France is deemed to have adopted one of the strictest regulatory schemes regulating advertisement of alcoholic beverages (Law n° 91-32 dated January 10, 1991, the so-called “Evin Law”). As if this legal framework was not restrictive enough, French Courts tend to adopt the most restrictive interpretation possible, thus sometimes going beyond the letter of the law.
In a final decision rendered on July 3, 20132, the French Supreme Court confirmed, once again, this trend, but from an unseen perspective. Indeed, in this specific case, the mechanism of viral propagation that characterizes social networks such as Facebook, for the advertising for alcoholic beverages, was considered illegal.
The Ricard Company had launched a promotional multimedia campaign entitled “Un Ricard, des rencontres” (“a Ricard, various encounters”) in order to promote the famous aniseed-flavored liqueur “Ricard”. Thanks to a mobile application, called Mix Ricard Code, requiring a Facebook account, Facebook users could watch a promotional video and collect passwords that gave them access to cocktail recipes based on Ricard, which they could share on their Facebook wall.
The National Association for Prevention of Alcoholism and Addiction (ANPAA) obtained, in the frame of summary proceedings, a ban on such campaign.
Upon notice of appeal lodged by the Ricard company, the Paris Court of Appeals considered that the slogan “a Ricard, various encounters” did not not relate to the mere mix of aniseed and other ingredients, but that, thanks to the ambiguity of the term used, it constituted “a direct incentive to drink Ricard in order to experience pleasant moments” and thus could not qualify as one of the mentions authorized pursuant to Article L.3323-4 of the Public Health Code and exhaustively listed by French law 3.
Furthermore, the Court adopted a more severe position than the first instance Judges by considering that the graphical representation of a range of colors reminiscent of clouds and evocative of the ingredients added to Ricard (water, ice, grenadine, mint) was illegal since it aimed at giving a positive image of the drink, associated with lightness and escape.
Similarly, the hash sign (#) --used in the frame of the promotional campaign, through the titles “Encounter # 01 Ricard/water”, “Encounter # 03 Ricard/ice” or “Encounter # 6 Ricard/mint”-- was not considered as authorized, on the grounds that this hash sign “in association with a number which signification is incomprehensible”, necessarily aimed at catching the attention of young consumers, keen on new technologies.
The graphical representations of the advertisement campaign and the correlated promotional video were considered as a violation of the “Evin Law”, since the illicit elements were magnified through an “esthetic composition” and a “seductive music”.
More interestingly, the Paris Court of Appeals --confirmed by the Supreme Court-- ruled on the lawfulness of the mobile applications developed and made available to the public by the Ricard Company.
Quoting the provisions of Article L.3323-2-9° of the French Public Health Code, pursuant to which authorized advertising on on-line communication services, should not, by its nature, its presentation or purpose, appear as mainly addressed to young people, nor prove intrusive, the Judges upheld:
- that the use of Facebook did not necessarily imply that the application was primarily addressed to young people;
- however, that, in this specific case, the use of a social network qualified as intrusive advertising, since it allowed the Ricard Company to spread, via the Facebook user, unsolicited messages to the user’s friends, encouraging them to download the application, without any mention of the legal health warnings, in a manner which was judged as “unsolicited, unexpected and systematic”. The mobile application was therefore considered illegal in this respect.