Authors: Michel Béjot & Caroline Bouvier, Bernard – Hertz – Béjot
A non-for profit French association, promoting the non-smokers’ rights and the legislation struggling against tobacco, brought a legal action against the director of the publication and the editor of a magazine dedicated to cigars for its issue published in October/November 2010 which had presented, in particular, a photograph of trademarked cigars’ accessories, methods of conservation with the list of accessories and the addresses where to buy these accessories, as well as an interview of a famous singer, photographed with two cigars1 in his pocket, explaining why he likes the cigars’ taste.
Those publications have been considered, by the plaintiff, as an illicit propaganda having the purpose of prompting the tobacco consumption.
The plaintiffs did fail in the first instance before the criminal Court of Paris2 but did bring an appeal before the court of appeal of Paris.
The Court of Appeal of Paris3 has taken into account the following elements to render its decision: the litigious magazine (i) does not carry out advertising to increase its audience, (ii) is designed for a limited audience (mainly sold to subscribers) which are cigars’ prudent/advised lovers, (iii) has presented the sharing of personal experiences and advice concerning tobacco and does not incite the consumption of tobacco products (personal experience, sometimes with humor, exchanged for an experienced limited audience; this content being covered by the freedom of speech which cannot be deemed inciting the tobacco consumption), (iv) there is no advertising for tobacco products contained in the pages of the magazine. The Court of Appeal also noted that the editor of the magazine does not generate revenue with this activity. The decision of the first instance criminal Court has thus been confirmed by the Court of Appeal of Paris.
1.1.1. Further to the appeal brought by the Association the matter has been addressed, on May 18, 2016, by the Supreme Court which has overruled the Court of Appeal of Paris’ decision for the following reasons4:
- French law does prohibit any propaganda for tobacco products (whatever the media), as well as the offer of any item aiming at promoting tobacco products;
- The protection of the public health can justify limitations to the freedom of speech, provided that same be necessary and proportional to the legitimate purpose to be achieved;
- The Court of Appeal wrongly rejected the Association’s claims whereas it has noted that the magazine, offered to the public (magazine available in newspapers kiosks), published a content destined to promote tobacco or tobacco products; thus a restriction to the freedom of speech was justified.
This is quite a strict position held by the Supreme Court towards an editor and a director of the publication of a magazine dedicated to a limited and experienced audience. Having the prohibition of advertising for tobacco products prevail over the freedom of speech may be explained by the desire to protect the public health, which is an important objective to be achieved by the French government.
It should be noted, however, that certain recent measures implemented by the French government do not apply to cigars. Indeed, the law enacted in France on January 26, 2016 and its Decrees have implemented, in France, the neutral packaging for tobacco products and the prohibition of the adjunction of aromas; these provisions are not applicable to cigars/cigarillos.
The decision rendered by the Supreme Court is thus all the more strict that the magazine L’Amateur de cigare targets only cigar enthusiasts. It also raises again the sensitive issue of the differentiation between advertising and editorial content. The French wine aficionados will certainly watch further developments in this area of law with particular attention.