The Tobacco Advertising and Promotion (Brandsharing) Regulations 2004

Explanatory Note

(This note is not part of the Regulations)

These Regulations prohibit, subject to exceptions, the use of the same or similar names, emblems or other features in connection with both tobacco products and non-tobacco products and services (“tobacco brandsharing”). The Regulations apply to England, Wales, Scotland and Northern Ireland.

Regulation 3 sets out the prohibitions on tobacco brandsharing. Paragraph (1) prohibits the use in connection with any non-tobacco product or service of any feature which is the same as, or is so similar as to be likely to be mistaken for, a feature which is connected with a tobacco product. Paragraph (2) prohibits the use in connection with any tobacco product of any feature which is the same as, or is so similar as to be likely to be mistaken for, any feature which is connected with a non-tobacco product or service if the purpose or effect of such use is to promote a tobacco product by the association which it has with any non-tobacco product or service.

Regulation 4 sets out exceptions to the prohibitions on tobacco brandsharing. Where any exception applies, the prohibition on brandsharing does not apply.

Paragraph (1) applies if the person does not use brandsharing features for the purpose of promoting a tobacco product and that person could not reasonably have foreseen that a tobacco product would be promoted.

Paragraph (2) applies if the person does not use any brand feature in connection with a non-tobacco product or service for the purpose of promoting a tobacco product, he does not produce or promote any tobacco product and he is not a party to an agreement or licence relating to the use of the feature, to which a producer or promoter of a tobacco product is also a party. The paragraph also applies where the link between the user of the feature and the producer or promoter of the tobacco product is through various employment, commissioning or company relationships.

Paragraph (3) applies if the person does not use a brand feature for the purpose of promoting a tobacco product, the feature of a non-tobacco product or service was used in the European Economic Area before 1st September 2002 and the presentation of any feature of the product or service does not make it appear to belong to the same brand as any tobacco product.

Paragraph (4) applies if the person who is using a feature in connection with a non-tobacco product or service does not know that the purpose or effect of using the feature is, or is likely to be, to promote a tobacco product and the use of the feature does not make it appear that the same person, firm or company is responsible for the branding of both the tobacco product and the non-tobacco product or service (whether that is in fact so or not).

Paragraph (5) applies if the person does not use brandsharing features for the purpose of promoting a tobacco product through an association with a non-tobacco product or service and that person could not reasonably have foreseen that a tobacco product would be promoted.

Paragraph (6) applies if the person does not use any brand feature in connection with both a tobacco product and a non-tobacco product or service for the purpose of promoting a tobacco product through an association with a non-tobacco product or service, he does not produce or promote any tobacco product and he is not a party to an agreement or licence relating to the use of the feature, to which a producer or promoter of a tobacco product is also a party. The paragraph also applies where the link between the user of the feature and the producer or promoter of the tobacco product is through various employment, commissioning or company relationships.

Paragraph (7) applies if the person does not use any brand feature for the purpose of promoting a tobacco product by association with a non-tobacco product or service, the feature of the tobacco product was used in the European Economic Area before 1st September 2002 and the presentation of any feature of the tobacco product does not make it appear to belong to the same brand as any non-tobacco product or service.

Paragraph (8) applies if the person who is using a feature in connection with a tobacco product does not know that the purpose or effect of using the feature is, or is likely to be, to promote a tobacco product through the association which the feature has with any non-tobacco product or service, and the use of the feature does not make it appear that the same person, firm or company is responsible for the branding of both the tobacco product and the non-tobacco product or service (whether that is in fact so or not).

Regulation 5 provides exceptions for brandshared gantries, display units and tobacco vending machines. These exceptions, which apply instead of those in regulation 4, permit restricted promotion of tobacco products on gantries, display units and tobacco vending machines. The regulation permits certain advertisements of “A5 size”. That expression is defined in regulation 2 by reference to British Standard BS EN ISO 216: 2001 which can be obtained from the British Standards Institute, 389 Chiswick High Road, London W4 4AL.

Regulation 6 contains general provisions. Paragraph (1) prescribes the circumstances in which a person who uses brandshared features does not commit an offence under section 2, 3, 9 or 10 of the Act. Paragraphs (2) to (4) provide that a person who wishes to rely on an exception in regulation 4 or 5 shall adduce evidence sufficient to raise an issue with respect to that exception but that where he does so it is for the prosecution to prove beyond reasonable doubt that the exception does not apply.

The Schedule sets out health warnings and health information which is required by regulation 5(2)(d) to be displayed in any tobacco advertisement which is displayed at the point of sale on a gantry or display unit.

A draft of these Regulations has been notified to the European Commission as a technical standard, pursuant to Directive 98/34/EC of the European Parliament and of the Council (OJ No. L204, 21.7.98, p. 37) laying down a procedure for the provision of information in the field of technical standards and regulations, as amended.

A regulatory impact assessment has been prepared for these Regulations and a copy has been placed in the library of each House of Parliament. Copies of the Regulatory Assessment are published on the Department’s website (www.dh.gov.uk) and can be obtained from the Department of Health, Room 708, Wellington House, 133-155 Waterloo Road, London SE1 8UG.