The European Commission announced last week that it will mount a long-awaited challenge to France’s controversial ban on alcohol advertising, much to the relief of advertisers involved in cross-border campaigns.
If the Loi Evin is declared invalid by the European Court of Justice – a decision is expected within 18 months – it could lead to a uniform set of regulations for advertising which encompasses all member states.
At present the EU’s central philosophy of a single market appears at best flawed, and at worst a French farce, where advertising is concerned.
Countries which impose their restrictions hotly deny they are putting up barriers to what the EU describes as the “free movement of services within the internal market”. They claim they are merely protecting their citizens from advertising’s more subversive traits.
Whatever the arguments, it’s clear from the diversity of advertising laws across Europe that the EU faces a difficult battle to balance free trade with the different needs of its members.
At present, member states enforce a host of advertising restrictions, affecting everything from sports sponsorship to toy marketing.
France’s referral to the ECJ follows complaints to the European Commission by a number of alcohol and sports companies.
The Loi Evin, which also covers tobacco advertising, is baffling and complex. Critics claim it breaches single market rules, because it has been applied across borders.
French TV stations are not allowed to advertise alcohol or broadcast slogans that appear in stadiums. Those who flout the law can face criminal prosecution. The Loi Evin also prevents sporting events held in other member states from being broadcast within France if there are ads or sponsorship credits for alcohol products.
These restrictions led to Bacardi Martini and wine company Cellier des Dauphins issuing legal proceedings against Newcastle United Football Club when it failed to honour a contract to run perimeter ads during a 1996 European match against Metz at its St James’ Park stadium.
That case was eventually sent to the European Court of Justice by the High Court and will now be heard in conjunction with the European Commission’s case.
Barrie Gill, chairman of the European Sponsorship Consultants Association, cites Budweiser’s sponsorship of World Cup 1998, held in France, as another example of the Loi Evin being enforced. The beer giant was not allowed to use perimeter advertising, despite being a primary sponsor.
Jonathan Taylor, a sports specialist with Townleys solicitors in London, who advises clients such as the European Rugby Cup, says the Loi Evin is notoriously difficult to define.
Taylor uses the Uefa Cup as an example of the intricacies of the ban. Under the French code, the later stages of the event are deemed to be “multinational” and can be broadcast, but the earlier rounds cannot.
Taylor says: “Broadcasters are not inclined to push the boundaries – they are scared of the Government and do everything in their power to avoid broadcasting alcohol messages.”
It is not just France which makes life difficult for advertisers that want to run pan-European campaigns.
Greece’s 1994 consumer protection law bans toy advertising between 7am and 10pm. The EU, after five years of deliberation, has not taken any steps to challenge it.
Germany has inflexible laws on sales promotion. For example, two-for-one promotions, lawfully produced in the UK, cannot be published in the German media. In Ireland, it’s illegal for Irish punters to place bets with anyone outside the Emerald Isle.
However, it is the sensible and thorough Swedes who may have unintentionally unlocked the door to a more coherent set of regulations.
In March a European court ruling cast doubt on the legality of Sweden’s ban on alcohol advertising. The case was brought by the food magazine Gourmet. The publication won, setting an important precedent.
Phil Murphy, European Affairs manager at the Advertising Association says: “Not only is this an important precedent, in that it may lead to the removal of other barriers by the European Commission, but the ruling also clarifies the status of advertising as a service.”
Ian Twinn, director of public affairs at the Incorporated Society of British Advertisers (ISBA) which represents more than 300 UK advertisers, warns: “It’s a landmark, but it’s not the end of the war.”
The Loi Evin is a good case study to warn against complacency.
Since it came into force in 1993, France has defended it like a jealous child keeping hold of a ragged but favourite toy. It won’t give it up easily – and may have to have it snatched away by an angry parent intent on throwing it in the dustbin.
The Conseil Superieur de L’Audiovisuel, the French broadcasting watchdog, is the defensive child.
Spokesman Christophe Haquek would not be drawn on whether the watchdog would defy the EU if it lost the case. His only reply was: “Not sure, no comment.”
Haquek argues the Loi Evin exists to protect the nation, particularly the younger population, against alcohol and tobacco abuse. He admits there is no evidence suggesting the law has decreased or stabilised underage drinking. But there is research suggesting that advertising does not increase abuse. The most recent study, in 1997, was by John Calfee, a scholar at the American Enterprise Institute for Public Policy Research. He concludes: “Statistical analysis confirmed that advertising has had no discernible effect on increasing French total alcohol consumption.”
Whether Europe will see slicker advertising regulations remains to be seen. However, such is the nature of the EU, it seems more likely we’ll see directives for square tomatoes and oblong apples first.