On February 13, 2022, the popular initiative “Yes, to the Protection of Children and Young Adults from Tobacco Advertising (No Tobacco Ads for Children and Young Adults)” reached the necessary majority for approval in Switzerland. The goal of the popular initiative was to prohibit tobacco advertisements wherever they are visible to children and young people — for example, in the media, on billboards, on the internet, in movie theaters, at newsstands, or at public events. Swiss voters approved the initiative by a vote of 56.61%–43.39%. A majority of 15–8 in favor was also reached in the cantons (Swiss states). To be accepted, most popular initiatives that aim to amend the Constitution require majority approval by both the voters and the cantons. (Federal Constitution of the Swiss Confederation art. 139, para. 5 in conjunction with art. 142, para. 2.) Voter turnout was 44.23%.
Background to the Popular Initiative
On December 12, 2019, the “No Tobacco Ads for Children and Young Adults Initiative” was officially submitted to the Federal Council, the Swiss government. In its official explanation regarding the initiative, the Federal Council agreed that children must be protected from health risks arising from smoking. (Popular Vote of 13 February 2022 — Explanations by the Federal Council at 32.) However, in the Council’s opinion, the proposed amendment went too far. The government therefore endorsed an indirect counterproposal submitted by the Federal Assembly (parliament).
The Swiss parliament and the Federal Council contended that approving the popular initiative would adversely affect economic freedom. Tobacco advertising would remain permissible only in a few places that young people do not have access to. They feared that banning such advertising even for smaller events would lead to financial losses for organizers of cultural or sport events. (Explanations at 32–33.)
Content of the Popular Initiative
The popular initiative wanted to amend article 118 of the Swiss Constitution, which codifies obligations of the federal government to protect public health. The proposed text specifies that the federal government must prohibit any kind of advertising for tobacco products that reaches children and young adults. The initiative set a deadline of three years for passing implementing legislation. In addition, the popular initiative sought to amend article 41 of the Swiss Constitution, which describes political goals for the federal and cantonal governments. Article 41, para 1, letter g already includes the duty to support children and young people in their development. The popular initiative intended to add that their health should be fostered.
In general, the organizers of the popular initiative demanded more consistent protection of children and young adults from the health risks arising from smoking, in particular when smoking is started at a young age. They referred to empirical studies that state that advertisements for tobacco products and smoking among young people are directly linked.
Content of the Indirect Counterproposal
The indirect counterproposal supported by the government consisted of a new Tobacco Products Act. The act would have established a uniform nationwide minimum age of 18 years for purchasing tobacco products and e-cigarettes. Currently, 15 cantons set the age limit at 18 years, while nine cantons set it at 16 years, and two have no regulation at all. (Explanations at 33.) In addition, tobacco advertisements would have been prohibited in movie theaters and on billboards, but not in the media, on the internet, or at newsstands as long as the advertisements were not directed at minors. Tobacco companies would still have been able to sponsor local but not international events in Switzerland.
Constitutional Amendment Procedure
Popular initiatives that seek to partially revise the Swiss Constitution and that succeed in gathering the required 100,000 signatures are put to a vote. (Constitution art. 139, para. 1.) If the initiatives make a concrete proposal, they require majority approval by both the voters and the cantons. The Federal Assembly may submit a counterproposal to the popular initiative, as it did with regard to the present initiative. (Art. 139, para 5.) It is called an “indirect” counterproposal because it does not itself aim to amend the Constitution. In the present case, the parliament proposed adopting a new federal law, the Tobacco Products Act. Because it is a regular law, such an act may be passed by the Federal Assembly without being subject to a mandatory referendum. (Art. 140.) However, federal laws may be challenged by an “optional referendum” if valid signatures from 50,000 citizens are submitted within 100 days of the official publication of the enactment of the law. (Art. 141.)
On January 20, 2022, the deadline to submit an optional referendum to the Tobacco Products Act expired, and the act can therefore enter into force at a time to be determined by the Federal Council. However, as the popular initiative was successful and needs to be implemented in the Constitution (Federal Act on the Federal Assembly art. 99), the Tobacco Products Act must be changed accordingly to align with the amended Constitution.
Prepared by Friederike Loebbert, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist