Advertising for alcoholic beverages: is the “Cuba made me” campaign illegal?

A judgment rendered by the Paris Court of Appeal in a dispute between an association fighting alcoholism and a company selling alcoholic products on two advertisements for a famous brand of rum makes it possible to recall the criteria for the legality of an advertisement for alcoholic beverages.

In this case, the ANPAA had sued the company PERNOD RICARD France for having published two advertisements in favour of its brand of rum “Havana Club” in the magazine M – le magazine du Monde and on a display in the mouths of the Paris metro, which it considered illite.

As a reminder, the concept of advertising is not defined in the text of the Evin law.

Case law defines it not as to its purpose, which is irrelevant, but as to the effect produced:

“Advertising within the meaning of Articles L. 3323-2, L. 3323-3 and L. 3351-7 of the Public Health Code means any act in favour of an organization, a service, an activity, a product or an article having the effect, whatever the purpose, of recalling an alcoholic beverage. “(Cass. crim. 3 November 2004, No. 04-81123).

Law No. 2016-41 of 26 January 2016 introduced an article L. 3323-3-1 in the Public Health Code excluding certain messages from the notion of advertising or propaganda subject to the alcohol advertising regime. According to this article, “Content, images, representations, descriptions, comments or references relating to a production region, toponymy, reference or geographical indication, terroir, itinerary, production area, know-how, history or cultural, gastronomic or landscape heritage related to an alcoholic beverage with an identification of quality or origin, or protected under Article L. 665-6 of the Rural and Maritime Fisheries Code, shall not be considered as advertising or propaganda within the meaning of this chapter. »

Article L. 3323-2 of the Public Health Code authorises “propaganda or advertising, direct or indirect, in favour of alcoholic beverages whose manufacture and sale are not prohibited“.

Article L. 3323-4 of the Public Health Code states:

« Permitted advertising of alcoholic beverages is limited to the indication of the degree by volume of alcohol, the origin, the name, the composition of the product, the name and address of the manufacturer, agents and agents as well as the method of preparation, the methods of sale and the mode of consumption of the product.

This advertising may also include references relating to the production terroirs and the distinctions obtained (…).

The packaging can only be reproduced if it conforms to the preceding provisions (chapters 1 to 3).

Any advertising for alcoholic beverages, with the exception of commercial circulars intended for persons acting in a professional capacity or who are the subject of nominative shipments as well as posters, tariffs, menus or objects inside the points of sale of a specialized nature, must be accompanied by a health message specifying that the abuse of alcohol is dangerous for health »

The authorised media are referred to in Article L. 3323-2 of the Public Health Code, which provides:

“Propaganda or advertising, direct or indirect, for alcoholic beverages whose manufacture and sale are not prohibited are authorized exclusively:

• 1° In the written press, excluding publications intended for young people, defined in the first paragraph of Article 1 of Law No. 49-956 of 16 July 1949 on publications intended for young people;
• 2. By sound broadcasting for the categories of radios and in the time slots determined by decree in the Council of State;
• 3° In the form of posters and signs subject to Article L. 3323-5-1; in the form of posters and objects inside the points of sale of a specialized nature, under conditions defined by decree in the Council of State;
• 4. In the form of messages, commercial circulars, catalogues and brochures sent by producers, manufacturers, importers, traders, concessionaires or warehousekeepers, provided that these documents contain only the information provided for in Article L. 3323-4 and the conditions of sale of the products they offer;
• 5° By inscription on the vehicles used for the normal operations of delivery of the beverages, since this inscription only includes the description of the products as well as the name and address of the manufacturer, agents or agents, to the exclusion of any other indication;
• 6. In favour of traditional festivals and fairs devoted to local alcoholic beverages and within them, under conditions defined by decree;
• 7° In favour of museums, universities, brotherhoods or oenological initiation courses of a traditional nature as well as in favour of presentations, tastings, under conditions defined by decree;
• 8° In the form of an offer, free of charge or for a fee, of objects strictly reserved for the consumption of beverages containing alcohol, marked in their names, by the producers and manufacturers of these beverages, on the occasion of the direct sale of their products to consumers and distributors or on the occasion of the tourist visit of the places of manufacture;
• 9° On online communications services excluding those which, by their character, presentation or purpose, appear to be mainly intended for young people, as well as those published by sports associations, societies and federations or professional leagues within the meaning of the Sports Code, provided that the propaganda or advertising is neither intrusive nor interstitial. »

Article L. 3351-7 of the Public Health Code provides that:

“Violations of the provisions […], relating to the advertising of alcoholic beverages, are punishable by a fine of 75,000 euros. The maximum fine may be increased to 50% of the amount spent on the illegal operation.

In the event of recidivism, natural persons convicted of the offence referred to in the preceding paragraph may incur the additional penalty of prohibition, for a period of five years, from selling the alcoholic beverage that was the subject of the illegal operation.

The court may, taking into account the factual circumstances, decide that the legal persons are wholly or partly jointly and severally liable for the payment of the fines imposed on their directors or their servants “.

Violations of the provisions on the promotion of alcoholic beverages may therefore lead to the sanction of the company but also of the natural persons who participate in this same promotion, to pecuniary fines and prison sentences, both on the basis of deceptive commercial practices and on the basis of violations of the mandatory rules of advertising law relating to alcoholic beverages.

In this case, the first disputed photograph depicted a man standing behind a bar or counter, holding in his right hand a bottle, placed on the counter, of “Havana Club 7”. The man does not smile and keeps a serious look. Next to the bottle, on the counter, are cut limes, a lemon squeeze, a decanter, another half-full bottle without a label, and a glass filled with the cocktail. Behind the man hangs on the wall a framed map of Cuba and a license plate, both of which are partially hidden by the bartender’s silhouette. Bottom on a shelf are also bottles of alcohol. Much of the shot is blurred.

On the left side of the poster is the “Havana Club” logo and below the inscription in white capital letters and very large letters “CUBA MADE ME *”. The asterisk at the bottom left refers to its small print translation “*Havana Club ‘ Cuba made me”.

The second advertisement reproduces a snapshot of a man standing behind a bar, right hand and right forearm resting on the counter, with a bottle of “Havana Club 3” and a glass containing a cocktail in front of him.

At the bottom right is the inscription in capital letters but in small print “COCKTAIL DAIQUIRI MADE BY [P], BARTENDER AT the SILVIA BAR IN HAVANA”.

The AAAA considered that the contentious advertisements showed the place of consumption of the alcoholic beverage Havana Club and that the warm colors used recall the atmosphere of festive evenings, the warm, relaxed and sunny atmosphere of Havana in Cuba. She argued that the bartender appearing on the advertisement cannot be linked to the human factor of an appellation of origin.

However, the Court of Appeal notes that: “The company Pernod Ricard France demonstrates that the indications on each of the two advertisements are real, the two bars being actually located in Havana and the two men appearing there being real bartenders practicing in these places. »

The Court states that: ” The representation of Cuban bars and bartenders directly refers to the geographical origin of the product. However, as the first judges exactly decided, the reference to origin, which includes geographical origin, is authorised by the aforementioned Article L. 3323-4. Since the alcoholic drink “rum” is not specifically Cuban but may have multiple origins (French-speaking islands such as Martinique, Guadeloupe, Marie-Galante and Haiti, Spanish-speaking countries such as Venezuela, Cuba, Dominican Republic, Nicaragua, Puerto Rico, Colombia and Guatemala, English-speaking countries such as Barbados, Bermuda, Anguilla, Trinidad and Tobago, Demerara region in British Guiana and Jamaica), it is in a lawful manner and therefore in compliance with the provisions of the aforementioned Article L. 3323-4 that the two contested advertisements present the consumer with the origin of said rum to distinguish it objectively from the others. This indication is therefore important for the complete information of the consumer on the origin of the Havana Club product, Cuban rum. »

The functions of this Committee are: the mode of consumption is presented here in an objective and informative way: the “Havana Club” rum can be used as a basis for making a cocktail. This is a mode of consumption that does not exclude other ways of consuming this drink. The second advertisement also gives precise information about the cocktail on the photo, namely the “Daiquiri”, which is of Cuban origin. »

It further notes that ” regarding the terms of sale, the presentation of the alcoholic beverage in a bar is only a non-exclusive example, the Havana Club beverage can obviously be sold in other places. Advertising only presents a place and a mode, both of consumption and sale of this drink, in a bar and in the form of a cocktail. This presentation is informative and descriptive. »

Finally, the Court held that: ” the general impression that emerges from these two advertisements is neither festive, neither of the two bartenders smiling or moving, the first “[T]” also wearing a serious face that can not be described as friendly, nor particularly warm or attractive. If the ANPAA strongly criticizes the use of “warm” colors that would invite consumption, it is more the dark character that hits the shot with “[T]”. Regarding the poster with “[P]”, the bartender’s posture is also very static. The brightness and sharpness of the photograph are increased compared to the bartender’s shot “[T]” insofar as on the one hand the outside of the bar is visible and on the other hand the photographer has not added any disturbing effect to his shot. The atmosphere emanating from this second visual does not encourage excessive alcohol consumption, as argued by the ANPAA. »

It concludes that the two advertisements comply with the provisions of Article L. 3323-4 of the Public Health Code and are therefore lawful, and therefore confirms the judgment that had dismissed the ANPAA of all its claims.

This decision is interesting insofar as it identifies two criteria for making an advertisement for an alcoholic beverage lawful, namely that it can be staged in a place of sale or usual consumption, without the general impression being festive.

A stop full of teaching for advertisers, in an area where expression is strictly framed.

Paris Court of Appeal, Pole 5 Chamber 11, 14 April 2023, No. 21/07299

Guillaume Gouachon

Associate Lawyer