Särskild måttfullhet vid marknadsföring av tobaksprodukter - En analys av huruvida underrättsdomstolarna bedömer begreppet särskild måttfullhet utifrån lagens syfte

Sammanfattning: The concept of particular moderation has governed the marketing of tobacco products since 1975. As a general rule, marketing of tobacco products is forbidden. One of the exceptions to this general rule is that commercial messages within shops may occur as long as they are not reaching out to people, intrusive or inciting the use of tobacco. In addition, these commercial messages must, in order to be allowed, be regarded as particularly moderate. The requirement for special moderation is that marketing of tobacco product should be based on relevance, objectivity, and strong restraint. The intention of the regulation of tobacco marketing is a desire to reduce tobacco consumption. Legislative history to The Tobacco Act takes great account of the fact that young people should not be encouraged to consume tobacco. When assessing whether the requirement for special moderation is met, the health risk of using tobacco and development in society needs to be considered. Furthermore, in order to be legal, the commercial message must not be either eye-catching or particularly prominent. This thesis examines whether the Patent and market Court interpret the concept of special moderation in accordance with the intention of The Tobacco Act. The intention of this law is, among other things, to limit health risks associated with the use of tobacco. The courts have only in isolated cases made an assessment that would be contrary to the intention of the law. The explanation can be that the legislative history of The Tobacco Act does not clarify how the law related to all situations that have been brought up to date in practice. The courts differ, in particular, from the requirement as to whether a different moderation assessment should be made for different products and whether a different assessment should be made for electronic outlets. Without clarification of the concept behind the law, it would be difficult for the court to judge according to the intention of the law.