The Legality of Banning Fossil Advertising

The Legality of Banning Fossil Advertising
By prof. dr. Ingo Venzke and dr. Laurens Ankersmit - University of Amsterdam
Published in the European Law Blog | Also downloadable in pdf

After concerns about the legal possibility of a fossil ad ban, authors have examined if a ban on fossil ads is legally possible in both a Dutch and EU-context. After looking closely at EU internal market law, free movement of goods, fundamental human rights and consumer law their conclusion is: yes, a ban on fossil ads is "is perfectly legal. Stronger still, the ban pursues positive legal commitments upheld by both the EU and the Netherlands."

Reason for this study was the reaction of the climate minister of the Netherlands to a report of behavioural scientists that concluded that a ban on fossil ads is necessary, albeit 1insufficient on its own. In a reaction to the study, the minister questions the legality of a fossil ad ban in relation to EU internal market rules and human rights.

The authors of "The legality of banning fossil ads" conclude their paper:

"Regulations governing advertising, including their total or partial ban, are a staple of public policy. Tobacco advertising is just one example that has been extensively scrutinised in relation to both the internal market—shaped by the fundamental freedoms of EU law— and the protection of fundamental rights—guaranteed by the ECHR in combination with domestic constitutional law. Should the EU eventually take action in this domain, it would also related to the Charter of Fundamental Rights. The main takeaway from the case-law is that the regulation of advertising is not only common but also lawful. It either does not amount to an infringement at all, or if it does, it can be justified on public policy grounds.

Given this understanding, we find ourselves pondering why the notion circulates within the ministry that an advertising ban would be illegal. Could it stem from a form of ‘regulatory chill’ and an internalised aversion to risk? Is it possible that civil servants are so concerned about the (as we have demonstrated, misperceived) risk of violating internal market laws, thus impeding genuine regulatory actions? Or is it a classic case of savvy industry lobbying? We do not know. However, what we do know is that a fossil ban is a necessary, albeit insufficient, measure in the urgent quest to curb climate change—and importantly, it is perfectly legal. Stronger still, the ban pursues positive legal commitments upheld by both the EU and the Netherlands."