A non-for profit French association, promoting the
non-smokers' rights and the legislation struggling against
tobacco, brought a legal action against the director of the
publication and the editor of a magazine dedicated to cigars for
its issue published in October/November 2010 which had presented,
in particular, a photograph of trademarked cigars' accessories,
methods of conservation with the list of accessories and the
addresses where to buy these accessories, as well as an interview
of a famous singer, photographed with two cigars1 in his
pocket, explaining why he likes the cigars' taste.
Those publications have been considered, by the plaintiff, as an
illicit propaganda having the purpose of prompting the tobacco
The plaintiffs did fail in the first instance before the
criminal Court of Paris2 but did bring an appeal before
the court of appeal of Paris.
The Court of Appeal of Paris3 has taken into account
the following elements to render its decision: the litigious
magazine (i) does not carry out advertising to increase its
audience, (ii) is designed for a limited audience (mainly sold to
subscribers) which are cigars' prudent/advised lovers, (iii)
has presented the sharing of personal experiences and advice
concerning tobacco and does not incite the consumption of tobacco
products (personal experience, sometimes with humor, exchanged for
an experienced limited audience; this content being covered by the
freedom of speech which cannot be deemed inciting the tobacco
consumption), (iv) there is no advertising for tobacco products
contained in the pages of the magazine. The Court of Appeal also
noted that the editor of the magazine does not generate revenue
with this activity. The decision of the first instance criminal
Court has thus been confirmed by the Court of Appeal of Paris.
1.1.1. Further to the appeal brought by the
Association the matter has been addressed, on May 18, 2016, by the
Supreme Court which has overruled the Court of Appeal of Paris'
decision for the following reasons4:
French law does prohibit any
propaganda for tobacco products (whatever the media), as well as
the offer of any item aiming at promoting tobacco products;
The protection of the public health
can justify limitations to the freedom of speech, provided that
same be necessary and proportional to the legitimate purpose to be
The Court of Appeal wrongly rejected
the Association's claims whereas it has noted that the
magazine, offered to the public (magazine available in newspapers
kiosks), published a content destined to promote tobacco or tobacco
products; thus a restriction to the freedom of speech was
This is quite a strict position held by the Supreme Court
towards an editor and a director of the publication of a magazine
dedicated to a limited and experienced audience. Having the
prohibition of advertising for tobacco products prevail over the
freedom of speech may be explained by the desire to protect the
public health, which is an important objective to be achieved by
the French government.
It should be noted, however, that certain recent measures
implemented by the French government do not apply to cigars.
Indeed, the law enacted in France on January 26, 2016 and its
Decrees have implemented, in France, the neutral packaging for
tobacco products and the prohibition of the adjunction of aromas;
these provisions are not applicable to cigars/cigarillos.
The decision rendered by the Supreme Court is thus all the more
strict that the magazine L'Amateur de cigare targets
only cigar enthusiasts. It also raises again the sensitive issue of
the differentiation between advertising and editorial content. The
French wine aficionados will certainly watch further developments
in this area of law with particular attention.
1. "L'Amateur de cigare"/"The
2. Tribunal correctionel
3. Court of appeal of Paris, January 16,
4. Decision rendered on the ground of the Article
inserted in the French public Health Code prohibiting the
advertising for tobacco products, as well as of Article 10 of the European Convention on Human
Rights, setting forth the general principle of the freedom of
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