Philip Morris International’s German subsidiary appealed a city authority's decision to ban the tobacco company’s “Don’t Be a Maybe - Be Marlboro" advertising campaign launched in Germany in 2011. The tobacco advertising contained six different forms of a theme - the words “Maybe” or “Be” and short phrases containing these words, coupled with images of young people engaging in daring and rebellious activities. The administrative court upheld the ban and found that the Marlboro campaign encouraged teenagers as young as 14 years of age to smoke in violation of Germany’s tobacco advertising laws. Additionally, the administrative court found that the campaign created an unfair advantage for Philip Morris International as compared to tobacco companies that abided by the advertising regulations. In its decision, the administrative court stated “the advertising specifically targets risk-taking, rebellious youths” and found that Philip Morris International’s argument that the purpose of "Be Marlboro" advertising was to encourage adult smokers to switch to Marlboro cigarettes was not credible based on the fact that “there is already a high degree of brand loyalty in this group of persons.”
Philip Morris GmbH v. Land of Bavaria, M 18 S 13.4834 (2013)
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
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.
A claim of a violation of a tobacco control law or statute.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"The group of youths is heterogeneous and the advertising specifically targets risk-taking, rebellious youths. Even youths who are already smokers must still be protected. The statement by the Applicant that the purpose of her advertising is to encourage adult smokers to switch to the Marlboro brand is not credible since there is already a high degree of brand loyalty in this group of persons. The Applicant’s argument implies that it is no longer possible to exercise an enforcement of the law. The motifs of the campaign are to be seen in the context of the entire campaign. Advertising for tobacco products is prohibited in general or in isolated cases if it is especially suitable for encouraging youths and adolescents to smoke. Prohibition of the terms “MAYBE” and “BE” is legitimate since these words appeared on all advertising mediums. Without the ban, additional illegal variations of the campaign would be possible. The Applicant could also not disapprove of the continuation of the campaign. Discretion has been appropriately exercised. It no longer depends on the assessment of individual motifs since the entire campaign has been evaluated as illegal. The Respondent was in contact with the Applicant in order to discuss the respective stage of the proceedings and the legal concept. Consent was not given on the part of the Respondent with regard to the procedure under inclusion of the German Agency to Combat Unfair Competition. The order under Cl. 1b) is also given since it is clearly recognizable that the order refers to all of the motifs within the scope of the motifs used. Public interest is given through the top-priority of the protection of youths and adolescents. On the other hand, the right of the Applicant to the freedom of expression is not affected since it only affects her during the distribution of her goods. The freedom to practice a profession can also be restricted by a law.
The Applicant can advertise through another campaign. Furthermore, the interests of the Applicant are only of an economic nature. Since October, the Applicant has also been using other posters. In as much as the Applicant contests the long wait for a decision by the Respondent; he apparently was checking the legal position with regard to the effects in an intensive and time-consuming manner."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Philip Morris International’s German subsidiary appealed a city authority's decision to ban the tobacco company’s “Don’t Be a Maybe - Be Marlboro" advertising campaign launched in Germany in 2011. The tobacco advertising contained six different forms of a theme - the words “Maybe” or “Be” and short phrases containing these words, coupled with images of young people engaging in daring and rebellious activities. The administrative court upheld the ban and found that the Marlboro campaign encouraged teenagers as young as 14 years of age to smoke in violation of Germany’s tobacco advertising laws. Additionally, the administrative court found that the campaign created an unfair advantage for Philip Morris International as compared to tobacco companies that abided by the advertising regulations. In its decision, the administrative court stated “the advertising specifically targets risk-taking, rebellious youths” and found that Philip Morris International’s argument that the purpose of "Be Marlboro" advertising was to encourage adult smokers to switch to Marlboro cigarettes was not credible based on the fact that “there is already a high degree of brand loyalty in this group of persons.”