Constitutional rights and duties

The opinion that a tobacco advertising ban violates such constitutional rights of the citizens as freedom of expression and access to information is not justifiable. Article 34 of the Constitution of Ukraine declares: "Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice". But in the same Article it is written down: "The exercise of these rights may be restricted by law … with the purpose of … protecting the health of the population". Since we have defined the tobacco-advertising problem as a public health problem, clause 34 provides justification for restricting tobacco advertising up to a complete ban. It is worth noting that from the viewpoint of freedom of expression, there are no basic differences between minimal restrictions on tobacco advertising and its complete ban. 

Giving priority to the interests of the tobacco industry and advertising businesses when considering the tobacco advertising problem contradict Article 13 of the Constitution of Ukraine which, in particular, states: "Property entails responsibility. Property shall not be used to the detriment of the person and society". Legislation on tobacco advertising should be based on provisions of the Article 3 in the Constitution of Ukraine, namely: " The human being, his or her life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value". Moreover, Article 27 unambiguously states: " The duty of the State is to protect human life". Research reveals that partial restrictions on tobacco advertising do not ensure a reduction in tobacco-related illnesses and deaths, and only a complete tobacco advertising ban can provide the government with the opportunity to fulfill its constitutional duties to protect the lives and health of the people as the highest social value.

International relations

From the international relations perspective, the first alternative, which provides an opportunity to broadcast tobacco advertising on radio and TV, can essentially damage the relations of Ukraine with neighboring states. In Russia, Moldova, Hungary, and Poland such advertising is forbidden, and even its limited penetration from the territory of Ukraine (cross-border advertising) can cause official protests. 

A tobacco advertising ban is fully in line with the modern international tendencies in this area. In 2002, the European Union accepted the directive on a complete ban of the main kinds of tobacco advertising and sponsorship. It was partly due to the process of European integration that a ban on tobacco advertising was adopted in Poland, Hungary, and the Czech Republic. The text of the Framework Convention on Tobacco Control, approved by government delegations from 192 countries, also unambiguously declares a ban on tobacco advertising, and, after the Convention is ratified, Ukraine will have no other choice than to implement a comprehensive ban on tobacco advertising. The introduction of this kind of ban is supported by respected international organizations such as the World Health Organization, UNICEF, the World Bank, and others. By preserving tobacco advertising even with restrictions, Ukraine will be considered by the international community as a backwards country that does not care about public health. The introduction of a complete ban will promote the international authority of Ukraine.

Combined consequences of the considered options

Though we have defined the tobacco advertising problem as a public health issue, those who are involved in legislative decision-making will mostly be influenced not by the public health community, but their professional interests. Therefore everyone, including public health advocates, needs to consider the opinions of all of the interested parties. A balance of interests is the only conclusion that should be reached. However, where is this point of balance if the interests involved are sometimes directly opposed to each other?

To find this balance, we offer a speculative table. The perspectives discussed above are admittedly of an equal value, and for each of them the considered four policy options are estimated on a scale of values from 0 up to 4. Thus the sum of all values for each of the perspectives is equal to 5. Considering the above discussion, the distribution of values is shown in Table 3.

Table 3. Comparison of stakeholders' opinions on policy options of tobacco advertising regulation

Certainly, the given estimations are subjective; however they proceed from the above discussion of the various perspectives and are in fact rather conservative. 

A ban on tobacco advertising has a clear advantage over the other options, but nevertheless it loses out when the rest are combined. And while keeping in mind that the issue of tobacco advertising should be given over to the public health, it is worthwhile to take the other perspectives into account and to offer an option that not only gives the desired outcome, but also satisfies the fair interests of other groups to a certain extent. The supporters of toughening and the ban can develop an option that will unite them. Let's call this option a comprehensive or rational ban.

A rational ban on tobacco advertising means that all kinds of direct and indirect advertising and sponsorship are forbidden, except for the kinds specially stipulated in the law. For example, in the Czech Republic, a bill seeking to ban tobacco advertising was approved in February 2003 by the Czech parliament, and it stipulates an opportunity to keep tobacco advertising in special tobacco shops and publications. In the same bill the sponsorship is forbidden, but for auto races two additional years of sponsorship are allowed.

Thus an option that on one hand effectively blocks all forms of public tobacco advertising and on the other hand saves some forms of advertising insignificant for public health could ensure the greatest support from public opinion. Not being a complete or absolute ban, but still blocking opportunities for tobacco advertising to promote tobacco consumption (especially for minors), the rational tobacco advertising ban will be supported by a vast majority of the Ukrainian population. 

Proceeding from this, the following recommendations are offered.

Recommendations