Lietuviškai
THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF LITHUANIA
R U L I N G
On the compliance of Articles 1 and 30 of the Law
on Alcohol Control of the Republic of Lithuania,
Articles 1, 3 and 11 of the Law on Tobacco Control
of the Republic of Lithuania as well as the 2
February 1996 Resolution of the Government of the
Republic of Lithuania No. 179 "On the Control of
Advertising for Alcohol" with the Constitution of
the Republic of Lithuania
13 February 1997, Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Egidijus
Jarašiūnas, Kęstutis Lapinskas, Zigmas Levickis, Augustinas
Normantas, Vladas Pavilonis, Jonas Prapiestis, Pranas Vytautas
Rasimavičius, Teodora Staugaitienė, and Juozas Žilys,
the secretary of the hearing - Daiva Pitrėnaitė,
the petitioner - Egidijus Šileikis, a consultant at the
Legal Division of the Seimas; Rytis Virbalis, an adviser of the
Chairman of the Health Care Committee of the Seimas, both are
the representatives of the Seimas; Vygantas Barkauskas, an
advocate, the representative of a group of Seimas members,
the party concerned - Virgilijus Savickis, an adviser of
Prime Minister, Arvydas Nevas, a consultant at the Office of
the Government, both are the representatives of the Government
pursuant to Part 1 of Article 102 of the Constitution of
the Republic of Lithuania and Part 1 of Article 1 of the Law on
the Constitutional Court of the Republic of Lithuania, in its
public hearing on 21-22 January 1997 conducted the
investigation of Case No. 6/96 - 10/96 subsequent to the
petition submitted to the Court by the petitioners - the Seimas
of the Republic of Lithuania and a group of Seimas members -
requesting to investigate if Articles 1 and 30 of the Law on
Alcohol Control of the Republic of Lithuania, Articles 1, 3 and
11 of the Law on Tobacco Control of the Republic of Lithuania
are in compliance with Articles 25, 29 and 46 of the
Constitution of the Republic of Lithuania as well as whether
the 2 February 1996 Resolution of the Government of the
Republic of Lithuania No. 179 "On the Control of Advertising
for Alcohol" is in compliance with Part 3 of Article 25 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 31 May 1996 the Constitutional Court received a
petition of a group of Seimas members wherein it was requested
to investigate whether Articles 1 and 30 of the Law on Alcohol
Control (Official Gazette "Valstybės Žinios" No. 44-1073, No.
61-1527, 1995) and Articles 1, 3 and 11 of the Law on Tobacco
Control (Official Gazette "Valstybės Žinios" No. 11-281, 1996)
were in compliance with Articles 25, 29 and 46 of the
Constitution, as well as if the 2 February 1996 Government
Resolution No. 179 "On the Control of Advertising for Alcohol"
(Official Gazette "Valstybės Žinios" No. 12-318, 1996) is in
compliance with Part 3 of Article 25 of the Constitution.
On 1 July 1996 the Constitutional Court received the 25
June 1996 Seimas Resolution "On appealing to the Constitutional
Court with the request to investigate if Articles 1 and 30 of
the Law on Alcohol Control as well as Articles 1, 3 and 11 of
the Law on Tobacco Control are in compliance with the
Constitution of the Republic of Lithuania".
After the Constitutional Court had decided to accept the
petition of the Seimas and to institute preparation of the case
on the grounds thereof, the validity of Paragraph 4 of Article
1 and Article 30 of the Law on Alcohol Control and Paragraphs 5
and 6 of Article 1, Item 6 of Part 1 of Article 3 and Parts 4
and 5 of Article 11 of the Law on Tobacco Control was suspended
pursuant to Part 4 of Article 106 of the Constitution until the
promulgation of the ruling of the Constitutional Court
regarding this case.
The Constitutional Court joined both petitions submitted
by a group of Seimas members and the Seimas itself into one
case by its 9 January 1997 decision.
II
The petition of the group of the members of the Seimas is
grounded on the following legal motives.
The disputed norms of the aforementioned laws prohibit
advertisement for alcoholic beverages and tobacco products in
Lithuania. To back this statement, quotations from Paragraphs 4
and 5 of Article 1 and Article 30 of the Law on Alcohol Control
and Paragraphs 5 and 6 of Part 1 of Article 1, Item 6 of Part 1
of Article 3 and Parts 4 and 5 of Article 11 of the Law on
Tobacco Control were presented. The petitioner alleges that
there arise doubts if the aforesaid parts of legal acts are in
compliance with respective articles of the Constitution. Part 1
of Article 25 of the Constitution provides that individuals
shall have the right to have their own convictions and freely
express them; Part 2 of Article 25 provides that individuals
must not be hindered from seeking, obtaining, or disseminating
information or ideas; Part 3 of Article 25 provides that
freedom to express convictions, as well as to obtain and
disseminate information, may not be restricted in any way other
than established by law, when it is necessary for the safeguard
of the health, honour and dignity, private life, or morals of a
person, or for the protection of constitutional order.
The petitioner indicates that in Lithuania the trade of
alcohol and tobacco products is licensed, however, consumption
and trade of alcohol and tobacco products as well as performing
other operations with them is not prohibited provided
established restrictions are followed. Hence, the petitioner
concludes that dissemination of information concerning legal
activities should not be prohibited unrestrictedly, however,
according to "the presented definitions of advertisement for
alcohol and tobacco products and those of indirect
advertisement for alcohol products and indirect advertisement
for tobacco products recognise that advertisement is not only
the information directly connected with promotion of alcohol
and tobacco products consumption but also the information
connected, or that which is not connected at all, with
production, import and sale of alcohol and tobacco products.
Such definitions of advertisement are, first of all, defective
because that they are particularly unspecified and abstract,
therefore, on the grounds of such definitions, not only
something which actually corresponds the universally adopted
concept of advertisement may be recognised as advertisement but
also any other information, too".
The petitioner alleges that categorical prohibition of
advertisement, and, according to the content of the
definitions, any information concerning alcohol and tobacco
products is anti-constitutional and not acceptable. The
petitioner admits that the freedom to information is not an
absolute one and it may be restricted under principles provided
for by Part 3 of Article 25 of the Constitution, i.e., only
such information may be restricted whereby the health, honour,
dignity, private life or morals of a person, or constitutional
order is encroached. However, one may not broadly interpret the
content of this constitutional norm and extend its
applicability to any information which may be indirectly linked
with consumption of alcohol and smoking. The motive of the
opponents of advertising that any alcoholic beverages or any
tobacco products, along with the information about them, is the
same evil is an ungrounded one.
The petitioner is of the opinion that the provision of
Part 3 of Article 30 of the Law on Alcohol Control that the
criteria for recognising the contents and arrangement of audio
or visual information or the ways of transmission thereof as
advertisement for alcohol and the procedure of control of
compliance with the alcohol advertisement prohibition shall be
established by the Government of the Republic of Lithuania, as
well as the provision of Part 5 of Article 11 of the Law on
Tobacco Control that the Government of the Republic of
Lithuania shall establish criteria for recognition of tobacco
advertising, according to visual and audio information content,
design, and means of presentation, and shall establish the
procedure for control of the ban on advertisement for tobacco
products, is extremely defective from the legal point of view.
Part 3 of Article 25 of the Constitution stipulates that
freedom to express convictions, as well as to obtain and
disseminate information, may not be restricted in any way other
than as established by law. Laws mean the Constitution,
constitutional laws and other laws. The petitioner points out
that according to the disputed legal acts, the Government shall
establish which information is to be recognised as
advertisement and which is to be banned by implementing the
rights delegated to it through substatutory legal acts -
resolutions. Such a legal act, however, may not replace the law
itself, nor may it create new norms of general legal character
which could, by their power, compete with the norms of the law.
Therefore the petitioner alleges that the possibility which has
been established in the disputed legal acts to regulate legal
relations that emerge from the inborn human right established
in the Constitution to express convictions, as well as to
obtain and disseminate information, by the acts having
secondary legal power - Government resolutions - is to be
recognised as contradicting the Constitution. In the opinion of
the petitioner, on the grounds of the motives indicated, the 2
February 1996 Government Resolution No. 179 "On the Control of
Advertising for Alcohol" is to be recognised as contradicting
Part 3 of Article 25 the Constitution, too.
Part 2 of Article 29 of the Constitution provides that a
person may not have his rights restricted in any way, or be
granted any privileges, on the basis of his or her sex, race,
nationality, language, origin, social status, religion,
convictions, or options. Hence the petitioner concludes that
the Constitution guarantees not only the right for every person
to have his convictions as to consumption of alcoholic
beverages or expediency of smoking etc., but also that persons
who have a negative standpoint as regards consumption of
alcoholic beverages and smoking may not have any privileges
with respect to those whose standpoint concerning analogous
matters is indifferent or positive. In the opinion of the
petitioner, a person who does not smoke or is a teetotaller is
not by himself a greater social value than a person whose
standpoint and behaviour are opposite. No one questions the
right to disseminate information grounded on objective data
about negative effects, harm, etc., of consumption of alcoholic
beverages and smoking. However the petitioner is of the opinion
that another part of the society which, in most cases, is more
numerous than that of the opponents of consumption of alcoholic
beverages and smoking may not be deprived of the opportunity to
obtain information concerning legally sold alcoholic beverages,
tobacco products, the importers and distributors, product
quality, technology of manufacturing, chemical and other
properties of the product. When the right to freedom is
deprived, then individuals are deprived of the opportunity of
choice. The petitioner alleges that the situation when the
others decide for a person what information he is entitled to
obtain and what information he is not entitled to obtain is
characteristic of a totalitarian form of governance and is
incompatible with the principles of creation of a democratic
state.
Part 3 of Article 46 of the Constitution provides that the
State shall regulate economic activity so that it serves the
general welfare of the people. The petitioner takes heed of the
fact that when deciding the conformity of the disputed legal
acts with the Constitution one must bear in mind that
advertising in a market economy is one of the factors directly
influencing production increase. The enterprises which gain
subsistence by manufacturing alcoholic beverages and tobacco
products, by their import and selling pay a great number of
various taxes, e.g., profit, value-added, duty, excise taxes
etc. New jobs are created, foreign capital is invested, etc.
The more intensive this activity and the greater turnover, the
more income is received by the budget, therefore more means can
be allocated for social programmes, health care and similar
needs. Items 1-11 of Part 1 of Article 3 of the Law on Alcohol
Control establish principles of state alcohol control policy,
whereas Items 1-8 of Part 1 of Article 3 of the Law on Tobacco
Control establish principles of state tobacco control. The
petitioner is of the opinion that in order to implement the
objectives raised in the aforesaid items, means are required
which are intended to be collected from the entities which gain
subsistence from manufacturing of alcoholic beverages and
tobacco products, as well as their import and selling, however,
it is attempted by the said laws to do so that there were as
little as possible of the said means.
It is noted in the petition that unequal conditions of
running businesses are created as certain entities which are
occupied with legal activities have the opportunity to
advertise themselves whereas other entities which also occupy
themselves with legal economic activities are deprived of such
an opportunity.
The petitioner pays attention to the fact that Item 1 of
Part 1 of Article 30 of the Law on Alcohol Control provides
that in the Republic of Lithuania advertising of alcoholic
beverages shall be prohibited only in the radio and television
programmes produced at Lithuania's radio and TV stations. Yet
advertising of alcoholic beverages in the radio and television
programmes produced at foreign radio and TV stations is not
prohibited. For that reason the petitioner concludes that
Lithuanian economic entities are evidently placed at a greater
disadvantage if compared to foreign economic entities.
Alongside, the petitioner alleges that it is possible to
contend whether creating better conditions of economic activity
to the entities of your country would be in conformity with
international standards, nevertheless discrimination of one's
own economic entities is incomprehensible and unjustified.
Besides, one must not forget that foreign entities do not pay
taxes into the budget of the Republic of Lithuania.
The petitioner affirms that restriction of capacities of
certain economic entities, as well as making various
obstructions to them, along with decreasing incomes to the
budget, is inconsistent with public needs.
During the judicial investigation V. Barkauskas, an
advocate, the representative of a group of Seimas members,
reiterated the arguments which had been presented in writing
and emphasised that consumers do not receive important
information because of the ban on alcohol and tobacco
advertising, they are deprived of the opportunity to choose a
product which is less harmful to health. Thus the
representative is of the opinion that such a ban does not help
to preserve one's health in such a case. As for the Government
Resolution, its Item 2 is most doubtful. In the opinion of the
representative, this resolution contradicts Part 3 of Article
25 of the Constitution not only by its form but also by its
content.
III
The following motives were set forth in the introductory
part of Seimas resolution on appealing to the Constitutional
Court.
In the process of discussion and adoption of the Law on
Alcohol Control and the Law on Tobacco Control arguments were
given concerning non-compliance of some norms of these laws
with the Constitution. The harm which is inflicted to health by
immoderate consumption of alcohol and smoking, as well as
necessity to restrict advertising of alcohol and tobacco
products, is beyond doubt, however unconditional ban on
information contradicts provisions of the Constitution.
According to Part 2 of Article 25 of the Constitution,
individuals must not be hindered from seeking, obtaining, or
disseminating information or ideas. Part 3 of Article 25 of the
Constitution provides that freedom to obtain and disseminate
information may not be restricted in any way other than as
established by law. In the opinion of the petitioner, the Law
on Alcohol Control and the Law on Tobacco Control prohibit to
obtain and disseminate information while the Government is
commissioned to establish the procedure for the control of ban
on advertising.
When the case was being prepared to the court hearing, R.
Virbalis, an adviser of the Chairman of the Health Care
Committee of the Seimas, a representative of the Seimas,
virtually assenting to the arguments set forth in the request
of the group of the members of the Seimas and the Seimas
Resolution explained the following.
The ban on advertising provided for in Article 30 of the
Law of Alcohol Control does not mean total prohibition of
supplying information about alcoholic beverages for consumers.
However, the provision that "advertising of alcoholic beverages
shall be prohibited in other ways or by other means of
broadcasting audio or visual information, including indirect
advertising of alcoholic beverages" predisposes restriction of
supplying information of certain character which may be
regarded as advertisement for consumers. The provision "the
criteria for recognising the contents and arrangement of audio
or visual information or the ways of transmission thereof as
advertisement for alcohol and the procedure of control of
compliance with the alcohol advertisement prohibition shall be
established by the Government of the Republic of Lithuania" of
the Law on Alcohol Control conditions a certain indecisiveness
as to distinguishing between information and advertisement. The
representative points out that the definition of indirect
advertisement presented in Article 1 of the Law on Alcohol
Control also conditions restriction of supplying of information
of certain character about alcoholic beverages for consumers.
The petitioner turns his attention to the fact that the
provision of Article 11 of the Law on Tobacco Control that
tobacco advertising shall be prohibited conditions restriction
of supplying of information of certain character about tobacco
products to consumers, even though the definition of
advertisement for tobacco products and that of indirect
advertisement for tobacco products does not distinguish between
information and advertisement sufficiently enough.
The representative is of the opinion that these
considerations permit to conclude that the said provisions of
respective articles of the Law on Alcohol Control and the Law
on Tobacco Control could be specified more exactly.
During the court hearing the representative of the Seimas
R. Virbalis supported the arguments which had been set forth in
writing and added that the provision of Item 4, Part 1 of
Article 30 of the Law on Alcohol Control, as well as the
definition of indirect advertisement in Article 1 of the Law on
Tobacco Control, does not distinguish between information and
advertisement sufficiently enough, therefore they should be
specified more exactly.
IV
In the course of preparation of the case for the court
hearing, E. Šileikis, a consultant at the Legal Division of the
Seimas, a representative of the Seimas, explained that Article
25 of the Constitution consolidates different values. Bearing
in mind that the norms of different parts of the said article
constitute an indivisible whole, it is possible to assert that
from the standpoint of harmonious co-existence between the
public and the state a certain value which is provided for by
Article 25 of the Constitution pales into insignificance before
another value. In other words, by legally regulating
co-ordination of the values which are provided for in Article
25 of the Constitution and which come into conflict in reality,
it is necessary not to violate the essence of the indivisible
whole of this article and to seek to rationally co-ordinate
clashing constitutional values, i.e., not to provide any of
these values with absolute primacy with respect to the other.
The representative emphasises that provided such a rational
co-ordination ("balancing") principle of clashing legal values,
the principle which is widespread in democratic states under
the rule of law, were followed and providing one underscored
that "human rights and freedoms are the highest legal value"
while "protection of common interests in a democratic state may
not deny the right of an individual to information as such",
then it should be considered that virtual prohibition by laws
of even the smallest possibility to disseminate and obtain
information having signs of advertisement about alcohol and
tobacco products, i.e., to provide human health, as a
constitutional value, with the absolute primacy with respect to
another constitutional value - human right to freely seek,
obtain and disseminate information. All the more that absolute
ban on advertising alcohol and tobacco products is rare in west
European countries. In the opinion of the representative,
Article 30 of the Law on Alcohol Control and Articles 3 and 11
of the Law on Tobacco Control which virtually ban any
opportunity emerging from Article 25 of the Constitution to
seek, obtain and disseminate information having signs of
advertisement about tobacco and alcohol products are to be
qualified as violating the indivisible whole of Article 25 of
the Constitution, i.e., as contradicting the said article.
The representative states that it is also possible to
perceive the non-compliance of Article 30 of the Law on Alcohol
Control and Articles 3 and 11 of the Law on Tobacco Control
with Article 25 of the Constitution from another standpoint:
the legislator when deciding ways to protect people's health
from harmful influence of alcohol and tobacco products must opt
for such legal measures which could convincingly be
substantiated, i.e., those which would not raise doubts if
considered from the standpoint of the practice of modern states
that the legislator subjectively and imperfectly restricts the
human right emerging from Article 25 of the Constitution to
freely seek, obtain and disseminate information with signs of
advertisement about tobacco and alcohol products. Assessing
objectively the possibilities of different types of mass media
to exert influence upon the evolution of society, one may
assert that the press, television and radio should be treated
differently by legally regulating dissemination and obtaining
of information which is harmful to human health. Bearing this
in mind and grounding himself on the provision "greater demands
are made of Radio and Television than of other means of mass
media for their especially great influence upon the broad
audience" of a ruling of the Constitutional Court the
petitioner alleges that the absolute and adequate ban on
advertising of alcohol and tobacco products through the press,
television and radio is a deficient one. All the more that in
west European states, in the opinion of the representative,
absolutely identical ban on advertising of alcohol and tobacco
products through the press, television and radio is not
widespread.
The representative noted that in the doctrine of human
rights and freedoms the right to freely disseminate and obtain
information is treated as one of the freedoms of communication
which in most part determines free and open communication in
the society along with creating of public opinion - one of
fundamental attributes of modern democracy. According to
Mykolas Riomeris, a professor of Lithuanian constitutional law,
the system of a democratic state is based on the domination of
public opinion. In other words, it is important from the
standpoint of democracy that public opinion had an opportunity
to develop freely. The representative alleges that bearing this
in mind and noting that public opinion shapes itself with
reference to reality as a whole, along with different spheres
of reality, including alcohol and tobacco products, it is
doubtful whether the precondition of free and open shaping of
public opinion about alcohol and tobacco products is not
violated when the state virtually unconditionally prohibits
advertising of such products. As in reality alcohol and tobacco
products prevailing in the western world are advertised, and
which neither could be acquired by Lithuanian consumers in
Soviet times, nor could the consumers know about them, and
following the provision that most consumers in Lithuania
consume relatively cheap alcohol and tobacco products chiefly
manufactured in Lithuania and rarely advertised, then, in the
opinion of the petitioner, Article 30 of the Law on Alcohol
Control and Articles 3 and 11 of the Law on Tobacco Control
which prohibit the smallest advertising opportunity emerging
from Article 25 of the Constitution violate the guarantees
consolidated in the said article of free and open shaping of
public opinion about alcohol and tobacco products.
The representative paid his attention to the fact that the
criteria for recognising information as advertisement for
alcohol was established by the 2 February 1996 Government
Resolution No. 179 "On the Control of Advertising for Alcohol"
and this means that the human right emerging from Article 25 of
the Constitution to seek, obtain and disseminate information
having signs of advertisement about alcohol products is
restricted by a substatutory act and not by a law, which
violates Part 3 of Article 25 of the Constitution. Therefore
such a Government resolution is to be assessed as contradicting
Part 3 of Article 35 of the Constitution.
During the process of judicial investigation E. Šileikis
expressed doubts as to priorities of fundamental human rights
and freedoms with respect to each other. It is notably doubtful
whether people's health may have primacy over the freedom to
information even though the said information has signs of
advertisement.
The disputed Government Resolution competes with its
significance with the law. It contradicts Part 3 of Article 25
of the Constitution.
The representative is of the opinion that, alongside,
difficulties occur in this case because the law-making
institution - the Seimas - passed the law and later had doubts
as to the compliance of its legislation with the Constitution.
Instead of amending the law, it appealed to the Constitutional
Court.
V
When the case was being prepared for the court hearing, V.
Savickis, an adviser of Prime Minister, A. Nevas, a consultant
at the Office of the Government, both are the representatives
of the Government, presented the following arguments regarding
the formulated statements in the petitions to the
Constitutional Court.
Implementing the requirement of Article 30 of the Law on
Alcohol Control to establish criteria for recognising the
contents and arrangement of audio or visual information or the
ways of transmission thereof as advertisement for alcohol, the
Government adopted its 2 February 1996 Resolution No. 179 "On
the Control of Advertising for Alcohol".
The legislator opted for a rather controversial means of
restriction of alcohol and tobacco advertising. On the one
hand, both laws attempt to distinguish between the definitions
"advertisement" and "information", on the other hand, Article 1
of both laws present the definitions of the notions
"advertisement" and "indirect information" which virtually
include any information concerning alcohol and tobacco
products. Both laws, having established the ban on advertising
of the aforesaid products, commission the Government to
establish what information is allowed (i.e. what information is
not advertisement). Contradictions arise due to the fact that
the content of advertisement is also made up by some
information, regardless whether it is audile or visual.
Part 3 of Article 25 of the Constitution provides that
"freedom to express convictions, as well as to obtain and
disseminate information, may not be restricted in any way other
than established be law, when it is necessary for the safeguard
of the health, honour and dignity, private life, or morals of
the person, or the protection of constitutional order". Thus
the Constitution does not provide for restrictions of
information dissemination by substatutory acts.
The representatives allege that it is evident from the
arguments set forth that the legislator created a legal
situation due to which the Government had no possibilities to
adopt the resolution which, according to its content and form,
would not violate Part 3 of Article 25 of the Constitution.
Alongside, Part 3 of Article 25 of the Constitution
provides for only such restrictions of information which, in
attempt to protect people's health, are "necessary". In the
opinion of the representatives, such clearly formulated
"necessary" restrictions by the state must be established by
law.
The representatives allege that were the formulations of
the Law on Alcohol Control and the Law on Tobacco Control
understood as total ban on alcohol and tobacco products, they
would contradict not only Article 25 of the Constitution but
also most international obligations which, according to Article
138 of the Constitution, must be carried out by the Government
and which "shall be the constituent part of the legal system of
the Republic of Lithuania".
During the court hearing the representatives of the
Government reiterated their arguments presented in writing and
emphasised that the Government by no means intends to promote
alcohol and tobacco consumption, however, it would approve of
clear amendments of the law whereby regulations of restrictions
on advertising were provided for yet they would not prohibit to
enjoy the constitutional right to inform consumers and the
consumers would not be prohibited from accomplishment of their
right to choose alcohol and tobacco products of better quality.
VI
Vytenis Andriukaitis and Kazimieras Kuzminskas, the
representatives of the opposing group of the members of the
Seimas who stated that they are supportive of the provisions of
the disputed laws and presented their arguments regarding the
motives formulated by the petitioners, spoke in the court
hearing.
The following specialists spoke in the hearing of the
Constitutional Court: Prof. Antanas Goštautas, Head of the
Laboratory of Medical Psychology at the Institute of
Cardiology; Tomas Stanikas, an assistant lecturer at the Chair
of Prophylactic Medicine at Kaunas Academy of Medicine, the
co-ordinator of the tobacco control in Lithuania under the
World Health Organisation; Vytautas Silickas, a deputy Director
General of the State Public Health Centre; Giedrė Žilinskienė
(M.D.), Chairperson of the Co-ordinating Council of Children's
Affairs under the President of the Republic of Lithuania;
Gediminas Jakubčionis, Chairperson of the Lithuanian Abstinence
from Alcohol Foundation; Gintaras Songaila, President of the
Association of Lithuanian Radio and Television; Marius Jakulis
Jason, a lawyer, specialist in patent law. Ona Grimalauskienė,
a consultant on psychical health issues at the Medical Division
of the Ministry of Health Care, a deputy chairperson of the
Government Commission of Drugs Control, submitted her
conclusions to the Court in writing.
The Constitutional Court
holds that:
1. Questions of the legitimacy of the ban on advertising
of alcoholic beverages and tobacco are under investigation in
this case. Their solution is possible only in the wider
context, investigating the concept of freedom of information as
well as the possibility of restricting this freedom. At the
same time, it is necessary to elucidate the reciprocity between
information and advertising and possible consequences of the
consumption of alcohol and tobacco on human and public health.
1.1. Every person has his or her views and convictions;
unrestricted possibility to express them is an elementary
precondition to commune with other people. Only free exchange
of information provides a possibility for an individual to
expand his or her knowledge, develop his/her world outlook,
improve his/her personality. Free and universal exchange of
information, its unrestricted dissemination are a particularly
important factor in democratic processes. This factor ensures
not only the formation of individual opinion and subjective
convictions but also that of group views, including political,
as well as that of the whole nation's will. That is why freedom
of information is a fundamental element in a pluralistic
democracy.
Freedom of information is usually treated in a wide sense
and covers freedom of speech, freedom to have convictions ant
freely express them, freedom to obtain and disseminate
information and ideas, freedom of the press and other means of
the mass media. Freedom of information comprises not only the
right to inform (i. e. to disseminate information) but also the
right to receive information. Wrong information, i. e.
misinformation, is usually banned by the laws of states. Thus,
the requirement of the truth is applicable to information
(including advertising).
1.2. Between the rights and freedoms of individuals on the
one hand and the interests of society on the other, conflicts
occasionally arise, sometimes contradictions occurs. In a
democratic society such contradictions are solved by
co-ordinating different interests and seeking not to upset
their balance. One of the ways to co-ordinate interests is
restriction of the rights and freedoms of individuals.
Incidentally, the European Convention for the Protection of
Human Rights and Fundamental Freedoms provides for such a
possibility. According to the Convention and the established
practice of the European Court of Human Rights, this kind of
restrictions is possible, i.e. they are regarded as grounded if
they meet two conditions: (1) they are legitimate, and (2) they
are indispensable in a democratic society. The requirement of
legitimacy indicates that restrictions have to be set only by a
law that is publicly declared; the norms of the law are to be
formulated lucidly enough. Legally defining the limits of the
implementation of laws, it is necessary to take account of the
purpose and meaning of a corresponding right (or freedom) and
the possibilities and conditions of its restriction established
in the Constitution. Looking for the answer to the question
whether a concrete restriction is indispensable in a democratic
society, the first step is to find out the aims and purpose of
the restriction, and secondly, to find out whether the means of
the restriction are proportionate to the legitimate aim.
Cases are possible, when the meaningfulness of a
corresponding restriction lies in the nature of a concrete
right (or freedom) or when corresponding restrictions are
established in order to avoid collision with other fundamental
rights. In the aforementioned cases, the validity of
restrictions of fundamental rights should be assessed by the
criteria of common sense and those of evident necessity.
Another important thing is that often a conflict arises between
essentially equivalent constitutional legal values. Therefore,
in such cases, certain restrictions should not considerably
upset the former balance between them.
1.3. "Advertising is a form of communication intended to
promote the sale of a product or service, to influence public
opinion, to gain political support, to advance a particular
cause, or to elicit some other response desired by the
advertiser" (The New Encyclopaedia Britannica, vol. 1, p. 103).
The notion of advertising is also defined in the European
Convention for Transfrontier Television (1989): "Advertising is
a public announcement which pursues a specific objective, that
is to promote the sale, purchase or rental of a product or
service, to advance a cause or idea or to bring about some
other desired effect. The transmission time has been given in
return for remuneration or similar consideration." The
advertising message, or advertisement, is usually delivered to
its intended audience through the mass media, billboards, or
direct mail. Advertising is distinguished from other forms of
information in that the advertiser pays the mediator to deliver
the message at the same time receiving the opportunity to
control the content and form of the message as well as the time
and place of its delivery.
Thus, at least two elements make up the concept of
advertising: (1) it pursues a specific objective, that is to
promote consumption of a product or service, or to bring about
some other effect desired by the advertiser, (2) remuneration
(the transmission time is given in return for remuneration or
similar consideration). Therefore a conclusion is to be made
that usually advertising relates to material profit: it aims to
directly increase profit (increase consumption of products and
services), or to ensure this in the future (by advertising
corporate trade-mark or activities, i. e. by helping the
company to establish itself in the market). Furthermore, the
client also pays for the delivery of the advertising message.
Much attention in the aforementioned Convention for
Transfrontier Television is allotted to regulation of
advertising. The Convention establishes the following most
important rules for advertising: all advertisements shall be
fair and honest; advertisements shall not be misleading and
shall not prejudice the interests of consumers; advertisements
addressed to or using children shall avoid anything likely to
harm their interests and shall have regard to their special
susceptibilities (Article 11). Subliminal advertisements shall
not be allowed; surreptitious advertisements shall not be
allowed, in particular the presentation of products or services
in programmes when it serves advertising purposes (Article 13).
The Convention establishes restrictions on the amount of
transmission time: the amount of advertising shall not exceed
15 per cent of the daily transmission time; duration of
insertion of advertisements shall not exceed 20 per cent of an
hour. It should be noted that the restriction on duration is
not applied to other kinds of information.
1.4. In Paragraph 1 of Article 1 of the Law on Alcohol
Control it is indicated that ethyl alcohol means material
having a narcotic effect, which can bring about addiction to it
and dependence upon it. In Paragraph 2 of Article 1 of the Law
on Tobacco Control it is indicated that tobacco products
contain nicotine, tar and other harmful substances and cause
nicotinism (nicotine dependency).
The World Health Organisation Expert Committee on Drug
Dependence in its reports 20 and 29 (WHO Technical Report
Series No 551, No 836) reckoned alcohol and tobacco among
materials producing dependence.
In edition 10 of International Classification of Diseases
(Geneva, 1992) it is indicated that alcohol and tobacco are
psychoactive substances that can cause somatic harm, acute
intoxication (alcohol), dependence syndrome, other mental and
behavioural disorders (subdivisions F10 - F19). Dependence
syndrome is defined as "a cluster of behavioural, cognitive,
and physiological phenomena that develop after repeated
substance use".
In 1977, a group of experts made up by the European
Community Commission Health and Prevention Directorate, World
Health Organisation, and International Council for Alcohol and
Narcotic Addiction presented the following findings: "Due to
toxic effect brought about by alcoholic beverages, the European
Community Commission should not regard them as ordinary
foodstuffs and beverages. The Commission should revise its
economic activities as soon as possible in order to reduce the
great harm of the consumption of alcohol to health and social
welfare. The Commission and the European Community member
countries are to co-ordinate their policies on the production
and support of alcohol in order to reduce the consumption of
alcohol."
Special medical research and statistics confirm harm of
alcohol to human health. The International Agency for Research
on Cancer has acknowledged that cancer of mouth, pharynx,
larynx, oesophagus, and liver relates to the consumption of
alcohol (International Agency for Research on Cancer. Alcohol
Drinking. IARC Monographs on the Evaluation of Carcinogenic
Risks to Humans, Lyon: IARC, 1988). The research ascertains
that a relative risk of cancer of the breast increases for
smoking women. Alcohol consumption also increases the risk of
haemorrhage stroke (Holder H., Edwards G. (Eds.) Alcohol and
Public Policy: Evidence and Issues, Oxford: Oxford University
Press, 1995). Alcohol consumption especially increases overall
sickness rate and death-rate for people over 50 years old
(Edwards G. et al. Alcohol Policy and the Public Good, Oxford:
Oxford University Press, 1994). By decreasing the amount of
alcohol consumption per head by 10 per cent, male
alcohol-attributable mortality decreases by 20 per cent, and
total number of suicides, manslaughters and murders - by 5 per
cent (Holder H., Edwards G. (Eds.) Alcohol and Public Policy:
Evidence and Issues, Oxford: Oxford University Press, 1995).
Findings of scientific research on narcotic effects of
tobacco carried out in different countries in this century were
summarized in the US Department of Health and Human Services'
publication "The Health Consequences of Smoking: Nicotine
Addiction. A Report of the Surgeon General" (1988). The
following conclusions were published therein: cigarettes and
other forms of tobacco cause dependence; nicotine is the active
material which causes this dependence; pharmacological and
psychological processes causing dependence upon nicotine are
similar to those causing dependence upon such narcotic
materials as heroin and cocaine. Irrespective of the way of
tobacco use (smoking, chewing, snuffing) the nicotine that it
contains easily gets into the blood and causes various
biochemical and bioelectric changes in the brain, vegetative
nervous system, as well as those in the heart and
blood-vessels, and endocrine system. Nicotine dependency is
defined as a disorder that can be medically cured. The
dependency therefore should be regarded as a disorder caused by
using any other dependence-producing substance. Thus
possibilities to cure humans suffering from symptoms of
withdrawal by psychological and pharmacological means are to be
admitted. In countries where smoking is widespread, 90 per cent
of total mortality from lung cancer, 75 per cent of total
mortality from bronchitis and emphysema, and approximately 25
per cent of total mortality from heart diseases, were
attributed to smoking (The Physician's Role. Smoke-free Europe:
1 WHO Regional Office for Europe, 1987).
Therefore, alcoholic beverages and tobacco products are
reckoned among the goods for special purpose for the reason
that their consumption is harmful to human health.
Thus the provision of Paragraph 1 of Article 1 of the Law
on Alcohol Control which says that "ethyl alcohol (hereinafter
referred to as alcohol) means material having a narcotic
effect, which can bring about addiction to it and dependence
upon it", and the provision of Paragraph 2 of Article 1 of the
Law on Tobacco Control which says that "tobacco products
include materials for smoking, produced from the potato family
tobacco plant leaves (Nicotiana) of the genus (Nicotiana
tabacum, Nicotiana rustica and other varieties) (cigarettes,
cigarillos, Russian cigarettes, pipe tobacco, low-grade
tobacco, chewing and snuff tobacco) containing nicotine, tar
and other harmful substances and also causing nicotinism
(nicotine dependency)" are grounded by findings of scientific
research.
History has seen attempts to fight against alcoholic
beverages and tobacco products and their consumption by
categorical ban on their production, trade and consumption.
However, such attempts of prohibition did not give the desired
result. Habits of consumption that have been established
throughout centuries and consumers, who appeared due to the
habit and dependence, assured the demand of the aforementioned
materials. Therefore even the ban could not prevent from
finding a way (most often illegal and illegitimate) to satisfy
the demand. Later on, administrative methods of categorical ban
were replaced by means of various economic and financial bans
as well as the ban on advertising. Those means were usually
applied together with preventive medical means, means of health
education, popularization of healthy lifestyle, etc.
It should be noted, that Article 15 of the aforementioned
European Convention for Transfrontier Television establishes
special bans or restrictions on advertising of particular
products. For example, Paragraph 1 establishes: "Advertisements
for tobacco products shall not be allowed." It is a categorical
ban covering all tobacco products - cigarettes, cigars, pipe
tobacco, chewing tobacco, snuff or any other tobacco-based
product. Paragraph 2 establishes the following restrictions on
advertisements for alcoholic beverages: the advertisements
shall not be addressed to minors; they shall not link the
consumption of alcohol to physical performance and driving;
they shall not claim that alcohol has therapeutic qualities or
that it is a stimulant, a sedative or a means of resolving
personal problems; they shall not encourage immoderate
consumption of alcohol or present abstinence or moderation in a
negative light; they shall not place undue emphasis on the
alcoholic content of beverages. The Convention says that
alcoholic beverages means beverages which contain alcohol.
Therefore cider, beer, and wine are also regarded as alcoholic
beverages. The aim of the aforementioned restrictions on the
advertisements for alcoholic beverages is at least to protect
consumers (particularly minors) and to prevent immoderate and
harmful to human health consumption of alcoholic beverages.
Finally, restrictions are also applied to advertisements for a
third type of products, namely, medicine. In Paragraphs 3 and 4
of the aforementioned Article it is established:
"Advertisements for medicines and medical treatment which are
only available on medical prescription in the transmitting
Party shall not be allowed. Advertisements for all other
medicines and medical treatment shall be clearly
distinguishable as such, honest, truthful and subject to
verification and shall comply with the requirement of
protection of the individual from harm."
Such restrictions on television advertisements first of
all are linked with an exclusive status of this means of the
mass media, i. e. its status allows almost unrestricted
possibilities of influencing (positively or negatively) people
in a state, region, even continent and the whole world. On the
other hand, the number of transmitting channels is limited,
therefore the probability that competing stations will correct
their mistakes and compensate for the harm done by biased
information to society diminishes. The aforementioned
restrictions on tobacco and alcohol advertising are to be
regarded as one more official international confirmation of
harmfulness of those materials to society.
2. On the compliance of Articles 1 and 30 of the Law on
Alcohol Control as well as Articles 1, 3 and 11 of the Law on
Tobacco Control.
The petitioners - a group of Seimas members, as well as
the Seimas itself - appeals to the Constitutional Court with
the request to investigate whether Articles 1 and 30 of the Law
on Alcohol Control as well as Articles 1, 3 and 11 of the Law
on Tobacco Control are in compliance with the Constitution,
however, in the part of argumentation of respective petitions
they, in fact, limit their requests to particular parts or
paragraphs of the aforementioned articles. For instance, a
doubt is expressed in the part of argumentation of the petition
filed by the group of the members of the Seimas concerning the
compliance of Paragraphs 4 and 5 of Article 1 and Parts 1 and 3
of Article 30 of the Law on Alcohol Control, as well as that of
Paragraphs 4 and 5 of Article 1, Item 6 of Part 1 of Article 3
and Parts 4 and 5 of Article 11 of the Law on Tobacco Control,
with the Constitution. In the resolutory part of the Seimas 25
June 1996 Resolution on appealing to the Constitutional Court
it is requested to investigate if Paragraph 4 of Article 1 and
Article 30 of the Law on Alcohol Control, as well as Paragraphs
4 and 5 of Article 1, Item 6 of Part 1 of Article 3 and Parts 4
and 5 of Article 11 of the Law on Tobacco Control are in
compliance with the Constitution. Conforming to the provisions
of Part 6 of Article 106 of the Constitution, the
Constitutional Court will investigate and assess only such
norms of the said laws the unconstitutionality whereof is
alleged on the basis of legal motives.
2.1. Article 1 of the Law on Alcohol Control and Article 1
of the Law on Tobacco Control formulate the definitions of main
notions used in the said laws. The petitioners call in question
the content of the two definitions - "advertisement" and
"indirect advertisement" which are set forth in these articles.
Article 1 (Paragraphs 4 and 5) of the Law on Alcohol
Control defines them as follows:
"Alcohol advertisement denotes impersonal transmission of
visual or audio information related to alcoholic beverages,
promoting their production, domestic trade, import and use,
through various means and measures, including indirect
advertisement of alcoholic beverages, in order to achieve a
direct or indirect effect in promotion of alcoholic beverages.
Indirect advertisement of alcoholic beverages includes
promotion of sales and consumption of alcoholic beverages in
popularising the names of enterprises which manufacture, import
or sell alcoholic beverages, employing product marks, symbols
or other signs typical of alcoholic beverages, and also the
products and articles sold in the Republic of Lithuania, and
other material information carriers and services not directly
linked with alcoholic beverages and their consumption."
Article 1 (Paragraphs 4 and 5) of the Law on Tobacco
Control defines the aforesaid notions as follows:
"advertisement of tobacco products denotes impersonal
transmission of visual or audio information related to tobacco
products, smoking attributes, their production, domestic trade,
import and use, through various means and measures, including
indirect advertisement of tobacco products, in order to achieve
a direct or indirect effect in promotion of tobacco products;
indirect advertisement of tobacco products includes
promotion of tobacco product sales and consumption in
popularising the names of tobacco product manufacturing,
importing or selling enterprises, employing product marks,
symbols or other signs typical of tobacco products, and also
the products and articles sold in the Republic of Lithuania,
and other material information carriers and services not
directly linked with tobacco products and their consumption."
Comparing these formulations according to their most
important legal elements, one may draw a conclusion that the
notions "alcohol advertisement" and "advertisement of tobacco
products" are identical with respect to each other, and this
may be stated as regards the notions "indirect advertisement of
alcoholic beverages", "indirect advertisement of tobacco
products", too. It provides grounds to investigate them
concurrently taking account of their peculiarities if
necessary.
The petitioner - a group of Seimas members - is of the
opinion that according to "the presented definitions of
advertisement for alcohol and tobacco products and those of
indirect advertisement for alcohol products and indirect
advertisement for tobacco products recognise that advertisement
is not only the information directly connected with promotion
of alcohol and tobacco products consumption but also the
information connected, or that which is not connected at all,
with production, import and sale of alcohol and tobacco
products. Such definitions of advertisement are, first of all,
defective because that they are particularly unspecified and
abstract, therefore, on the grounds of such definitions, not
only something which actually corresponds the universally
adopted concept of advertisement may be recognised as
advertisement but also any other information, too".
When investigating the definitions of advertisement
presented in the laws, it was established that the said
definitions are similar as to their main indications to the
concept of such an advertisement existing in the laws of other
countries and international documents. For example, in
Norwegian legal acts advertisement is defined as follows:
"Advertisement is any form of public information which is used
for the purpose of marketing; it includes advertising in
writing or print, films, illuminating advertising, posters,
marks and like means, pictures, products' exhibition etc., as
well as spreading of printed material or samples etc." The
European Communities document 92/C 129/04 of 1992 presents the
following definition of Tobacco advertising: "advertising: any
form of communication, printed, written, oral, by radio and
television broadcast and cinema, with the aim or direct or
indirect effects of promoting a tobacco product, including
advertising which, while not specifically mentioning the
product, tries to circumvent the advertising ban by using brand
names, trade marks, emblems or other distinctive features of
tobacco products". Thus the most significant objective of
advertising is to promote respective products, to form their
positive image and to promote, directly or indirectly, their
consumption.
In most cases the content of advertisement of tobacco
products is one-sided and biased: tobacco, smoking often is
associated with youth, sport, virility, sexuality, beauty of
nature, female elegance, romantic aura, independence, etc.,
i.e. opinion is formed that smoking is socially acceptable and
that it should be urged. Meanwhile, such advertisements do not
mention the harm caused by tobacco not only to the smoker but
also to the environment. Thus it is obvious that permission to
advertise and promote consumption of tobacco products means
nothing but definite assent to the stereotype pressed upon that
smoking is a socially acceptable habit, meanwhile ban on
advertising of tobacco products contributes to the formation of
the opinion that the norm of social behaviour is non-smoking.
As it has been held, alcoholic beverages and tobacco
products belong to the group of materials the use whereof
undoubtedly is harmful to human health. Conforming to Part 3 of
Article 25 of the Constitution, the legislator was entitled to
restrict information regarding alcoholic beverages and tobacco
products. The said laws, in essence, establish restriction of
commercial information concerning alcoholic beverages and
tobacco products and identify it as the prohibition of
advertising of alcoholic beverages and tobacco products, as
well as that of promotion of their selling and consumption.
Thus the allegation of the petitioner that the laws prohibit
any information concerning alcoholic beverages and tobacco
products does not correspond to reality.
Alongside, one must pay attention to the fact that the
laws under investigation present the definitions of "indirect
advertisement" which are too much broad and not concrete. It is
obvious that the end of Paragraph 5 of Article 1 of the Law on
Alcohol Control "and also the products and articles sold in the
Republic of Lithuania, and other material information carriers,
and services not directly linked with alcoholic beverages and
their consumption", and the end of Paragraph 5 of Article 1 of
the Law on Tobacco Control "and also the products and articles
sold in the Republic of Lithuania, and other material
information carriers, and services not directly linked with
tobacco products and their consumption", do not fit in the
common concept of advertisement and they groundlessly broaden
it. Following the aforementioned formulations it is possible to
declare that information which is not directly linked with
alcohol and tobacco products is advertisement of alcohol and
tobacco products and thereby to ban it. It would mean a
groundless, therefore, illegal restriction of the freedom to
information. Taking account of the motives indicated a
conclusion is to be drawn that the provision "and also the
products and articles sold in the Republic of Lithuania, and
other material information carriers and services not directly
linked with alcoholic beverages and their consumption" of
Paragraph 5 of Article 1 of the Law on Alcohol Control and the
provision "and also the products and articles sold in the
Republic of Lithuania, and other material information carriers,
and services not directly linked with tobacco products and
their consumption" of Paragraph 5 of Article 1 of the Law on
Tobacco Control contradict Part 3 of Article 25 of the
Constitution.
The representative of the petitioner - a group of Seimas
members - alleged that the ban on alcohol advertising violates
the manufacturer's right to a trade mark as in fact it
restricts the opportunity to make use of it. Alongside thereby
the Paris Convention for the Protection of Industrial Property
is violated. The Constitutional Court notes that the disputed
laws do not contain any norms which impose direct prohibition
to make use of trade marks. Essentially the said laws prohibit
to make use of trade marks for the purpose of advertising
therefore these questions are to be investigated jointly. One
has to consider the fact that Article XX of the General
Agreement on Tariffs and Trade (GATT) provides that "nothing in
this Agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures necessary to
protect human [...] life or health". The GATT group of experts
indicated that this ensures the priority of public health over
trade liberalisation. Thus, there are no legal grounds to
assert that the right to a trade mark has priority over
people's health. Let alone that the Lithuanian legislator saw
no need to consolidate trade mark priority over people's
health.
2.2. The petitioners call in question Part 1 of Article 30
of the Law on Alcohol Control which stipulates:
"In the Republic of Lithuania advertising of alcohol
beverages shall be prohibited:
(1) in the radio and television programmes produced at
Lithuania's radio and TV stations, as well as in the Lithuanian
press;
(2) by using specialised promotional publications devoted
to the advertising of alcohol which have been published in
foreign countries and imported into the Republic of Lithuania;
(3) by mail (using postcards, envelopes, stamps); and
(4) in other ways or by other means of broadcasting audio
or visual information, including indirect advertising of
alcoholic beverages."
Furthermore, the provision "prohibiting of tobacco product
advertisement and sales and consumption promotion" of Item 6 of
Part 1 of Article 3 of the Law on Tobacco Control and Part 4 of
Article 11 of the said law which stipulates: "Tobacco
advertising shall be prohibited in the Republic of Lithuania."
In the opinion of the petitioners, the aforementioned
norms violate the provision "a person may not have his rights
restricted in any way, or be granted any privileges, on the
basis of his or her sex, race, nationality, language, origin,
social status, religion, convictions, or options" of Part 2 of
Article 29 of the Constitution. They allege that the
Constitution guarantees not only the right to everyone to have
his convictions regarding expediency of alcoholic beverages
consumption or smoking etc., but also that persons who have a
negative standpoint as to alcoholic beverages consumption or
smoking may not be granted any privileges with respect to
people who have indifferent or positive standpoint as regards
analogous phenomena. When a person is deprived of the right to
information, he is also deprived of the opportunity of choice.
The Constitutional Court notes that advertisement also is
information as it provides its receiver with certain cognizance
about goods, services or other objects (subjects) advertised.
However, this is a peculiar sub-class of information which is,
as a rule, called commercial information. Advertising is
inseparable from the sphere of business and marketing as in
fact it serves the latter and it is an important means of
competition. And yet the ban on tobacco products and alcohol
advertising alone may not be treated as people's discrimination
or granting privileges, because that such a ban concerns the
whole society and not particular groups of people. On the other
hand, such a ban strives for humane purposes - to protect young
people from psychological pressure to smoke or consume
alcoholic beverages; to stop the spread of smoking and drinking
among women; to protect consumers from, as a rule, biased and
tendentiously limited information; to consolidate the
standpoint that smoking and alcoholic beverages consumption is
harmful to public health. These purposes go hand in hand with
the tasks raised by the World Health Organisation in the sphere
of public and people's health.
The petitioners express their doubts as to the lawfulness
of the propositions "prohibition of advertising" which are used
in the Law on Alcohol Control and the Law on Tobacco Control as
Part 3 of Article 25 of the Constitutions merely mentions the
opportunity to restrict the freedom of information. For
instance, it is set forth in the Seimas Resolution on the
appeal to the Constitutional Court that "the Law on Alcohol
Control and the Law on Tobacco Control prohibit to receive and
disseminate information concerning products of alcohol and
tobacco [...]".
It should be noted that the aforesaid doubt is a
groundless one because it is based on the virtually erroneous
assumption that information is equivalent to advertisement.
Advertisement is information, however, not every information is
advertisement. Therefore the ban on the advertisement for
alcohol and tobacco products may mean only the ban on certain
type of information (the supposed commercial, or marketing,
information) which on a scale of the whole information may be
assessed as merely a restriction of information. On the other
hand, the notion "prohibition" which is used by the legislator
does not always mean absolute prohibition, even that of
advertising. For example, Part 1 of Article 30 of the Law on
Alcohol Control wherein prohibition of advertisement for
alcoholic beverages is mentioned establishes prohibition of
particular forms and ways of advertising. It is obvious that
they do not include all possible ways of alcohol advertising,
therefore in this case it is impossible to assert that this is
total ban on alcohol advertising. In fact it is only partial
(even though significant) restriction of commercial information
concerning alcohol.
The prohibition of tobacco products advertising is of
different character. The Law on Tobacco Control proclaims such
a prohibition a principle of state tobacco control policy
(Article 3). Article 11 of the said law consolidates the norm
that tobacco advertising shall be prohibited. This may actually
be understood as a total ban on tobacco products advertising,
however, from this one cannot draw the conclusion that every
information concerning tobacco products. Part 6 of Article 11
of the Law on tobacco Control stipulates that "locations of
tobacco product sales shall be permitted to furnish information
on specific features, kind, and quality of tobacco products
sold there and the levels of the materials harmful to health
contained therein". Besides, the law provides for the procedure
of presenting compulsory information concerning tobacco
products and restrictions of their sale: locations of tobacco
products sales must contain notices warning about harmful
effects of smoking to health, informing about prohibition to
sell tobacco products for persons under the age of 18 as well
as other restrictions of selling tobacco products. By the way,
the most important information must be presented to the
consumer on the package of tobacco products, too, i.e. they
must have: notices in Lithuanian (on the sides of the packages)
as to the level of tars and nicotine contained in the tobacco
products; warning notices in Lithuanian about harmful effects
of smoking to health; trade marks. Without such notices sale of
tobacco products in Lithuania is prohibited.
The Constitutional Court notes that the Constitution does
not define the level of restriction of the freedom to
information. It means that to choose and establish the level of
restriction is an unquestionable prerogative of the legislator.
Of course, in order that such restrictions were in compliance
with the concept and requirements of justice, the
aforementioned criteria of lawfulness and necessity in a
democratic society should be taken account of. Various
restrictions of advertising of alcoholic beverages and tobacco
products are established in some other countries, too.
According to the data of the World Health Organisation, in 1991
total ban on tobacco advertising was imposed in 27 countries of
the world (13 of the said countries were in Europe). In
addition, in 77 states various partial restrictions on tobacco
products advertising are imposed. There is a still greater
variation as regards restrictions of alcoholic beverages
advertising: in 10 European states ban on advertising for
strong alcoholic beverages on television, radio and billboards
is imposed, whereas ban on advertising for beer - in 6 European
countries (Alcohol in Europe - a Health Perspective: WHO
Regional Office for Europe, Copenhagen, 1995). Therefore it
should be concluded that the prohibitions or restrictions of
advertising provided for in the Lithuanian Law on Alcohol
Control or the Law of Tobacco Control may not be regarded as
unprecedented if compared to other European or world states.
The petitioner also points out that Part 3 of Article 46
of the Constitution stipulates that "the state shall regulate
economic activity so that it serves the general welfare of the
people". Therefore when judging whether the disputed legal acts
are in compliance with the Constitution one has bear in mind
that in a market economy advertising is one of the factors
directly influencing production increase. It is emphasised in
the petition that different economic entities have not equal
conditions of their economic activity as certain entities
occupied with legal activity have the opportunity to advertise
themselves while other entities occupied with legal activity
are deprived of such an opportunity.
Assessing legal regulation of advertising in Lithuania,
one indeed has to take account of the provision of Article 46
of the Constitution. The provision "the State shall support
economic efforts and initiative which are useful to the
community" of Part 2 of the said article means, first of all,
the possibility consolidated by the Constitution for the
institutions of power to assess spheres of economic activity as
to their benefit for society. Secondly, only on the basis of
such an assessment and grouping is it possible to realise the
consolidated right of supporting particular spheres of economic
activity or particular economic efforts. Finally the said
assessment of economic activity constitutes necessary
preconditions to implement the provision of Part 3 of Article
46 of the Constitution which reads: "The State shall regulate
economic activity so that it serves the general welfare of the
people." On of the most important emphases of this provision is
a possible differentiated legal regulation of economic
activity. Its main criterion is a general welfare of the
people. It is a rather general and broad criterion and in its
application one may base oneself on the concept of general
welfare as well as the arguments of purposiveness.
Thus it would be incorrect to comprehend the quoted
provision of Article 46 of the Constitution as the duty of the
state to decisively support any economic efforts or activity.
On the contrary, as it has been mentioned, in this case the
state has the opportunity of choice. On the other hand,
people's welfare may not be understood only in material
(financial) sense. Furthermore, hardly would it be fair and
moral to seek material welfare in such a way which is harmful
to people's health.
It should also be noted that restriction of advertising is
one of the ways applied to reduce the unrestricted promotion
and consumption of materials which are harmful to people's
health. For instance, Part 1 of Article 3 of the Law on Alcohol
Control determines: to reduce accessibility of alcoholic
beverages through taxation; to limit through state regulatory
means, private profit, obtained from the manufacture of
alcoholic drinks, import and trade in alcoholic beverages; to
limit the support and sales of alcoholic beverages; to augment
public informativeness concerning the questions of social and
economic harm to health and economy, resulting from alcohol use
etc. Accordingly, Part 1 of Article 3 of the Law on Tobacco
Control determines: reduction of smoking product availability
through taxation; prohibiting of use of state and local budget
funds for growing tobacco, manufacture of its products and
development of domestic trade and import; increase public
information concerning social and economic harm inflicted upon
health through smoking product consumption. Besides, in order
to ensure the control for observing laws a special system of
institutions has been created, as well as responsibility has
been established for violations of laws.
2.3. The petitioners question the provision "the criteria
for recognising the contents and arrangement of audio or visual
information or the ways of transmission thereof as
advertisement for alcohol and the procedure of control of
compliance with the alcohol advertisement prohibition shall be
established by the Government of the Republic of Lithuania" of
Part 3 of Article 30 of the Law on Alcohol Control, as well as
that of Part 5 of Article 11 of the Law on Tobacco Control
which stipulates: "the Government of the Republic of Lithuania
shall establish criteria for recognition of tobacco
advertising, according to visual and audio information content,
design, and means of presentation, and shall establish the
procedure for control of the ban on advertisement of tobacco
products".
In fact every disputed provision is composed of 2 parts:
one part speaks of the criteria whereby certain information
would be recognised as advertisement, the second part speaks of
the procedure for control of the ban of advertisement. Besides,
the said laws establish the system of control institutions, as
well as the fundamentals of their competence. They also
authorise the Government to prepare the control programmes, to
accomplish the legal regulation of the control procedure, to
supervise the activities of respective institutions. It is in
compliance with the competence of the Government, as well as
the Constitution. However, commissioning the Government with
the establishing the criteria on the grounds of which
information is recognised as advertisement virtually means the
right to decide which information will be recognised as
advertisement and, therefore, should be prohibited. It is
nothing but the delegation of the right to restrict advertising
for alcohol and tobacco products to the Government. Meanwhile
in Part 3 of Article 25 of the Constitution a categorical
stipulation is consolidated that "freedom to express
convictions, as well as to obtain and disseminate information,
may not be restricted in any way other than as established by
law".
Therefore the Constitutional Court has concluded that the
provision "the criteria for recognising the contents and
arrangement of audio or visual information or the ways of
transmission thereof as advertisement [...]" of Part 3 of
Article 30 of the Law on Alcohol Control, as well as the
provision "criteria for recognition of tobacco advertising,
according to visual and audio information content, design, and
means of presentation [...]" of Part 5 of Article 11 of the Law
on Tobacco Control, contradicts Part 3 of Article 25 of the
Constitution.
3. On the compliance of the 2 February 1996 Government
Resolution No. 179 "On the Control of Advertising for Alcohol"
with the Constitution.
On 2 February 1996 the Government adopted Resolution No.
179 "On the Control of Advertising for Alcohol" whereby "The
criteria for recognising the content and arrangement of audio
or visual information concerning alcohol and the ways of
transmission thereof as advertisement for alcohol" The
petitioner - a group of Seimas members - points out that Part 3
of Article 25 of the Constitution provides that freedom to
express convictions, as well as to obtain and disseminate
information, may not be restricted n any way other than
established by law. In addition, it is maintained, that in the
disputed legal act it was the Government which established what
information is advertisement and is to be prohibited,
therefore, a conclusion should be drawn that the disputed
Government Resolution according to its form contradicts Part 3
of Article 25 of the Constitution.
The disputed Government Resolution was adopted when
implementing Part 3 of Article 30 of the Law on Alcohol
Control. The Resolution is comprised of 2 items: Item 1 lists
the subjects which are commissioned to control alcohol
advertising (it is provided for by the law, too) while Item 2
approves "The criteria for recognising the contents and
arrangement of audio or visual information concerning alcohol
and the ways of transmission thereof as advertisement for
alcohol". Taking account of the fact that the aforesaid
provision of Article 30 of the law whereby the Government was
delegated to restrict information has been recognised as
contradicting the Constitution, thus Item 2 of the 2 February
1996 Government Resolution No. 179 "On the Control of
Advertising for Alcohol" is recognised as contradicting Part 3
of Article 25 of the Constitution.
Conforming to Article 102 of the Constitution of the
Republic of Lithuania and Articles 53, 54, 55 and 56 of the Law
of the Republic of Lithuania on the Constitutional Court, the
Constitutional Court has passed the following
ruling:
1. To recognise that:
(1) Paragraph 4 of Article 1 of the Law of the Republic of
Lithuania on Alcohol Control is in compliance with the
Constitution of the Republic of Lithuania;
(2) the provision "and also the products and articles sold
in the Republic of Lithuania, and other material information
carriers, and services not directly linked with alcoholic
beverages and their consumption" of Paragraph 5 of Article 1 of
the Law on Alcohol Control contradicts Part 3 of Article 25 of
the Constitution of the Republic of Lithuania;
(3) Part 1 of Article 30 of the Law on Alcohol Control is
in compliance with the Constitution of the Republic of
Lithuania;
(4) the provision "the criteria for recognising the
contents and arrangement of audio or visual information or the
ways of transmission thereof as advertisement" of Part 3 of
Article 30 of the Law on Alcohol Control contradicts Part 3 of
Article 25 of the Constitution of the Republic of Lithuania.
2. To recognise that:
(1) Paragraph 4 of Article 1 of the Law of the Republic of
Lithuania on Tobacco Control is in compliance with the
Constitution of the Republic of Lithuania;
(2) the provision "and also the products and articles sold
in the Republic of Lithuania, and other material information
carriers, and services not directly linked with tobacco
products and their consumption" of Paragraph 5 of Article 1 of
the Law on Tobacco Control contradicts Part 3 of Article 25 of
the Constitution of the Republic of Lithuania;
(3) Item 6 of Part 1 of Article 3 of the Law on Tobacco
Control is in compliance with the Constitution of the Republic
of Lithuania;
(4) Part 4 of Article 11 of the Law on Tobacco Control is
in compliance with the Constitution of the Republic of
Lithuania;
(5) the provision "criteria for recognition of tobacco
advertising, according to visual and audio information content,
design, and means of presentation" of Part 5 of Article 11 of
the Law on Tobacco Control, contradicts Part 3 of Article 25 of
the Constitution of the Republic of Lithuania.
3. To recognise that Item 2 of the 2 February 1996
Resolution of the Government of the Republic of Lithuania No.
179 "On the Control of Advertising for Alcohol" contradicts
Part 3 of Article 25 of the Constitution of the Republic of
Lithuania. The remaining part of this Government Resolution is
in compliance with the Constitution of the Republic of
Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.