Prive its decision as a legal basis under Article L. 3323-4 Code of Public Health that the appellate court does not accept the wrongful nature of an advertisement for whiskey, so it follows its own findings that the decoration was a poster advertising aimed at staging enhance the brand of whiskey, combining elements of nature to give it an attractive image, foreign elements in the strict indication of the origin of the product, its composition and its method of production.
The advertising of alcohol is permitted, as a poster in particular, only in conditions strictly and restrictively defined in Article L. 3323-4 Code of Public Health, which allows the indication of the degree of alcohol by volume, origin, denomination, composition of the product's name and address of manufacturer, agents and custodians as well as the production method, terms of sale and consumption pattern of the product.
In this case, the three posters in question were made by the designer of the famous comic book "Black and Mortimer " for Jameson Irish whiskey brand. This series of posters representing men dressed as the 18th century, each poster showing a bottle dressed in the label of the mark, above which it was written " Jameson Irish . The man shown in the first, supposedly John Jameson, founder of the brand and the first distillery at the time, watching a sailboat from the port of Dublin, standing next to barrels bearing the name of the capital of Ireland. On the second, the same man was in a distillery, accompanied by another man, both busy observing the contents of a glass. The third poster was the same characters, this time in a cellar in the middle of barrels marked "John Jameson 1780.
The NAFA (National Association for Prevention of Alcoholism) had summoned Head of illegal advertising presidents of the concession company of ad placements and Ricard, which were eventually acquitted by the criminal court of Paris. She was also unsuccessful in his capacity as a civil party in the same court 24 January 2005 and subsequently by the Court of Appeal in Paris November 25, 2005, both having considered the ads in question were not illegal then that they related directly and exclusively limited to the indications provided by law. Not satisfied with this decision, ANPA has appealed doing so argued that advertisements do is not confined only to indicate the terms permitted by Article L. 3323-4 Code of Public Health, but they were truly staged for " enhance the product" and "the envy of suggest product." The association argued that this effect could doubt the purpose of advertisement to educate the consumer about the origin and composition of the product since the poster was not even any information on its composition, mode consumption, level of alcohol by volume, or the name and address of manufacturer or agents depositories.
The Court of Cassation ruled in favor of the plaintiff association in stopping here commented in holding the visa section L. 3323-4 Code of Public Health, the appellate court had " not justified its decision with regard to the abovementioned text . According to the Criminal Division, the product was represented by "foreign elements the strict indication of the origin of the product, its composition and its method of production . In the Court of Cassation, the elements of advertising must be related directly and exclusively limited to the particulars listed in Article L. 3323-4 Code of Public Health. But was not it also had decided that the appellate court? About the same vision, the appellate court considers that the advertisement is related directly and exclusively to the indications listed exhaustively in the law while the Supreme Court considers otherwise. For the Court of Appeal, it is possible to reach legitimate creations since each element of advertising can be linked to information allowed by law. In the Court of Cassation, the creation is lawful only if those elements relate strictly to licensed indications (1). The question is whether each element of advertising is justified under the law, which presumably involves an assessment of the judges on a case by case basis.
It is obviously very reasonable to put the protection of the consumer before the creative desires of advertisers. But here, the restriction is important. By preserving a possible interpretation which could be made of Article L. 3323-4 on behalf of a certain freedom of creation, the High Court is truly intractable. The appellate court pointed out that the requirement that advertising should be made on a neutral background had been removed by the Senate during the parliamentary debates, " the grounds that a neutral background would leave little room for the creative imagination of advertisers. " One may wonder whether the interpretation of the Court of Cassation still leaves room for the creative imagination. In his defense, should nonetheless be noted that fully respects the spirit of the law. Indeed, Philippe Douste-Blazy at the origin of the amendment to the bill adjusting the Evin Law and the then Minister of Health had stated that " faithfully to the Evin law, [he] wanted to restrict the expressive possibilities of advertisers to only the product and its objective qualities . The amendment was adopted 20 January 2005 by the Senate on second reading and returned to the relaxation of the Evin law which had been voted in the Senate first reading and second reading in the House. In its first version, the amendment allowed Douste-Blazy's statement of "sensory and organoleptic characteristics . A more restrictive version was finally restraint, under which advertising can " include references to the color and characteristic odor and taste of the product .
Anyway, the position of the Supreme Court suggests that the information permitted advertising should be strictly descriptive and not suggestive or attractive. Even as the advertisement contains a reference to the product brand, and its geographical origin (recall that in this case the words " Jameson Irish " appeared on the three posters which, according Court of Appeal stated the product brand, which is also the name of its founder, and its geographical origin), it should be limited only to illustrate the terms permitted so that consumers will face a rather informative document that advertising. In this case, the entries were actually permitted illustrated -; the brand, its geographic origin and mode of product development - but what the Court of Cassation did not accept what are the elements of staging illustrated by the famous designer, staging likely to invite the consumer. As regards alcohol, obviously, a good Advertising must not sell!
(1) In the same vein: Civ. 2nd, June 25, 1998, Bulletin No. 1998 II p. 228 135: Having found a poster for a brand of whiskey was a desk on which are placed a bottle of whiskey, three glasses half full and a drink from a bartender with a bottle of whiskey at the same hand, an appellate court holds exactly a bartender and a counter is included in the poster, the provisions of Article L. 18 of the Code of drinking that exhaustively enumerate the elements which may be composed publicity were violated.
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