Leaving Loopholes for Tobacco Advertising Is Worse Than a Total Ban
Most people are already aware of the harms of tobacco, and legislating tobacco control is increasingly becoming a social consensus. However, when it comes to tobacco advertising, whether it should be “strictly restricted” or “comprehensively banned,” the Chinese government still seems somewhat hesitant at the legislative level. The Advertising Law, which is about to enter its third review by the Standing Committee of the National People’s Congress, is now facing a tug-of-war over whether to let “tobacco advertising withdraw from mass media while occupying retail terminals.”
After the second-review draft of the Advertising Law was released, provisions increasing restrictions on tobacco advertising won approval and praise from all sectors of society. However, some tobacco control experts and scholars identified what they saw as “loopholes” in the draft. In their view, on the one hand, the law’s prohibitions on tobacco advertising, promotion, and sponsorship are still not thorough enough. In particular, according to the current revision notes to the draft, the law would still allow tobacco advertisements to be posted and displayed at more than 5.4 million tobacco retail outlets nationwide. On the other hand, the wording in the second-review draft defining the scope of prohibited tobacco advertising—such as the range of “public places” and the meaning of “shop windows”—is not strict or clear enough, which could leave future tobacco control enforcement stuck in a legal gray area.
Tobacco control experts naturally have a sharper eye than ordinary members of the public, and once they pointed this out, many online readers indeed felt suddenly enlightened. If the provisions in the second-review draft are adopted, then there really would be major loopholes in national law regarding tobacco advertising. In other words, it would still amount to “strict restriction” rather than the “comprehensive ban” the public had previously expected. This may seem like only a subtle difference in wording, but the outcome can be dramatically different.
If tobacco advertising were “comprehensively banned,” it would not only mean that tobacco companies and tobacco retailers could not conduct any form of advertising in the media or outdoors, but also that they could no longer engage in disguised advertising through sponsoring social events or donating to Hope Schools, as they did in the past. But “strict restriction” actually means that space and leeway are still being left for companies and retailers to advertise. As tobacco control experts worry, there are more than 5.4 million tobacco retail outlets across the country. The Advertising Law may ban outdoor tobacco ads, roadside tobacco ads, and media tobacco ads, but if the tobacco industry arranges for millions of retail outlets to decorate both inside and outside their shops with advertisements and cigarette packs, would that not amount to tobacco advertising spread throughout both cities and the countryside?
At the same time, the law’s definitions of the scope of public places and the meaning of shop windows also suffer from unclear definitions and vague standards. This is because a large proportion of tobacco retail outlets in China are located inside food stores, tobacco and alcohol shops, shopping malls, supermarkets, and grocery stores—places frequently entered by ordinary people. If such places are not included within the category of “public places,” then tobacco companies and retailers will have plenty of room to maneuver and can easily turn these places into domains dominated by tobacco advertising. That is why some experts and scholars have suggested that tobacco retail outlets should also be classified as public places, so that tobacco advertising can then be prohibited there under the relevant provisions of the Advertising Law.
In the final analysis, although China is a party to international tobacco control commitments, the effectiveness of its tobacco control efforts in recent years has still been less than satisfactory. Since the determination has already been made to control tobacco, there might as well be a clean, across-the-board ban on tobacco advertising, without deliberately leaving loopholes. Otherwise, the relevant provisions in the new Advertising Law risk being hollowed out and may find it difficult to achieve their intended effect.
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