Written By: Dr. Márk Pándi
Füsthy & Mányai Law Office
Hungarian regulations on marketing tobacco products via internet
According to Section 13 of Act LVIII of 1997 on Business Advertising Activities (Advertisement Act) it is forbidden to advertise tobacco products. The prohibition defined above applies to any indirect advertising of tobacco products. Indirect advertising of tobacco products shall, in particular, mean:
a) when, although it does not specify a tobacco product, it is aimed at advertising a tobacco product by using any other marking or trademark that can be related to the tobacco product in question,
b) when it presents a tobacco product under the name, marking or trademark of another product,
c) when it present another product under the name, marking or trademark of a tobacco product.
The prohibition laid down above shall not apply to
a) advertisements addressed exclusively to participants of the tobacco industry,
b) display of tobacco products at vendors, including the prices of tobacco products,
c) newspapers which are printed or published outside the territory of any Member State of the European Economic Area, and which are not intended to be distributed in any Member State of the European Economic Area.
Section 5 of Act XLII of 1995 on the Protection of Non-Smokers and Certain Regulations on the Consumption and Distribution of Tobacco Products (the Tobacco Act) states that in consideration of the nature and design of the shop, tobacco products must be placed on the retail market isolated from other products on separate shelves or in the part of the shop premises separated for this purpose, or in separate shop premises exclusively serving the distribution of tobacco products and paraphernalia connected with the consumption thereof.
Decision of the High Court:
In a recent case in Hungary the court had to examine if the advertisement of tobacco products on a website shall be considered a prohibited advertisement or not. The court analyzed the exceptions from this prohibition set out in the Advertisement Act and the Tobacco Act and ruled that they cannot be applied to the tobacco advertisements on websites, because the website where the tobacco is advertised cannot be considered the place of retail. Therefore publishing the advertisement on the website shall be considered a breach of the tobacco advertisement prohibition. The Tobacco Act clearly states that the place of retail is where the tobacco products are isolated from other products in the shop premises separated for this purpose. The legislation, by not designating the website as a retail place in the Tobacco Act, clearly shows its firm intention to restrict the advertisement possibilities of tobacco products.
In case of marketing tobacco products via internet the website cannot be considered the place of retail. An advertisement placed over there constitutes a breach against the ban of advertising tobacco products both in Hungary and the EU.