The growing evidence that alcohol marketing contributes to earlier initiation and increased consumption of alcoholic beverages has led to the recommendation that such marketing should be regulated at international, regional and national levels.Reference O’Brien 1 When it was adopted, the 1991 French Loi Evin, named after the then Health Secretary of State who proposed it to Parliament, could rightly be seen as pioneering, as one of the first in the world to regulate alcohol marketing as strictly, and notwithstanding the existence of a powerful wine lobby in the country. To date, it is often cited as a model of successful public health intervention. However, the question arises whether this emblematic example remains fit for purpose over 30 years after its adoption. The debate has been extremely polarized. On the one hand, various civil society organizations have tried to protect the law from erosion, not least the Addictions Association, 2 which has initiated public interest litigation for infringements of the Loi Evin. On the other hand, alcohol manufacturers have called for more freedom of expression and have vividly criticized the Loi Evin for lacking precision, for being applied too strictly and for its ineffectiveness.
After assessing the main components of the Loi Evin and its legislative amendments (1), this short contribution considers the extensive interpretation of its provisions by French courts (2) and the future prospects for a revision of the existing regulatory framework in France (3). Due to space constraints, this contribution does not discuss the complex relationship between European Union and national alcohol marketing rules.Reference Garde, Friant-Perrot, Alemanno and Garde 3
1. The Loi Evin and its Legislative Amendments: The Tension Between Free Commercial Expression and Public Health Protection
The French Parliament adopted the Loi Evin to protect public health from tobacco and alcohol use in 1991, amending the Public Health Code. 4 The general position is that alcohol marketing is allowed in France, whilst tobacco marketing is prohibited. However, alcohol marketing is strictly regulated both in terms of permitted media and in terms of the content of the commercial message. All advertising or other forms of promotion of alcohol must also be accompanied by a health warning. 5
After assessing the main components of the Loi Evin and its legislative amendments (1), this short contribution considers the extensive interpretation of its provisions by French courts (2) and the future prospects for a revision of the existing regulatory framework in France (3).
Compulsory Health Messaging
All promotional messages for alcoholic beverages must be accompanied by a health message that is intended to warn consumers that “excessive alcohol consumption is harmful” and to encourage them to restrict their consumption and “consume in moderation.” 6 In 2010, the French Professional Advertising Regulation Authority 7 adopted a recommendation specifying how the message had to appear in printed media to ensure that it was clear and legible and would not be confused with the commercial communication itself. 8
In February 2005, the Loi Evin was amended by the Disabled Persons Act, requiring the use of either a textual health warning on foetal alcohol syndrome (“the consumption of alcoholic beverages during pregnancy, even in small quantity, can have serious consequences for the health of your child”) or a graphic health warning representing a prohibition sign on which appears a pregnant woman on a red background. 9 This additional requirement has led alcohol manufacturers to promote alcohol free beverages to ensure that they do not lose female consumers during pregnancy.
Mandating health messages to limit the impact of the advertising of unhealthy commodities is a popular regulatory approach in France. Beyond health warnings on tobacco, France was the first country in the world to impose a disclosure requirement on unhealthy food advertisements. 10 Some studies have attempted to determine the effectiveness of alcohol health warnings and have concluded that their impact is more important when these warnings are specific (e.g. for pregnant women), as general messages/warnings tend to be too vague, not sufficiently visible and not renewed often enough to avoid a habituation phenomenon.Reference Dossou, Gallopel-Morvan and Diouf 11
Limiting the Freedom to Promote Alcoholic Beverages on Public Health Protection Grounds
The Loi Evin provides an exhaustive list of the media where alcohol can be promoted: printed press for adults, radio with hourly limits, billboards, posters and displays at points of sale, digital media, including the internet and apps, except if young people are specifically targeted or the advert is surreptitious or hidden (for example, through undisclosed influencer marketing). All other media and settings, which are not listed, cannot promote alcoholic beverages. They include television, cinema, sponsorship of cultural or sports or other events, and placement for alcoholic beverages and brands.
Originally, the list of media prohibiting alcohol marketing was more limited. However, the provisions of the law have been eroded, as a result of legislative reforms which have expanded the list of media where alcohol marketing may be allowed. Alcohol advertising was allowed in public spaces in 1994. 12 The list was further modified to explicitly include digital media in 2009. 13
Nevertheless, whenever alcohol advertising is allowed, the Loi Evin requires that it should be limited to the provision of objective information on the product. 14 It is therefore possible to indicate the alcohol content per volume (this is actually mandated by European Union law), the origin, the name, the composition, the name and address of the manufacturer or its agents, as well as the methods of production, the sale conditions and the use of the product. Following the adoption of another legislative reform in 2005, advertising can also include references concerning production areas and related distinctions, designations of origin and geographical indications, as well as objective references concerning the color, taste or smell of a given product. 15
The Loi Evin did not originally exclude editorials from the definition of advertising and did not require that the brand had to pay for its placement. Therefore, when the actress Scarlett Johansson lent her image to a brand selling alcohol beverages for their global marketing campaign, the Loi Evin prohibited the gossip magazine Paris Match to refer to the event. Several criticisms were then mounted against the Act on the basis that it limited freedom of expression and freedom of the press. In particular, the wine industry, and the Champagne industry more specifically, highlighted the importance of maintaining the French traditional wine culture and providing oenological information without such information being categorized as advertising. This ultimately led to an amendment of the Loi Evin in 2016. This amendment was proposed by Senator Gérard César 16 who emphasized the importance of preserving freedom of expression and freedom of the press. The government and the President of the Republic himself lent their support to this proposal, notwithstanding the objections that the Health Secretary had voiced against it. 17 The amendment included in the Act on the modernization of the public health system has allowed the communication on alcoholic beverages in journalistic, institutional, cultural or tourism editorial pieces. In other words, such communication is allowed on the basis that it relates to protected designations of origin and protected geographical indications and has an objective content (on the region of production, know how, history…) which is distinct from commercial advertising. 18
The rationale for this distinction is precisely to strike a balance between the promotion of a given product or brand and public health imperatives: consumers can be informed on the product and its attributes, but they cannot be incited to consume the product. Needless to say that this distinction is thin and has proven extremely difficult to draw in practice, giving rise to an extensive body of case law.
2. The Judicial Interpretation of the Loi Evin in a Rapidly Changing Media Landscape
Over 30 years after its adoption, the Loi Evin continues to give rise to a rich case law, demonstrating its ability to adapt to a rapidly changing media landscape. We briefly review three main issues that French courts have considered to argue that French courts have, overall, ensured that the Loi Evin could still serve its original purpose of protecting public health from harmful alcohol marketing.
A Strict Interpretation of the Media Where Alcohol Marketing is Permitted
French courts have interpreted strictly the freedom granted to alcohol manufacturers to promote their products. This is particularly true regarding digital media, as the notion of subliminal advertising has been interpreted broadly to restrict the extent to which alcohol companies can promote their products and brands. In particular, courts have ruled that advertising covers both the messages directly promoted by brands themselves, as well as messages forwarded by consumers. In other words, viral marketing falls within the scope of the restrictions on alcohol marketing which the Loi Evin imposes. In particular, the Cour de cassation (the highest court competent to settle points of law arising in private law cases) held in 2013 that the free smartphone app “Un Ricard: Des Rencontres” (“A Ricard: Some Encounters”) inviting viewers to share their cocktail recipes on its Facebook account (via the sharing button “share on my wall”) constituted a form of viral marketing that was prohibited by the Loi Evin. 19
Ultimately, therefore, the interpretation of the media permitted to carry alcohol marketing has been rather strict so that alcohol companies have been left with no option but to rely primarily on billboards, where they have tended to promote beer, and on printed media, where they have tended to promote wine and champagne more specifically. Even then, however, the Paris Court of Appeal ruled that a large cover of the famous historical building of the Hôtel de la Monnaie was not a billboard and could not therefore depict a Heineken “Open your World” advert without infringing the Loi Evin. 20 It similarly held that the letters spread over eight meters on the grass at a rock festival constituting the word Kronenbourg were prohibited by the Loi Evin, rejecting the argument that the purpose of these letters was purely decorative. 21
A Strict Interpretation of the Freedom to Provide Objective Information
French courts have also tended to interpret strictly the requirement of objectivity, further restricting the freedom granted to alcohol manufacturers to promote their products, though the case law has evolved in this respect.
In a few cases, French courts have recognised the need to make allowances to promote advertising creativity. In particular, the Cour de cassation ruled that an attractive background could be used to promote alcohol, 22 and therefore allowed the impression of pleasure the advert facilitated, on the basis that that did not exceed what was necessary to promote the products. 23
More recently, however, we note a stricter interpretation of the dividing line between what is and what is not allowed. In 2020, the Cour de cassation interpreted extensively the requirement of the Public Health Code that only objective information may be included in alcohol advertising. In particular, it ruled that advertising was allowed only if all the information provided in a given advert was objective, beyond those specifically enumerated in the Public Health Code. 24 Similarly, the Paris Court of Appeal ruled that an advert online presenting strong similarities with the cult series Games of Thrones with reference to “territory games” and the slogan “legendary intensity” had none of the informational and objective characteristics required by law. 25 The Cour de cassation has also ruled that any reference to a human behaviour cannot be relied upon in advertising campaigns, whilst the taste properties of the product can. In particular, in its Cabernet d’Anjou decision, it ruled that the slogan “Cabernet d’Anjou: Who dares tell young people that ‘jeunesse’ (‘youth’) does not rime with ‘délicatesse’ (‘delicacy’)?” 26 Ultimately, therefore, French courts have established that every component of the advertisement — both the imagery and the written text used — must guarantee the objectivity that the law mandates.
An Extensive Interpretation of the Notion of Advertising to Cover Both Direct and Indirect Advertising
French courts have also ruled that it was prohibited to promote alcoholic beverages to consumers indirectly through the use of the brand or other distinctive marks (for example any graphic implying an alcoholic beverage or an alcohol brand).
This question has given rise to extensive case law in relation specifically to the sponsorship of sports or musical events. For example, the “pression live” promotional campaign drew on elements characterising the Kronenbourg brand. In particular, it used red and white colours, in a geometric configuration representing the checkerboard one finds on the top of the beer bottles sold by the company. The Court of Appeal of Paris considered this constituted an indirect form of marketing the Loi Evin prohibited. 27
Similarly, the use of an inciting slogan using the name of a brand cannot be used to avoid the prohibition. Therefore, the Paris Court of Appeal ruled against the use of the slogan “Heineken Open your World” on the ground that it was promotional. 28
3. Looking Ahead
Despite the extensive interpretation that French courts have adopted of the restrictions it imposes on alcohol advertising, the Loi Evin contains various loopholes. The problems are further compounded by its lack of effective application, as the number of infringement cases mounted by the Addictions Association demonstrates. 29
Some authors have argued that the legislative reforms have led to the “erosion” of the Loi Evin to the point that it has been denatured and is no longer fit for purpose.Reference Bourdillon 30 Such erosion has proven particularly problematic in digital media. The explicit allowance for alcohol advertising on digital media, following the 2009 amendment of the Loi Evin, has given rise to increased exposure to such advertising. More specifically, the provision prohibiting the specific targeting of minors with alcohol advertising is insufficient to limit the exposure of children and young people to such advertising. This is because minors are exposed to digital media that are not considered to be specifically targeting them, even though they are designed for a mixed audience including them.Reference Gallopel-Morvan, Spilka and Mutatayi 31 The problems are all the more acute as age controls do not work, as French courts have explicitly acknowledged. 32
Moreover, it has become more complex over time to determine what falls within the scope of the Loi Evin, whose amendments have increased the opportunities for the alcohol industry to test the boundaries of what is and what is not allowed. In particular, the alcohol industry has resorted to alibi marketing to increase the appeal of their brands at sports events without referring to any specific products, which would have been unlawful as alcohol sponsorship is prohibited.
These loopholes have prompted calls for a revision of the Loi Evin, particularly in relation to digital media. The Court of Auditors specifically recommended that online marketing, particularly on social media, should be prohibited. 33 However, the prospects of amending the Loi Evin to better protect public health is most unlikely at present, bearing in mind the close ties that the President of the Republic has established with the alcohol industry. During the campaign that led to his re-election on 24 April, Emmanuel Macron promised not to amend the Loi Evin to further limit the scope of lawful alcohol marketing in France. 34
Note
The authors have no conflicts to disclose.
