Promoting the brand, not tobacco advertising
The tobacco-advertising directive was a new engagement between health and the internal market. Due to the hybridity that surrounded its creation, through the internal market legal base, it had a propensity to be interpreted incoherently. Its provisions on indirect tobacco advertising were used as a licence to police activity that did not tangibly contribute to tobacco promotion. The EU Commission’s goal was to hunt down, ‘insidious forms’ of indirect tobacco advertising. Promotions and sponsorships were particularly under the lens. Davidoff and Lancaster had been accused of indirect tobacco advertising vis-à-vis the marketing of perfume products. The challenge was to convince the EU Commission in particular and the EU institutions in general that promoting the Davidoff brand image was not in and of itself, tobacco advertising. This had to be done against the backdrop of the peculiar hybridity of the instrument.
The legal case through a political process
The strategy relied on a targeted and holistic exposition of the black letter law. It put forward a smokescreen of reasonableness. It drew on a spectrum of interpretive techniques to bring to the surface the true purpose behind the directive. It took into account the limitations within the EU legal base on which the directive was passed. It used a substantive multidisciplinary methodology. This demonstrated the need for sematic coherence in the way in which indirect advertising provisions were subsumed into the broader internal market framework. Concurrently it showed exposed statistical and economic realities. This established that Davidoff and Lancaster’s actions within the marketing of perfume products could not be construed as indirect advertising of tobacco products.
Protecting a legitimate economic activity
The outcome was a lifting of the proceedings against Lancaster and Davidoff. Alber & Geiger was able to act as an arbiter of reasonableness. We prevented the EU Commission from getting entangled into a wasteful litigation that would have compromised legitimate economic activity. Insofar as outlying issues for Davidoff, remained unresolved by lobbying, we successfully executed a CJEU case. Overall, we helped establish greater legal certainty in the interpretation of hybrid instruments.