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
In connection with this legislative process, an Article
aimed at amending the Loi Evin (which sets
the 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
The purpose of this Amendment was to distinguish between
advertising (strictly limited under the Loi 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
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
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
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 that it 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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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