Who: French national anti-smoking committee (CNCT) and British American Tobacco France (BAT)
Where: France
When: 12 February 2021
Law stated as at: 12 February 2021
What happened:
The CNCT filed a lawsuit against BAT before the Nanterre court. The association considered that the presentation and description of the products (e-cigarettes and liquids) on the company’s website encouraged Internet users to consume them.
The court recalled the applicable rule: online selling of e-cigarettes is legal. It is therefore not possible to ban the website, as requested by the CNCT. However, the presentation and the description of the products on the website cannot incite consumption with advertising arguments or encourage excessive consumption.
The CNCT considered that BAT uses advertising arguments in the description of its products. The flavours of the e-cigarette liquids are presented in a commercial manner: “to make you blush with pleasure” (literal translation of the French expression “rougir de plaisir” which means to become red, embarrassed by an emotion) for the strawberry flavour, or “get ready for the big thrill” for the mint flavour.
The BAT company defended its position in comparison with physical shops: the advertising prohibition does not apply inside specialised e-cigarette shops (in accordance with Directive 2014/40).
Firstly, the Court found that the wording used by BAT does not objectively describe the products and is an “advertising argument”. This wording therefore encourages consumption and is not simply descriptive.
Secondly, the judges specified that it is necessary to distinguish physical sales and on-line sales: if a client is in the physical shop, he already has an intention to buy. Advertising is therefore allowed. However, on internet, the Court considers that an Internet user can visit an online e-cigarette website without an intention to buy. The impact of an advertisement on the Internet is different from the impact of a billboard in a shop.
The judge therefore ordered the removal of all advertising terms identified.
Why this matters:
The decision is particularly interesting because the Court gave general guidelines at the end of the judgment and detailed the mentions relating to the presentation of the vaporization products: a short description (without mentioning any exceptional qualities), the price, the legal requirements. No photo, no sound, no slogan that could present the products as a “source of pleasure”, as being easy to use or to praise the taste qualities.
