The Nordic tobacco producer House of Prince has been acquitted in a case concerning tobacco advertising. The judgment, rendered 9 October 2006, will in all likelihood make politicians and health organisations call for better regulation.
By Jesper Høberg, journalist
There is no such thing as a "safe" cigarette. If you are worried about potential health damages as a result of smoking, you should quit.
Now that is not exactly a commercial slogan. This statement could not come from a tobacco producer.
Or could it?
9 October 2006 saw the landmark conviction of Philip Morris, the largest tobacco producer in the world, in a case where the business received the largest penalty in Danish history for disregarding the ban on tobacco advertising.
The same week also saw the acquittal of House of Prince in another case concerning tobacco advertising.
The very different outcomes of these cases have brought to the test the tobacco advertising ban which Denmark unilaterally passed in 2002 following years of delay in the EU. As a basis, the act in effect bans all types of tobacco advertising. A number of exclusions apply: display of cigarettes at sales places and information solely intended for people in the trade.
The judgment, which upholds a previous city court ruling, will in all probability make interest organisations and politicians demand that the act be tightened. The Danish Consumer Ombudsman believes that the judgment has diluted the very notion of advertising set out in the ban.
The health lobby protested loudly when House of Price was acquitted first time round a year ago.
The Danish Consumer Ombudsman reported House of Prince, a company under the Danish tobacco giant Scandinavian Tobacco Company, to the police following changes made to 325,000 cigarette packages. The usual name, Blue King’s, had been replaced with girl and boy names popular in the 1970s and 1980s on one of the sides. The cigarette packages were displayed in Perspex dispensers, which carried the message 'available for sale at the counter'. This is a clear circumvention of the tobacco ad ban, the Consumer Ombudsman said – even if the ban does exempt display of tobacco products in the place of sale.
In fact, it appears to be no more than a marketing gimmick, the Consumer Ombudsman claimed further, aimed at boosting sales. He is concerned that the judgment opens up for similar circumventions in the future; that cigarettes packages can be used for advertising purposes without any consequences.
House of Prince states that the company did not try to land new customers. The purpose of the campaign was to avoid losing existing customers to the competitors. There is no harm done legally by displaying cigarettes at conventional sales places such as bars and cafes, they said. An opinion evidently shared by the city court that passed the first judgment and now the High Court.
This stand is consistent with the tobacco company’s general attitude to the tobacco ad ban: we do not need it. Advertising does not incite people to start smoking – it can only help players in market to lose or gain market shares.
House of Prince was also charged with having published product information on its website. Despite its advertising value – which at any rate was limited the High Court claimed, the company did not break the law on this count either.
The legal evaluation of the case carried out by the Consumer Ombudsman was thus rejected out of hand by both court instances. But the Consumer Ombudsman still has ample reason to celebrate: another city court passed a resounding judgement in a case against Philip Morris, the company behind the Marlboro cigarette, the very same week.
In 2004, the American conglomerate published large size advertisements encouraging smokers to stay away from its products if they were concerned with health damages. Danish health and cancer organisations were outraged by the advertisements. While the chairman of the parliamentary health committee applauded the initiative, health professionals believed it to be a trick to get more press. The whole campaign, it was argued, was very unsavoury – especially when considering that Philip Morris and other people in the trade had spent years thwarting scientific research which connects smoking and bad health. Add to that substantial sums of money poured into hidden lobbyism – even in Denmark.
In 2000 the Danish newspaper Jyllands-Posten disclosed how Philip Morris had sponsored a smoker’s interest group so that it could defend smoking in an agitated public debate on the issue. Likewise, Tage Voss, a controversial doctor and advocate of smoker’s rights who furthermore refuted the connection between smoking and lung cancer, was likewise on the company’s payroll for some time.
The suspicion voiced by anti-smoking lobbyists that Philip Morris’ 2004 ads were just a clever sham with the single purpose of hugging themselves in public was shared by the Consumer Ombudsman. And by the city court that passed the final verdict in October 2006.
It costed Philip Morris € 133,000.
It was a historical judgment.
First of all because the fine metered out by far exceeds any fine previously imposed in pursuance of the tobacco advertising ban. Secondly, the ban was invoked despite the fact that the ad does not appear to be commercial communication at first sight.
Earlier examples of tobacco advertising have been easier to clamp down in that the content of these ads have consisted of depictions of tobacco products, especially equipment used for smoking which the ban also covers.
The argument raised by Philip Morris was that the ads were simply a contribution to the public debate on smoking, and that a ban would limit their freedom of speech – in effect a violation of both the Danish constitution and the European Convention on Human Rights.
We did not intend to make people buy more cigarettes, maintained House of Prince. Neither Judge Caft nor the Consumer Ombudsman believed this claim.
The American tobacco giant was very surprised by the judgment; moreover, they found the size of the fine grossly disproportional.
The fine followed the established precedent of doubling the costs employed on the marketing campaign.
According to Philip Morris, the campaign with the ads has been running in 21 countries without criminal lawsuits. The Netherlands is the only country that has a pending lawsuit against the tobacco firm.
The conglomerate has not yet decided whether to appeal against the Danish judgment.
Following a rejection in the European Court of Justice of a directive which would ban all tobacco advertising as of 2001, Denmark decided in 2000 to implement a tobacco advertising ban unilaterally. A revised version of the directive has since been adopted.
In 2002, the esteemed medical journal The Lancet concluded that the directive had been delayed for 13 years owing to massive lobbyism by the international tobacco industry which evidently cultivated secret contacts with top politicians. These include the former German Chancellor Helmut Kohl, former British PM Margeret Thatcher, former British Minister of Health Kenneth Clarke and former EU Commissioner for Enterprise and Industry, the German Martin Bangemann.