Business Law

Court bans Marlboro “Maybe” tobacco advertising campaign

Since 2011, the Marlboro’s controversial ‘Maybe’ tobacco advertising campaign has been causing a stir. Now the High Administrative Court of Bavaria has banned the campaign.

Ban upheld on Marlboro “Maybe” tobacco advertising campaign ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Ban upheld on Marlboro “Maybe” tobacco advertising campaign ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Marlboro: Just a “Maybe” without cigarettes

The High Administrative Court of Bavaria has prohibited the tobacco company, Philip Morris, from displaying its controversial Marlboro “Maybe” advertising campaign. All elements of the tobacco advertising campaign have been banned, including posters in public places and advertising in cinemas (decision from 11th December 2013, case ref. M 18 S 13.4834).

The ruling follows a decision by the Bavarian state authorities which banned the campaign nationwide in October 2013.

The core message from the “Maybe” campaign is that people who do not smoke are just a maybe; whereas those who reach for a cigarette are cooler and more attractive “doers” or a “Be”.

It was initially thought that the aim of this campaign was to appeal to young people. This assumption is supported by the fact that the images used in the campaign include a teenager playing a guitar or a young woman smiling, accompanied by the slogans: “Maybe never wrote a song” or “Maybe never feels free”.

Danger to young people

The state authorities determined that the campaign was particularly capable of convincing adolescents to smoke.

Philip Morris, located in the district of Munich, refused to accept the state authorities’ decision, claiming that it was devoid of any legal basis. On the contrary, Philip Morris argued, that the campaign was aimed at adults in an attempt to influence their choice of cigarette brand.

As the authorities declared an immediate ban on the advertising campaign, the producer applied to the High Administrative Court of Bavaria for an injunction. However, the application was unsuccessful.

The court accepted the authorities’ argument that the campaign was well suited to influencing young people between the ages of 14 and 21 to smoke. The campaign therefore violated § 22(2) first sentence, no. 1b of the Provisional Tobacco Act.

Final decision

The rejection of this claim for an injunction may not be the end of the matter. It remains to be seen whether Philip Morris will bring a claim in main proceedings. Also, Philip Morris has the option of appealing the ruling within the next two weeks.

For now, however, the Marlboro “Maybe” advertising campaign has been snuffed out.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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