EUROPE, MIDDLE EAST AND AFRICA: TURKEY

THE NEW REGULATION ON TOBACCO PRODUCTS AND ALCOHOLIC BEVERAGES IN TURKEY AND ITS REFLECTIONS IN TURKISH MEDIA
Authors: Uğur Aktekin & Başak Gürbüz, Mehmet Gün & Partners

Recently, Turkey brought a new regulation into effect, “The Procedure and Principles of the Sale and Marketing of Tobacco Products and Alcoholic Beverages” (the “Tobacco and Alcohol Regulation”) issued by the Regulatory Council for Tobacco and Alcohol Markets.

Thus far, tobacco products and alcoholic beverages have been regulated under the Law for the Prevention and Control of the Damages of Tobacco Products and the Law on Alcohol and Alcoholic Beverages, as well as the Regulation for the Procedure and Principles of the Internal and External Trade of Alcohol and Alcoholic Products, the Regulation for the Procedure and Principles of Production and Trade of Tobacco Products, the Regulation for the Wholesale and Retail Sale of Tobacco Products and Alcoholic Beverages & Their Sale Certificates, and the Communiqué on the Principles for Alcoholic Beverage Advertisements.

The above-mentioned regulations outlined the basic principles for the sale, trade and promotion of tobacco and alcohol products. All regulations issued to date have differentiated between tobacco products and alcoholic beverages, with the exception of the Regulation on Wholesale and Retail Sale of Tobacco Products and Alcoholic Beverages & Their Sale Certificates. However the new Tobacco and Alcohol Regulation has systematically gathered the disparate pieces of legislation into one comprehensive regulation, thereby including tobacco and alcohol products in the same category. By virtue of the passage of the Tobacco and Alcohol Regulation, the Regulation on Wholesale and Retail Sale of Tobacco Products and Alcoholic Beverages & Their Sale Certificates has been annulled.

The Tobacco and Alcohol Regulation severely restricts the sale and promotion of tobacco and alcohol products, the provisions of which also concern broadcasting institutions:

• The sale and promotion of alcoholic beverages via television, cable broadcasting, radio and public broadcasting media is prohibited.
  
• Any public notifications or announcements using the names, emblems, logos, pictures, photographs, hallmarks and any other similar elements of the tobacco products are prohibited. Media organs and the internet are also prohibited from making these notifications, including the price notifications.
  
• Any advertisements or presentations using the names, trademarks or hallmarks of tobacco products and their producer firms are prohibited. The organization of campaigns promoting or encouraging the use of such products is prohibited. The firms producing or marketing tobacco products cannot sponsor any events and cannot affix their names and trademarks to the events.
  
• The companies producing or marketing tobacco products cannot distribute their products to stores and consumers as a promotion, present, sample or presentation, either free of charge or as a donation.
  
• Any campaign, promotion, advertisement or presentations promoting or encouraging the use and sale of alcoholic beverages is prohibited.
  
• Advertisements for alcoholic beverages cannot target children and young adults (defined as the persons between 15 and 24 years of age) and cannot be connected to any sports activities.
  
• The trademarks or marks associated with alcoholic beverage trademarks cannot be used in the presentation and organization of any event that targets children and young adults. Selling or serving alcoholic beverages during these events is also prohibited.
  
• Placing alcoholic beverage ads in sections/pages directed at children or young adults, as well as the sports pages in printed or online media, is also prohibited.
  
• These advertisements can only be broadcast in films that have been classified by the Ministry of Culture and Tourism as “+18”.

These restrictions are clearly intended to frustrate the manufacturers’ market activities who are the advertisers as well. However, the Chairman of the Ankara Bar filed a cancellation action before the Council of State against the Tobacco and Alcohol Regulation with a stay of order request, due to the fact that the regulation detailed above is contrary to the general principles of the law. The Chairman of the Ankara Bar has stated that such a regulation is certainly in violation of the Constitution, specific laws and those general legal principles that animate the social order. The Chairman went on to state that the law provides no grounds for the conflation of two different products such as tobacco and alcohol to the extent that the use of both could be controlled under one regulation. In the face of all scientific evidence to the contrary, the Tobacco and Alcohol Regulation seems to be based on the assumption that alcoholic beverages cause addiction even when consumed in the smallest amounts, and that alcohol is just as harmful to human health as tobacco products.

The Tobacco and Alcohol Regulation has been further criticized on the grounds that the regulation prevents producer and seller firms from advertising their products, which can be regarded as the violation of the fundamental right to work and enterprise safeguarded by the Constitution. Another issue under debate is the fact that a “young adult” is defined as a person between the ages of 15 and 24, meaning that even people well over the age of majority (18) will not be legally permitted to consume alcoholic beverages in certain situations, or to be exposed to alcoholic beverage ads.

In view of the above, despite the government’s claims that the Tobacco and Alcohol Regulation is intended to protect children and young adults as well as public health, we are of the opinion that the Tobacco and Alcohol Regulation primarily aims to reduce alcoholic beverage consumption, as well as the use of tobacco products, in Turkey. The restrictions concern consumers and manufacturers in both sectors considering the fact that the sale and marketing of tobacco and alcohol products will be seriously disrupted.

Again, we are of the opinion that, the restrictions are acceptable for tobacco products, given that those products contain an addictive substance proven harmful to human health. However, the restrictions seem out of proportion as far as alcoholic beverages are concerned. The consumption of alcohol should not be directly construed as being sufficient to render one an “alcohol addict”. Furthermore, we consider the new definition of young adults as the person between 15 and 24 years of age excessive; the measure limits the freedom of persons who have already attained the age of majority and as such stands in contradiction of the Turkish Civil Code.

The decision by the Council of State and the outcome of the above-mentioned case is expected to affect the fate of alcoholic beverages in Turkey as well as the lives of individuals, and is awaited with great anticipation by both the government and society at large.