¹ Relevant texts include (but are not limited to): the First Amendment to the US Constitution; § 2 of the Canadian Charter of Rights and Freedoms; Art 5 of the German Constitution; Art 11 of the French Universal Declaration of Human Rights; Arts 14 and 54 of the Polish Constitution; Art 10 of the European Convention on Human Rights and Fundamental Freedoms; Art 11 of the EU Charter on Fundamental Rights; Art 19 of the Universal Declaration of Human Rights; Art 19 of the International Covenant on Civil and Political Rights; Art 4 of the American Declaration of the Rights and Duties of Man; Art 9 of the African Charter on Human and Peoples’ Rights; and Art 13 of the American Convention on Human Rights.

² This chapter does not discuss the boundaries between commercial and other kinds of speech (and in particular mixed speech). It focuses exclusively on advertising and similar forms of promotion: a pure form of commercial speech. On this question, which has given rise to an extensive body of case law and legal writings, particularly in the US, see, among others: Shiner, R, Freedom of Commercial Expression (Oxford, Oxford University Press, 2003)CrossRefGoogle Scholar; Barendt, E, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2005) 392–416 Google Scholar; Munro, C, ‘The Value of Commercial Speech’ (2003) 62 CLJ 134 CrossRefGoogle Scholar; Randall, M Hertig, ‘Commercial Speech Under the European Convention on Human Rights: Subordinate or Equal?’ (2006) 6 Human Rights Law Review 53 CrossRefGoogle Scholar; Krzeminska-Vamvaka, J, Freedom of Commercial Speech in Europe (Hamburg, Verlag Dr Kovac, 2008)Google Scholar.

³ Valentine v Chrestensen (1942) 316 US 52, 54.

⁴ See, in particular New York Times v Sullivan (1964) 376 US 254 and Bigelow v Virginia (1975) 421 US 809.

⁵ Virginia Pharmacy Board v Virginia Consumer Council (1976) 425 US 748.

⁶ Ibid, 762.

⁷ Ibid, 773.

⁸ The activity must also be ‘lawful’.

⁹ Virginia Pharmacy Board v Virginia Consumer Council (1976) 425 US 748, 762.

¹⁰ Ibid, 763.

¹¹ Ibid, 764 and 765.

¹² See, eg, Markt Intern v Germany Series A no 165 (1990) 12 EHRR 161, paras 25 and 26; Groppera v Switzerland Series A no 173 (1990) 12 EHRR 321, para 55; and Casado Coca v Spain Series A no 285 (1994) 18 EHRR 1, paras 35 and 36.

¹³ The Court of Justice of the EU draws upon the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect: see, inter alia, Case C-260/89 ERT [1991] ECR I-2925, para 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, para 37; Case C-94/00 Roquette Frères [2002] ECR I-9011, para 25; Case C-112/00 Schmidberger [2003] ECR I-5659, para 71; Case C-71/02 Karner [2004] ECR I-3025, para 48; and Case C-380/03 Germany v Parliament and Council (Tobacco Advertising II) [2006] ECR I-11573, para 154. See also Art 11(1) of the EU Charter of Fundamental Rights, which provides: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ On the importance of the right to free expression in the EU legal order, see Wyatt, D, ‘Freedom of Expression in the EU Legal Order and in EU Relations with Third Countries’ in Beatson, J and Cripps, Y (eds), Freedom of Expression and Freedom of Information: Essays in Honour of Sir David Williams (Oxford, Oxford University Press, 2000)Google Scholar.

¹⁴ Opinion of A-G Fennelly in Case C-380/03 Germany v Parliament and Council (Tobacco Advertising II) [2006] ECR I-11573, para 154.

¹⁵ Art 26 TFEU (ex Art 14 EC).

¹⁶ This was most vividly stated by A-G Jacobs in his seminal Opinion in Case C-412/93 Société d’Importation Edouard Leclerc-Siplec [1995] ECR I-179.

¹⁷ Weatherill, S, EU Consumer Law and Policy, 2nd edn (London, Elgar, 2005) 9 CrossRefGoogle Scholar. The Commission’s Communication on the EU Consumer Policy Strategy for 2007–2013— incidentally entitled ‘Empowering Consumers, Enhancing Their Welfare, Effectively Protecting Them’— states that ‘empowered and informed consumers can more easily make changes in lifestyle and consumption patterns contributing to the improvement of their health, more sustainable lifestyles and a low carbon economy’: COM(2007) 99 final, 11.

¹⁸ (1976) 425 US 748, fn 24.

¹⁹ Weatherill, above n 17, 84.

²⁰ For the EU Strategy, see in particular the Commission’s White Paper laying down a strategy for Europe on nutrition, overweight, and obesity related health issues, COM(2007) 279 final. For the US Strategy, see White House Task Force on Childhood Obesity, Solving the Problem of Childhood Obesity within a Generation, Report to the President, 11 May 2010, available at <www.letsmove.gov/tfco_fullreport_may2010.pdf>, accessed 12 July 2010.

²¹ Commission’s White Paper, above n 20, 5.

²² One could argue that the food industry has a role to play in obesity-prevention strategies, not least by complying with disclosure requirements laid down by law and ensuring that the information it provides to consumers is not misleading, as discussed below.

²³ As Eric Barendt puts it, ‘disclosure requirements are hardly controversial … Since the best arguments for freedom of commercial speech are based on the interests of consumers in finding out attributes of the goods and services they want to buy, rather than speakers’ rights, there is no good reason for holding that advertisers have any right not to provide information. The recipients’ interests do justify a limit on the speakers’ rights, for the latter are derivative from the former. Unlike free speech in the context of politics and the arts, they are primarily not the rights of the speaker, but of the consumer or client’: Barendt, E, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2005) 412 Google Scholar.

²⁴ Directive 2001/37/EC, Art 5.

²⁵ Case C-491/01 BAT and Imperial Tobacco [2002] ECR I-11453, para 131.

²⁶ German Landgericht Bielefeld, Decision of 15/01/2000, 8 O 411/99, (2000) Neue Juristische Wochenschrift 2514, §3 d) aa); Landgericht Arnsberg, Judgment of 14 November 2003, 2 O 204/02, (2004) Neue Juristische Wochenschrift 232, §75. The fact that the damage caused by tobacco is known by the general public may further shape the scope of the duty to inform. In any event, even if tobacco companies failed to comply with labelling requirements, this would not necessarily mean that causation between the damage and their failure to inform would be established: Cour de Cassation, Première Chambre Civile, Suzanne X, 8 November 2007.

²⁷ Directive 2001/37/EC, Art 5(3).

²⁸ Decision 2003/641/EC, [2003] OJ L226/24.

²⁹ Discussions are currently taking place in the Commission’s DG on Health and Consumer Protection as to whether the duty of tobacco manufacturers to affix health warnings to their products should not be strengthened in the sense of using pictorial warnings containing shock images in an attempt to persuade buyers to stop smoking. Some Member States, including Belgium, Romania, the UK and Latvia, require that such pictorial warnings be used. This could be extended to all Member States via EU legislation: see Sambrook Research International, A Review of the Science Base to Support the Development of Health Warnings for Tobacco Packages, Report prepared for DG SANCO, Brussels, 27 May 2010, available at <ec.europa.eu/health/tobacco/docs/warnings_report_en.pdf>, accessed 12 July 2010. As the WHO has stated, ‘health warnings on tobacco packages increase smokers’ awareness of their risk. Use of pictures with graphic depictions of disease and other negative images has greater impact than words alone, and is critical in reaching the large number of people worldwide who can not read. Experience in Australia, Belgium, Brazil, Canada, Thailand and other countries, shows that strong health warnings on tobacco packages, particularly pictorial warnings, are an important information source for younger smokers and also for people in countries with low literacy rates. Pictures are also effective in conveying messages to children—especially the children of tobacco users, who are the most likely to start using tobacco themselves … Policies mandating health warnings on tobacco packages cost governments nothing to implement. Pictorial warnings are overwhelmingly supported by the public and generally encounter little resistance, except from the tobacco industry itself’ (WHO Report on the Global Tobacco Epidemic, The MPOWER Package, Geneva, 2008, 34 and 35).

³⁰ Directive 2000/13, Art 4.

³¹ COM(2008) 40 final.

³² SEC(2008) 94, 47.

³³ Art 29(1) of the Commission’s Proposed Regulation: COM(2008) 40 final. The European Parliament recently voted in favour of mandatory nutrition disclosure. It confirmed the Commission’s proposal that the nutrition declaration should comprise information on the amounts of energy, fat, saturates, sugars and salts should be mentioned, and proposed to add the amounts of protein, carbohydrates, fibre, and transfats: Amendment 144, Resolution of 16 June 2010, P7_TA(2010)0222.

³⁴ See in particular Virginia Pharmacy Board v Virginia Consumer Council (1976) 425 US 748. This makes commercial speech a lesser form of expression than political or artistic speech. Ensuring that the stream of information flows clearly also helps to ensure fair competition: commercial operators should not be able to gain an advantage over their competitors by providing unreliable information.

³⁵ Directive 2005/29/EC on business-to-consumer unfair commercial practices, [2005] OJ L149/22, has significantly amended Directive 84/450/EEC on misleading advertising, [1984] OJ L250/17.

³⁶ Thun, M and Burns, D, ‘Health Impact of “Reduced Yield” Cigarettes: A Critical Assessment of the Epidemiological Evidence’ (2001) 10 Tobacco Control i4–i11Google ScholarPubMed.

³⁷ For a history of tobacco litigation in the US, see in particular M Miura, R Daynard and J Samet, ‘The Role of Litigation in Tobacco Control’ (2006) Supplement Salud Pública de México S121; M Molitoris, ‘Tabakprozesse in den USA, Deutschland und Anderen Europäischen Ländern’ (2004) Neue Juristische Wochenschrift 3662; and B Bitas and P Barros, ‘Tobacco Control and the Role of Litigation: A Survey of Issues in Law, Policy, and Economics’ (2008) SSRN Paper 1121000, 22.

³⁸ Estate of Michelle Schwarz v Philip Morris Incorporated, number S053644.

³⁹ On 16 March 2009, the Massachusetts Supreme Judicial Court gave the green light to the claimants who are suing Philip Morris in its light cigarette scam.

⁴⁰ Corte di Cassazione, Sezione Unite Civili, 15 January 2009, 794.

⁴¹ [2001] OJ L194/26. Moreover, Directive 2003/33/EC, [2003] OJ L152/16, bans all forms of tobacco advertising and sponsorship with cross-border effects, as discussed below. Lastly, as regards other forms of advertising and sponsorship excluded from the scope of either Directive 2001/37/EC or Directive 2003/33/EC, it is arguable that Directive 2005/29/EC banning all unfair business-to-consumer commercial practices prohibits the advertising and sponsorship of ‘light’ or similar cigarettes, on the ground that such statements convey a misleading impression likely significantly to influence the economic behaviour of consumers and are therefore unfair (Arts 5 to 7).

⁴² Case C-491/01 BAT and Imperial Tobacco [2002] ECR I-11453.

⁴³ Ibid, para 135.

⁴⁴ Ibid, para 138.

⁴⁵ A nutrition claim ‘suggests or implies that a food has particular beneficial nutritional properties due to the energy it provides (or does not provide) or the nutrients or other substances it contains or does not contain’ (Art 2(4) of Regulation 1924/2006/EC), eg ‘low fat’ or ‘high in fibre’. A health claim ‘states, suggests or implies that a relationship exists between a food and health’ (Art 2(5) of Regulation 1924/2006/EC), eg ‘increases concentration’ or ‘good for heart health’.

⁴⁶ [2006] OJ L409/9, with a corrigendum published in January 2007, [2007] OJ L12/3.

⁴⁷ Ibid, Art 3.

⁴⁸ Ibid, Art 6. Food operators may be required to produce the scientific work and the data establishing compliance with the Food Claims Regulation.

⁴⁹ Ibid, Art 5.

⁵⁰ ‘Five a Day’ claims (namely, claims that consuming a given foodstuff contributes to the recommended daily intake of five portions of fruit and vegetable) are now also prohibited if they are made on products that need to be eaten or drunk in huge amounts before the equivalent quantity of vitamins or fibre as found in a piece of fruit is consumed.

⁵¹ Regulation 1924/2006/EC, Art 5(2).

⁵² Ibid, Art 8(1). The Annex at present contains conditions for the use of 24 nutrition claims. As Regulation 1924/2006/EC is a horizontal instrument applying without prejudice to more specific provisions, there may be nutrition claims other than those listed in the Annex, including claims such as ‘gluten-free’, which are intended for a group of consumers with specific disorders and are dealt with in more specific legislation: see Art 5 of Directive 2009/39/ EC, [2009] OJ L124/2, repealing Directive 89/398/EEC on foodstuffs intended for particular nutritional uses, [1989] OJ L186/27, as amended.

⁵³ Central Hudson Gas & Electric Corporation v Public Service Commission of New York (1980) 447 US 557, 564.

⁵⁴ Posadas de Puerto Rico Associations v Tourism Company of Puerto Rico (1986) 478 US 328.

⁵⁵ Rubin v Coors Brewing Company (1995) 514 US 476 and 44 Liquormart v Rhode Island (1996) 517 US 484.

⁵⁶ Lorillard Tobacco Co et al v Reilly, Attorney General of Massachusetts, et al (2001) 533 US 525.

⁵⁷ Political, journalistic, literary or artistic expression contribute to a larger extent, in a liberal democratic society, to the achievement of social goods such as, eg, the enhancement of democratic debate and accountability, or the questioning of current orthodoxies with a view to furthering tolerance or change. By contrast, commercial expression promotes only economic activity.

⁵⁸ Arts 168(1) and 114(3) TFEU (ex Arts 152(1) and 95(3) EC).

⁵⁹ Case C-380/03 Germany v Council and the European Parliament [2006] ECR I-11573, discussed below.

⁶⁰ Case C-405/98 Gourmet [2001] ECR I-1795 and Case C-429/02 Bacardi France [2004] ECR I-6613.

⁶¹ See in particular the Court’s recent judgment in Joined Cases C-447 and 448/08 Sjöberg and Gerdin, judgment of 8 July 2010, nyr.

⁶² The evidence relating specifically to tobacco and food marketing is discussed below.

⁶³ See, to this effect, Case C-368/95 Familiapress [1997] ECR I-3689, para 26; Case C60/00 Carpenter [2002] ECR I-6279, para 42; Case C-112/00 Schmidberger [2003] ECR I-5659, para 79; and Case C-71/02 Karner [2004] ECR I-3025, para 50.

⁶⁴ Art 5 of the New Protocol.

⁶⁵ See, inter alia, Case 137/85 Maizena and Others [1987] ECR 4587, para 15; Case C-339/02 ADM Ölmühlen [1993] ECR I-6473, para 15; and Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, para 59.

⁶⁶ Directive 98/43/EC, [1998] OJ L213/9.

⁶⁷ Directive 2003/33/EC, [2003] OJ L152/16.

⁶⁸ C-376/98 Germany v Council and the European Parliament [2000] ECR I-8419.

⁶⁹ Case C-380/03 Germany v Council and the European Parliament [2006] ECR I-11573.

⁷⁰ See, to this effect, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, para 58; Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paras 55 and 56; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, para 61; Case C-491/01 BAT and Imperial Tobacco [2002] ECR I-11453, para 123; and Case C-71/02 Karner [2004] ECR I-3025, para 51.

⁷¹ Case C-71/02 Karner [2004] ECR I-3025, para 51. The Court of Justice mentioned Case C-245/01 RTL Television [2003] ECR I-12489, para 73; Markt Intern v Germany Series A no 165 (1990) 12 EHRR 161, para 33; and VGT Verein gegen Tierfabriken v Switzerland Reports of Judgments and Decisions 2001-VI (2002) 34 EHRR 4, paras 69 and 70.

⁷² Case C-380/03 Germany v Council and the European Parliament [2006] ECR I-11573, paras 156–58.

⁷³ Case C-405/98 Gourmet [2001] ECR I-1795.

⁷⁴ Ibid, para 33.

⁷⁵ Biondi, A, ‘Advertising Alcohol and the Free Movement Principle: The Gourmet Decision’ (2001) 26 EL Rev 616, 620Google Scholar.

⁷⁶ In certain cases, the Court has provided more guidance as to how national court should assess the proportionality of a given restriction on fundamental freedoms. See, eg, Case C438/05 Viking [2007] ECR I-10779.

⁷⁷ The issue is admittedly more difficult when morality, rather than public health, is at stake.

⁷⁸ Recital 3 of the Preamble to the Tobacco Advertising Directive provides that ‘the legislation of the Member States to be approximated is intended to protect public health by regulating the promotion of tobacco, an addictive product responsible for over half a million deaths in the Community annually, thereby avoiding a situation where young people begin smoking at an early age as a result of promotion and become addicted’.

⁷⁹ WHO Report on the Global Tobacco Epidemic, The MPOWER Package, Geneva, 2008, 36–38, with references to a range of supporting studies, including studies carried out before the Tobacco Advertising Directive was adopted.

⁸⁰ For the text of the FCTC and other relevant information, see <www.who.int/fctc/en>

⁸¹ 168 to date, including the EU and its 27 Member States.

⁸² Art 13, Framework Convention on Tobacco Control.

⁸³ The food industry has claimed for years that if children who watch a lot of television are getting fat, it is due to their insufficient levels of physical activity, rather than to its intensive marketing of unhealthy foods. Even if sedentary lifestyles do play a role in the increase of obesity, this explanation nonetheless appears somewhat simplistic.

⁸⁴ For a review of the evidence, see in particular Harris, J, Pomeranz, J, Lobstein, T and Brownell, K, ‘A Crisis in the Marketplace: How Food Marketing Contributes to Childhood Obesity and What Can Be Done’ (2009) 30 Annual Review of Public Health 211 CrossRefGoogle Scholar.

⁸⁵ Global Strategy on Diet, Physical Activity and Health (Geneva, WHO, May 2004), para 40(3): ‘[F]ood advertising affects food choices and influences dietary habits. Food and beverage advertisements should not exploit children’s inexperience or credulity. Messages that encourage unhealthy dietary practices or physical inactivity should be discouraged, and positive, healthy messages encouraged. Governments should work with consumer groups and the private sector (including advertising) to develop appropriate multisectoral approaches to deal with the marketing of food to children, and to deal with such issues as sponsorship, promotion and advertising.’

⁸⁶ COM(2007) 679 final. ‘As far as advertising and marketing is [sic] concerned, it has to be ensured that consumers are not misled, and that especially the credulity and lacking media literacy of vulnerable consumers and, in particular children, are not exploited. This regards in particular advertising for foods high in fat, salt and sugars, such as energy-dense snacks and sugar-sweetened soft drinks, and the marketing of such products in schools’: COM(2005) 637 final, para V.1.2.

⁸⁷ Art 9(2) of Directive 2010/13/EU, [2010] OJ L95/1.

⁸⁸ On the EU’s obesity prevention strategy, and the failure of the EU to deal convincingly with the exposure of children to food marketing more specifically, see Garde, A, EU Law and Obesity Prevention (The Hague, Kluwer Law International, 2010) ch 5Google Scholar. For sceptical views on the reliance of public authorities on self-regulatory standards to curb food marketing to children, see C Hawkes, ‘Self-Regulation of Food Advertising: What It Can, Could and Cannot Do to Discourage Unhealthy Eating Habits Among Children’ (2005) British Nutrition Foundation: Nutrition Bulletin 374; see also Ludwig, D and Nestle, M, ‘Can the Food Industry Play a Constructive Role in the Obesity Epidemic?’ (2008) 15 Journal of Amerian Medical Association 1808 CrossRefGoogle Scholar, and Sharma, L, Teret, S and Brownell, K, ‘The Food Industry and Self-Regulation: Standards to Promote Success and Avoid Public Health Failures’ (2010) 100 American Journal of Public Health 240 CrossRefGoogle ScholarPubMed.

⁸⁹ For details, see <www.ofcom.org.uk/consult/condocs/foodads_new/>, accessed 12 July 2010.

⁹⁰ Resolution WHA63.14. Available at <www.who.int/dietphysicalactivity/marketing-food-tochildren/en/index.html>>, accessed 12 July 2010.

⁹¹ Recommendation 6.

⁹² Available at <www.eu-pledge.eu>, accessed 12 July 2010.

⁹³ Reported in the PolMark Report published in February 2010. The PolMark Project (PolMark standing for ‘Policies on Marketing Food and Beverages to Children’) has received €390,700 from the EU: <polmarkproject.net>, accessed 12 July 2010.

⁹⁴ Available at <www.afgc.org.au/industry-codes/advertising-kids.html>, accessed 12 July 2010.

⁹⁵ Available at <www.ofcom.org.uk/consult/condocs/foodads_new/>, accessed 12 July 2010.

⁹⁶ Irwin Toy Ltd v Attorney General of Quebec [1989] 1 SCR 927.

⁹⁷ On the US debate, see Ramsay, I, Advertising, Culture and the Law (London, Sweet & Maxwell, 1996 Google Scholar), in particular the chapter on ‘Capitalism, Advertising to Children and the First Amendment’; J Pomeranz, ‘Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate’ (2010) Journal of Law, Medicine and Ethics 98. On the situation in the US and in Canada, see Jeffery, B, ‘The Supreme Court of Canada’s Appraisal of the 1980 Ban on Advertising to Children in Quebec: Implications for “Misleading” Advertising Elsewhere’ (2006) 39 Loyola Law Review 237 Google Scholar.

⁹⁸ Ramsay, I, Advertising, Culture and the Law (London, Sweet & Maxwell, 1996)Google Scholar.

⁹⁹ This does not address the problems associated with the exposure of children to food marketing during programmes which are not classified as children’s programmes but which nonetheless are viewed by many children. This consideration is important in light of the fact that a large proportion of the time children spend watching television is outside designated children’s viewing times (70% in the UK, for example, according to Ofcom’s calculations).

¹⁰⁰ 44 Liquormart v Rhode Island (1996) 517 US 484. In this case, the US Supreme Court invalidated a total ban on advertisements providing information about the prices of alcoholic drinks. As part of its assessment, the Court clearly stated that advertising bans amounted to the manipulation of consumer choices by keeping them ignorant (517 US 484, 522). This statement reinforces the position which the Court had adopted in its earlier decision in Virginia Pharmacy Board v Virginia Consumer Council (1976) 425 US 748, in which it had held that if the State was free to require whatever professional standards it wished of pharmacists, and might subsidise them or protect them from competition in other ways, it might not do so by keeping the public in ignorance of the lawful terms that competing pharmacists were offering, and that the State could not suppress the dissemination of concededly truthful information about entirely lawful activity for fear of that information’s effect upon its disseminators and recipients. For a comparison of this case with Gourmet, see Biondi, above n 75.

¹⁰¹ Lorillard Tobacco Co et al v Reilly, Attorney General of Massachusetts, et al (2001) 533 US 525. In this case, the question arose of the compatibility with the First Amendment of the regulations introduced by the state of Massachusetts restricting tobacco advertising and sales practices intended to recruit children as new customers. In particular, the regulations restricted outdoor advertising, point of sale advertising and certain sale practices (retail sales transactions, mail transactions).

¹⁰² See the McDonald’s interview of the champion on 18 August 2008 after he had won eight gold medals, in which he stated that his favourite food was a double cheeseburger and fries, avail able at <www.youtube.com/watch?gl=FR&v=pCWpkB45je0>, accessed 12 July 2010.

¹⁰³ The technique has proven so effective that public authorities have started to use cartoon characters to promote healthy eating and physical activity to children. See, eg, the use of the Childhood Obesity Prevention clip featuring Shrek, posted on You Tube by the Ad Council, a private, non-profit organisation which produces, distributes and promotes public service campaigns on behalf of non-profit organisations and government agencies in the USA in areas such as improving the quality of life for children, preventative health, education, com munity well-being, environmental preservation and strengthening families, available at <www. youtube.com/watch?v=r-zEDbl04NY>, accessed 12 July 2010. For an analysis of the use of licensed characters in food marketing to children, see Harris, J, Schwartz, M and Brownell, K, ‘Marketing Foods to Children and Adolescents: Licensed Characters and Other Promotions on Packaged Foods in the Supermarket’ (2009) 13 Public Health Nutrition 409 CrossRefGoogle ScholarPubMed.

¹⁰⁴ Jeffery, above n 97; Pomeranz, above n 97.

¹⁰⁵ The Framework Convention on Tobacco Control recognises that ‘cigarettes and some other products containing tobacco are highly engineered so as to create and maintain dependence, and that many of the compounds they contain and the smoke they produce are pharmacologically active, toxic, mutagenic and carcinogenic, and that tobacco depen dence is separately classified as a disorder in major international classifications of diseases’ (Preamble).

¹⁰⁶ Standish-Parkin v Lorillard Tobacco Co et al (2004) 12 AD3d 301, 786 NYS2d 13.

¹⁰⁷ The results of the consumer survey carried out in 2008 by the European Union Food Information Council (EUFIC) confirm that higher socio-economic status impacts positively upon the search for nutrition information and the level of nutrition knowledge: Grunert, K, Fernández-Celemín, L, Wills, J, Storcksdieck, S and Nureeva, L, ‘Use and Understanding of Nutrition Information on Food Labels in Six European Countries’ (2010) 18 Journal of Public Health 261 CrossRefGoogle ScholarPubMed.

¹⁰⁸ Stress and habit formation also impede the ability to resist temptation.

¹⁰⁹ Foresight Project Report, Tackling Obesities: Future Choices (London, Government Office for Science, October 2007) 64 Google Scholar.

¹¹⁰ D King, Chief Scientific Adviser to the UK Government and Head of the Government Office for Science, ibid, Foreword. See also Brownell, K, Kersh, R, Ludwig, D, Post, R, Puhl, R, Schwartz, M and Willett, W, ‘Personal Responsibility and Obesity: A Constructive Approach to a Controversial Issue’ (2010) 29 Health Affairs 378 CrossRefGoogle ScholarPubMed.

¹¹¹ At EU level, see in particular the Commission’s White Paper laying down a strategy for Europe on nutrition, overweight, and obesity related health issues, COM(2007) 279 final. In the US, the idea that the Government should support healthy choices is slowly gaining ground: see White House Task Force on Childhood Obesity, Solving the Problem of Childhood Obesity within a Generation, Report to the President, 11 May 2010, <www.letsmove.gov/tfco_fullreport_may2010.pdf>.

¹¹² Eg, the costs attributed to overweight and obesity throughout the 25 EU Member States (without Bulgaria and Romania) have been estimated at €81 billion—an amount which is bound to increase given rising obesity trends: Impact Assessment Accompanying the Obesity Prevention White Paper of 30 May 2007, SEC(2007) 706/2, 34. In the US, medical spending on adults that was attributed to obesity amounted to approximately $147 billion in 2008: White House Task Force on Childhood Obesity, above n 111, 3.

¹¹³ Art 4(2).

¹¹⁴ 44 Liquormart v Rhode Island (1996) 517 US 484.

¹¹⁵ The British High Court has arguably struck such a balance in its judgment in R v British American Tobacco and others [2004] EWHC 2493 (Admin).