Smoke in Your Eyes: The Struggle over Tobacco Control in the European Union
Francesco Duina* and Paulette Kurzer¥
Paper prepared for EUSA
8th Biennial International Conference
March 27-29, 2003
* Francesco Duina, Department of Sociology, 263 Pettengill Hall, Bates College, Lewiston, ME 04240 (USA). Email: email@example.com
¥ Paulette Kurzer, Department of Political Science, Social Sciences 315, University of Arizona, Tucson, AZ 85721 (USA). Email: firstname.lastname@example.org
In this paper, we argue that questions related to the Commission’s legitimacy arise when it takes action in areas which (a) require deep scientific and technical knowledge, (b) are emotionally and morally charged, (c) are a bit removed from the single market initiative. Our particular example is EU tobacco control and the lengthy effort to gain approval for a comprehensive ban on tobacco advertising. The long delay occurred as national approaches to public health diverged, which then provided opportunities for private cigarette companies to block passage of the advertising ban in the Council of Ministers.
European Union law (EU) is always subject to controversy. Controversies differ, however, depending on the issue area in question. In mainstream issue areas, such as competition, conflict concerns the approach and content of EU legislation. In issue areas beyond the traditional Single Market remit, such as public health, conflict focuses on the legitimacy of EU intervention. Questions that challenge the EU’s prerogative to determine standards or objectives in public health frequently center on the exact interpretation of the scientific evidence, the appropriate measures to undertake in response to the scientific findings, and the legal and political justification for EU intervention. This has been the case with the ban on tobacco advertising, an issue that was finally brought to a resolution in December 2002 after twelve years of deadlock.
Compared to other science-driven policy decisions, tobacco control differs in that the cognitive uncertainty with regards to the health risks of smoking are by now greatly reduced. In biomedicine or ‘green’ biotechnology (GMO), it is much harder to establish the actual risk of a particular course of action because knowledge about its health or environmental consequences are not yet fully understood. But decades of research on the health effects of smoking have yielded voluminous publications confirming an undeniable correlation between smoking and premature death due to increased prevalence of certain kinds of cancers and greater likelihood of cardiovascular disease. By the same token, conventional public health measures share with biotechnology a normative dimension in that social norms and cultural practices differ and societies assign different degrees of importance to the regulation of health promotion or protection. In particular, liberal societies must balance the individual freedom to pursue a particular lifestyle with the collective demand for risk-averse behavior. In this sense, both public health and biotechnology must resolve the dilemma of how to weigh the benefits of curbing the use or consumption of a hazardous product (cigarettes) with the costs of suppressing a legitimate market activity (advertising) (Abels 2002: Gaskell and Bauer 2001).
When the Commission enters into this minefield of complex exchanges, it encounters multiple hurdles. The European Commission took a great number of years to prepare the 1998 Tobacco Advertising Directive (TAD1). Throughout, it came under intense pressures from some member states and interest groups not to take action. American companies interfered, and complex alliances were struck between interest groups, private sector actors, non-governmental organizations, and the member states. Countries with progressive histories of public health intervention voiced their opposition to the TAD1. Countries historically more conservative offered consistent support.
In this article, we first describe the unwieldy history of the TAD1 and its successor TAD2, which was finally approved by the Council in December 2002. We then account for that history by examining the stances of six key member states. Germany waged unconditional resistance. Spain surprised everyone with a last-minute abstention in 1998. The UK and the Netherlands wavered in their opposition. France and Italy systematically supported the EU.
The evidence prompts us to suggest that the EU is bound to face questions of legitimacy whenever it engages in matters related to public health and other areas that invoke strong emotions and national reactions (Majone 2002). The language of the Treaty of the European Communities (TEC) makes this inevitable. The TEC authorizes the Commission to take legal initiatives in public health and beyond, but these must generally be consistent with the final objective of building a common market. Such conditional sanctioning is bound to be used by opponents of any given law to dispute the Commission’s right to intervene. As we shall see, in the case of tobacco advertising ban the strongest opponents turned out to be international tobacco companies operating in countries where there were no state tobacco companies. Private corporate influence was further secured by the fact that these countries are strongly committed to the ideal of the self-governing individual and of the freedom of the consumer to pursue his or her own life goals. The combination of a normative climate that celebrates individual freedom and of a tobacco market dominated by international conglomerates accounts for the unexpected opposition of Germany and the Netherlands to tobacco regulation in contrast to the sustained support of France and Italy.
Europeans smoke heavily, though not with the same intensity in every country. Table 1 shows recent national smoking rates across key member states:
Table 1: Smoking Rate in the Years 1999-2001.
* The figures for Belgium France and Germany should probably be higher because the Belgian and French surveys collected data from people aged 18 and over while the German survey collected data from people aged 18-59. Other countries report smoking rates of people aged 15 and over.
** The figures for Spain are from 1997.
*** The male smoking rate does not include 20% of the men aged 18-84 who are regular users of smokeless tobacco (snus).
From: The European Report on Tobacco Control Policy (Copenhagen: Regional office for Europe/WHO, 2002), 12-13.
The European Commission began addressing tobacco use in 1985 with the launch of the “Europe against Cancer” program. The program promised a number of initiatives to control tobacco. The Commission scored a few victories, despite strong opposition from industry, by passing the 1989 directive outlawing tobacco advertising on television (89/552/EEC) and later directives regulating tobacco product labeling (89/622/ EEC and 92/41/ EEC), tar maximums for cigarettes (90/239/ EEC), and minimum tax levels for tobacco products (95/59/ EEC, 92/79/ EEC, 92/12/ EEC). Though impressive, none of these directives amounted to a comprehensive tobacco control program (Glantz 2002: 11).
When the Commission tried to move into broader areas of tobacco control, it encountered determined opposition from industry and a coalition of five member states - Denmark, Germany, Greece, the Netherlands, and the UK (Bitton, et.al. 2002; Hayes, 1993: 170). The one initiative that provoked the strongest resistance concerned a ban on tobacco advertising (Neuman, et.al. 2002). First proposed in 1989, it was blocked until 1998. The situation changed in 1995 when pro-ban Finland and Sweden joined the EU and the British Labor party came to power in 1997. At last, on December 4, 1997, a common position on a draft directive to ban tobacco advertising was agreed upon at the Council of health ministers meeting. It had required ten consultations for the Council to muster a majority and pass the TAD1 (98/43/EC). It was a fragile majority. Germany and Austria voted against the TAD1. Denmark and Spain abstained. Regardless, the new directive banned tobacco advertising on the radio, internet, print media as well as cinema, posters, ashtrays, and prohibited brand stretching. It also banned tobacco industry sponsorship of events in the ECU
As soon as the directive passed, the German Federal government asked the ECJ to annul the directive. The ECJ agreed to do so in October 2000. The ECJ case (C-376/98 Federal Republic of Germany vs. European Parliament and Council of the European Union) rested on whether the TAD1 was relevant or not for the internal market. The legal arguments set forth by Germany and tobacco interests proved persuasive: the ECJ reasoned that the Commission and the Council had overstepped their boundaries by passing a protectionist law that in fact undermined the normal function of the internal market (Hervey 2001).
Undaunted, the Commission went to work and drafted a new directive, taking into account the objections of the ECJ. The TAD2 (COD 2001/0119) was published in May 2001 and differed from the TAD1 in one important way: it banned only direct tobacco advertising, though it extended that to media with cross-border impact (Watson 2002a). Indirect advertising, brand stretching and other promotion techniques were not banned. Thus, Camel boots, Marlboro Classics clothing, free gifts such as umbrellas and ashtrays bearing logos were all permitted. In addition, direct advertisements in cinema halls and posters were permitted, while non-EU media (such as foreign newspapers) was exempt from any restrictions.
Parliament passed the watered-down TAD2 with 309 ‘yes’ votes, ‘203’ no votes and 39 abstentions (Watson 2002b). Once at the Council, the fifteen ministers of health reached an agreement on December 2, 2002 to have the TAD2 come into effect in the summer 2005. Again, though, two member states voted against the directive: Germany and, to the surprise of many, the UK. Immediately after the vote, the German government vowed to take the TAD2 to the ECJ, though this time domestic divisions and the general satisfaction of EU members with the directive make the move rather unlikely.
It should be noted that, at the same meeting, the Council passed additional tobacco measures which indicated that, after all, the EU has managed to tackle smoking and tobacco. The measures included a recommendation, opposed by Germany, to prevent smoking by tightening tobacco control with respect to youth access (EU COM(2002) 303: Recommendation on prevention of smoking and initiatives to improve tobacco control). They also included a product regulation and labeling directive, which went into force in September 2002 (2001/37/EC: Tobacco Regulation Directive). Interestingly, Germany again asked the ECJ, this time without success, to nullify certain parts of the directive.
The debates over the TAD1 and TAD2 concerned the legitimacy of the EU to regulate tobacco advertising. In the following sections, we examine the position of key member states vis-à-vis such legitimacy. Our analysis reveals that ultimately member states’ position reflected a combination of legal, economic, fiscal, and ideological forces that in some cases were at odds with each other. We focus on two key factors to account for the position of member states. First, national medical communities held very different ideas about the health risks of smoking and the nature of public health intervention. For historical and cultural reasons, preventive medicine is not a mainstream branch of medicine in every European country with the result that the public climate or discourse on smoking varies. Second, tobacco markets differed greatly depending on whether private companies or state monopolies dominated.
Private and American or British tobacco companies proved to be superb lobbyists with extensive government contacts. They devoted considerable energies on diverting debates, playing up deep seated ambivalence about health promotion, and pushing officials in ministries of finance or economics to consider the loss of tax revenue rather than the gain in life expectancy if smoking rates drop. In countries with state tobacco monopolies, government agencies exerted more control over the tobacco market and the management of the state monopolies did not act as a separate agent with its own agenda and resources. Moreover, in markets with state monopolies, the medical or expert community came around to the idea that smoking is a major health hazard and prodded elected officials to take measures to deal with this public health challenge.
Germany has a history of supporting Commission's interventions aimed at improving the quality of life of European citizens. Its behavior towards the TAD1 and TAD2 thus appears paradoxical. Yet, upon close examination, we see that Germany possesses all the features of a country that would reject tobacco control. International tobacco companies have enjoyed great access to the government, while their products dominate the market. The legal and moral climates are libertarian. And the medical community has shown through time little interest in preventive health care. Accordingly, various governments have ignored the health hazards of smoking and the appointment of a senior Green party politician as head of the ministry of consumer affairs has failed to catapult smoking to the top of the health agenda (Gilmore, et.al. 2002).
As Table 1 shows, Germans smoke a great deal. In 2002, they smoked 390 million cigarettes daily (Wedemeyer, 2002) and spent 21 billion euro (US$20.93 billion) doing so. The German state collected half of that in taxes. Above all, Germans love American cigarettes. In 2000 the top brand in Germany (with 34 % of the market) was Philip Morris’ Marlboro. Tobacco companies logically value the German market and have long channeled money and resources to ensure they can control the political climate.
Thus, whenever tobacco legislation became an issue, cigarette companies poured money into election campaigns and the treasure chests of political parties. All three main parties - Christian Democratic Union (CDU), the Social Democratic Party (SPD), and the liberal Free Democrats - have been regular beneficiaries of the generosity of the tobacco companies. In the mid 1980s, Reemstma, located in Hamburg, was suspected of funneling millions of German marks to the CDU, CSU (the sister party of the CDU) and the Liberal party. In 1998, when the Kohl government submitted its case against the TAD1 to the ECJ, the former chair of the Federation of Cigarette Companies and former chief executive of Reemtma donated 59,217 DM to the CDU. The CSU received 28,500 DM in 1998. Whereas various members of the Burda family – owners of dozens of magazines and beneficiaries of tobacco advertising – donated 80,000 DM to the CDU and the SPD in the years 1995-1997, one member of the family gave 100,000 DM to the CDU in 1998 alone. That was the year Germany challenged the TAD1 (Nichtraucher Info. 2000a; Nichtraucher Info 2000b: Wedemeyer 2002).
It seems that only the Greens and the reformed communists (eastern German) PDS do not appear on the lists of parties that have received contributions larger than 20,000 DM. Both parties have been relatively sympathetic to tobacco regulation. Yet, the Green party has not used its weight in the coalition government to force government leaders, and Schröder in particular, to soften their opposition to EU measures. In fact, unless Germany approves of the international anti-smoking treaty, drafted by the WHO, the EU cannot ratify it. In turn, without the ratification of the EU, the treaty loses much of its force. (Langley 2003).
At home, cigarette manufacturers managed to defeat several attempts to pass anti-smoking legislation between 1994 and 1998. In 1998, for instance, a legislative proposal obliging employers to protect nonsmokers against cigarette smoke in the workplace went down. Minister of Health Horst Seehofer declared that it was a matter of private choice whether a person smoked or not and that the law would intrude upon private lives while enforcement would require the creation of a ‘smoke police’. Mostly, CDU/CSU representatives helped ensure defeat because they voted by a margin of 80% against the law (New York Times 1998).
Other existing legislation is weak. After three attempts in 1994, 1998 and 2001, activists were able to get a Work Place Ordinance passed through parliament. Unfortunately, the final version is full of loopholes. The law explicitly exempts the catering industry while other sectors can request an exemption if the new rules cause extreme hardship. The three attempts to get a law on passive smoking passed required a multi-partisan group of junior politicians who operated against the intentions of the leadership of their respective parties. A recent law, effective as of April 2003, protects minors. It aims, among other things, at preventing children under the age of 16 from buying cigarettes. But here too measures are weak. Germany has nearly 900,000 cigarette vending machines but the law includes no steps to monitor who purchases their products. Lastly, Chancellor Schröder’s recent decision to increase cigarette taxes in January 2002 to close the gaping federal government budget deficit may be seen as a deterrent for smokers and is especially helpful for discouraging youngsters from taking up smoking.
What explains such libertarian legal and moral environment? One reason is the acquiescence of the medical community. During the Nazi period, anti-tobacco control figured prominently. German scientists working during that period were the first to establish a link between smoking and lung cancer. Nazi officials perceived the evils of tobacco even in broader and more ideological terms. For them, tobacco interfered with the military prowess of the German soldier and the fertility of women. Tobacco consumption also eroded work performance and sullied racial purity. The Nazis equated smoking with communism, evil capitalists, and Jews. To discourage smoking, they embarked on an aggressive public campaign, raised taxes, banned smoking in public spaces, and mobilized the medical community. But the Nazi efforts actually engender a silent backlash against the puritanical and racist qualities of their health campaigns, fostering an enduring resistance towards anti-tobacco campaigns. The scientists who worked on smoking and health moreover disappeared after 1945 and research in this field moved to the UK and US (Proctor 1999).
The most important postwar legacy of the Nazi approach was thus the widespread repudiation of public health programs and apathy towards epidemiology. In many of the countries we examine, the leaders in the fight against smoking came from the medical field. In Germany, by contrast, research in public health has lagged (John, 2001). Since 1945, no systematic efforts have been made to revive a modern version of social medicine. Public health has become the neglected part of the national health care system. Training in preventive medicine is minimal, and physicians are taught to avoid inquiring about patients’ lifestyle habits and smoking. With the resulting silence from the medical community, tobacco interests have thus been able to shape the anti-smoking debate and policy measures (Wedemeyer 2002)
Spanish health officials had consistently been in favor of a EU advertising directive prior to 1998. As early as 1992, Spain, along with France and Italy, had expressed its support for a strict advertising directive at a meeting of health ministers in Brussels (Corriere della Sera 1992b). In the months prior to the voting day, Spanish officials had repeatedly asserted their intentions to support the 1998 directive (Oppenhaimer 1997b). Yet, when the vote came on the TAD1 Spain abstained, though it later supported TAD2. During the final negotiations, EU Commission spokesman Barbara Nolan voiced her dismay at the turnaround: “This is an extraordinary U-turn . . . until now Spain has always supported the ban” (Agence France Presse 1997a: Barry, 1997). Spain’s move threatened passage of the directive.
Why Spain’s turnaround? Germany’s political maneouvrings to head off the ratification of the TAD1 included the formation of an anti-advertising ban coalition that consisted of Austria (a loyal follower of Germany on this issue) and Spain. The plan worked. The words of Spanish Health Minister José Manuel Romay Beccaria, immediately after the vote, showed this. Approving the directive would have posed Spain “political problems,” he said, because of “the very strong opposition on the part of some member states” (El Universal 1997; Agence France Presse 1997b). The reference, as EL Pais and other leading European newspapers noted, was clearly to Germany and Austria. (Financial Times 1997; Oppenhaimer 1997a). Upsetting the Germans would have meant jeopardizing the steady flow of cash from the EU’s structural funds. Madrid was engaged in a bitter battle to retain its current share of EU regional aid after the bloc brings in poorer Eastern European countries. As the International Herald Tribune noted, “Madrid has a particular reason for cozying up to Bonn. Germany, the largest net contributor of EU funds, is seeking to reduce its payments. Spain, meanwhile, is concerned that if Germany contributes less, it may lose some of its EU fundings” (Barry 1997). The Agence France Presse (1997a) noted as much in a parallel article. Le Monde then reported that Spain’s turnaround “apparently followed a call from Kohl to Jose Maria Aznar” (Lemaitre 1997).
At the same time, legal and economic considerations also played a role. The TAD1 would have imposed unprecedented restrictions on advertising. This would have diluted the value of the state tobacco company exactly at the time of its privatization. Spain like Germany, the Netherlands, and Britain had in fact long taken a relaxed legal approach to tobacco advertising. Law 34/1988 of November 11, concerned with advertising in general, prohibited the advertising of tobacco products on television and in those locations where the sales and consumption of tobacco is illegal (Article 8.5). Law 25/1994 of July 12 incorporated EU directive 89/552 on direct or indirect TV advertising. Tobacco products could therefore be advertised in newspapers, magazines, and posters, and on the radio. The Congreso de los Diputados (Spain’s lower house) adopted on November 23, 1993 a resolution asking the government for approval of stricter measures for controlling advertising. These included a ban on all direct advertising in printed media and on the radio. The government did not, however, take action (Elder, Blanco and Santamera 2000?). Partly as a result of such a weak legislative approach to advertising, Spain would rank second to Greece with an adult smoking rate of 37% in 1998 (Banegas and Gañán 2002; Ruiz 1998).
A stricter legal environment would have in turn reduced Tabacalera’s expected future revenues, thus complicating its privatization. El Pais reported learning that “people from the tobacco lobby are pressuring the Spanish government to change its mind in light of the privatization of Tabacalera” (Oppenheimer 1997b). El Pais then added: ”Sources from the European Commission have described the privatization of Tabacalera as a potential reason for a Spanish change of mind” (Oppenheimer 1997b).
In any event, the Spanish reversal was short-lived. Upon approval of the TAD1, Health Minister Romay Beccaria said that he personally was in favor of a more rapid timetable for banning advertising and indicated that his country might bring some of the measures into effect before the agreed deadlines (Financial Times 1997). Spain then voted in favor of the TAD2 in 2002.
Ultimately, Spanish voting behavior reflected narrow tactical considerations and was a calculated response to German pressures in order to avert a no vote of regional aid. The Spanish position was not indicative of the political and financial weight of private tobacco companies or of a resistance to address public health trends. In fact, after this vote, Spain never again raised objection to proposed EU measures to reduce European smoking rates. Rather, the Spanish abstention is indicative of the length to which Germany will go to secure a defeat of tobacco control measures. In the absence of domestic pressures to address the health implications of unrestraint smoking, German governments under the influence of tobacco companies interpret the public health implications of smoking in very different terms.
The Netherlands and the UK for long opposed the TAD1. Yet, for different reasons, both countries changed their minds in 1998 and voted for it. In 2002, the UK would change its stance again and would vote against the TAD2. The Netherlands continued its support. How can such turnarounds be explained?
The social, economic, political and healthcare landscapes of the Netherlands all point towards a relaxed, open attitude towards tobacco. Prior to 1998, any observer would have expected the country to oppose the TAD1 and the TAD2.
The Dutch, are, like the Germans and Danes, heavy smokers. As Table 1 shows, the country has one of the highest smoking rates in Europe, with 37% of men and 29% of women smoking. As in Germany, the moral climate approves of smoking. Anti-smoking campaigns are modest, since the Dutch generally fear being perceived as moral crusaders. Many citizens and politicians believe that people should be free to decide. In the mid-1990s, 25% of Dutch physicians and 44% of nurses were smokers (WHO 1997).
The Dutch tobacco industry is moreover highly developed. The Dutch economy is a major manufacturer and exporter of cigarettes as well as cut tobacco for cigars and roll-your-own (RYO) cigarettes (BVT 2001). The Netherlands produced 120 billion cigarettes in 2001, making it the second largest producer of cigarettes in the OECD. Around 90% of production is designated for export. Dutch smokers in fact only smoked 16.6m cigarettes, a good percentage of which were Americans. In 2001, tobacco export earnings came to 2 billion euros, making the Netherlands the 4th largest exporter in the world (Bouma 2001: 279; BVT 2001).
Tobacco taxes in the Netherlands are in line with the EU average. Due to heavy smoking rates, however, the total 2001 tax revenues from RYO came to 504 million euros and for cigarettes to 1.6 billion euros. Understandably, the Ministries of Economics and Finance have thus been vocal supporters of the tobacco industry. They have pushed for a regulatory framework in which voluntary agreements govern advertising rules, prioritized economic considerations over public health concerns, and maintained ongoing contacts with the tobacco industry (Trouw 1999).
In turn, the tobacco industry has used its privileged position to defend its market shares, to undermine tobacco control measures, and to persuade politicians to restrain ambitious tobacco control measures contemplated in the EU Council. Hence, in the Fall of 1991 for instance, when the Netherlands chaired the Council of Ministers and the Ministers of Finance, Dutch officials tried to bury a proposal to harmonize tobacco taxes by employing tactics suggested by Philip Morris. The measure still passed but the Netherlands, in its capacity as chair, proved willing to torpedo the harmonization tax out of deference to the tobacco industry (Bouma 2001: 275-78: Trouw 2001a).
At home, Finance and Economic Affairs repeatedly tried to silence or sweep away any reports that could result in a decline in smoking. It was not uncommon for the Ministry of Health to be asked to moderate or suppress position papers related to the health consequences of smoking. For example, officials from the Ministry of Economic Affairs in 1995 asked Health Ministry officials to avoid making inflammatory comments critical of the tobacco industry. Specifically, they were asked not to state publicly that tobacco advertisements were directed at children and that the smoking prevalence rate in the age group 10 to 14 had dramatically increased (Bouma, 2000: Janssen, 2000a)
As in Germany, the indifference of the government cannot be attributed solely to the influence of the tobacco industry. Here, too, the medical establishment played a contributing role by failing to go on the offensive. Dutch physicians had the highest smoking rates in Europe and the medical establishment was not a great fan of preventive intervention. A few individuals pushed for stronger measures but they were lonely voices, marginalized and easily ignored. In fact, they were considered ‘moral crusaders’ and stigmatized as fanatics lacking the Dutch respect for tolerance (Bouma, 2001:35-53). As in Germany, it was easy for the tobacco industry to cement ties with politicians and encourage Dutch officials to block TAD1.
Expectedly, the Netherlands obstructed the ratification of the TAD1 for eight years. Then, surprisingly, the cabinet turned around in 1997 to announce its support for the EU directive. Why this change of heart, which was crucial for the approval of the TAD1 in the Council meeting? First, the voluntary Advertising Code, in force since the early 1970s, would soon expire and the cabinet had to make a decision whether to extend or amend the law. After a heated debate in which the arrival of the TAD1 was deemed imminent, the cabinet decided to thorough revise what was a gentlemen's agreement by introducing measures similar to the TAD1. Second, the British Labour Party’s recently announced intention to lend full support to the Commission’s anti-tobacco efforts pressured the Dutch government, whose majority was from the Labor Party (De Volkskrant, 1997a; De Volkskrant, 1997b), to voice its support.
Finally, a new minister of health took a great personal interest in smoking and found a receptive audience in the Labor-dominated cabinet. Dr Els Borst recruited capable bureaucrats to manage the tobacco portfolio and was able to persuade her more skeptical colleagues to lend her support. She announced in December 1999 the possibility of a lawsuit against the tobacco industry (Boucher 2000). In June 2001, her cabinet proposed a set of measures to combat underage smoking, to reduce smoking rates, and to promote smoke-free public spaces. Initiatives included age restrictions on the sale of tobacco, no sale of loose cigarettes, no sale of cigarette in public institutions and sport buildings, and no smoking in public buildings and subsidized buildings (Trouw 2001b). The Minister of Health of course had to yield on several critical issues. She had to accept a leg, for instance, an age limit of 16 and did not restrict the sale of tobacco products to licensed tobacco shops (NRC 2001). Nonetheless, her position and actions represented a significant turnaround from the past.
Thus, in the span of a few years, the Netherlands went from a modestly restrictive health-oriented law, namely the prohibition on smoking in public buildings to a regulatory framework that exceeds EU standards (Janssen 2000). Though the normative discourse was still tolerant of smoking and the implementation of some of the new rules was made dependent on the cooperation of a skeptical private sector, the Netherlands voted in favor of the TAD1 and TAD2.
Unlike Germany and the Netherlands, the UK experienced a gradual evolution towards tobacco control from the 1950s on. During the Conservative governments of 1979-1997, that evolution was partly stalled and industry gained much ground. Labor’s coming into power in 1997 boosted the anti-tobacco camp and helped ensure a British ‘yes’ vote for the TAD1. A more subtle and complicated set of variables, on the other hand, explain the negative vote against the TAD2.
In the UK, the medical establishment joined the campaign against smoking soon after World War II. British researchers were at the forefront of publishing alarming studies on smoking, disease and mortality. In 1950, Richard Doll and Austin Hill identified a statistical link between lung cancer and smoking from a study of the smoking habits of 40,000 general practitioners. At that time, the medical community was not persuaded and public reaction was muted. In 1957, however, the Medical Research Council, a government appointed and financed body, made a complete turnaround and declared that lung cancer and smoking were directly correlated. A vocal and active anti-smoking movement was then born in 1971 with the founding of the Action Smoking and Health group (ASH). Large sectors of British society were thus pushing for prevention and intervention for many decades prior to 1998 (Leichter 1991: 97-142).
At the same time, Britain has long been home to the second largest tobacco company in the world - British American Tobacco (BAT). After its merger with Rothmans (South Africa), BAT gained a global market share of 16%, a percentage point behind Philip Morris. At home, two major companies dominate: Gallaher and Imperial Tobacco, each claiming around 40% of the market (ASH 2003). In the long years of the Conservative government, such powerful companies had little to fear.
The 1979-1997 governments considered tobacco interests legitimate. Industry representatives regularly participated in policy discussions and could count on sympathetic voices across a whole range of departments. ASH, on the other hand, lacked legitimacy, wielded much less influence, and could only rely on the Department of Health as a possible ally (Popham 1981; Read 1996). But in conflicts between departments, Treasury and the Department of Trade and Industry counted far more than Health (Read, 1996). Whenever Health proposed some measure, other departments immediately submitted their own concepts of a similar kind of measure thereby causing confusion and delays. Lacking a distinctive legislative mandate by Parliament, the Department of Health could not claim to be the final word on health and smoking. Routinely, economic considerations swept aside health concerns and the social costs incurred through smoking (Taylor 1984; Leichter 1991).
Thus, prior to the Conservative period of 1979-1997, the government issued some rules. The government asked the tobacco companies to publicize the dangers of smoking by adding a warning on posters, cigarette packs, and all printed advertising. The government also requested that tobacco companies limited the production of cigarettes with high tar content (Read 1996: 46-50). Government officials were unhappy by the modest efforts of tobacco companies. The arrival of Conservative governments, however, relieved industry from any kind of real pressure. The Conservatives’ preferred approach was to adopt voluntary self-regulated agreements and shun direct interventionist approaches. One interesting, albeit minor, exception was the Employment Rights Act (1996). It empowered non-smokers to claim that smokers and smoke at work lead and impede work performance. A second measure involved steep increases in cigarette taxes (Montes and Villabi 2001).
The election of Tony Blair as Prime Minister altered the situation radically. Blair made a personal pledge to reduce smoking rates, which already had been dropping, and promised to explore a domestic advertising ban. The government supported the TAD1. In November 2002, the British parliament then ratified the Tobacco Advertising and Promotion Bill. The law banned the advertising and promotion of tobacco products including the use of brand-sharing and sponsorship of cultural and sport events. Starting in 2003, it will be an offence to advertise tobacco products on billboards, newspapers, magazines, direct mail etc. No point of sale advertising will be allowed. Global events (such as Formula One and World Snooker) sponsored by tobacco companies have until October 2006 to find substitute sources of funding. Starting in 2004, no more brand-sharing will be allowed. Britain had moved from a voluntary code to a serious regulatory regime.
Yet, in spite of the radical changes at home, the UK voted against the TAD2 in 2002. Why? The government claimed that it voted against the directive because of the weakness of the text. But an equally plausible explanation is that the UK granted an exemption to Formula One, which will not need to look for new sponsors until October 2006, while the new directive specifies July 2005. Its no vote, moreover, did not affect the final outcome and the Blair government is committed to enforce the new EU directive.
Unwavering Supporters: France and Italy
France and Italy supported the Commission’s tobacco advertising initiatives without hesitation. To those familiar with those countries’ rather weak public health histories, this may seem surprising. A closer analysis of those countries’ legal, economic and social landscapes shed much light on their position.
The French Elite and Tobacco Legislation
France’s support for the Commission reflected the confluence of several changes during the 1980s and 1990s in the political, legal and economic arenas. Leading figures in government and the medical elite began reacting to alarming public health data. In 1991, in the absence of pressure from strong private tobacco companies, the government produced one of the strictest laws in Europe on tobacco advertising; in 1995, the government ended its participation in the tobacco industry by privatizing the national tobacco company. French judges then relied on the existing legislation in the mid-1990s to control the behavior of US tobacco companies. These changes did not come without friction: tobacco generated large revenues for state coffers. Nonetheless, by 1998, the Commission was proposing protectionist principles already accepted in French society.
The French state showed little interest in public health well into the 1970s. Worrisome public health figures eventually alerted French leaders to the health effects of alcohol and tobacco use. The response involved “elite bargaining among bureaucrats and health officials” with little participation from major grass-roots organizations (Kagan and Vogel 1993: 30). Two venues were pursued. Television campaigns warning citizens of the dangers of smoking were launched in the 1990s. In the legal sphere, parliament passed two major initiatives restricting tobacco advertising.
The Veil Act of July 9, 1976 banned tobacco advertising from television, radio, billboards, and movies, though not in magazines or at sport events. The product of visionary Health Minister Simon Veil, it called for educational campaigns in French schools and barred smoking in selected government and transportation facilities. Yet the state proved unwilling to enforce the law and smoking rates remained unchanged in the following years (Kagan and Vogel 1993). Subsequently, the Smoking or Health Medical Association (SHMA), a loose network of leading medical professionals, set out to pressure the state for bolder initiatives. Founded in 1986 in Bordeaux, its aim was, in the words of one of its founders, to “bring together general practitioners and specialists in the medical disciplines most concerned” (Fréour 1986: 388).
From the start, SHMA expected “some members [to] be in a position to contact influential persons”, and that “the Association will be strong enough to pronounce on matters of concern and approach the media, elected representatives, and the authorities” (Fréour 1986: 388). At the request of Health Minister Claude Evin, SHMA investigated compliance with the Veil law and published a rather discouraging report in 1986 (Kagan and Vogel 1993: 32). In 1988, SHMA members published a series of articles in the daily Le Monde and held a press conference to warn about poor compliance; there followed numerous meetings with political leaders, sympathetic journalists, and legislators (Kagan and Vogel 1993: 32).
Such pressures were instrumental in convincing Health Minister Evin, President Mitterrand and other key leaders of the dangers of tobacco. Evin began working on a law with some of the most restrictive measures in Europe. The law would forbid all direct and indirect advertising of tobacco, as well as restrict alcohol advertising in the press and public places. It would also ban smoking in enclosed public spaces unless designated as smoking areas.
The public and many legislators had to be convinced. Evin himself appeared on television on March 29, 1990 to justify the plan to the French people (Ibrahim 1990). In countless sessions with legislators and public interviews Evin would show data on tobacco-related death rates (Ibrahim 1990). Drafts of the 1991 Evin Law reached the upper house in December of 1990 and the law was later approved in the face of significant parliamentary protest, hostile public reactions (Kagan and Vogel 1993: 33), and complaints by leading newspapers such as Le Figaro and Libération.
The strictness of the law proved excessive (Le Monde 1992b). Several newspapers and magazines asked for amendments, citing dramatic drops in revenues (Le Monde 1993). The prohibition of the broadcast of sport events taking place in countries where tobacco advertising was legal proved especially problematic. In 1996, the Commission issued a ‘reasoned opinion’ that the Evin Law contravened Community rules on the freedom to provide services. The French parliament responded with an amendment permitting the broadcasting of motor racing and other ‘mechanical’ sport events taking place outside of France (Dorozynski 1995). These steps diluted somewhat the severity of the law.
Soon after passing the Evin Law, the government ended its direct participation in the tobacco industry. The Société d’Exploitation Industrielle des Tabacs et des Allumettes (SEITA), a state company, had been controlling the sales and distribution of tobacco products since 1926. Its roots in history ran deep, reaching back to a tobacco state company created by Napoleon Bonaparte in 1810. In October of 1994, the government began planning for SEITA’s privatization (Holoman 1994). On February 7, 1995, the privatization process was launched. The sale proceeded briskly (New York Times 1995). Then, in December of 1999, SEITA merged with Spain’s Tabacalera (also a former state company until 1998) to become Altida, a transnational corporation. The state sold its final 2.5% stake in October 2000 (Minder 2000). Indeed, links between SEITA and the state were severed. On December 9, 1999, in a landmark case, a French civil court ruled that SEITA was partly responsible for the death of Richard Gourlain, a three-pack-a-day smoker who died of lung cancer earlier in the year.
Disengagement from the tobacco industry left the state free to pursue the enforcement of the Evin Law. Attention turned to US tobacco companies, which had become major players in the French market. SEITA’s share of the market had dropped from 53% to 35% in the 1980s (The Economist 1999). Two government initiatives proved particularly salient. In 1996, France Health Minister Herve Gaynard called for the Justice Ministry to act against a major advertising campaign by Philip Morris. The ads ran in French newspapers and compared the dangers of breathing second-hand smoke to eating biscuits. A Paris court banned parts of the ads and warned it would fine Philip Morris one million francs for any violation (New York Times 1996).
The legal, political and social changes of the 1980s and 1990s did not happen without significant costs or friction. An exorbitant tobacco tax rate on tobacco products (75% of price in 2002) translated for the government into revenues of US$ 6.1 billion in 1991, approximately 2% of the national budget. That same year, SEITA generated US$2.3 billion in revenues by selling cigarettes (Time 1992). In 1998, SEITA made gross margins of US$ 146 million from distribution alone (Bloomberg News 1999). SEITA itself fought hard against the Veil Act of 1976, and won major concessions (Kagan and Vogel 1993: 31). The Ministry of Finance openly worried about the loss of revenue. The Ministries of Communication and Sports described the domestic initiatives as problematic for market competition (Kagan and Vogel 1993: 32). To placate fears, the government promised it would increase taxes to offset decreases in cigarettes sold. Afraid of higher inflation levels, it specified in Article 1 of the Evin Law that tobacco prices should no longer be included in consumer price index calculations.
By the 1990s, France had nonetheless become one of strongest opponents of tobacco and advertising. France would support both EU advertising directives with vigor and some observers called for a “more ambitious” directive (Les Echos 1997). It also noted that the new EU directive would create no change in France: “The measures have already been applied in the context of the Evin Law” (Les Echos 1997). Indeed, as early 1993, Philip Morris would set as a lobbying objective the attainment of “moderation” in the French position at the EU level (Philip Morris 1993). France would support the EU Commission’s advertising directives with unwavering commitment in spite of a weak commitment to public health. But once the French state recognized the justification for curbing smoking rates, it encountered fewer obstacles in pursuit of legislative reform both inside and outside government.
Italy supported the Commission’s advertising efforts. This seemed surprising: the institutional and financial importance of tobacco for the Italian state was enormous. Yet, as in Britain, a tradition of anti-tobacco intervention also existed in Italy. A 1962 law targeted tobacco advertising. In the 1980s and 1990s enforcement measures were introduced and judges clarified the law’s application to indirect advertising. Moreover, by 1998 the state was planning the privatization of its monopolistic company. Several new world-class research centers, in turn, were generating much awareness about smoking and galvanizing anti-tobacco groups. The Commission’s initiatives resonated with Italy’s legal framework and changing political and social atmospheres.
As in France, the Italian state has had historically a huge interest in the tobacco industry. Since 1927, its Amministrazione Autonoma dei Monopoli di Stato (AAMS) had enjoyed a monopoly over the distribution of domestic and international products. AAMS was also producing tobacco products --- mostly dark cigarette brands. AAMS controlled a significant, albeit declining, market share: in the case of cigarettes, 40% in 1996 and 35% in 1998 (Ente Tabacchi Italiani 2001). In addition, AAMS granted sale licenses to stores. The strongest competitor was Philip Morris, with over 50% of the market from the mid-1990s on. Philip Morris and AAMS were not, however, pure competitors: AAMS had a license to manufacture AAMS’s products in Italy.
The financial importance of tobacco for the Italian state was enormous. AAMS was located inside the Ministry of Finance. Taxes on cigarettes amounted to over 70% of price during the 1990s. In the case of national cigarettes, the state collected an additional 16% in revenues. In 1992, tax revenues alone reached US$ 6.8 billion (World Health Organization 1997); in 1999, the figure had risen to US$ 9 billion (Giannini 2000). Only petrol would prove a superior source of tax revenues (Keates 1994).
Tobacco generated revenues for farmers as well. The EU’s Common Agricultural Policy granted Italy the largest production quotas throughout the 1990s. In 1994 farmers produced 215,000 tons of unmanufactured tobacco: this amount was ten times the figure for France. In 1998, Italy produced 40% of all EU tobacco (Financial Times 1998). In 1992, EU subsidies equaled US$ 728 million (World Health Organization 1997).
In the mid-1990s, however, the government began to initiate plans to privatize AAMS. In 1997, Health Minister Bindi described the abolishment of the AAMS as a “sign of civility on the part of our country” (Corriere della Sera 1997). In 1998, AAMS, in preparation for privatization, changed from a branch of the Ministry of Finance to a public company: Ente Tabacchi Italiani (or ETI). In July 2000, ETI became a private company, whose shares were nevertheless fully owned by the Ministry of the Economy and Finance. On July 19, 2002, a ministerial decree specified the modalities for the sale of ETI to private parties. The process would entail the sale of manufacturing plants as well as the existing distribution arrangements. The targeted buyers would be organizations or companies, but the possibility was left open for sales to the public (Rogers 2002). As of November 2002, several foreign groups (including British American Tobacco, Franco-Spanish Altadis and Swedish AB) had expressed interest in ETI.
Italy had over time also developed one of the oldest and strictest anti-tobacco legal regimes in Europe. Law No.165 of 10 April 1962 banned advertising of tobacco products. Article 1 of the law categorically stated: “Advertising of any tobacco product, whether domestic of foreign, is forbidden”. Fines for non-compliance were, however, set low. With Law No.52 of 22 February 1983 the state raised sanctions for violations. Additional laws restricted smoking in public areas.
Law 165, however, did not define ‘advertising’. Indirect advertising in particular became a point of contention. In a string of high-visibility cases, judges at first agreed that indirect forms of advertising could be acceptable. The Corte di Cassazione (Italy’s Supreme Court) would rule on July 29, 1987 (case No.6547) that signs indicating the location of cigarettes in a shop should not be considered advertisements. On April 27, 1990 (Case No.3545) the same court ruled in favor of clothing items bearing logos of cigarette brands. On July 11, 1990 (Case No.7209) the court found permissible a travel company’s television ad promoting ‘Camel Adventures’ despite its use of symbols associated with Camel cigarettes.
In a subsequent landmark decision, however, the Corte di Cassazione reversed its position and banned all forms of indirect advertising. On October 6, 1995 (Case No.10508) it reasoned that Law 165 ultimately aimed to ban any advertising that would encourage people to smoke, regardless of the intended use of signs, symbols or images. Law 165 thus became closely aligned with the 1998 EU directive, though a later attempt in 1997 to introduce a new law that would explicitly outlaw indirect advertising failed (Il Sole 24 Ore 1997).
The state’s gradual exit from the tobacco industry was paralleled by the rapid growth of world-class research centers dedicated to cancer and smoking. These centers would make Italy the top European producer, and second in the world after the United States, of scientific papers on cancer treatment for 1995-1999 (BBC 2002). They would also generate much awareness, distribute educational information, and attune the public mind to the fight against cancer. Some of these centers had been active for decades. The Istituto Nazionale per la Cura e lo Studio dei Tumori had operated as a treatment and educational center under the auspices of the state since 1926. The Associazione Italiana per la Ricerca sul Cancro (AIRC) had been active since 1965 as a private entity offering major financial support for research and educational initiatives. It relied on its sister organization, the Fondazione Italiana per la Ricerca sul Cancro (FIRC), to raise funds. One of their major achievements was to support the establishment of the Instituto FIRC di Oncologia Molecolare in Milan in 1999, a major cancer research facility for collaborative work (Pappagallo 1999).
Three additional major institutes were then established in the 1990s. The European Institute of Oncology (EIO), established in Milan in 1991, made available 200 beds and the most advanced equipment and facilities to an international team of over 100 scientists. Private Italian businesses and organizations provided the early funding, but the state soon became involved. In 1996 the government declared the institute a ‘Research Institute of Public Interest’, and hence part of the National Health Service and freely accessible to any EU citizen. The Cuneo Lung Cancer Study Group, founded in 1994 under the leadership of two thoracic oncologists, adopted as its sole mission the advancement of research on lung cancer. It was one of only a few such organizations in the world. Its second International Lung Cancer Conference in October 1998 attracted speakers and participants from four continents. The third organization, born in 1999, was the Società Italiana di Tabaccologia (Sitab). Its mission included the study of tobacco production, consumption and addiction and the diffusion of information for prevention and treatment.
Anti-tobacco grass-root and public organizations were energized by these developments. They moved to intensify their policy and educational campaigns. Among the most influential, the Lega Italiana per la Lotta Contro i Tumori (born in 1926 and operating under the auspices of the Health Ministry) sponsored comprehensive, nation-wide anti-smoking programs throughout the 1990s (Arciti et al. 1995; Corriere della Sera 1992a). A second, Codacons (born in 1986 as a citizen-rights organization) mobilized to defend the rights of non-smokers in public and private dwellings.
The TAD1 stirred great controversy. Above all, disagreement focused on its raison d'être. France and Italy found the TAD1 consistent with domestic law, the business climate and social trends. The Northern EU member states were much slower in embracing the logic of the TAD1 while Spain, in an odd reversal, sided with Germany but then agreed to abide by the terms of the directive. A much weaker TAD2 was eventually passed.
Our analysis casts some light on why ‘good Europeans’ such as Germany and the Netherlands obstructed a commonsensical public health measure while France and Italy, with much weaker consumer protection and environmental awareness, accepted EU action in this field. We focused on the complex dynamics between law, state tobacco monopolies, the medical community, political leaders and economic actors.
Ultimately, though, our analysis suggests that tobacco use raised issues that are highly controversial for any modern democratic country. Simply put, cigarettes are a legal product that, if used as intended, is extremely harmful. Unlike alcohol, there is no safe amount of smoking because the product itself is unsafe. Democratic governments, therefore, face a dilemma of how to restrict consumption of a legal product widely available on the market without trampling on consumer rights and on the economic profits of legitimate corporations. In the end, new concepts about healthy lifestyles and health-promoting behavior convinced governments to encourage people to take responsibilities for the care of their bodies and limit harm to others. Accordingly, since the 1980s, governments have become more assertive about their duty to protect society. But the rate at which they have embraced the new ideas varies greatly across Europe.
Policy areas in which scientific evidence plays a prominent role while interpretation of the scientific findings is filtered through national risk perceptions and values pose serious hurdles for the formation of the European governance regime. Biotechnology (both the green/agricultural and red/medical kind) and public health are at once fairly removed from the creation of a single market yet require common standards and rules to ensure a fair playing field and economic efficiency. A single country cannot pursue a coherent tobacco advertising ban, considering the prevalence of European-wide sporting, music, and other events and the circulation of print media and people. In this case, it makes sense to decide jointly to ban tobacco advertisements and promotions. However, as we argued above, national governments draw different implications from the scientific evidence and do not see eye to eye on the urgency to act on the public health trends.
Moreover, as we have shown, member states do not fit easily into pre existing conceptions of which countries are more likely to support a public health program. Both the Netherlands and Germany have a strong record in favoring EU intervention in the environment and of expressing early concern about the impact of technology on society. Yet these prosperous welfare states took an extreme libertarian position by refusing to restrict certain activities engaged by tobacco companies even if it would yield improved health. Private tobacco companies exploited the modest enthusiasm for preventive medicine and collective health promotion in some member states by lobbying key actors to torpedo the EU initiatives. It was not until key figures in national governments revised their basic thinking that anti-smoking measures gained favor as in Britain and the Netherlands. A critical ally is the medical community, which is able to shape the discourse and disseminate health ideas and provides scientific support to government leaders. If experts are uninterested in monitoring and improving life style habits and have no strong training and dedication to preventive health care, then the climate remains supportive of smoking and elected officials are more susceptible to the lobbying skills of private tobacco companies.
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 The members of the European Parliament of the German Green party voted with the majority and the German Green Agriculture and Consumer Protection Minister, Renate Kunast, has expressed her support for tobacco advertising ban. (European Voice 19 December 2002 – 8 January 2003).
 This directive replaced previous directives on labeling (89/622/EEC, 92/41/EC) and tar levels (90/239/EEC) and added a new range of manufacturing measures. These included more surface area on packages dedicated to health warnings, the ban on the use of terms such as ‘mild’, ‘low-tar’, ’light’, ‘ultra-low’ and ceilings to the yields of tar (10mg), nicotine (1mg) and carbon monoxide (10mg).
 Surprisingly, 64% of the German population favored a ban on smoking in the workplace, according to a 2001 public opinion survey (Spiegel OnLine 2001).
 A desire to aid the ailing newspaper industry could be a second reason. The industry receives around 60m euros of advertising revenues from the tobacco industry (Deutsche Welle 2002: Simonian 2003).
 Greece’s own last minute reversal in favor of the directive occurred when it was agreed that advertising at street-corner kiosks would be permitted (Barry 2002). With Greece’s switch, Spain’s abstention became less consequential.
 American brands dominate the market. Philip Morris’ Marlboro and Marlboro Lights account for 36% of the domestic market. The second most popular brand is Camel (7.7%), which Japan Tobacco acquired after taking over RJ Reynolds’ non-US operations.
 Grass-root organizations, such as The Comité Nationale Contre Le Tabagisme (CNCT), were absent in the early phases, only to acquire some prominence in the 1990s (see, for example, Le Monde 1992a and Jean-Yves 1994).
 On September 10, 2001, a French appeals court quashed the ruling, arguing: “The objective of SEITA was to bring in money for the state, and the Finance Ministry was advised of the necessity to inform tobacco consumers of the risks but did nothing” (New York Times 2001).
 The license expired on August 31, 2001. Ente Tabacchi Italiani, the privatized descendant of AAMS, set up contracts to continue production for Philip Morris (ETI 2001).
 The state began as well to scrutinize the behavior of US companies. In 1996, prosecutors alleged that Philip Morris had failed to pay taxes on tobacco revenues (Parker-Pope and Sturani 1996). On January 13, 2001, Italy was the first EU country to follow the Commission in filing a racketeering lawsuit against Philip Morris and R. J. Reynolds for smuggling cigarettes into Europe (Corriere della Sera 2001; Osborne 2001). AAMS itself would also become subject to a lawsuit in 2000.
 See Law No.584 of 11 November 1975 and Law No.448 of December 28, 2001. Health Minister Veronesi unsuccessfully proposed in 2000 a law banning smoking in all indoor public and private places (La Repubblica 2000; Pace 2001).
 As an example of its varied activities, FIRC endowed oncology chairs at the universities of Milan (in 1996) and Naples (in 2000).
 That month, the group became the Italian chapter of the powerful Alliance for Lung Cancer Advocacy, Support, and Education (ALCASE), an American organization. It then established ties with the International Association for the Study of Lung Cancer (IASLC).