Health ministers thought they could get a European ban on cigarette advertising by adapting the EU directive on internal markets. They were wrong, but the anti-smoking lobby is not despondent. Tony Sheldon reports

With a candour born from disappointment, Brussels anti-cancer lobbyist Andrew Hayes called it 'a black day' for public health in Europe.The European Court of Justice, the EU's top legal body, had just annulled EU legislation banning 'the advertising and sponsorship of tobacco products'.

Arguably one of the greatest triumphs of a nascent EU public health policy had been struck down - and with a vengeance.

Lobby groups had long expected the court to rule against the ban, following advocate general Nial Fennelly's opinion in June that it could not be said to 'advance the interests of the internal market'. It was under the treaty provision of the EU directive on the internal market that the proposed law was originally passed.

But the lobbyists expected good news too - that while the ban would be annulled 'as presented', the court would point to other treaty provisions such as public health and consumer protection which could be used to make the ban could more legally robust.

It did not. The ruling, two weeks ago, declared that the EU 'had no power to adopt that directive . . . relating to' the internal market. The ban 'in no way helped to facilitate trade'; nor did it 'ensure the free movement of products' as required in the treaty.

A crumb of comfort was offered with the knowledge that 'a partial prohibition on certain forms of advertising' would have been allowed, but this was far from what had been originally intended.

Members of the public health lobby are reacting with 'dismay'. They argue that the advocate general had accepted that a tobacco advertising ban had the potential to save lives.

And the International Union against Cancer and the Association of European Cancer Leagues (UICC/ECL) has claimed that annulling the ban could put 38,000 EU citizens' lives 'unnecessarily at risk'each year.

The UICC/ECL stressed, too, that the ban had been agreed by the European Parliament and the European Council of health ministers. Now this 'political commitment' to public health had been overturned by a 'legal decision'based on narrow 'economic arguments'.

As the court annulled the ban without pointing to another solution within the existing treaty then it is time the treaty itself was changed, they argued. The EU should 'adopt treaty provisions which will strengthen the commitment to public health'.

UICC/ECL liaison officer Andrew Hayes said the ruling was significant in that it was based solely on economic terms, without reference to consumer or health protection. This ran contrary to jurisprudence developed since the controversy over bovine spongiform encephalopathy.

Chief executive of the UK Public Health Association John Nicholson also thinks the health perspective of European institutions needs to be reinforced. 'The difficulty with the [court] judgement is that the main reason for the EU is economic, which runs counter to the improvement in public health which we would like to see, 'he said.

But former health minister John Bowis, who sat on the EU's council of health ministers for the last Conservative government believed the 'sharp lesson to be learned' from the court decision was that the commission should 'do its homework more thoroughly and not rush into legislation.'

Mr Bowis, now a member of the European parliament (MEP) and Tory spokesman on the environment, public health and consumer protection committee, denied this was a 'terminal blow' and saw the advertising issue as more 'symbolic'. He argued that the ruling does not close the door on EU member states introducing their own bans, nor does it interfere with the current legislation ensuring clearer warnings on cigarette packets.

'One of the things Europe can do very well is to collect good practice and disseminate it', so a more important role for the EU would be through health education and promotion rather than advertising bans, he said.

There appears to be an inevitable momentum towards a ban.On the day of the European court's decision, Formula One motor racing announced its own voluntary ban on tobacco advertising, albeit from 2006.

But the ruling raises yet again the question of whether the European Community should be simply an economic organisation. As the British Medical Association's Dr Vivienne Nathanson argued: 'A progressive Europe cannot solely serve the purposes of commerce and free trade - it must also act to protect the health and well-being of all Europe's citizens.'

Trailblazers: tobacco advertising bans spread like wildfire The supreme irony of the tobacco companies' success in the European court is that it appears to have little impact on moves across the EU to ban tobacco advertising. This summer Ireland joined seven EU member states which already have bans. A further three - the UK, the Netherlands and Denmark - were planning to introduce bans in line with the EU directive.

On the day of the announcement UK health minister Yvette Cooper insisted that the ruling would not 'deflect us from implementing our manifesto commitment'. She added: 'tobacco advertising promotes a deadly habit and those brands that are most advertised are smoked the most, especially by children.'

A UK ban could be tighter than one emanating from the EU. Action on Smoking and Health is calling for 'loopholes' in the EU ban - such as those which allow advertising at the point of sale and some 'brand stretching' where products such as boots or clothes are advertised with tobacco brands - to be closed.