Advertising for alcoholic beverages still a hot topic in France (...Continued)

A Bill, dedicated to the development, the activity and the economic equal chances, was discussed during the Spring of 2015 before the French Parliament (the “Loi Macron”).

In connection with this legislative process, an Article aimed at amending the Loi Evin (which setsthe rules applicable to advertising for alcoholic beverages and tobacco products) has been inserted in the draft Bill (the “Amendment”).

The final version of the Amendment provided that:

“Is not deemed advertising or a propaganda according to the chapter herein, the content, image, representation, description, commentaries or references related to a production region, a toponomy, a reference to a geographical indication, a terroir, an itinerary, a production zone, a know-how, a history or a cultural, gastronomic or landscape heritage, related to an alcoholic beverage which benefits from a quality or an origin identification, or protected under Section L665-6 of the Rural and Fishing Code.”

The purpose of this Amendment was to distinguish between advertising (strictly limited under theLoi Evin) and the public communications as well as the editorial contents, which are not destined to promote a trademark, a brand and/or a specific product, but relate to a region, a terroir, a know-how, a history or a cultural, gastronomic or landscape heritage, …etc. and which should not be deemed advertising and should therefore not fall within the Loi Evin’s scope.

The Amendment has thus been included in the Loi Macron (Section 225) presented to the Parliament.

In order to ensure that the Loi Macron be enacted, the Government used a legislative exceptional procedure, based on Section 49-3 of the French Constitution which speeds up the procedure and avoids that both chambers of the Parliament vote the entire text in the usual way.

• The Loi Macron has then been voted on July 10, 2015, reviewed by the Constitutional Court and promulgated on August 5, 2015, once the decision of such court has been rendered.

The Loi Marcon once voted, has been submitted, by certain members of the Parliament, to the Constitutional Court to have same assess whether its provisions were complying with the Constitution.

Most of the Loi Macron has been approved by the Constitutional Court, but certain Sections have been deemed contrary to the Constitution, in particular the Amendment contained in the aforementioned Section 225.

Under Section 45 of the Constitution, the amendments brought to a draft Bill must have a link, even indirect, with the content of the Bill at stake.

The Constitutional Court considered that the content of Section 225 (which was initially an Amendment brought to the Loi Macron in connection with the legislative process underway) has no link, even indirect, with the content of the Loi Macron (dedicated to the development, the activity and the economic equal chances).

Section 225 has therefore been deemed adopted in violation of Section 45 of the Constitution and has been removed from the Loi Macron, as enacted on August 5, 2015.

• In order to have the Amendment, i.e., the provisions aiming at clarifying the Loi Evin as it regards alcohol advertising, voted and enacted, same has to be inserted in a law dedicated to a subject matter related to advertising for alcoholic beverages. This is what the French Senate just did on September 15, 2015, with a very high majority vote (287 v/ 33), when reviewing a bill on health matters.

Insofar as the content of the Amendment is quite controversial among the supporters and the opponents to any change to be brought to the Loi Evin (in particular Mr. Evin himself and the French Health Ministry who are clearly against it), it continues to cause a heated debate, so thatit is still unclear whether or not this amendment to the Loi Evin will be enacted and, if so, when it will be.

Consequently, the French market may have to continue functioning without a clear distinction between advertising and editorial content when same addresses topics related to alcoholic beverages, this distinction being left for the time to the courts to ascertain.