Who: The French National Association for the Prevention of Alcoholism and Addiction (ANPAA) and Kronenbourg
When: 20 May 2020
Alcohol advertising is highly regulated in France and the ANPAA has always been very responsive to the advertising practices of alcohol brands. In October 2015, the ANPAA brought an action against Kronenbourg claiming that several advertisements and promotional contests for Grimbergen beer were illegal under French laws.
The advertisements and the promotional contest were either:
- using imagery conveyed in certain television series, such as Game of Thrones; or
- promoting the legendary origin of Grimbergen by associating the alcoholic beverages with the Phoenix, a legendary animal with exceptional powers.
In France, advertising for alcoholic beverages is strictly regulated by the Loi Evin, which restricts the content of alcohol ads and the advertising media that can feature such ads. In addition, Article L. 3323-4 of the French Public Health Code states that:
- Authorised advertising of alcoholic beverages shall be limited to the indication of the degree of alcohol by volume, the origin, name and composition of the product, the name and address of the manufacturer, agents and distributors, and the method of preparation, the conditions of sale and the manner of consumption of the product;
- Advertising may include references to the territory of production, the distinctions obtained, the appellations of origin; and
- Advertisements may also include objective references to the colour, the olfactory and gustatory characteristics of the product.
In this case, the question was therefore whether the requirement of objectivity, applying to the product colour, olfactory and gustatory characteristics, also had to be met by the other ad references, such as the production territory.
In December 2018, the Paris Court of Appeal had deemed the ads compliant with French advertising rules. Indeed, the Court considered that the origin of the product, its name or its composition could be approached in a hyperbolic way, allowing for creativity in the advertising message. The requirement of objectivity was, therefore, limited to the colour and the olfactory and gustatory characteristics of the product.
On 20 May 2020, the French Court of Cassation overturned the court of appeal decision and reinforced the strict application of the Loi Evin, deciding that the condition of objectivity applies not only to “references to the colour, the olfactory and gustatory characteristics of the product” but to all indications and references listed above.
Why this matters:
All the elements of an advertisement for alcoholic beverages must therefore be analysed in the light of this strict interpretation of the Loi Evin.
The French Court of cassation’s decision is interesting at three levels:
- It indirectly confirms the possibility to run promotional contests for alcohol brands in France,
- It specifies that all indications and references provided for in Article L. 3323-4 of the French Public Health Code must be of an objective and informative nature,
- It questions the possibility for advertisers to develop their creativity and fantasy in advertisements for alcoholic beverages.