The Supreme Court delivered a severe judgment on15 December 2015, abruptly quashing the Paris Court of Appeal judgment of 28 October 2014.
In this case, the French National Anti-Smoking Committee (Comit National contre le tabagisme - CNCT) considered that the cigarillo packaging marketed by the Brazilian Dannemann Society did not comply with the provisions of the Evin Law since it constituted an unlawful advertising of tobacco.
Three elements of the packaging were challenged:
- Eco-Packaging mentioned on the outside of the tobacco packet which promotes the product to the consumer,
- Email address referenced on the packet and on the paper around the cigarillos, enabling consumers to contact the product manufacturer,
- Statements inside of the cigarillo packet and on the inside cover of the packet relating to the history of the Dannemann Company, the tobacco culture and the manufacturing methods specific to these cigarillos, designed to provide total satisfaction in the product.
The Court of Appeal did not follow the CNCT in its analysis, considering that it was not advertising but informative statements not associated to laudatory phrases nor valuing the action of smoking.
The Supreme Court considered however, that the Court of Appeal had disregarded the principle and the texts of the Evin Law.
The Supreme Court rightly points out that "any form of commercial communication is prohibited, whatever the media, even if located inside the tobacco packaging, with the purpose or effect of promoting tobacco or one of its products."
It then applies these texts by considering what constitutes advertising in favour of tobacco:
- The Eco-Packaging reference, which is not mandatory in the framework of the cigarette makers adhesion to the collecting, sorting and recycling of packaging program, in that it associates tobacco to an ecological awareness,
- The email address on both the inside and the outside of the packet,
- The references associating tobacco to an ancient society, the use of products selected according to a certain manufacturing method and a commitment to provide complete satisfaction to the consumer.
And Supreme Court concludes that the appeal is therefore quashed
This strict interpretation of the texts is a reminder, once again, of the difficulties related to the definition of advertising and consequently, to the creation of tobacco packaging; it is undoubtedly a part of the reflection and adoption of neutral packaging.
It remains to be seen whether the referring Court will follow this position on all these points (especially on the questions of principle concerning the Eco-packaging reference or the presence of an email address) or whether it will relax this analysis in the wake of recent decisions on the interpretation of the Evin Law concerning advertising for alcoholic beverages.