The German government is claiming, in a case brought to the Brussels-based European Court of Justice, that the directive is illegal. And the EU's advocate general, whose job is to give advice and legal opinion to the court, agrees. The court will make a final ruling in October.
"[The advocate general] said he believes the EU has acted beyond its means and that the directive should be annulled," said James Aitchison, spokesman for the U.K.'s Advertising Association.
Although the court isn't required to follow the advocate general's advice, Mr. Aitchison said that in practice the court has agreed with at least 80% of his recommendations. To make a decision, the court has to determine whether the directive should be treated as a single-market measure needed to harmonize the 15 member countries' laws regarding tobacco advertising or as a public health issue.
Laws that are needed to make the EU function as a single European market require only a simple majority among the 15 EU members. If tobacco advertising is a health issue, as the German government is arguing, the directive can only be adopted if the member states agree unanimously. Otherwise each country can make its own rules.
The U.K.'s Labour government has promised to go ahead with a tobacco ad ban even if the European Court of Justice overturns the directive.
Ironically, the threat to the tobacco directive comes at a time when the developing eastern and central European governments are aggressively attempting to ban tobacco advertising in their own countries to speed up their entry into the EU. According to informal estimates, cigarette marketers spend about $35 million a year on advertising in central and eastern Europe.
In the Czech Republic, for example, the government plans to ban all cigarette ads by April 2001, with Poland following in 2002 and new restrictions to come in Bulgaria and Romania. Hungary and Lithuania already have heavy restrictions on cigarette advertising.
BAN IN BRAZIL?
Elsewhere, the days of multimillion-dollar cigarette commercials may be numbered in Brazil, one of the world's most liberal markets for tobacco advertising and sponsorship.
In early June, the Brazilian Senate's Commission of Constitution & Justice approved a bill banning all advertising of and sponsorship for tobacco. Fighting against the proposed ban, Brazil's pro-tobacco lobby has proposed 24 amendments that must be debated, postponing any vote on the bill until August at the earliest.
Gilberto Leifert, president of Brazil's self-regulatory advertising body Conar, said the Brazilian constitution guarantees freedom of commercial speech--with restrictions--for products that can be sold legally. "If the government wants to change the constitution, fine," Mr. Leifert said, "but what it's doing is unconstitutional. We're defending freedom of speech."
Under the current self-regulatory system, commercials for cigarettes can air after 9:30 p.m. and before 6 a.m., and outdoor boards must be at least 200 meters from schools. Commercials can't feature Olympic sports, a major reason why Brazil's big budget cigarette commercials depict exotic sports such as ice climbing and catamaran racing.
The latest commercial by Sao Paulo agency DPZ for top B.A.T brand Hollywood cost nearly $3 million. Shot on a Thai island, the spot featured two boats being built and then raced side-by-side to an idyllic island. Filming required a team of 60 people, a helicopter, 13 different types of boats and four cameras in addition to an array of support equipment needed for special shots, such as those involving underwater filming.
Besides congressional action, Brazil also has an activist health minister, Jose Serra, who has launched a $3 million TV, print and billboard anti-smoking campaign by Master, Curitiba, aimed at Brazil's 30 million smokers. In one spot, a drug dealer says he would like to advertise his products with the same kind of images that cigarette commercials use, such as sports and people enjoying themselves.
Contributing: Joyce-Ann Gatsoulis, Prague; and Claudia Penteado, Rio de Janeiro