If it follows the recommendation of its health committee, the European Parliament will agree on Wednesday to ban tobacco advertising throughout the Community at some future date. That a vote is taking place at all is peculiar. Several weeks ago, the European Union's Legal Affairs committee determined that the proposed ban is unconstitutional.
The committee's opinion is supported by a recent study--produced for the Research Directorate of the EU Parliament--by Joseph Weiler, a Harvard University EU law expert. Mr. Weiler argues that the very language of the proposed ban makes it clear that a principal purpose of the legislation is a concern for public health, as opposed to the promotion of the internal market--the EU's legitimate domain. Public health issues are the responsibility of individual member states, not the EU. The proposed ad ban, Mr. Weiler contends, "constitutes a sweeping arrogation of public health competences which the Community does not enjoy."
If the EU does not want to follow its own legal framework, it should consider that advertising bans are unconstitutional intrusions into free speech under the law that governs both civil and common law jurisdictions. This is true whether there is a written constitution, as in most member states, or an unwritten one, such as in Britain. Simply put, if a state wants legislation that reduces fundamental liberties, such as free speech, it has to carry at least two heavy legal burdens.
First, it must be demonstrated that the proposed law or regulation furthers a legitimate state goal and is likely to succeed in advancing that interest. Secondly, the state must show that its proposed regulations are minimally intrusive and that other less meddlesome means are not available.
Obviously, governments have a legitimate interest in the health and safety of their citizens. But ad bans are unlikely to improve public health. The only way to show that they might be effective would be if a ban resulted in a drop in tobacco consumption.
But study after study--including the U.K.'s Department of Health's Smee Report from 1993 and the World Health Organization's 1983-84 report--demonstrates that people, including the young, do not smoke as a result of advertising. While this may be counter- intuitive, it is not really surprising. No one pretends that people bath more as a result of soap ads, or that they brush their teeth more as a result of toothpaste advertising.
There are a handful of studies which purport to demonstrate a connection between advertising and tobacco consumption, but the evidence is faulty or unconvincing. For example, the New Zealand government's 1989 Toxic Board study based its conclusions on biased information from antismoking groups instead of official government data. Economist Thomas Schelling, former director of Harvard's Institute for the Study of Smoking Behavior and Policy said: "I've never seen a genuine study of the subject. Most of the discussion that I hear...is about as profound as saying, 'If I were a teenage black girl, that ad would make me smoke."'
Similarly, in 1989 the U.S. Surgeon General concluded that "there is no scientifically rigorous study available" on the subject and "given the complexity of the issue, none is likely to be forthcoming...." And in 1994, the U.S. Surgeon General again acknowledged the lack of a definitive review.
Against this, a number of highly sophisticated, econometrically sound studies from Spain, Germany, Greece, the United Kingdom, as well as America, South Korea, Australia, and South Africa, to mention but a few, have come to the conclusion that there is no significant statistical relationship between expenditures by tobacco companies on advertising and total consumption of tobacco.
In fact, often precisely the opposite occurs. After the passage of advertising bans, tobacco consumption has actually increased. For example, in the OECD countries with advertising bans, the average adult consumes approximately 3.3% more than in countries without such regulations. In Italy, Portugal, France and Norway--which have ad bans--smoking levels have increased, especially for women. Yet in countries without bans, or only partial bans--such as the U.K., Belgium and the Netherlands--the percentage of the population that smokes has fallen.
This is not surprising considering that there are many reasons why people smoke. Indeed, the weight of the evidence suggests that people begin smoking because of the influence of family and friends--not advertising.
Since the states are not going to be able to clearly show that ad bans decrease consumption--and the burden is on the government, not the advertiser--it's very likely that the courts of member states will find the proposed legislation unconstitutional.
Such a ruling is all the more likely given that less intrusive means than total bans are readily available. Many of these, such as more rigorous enforcement of age restrictions on tobacco purchases, have not been adequately investigated. Without probing alternative measures for decreasing tobacco consumption, proponents of the ban can hardly hope to prove that their rather draconian assault on free speech is the least restrictive method available. The courts in the member states will likely agree, making the EU's vote all the more peculiar.
Mr. High teaches economics, finance and law at the University of Cape Town. He recently completed a monograph entitled "Advertising and Tobacco Consumption," which is being published by the Institute of Economic Affairs, London.
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