European Tobacco Legislation Endangers Cigarette Brand Identity

In only a few other industries have the competing companies built up stronger brand identities than in the tobacco industry. The decision of the European Court of Justice refusing a ban of advertising and sponsoring of tobacco products was therefore met with applause in the community. Now, however, the European Commission is aiming at a pan-European prohibition of tobacco advertising in the print media, reports Henning Hartwig of Bardehle Pagenberg Dost Altenburg Geissler Isenbruck in Munich

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Goods and services are only purchased if they promise some kind of advantageous use to the potential purchaser. One can differentiate between "basic benefits" and "additional benefits" in this respect, whereby basic benefits refer to material/technical qualities of a product (size, quantity, weight, etc.) and additional benefits to social attributes like youth, beauty, success or "social acceptance". Given the increasing homogeneity of goods with respect to their basic benefits, these additional benefits are becoming more important. The less products can be distinguished based only on how they taste, for example, the more companies are inclined to embellish product names with particular "mental associations" and to let the product itself move into the background.

The best example of this development can be found in tobacco advertising, which has always cultivated an association between cigarettes and "freedom and adventure". Indeed, by successfully building up "product personalities" and brand images, the tobacco industry has rendered its homogenous products nevertheless differentiable. The brand "American Spirit" advertises its additional benefit already in its name, while the value of the "Marlboro" trademark was estimated at over 40 billion Euro already in 1998.

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Decision of the ECJ dated October 5, 2000

With this in mind, it is not surprising that the latest decision of the European Court of Justice (ECJ) on tobacco advertising in the European Union (EU) was strongly praised, mainly by the tobacco industry. The decision dated October 5, 2000 (C-376/98) very clearly defines the limits of a possible EU-wide prohibition of advertising of tobacco products and sponsoring by tobacco companies - probably also analogously applicable to the advertising of other risk products such as alcoholic beverages†- and thereby ends a lengthy discussion of the possible jurisdiction of the EU-Commission. The advertising industry also strongly approved of the ECJ's judgement and rightly pointed out the fundamental nature of the decision.

In 1998 the EU-Commission had decided on a general, if only gradual, prohibition of direct and indirect...