Proposed Revisions to Tobacco Advertising Spark Controversy: Beware of the “Bucket Effect”

    January 19 is the deadline for public consultation on the second review draft of the Advertising Law (Amendment Draft).

    On this day, Wu Yiqun, deputy director of the New Exploration Health Development Research Center under the National Health and Family Planning Commission, received numerous calls praising the draft. In their view, the second review draft is stricter compared to the first review draft. However, many tobacco control experts and legal experts believe that the second review draft still leaves loopholes for tobacco advertising.

    Experts argue that it should be a "broad prohibition" rather than a "strict limitation".

    Tobacco advertising at tobacco retail points has not been prohibited, which is considered a loophole.

    According to the report on the modifications of the Advertising Law (Amendment Draft) by the Legal Committee of the National People's Congress, Article 4 states, "According to the above modifications, except for tobacco advertisements that can be published in the form of posters, displays, etc., at tobacco product retail points approved by the State Council's Administration for Industry and Commerce, as well as tobacco product advertisements sent internally by tobacco product manufacturers to tobacco product sellers approved by the State Council's Administration for Industry and Commerce, all other forms of tobacco advertising are prohibited." This indicates that tobacco advertising within tobacco retail points may not be prohibited.

    What legal effect does such a report on modifications have? Liu Xin, a professor at China University of Political Science and Law, pointed out that allowing tobacco sales terminals to publish tobacco advertisements, although not explicitly stated in the main text, the explanatory text of the legislative draft is often used to interpret the original intent of the legislation. When interpreting a legal text, it is often important to refer to the explanatory text of the legislative draft. It grants tobacco sales terminals the legal right to publish tobacco advertisements.

    The World Health Organization's Framework Convention on Tobacco Control clearly states: Parties should take appropriate legislative, implementation, administrative, and/or other measures to broadly prohibit tobacco advertising, promotion, and sponsorship within five years of compliance. Approved by the Standing Committee of the National People's Congress, the Convention has been in effect in China for 9 years. Professor Ying Songnian from China University of Political Science and Law believes that the report on modifications means to strictly limit tobacco advertising. Strict limitations conflict with the Convention's requirement for a "broad prohibition of all tobacco advertising".

    Experts believe that changing from "broad prohibition" to "strict limitation" in the second review draft of the Advertising Law (Amendment Draft) opens a loophole for tobacco advertising. Xu Guihua, executive vice president of the China Tobacco Control Association, outlined how large this loophole is: tobacco advertising at tobacco retail points has not been prohibited, sponsorship and promotional activities by tobacco companies have not been explicitly prohibited, printed tobacco advertisements have not been prohibited, and using tobacco product names, brand names, trademarks, packaging, decoration, and similar content in various public events has also not been prohibited.

    Wang Qingbin, a professor at China University of Political Science and Law, believes that the new provisions regarding tobacco advertising in the revised Advertising Law should comply with the relevant provisions of the Convention, clearly stating "broad prohibition of all tobacco advertising, promotion, and sponsorship" to fully reflect the government's determination to fulfill the Convention and its high regard for public health, especially the physical and mental health of young people. There should be no space left for tobacco advertising, and the tobacco industry should not be allowed to squander state funds on promotional activities detrimental to public health.

    Beware of the "Bucket Effect" of tobacco advertising.

    Just as water flows out from the shortest board of a barrel, as long as there is one place where advertising is not prohibited, other advertisements will flow in that direction.

    Many people may think that having a tobacco advertisement in a tobacco shop is not a big deal; after all, they can't stop people from advertising.

    According to the 2013 "China Tobacco Yearbook" data, by the end of 2012, there were 5.4238 million licensed cigarette retailers and 142,200 unlicensed retailers, totaling 5.566 million, which means that there is an average of one cigarette retail point for every 250 people, including many illegal tobacco shops scattered near schools.

    When you take your child to the supermarket, and your child passes by a grocery store on the way to school, seeing a lightbox advertisement in the dark... Just as a netizen said: "Amidst the sea of cigarettes, I remain untouched; I can't do it, and neither can the children."

    Wu Yiqun believes that outdoor tobacco advertisements have been banned, roadside tobacco advertisements have been banned, media tobacco advertisements have been banned, but if, according to the tobacco industry's plan, millions of cigarette sales points decorate their stores with advertisements and cigarette boxes, wouldn't that be tobacco advertising spread across urban and rural areas?

    "If cigarette sales points can post and distribute tobacco advertisements, then wouldn't the prohibition on tobacco advertising in public places as stated in the Advertising Law (Amendment Draft) also be broken?" Wu Yiqun questioned. Furthermore, if each sales point sends out 100 printed tobacco product advertisements (which are not prohibited under Articles 1 and 2 of Article 18 of the Advertising Law (Amendment Draft)), that would amount to over 500 million tobacco advertisements, completely negating the restrictions of the Advertising Law (Amendment Draft). Moreover, cigarette sales points are public places accessible to all, including young people.

    Professor Yang Gonghuan from China Medical University stated that the Convention aims to comprehensively prohibit all tobacco advertising, promotion, and sponsorship. As long as there is one place where advertising is not prohibited, other advertisements will flow in that direction, similar to the bucket effect; there should be no short boards. As long as it is not a comprehensive prohibition, it will not achieve the desired effect.

    Yang Gonghuan emphasized that if the revised Advertising Law does not comprehensively prohibit all tobacco advertising, promotion, and sponsorship, and does not curb cigarette terminal marketing, then various legal provisions prohibiting tobacco advertising and promotion will still be breached and undermined by new strategies from the tobacco industry, which will be a disaster for young people and a disaster for everyone's health.

    In foreign countries, tobacco sales terminals cannot display tobacco for sale; they need to cover tobacco products to prevent tobacco advertising and avoid minors seeing them. The Advertising Law (Amendment Draft) also states that advertisements should prominently indicate that "smoking is harmful to health." Wu Yiqun believes that tobacco sales terminals should prominently display the warning that "smoking is harmful to health." Tobacco sales terminals should become places for publishing health warnings and public service advertisements related to tobacco, rather than being a "refuge" for tobacco advertising. (Wang Junping)