Advertising and Alcohol: Trial Judges Declare There is No Need to Get Cranky!

The Versailles Court of Appeal (Ch 3, 3 April 2014 ANPAA/CIVB) upon referral after appeal (Cass, 1st civ, 23 February 2012) rejected the strict interpretation made by the Supreme Court as to the provisions in the Evin Law relating to advertising requirements for alcoholic beverages.

The Versailles Court of Appeal (Ch 3, 3 April 2014 ANPAA/CIVB) upon referral after appeal (Cass, 1st civ, 23 February 2012) rejected the strict interpretation made by the Supreme Court as to the provisions in the Evin Law relating to advertising requirements for alcoholic beverages.

The Evin law of 10 January 1991, codified in the Public Health Code relates to the fight against smoking and alcoholism through a policy of preventative health care.

Strictly regulating advertising for alcohol in regard to the authorized media allowed as well as its contents. The latter is limited to the indications mentioned in Article L 3323-4 of the Public Health Code, however, it’s specified that the 23 February 2005 Act extended these indications by authorizing, notably, references to designations of origin and allowing “objective references relating to the colour, smell and taste characteristics of the product”.

In this case, the National Association of Prevention in Alcoholism and Addiction (ANPAA) had assigned the Interprofessional Committee of Bordeaux Wines (CIVB) and its advertising agency to obtain the removal of publicity posters featuring scenes with various characters each holding a half full glass of wine, suggesting a tasting among professionals; with the name, the occupation and the location listed next to each person.

The Supreme Court in supressing the judgment of the 2010 Paris Appeal Court, which had validated the posters, used a strict interpretation of the Act in believing that the offending advertisements were designed to “promote an image of friendliness associated with Bordeaux wines inducing consumers partake in the showcased products” and considered that they contained visual references to foreign to the indications listed in article L 3323-4 of the Public Health Codes.

In its remand judgment, the Court of Versailles opposes this strict interpretation returning to the spirit of the Evin Law, holding that “the advertising of alcohol remains lawful in principle; the law is merely there with the aim of preventing excessive consumption, and to limit the methods.

However, by nature, any advertising may not have the objective of either modifying the behaviour of the consumer to buy the advertised product, or of inducing the desire to buy and consume said product. The presentation of the product for promotion presupposes that said product, and its consumption, are presented in a favourable light and attractive way, the creativity of the advertisers is only being limited and not totally suppressed. “.

The Court of Versailles first held as lawful the representation of the persons selected as members of the chain production or marketing for Bordeaux wines (merchant, winemaker, etc.) by attaching themselves to the concept of designation of origin which expressly refers to the human factor.

It also validated the representation of the professional persons with a half full glass in hand, as no one is the process of drinking and there is no reference to a friendliness between the consumers, “only the idea of tasting, in small quantities, by professionals” is being suggested, and, moreover, on a neutral background.

Where it found an “undeniable impression of pleasure” emerging from the posters, related to the brilliance of the colour of the wine and satisfied expressions of the professionals, it considered that this impression is inherent to an advertising approach “advertisers cannot obviously be obliged, under the pretext of meeting legal requirements, to present professionals as grumpy, physically unpleasant and apparently sceptical as to the qualities of products with an indefinable colour, in order to avoid any temptation of excess in the consumer.”.

If this decision has the virtue of reminding us that the advertising of alcoholic beverages is in no way prohibited but supervised and should comply with the spirit of the Evin Law for the analysis of advertisements, the fact remains that it also highlights the difficulties and subtleties related to the interpretation of advertising legalities and the resulting insecurity for professionals in this industry and their advertising agencies. 

Regimbeau’s team of specialised Wines & Spirits law is available to advise you and guide you in the protection of your creations and defence of your rights.

Published by

Martine Bloch-Weill

Managing Partner