Ashes to ashes

More than two months after health ministers thrashed out an agreement to ban tobacco advertising throughout the European Union, they will meet again today to adopt formally their 'common position' on the issue.

The agreement, on 4 December, was hailed as an 'historic turning point' for public health. It had taken 10 hours of 'very difficult negotiations' to agree the ban on tobacco advertising, sponsorship and promotion.

For British Medical Association chair Sandy Macara, it was 'marvellous news'. The BMA hopes that, with advertising banned, UK figures showing 450 teenagers starting to smoke each day, could fall. But, with possible legal and legislative challenges still to come, there is still a long way to go.

The European Parliament first agreed a ban in 1992. But it was blocked by a minority in the council of ministers, including the UK. Now Europe will have to wait at least until 1 October 2006 before the ban takes full effect.

The directive scraped through in December with the barest majority. The Netherlands and the UK, formerly part of the blocking minority, changed sides. Denmark, faced with anti-Brussels sentiment at home, abstained.

Germany and Austria remained opposed to the ban, while Spain abstained after previously promising to support it.

The result was a consensus, but with a fragile majority. The proposed ban gained the minimum 62 out of 87 votes necessary for agreement, but was hardly a robust resolution of the issue.

For optimists, it marked a changing mood within Europe. Belgium had voted for a national ban days before the meeting.

EU social affairs commissioner Padraig Flynn welcomed as 'a major breakthrough' the willingness of Germany's health minister, Horst Seehofer, at least to negotiate.

Greek health minister Costas Gitonas was also praised for his courage in supporting the ban. Greece is a tobacco producer.

The Association of European Cancer Leagues' EU liaison officer, Andrew Hayes, says: 'For the first time in history a large number of countries have acted together to ban tobacco advertising.'

The ban was agreed under article 100A of the 1987 Single European Act, not under public health legislation, which has no power to harmonise national laws.

Mr Hayes believes this marks a 'psychological victory' for the health lobby. 'The council has clearly accepted that single market legislation provides an acceptable basis for reaching these decisions,' he says.

But this also raises questions about whether the ban is constitutional. Germany's Mr Seehofer raised legal and constitutional objections during negotiations.

Under pressure from Germany's powerful tobacco industry, the largest EU manufacturer of tobacco products, a legal challenge could be made in the European Court of Justice alleging that the ban is an abuse of article 100A.

Any case would enjoy considerable support among Germany's political parties. Yet sources in the federal government suggest that, as a keen supporter of majority decisions within the council of ministers, the German government itself is unlikely to challenge the ban. But the UK Tobacco Manufacturers Association and others could mount a legal challenge instead.

There are arguments, too, that the ban breaches the principle of subsidiarity, whereby member states should retain the power to act if national action is most effective.

A case could also be brought to the European Court of Human Rights, arguing that the ban contravenes freedom of speech. And one Brussels lawyer argues that a case could be brought on the basis of World Trade Organisation free trade rules.

Meanwhile, any legal challenge must wait until the proposal finally becomes law. Yet even this is a hazardous legislative journey that could take until 1999.

After today's official adoption of the 'common position', the proposed directive could be amended by MEPs over the next four months.

But many MEPs have changed in the six years since the parliament first approved a ban. In that time the Maastricht and Amsterdam treaties have increased the parliament's power.

Meanwhile, fierce lobbying by the Tobacco Manufacturers Association and other industry representatives has already begun. Even Labour peers wrote in The Times last month that the directive was 'muddled' and of 'doubtful legality'.

But some MEPs intend to try to tighten the ban, especially with regard to the extra time limit allowed for 'world events' such as Formula One motor racing.

European health officials are urging them to accept what is on offer, saying further amendments would do the ban a disservice.

Unamended, a simple majority of MEPs could pass the legislation, but, once changed, a final proposal would have to be accepted by 314 MEPs, an absolute majority, and still have to be ratified by the council of ministers.

If the council disagrees, a conciliation procedure follows, which would mean final agreement could not be expected until the end of this year or 1999.

And with the only two opponents of the ban, Austria and then Germany, holding the EU presidency, worries remain that the timetable could be stretched even further.

Once law, the ban's implications could be historic. It is one of the toughest anti-smoking packages in the world. It affects not just the 15 EU countries but those such as Poland, Hungary, Slovenia, the Czech Republic, Cyprus and Estonia which wish to join. They would have to bring their legislation into line with the EU before joining.

More immediately, an EU ban is a powerful signal in support of efforts in those countries to restrict smoking. Countries such as Poland and Hungary are viewed by the tobacco industry as potential growth markets.

Legal challenges and the EU's ponderous legislative machinery aside, 1 October 2006 could make history. By then the BMA estimates that 1 million UK teenagers could have been tempted to start smoking.