Legal Advice on Tobacco Products - Assignment Example

Legal Advice on Tobacco Products Institution Student’s Name Legal Advice on Tobacco Products Introduction France has been a party to the World Health Organization Framework Convention on Tobacco Control since February 2007, 2005 (Tobacco Free Kids, 2017). The ratification of the framework meant that France had to regulate practices linked to tobacco products and processes. Tobacco advertising is the promotion of tobacco use or products, especially cigarette smoking, by the tobacco industry through the media. It is one of the most regulated marketing forms in the world with several countries banning tobacco advertisements. Based on the legal framework of France and the need to protect the public the prohibition of advertising and publicity for tobacco is legal. Laws Regulating Tobacco Products in France France being part of the World Health Organization Framework Convention on Tobacco Control (FCTC) means they had to ensure a lot of regulation of the tobacco products. First, the country had to ensure that it had smoke-free places. In explanation, the country had to prohibit smoking in workplaces and indoor public places. However, the managers of some of these places are given the mandate to designate particular areas for smoking. Smoking is also prohibited in most of the public transport forms with the exceptions of the outdoor places such as commercial watercraft and taxis. Furthermore, the law prohibits smoking in some of the outdoor areas, more so, those that usually have high presence of the minors. The sub-national jurisdictions, however, have the mandate of enacting smoke free laws but they need to be more stringent compared to the national laws. Second, France has a regulatory law on tobacco sponsorship, promotion, and advertising. The law prohibits all forms of cross-border and domestic tobacco promotion and advertising with exception of only a few. The law currently allows for the display of products at given sale points. However, all the forms of tobacco sponsorship including financial are prohibited. The law also allows for the rebroadcasting of motorsport competitions that entail indirect or direct advertising of the tobacco products in which the advertisement is allowed. Third law focuses on labeling and packaging of the tobacco products. France law call for plain or standardized packaging of all the packs of rolling tobacco and cigarettes. The law calls for the packaging to be standard in shape, size, and color and has specific information to contain including prescribed warnings on health. The law calls for all the tobacco products to have both pictured and text health warnings that occupy about 65 percent of the back and front of the package of the tobacco products (Tobacco Free Kids, 2017). The law also requires the warnings to rotate round the package. A general warning and information message on emissions and constituents must occupy 50 percent of each of the sides of the packages. However, for the tobacco products those are smokeless, the text warning need to occupy about 30 percent of the back and front of the tobacco product package. The law also prohibits misleading labeling and packaging such as ‘low tar’ and ‘light’ among other signs. Revolution of the Tobacco Control Legislation in France Before ratifying the World Health Organization Framework Convention on Tobacco Control, France still had a strong legislation against tobacco. It banned advertising of tobacco and indoor smoking of tobacco, more so, in the workplaces and public places. The ratification of the framework in 2004 contributed to the regulation and enforcement of tobacco control measures that already existed. It also helped in the improvement of the legislation that existed to ensure that France adopts best practices. The primary law in France that tobacco control is called the Veil Law and Evin Law that was passed in 1976 and 1991 respectively. The two are now codified into the Code of Public Health (Tobacco Free Kids, 2017). Advertising, Sponsorship, and Promotion The prohibition of publicity and advertising for tobacco in France falls in advertising, sponsorship, and promotion. The law calls on the ban of tobacco and its products in all the broadcast media including cable, satellite, television, and radio. In explanation, the law bans publicity and advertising of both indirect and direct for tobacco, tobacco ingredients, and tobacco products. However, there are specific limited exemptions that the law gives. The law has no exemption for the domestic media when it comes to broadcasting tobacco adverts. Consequently, tobacco promotion and advertising via any local domestic media including cable, satellite, radio, and television is prohibited. The law is in alignment with FCTC Article 13 and its guidelines with respect to the broadcast media such as domestic radio and television (Tobacco Free Kids, 2017). The law also prohibits the advertising of tobacco in domestic magazines and newspapers. However, it allows for advertising of tobacco in communications and publications that are specified to the industry and geared towards particular professional distributors, manufacturers, producers, and organizations. Furthermore, other publications that the Ministry of Health and Communications approves can be used. The FCTC Article 13; guidelines paragraphs 32 to 34 provides the trade exemption (Tobacco Free Kids, 2017). The articles also give guidelines in respect to the promotion and advertisement of the tobacco in domestic magazines and newspapers. However, the law prohibits tobacco advertising in the rest of domestic media such as signs, posters, flyers, leaflets, and pamphlets. In addition, the law also bans the publicity or advertisement of the tobacco, it ingredients, and products through the international broadcast medium including cable, satellite, radio, and television. There are several court verdicts that confirm that the tobacco ban covers both the international radio and television broadcasts. International prohibition also covers international magazines and newspapers. However, if one is based on another country that does not belong to the European Economic Area or the European Union, he or she can conduct tobacco publicity and advertisement. In addition, if the publication is not primarily for the consumption of the European Union market, it can be used to publicize and advertise tobacco and its products. The same two concepts apply to advertising using internet as a media of communication. In explanation, the law restricts on the importation of the international magazines and newspapers that entail tobacco advertising. The law is in alignment with the FCTC Article 13 and its guidelines in paragraph 52. It states that the countries ought to use their sovereign right to prevent or limit any cross-border sponsorship, promotion, or advertising of tobacco that enter their territory. FCFT Article 13 also calls for the member states to ban tobacco publicizing and advertising in all the magazines and newspapers regardless of the principle target market and the country of origin. The Statute on Retailers and Resellers of Tobacco prohibits the selling of tobacco products through the internet. The law, therefore, closes on the loopholes that might have allowed for promotion of tobacco and its products to the public. It indicates that the tobacco products can only be sold in shops. The law aligns with the FCTC Article 13 Guidelines that prohibits the sale of tobacco products through the internet. The law also bans the advertisement of tobacco and its products at the pointy-of-sale. The tobacco shops, commonly known as the “carrot” are the only permitted signage (Tobacco Free Kids, 2017). They are the traditional tobacco shops that can also be used as signage. The law allows for the posting of the sign on the tobacco shop and can include the phrase “tobacco shop” or the word “tobacco” added to the name of the premises. However, the point-of-sale is not specifically defined in the law since the phrase “tobacco advertising and promotion” is not defined. It is, therefore, difficult to determine if the law indicates that the display of the product’s display falls under the ban as indicated in FCTC Art. 13. It is important that the phrase “tobacco advertising and promotion” is defined as per the FCTC Article 1(c). The law also has a number of bans. The law prohibits the sale of the tobacco products through the vending machines. Conventional mail is also not exempted in the law. The law prohibits tobacco promotion and advertising via conventional mail. Furthermore, there is no exemption of advertisement using cellular phone and telephone. The law also prohibits the distribution of tobacco products and the sale of the products linked to the tobacco at a discount price. There are a number of court verdicts that confirm that the law bans on the promotion and discounts among other rewards (Tobacco Free Kids, 2017). In addition, the law prohibits the competitions that are linked to the tobacco products and direct target of particular people. It also prohibits trademark diversification and brand stretching. However, the law does not directly address the reverse brand stretching but since it prohibits indirect and direct advertising of tobacco products by all means, it is assumed that it prohibits reverse brand stretching. It is uncertain if the law bans the use of candy or toys which resemble tobacco and its products. In addition, the retailer incentive programs and paid placement of tobacco and its products in media are all banned. Legality of the Prohibition Prohibition is a fight against tobacco addiction in France. Studies show that France experiences an annual cost of health care related to smoking of about $8.8 billion (Gooding, 1992). In addition, the country incurs $2.6 billion in form of lost production due to effects of tobacco addiction thus a total of $11.4 billion. Each year, 61,000 French women and men die due to ailments linked to smoking. Some of the specialists have even termed cigarettes to be the addiction that is most deadly in the twentieth century. From 1950 to 1985, thirty-five years, the rate of consumption in France has doubled. Even though the number of smokers has stopped and declined in the past years, the number of heavy smokers in France has increased significantly in the recent past. Public health supersedes the property rights. It limits the property rights exercise among the players in the tobacco sector. The history of public interest has been characterized with the extension of their scope and restrictions that come with public interest. The principle of the public interest entails the measures that are put in place to ensure that the health of everyone in the country is protected. This is in relation to the eleventh paragraph of the Preamble to the Constitution which is dated October 27, 1946 (90-283 DC, January 8, 1991, No. 7 and 8, p.11). The constitution calls for the protection of public health. As a result, the restriction on the advertisement of tobacco is legal in France. The same provisions that protect the public health also prohibit the publicity and advertising for tobacco. Even though the laws are likely to infringe on the exercise of the property rights for the trademark of tobacco or the tobacco related products. The restrictions are all based on the constitutional principle that seeks to protect the health of the public. However, the statute does not tamper with the right of advertising in the tobacco sales outlets. But the prohibition of indirect and direct advertising of tobacco came into effect on January 1, 1993 (90-283 DC, January 8, 1991, No. 10 and 11, p. 11). The legislative provision that calls for the ban of indirect or direct advertising of tobacco is based on the public health argument. It does not prohibit the sale, distribution, or production of tobacco or its products to adhere up to the constitutional value. The ban on the tobacco publicity and adversity, therefore, does not infringe on the constitutional right of free enterprise (90-283 DC, January 8, 1991, No. 15, p. 11). The law does not infringe on the free enterprise and freedom of industry and commerce. In explanation, the free enterprise is neither absolute nor general. As a result, the lawmaking body in France has the right to develop limits that govern public interest. However, the limits should not alter the scope of free enterprise (90-283 DC, January 8, 1991, No. 14, p. 11). The ban on advertisement and publicity do not meet the threshold of affecting free enterprise. In explanation, free enterprise can be defined as an economic system the private entities in an environment largely free from state control and a competitive one. For a competition to exist, the product in the market should be the same or substitutes to one another. A policy against advertisement and publicity of tobacco and its products, therefore, does not affect competition in any way. In explanation, all the entities or businesses in the field are equally affected since it is a blanket policy. As a result, no business takes advantage of the other. The same time, there are no substitute for tobacco and its products thus making the policy legal and fair. Through the defining of indirect advertising and publicity, the body that makes the law intended to show the scope of the concepts. Consequently, they had rules out the possibility of circumventing the ban on indirect or direct advertising for tobacco. The clarification was a corollary for the regulations and rules that related to the ban. The statue that is under review in France, therefore, can only extend the validity of the temporary measures that deal with ongoing circumstances. It is the same reasons to why the ban on indirect or direct advertising for tobacco. As a result, the provisions are neither contrary to the free enterprise nor is it to the property rights (90-283 DC, January 8, 1991, No. 21 and 22, p.11). The law that prohibits the advertisement and publicity of tobacco and its products in France does not also go against the proprietary rights. Based on the ownership of the trademark, since 1789, the conditions and objectives for the exercise of the property rights have gone through diverse changes. The changes were characterized by the changes of the scope of the rights into new fields. Some of the rights whose scope was changed included the right to own a name of a brand in the manufacturing industry, service or trade through the use of the trademark. The use of a trademark was also protected with a framework which was defined by the law and the international agreements to which France ratified (90-283 DC, January 8, 1991, No. 7, p. 11). There is a distinction between the right to own a patronymic name and the ownership of a trademark. The limitations associated with the ownership of a trademark during advertisements or that of a service or commerce does not affect the surname that is considered as the individualization element and identification of a particular person (90-283 DC, January 8, 1991, No. 17 and 31, p. 11). The property rights have gone through an intense evolution over years. The effect of the evolution has been the extension of the scope with further restrictions made in favor of the public interest. The principle of public interest has been frequently applied on the laws that prohibit the advertisement and publicity of tobacco and its products in France as a way of protecting the health of the public. This is in accordance with the eleventh paragraph of the Preamble of the Constitution date October 27, 1946 (90-283 DC, January 8, 1991, No. 7 and 8, p. 11). The ban on advertising and publicity of the tobacco and its products does not affect the ownership of the name of a particular brand thus not illegal. It does not affect the ownership of tobacco products or brand name. However, the provisions are based on the principle of protecting the health of the public which is also enshrined on the constitution. As a result, the statute protects the advertising of tobacco and its products on the tobacco sales outlets. In addition, the ban on indirect and direct advertising is within the spirit of the Constitution of France. The law, therefore, guarantees the protection of the public health (90-283 DC, January 8, 1991, No. 10 and 12, p. 11). The banning of publicity and advertisement of tobacco and its products does not encourage the transfer of ownership. In explanation, it does not tamper with the actual ownership of a particular trademark that is legally registered. The legislation that deals with the banning of indirect or direct advertising of tobacco, therefore, does not infringe any right when it comes to transfer of products’ ownership. There is no transfer of ownership that will fall in the provisions of Article 17 of the Declaration of the Rights of Man and of Citizens thus making the law non-controversial (90-283 DC, January 8, 1991, No. 9, p.11). It is important to understand how the law defines indirect advertising and publicity for tobacco. The defining of the indirect advertising and publicity helped in the definition of concepts. The body making the law aimed at intensifying the scope of the concepts so as to prevent any possibility of circumventing the ban on the indirect or direct advertising for tobacco. The clarification is like a corollary for the regulations and rules relating to the ban. However, in the ail cases; the statute that is under review extends the temporary measures to enable them deal with the ongoing circumstances. Just as the laws that deal with indirect or direct advertising for tobacco, the provisions do not contradict the free enterprise or the property rights (90-283 DC, January 8, 1991, No. 21 and 22, p. 11). The main reason to which the ban of tobacco publicity and advertisement is legal is the fact that public interest supersedes the commercial rights. But even the principle of equality does not prevent the body making the laws from giving different solutions depending on the context. It also does not depart from the principle of equality simply because it wants to uphold the interest of the public. But in both cases, the different of treatment must relate to the object of the statute to which it is generated (90-283 DC, January 8, 1991, No. 34, p. 11). Conclusion In conclusion, France has been a party to the World Health Organization Framework Convention on Tobacco Control since February 2007, 2005. The ratification of the framework meant that France had to regulate practices linked to tobacco products and processes as stipulated in the FCTC. Some of the laws that France has implemented to adhere with the international law include: ensuring that it had smoke free places; regulatory law on tobacco sponsorship, promotion, and advertising; and development of law on labeling and packaging of the tobacco products. In general, the law calls for prohibition of publicity and advertising for tobacco in France falls in advertising, sponsorship, and promotion. However, the law has a number of exemptions that can be used as loopholes to encourage the same practices. The legality of the prohibition of publicity and advertisement of tobacco and its products is majorly based on the protection of public health. Public health supersedes the property rights. It limits the property rights exercise among the players in the tobacco sector. The constitution calls for the protection of public health. As a result, the restriction on the advertisement of tobacco is legal in France. However, the law does not infringe on the free enterprise and freedom of industry and commerce. The law that prohibits the advertisement and publicity of tobacco and its products in France does not also go against the proprietary rights. The ban on advertising and publicity of the tobacco and its products does not affect the ownership of the name of a particular brand thus not illegal. The banning of publicity and advertisement of tobacco and its products does not encourage the transfer of ownership. The main reason to which the ban of tobacco publicity and advertisement is legal is the fact that public interest supersedes the commercial rights. References Constitutional Council decision 90-283 DC, January 8, 1991. Gooding, J. (1992). France: An ambivalent war against smoking. Retrieved from https://www.theatlantic.com/magazine/archive/1992/06/france-an-ambivalent-war- against-smoking/304763/ Tobacco Free Kids (2017). Tobacco Control Laws: Country Details for France. Retrieved from http://www.tobaccocontrollaws.org/legislation/country/france/summary Read More