Tobacco Advertising on the Internet

1) General remarks on tobacco advertising in Germany

According to section 22 § 1 of the Act on Food and Consumer Goods (Lebensmittel- und Bedarfsgegenständegesetz / LMBG) it is not allowed to advertise on radio or television for cigarettes, cigarette-like tobacco products and other tobacco products that are intended to enable the consumer to make cigarettes. In addition to this statutory ban of tobacco advertising, the Federal Supreme Court created a jurisdiction which bans cigarette advertising in youth-magazines (BGH GRUR 1994, 304).
Apart from this total ban, the tobacco industry agreed on self-restrictions, regulating the content of tobacco advertising on billboards and public transport, in magazines and cinema and at sport events (Self-Restriction by the Tobacco Industry of 27.11.1972, published in the Federal Legal Gazette No. 229 from 7.12.1972). Advertising in these mediums must not show typical elements of the youth's world, e.g. media stars, actors, politicians, people under 30 years or people doing sports.
According to section 22 § 2 LMBG it is forbidden that advertising gives the impression that the consumption of tobacco would be harmless to one's health or would have a positive influence on one's physical capability or well-being. Also advertising that potentially could lead youths to smoking, shows inhaling as exemplary or describes tobacco products as natural is banned.
Finally, according to section 3 § 1 of the Regulation on Labelling of Tobacco Products and Maximum Quantities of Tar in Cigarette Smoke (Verordnung über die Kennzeichnung Tabakerzeugnissen und über Höchstmengen von Teer im Zigarettenrauch / TabKTHmV) in relation with the Self-Restriction by the Tobacco Industry of 27.11.1972, tobacco advertising has to give a warning about the risks of smoking ("Smoking causes cancer", "Smoking causes heart and vascular disease"). This obligation was confirmed by the Federal Constitutional Court to comply with the fundamental rights (BVerfG WRP 1997, 424).

2) Consequences from German law for Internet communication

The ban of Sect. 22 § 1 LMBG would only apply to websites, if the Internet has to be regarded as radio or television. Due to the different possible services on the Internet, websites cannot be generally seen as radio or television. The main characteristic of radio and television is "broadcasting" which means that a large group of people can be watching/listening the content at the same time; it is a point to multi-point communication. On the Internet this will only be the case, if a company provides a live TV- or radio-programme (Live-stream) on its website. The usual website, however, offers a point to point communication where the users have individual access to the company's information but not at the same time, because the users might watch different pages of the website and even if they watch the same page, their requests will be handled one after another (yet very quickly). Usually a tobacco-industry website therefore would not be regarded as radio or television because of the missing "broadcasting"-element.
In addition it has to be examined whether the proposed website falls within the scope of the restrictions of sect. 22 § 2 LMBG. It is therefore important whether the website has to be seen as "information" (which is not regulated) or "advertising". In Germany all actions that serve any business purpose are regarded as advertising. This is a very extensive definition and only private or official activities are not covered by it. There is an assumption that all content that is published on a company's website is such an acting for business purposes so that such a website has to comply with sect. 22 § 2 LMBG. However, even on an "information"-website the above mentioned self-restrictions (in particular the prohibition of showing typical elements of the youth's world) would have to be kept.
Unlike in other countries, in Germany it is generally possible to have websites of the tobacco industry.

3) General remarks on tobacco advertising in Europe

Advertising for tobacco products in Europe is regulated by Directive 98/43/EC on "Advertising and Sponsorship of Tobacco Products". The Directive came into force on 30.07.1998 and generally banned all forms of advertising and sponsorship for tobacco products (Art. 3 § 1).
According to the Directive, all products that are suitable for smoking, sniffing, sucking or chewing that consist - as a whole or partly - of tobacco, are regulated (Art. 2 § 1). Advertising is defined as any form of commercial communication , aimed on or with effect on the promotion of selling a tobacco product, including advertising which uses only brand names, trademarks, emblems or other distinctive features (Art. 2 §2).
Exempted from the application of the directive are amongst others (Art. 3 § 5): communications with professionals in the tobacco trade, advertising in shops specialized in the sale of tobacco products, the sale of publications published and printed in non-EU countries (and not principally in-tended for the EU-market) which contain advertising for tobacco products.
The Directive has to be implemented by the Member States not later than 30.07.2001 but may be deferred for one year in respect of the press. Since this Directive was adopted against the votes of Germany and Austria, Germany filed a suit against the Parliament and the Council in order to let the ECJ (C-376/98) check the Directive. Also in a couple of preliminary ruling procedures the ECJ (C-74/99; C-234/99) will have to review the Directive's legality, as many have doubts whether it complies with the principle of appropriateness of the means.

4) Consequences from EU law for Internet communication

The definition of advertising as

"any form of commercial communication with the aim or the direct or indirect effect of promoting a tobacco product, including advertising which, while not specifically mentioning the tobacco product, tries to circumvent the advertising ban by using brand names, trademarks, emblems or other distinctive features of tobacco products"


is very extensive. It is definitely more extensive than the traditional meaning of advertising (however seems to cover the same actions like the definition in German law). In order to determine the aim of a communication, it is necessary to look at the company's intention. For some companies, this could mean that there is no advertising, because they do not intend the effect of promoting. However, also the objective effect of communication has to be taken into account, even if the directive does not constitute any criteria to determine the promoting effect of a communication. The directive also does not distinct between push- and pull communication. Even the simple naming of a trademark could therefore be regarded as advertising, which leads to a problem with using such a name as internet domain name (e.g. www.pallmall.com, www.luckystrike.com). It is presumed that all websites that deal with tobacco products will be regarded as advertising, unless they mainly look into the question of risks of smoking. Probably only those websites of tobacco product companies will be permissible that make no reference to tobacco products. Eg. according to Art. 3 § 2 Member States may allow a brand name already used in good faith both for tobacco products and for other goods or services prior to 30.07.1998 to be used for the advertising of those other goods or services. However, the use can only be allowed if it's manner is clearly distinct from that used for the tobacco product and without any further distinguishing mark already used for a tobacco product.

© 2000 Jens Barkemeyer