Select Committee on European Communities Eleventh Report


B. CASES WHERE EFFECTIVE SCRUTINY HAS NOT BEEN POSSIBLE

39. DRAFT DIRECTIVE ON ADVERTISING FOR TOBACCO PRODUCTS (6294/92 - COM(92) 196 FINAL)

Letter from Tessa Jowell MP, Minister of State for Public Health, Department of Health, to Lord Tordoff, Chairman of the Committee

  My Explanatory Memorandum (EM) of 17 November on the proposed EC Directive on tobacco advertising covered a Presidency working text dated 7 November. We have just received a further revised text (dated 27 Novemebr) which was tabled at COREPER on 28 November.

  I enclose a copy of the latest text for your information. The text contains the following substantive changes over the previous text:

RECITAL 7

  This has been changed to reflect changes relating to third country publications and advertising at point of sale.

RECITAL 11

  This has been amended to reflect concerns about freedom of speech.

RECITAL 13

  This has been amended to reflect the position of Member States who believe tobacco brand names already used in good faith" for other products before the entry into force of the Directive may be allowed to continue.

ARTICLE 1

  The word commercial" has been inserted into the definition of advertising".

ARTICLE 2

  Paragraph 2.2 has been amended to allow Member States the discretion to allow tobacco brand names already used for other products to continue to be so used.

  Paragraph 2.3 presents three alternative texts under consideration for dealing with indirect advertising.

  Paragraph 2.5 includes new texts of the existing exemptions for advertising at point of sale and publications from third countries.

ARTICLE 3

  This contains amended text relating to the handling of infringements of the Directive.

ARTICLE 5

  This article now contains a revised proposed timetable for:

  Paragraph 5.1: implementation - 18 months following publication in the Official Journal;

  Paragraph 5.3: sponsorship and indirect advertising - 2 year phasing period available to Member States to allow events time to find new sponsors and to allow companies time to distinguish their brand name from that of the tobacco product.

  Additionally, the text allows a further period of X years allowing Member States to continue to authorise existing sponsorship of exceptional events organised at world level, provided that the tobacco sponsorship decreases and there is a voluntary reduction in visible advertising at these events.

ARTICLE 6

  The Commission will report on the implementation of the Directive not later than three years after publication and every two years following that. This report will pay particular attention to the implementation and effect of those provisions in Article 5(3) on sponsorship and indirect advertising.

  I also attach a Regulatory Appraisal which includes a Compliance Cost Assessment (CCA) [not printed].

  Copies of the 27 November text and the CCA are also being sent to the members of Standing Committee B for the debate tomorrow.

1 December 1997

Letter from Lord Tordoff, Chairman of the Committee, to Tessa Jowell MP, Minister of State for Public Health, Department of Health

  Thank you for your letter of 1 December, with which you enclosed copies of the latest Presidency text of this draft Directive (dated 27 November), as considered by COREPER on 28 November, and your Department's Regulatory Appraisal.

  Sub-Committee C has considered your Explanatory Memorandum of 17 November, together with the reports of the House of Commons Committees on European Legislation (HC 155-vii) and Health (HC 373). It has not, however, been able to give more than preliminary consideration to your latest letter and enclosures or to the proceedings of the debate in Standing Committee B yesterday.

  Given the unreasonable time constraint imposed by the Explanatory Memorandum, we are impressed by the thoroughness with which the House of Commons European Legislation Committee has taken evidence on and considered the proposals. Although Sub-Committee C does not envisage taking further evidence itself, the proposals in their current form raise a number of important issues of principle which the Select Committee will need to consider at its next meeting, on 16 December.

  We would like, in the meantime, to endorse in the strongest possible terms the House of Commons European Legislation Committee's comments (paragraphs 8-9) on the unsatisfactory way in which Parliament has been asked to consider these proposals. If Parliamentary scrutiny is to be meaningful and effective the scrutiny committees must be given sufficient time to examine and comment on proposals. The Amsterdam Treaty's Protocol on the role of national parliaments in the European Union requires a minimum of six weeks and we expect the Government to honour this commitment as a matter of good practice in advance of the entry into force of the Protocol.

  We note your view, as expressed in the Standing Committee debate yesterday, that the latest text now provides a good building block", from which there is a possibility that a Common Position can be reached at tomorrow's Health Council meeting which would be consistent with the Government's long-term aim of achieving a complete ban on all forms of tobacco advertising. In the circumstances, therefore, we are lifting the scrutiny reserve.

  We shall, however, after our meeting on the 16th wish to offer some comments on the substance of the proposals, taking into account any textual changes and other developments arising from the Health Council meeting. To this end, we would be grateful if you could inform us of the outcome of the meeting as soon as possible, and in any event (so that it can also be considered by the Sub-Committee) not later than Tuesday 9 December.

3 December 1997

Letter from Tessa Jowell MP, Minister of State for Public Health, Department of Health, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 3 December which informed me that the House of Lords Select Committee on the European Communities had given scrutiny clearance to the proposed EC Directive banning tobacco advertising. I am grateful that you were able to consider this in such a short time, in spite of the difficulties which the tight timetable clearly caused.

  Nevertheless, I do hope you will understand that the pace of negotiations on this issue was very fast-moving, right up until agreement on a common position text was reached late on at the Health Council itself. We did our best to ensure that both Committees were given the most up to date information available on which to base their considerations: in the circumstances in which the text was developing from day to day - in the direction sought by the UK - this inevitably meant that a definitive text could not be made available several weeks in advance.

  We have now been faxed a copy of the common position reached at the Health Council in English (without recitals, which I will forward as soon as possible). I attach a copy of this text for information, together with a summary explanation of the amendments to the 27 November text [not printed].

9 December 1997

Letter from Lord Tordoff, Chairman of the Committee, to Tessa Jowell MP, Minister of State for Public Health, Department of Health

  Thank you for your letter of 9 December, with which you enclosed copies of the Common Position text and your summary explanation of the amendments agreed at the Health Council meeting on 4 December.

  The Select Committee has now had an opportunity to discuss this matter. On the merits of the proposals generally, we fully support measures by the Community and the UK Government to discourage young people from starting to smoke tobacco. We were therefore particularly concerned that the Government was apparently allowing the narrow interests of Formula One motor racing to compromise its wider policies on smoking and health. Formula One is a glamorous, high profile sport, characterised by noise, speed, high technology, danger and extreme competitiveness. Top drivers (in practice exclusively male) enjoy superstar status. Even without the mounting evidence reported in the press, it is self-evident why this unique combination of factors has a special hold on young men and boys. Although we are pleased to note that the Government was able to drop its original proposal for an open-ended exemption for Formula One, it still seems to us illogical, in terms of health policy, that the government should be so insistent on special treatment for this particular sport when other glamorous, male-dominated sports such as Premier League football have no difficulty in attracting significant sponsorship from commercial interests outside the tobacco industry.

  We note that the Government's position, as presented to Parliament, was that it was trying to broker a compromise which would facilitate agreement on the basic aims of a proposal which had been stymied for the past five years because of outright opposition from certain other Member States, Germany in particular. But we feel uneasy over the way in which the present compromise has apparently come about as a result of unilateral negotiations between the UK Government and the Fe«de«ration Internationale de l'Automobile, rather than through collective Community action. We believe the Government could be criticised for yielding too readily - without any exacting or transparent assessment of the comparative implications for other sports currently dependent on tobacco sponsorship - to special pleading by the FIA and largely specious arguments about the impact of a ban on the choice of venues for Grands Prix and the geographical distribution of Formula One-related industries. We have considerable sympathy with the views which Commissioner Flynn put to you during the course of the negotiations last month.

  The agreement that there should a firm deadline by which all forms of indirect tobacco advertising must be phased out is, of course, to be welcomed, although we question (for the reasons just stated) whether it was really necessary for Formula One to benefit from such a lengthy phasing-out period (to 1 October 2006). We note that the decision not to make specific reference to Formula One in Article 5 removes the grounds for concern (which the House of Commons European Legislation Committee expressed in paragraphs 33-34 and 36-37 of their 7th Report) that special treatment of Formula One might be challenged on grounds of fairness and could create pressures from other sports for derogations which would undermine the underlying aim and principle of the Directive. Nevertheless we remain concerned on several points.

  We appreciate that the present text may undergo some drafting changes, but would welcome further clarification from the Government on the following questions:

  (a) How does the Government envisage events or activities organised at world level" being defined?

  (b) Apart from Formula One, is there a danger that other sports (not necessarily ones which already receive sponsorship from the tobacco industry) will try to exploit this seeming loophole by claiming world level" status?

  (c) During the 3-year period up to 1 October 2006, how will Member States ensure that tobacco sponsorship is being phased out at a satisfactory pace and how will this be monitored?

17 December 1997




 
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