Commercial Speech in the Law of the European Union: Lessons for the United States?

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I. INTRODUCTION

On July 6, 1998, the Council of Ministers of the European Union adopted a proposal calling for a ban on all tobacco advertising in the European Union.(1) The far-reaching measure will phase out not only press and billboard advertisements, but will also prohibit tobacco company sponsorship of sporting events.(2) The likelihood of challenges to this measure by European advertising interests(3) raises the question of whether the measure is consistent with EU law governing freedom of expression. This raises the further issue of whether the EU's existing ban on broadcast tobacco advertising(4) could survive a legal challenge. Finally, the analysis of cigarette advertising in the European Union provides an opportunity to reconsider the validity of the current ban on broadcast tobacco advertising in the United States.

In order to assess the validity of restrictions on tobacco advertising in the European Union and the United States, this Note first provides a general framework of EU law. It next examines the extent to which European and American courts have protected the freedom of expression in two other areas--professional publicity and advertisement of abortion services. These are both areas that have traditionally been considered commercial speech, and on which the courts of the European Union and the United States have reached somewhat similar conclusions. This Note next analyzes new and existing restrictions on cigarette advertising in the European Union, together with their American counterparts. This Note then argues that the existing EU ban on broadcast tobacco advertising may violate the European Convention on Human Rights and that the new total ban will clearly do so. Finally, this Note concludes that while the current U.S. ban on broadcast tobacco advertising would likely be upheld under the Supreme Court's treatment of commercial speech, both the U.S. and EU broadcast bans are more restrictive than necessary and should be narrowed to allow truthful cigarette advertising targeted at adults.

I. THE LEGAL FRAMEWORK OF THE EUROPEAN UNION

The European Union today, consisting of fifteen nations,(5) traces its roots to the European Communities created by the Treaty of Rome. This treaty, signed in 1957, was later modified by the Treaties of Luxembourg (1970), Maastricht (1992), Amsterdam (1997), and the Single European Act (1986).(6) While the treaties, as agreements between sovereign States, may be thought of as containing an implied right of repudiation, the treaties contain no provisions for withdrawal and are therefore considered by some to be quasi-constitutional in nature. Furthermore, the Member States are not free to interpret EU law in any way they see fit. Rather, they are bound by the interpretations of the European Court of Justice (ECJ), and where applicable, the European Court of Human Rights (ECHR).

A. The Treaties

Since the European Union is a supranational organization, treaties are the primary source of its law. The Treaty on European Union (Maastricht Treaty), signed in 1992, created the European Union on the foundation of the European Communities.(7) The Maastricht Treaty incorporates by reference the European Convention on Human Rights (Convention).(8) Article 10 of the Convention provides that:

   1. Everyone has the right to freedom of expression. This right shall
   include freedom to hold opinions and to receive and impart information and
   ideas without interference by public authority and regardless of frontiers.

   2. The exercise of these freedoms ... may be subject to such formalities,
   conditions, restrictions or penalties as are prescribed by law and are
   necessary in a democratic society, in the interests of national security,
   territorial integrity or public safety, for the prevention of disorder or
   crime, for the protection of the reputation or rights of others, for
   preventing the disclosure of information received in confidence, or for
   maintaining the authority and impartiality of the judiciary. …