# The regulation of alcohol marketing in France: The Loi Evin at Thirty

Marine Friant-Perrot, Amandine Garde

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Marine Friant-Perrot, Amandine Garde. The regulation of alcohol marketing in France: The Loi Evin at Thirty. Journal of Law, Medicine and Ethics, 2022, 50 (2), pp.312-316. 10.1017/jme.2022.57. halshs-03795933

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# The Regulation of Alcohol Marketing in France: The Loi Evin at Thirty

Marine Friant-Perrot¹
and Amandine Garde²

1: UNIVERSITY OF NANTES, FRANCE, 2: UNIVERSITY OF LIVERPOOL, UNITED KINGDOM

**Keywords:** Public Health, Alcohol Advertising, Freedom of Expression, France, Loi Evin

**Abstract:** When adopted in 1991, the French Loi Evin was pioneering as one of the first in the world to regulate alcohol marketing as extensively. This short contribution assesses whether it remains fit for purpose over 30 years later. To this effect, it assesses its main provisions, considers the legislative amendments that have ensued as well as the extensive interpretation French courts have given of its scope, before concluding that the prospects for its revisions are limited in the near future.

The growing evidence that alcohol marketing contributes to earlier initiation and increased consumption of alcoholic beverages has led to the recommendation that such marketing should be regulated at international, regional and national levels.¹ When it was adopted, the 1991 French Loi Evin, named after the then Health Secretary of State who proposed it to Parliament, could rightly be seen as pioneering, as one of the first in the world to regulate alcohol marketing as strictly, and notwithstanding the existence of a powerful wine lobby in the country. To date, it is often cited as a model of successful public health intervention. However, the question arises whether this emblematic example remains fit for purpose over 30 years after its adoption. The debate has been extremely polarized. On the one hand, various civil society organizations have tried to protect the law from erosion, not least the Addictions Association,² which has initiated public interest litigation for infringements of the Loi Evin. On the other hand, alcohol manufacturers have called for more freedom of expression and have vividly criticized the Loi Evin for lacking precision, for being applied too strictly and for its ineffectiveness.

After assessing the main components of the Loi Evin and its legislative amendments (1), this short contribution considers the extensive interpretation of its provisions by French courts (2) and the future prospects for a revision of the existing regulatory frame-

**Marine Friant-Perrot is Assistant Professor in Law (Maitre de Conference HDR) at the University of Nantes in France. She has a longstanding and recognized expertise in Consumer Protection and Food Law. Amandine Garde is Professor of Law and Founding Director of the Law & Non-Communicable Diseases Research Unit at the University of Liverpool in the United Kingdom. She has a longstanding and recognized expertise in consumer protection law and policy, with a specific interest in the regulation of the tobacco, alcohol and food industries.**
work in France (3). Due to space constraints, this con-
tribution does not discuss the complex relationship
between European Union and national alcohol mar-
keting rules.³

# 1. The Loi Evin and its Legislative Amendments: The Tension Between Free Commercial Expression and Public Health Protection

The French Parliament adopted the Loi Evin to pro-
tect public health from tobacco and alcohol use in
1991, amending the Public Health Code.⁴ The general
position is that alcohol marketing is allowed in France,

Mandating health messages to limit the impact of
the advertising of unhealthy commodities is a popu-
lar regulatory approach in France. Beyond health
warnings on tobacco, France was the first country
in the world to impose a disclosure requirement on
unhealthy food advertisements.¹⁰ Some studies have
attempted to determine the effectiveness of alcohol
health warnings and have concluded that their impact
is more important when these warnings are specific
(e.g. for pregnant women), as general messages/warn-
ings tend to be too vague, not sufficiently visible and
not renewed often enough to avoid a habituation
phenomenon.¹¹

After assessing the main components of the Loi Evin and its legislative amendments (1), this short contribution considers the extensive interpretation of its provisions by French courts (2) and the future prospects for a revision of the existing regulatory framework in France (3).

whilst tobacco marketing is prohibited. However,
alcohol marketing is strictly regulated both in terms
of permitted media and in terms of the content of the
commercial message. All advertising or other forms of
promotion of alcohol must also be accompanied by a
health warning.⁵

Compulsory Health Messaging

All promotional messages for alcoholic beverages must
be accompanied by a health message that is intended
to warn consumers that “excessive alcohol consump-
tion is harmful” and to encourage them to restrict
their consumption and “consume in moderation.”⁶ In
2010, the French Professional Advertising Regulation
Authority⁷ adopted a recommendation specifying how
the message had to appear in printed media to ensure
that it was clear and legible and would not be confused
with the commercial communication itself.⁸

In February 2005, the Loi Evin was amended by the
Disabled Persons Act, requiring the use of either a tex-
tual health warning on foetal alcohol syndrome (“the
consumption of alcoholic beverages during pregnancy,
even in small quantity, can have serious consequences
for the health of your child”) or a graphic health warn-
ing representing a prohibition sign on which appears
a pregnant woman on a red background.⁹ This addi-
tional requirement has led alcohol manufacturers to
promote alcohol free beverages to ensure that they do
not lose female consumers during pregnancy.

Limiting the Freedom to Promote Alcoholic Beverages
on Public Health Protection Grounds

The Loi Evin provides an exhaustive list of the media where alcohol can be promoted: printed press for adults, radio with hourly limits, billboards, posters and displays at points of sale, digital media, including the internet and apps, except if young people are specifically targeted or the advert is surreptitious or hidden (for example, through undisclosed influencer marketing). All other media and settings, which are not listed, cannot promote alcoholic beverages. They include television, cinema, sponsorship of cultural or sports or other events, and placement for alcoholic beverages and brands.

Originally, the list of media prohibiting alcohol
marketing was more limited. However, the provisions
of the law have been eroded, as a result of legislative
reforms which have expanded the list of media where
alcohol marketing may be allowed. Alcohol advertis-
ing was allowed in public spaces in 1994.¹² The list was
further modified to explicitly include digital media in
2009.¹³

Nevertheless, whenever alcohol advertising is
allowed, the Loi Evin requires that it should be lim-
ited to the provision of objective information on the
product.¹⁴ It is therefore possible to indicate the alco-
hol content per volume (this is actually mandated by
European Union law), the origin, the name, the com-
position, the name and address of the manufacturer
or its agents, as well as the methods of production, the
sale conditions and the use of the product. Following
the adoption of another legislative reform in 2005,
advertising can also include references concerning
production areas and related distinctions, designa-
tions of origin and geographical indications, as well
as objective references concerning the color, taste or
smell of a given product.¹⁵

The Loi Evin did not originally exclude editorials
from the definition of advertising and did not require
that the brand had to pay for its placement. Therefore,
when the actress Scarlett Johansson lent her image to
a brand selling alcohol beverages for their global mar-
keting campaign, the Loi Evin prohibited the gossip
magazine *Paris Match* to refer to the event. Several
criticisms were then mounted against the Act on the
basis that it limited freedom of expression and free-
dom of the press. In particular, the wine industry, and
the Champagne industry more specifically, highlighted
the importance of maintaining the French traditional
wine culture and providing oenological information
without such information being categorized as adver-
tising. This ultimately led to an amendment of the Loi
Evin in 2016. This amendment was proposed by Sena-
tor Gérard César¹⁶ who emphasized the importance
of preserving freedom of expression and freedom of
the press. The government and the President of the
Republic himself lent their support to this proposal,
notwithstanding the objections that the Health Secre-
tary had voiced against it.¹⁷ The amendment included
in the Act on the modernization of the public health
system has allowed the communication on alcoholic
beverages in journalistic, institutional, cultural or
tourism editorial pieces. In other words, such com-
munication is allowed on the basis that it relates to
protected designations of origin and protected geo-
graphical indications and has an objective content (on
the region of production, know how, history...) which
is distinct from commercial advertising.¹⁸

The rationale for this distinction is precisely to strike
a balance between the promotion of a given product
or brand and public health imperatives: consumers
can be informed on the product and its attributes, but
they cannot be incited to consume the product. Need-
less to say that this distinction is thin and has proven
extremely difficult to draw in practice, giving rise to an
extensive body of case law.

2. The Judicial Interpretation of the Loi Evin
in a Rapidly Changing Media Landscape

Over 30 years after its adoption, the Loi Evin contin-
ues to give rise to a rich case law, demonstrating its
ability to adapt to a rapidly changing media land-
scape. We briefly review three main issues that French

courts have considered to argue that French courts
have, overall, ensured that the Loi Evin could still
serve its original purpose of protecting public health
from harmful alcohol marketing.

*A Strict Interpretation of the Media Where Alcohol Marketing is Permitted*

French courts have interpreted strictly the freedom
granted to alcohol manufacturers to promote their
products. This is particularly true regarding digi-
tal media, as the notion of subliminal advertising
has been interpreted broadly to restrict the extent to
which alcohol companies can promote their prod-
ucts and brands. In particular, courts have ruled that
advertising covers both the messages directly pro-
moted by brands themselves, as well as messages for-
warded by consumers. In other words, viral market-
ing falls within the scope of the restrictions on alcohol
marketing which the Loi Evin imposes. In particular,
the Cour de cassation (the highest court competent to
settle points of law arising in private law cases) held in
2013 that the free smartphone app “Un Ricard: Des
Rencontres” (“A Ricard: Some Encounters”) inviting
viewers to share their cocktail recipes on its Facebook
account (via the sharing button “share on my wall”)
constituted a form of viral marketing that was prohib-
ited by the Loi Evin.¹⁹

Ultimately, therefore, the interpretation of the media
permitted to carry alcohol marketing has been rather
strict so that alcohol companies have been left with no
option but to rely primarily on billboards, where they
have tended to promote beer, and on printed media,
where they have tended to promote wine and champ-
pagne more specifically. Even then, however, the Paris
Court of Appeal ruled that a large cover of the famous
historical building of the Hôtel de la Monnaie was not
a billboard and could not therefore depict a Heineken
“Open your World” advert without infringing the Loi
Evin.²⁰ It similarly held that the letters spread over
eight meters on the grass at a rock festival constitut-
ing the word Kronenbourg were prohibited by the Loi
Evin, rejecting the argument that the purpose of these
letters was purely decorative.²¹

*A Strict Interpretation of the Freedom to Provide*
*Objective Information*

French courts have also tended to interpret strictly
the requirement of objectivity, further restricting the
freedom granted to alcohol manufacturers to promote
their products, though the case law has evolved in this
respect.

In a few cases, French courts have recognised the
need to make allowances to promote advertising cre-
ativity. In particular, the Cour de cassation ruled that an attractive background could be used to promote alcohol,²² and therefore allowed the impression of pleasure the advert facilitated, on the basis that that did not exceed what was necessary to promote the products.²³

More recently, however, we note a stricter interpretation of the dividing line between what is and what is not allowed. In 2020, the Cour de cassation interpreted extensively the requirement of the Public Health Code that only objective information may be included in alcohol advertising. In particular, it ruled that advertising was allowed only if all the information provided in a given advert was objective, beyond those specifically enumerated in the Public Health Code.²⁴ Similarly, the Paris Court of Appeal ruled that an advert online presenting strong similarities with the cult series Games of Thrones with reference to “tertiary games” and the slogan “legendary intensity” had none of the informational and objective characteristics required by law.²⁵ The Cour de cassation has also ruled that any reference to a human behaviour cannot be relied upon in advertising campaigns, whilst the taste properties of the product can. In particular, in its Cabernet d’Anjou decision, it ruled that the slogan “Cabernet d’Anjou: Who dares tell young people that ‘jeunesse’ (‘youth’) does not rime with ‘délicatesse’ (‘delicacy’)?”²⁶ Ultimately, therefore, French courts have established that every component of the advertisement — both the imagery and the written text used — must guarantee the objectivity that the law mandates.

*An Extensive Interpretation of the Notion of Advertising to Cover Both Direct and Indirect Advertising*

French courts have also ruled that it was prohibited to promote alcoholic beverages to consumers *indirectly* through the use of the brand or other distinctive marks (for example any graphic implying an alcoholic beverage or an alcohol brand).

This question has given rise to extensive case law in relation specifically to the sponsorship of sports or musical events. For example, the “pression live” promotional campaign drew on elements characterising the Kronenbourg brand. In particular, it used red and white colours, in a geometric configuration representing the checkerboard one finds on the top of the beer bottles sold by the company. The Court of Appeal of Paris considered this constituted an indirect form of marketing the Loi Evin prohibited.²⁷

Similarly, the use of an inciting slogan using the name of a brand cannot be used to avoid the prohibition.

Therefore, the Paris Court of Appeal ruled against the use of the slogan “Heineken Open your World” on the ground that it was promotional.²⁸

**3. Looking Ahead**

Despite the extensive interpretation that French courts have adopted of the restrictions it imposes on alcohol advertising, the Loi Evin contains various loopholes. The problems are further compounded by its lack of effective application, as the number of infringement cases mounted by the Addictions Association demonstrates.²⁹

Some authors have argued that the legislative reforms have led to the “erosion” of the Loi Evin to the point that it has been denatured and is no longer fit for purpose.³⁰ Such erosion has proven particularly problematic in digital media. The explicit allowance for alcohol advertising on digital media, following the 2009 amendment of the Loi Evin, has given rise to increased exposure to such advertising. More specifically, the provision prohibiting the specific targeting of minors with alcohol advertising is insufficient to limit the exposure of children and young people to such advertising. This is because minors are exposed to digital media that are not considered to be specifically targeting them, even though they are designed for a mixed audience including them.³¹ The problems are all the more acute as age controls do not work, as French courts have explicitly acknowledged.³²

Moreover, it has become more complex over time to determine what falls within the scope of the Loi Evin, whose amendments have increased the opportunities for the alcohol industry to test the boundaries of what is and what is not allowed. In particular, the alcohol industry has resorted to alibi marketing to increase the appeal of their brands at sports events without referring to any specific products, which would have been unlawful as alcohol sponsorship is prohibited.

These loopholes have prompted calls for a revision of the Loi Evin, particularly in relation to digital media. The Court of Auditors specifically recommended that online marketing, particularly on social media, should be prohibited.³³ However, the prospects of amending the Loi Evin to better protect public health is most unlikely at present, bearing in mind the close ties that the President of the Republic has established with the alcohol industry. During the campaign that led to his re-election on 24 April, Emmanuel Macron promised not to amend the Loi Evin to further limit the scope of lawful alcohol marketing in France.³⁴

**Note**

The authors have no conflicts to disclose.