CLOSE-UP: LIVE ISSUE/TOBACCO ADVERTISING - Tobacco ads still face threat from UK government. With a general election on the cards next year, Labour wants to enforce an ad ban

The tobacco industry is celebrating another tactical victory in its battle to stop a ban on its products being advertised, but the Government is already lining up its forces to ensure that it finally wins the war.

The tobacco industry is celebrating another tactical victory in its battle to stop a ban on its products being advertised, but the Government is already lining up its forces to ensure that it finally wins the war.

Last Thursday's ruling by the European Court of Justice that the European Union's directive banning tobacco ads was illegal may turn out to be a Pyrrhic victory for the tobacco companies, who had already scuppered the Government's attempt to bring in a fast-track ban in Britain last December by taking action in the High Court.

Labour ministers still hope that tobacco promotion will be outlawed in the UK in about nine months' time. Although the Government will not talk officially about the contents of the Queen's Speech, due next month, it is understood that the health secretary, Alan Milburn, has won a slot for a bill on tobacco advertising.

Having promised a ban in the 1997 general election manifesto, Labour ministers are determined to deliver the pledge before Tony Blair calls the next election. But they will still face a race against time to get the legislation on to the statute book before next May, the most likely time for the election.

At one point, it seemed that the Conservative Party would do a U-turn and back a ban. Liam Fox, the shadow health secretary and a former GP, took a hard line against tobacco advertising. But William Hague may over-rule him and oppose an outright ban, perhaps by defending the tobacco companies' right to send direct mail to adult customers who request it.

The Tory leader, who has been lobbied hard by tobacco companies furious at Fox's approach, may regard a ban as an example of what he calls 'nanny state' politics by Labour.

Labour's majority would ensure that the bill gets through the Commons.

But the Government could run into further problems in the Lords. While the Liberal Democrats would back Labour, several Tory peers would oppose the measure on freedom grounds and could delay its passage.

The bad news for the tobacco companies is that the bill could be even tougher than the stalled EU directive. Ministers are under pressure from the anti-smoking lobby to close loopholes in the Brussels plan. They may opt for tougher rules on brand-stretching to prevent the tobacco companies getting round the ban by marketing products such as Camel boots or Marlboro T-shirts.

They could also outlaw the use of such terms as 'mild' and 'light', the subject of a separate EU directive on labelling (which may now also face a legal challenge from the tobacco industry).

'There is definitely a silver lining because the Government can now redraft the advertising ban to close the various loopholes,' Clive Bates, the director of Action on Smoking and Health, says. 'We should end up with a tighter tobacco advertising ban in Britain and this will be no more than the tobacco companies deserve.'

Indeed, ministers may be tempted to vent their frustration at the stalling tactics used by the tobacco industry through bringing in tougher legislation than would otherwise have been the case.

With hindsight, Labour backed the wrong horse by relying on the EU directive rather than introducing a bill in Parliament in the first place. The ad industry can be forgiven for having a sense of Schadenfreude.

'Labour should have listened to the Advertising Association, which told it two years ago what would happen to the EU proposal,' Rupert Howell, the president of the Institute of Practitioners in Advertising, says.

'It would have been much better to sit down and talk to the tobacco industry about a new agreement. It could have worked out a voluntary ban, phased in over time.'

Although HHCL & Partners does not handle tobacco accounts, Howell accuses the Government of 'hypocrisy' in proposing a ban while pocketing millions of pounds in tobacco duties.

Howell expects the Government to get its way, with legislation reaching the statute book sooner rather than later. But Ian Twinn, the director of public affairs at the Incorporated Society of British Advertisers and a former Tory MP, believes that Labour could yet face further delays. 'It may have difficulty bringing it in before the general election,' he says, pointing to the prospect of all-night sittings in the Lords. 'The European ruling is good news. It could give the industry another two years to sort out the phasing in of what will be banned.'

Labour could have ended tobacco advertising by now if it had taken up the offer of talks made by the Tobacco Manufacturers' Association (TMA), Twinn says. 'It's very odd for a government that calls itself a 'listening government' that it wasn't prepared to do so.'

While ISBA believes that it should be legal to advertise a product that it is legal to sell, Twinn says that it recognises Labour's right to bring in a ban after including the move in its 1997 manifesto and accepts that ads are likely to be banned eventually.

The outdoor industry, having won a reprieve last December, has now won a further respite, but is not cracking open the Champagne.Tobacco now accounts for only about 4 per cent of billboard spending, as it must fall every year under the current voluntary agreement. 'A ban is only a matter of time, and it won't be catastrophic,' Stevie Spring, the chief executive of the More Group, says. 'The poster industry is doing well at the moment, as other media fragment. A lot of new companies are coming in and they will soak up the extra sheetage.'

Yvette Cooper, the public health minister, admits that the European Court of Justice's ruling is a 'disappointment' but insists that it will not deflect Labour from implementing its manifesto commitment to ban tobacco ads. While confirming plans for a UK-only ban, she said that the Government still wants to see action at EU level and urged the European Commission to bring forward new proposals as soon as possible.

Such a new directive is likely to be brought in on health grounds, since the European Court ruled that the previous one was illegal because it was introduced as a single market measure. Decisions on health do require the unanimous support of all 15 EU members, but Lionel Stanbrook, the deputy director-general of the Advertising Association, says that Germany, which successfully challenged the last directive after it was brought in through the back door, might not object to an upfront proposal on health grounds.

Stanbrook hopes that last week's ruling will persuade the Commission's legal experts to think carefully before rushing ahead with plans to curb children's advertising. 'They don't like the advertising industry because it stands in their way. The Commission is a very arrogant institution,' he says.

Further legal challenges may yet scupper the Government's plans. TMA officials believe that the European Convention on Human Rights, which was incorporated into British law this month, could give tobacco companies the right to contact their customers by direct mail - something that the Government wants to stop.

'The Government must be careful about how it frames its legislation,' John Carlisle, the TMA's director of public affairs, warns.

There is, of course, another scenario. Labour's bill is delayed in Parliament and the Tories win the general election. In that case, last week's reprieve would last for a very long time. However, the betting at Westminster and in the advertising industry is that the days of tobacco ads are still numbered.



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