Promoting the Apocalypse? The Legality of a Ban on Advertising for Fossil Fuels and Other Carbon-intensive Products under European Law

Abstract

Climate policy requires a sharp and rapid reduction of greenhouse gas emissions, which are mainly caused by fossil fuels. Advertising that promotes fossil fuels and other carbon-intensive products conflicts with this objective. It normalizes harmful consumption patterns and enables producers to manipulate public discourse in order to derail or delay the energy transition, for example by spreading misinformation, deflecting corporate responsibility and promoting false solutions. For these reasons, there are increasing calls for a fossil fuel advertising ban along the lines of the tobacco advertising ban, either on the European or the national level.

This article evaluates the legality of such bans under European law. It first identifies the regulatory objectives pursued by a fossil fuel advertising ban. These are the protection of health, the environment, consumers and the democratic process. Second, it provides a brief overview over existing advertising restrictions in the EU. Third, it assesses the parallels between tobacco and fossil fuel advertising, and finds that they are broadly comparable. Fourth, it provides an overview over the legal framework of tobacco advertising regulation. Fifth, it addresses the legality of a fossil fuel advertising ban under European law from different perspectives, namely the competence of the EU and the Member States to enact such a ban, its effects on the freedoms of commercial speech and to conduct a business, and the legality of a national ban under internal market law. It will be concluded that a fossil fuel advertising ban will likely conform to the requirements of European law, especially if it is modeled after the tobacco advertising ban.

Keywords: fossil fuel advertising, tobacco advertising, European law, climate crisis

JEL Classification: K32