Since the late 80ies it's always been almost impossible to advertise tobacco products throughout the European Union. Directive no. 89/552/EEC introduced a strict and general ban as to "all forms of television advertising for cigarettes and other tobacco products" (so Article 13), while Directive no. 2003/33/EC set restrictions or bans with respect to advertising and sponsoring of tobacco products in other media (see Articles 3, 4 and 5).
In recent times Directive no. 2010/13/EU has confirmed a total and general ban of "all forms of audiovisual commercial communications for cigarettes and other tobacco products" provided by media service providers (so Article 9/1/d). In addition, it prevents "undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products" from sponsoring "audiovisual media services or programmes" (so Article 10/2).
To no one's surprise companies active in this critical sector area have welcomed electronic smoking devices (so-called "e-cigs") as a viable alternative to traditional tobacco products. In Italy over the last two years shops distributing such devices have been set up at an impressive speed and in simply booming numbers. Big Tobacco has realized the business potential and has shifted significant investment to production and distribution of e-cigs.
In parallel criticism against such devices has grown and concern about potential negative effects was voiced. Regulators are therefore deserving increased scrutiny to the phenomenon and recently a special Advisory Board ("Consiglio Superiore di Sanità") has released a formal opinion and recommendations to the State Department for Public Health on the use of e-cigs. In detail the Advisory board: (a) called for a ban of such smoking devices at school and in public places, (b) recommended particular caution when such devices are used by individuals falling into 'risk categories' (e. g. pregnant or breastfeeding women), (c) strongly suggested that such devices should not be available for sale to minors of age (i. e. under the age of 18) when their cartridges contain nicotine, (d) proposed to establish a special 'Observatory' in charge of monitoring the effects deriving from the use of e-cigs, (e) finally, called for specific regulation both as to labeling and consumer information as well as to advertising of such devices.
Such suggestions and recommendation have been partially accepted by the Department for Public Health, which issued a Ministerial Order, banning sales of e-cigs to individuals aged under 18 as well as their use at schools and prescribing additional information and labeling requirements for such devices.
But more is likely to be on the horizon. In Italy tobacco products are subject to significant taxes, which make up more than 70% of the final sales price. As already 500.000 individuals make use of e-cigs on an ongoing basis, the Financial Administration is not exactly happy about the new product escaping taxation (according to recent estimates, the loss sums to approx. 700 million Euro). It doesn't therefore take much to predict that soon the taxation currently applied to tobacco products could be extended to electronic smoking devices.
While France is also considering banning the sales of e-cigs to minors and of their use in bars and restaurants, the topic is likely to be addressed soon on a transnational level. The European Commission announced plans to present a revision proposal of the 'tobacco products directive' (no. 2001/37/EC) and a draft text was finalized and released on December 12th, 2012 (but final adoption of the amended Directive is unlikely to occur prior to year 2015). In a meeting held in Luxembourg on June 21st, 2013 the Council of the European Union agreed that the revisited tobacco directive will specifically address, among other issues, "nicotine containing products (such as electronic cigarettes)" where these products "would be allowed on the market below a certain nicotine threshold provided they feature health warnings; above this threshold such products would only be allowed if authorized as medicinal products (e.g. nicotine replacement therapies".
Under these premises Marketers will need to carefully consider their business and advertising strategies.
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