Intoxicating advertising: A few real-life examples
Producers of alcoholic beverages struggle with highly restrictive regulations across many areas of their business. One is advertising. The Polish regulations, in the Act on Sober Upbringing and Combating Alcoholism of 26 October 1982, are quite rigorous compared to most other countries. Essentially it is illegal to advertise alcoholic beverages, but with some leniency for beer. Beer advertising is permitted, subject to great restrictions on manner, place, time, form and content.
Our aim here is not to discuss all the detailed conditions for advertising alcoholic beverages and the exceptions. These are laid out in the act. Instead, we will focus on examples from specific cases.
In practice that it can be hard to determine whether a message constitutes advertising for purposes of the Act on Sober Upbringing—even though advertising in violation of the act is a criminal offence subject to a fine of PLN 10,000–500,000.
So advertisers must be careful when developing the content for their ads. If a beer ad infringes the collective interests of consumers, the producer is exposed to proceedings before the Office of Competition and Consumer Protection. If an ad constitutes an act of unfair competition, there is a risk of civil claims by competitors. And if the ad infringes the Code of Ethics in Advertising, the advertiser may be brought before the Advertising Ethics Committee of the Polish Advertising Council.
Violation of the ban on advertising alcoholic beverages may also be grounds for withdrawing a licence to sell alcoholic beverages. And if the violator is a radio or TV broadcaster, it can be fined by the chairman of the National Broadcasting Council (as in decision no. 42/2015 of 22 December 2015, where a television station was order to pay PLN 60,000).
Alcohol-free but strong: misleading ads
Our practice shows that civil disputes surrounding the marketing of alcoholic beverage more often involve packaging, labels, and verbal and graphic indications on the product, rather than advertising.
A notable advertising case was brought in the first decade of the 21st century against the Okocim brewery (Okocimskie Zakłady Piwowarskie SA). At that time, Art. 13(3) of the Act on Sober Upbringing prohibited all advertising of alcoholic beverages, without the current exception for beer. That case involved advertising for the alcohol-free beer brands Zagłoba, Mocne and Browar. In one of the ads, an actor declared, “Zagłoba alcohol-free beer: the beer is real, the rest is a ruse.”
The courts found that these beers were sold by the defendant in both traditional and alcohol-free versions, in nearly identical packaging. The only difference in the labels was the addition of the words “alcohol-free beer.” It was found that the ads for these alcohol-free beers could be interpreted by audiences as ads for beers containing alcohol. Given the emphasis placed in the content and the overall message, the producer was essentially using ads for “alcohol-free beer” as a pretext for promoting a different product: beer containing alcohol. The factors contributing to this reception of the content, according to the courts, included the similarity in the packaging and names between the alcohol-free and alcohol-containing products, hiding or reducing the prominence of the legend “alcohol-free beer,” the lack of a clear context suggesting that the product does not contain alcohol, the use of contexts, symbols and props associated with alcohol consumption, and the invitation to read the message contrary to its literal wording.
This view was upheld by the Supreme Court of Poland (judgment of 26 September 2002, Case III CKN 213/01). The court held that the ad attempted to circumvent the statutory ban on alcohol advertising through the pretence of permissible advertising. This was misleading to consumers under Art. 16(1)(1) of the Unfair Competition Act and violated fair practice under Art. 3(1) of that act. The defendant was ordered to cease and desist the advertising. It is hard to argue with the court’s conclusion, as in that case the infringement was fairly obvious.
Contexts and subtexts: ethics in advertising
The Advertising Ethics Committee examines many ads that are a lot less obvious. The committee is a self-regulatory body established by the advertising industry and advertisers under the auspices of the Polish Advertising Council. It considers complaints submitted by consumers. A significant percentage of the cases reviewed by the committee involve alcoholic beverages, exceeded only by dietary supplements and cosmetics (according to figures from the end of 2017). The committee’s rulings are not administrative decisions, but implementation may be backed by additional instruments such as an undertaking to modify ad content accordingly or cease disseminating the ads.
Until recently the Advertising Ethics Committee considered complaints by consumers regardless of whether the respondent was a signatory of the Code of Ethics in Advertising. But some of the accused firms refused to participate in the proceedings, arguing that they had not signed onto the code. Therefore, as of 19 January 2018, a separate procedure was introduced to address this situation. The difference is that in the case of advertisers who are not signatories to the industry code, the advertising will be evaluated on the basis of generally accepted principles of ethics and fair market practice, whereas in the case of signatories of the code the committee will continue to determine whether the advertising violates the code.
It is a good idea to review ad content against the rules set forth in the industry code. In particular, appendix 1 to the code, “Beer Advertising Standards,” should be required reading for firms conducting such advertising. Rulings by the committee finding that ads infringe or do not infringe the code are published on the website of the Advertising Council, serving an educational, preventive and informational function.
An example is the case examined by the committee of a TV spot promoting fruit syrup. In the scene, a boy visits his friend on her birthday and hands her a gift-wrapped bottle, saying, “I brought you a flask.” Her mother take the bottle from him and unwraps it to reveal that it contains fruit juice.
The Advertising Ethics Committee found that the ad employed an alcoholic subtext. This was indicated by the strong reaction of the girl’s mother, who grabs the present described as a “flask” from the boy and anxiously unwraps it. The way the present was wrapped and carried under the boy’s arm alluded to alcoholic beverages and not a present for a child’s birthday party. In the committee’s view, the ad encouraged bad habits and promoted negative role models, and thus was socially irresponsible. It could also be misleading to minors, exploiting their natural credulity and inexperience and endangering their physical, psychological and moral development (resolution no. ZO 31/17 of 20 June 2017, case no. K/14/17/01-02). The ad was found to violate the Code of Ethics in Advertising.
Beer with a social media presence
The Act on Sober Upbringing does not contain clear rules on how to conduct advertising using new technologies, e.g. advertising beer online. The most reasonable approach seems to be to apply the regulations governing advertising but reflecting the specifics of this medium.
The Advertising Ethics Committee discussed above also frequently rules on consumer complaints about beer ads on the internet. These complaints typically involve promotion (in the form of photos, memes and film clips) on the official profiles of beer brands on social media sites or fan pages. In examining these ads, the committee applies the same rules as in the case of traditional ad content. However, given the nature of the internet, the committee also considers the additional issue of the level of measures applied by the business to prevent unauthorised access to such ads, i.e. by minors. In the case of fan pages, for example, it will be relevant to examine whether the fan page requires registration, whether unregistered persons (including minors) can search for the fan page, and whether the advertising content can be reposted or shared with minors and other unregistered persons (resolution no. ZO 31/16 of 30 March 2016, case no. K/05/16).
To be advertising or not to be advertising, that is the question
Businesses that are parties to litigation over infringement of intellectual property rights in the alcoholic beverage industry often ask us about publication claims: whether they can be pursued in alcohol-related cases, and if so, how the demands should be formulated, and whether carrying out such a publication could itself violate the ban on advertising alcoholic beverages. However, it has been held by the courts that publication pursuant to a court order of a statement or judgment including trademarks or names of alcoholic beverages does not constitute prohibited advertising of alcoholic beverages (e.g. Warsaw Court of Appeal judgment of 25 September 2013, Case VI ACa 1043/13, involving “Varna” wine).
Much consternation has arisen among sellers of alcoholic beverages due to the recent dispute over whether display in a shop window of alcoholic beverages offered in the shop constitutes advertising of alcohol. The Supreme Administrative Court held that this does constitute prohibited advertising of alcohol, as it involves dissemination of the trademarks of alcoholic beverages targeted to an indefinite group of people (judgment of 13 July 2017, Case II GSK 982/17). The court added that such a violation justifies withdrawal of the seller’s licence to sell alcoholic beverages even if the seller subsequently ceased such violation. In practice, following that ruling many window displays were rearranged to remove the bottles, or bottles were left on display with the labels covered.
The Supreme Administrative Court also held that it constitutes beer advertising to place beer trademarks on items such as dispensers, glassware or coasters (judgment of 31 March 2015, Case II FSK 707/13), and indeed this is generally how such initiatives are presented in cooperation agreements with breweries.
Thus, while the Act on Sober Upbringing does contain a definition of advertising, in practice it is not entirely clear what behaviour will qualify as advertising and what will not. Often the courts are required to step in and resolve such questions.
What’s ahead for the industry?
Preparing and conducting a good ad campaign for a product is not easy. In the case of advertising of alcoholic beverages, the bar is set even higher. Such advertising requires consideration of the requirements imposed by legal regulations, the case law, ethical standards, and a sense of social responsibility. Without judging here the wisdom of the ban on advertising of alcoholic beverages, it should be pointed out that work is currently underway at the Ministry of Health on amending the Act on Sober Upbringing and Combating Alcoholism (as we discussed here). One of the proposed changes would introduce further restrictions on broadcasting of beer ads. Currently the ban on beer commercials runs from 6 am to 8 pm. The proposed amendment would extend this period by three hours per day (from 6 am to 11 pm). This would be a return to the wording prior to 12 September 2002. The plan is for the amendment to enter into force on 1 January 2019. It will undoubtedly present further difficulty for the beer industry.
Lena Marcinoska, adwokat, Intellectual Property practice, Wardyński & Partners
