Commentary on sections Section 2: Prohibition of tobacco advertising
8.This section makes it an offence in the course of a business to publish a tobacco advertisement in the United Kingdom. The section also covers advertising of brandshare products. Essentially anyone who is involved in the commissioning, design, printing, publishing, sale or distribution of such an advertisement could be guilty of an offence. This makes each member of the chain potentially liable, subject to the available exclusions and defences in sections 4, 5 and 6, from the tobacco manufacturer down to those who distribute or sell an advertisement.
9.The Act does not make incidental commentary on smoking or tobacco products an offence. It is not intended that the public at large, journalists etc should be prevented from commenting on tobacco products or that the representation of smoking and tobacco products by those engaged in creative or artistic pursuits (actors, painters, producers etc) should be prohibited.
10.Subsections (1) and (2) include the phrase "in the course of a business" to make it clear that the Act does not apply to individuals acting in a private capacity.
11.Subsection (3) provides that the offence of distributing may be committed by anyone involved in the transmission of a tobacco advertisement by electronic means.
12.Subsection (4) exempts persons who do not carry on business in the United Kingdom from the offence of publishing (or causing publication) where they do so via the internet. This reflects the fact that access to a website cannot be controlled by its originator.