Belgium prepares probe into Politico tobacco sponsorship

The cases show how Big Tobacco is continuing to try and test the limits of an EU-wide ban on tobacco advertising, in place since 2003.

Since Monday, the well-read Politico newsletter Playbook has appeared with "supported by British American Tobacco" in the headline.

As is customary in Playbook, several messages of the sponsor-of-the-day appear throughout the newsletter, between editorial content, but identified as "A message from British American Tobacco".

The website also ran banner advertisements of BAT, including on its healthcare section.

"We have made preparations to start an investigation into the BAT sponsorship of Politico. We have taken print-screens of the website and will assess next week what the next steps should be," Paul Van den Meerssche told EUobserver on Thursday (27 June).

Van den Meerssche is lead inspector at the tobacco and alcohol inspection service, part of Belgium's federal health ministry.

He said tobacco companies were "not only testing the limits but often cross them".

"They know they are very powerful and that they have the funds to afford hiring expensive lawyers," said the Belgian.

The EU's rules on tobacco advertising seem straightforward enough.

"The tobacco advertising directive (2003/33/EC) has an EU-wide ban on cross-border tobacco advertising, promotion and sponsorship in the media other than television," said a spokeswoman for the European Commission.

"The ban covers print media, radio, information society services and sponsorship of events or activities involving or taking place in several member states or otherwise having cross-border effects," she said.

"Similar provisions on cross-border advertising, promotion and sponsorship apply to e-cigarettes, as provided for by the tobacco products directive 2014/40/EU."

The commission did not want to comment on individual cases, referring instead to the national authorities, who are responsible for determining if a ban has been violated.

A commission official said, on condition of anonymity, that the commission had informed the Belgian authorities, because they thought the sponsorship of a newsletter like Politico's Playbook is banned under EU law.

Politico and BAT however both said they were not breaking any laws.

'Nothing illegal

"This has been thoroughly looked at by BAT legal department and our lawyers," Politico CEO Sheherazade Semsar told EUobserver.

"There is nothing illegal about it because it is around policy. This is not a message for consumers, but aimed at policymakers," she said.

"It is probably an area which is open to interpretation, but we understand it is not illegal," Semsar stressed.

"The EU advertising bans prohibit the promotion of tobacco and e-cigarette products," British American Tobacco said in an e-mailed statement.

"The BAT communications in question, however, do not focus on any particular BAT products," it added.

"Moreover, they use technical language and discuss specialist issues, such as legal regulation in this area, which clearly shows that they are not targeted at the general consumer. In short, those communications do not in any conceivable way promote BAT products nor have the aim of doing so," BAT said.

The Belgian inspector challenges that argument, however.

"I think it is irrelevant who Politico's target audience is. Besides, I think that policymakers can also be consumers," said Van den Meerssche.

His assessment was echoed by Anca Toma Friedlaender, director of the anti-smoking lobby group Smoke Free Partnership.

She noted that the audience of Politico Playbook was "almost everyone in Brussels, and a lot of people in many countries".

"I would hardly call that 'specialist in tobacco regulation' as per the directive," said Toma Friedlaender.

She also noted that the advertisements claimed "specific tobacco products" to be safer than others.

Guidelines on the WHO Framework Convention on Tobacco Control, a treaty which the EU has signed and ratified, are clear that specific products do not need to be mentioned in advertisements for them to be qualified as promotion of tobacco.

"Promotion of tobacco companies themselves (sometimes referred to as corporate promotion) is a form of promotion of tobacco products or tobacco use, even without the presentation of brand names or trademarks," according to the framework's guidelines on tobacco advertising, promotion and sponsorship.

Testing the limits

Anti-smoking campaigner Toma Friedlaender said she was not surprised the tobacco industry was looking for loopholes in the law.

"What they are doing in my view is test the limits of the law to see what bad behaviour they can get away with," she said.

Inspector Van den Meerssche went even further, saying tobacco companies "are not only testing the limits but often cross them".

However, he stressed caution is needed when taking on Big Tobacco.

"A case about tobacco sponsorship is never simple. There are no guarantees that you win in court, where tobacco lawyers often sow doubt by citing all sorts of general laws," he said.

Other tobacco companies have previously also sponsored EU-focused news media.

In fact, in the same week that BAT 'supported' Politico, the editorial team of the news website published an article highlighting it as a trend: Big Tobacco moves back into advertising.

Tobacco-sponsored transparency event

On 6 December 2018, the Parliament Magazine held an event in the European Parliament which was supported by Japan Tobacco International (JTI).

Van den Meerssche confirmed to EUobserver that the Belgian inspection service has started an investigation into the sponsorship of that policy event.

In a comment sent by email, JTI denied it violated the tobacco advertising directive.

"Our support of the Parliament Magazine's 'Transparency and Better Regulation' event held at the end of last year in no way contravened Directive 2003/33/EC, as it was not aimed at, and in fact did not, directly or indirectly promote a tobacco product - the event was an open debate focused solely on transparency and better regulation at EU level," said Ben Townsend, head of EU affairs at JTI in Brussels.

That event in the European Parliament was hosted by Sajjad Karim, a British Conservative MEP who failed to get re-elected at the May elections. He did not respond to a request to comment.

Neither did the Parliament Magazine or the Society of European Affairs Professionals (SEAP), which co-organised the event supported by JTI.

SEAP, a federation of lobbyists, has several members from JTI.

Lobbyist 'distrust'

JTI's tobacco lobbyist Townsend was also present at the event, where according to an article published in Parliament Magazine, he said there was a "climate of distrust" towards lobbyists.

Townsend stressed that lobbying was an important part of democracy, a point he also made in a video that was published a few days later as promoted content on Euractiv, another news outlet with a focus on the EU.

But the EU has acknowledged in international forums that the tobacco industry is fundamentally different from other types of companies, and that governments and policy-makers should take great care before taking any advice.

"The tobacco industry produces and promotes a product that has been proven scientifically to be addictive, to cause disease and death and to give rise to a variety of social ills, including increased poverty," said a document adopted in 2008 in the context of the WHO convention on tobacco control.

"Therefore, parties [to the convention, i.e. including the EU] should protect the formulation and implementation of public health policies for tobacco control from the tobacco industry to the greatest extent possible," it said.