TOBACCO CONTROL LAWS

ASA Adjudication on Gallaher Ltd. (A12-208266)

This ruling by the Advertising Standards Authority (ASA) sanctioned Japan Tobacco International (JTI) for misleading advertising for their campaign against plain packaging in the United Kingdom.  Public health organizations made a complaint about the advertisements of JTI.  The ads claimed that plain packaging was “categorically rejected” and there was “no evidence” of its effectiveness.  The ASA found that both of these claims were misleading and unrepresentative of the true facts.  The ASA ordered JTI and its subsidiary, Gallaher Ltd, to not run the ads again.

ASA Adjudication on Gallaher Ltd, Complaint Ref. A12-208266

  • United Kingdom
  • Mar 13, 2013
  • Advertising Standards Authority
View Case History Download Document

Parties

Plaintiff

  • Cancer Research UK
  • ASH
  • ASH Scotland

Defendant Gallaher Ltd

Third Party

  • Japan Tobacco International

Legislation Cited

Committee of Advertising Practice (CAP) Code, Rule 3.1 (Misleading Advertising)

Committee of Advertising Practice (CAP) Code, Rule 3.7 (Substantiation)

Related Documents

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Type of Litigation

Government Enforcement Action
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
Enforcement Action by a Private Individual or Private Entity
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.

Tobacco Control Topics

Industry Interference
Measures to protect health policies from the commercial or other vested interests of the tobacco industry. (See FCTC Art. 5.3)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Consumer Protection Violation

Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.

Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
Non-Mandatory WHO FCTC Guidelines
The WHO FCTC Guidelines are not mandatory for Parties and merely suggest policies, or a discussion on the effect of the Guidelines on national legislation.
Sufficiency of Scientific Evidence
A discussion on whether current scientific evidence is sufficient to justify the regulatory measures.

Type of Tobacco Product

None

"We noted that the Government had not taken forward and built into law proposals for plain packaging at the same time as other measures considered under the 2008 Consultation. However, we considered that readers of the ads would be likely to interpret the use of the word "rejected" to describe that decision as a more categorical action than had in fact been taken. We also considered that the various ministerial comments provided by JTI were not conclusive in demonstrating that the Government had considered after the 2008 Consultation that there was no credible evidence at all in favour of the introduction of plain packaging. We therefore considered that the claims in the ads that the policy had been "rejected" in 2008 because of a lack of credible evidence gave a misleading impression of the position and action taken at that time by the Government and concluded that the ads breached the Code."
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