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The criticisms made against the Draft Bill are against the total ban on tobacco
advertising, which is anti-constitutional as it prevents the freedom of the
company and is contrary to community law. It also criticizes the sanctions,
whereby selling a cigarette to a minor has greater sanctions than giving him
drugs. The lowest sanction for selling tobacco to a minor would be 600 Euros,
when if he is supplied 1 gram of cocaine, the sanction would be around 240
Euros.
Comments: Although it is possible that the definitive text of the new Anti-Smoking Act
may be somewhat softened, the Government’s firm intention is to drastically
reduce tobacco consumption and ban advertising.
3. Legislation: General Advertising Act
Topic: Unlawful, unfair and comparative advertising
When: October 2004
Who: Madrid Provincial Court
Where: Spain
What Happened: In our country report of May 2003, we informed on the judgement given by
the Court of First Instance No. 11 of Madrid, whereby it ordered the
company TELE 2 to stop the acts of unfair competition carried out by
broadcasting an advert in which it compared its rates to those of the
company Telefónica and to make an advert to rectify the previous one. In
doing this, they must follow certain indications also laid down in the
judgement.
However, on 26.10.2004, the Madrid Provincial Court revoked said
judgement.
After analysing the two reasons which led the Court of First Instance to
classify the prosecuted advert as illicit (a) not advertising similar products
and (b) untruthfulness as it is incomplete, regarding the first point, the Court
has understood that the objects of comparison do not have to be identical. It
is sufficient that the products and services belong to the same type and are
used to satisfy identical needs.
And with respect to the truthfulness of the advertising, the Madrid Court
indicates that the comparison made in the advertising message in question
does omit reference to certain circumstances (discount plans, service
packages, vouchers and price plans) which may, where appropriate, modify
the final price of the service provided. However, they are not essential data,
as they depend on the subscriber requesting them and certain requirements
being met. Furthermore, the different plans, packages and vouchers are not
unknown by the consumer, given the frequent, intense advertising
campaigns they are subject of.
In consequence, the Madrid Provincial Court has allowed the appeal brought
by the company TELE 2, proceeding to revoke the judgement passed by the
Court of First Instance no. 11 of Madrid.
Comments: The concepts of “similar products” and “untruthfulness” should be
understood in the strictest sense.