates on nation states, his assumptions will be considered as the base for lesson drawing in this paper. Yet the European Union is a rather different case than nation state based lesson drawing. There is no such other institution that is similar to the Union to learn from. The EU cannot be regarded as a classical, sovereign state. Even though it inherits some features which are a requirement of being sovereign like the recognition by others and the occupation of a defined territory (Jackson and Owens, 2005). Further considerations would be beyond the scope and aim of this paper. Because of the lack of a comparable other state-like actor a former policy process will be taken into account to draw a lesson. This is described by Rose as a historical analogy. “An analogy offers a simple and fast method for drawing a lesson from the past” (Rose, 2005: 43).

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Rose identifies six steps in making a historical analogy shown in Figure 1. As the author uses a different focus (nation states and practical lesson drawing for decision makers), only some of the steps will be used in this paper.

At first a short outline of the present considerations about banning advertisements for alcohol will be given. By this it will be made clear that there are enough similarities between the current and the past problem to enable lesson drawing. Secondly the process of banning advertisements for tobacco will be explained in detail to show the deficits. In order to come up with thoughts about the deficits the whole process will be linked to policy implementation in general and possible inherent problems in particular. Finally the results will be used to give recommendations for the new process of banning. So this paper will elaborate mainly on Rose’s first four steps and leaves out the second two, as they are somehow more related to policy makers.

II.Two unhealthy Habits

II.1. Alcohol Abuse in the European Union

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Figure 2: Causes of early death in the European Union

Alcohol abuse is undoubtedly unhealthy. Therefore only some basic facts will be given: “Harmful alcohol abuse is the third biggest cause of early death and illness in the EU, behind tobacco and high blood pressure” (European Commission, 2006: 1) as shown in figure 2. 195,000 Europeans die each year from diseases related to alcohol consumption. 60 different diseases are related, among them liver cirrhosis is the most hazardous one. Yet, in the average each European drinks 11 litres of pure alcohol each year, which equals about 1400 small beers per person per year (WHO, 2004). The starting age for drinking among young persons is at 13.6 years for boys and at 13.9 for girls. “The cost of alcohol-related harm to the EU’s economy has been estimated at 125 billion Euros for 2003, equivalent to 1.3 per cent of the GDP” (European Commission, 2006).

For those reasons the European Commission adopted a “Communication on reducing alcohol related harm in Europe” in October 2006. This communication shall protect young people and children; reduce injuries and deaths from alcohol-related road accidents; prevent harm among adults and reduce the negative impact on the economy; raise awareness of the impact on health of harmful alcohol consumption; and help gather reliable statistics (European Commission, 2006). These aims shall be reached by various measures and programmes, such as spreading of good practices and information campaigns. Alongside possible contributions by the related industry are discussed. Those reach from “responsible” advertisements to a complete ban on advertisements for alcohol.

Thus it can be concluded - ahead of the presentation of the tobacco advertisement ban - that the whole process of reducing alcohol abuse might develop into the same direction towards a ban: because the Tobacco Advertising Directive started in a similar way, as will be shown in the next part.

II.2. The Tobacco Advertising Directive

II.2.a. Tobacco Consumption in the European Union

“The proportion of adults who smoke in the European Union ranges from 17.5% in Sweden to 45% in Greece” (Joosen, 2004). On the average 29 per cent of all Europeans can be regarded as regular smokers. The varieties among the amount of smoked cigarettes per year per person can be seen in Figure 3. “Tobacco related diseases kill 650 000 EU citizens every year” (European Commission, 2005). The diseases cost 98 billion Euros per year, about one per cent of the GDP.

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In order to fight smoking the European Union took a huge variety of measures like issuing communications, TV broadcasts, directives and regulations, that can be seen in Annex 1: Legal Documents concerned with tobacco consumption. Examples are the campaign “HELP: For a Life without Tobacco”, visible warnings on cigarette packs and bans on smoking in public places. The focus of this paper is concerned with the advertising ban; thereby these other legal documents shall not be of further adherence. Nevertheless the variety of legal documents shows, that the ban is only one measure among others in the strategy of the European Union to tackle the problem of smoking.

Tobacco advertising on television is banned since the early 1990s by the "TV Without Frontiers Directive". The Tobacco Advertising Directive should ban advertising in other media. But in what way might a ban contribute to solve the problem?

“The tobacco industry denies that advertising plays a role in encouraging people to smoke or increasing the amount smoked, but the research suggests otherwise. As governments acknowledge the harm caused by tobacco and the need to discourage its use, restrictions and outright bans on tobacco advertising are becoming common. Partial restrictions are notorious for leading to other forms of marketing supplanting the restriction. Because of the shift of marketing dollars from one medium to another, the evidence suggests that comprehensive bans on all forms of tobacco promotion can be effective in reducing tobacco use, while partial restrictions have limited or no effect.” (WHO, 2004)

“The empirical evidence [from a comparative research of different countries’ bans] also shows that comprehensive advertising bans can reduce tobacco consumption, but that a limited set of advertising bans will have little or no effect” (Saffer and Chaloupka, 2000). Also studies like the Report on the Economics of Tobacco Control (World Bank, 1999) postulate a need for a ban on advertising for tobacco. Effects of a concise advertising ban for tobacco products can be seen in Annex 2. According to this study the first proposed ban would have reduced smoking in the EU up to seven per cent (Neumann, Bitton, Glantz, 2002). This would have had tremendous short- and long-term benefits for the health of the Europeans. Furthermore the European Union and its member states are members of the WHO’s Framework Convention on Tobacco Control, which also claims a ban. Additionally visible health warnings and measures to protect non-smokers are among the goals of the convention.

In conclusion a ban on advertising can be a successful measure to reduce smoking.

II.2.b. The Emergence of the Ban

Already in 1998 the European Commission had proposed a directive (98/43/EC5) concerned with the ban on advertisements for tobacco products. The directive was aimed at all forms of advertising and sponsorship. However the European Court of Justice (ECJ) annulled the directive on October 5th 2000 for reasons concerned with its legal base – it had exceeded the legal base on which it had been adopted. Among other Member States Germany had claimed that the Community has reached beyond the scope of its competences regulating the internal market and competition. Accordingly the Court stated that the directive “should have had a greater focus on facilitating trade and competition in the internal market” (European Commission, 2000).

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But in principle Article 95 of the EC Treaty could be a legal base for such a directive. At the same time the Court acknowledged that public health protection is a vital part of other policies. The Commissioner for Health and Consumer Protection at that time, David Byrne, claimed that there must be an immediate rewriting of the directive and recalled that a huge majority of the states had supported the directive (European Commission, 2000). Some member states had already taken measures themselves, which was one of the reasons the Commission had given to justify its activity. Those differences in legislation became even stronger in the time after the annulment.

The legal deficiencies set out by the ECJ were taken into account when the Commission proposed a new directive in May 2001 (Commission proposal 283). It was aimed at harmonising existing regulations within the different member states about advertising for tobacco products (European Commission, 2002). The overall goal – and/or legal base - was to advance the internal market, as the differences among the member states could be regarded as obstacles to the freedom of movement – which is described in Article 1 of the directive (Directive 2003/33EC, Article 1). The new advertising directive should have prohibited ads in print, radio or internet media, because they can be regarded as having a cross-boarder reach to justify a regulative activity by the Union. At the same time tobacco sponsoring in cross-boarder cultural and sporting events should have been banned.

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The decision-making process that led to the directive is of minor importance for this paper, as it is focussed on the implementation problems. Therefore the decision-making is only summarized in Annex 3: Tobacco advertising ban – decision-making process. However the process took two years – which can be regarded as a normal speed for a decision in the European Union. After some variances were made, the directive 2003/33/EC was signed by the European Parliament and the Council in May 2003. The member states were obliged to implement the directive until 31st of July 2005 at the latest. By July 2005 twelve of the member states had implemented the directive completely, or had started to implement.

Anyhow Germany failed totally to implement, and sued already in 2003 a second time, with the same justification: the directive was allegedly not justified, but beyond the scope of Article 95 EC. “Die Bundesregierung war und ist dabei der Auffassung, dass die Gemeinschaft mit dem Erlass dieser Regelungen ihre Kompetenzen aus dem EG-Vertrag überschritten hat” (Bundesministerium für Ernährung, Landwirtschaft und Verbraucherschutz, 2006). But the German government claimed that they were not against the content of the directive. They only wanted to define the scope of European Policies precisely. “Die EU […] kritisiert Deutschland mit fadenscheinigen Argumenten: Streitig zwischen Brüssel und Berlin ist nicht ob Rauchen schädlich ist; uneins sind wir uns aber in der Frage, ob die EU die Kompetenz hat, uns ein Tabakwerbeverbot vorzuschreiben“ (Würmeling, 2006).

If Member States fail to implement Community Law the Commission can start an infringement procedure (which will be further explained in part III.2. Although the German government created a first national implementation directive in may 2005, the implementation process stopped, because there was no ruling from the ECJ about the annulment. In the end, in October 2005 the Commission started the infringement procedure against Germany and Luxembourg by sending “a letter of formal notice”. In February 2006 the Commission gave a “reasoned opinion” to the two member states which had two months to react before the case would go to the European Court of Justice. “In case member states still do not comply with the judgement of the Court, the ECJ can impose fines following a proposal of the European Commission” (European Commission, 2006 (2)). Luxembourg had supported Germany’s efforts to get the directive annulled. But stepped back in April 2006 and implemented directive 2003/33/EC before the end of July 2006. But Germany did not. Finally, The Commission referred Germany to the ECJ by the end of June 2006.

Shortly before the Advocate General of the ECJ, Philippe Léger, proposed in mid June 2006 that the ECJ should dismiss the action brought by Germany against the tobacco advertising directive (ECJ, 2006). He claimed that the directive was based on the legal scope discussed above. Although the opinion of the Advocate General was not binding for the Court, Germany finally stepped back and started to implement the directive before the ruling of the Court was final. In the beginning of November 2006 the German “Bundestag” finally adopted the implementation measures. The process shall be fulfilled by the end of May 2007.

II.2.c. Results: The Problems of the Ban

The case description above shows that the main problems of the implementation process of the Tobacco Advertising Directive 2003/33/EC have been Germany’s efforts at the European Court of Justice to achieve an annulment of the directive. At least as presented in this way, which is the European Commission’s point of view. But as this paper tries to draw a lesson for a second initiative by the Commission, this perspective is necessary to examine where possible failures and mistakes were made. Germany argued that the directive exceeded the competences of the Community. Alleged reasons for Germany’s behaviour are presented in part IV.1. and also the alleged influence of a concise lobbying by the tobacco industry is described. Up to this point the whole process of the Tobacco Advertising Directive can be summarised in the following table:

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III. Policy Implementation

From the description given in part II one can assume that the policy implementation in the European Union depends strongly on the willingness of the member states to implement. If this is really true, or if there might be other difficulties for the implementation will be examined in this part.

III.1. The Theoretical Problem

The whole process of policy-making and policy implementation in the European Union can be shown in a simplified way in the next figure:

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Initiated by outside pressure, or by own initiative, the European institutions start the decision-making process. By that a first output is achieved at the European level, such as a directive, regulation or any other type of European Law. These than can have in general a direct or indirect effect (Deards and Hargreaves, 2004). For example Treaty Articles, regulations and decisions have a direct effect; they need to be implemented directly by the national authorities. Indirect effect refers more often to recommendations and opinions. In this case community law is used to interpret national law. Directives, such as the Tobacco Advertising Directive, can either have direct or indirect effect. In this case a direct effect is written down in Article 10 of the directive (Figure 5). For that reason the member states did not have room to manoeuvre in how far to implement the directive. Implementation in this sense is regarded as transposition in national law, shown as output 2. Thus, the question about the degree of implementation can be simplified in a two-option answer: Did the member state implement the directive, yes or no?

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