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The marketing of tobacco, alcohol, unhealthy food and gambling services is harmful to public health, the European economy and sustainability. If the European Union (EU) has embraced the regulation of cross-border marketing for tobacco products for over two decades, it has consistently resisted evidence-driven calls to regulate the marketing of other harmful commodities, preferring instead to rely on ineffective industry pledges. This contribution reflects on why the EU has failed to use its competence to regulate cross-border marketing more systematically to protect health and highlights why the time is ripe to reconsider the issue, before concluding with a possible way forward.

The marketing of tobacco, alcohol, unhealthy food and gambling services is harmful to public health, the European economy and sustainability. If the European Union (EU) has embraced the regulation of cross-border marketing for tobacco products for over two decades, it has consistently resisted evidence-driven calls to regulate the marketing of other harmful commodities, preferring instead to rely on ineffective industry pledges. This contribution reflects on why the EU has failed to use its competence to regulate cross-border marketing more systematically to protect health and highlights why the time is ripe to reconsider the issue, before concluding with a possible way forward.

This chapter focuses on the extent to which public health has been relied upon by the EU legislature or by Member States of the European Union to limit the freedom of commercial operators to promote their goods and services. First, it discusses why courts in the United States and in Europe have ruled that the freedom of commercial operators to advertise their goods and services should be protected, in light of the fundamental role advertising plays in a liberal market economy. It shows that freedom of commercial expression has been made conditional upon the disclosure of sufficient and reliable information to consumers, thus reflecting a model of consumer protection based on the well-informed and reasonably circumspect consumer. Secondly, it addresses the more controversial question of the extent to which public health may be invoked as an overriding requirement of public interest to curtail the right of commercial operators to promote their goods and services. The approach of the Court of Justice is compared with that taken by the US Supreme Court. This comparative approach highlights the differences between the two: the former is very reluctant to exercise its review powers, while the latter has made it excessively difficult for public authorities to impose any meaningful advertising restrictions. It is argued that neither court has been able to strike a suitable balance between, one the one hand, the need to review the validity of restrictions imposed by public authorities on commercial speech to ensure a high level of public health protection and, one the other hand, the need to ensure that courts do not substitute their assessment to that of the legislature in exercising their judicial review powers. A more balanced approach is required to ensure the adequate protection of consumer health.

The question of Community competence has been one of the most debated issues since the ruling in Tobacco Advertising I, in which the Court annulled, for the first time, a Community Directive for lack of competence. This judgment is significant in terms of assessing the constitutional role of the Court in the Community legal order.The aim of this article is not to comment on the Tobacco Advertising judgment. Rather, it is to consider the question of competence from a different angle: that of partial harmonisation.

Advocate General Mayras described a public authority as 'that which arises from the sovereignty and majesty of the State; for him who exercises it, it implies the powers of enjoying the prerogatives outside the general law, privileges of official power and powers of coercion over citizens'.This quotation has an eighteenth century flavour and is difficult to adapt to the complex legal and economic system of the European Community the extraordinary remit of which has extended to many activities traditionally reserved to the State and to public authorities. The scope of this remit blurs the distinction between what could be termed the exercise of a public power and what could be termed the exercise of an economic function. The 'Europeanization of public service provision' has thus rendered the definition of a 'public authority' elusive. One of the areas where such a definition has been particularly problematic is the protection of employees' rights in the event of the transfer of an undertaking.

"This collection of essays looks at the role the European Union could and should play in promoting healthier lifestyle, in light of the moral, philosophical, legal and political challenges associated with the regulation of individual choices. By tackling the main non-communicable diseases (NCD) risk factors (tobacco consumption, harmful use of alcohol, unhealthy diets and lack of physical activity), the contributors endeavour to identify common themes and determine whether and, if so, to what extent the lessons learned in relation to each area of EU intervention could be transposed to the others. By focusing on the European Union legal order, the book highlights both the opportunities that legal instruments offer for NCD prevention and control agenda in Europe, as well as the constraints that the law imposes on policy-makers"--

This chapter critically assesses the ways in which both the Council of Europe and the EU have engaged with the interface between human rights and tobacco control, looking at laws and policies relevant to tobacco use and exposure to second-hand smoke (SHS). Its overarching objective is to explore whether a human rights approach to tobacco control exists in Europe.