Good for the Heart?

Author:Mr Paul Jones
Profession:Farrer & Co
 
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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?

Tobacco advertisements

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.

The Prohibition

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...

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