IRELAND - April 2003

1.
Legislation: Public Health (Tobacco) Act, 2002
Topic: Tobacco advertising, marketing and sponsorship
Who: Department of Health, Cigarette Companies
When: January 2003
Where: High Court, Ireland
What happened: In our report in June 2002 we provided details of new legislation being introduced by the Department for Health and Children on tobacco advertising. This legislation was subsequently challenged by several cigarette companies and the matter was heard before the High Court in January 2003. The court upheld the challenge due to the fact that the legislation had not been duly notified to the EU under the EU Transparency Directive. The cigarette companies also intended to claim that a total ban on cigarette advertising and any law restricting cigarettes from view to customers would be anti-competitive as customers would be less aware of new products and less able to choose from a range of different products. As the Department voluntarily withdrew the legislation conceding that it had not notified the EU as required, the court did not consider these other points. It is understood separate legal challenges on these points are currently underway.
Comment: Tobacco advertising is heavily restricted in Ireland and limited to some in store ads. The Department for Health sought an outright ban and is now stating that it will re-draft the legislation with EU approval and again seek an outright ban. In the interim the challenges of the cigarette companies are winding their way through the courts.

2.
Legislation: European Communities (Requirement to Indicate Product Prices) Regulations 2002
Topic: New Pricing Regulations for Retailers
Who: Department of Enterprise and Employment
When: March 2003
Where: Ireland
What happened:
New legislation has been introduced in Ireland which states that from 01/03/03 almost all products on sale to consumers must show a selling price in Euro and if sold by weight or volume must show a unit price in Euro. The unit price must be shown as the price in Euro per kilo, per litre, per metre, per square metre or per cubic metre. Wine and spirits are exempt from this. There are also a number of other exceptions such as where the selling price is not related to the quantity of the product e.g. fruits sold by a fixed price, pre-packaged products weighing less than 50 grams or 50mls e.g. small packets of sweets, products reduced due to deterioration e.g. fresh food products sold cheaper towards the end of the day, multi-packs of different products e.g. hampers of goods etc. The selling price and unit price must be either on the product or on a shelf edge label or wall chart close to it. Penalties for non-compliance by retailers are fines of up to €3,000 for each offence.
Comments: The idea of the new regulations is to give consumers a better deal by making it easier to compare the prices of different brands and sizes. The Director of Consumer Affairs is responsible for enforcing the regulations and we await the outcome of her annual report for details of any prosecutions.

3.
Topic: Poster Advertisement
Who: Advertising Standards Authority of Ireland
When: October 2002
Where: Ireland
What happened: Advertising posters for an energy drink "Shark" were the subject of objections. One poster showed the upper torso of a man lying on his front and turned away from the camera A headline was on the poster which stated "Shark Victim Ethan Ford, Devoured Kinsale 31/08/02" and the poster also contained the line "Bring out the Beast". A second poster showed the upper torso of a naked woman lying with her face towards the audience and the heading "Shark Victim Naomi McDermott ravaged Malahide 24.08.02" and again a heading underneath "Bring out the Beast". Complainants claimed the ads were offensive and contained suggestions of rape or violent attack. The advertisers responded that they were merely trying to show "Shark" as an alternative to other energy drinks and humour was an integral part of the campaign.
Comment: The complaint was upheld. The Code on Advertising Standards requires that ads contain nothing likely to cause grave or widespread offence. The Committee stated that advertisers should take into account public sensitivities and avoid the exploitation of sexuality. Provocative copy should not be used merely to attract attention.

4.
Topic: Financial Advertising - TV, Radio and Print
Who: Advertising Standards Authority of Ireland
When: February 2003
Where: Ireland
What happened: An advertisement and promotion by the Educational Building Society has been the subject of much controversy in Ireland in recent months. The "Family First" promotion allows parents of a first time house buyer to leverage the equity in their own home to provide the first time buyer with the 10% deposit necessary to purchase a new home in Ireland. Some people felt that this put undue pressure on parents to lose their own financial stability by helping out their children.
The particular ad in question featured a son asking his father for €20,000 for a deposit on a house followed by a statement that there were no legal fees and no repayments on the deposit for three years. Complainants felt that was offensive to parents, placed undue pressure on them and it only added to the cost of purchasing a house. The advertisers claimed they were merely creating an awareness of the different options open to first-time buyers. Research had shown that the majority of first-time buyers received some form of financial assistance from their parents. They were merely dealing with a reality that exists in the current housing market in Ireland, even if it was a painful one. The advertisement had also been approved by the national broadcaster RTE and by the ITC in the UK.
Comment: The complaint was not upheld. The Complaints Committee did not feel the advertisement was misleading. The fact that the product was offensive to some people was not sufficient basis for objecting to an advertisement for the product. The Committee stated that complaints of pressure on parents or emotional blackmail were directed at the product itself and not the advertisement in question and since the ads were not offensive the committee could not comment on the product.

5.
Topic: Press Advertisement
Who: Advertising Standards Authority of Ireland
When: February 2003
Where: Ireland
What happened: Aer Lingus objected to advertising for a sale promotion by Ryanair which advertised "Free flights from Ireland" and then indicated in a footnote that taxes and charges were payable. Aer Lingus complained that the term free flights was clearly misleading particularly as the amount of the taxes and charges was not stated. The respondents pointed out that the ad clearly indicated the consumer had to pay taxes and charges. It noted the provisions of the ASAI Code which stated that an offer should be described as "free" only if the consumer pays no more than the current rate of postage and the actual cost of freight and delivery. They stated that they felt the actual cost of freight and delivery could be construed as Government Taxes and airport charges all of which were incidental costs imposed by third parties.
Comment: The complaint was upheld. The ASAI Code requires that ads should not mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise. The Code also has specific rules on "free" promotions as described above. The Code provides that the price quoted to a consumer should include VAT, taxes, duties or other inescapable costs to the consumer. Since the advertisement did not give the costs of the taxes etc it did not comply with the Code of Advertising Standards.

6.
Legislation: European Communities (Directive 2000/31/EC) Regulations 2003
Who: Department of Enterprise and Employment
When: February 2003
Where: Ireland
What happened: New regulations have now been enacted in Ireland to bring into effect the provisions of the EU Electronic Commerce Directive. From an advertisers point of view the new regulations require people sending unsolicited commercial emails to ensure that these are clearly identifiable as such by the recipient. The Data Protection Commission will be responsible for enforcing the new regulations. Anyone found guilty of an offence such as not clearly identifying their unsolicited commercial email as such can be fined up to €3,000 and/or sentenced to six months imprisonment.
Comment: The Minister for Enterprise and Employment is currently in discussions with the Irish Direct Marketing Association regarding the above regulations. An agreement may be reached whereby such emails include the letters "ADV" (advertisement) or "UCE" (unsolicited commercial email) in the subject line of any email.

Duncan Grehan & Partners, Solicitors, 24 Suffolk Street, Dublin 2, Ireland
Telephone: +353-1-677 9078 Telefax: +353-1-677 9076
E-mail: mail@duncangrehan.com
Website: www.duncangrehan.com