Switzerland

[CH] Swiss vote to ban tobacco advertising aimed at children and young people

IRIS 2022-4:1/29

Dr. Jörg Ukrow

Institute of European Media Law (EMR), Saarbrücken/Brussels

In a referendum with a 44.23% turnout held on 13 February 2022, the Swiss population approved the popular initiative “Yes to protecting children and young people from tobacco advertising (No tobacco ads for children and young people)” with a 56.61% majority.

The initiative makes direct provision for an amendment of the Federal Constitution of the Swiss Confederation. In Chapter 3 (Social Objectives) of the Constitution, Article 41(1)(g) will stipulate that the Confederation and the cantons shall, “as a complement to personal responsibility and private initiative”, no longer only ensure that “children and young people are encouraged to develop into independent and socially responsible people and are supported in their social, cultural and political integration”, but also ensure that “their health is promoted”. Article 118 of the Constitution, which concerns “health protection”, will be extended insofar as paragraph 2(b) will state that the Confederation shall prohibit “any form of advertising for tobacco products that reaches children and young people”. Article 197 of the Constitution will include a transitional provision to Article 118(2)(b) in a new paragraph 12, stating that the Swiss Parliament, the Federal Assembly, will adopt the implementing provisions within three years of the adoption of Article 118(2)(b).

Until now, Switzerland’s restriction of tobacco advertising has been much less strict than in most European countries. In all EU member states, for example, tobacco advertising in the press and tobacco companies’ sponsorship of events with cross-border effects are prohibited. The vast majority of European countries (Germany being one exception) also do not allow tobacco advertising in public spaces. In Switzerland, however, tobacco products can be advertised, subject to certain restrictions. Tobacco advertising on radio and television is prohibited, as well as advertising aimed at minors. Most cantons have imposed additional bans, prohibiting tobacco advertising on billboards and in cinemas, for example, or stopping tobacco companies from sponsoring events.

In 2020, CHF 9.7 million was spent on advertising for tobacco products including e-cigarettes, mostly in newspapers and magazines and on billboards; this accounts for 0.2% of all advertising expenditure in Switzerland.

Under the successful popular initiative, tobacco advertising will be banned wherever minors might see it, such as in the press, on billboards, on the Internet, in cinemas, in kiosks and at events. The same rules will apply to electronic cigarettes. However, advertising aimed only at adults or in places to which minors have no access will still be allowed.

The Swiss Parliament and government believe the initiative went too far and opposed it with an indirect counter-proposal in the form of a new Tobacco Products Act, which was adopted in October 2021. The new rules would have prohibited advertising of tobacco products and electronic cigarettes on billboards, in cinemas, at sports venues, in and on public buildings, and in and on public transport. Tobacco companies would no longer have been allowed to give away free cigarettes or sponsor international events in Switzerland. However, advertising at kiosks, in the press and on the Internet would have been possible, except when aimed at children and young people, as would the sponsorship of national events.

The Tobacco Products Act must now be adapted to the provisions of the popular initiative. Advertising that is mainly aimed at adults but accessible to children and young people will therefore be prohibited. Advertising will only admissible if it is aimed at adults and cannot be seen by minors, such as in promotional emails, leaflets and targeted advertising on the Internet or in social media.

It remains to be seen how the Swiss Parliament will deal with new forms of commercial communication that promote tobacco consumption when it implements the result of the referendum. It is unclear whether image and umbrella brand advertising will be included, or what process should be followed when influencers smoke in photos or videos or showcase a brand in another way on social media platforms.