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Poland - New Regulations on Tobacco Ads
25/01/2011
A controversial act went into force in Poland on 15 November 2010 banning smoking in public places. At the same time, amendments were introduced to the regulations concerning advertising of tobacco products.
The amendment to the Act on Protection of Health from the Effects of Use of Tobacco and Tobacco Products dated 9 November 1995 primarily revised the definition of advertising of tobacco products. Under prior law, advertising of tobacco products was defined as a message that:
- was public in character;
- contained (i) images of tobacco product brands or related logos, or (ii) names or logos of producers of tobacco products, if they were the same as the names or logos of the tobacco products; and
- served to popularize tobacco products.
Advertising of tobacco products, as thus defined, was prohibited, but this meant that “non-public” advertising, for example, was permissible. The distinction between public and non-public advertising had to do with the scope of the audience for the advertising message. If the number of persons to whom the message was addressed was unlimited and indeterminate, the advertising was deemed to be public and was thus prohibited. However, if the advertising was directed to a defined group of persons, even a very numerous group, it was regarded as non-public and thus permissible. This distinction was interpreted to mean that it was permissible to advertise tobacco products via e-mail, because the recipients, and the number of recipients, were defined in advance. Advertising in the form of leaflets enclosed in cigarette packs was also permitted, because the leaflet was intended only for the person who purchased the cigarettes, and thus the message was not considered to be public.
The amendment that went into force on 15 November 2010 changed the definition of advertising of tobacco products. The new definition does not stress the public nature of the advertising, but includes “dissemination” of messages serving to popularize tobacco products. This change raises doubts concerning whether advertising of tobacco products is permissible when directed to a fixed number of recipients, i.e. non-public advertising. The change may suggest that the legislative intent was to limit advertising of tobacco products by also prohibiting non-public advertising. On the other hand, by using the word “dissemination,” the definition still essentially refers to a message that is public in nature. By analogy, the Polish Copyright Act refers to a work that has been “disseminated” as one that has been made “publicly accessible.” Thus the amendment concerning advertising is sure to raise significant issues of interpretation.
Leaving aside the issue of whether non-public advertising of tobacco products is still permissible, the act now expressly prohibits advertising of cigarettes in the mass media, in the printed press, on posters, and via IT services. Another important change since 15 November 2010 is the prohibition on display of items imitating the packaging of tobacco products at points of sale.
Choose Words Carefully When Advertising Smoking Cessation Products
Pursuant to a decision issued by Poland’s Chief Pharmaceutical Inspector, it is unlawful to advertise a medicinal product designed to help users quit smoking with a claim that the “lozenges help quickly overcome the desire to reach for a cigarette” (decision dated 18 November 2010, No. GIF-P-R-450/39-4/ZW/09/10).
Under the Polish Pharmaceutical Law, advertising of a medicinal product must not be misleading, and must present the medicinal product objectively and provide information about its rational application. According to the Chief Pharmaceutical Inspector’s decision, the advertisement referring to the quick action of the lozenges was misleading because the word “quickly” could be understood to mean the product acts “very fast” or “almost immediately.” In the case of lozenges, which are taken orally, the time it takes for the product to act depends on how long it takes for the active ingredient to reach the bloodstream, which in turn is affected by such factors as the time it takes for the lozenge to dissolve. The product might not act “quickly” because it does not take effect immediately upon using the lozenge, and the ad was held to be misleading.
Advertisers thus need to choose their words with particular care when describing medicinal products, without the usual margin of error for puffery in ads.
Keeping Online Beer Ads Away from Minors
In December 2010, the Polish Advertising Council (Rada Reklamy), which is responsible for self-regulation of the advertising industry in Poland, issued a ruling on ads for the well-known national beer brand Żywiec on a popular Polish news site.
Under Polish law, beer is the only alcoholic beverage that it is legal to advertise, but beer ads are subject to numerous restrictions. One restriction is that beer ads may not be addressed to minors. In addition, the Beer Advertising Standards in the Advertising Ethics Code adopted by the Advertising Council prohibit advertising that suggests that drinking beer is a hallmark of adulthood.
The Żywiec ad in question was presented in the form of a pop-up window with the question “Are you 18?” in a distinctive typeface used by the brand. Users who clicked “No” were then shown the message: “You’re not 18 yet, but the BEST is before you.” A mug of beer was pictured next to this text—and, in fact, “The BEST is before you” was also a slogan used in regular Żywiec ad campaigns.
The Advertising Council found that this ad should be changed because it was unlawful, outside accepted ethical norms for advertising, and exploited the trust and inexperience of users.
Unfortunately, the resolution by the council does not explain what the ethical violation was. It seems, however, that the legal violation has to do with directing beer advertising to minors, because the mug of beer with the message that “the BEST is before you” appears when the Internet user indicates that he or she is under 18. The suggestion is unmistakable: beer is the best thing, and when the user turns 18 he or she will be able to drink it. This is essentially beer advertising, and it is directed to minors. If that was the underlying rationale for the council’s ruling, it appears to be the right decision.
There is another interesting issue presented by beer ads in the form of pop-up windows on the Internet. According to Polish law, beer ads may not be placed on the covers of periodicals. May a news site be regarded as a type of periodical? The definition of a periodical in the Polish Press Law refers not only to print format, but also content conveyed in audiovisual form. But if a news site is a periodical, does it have a cover? Would the homepage be the cover? If so, would a pop-up beer ad on the homepage be against the law? The Advertising Council did not explore that issue.
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