Regulating the leading cause of lung cancer isn’t as simple as it seems. What have the US and the EU done?
By Teodor Teofilov
US regulation on Tobacco Advertising
The US currently requires one of four rotating health warnings to be present on the side of all cigarette packages. Smokeless tobacco packages are required to carry warning label statements that cover 30 percent of the two sides of the package and tobacco companies are prohibited from making reduced harm claims like “light,” “low” or “mild” unless they are permitted to do so by the US Federal Food & Drug Administration (FDA).
Congress passed legislation in 2009 that required a larger health warning to appear on cigarette packages, and in 2011 the FDA published a final rule that required graphics depicting negative health consequence of smoking should accompany the new text health warnings. However, this never appeared on packages as tobacco companies challenged this in court and the D.C. Circuit Court of Appeals, in R.J. Reynolds Tobacco Co. v. Food and Drug Administration (2012), vacated the rule and denied the government’s request for a rehearing. The US government didn’t seek a further review of the Court’s decision.
The judges treated the government’s “subjective — and perhaps even ideological — view that consumers should reject this otherwise legal, but disfavored, product” on the same grounds as political or religious speech. The court examined the legislation and rejected it because there was no evidence by the government that this restriction would work. In other words, the government had to pass the so-called “strict scrutiny”, which is used on the most intrusive restrictions on speech, like banning political discussion or the advocacy of a point of view.
In the Lorillard Tobacco Co. v Reilly in 2001, the Supreme Court ruled that many state regulations on tobacco advertising were in violation of the First Amendment.
“We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State’s substantial interest in preventing underage tobacco use,” wrote Justice O’Connor in the majority opinion.
“Harmful products, [like] harmful ideas, are protected by the First Amendment,” wrote Justice Clarence Thomas in a concurring opinion.
The First Amendment provides tobacco companies with protection for commercial speech. Commercial speech, as defined by the Supreme Court is the speech where the speaker is engaged in commerce and the intended audience is commercial, actual or potential consumers. Such speech is advertisements and the court has given it less protection than noncommercial speech under the First Amendment. The protections of commercial speech are set by the decision of Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980), which created a four-part test in deciding if regulations on commercial speech violate the First Amendment.
Hudson four-part test:
1. Whether the commercial speech concerns a lawful activity and is not misleading
2. Whether the government interest asserted to justify the regulation is “substantial”
3. Whether the regulation “directly advances” that government interest
4. Whether the regulation is no more extensive than necessary to serve that interest
“I do not see a philosophical or historical basis for asserting that “commercial” speech is of “lower value” than “noncommercial” speech,” wrote Justice Clarence Thomas in 44 Liquormart Inc. v. Rhode Island (1996).
Noncommercial speech is entitled to full protection and any regulation needs to meet the standard of “strict scrutiny”, something that commercial speech doesn’t have. For content-based regulation of commercial speech to be upheld, it only needs to withstand intermediate scrutiny.
Scrutiny is what the government needs to show to prevail and keep the regulation it has imposed. Strict scrutiny is the highest bar that the government has to show. The government must show it has a compelling interest to regulate and that the law has been narrowly tailored to achieve that interest. To pass intermediate scrutiny the law has to further an important government interest and the restriction needs to be substantially related to that interest.
Advertising of tobacco products isn’t illegal and is protected by the First Amendment currently.
What about European tobacco advertising
Tobacco advertising and sponsorship on television were banned in the European Union in 1991 by the Television without Frontiers Directive, which was later extended by the Tobacco Advertising Directive in 2005 to cover the internet, print media, radio and sports events, such as Formula 1. The law doesn’t incorporate advertising on billboards, cinemas or using merchandising.
However, most member states of the EU have incorporated the directive into their national law and have extended its scope to cover local advertising. In 2008 the European Commission issued a report on the implementation of the EU Tobacco Advertising Directive and concluded that all EU member states had successfully incorporated the directive into their national law and that the laws were well applied.
The EU has also stopped the branding of cigarettes as light or mild as that misleads consumers about the dangers of smoking. Packages in the EU carry health warnings such as “Smoking Kills” and must cover at least 30 percent of the front and 40 percent of the back of packages.
The 2014 Tobacco Products Directive requires any cigarettes, rolling tobacco and waterpipe tobacco to combine the previous health warnings with a picture from the EU picture library, the text warning and information on services to help with stopping smoking. This directive came into effect in May 2016.
The application of the same requirements on other types of tobacco products such as cigars, cigarillos and pipe tobacco are up to the member states discretion. The new warnings have to cover 65 percent of the front and back of packages. As of 2017, there are five EU countries that haven’t taken measures to implement the pictorial health warnings that are mandated by the Tobacco Products Directive.
While some countries in the EU have banned the display of tobacco products, advertising at sales point is the norm for the majority of countries. There are even some states that allow for sponsorship of national events or outdoor advertising. Within the EU only Germany and Bulgaria permit billboard advertising of tobacco products. Smoking is still advertised in magazines, during sports events and at stations and shops. In some countries, there are anti-smoking advertisements on television in order to counter the effects of tobacco advertising.
The Tobacco Control Scale ranks 35 European countries on tobacco control policy implementation and its 2016 report shows that although most countries within the EU have implemented the Tobacco Product Directive, the overall mark is negative, with countries outside of the EU having few or no legislation to control tobacco ads.
“EU countries are above the regional average regarding the ban on promotional discounts, on free distribution, on product placement and sponsored events but there is an opportunity for improvement in the appearance of tobacco products in TV and/or films as well as vending machines,” the regional office for Europe of the World Health Organization said.
A study examining exposure to tobacco products and e-cigarettes advertisements in the 28 member states of the EU shows that 40 percent of respondents have been subject to these types of ads in a year. The people that were most likely to see an e-cigarette or a tobacco product advertisement were current smokers, males, younger respondents and those with financial difficulties. In countries with more comprehensive advertising bans the exposure to tobacco advertisements was less likely, but not so for e-cigarettes.
“Although many factors influence tobacco experimentation and use, a number of studies have shown that tobacco industry advertising and promotion stand out as a prominent factor in encouraging tobacco use,” writes an editorial by the European Respiratory Journal from 2017. “Cigarette packaging, including the pack format (size, shape and opening), colors and logos, impact consumer perception of health risks of smoking. The whole purpose of plain packaging is to thwart this industry tactic.”
Even though the EU has already introduced health warning pictures that cover 65 percent of the package, the European Commission is supportive of the introduction of plain packaging as in Australia.
A research paper by the European Network For Smoking And Tobacco Prevention, a nonprofit organization aiming to create greater coherence among smoking prevention activities and to promote comprehensive tobacco control policies at both national and European levels, has shown that there has been a decline of smoking prevalence in minors after the introduction of plain packaging in Australia. There has been a 52 percent reduction in smoking prevalence in minors over a 13 year period.
The revenue of the tobacco industry in Europe in 2018 is expected to reach $163 billion and is expected to grow by 1.1 percent per year. In comparison in the US, the industry is expected to grow to $124 billion in 2018 from the $121 billion in 2017. As the tobacco industry is so large it is easy to see how it can spend huge amounts on advertising – in 2016 in the US alone the tobacco industry spent $8.7 billion on cigarette advertising.
“Any loss in the industry’s revenues or a country’s tax revenues from tobacco products arising from e.g. health warnings or plain packaging should be counterbalanced against the cost to the economy of treating people with smoking-related diseases,” a Commission spokesperson told EURACTIV in August 2017.
Annually smoking-related disease cost an nearly $30 billion in healthcare across the EU the official pointed out.
The power and size of the tobacco industry across both the EU and the US has made it difficult to introduce regulations on the cigarettes and other tobacco products. However, it is important to attempt to make the public more aware and limit the advertising of harmful products in order to protect people in vulnerable communities.