Recently, rugby legend Dan Carter made the headlines for all the wrong reasons. After being pulled over by the police on Avenue des Champs-Élysées for speeding, police discovered that he was over the alcohol limit. He was subsequently dropped by his sponsor Land Rover for what seems to be a breach of a morality clause, similar to those covered by us previously in relation to Maria Sharapova and Sergio Pérez. Days after the incident, Carter recognised his “massive error” in an honest statement:

“Over the last few days my management and I have had to front up to my sponsors. Not surprisingly, Land Rover, who for good reason have zero tolerance towards drink driving, have ended their relationship with me. I understand this completely and am disappointed I put them in this position.”

At the age of 34, the rugby star is currently seeing out the twilight years of his career at Racing Metro in Paris with whom he won the Top 14 last year, putting in a man of the match performance.

Morality clauses aside, this incident has inspired us to consider an interesting legal space within the context of France; the relationship between advertisement, alcohol and sport. It is a curious fact that the country that is perhaps most renowned worldwide for its alcoholic exports, has the most stringent rules on advertising alcoholic beverages. Consequently, alcohol and sport do not go hand in hand to the extent they do in the UK.

This is down to ‘La Loi Évin’, or Évin’s Law – passed by the French government in 1991 (which is now integrated in the public Health Code under Article L3323-1 and subsequent provisions). It operates to prohibit any sponsorship activity which has, as its object or its effect, the publicity, directly or indirectly, in favour of alcoholic beverages (French Public Health Code art. L. 3323-2). Article L. 3321-1 of the French Public Health Code defines alcoholic beverages as those that contain more than 1.2% of alcohol.

It is for this reason that Heineken’s sponsorship of the European Rugby Champions Cup before 2014 was limited to the name “H Cup”. Sports fans are a key demographic for alcohol producers and so businesses are unwilling to abandon French sport because of the restrictions. Producers of alcohol are therefore forced into finding ways to communicate their brand to consumers of sport in France without contravening the law. Le Monde identified this as one potential driver behind Heineken’s new non-alcoholic beer called Heineken 0.0 (crucially below the 1.2% alcohol limit to escape the definition of ‘alcohol’) that may be able to exploit a grey area in Loi Évin in future sponsorship activities. However, it remains to be seen whether this will be sufficient, given the text of article L3323-3:

“Propaganda or advertising is propaganda or advertising in favour of an organisation, service, activity, product or article other than an alcoholic beverage which, by its design, use of a name, trademark, advertising emblem or other distinctive sign, recalls an alcoholic beverage.”

So despite falling outside the classification of ‘alcohol’ the use of the Heineken brand may prove problematic.

Carlsberg were nonetheless sponsors of the 2016 UEFA European Championship, during which they sold non-alcoholic or low alcohol beers. Carlsberg was an official sponsor of the tournament and conducted a clever campaign that allowed them to increase their brand recognition without explicitly advertising their alcoholic beverages or their brand. One example was the use of their famous ‘Probably’ slogan as an ‘alibi brand’. This is just the latest example of brands attempting to carefully navigate their way around Loi Évin without abandoning the sporting domain as a marketing tool, but there remains uncertainty as to whether the precautions taken are adequate to satisfy the prohibition of “indirect” advertisement under Loi Évin.

Article L.3323-2 contains some exceptions, allowing the advertisement, directly or indirectly, in favour of alcoholic beverages, including those in relation to:

• printed press (except those aimed at young people), radio between midnight and 5pm, leaflets, posters, billboards;

• traditional festivals and fairs devoted to local alcoholic beverages under conditions defined by decree;

• fairs, delivery trucks, merchandising; and

• since 2009, on the internet, except on websites that target young audiences or those related to sports.

The Autorité de Régulation Professionnelle de la Publicité (ARPP) is the professional regulatory body for advertising which according to their mission statement, “combines the creation of rules of ethics, their application and the regulation of their application.” The ARPP publishes guidance on advertising alcohol to help producers avoid falling foul of the law. This guidance was formally mandatory, but now is only mandatory for its members. However, the guidance previously prohibited advertisers from:

• bearing any indication targeted at minors;

• evoking in any way sexuality , sports , work, motor vehicles ; and

• the use notorious personalities that have no link to the production or distribution of the beverage.

Although no longer obligatory, these exclusions are considered to be implicitly in force. As a result the exception for printed media mentioned above was not sufficient in 2004 when Action Auto Moto was found to have contravened the law for displaying an image of Michael Schumacher with two bottles of Champagne and the logo for Fosters beer (who sponsored the event) in the publication after his Australian F1 Grand Prix win. The Cour de Cassation, the highest court in France, upheld the decision of the Paris Court of Appeal issuing a €30,000 fine to the Filipacchi Company and the editor of the publication as well as an order to pay a sum of €1,000 to the Association Nationale de Prévention en Alcoologie et en Addictologie (ANPAA). Amongst the defendants’ arguments was the fact that the picture contained no information on the alcohol displayed and so could not amount to advertising. The Cour de Cassation rejected this argument, finding that

“Any act in favor of an organisation, service, activity, product or article which, for whatever purpose, has the effect of recalling an alcoholic beverage without satisfying the requirements of Article L 3323-4 of the Public Health Code is an illegal advertisement”.

Notably television does not form an exception. It is for this reason that alcoholic sponsors cannot bear their mark in respect of any sporting events that take place in France, or are filmed predominantly for the French public. This can pose problems for brands like Carlsberg, the record holder for the longest running partnership between a football club (Liverpool FC) and a brand, which was unable to show its shirt sponsorship during Liverpool’s 1997-1998 UEFA Cup ties against French teams.

The French television regulator, the Conseil Supérieur de l’Audiovisuel (CSA) has the authority to fine television broadcasters that contravene their principles in respect of the advertisement of alcohol under Article 42-1 of the law n°86-1067 of 30 September 1986. The CSA created a code of conduct in March 1995 in order to communicate the interpretation of Loi Évin in respect of the display of advertisements for alcoholic beverages in sports broadcasting. Initially a distinction was drawn between ‘international events’, not considered to be primarily for the French public and ‘other events taking place abroad’ which were specifically directed at the French public. The code has been subsequently amended and now refers to ‘multinational events’ and ‘binational events’.

In respect of multinational events:

“Multinational events, the images of which are intended to be broadcasted in a large number of countries, cannot be considered as mainly targeting the French public and can therefore be freely retransmitted by French television channels even though advertisements in favour of alcoholic beverages may appear on the screen. French broadcasters, when broadcasting images under conditions where they do not control what is filmed, cannot be suspected of complacency with regard to the advertisements in dispute.”

In respect of binational events, the obligations incumbent on broadcasters are more onerous:

“Binational events, between two teams or two sportsmen, one of which is French, are aimed specifically at the French public. Where the legislation of the country in which the event is held permits the advertising of alcoholic beverages on the premises of a competition, it shall be the responsibility of all parties subject to French law who contract with the holder of the retransmission rights to, with regard to the available means, if any, prevent the appearance on air of advertisements for alcoholic beverages.”

The code then lists various examples of good practice, such as informing the foreign broadcasters of their obligations under French law, assessing whether or not there is a possibility of using techniques to avoid showing the advertisements without incurring liability under the contract and making inquiries as to which advertisements will be shown at the event. The guidance also contains an exception for teams or athletes of ‘special renown’ (defined as ‘the fame enjoyed by a national team, a club or a French or foreign athlete outside his or its country of origin’) and a list of qualifying bi-national events (including the rounds before the final 16 of the UEFA Cup).

Current Presidential candidate and former Minister of Economy, Industry and Digital Data, Emmanuel Macron, moved to create a distinction between publicity and advertisement in 2015 (n°2015-990) in relation to promoting wine production that is associated with a region in France, but the proposed bill was censured by the Conseil Constitutionnel – the highest constitutional authority in France. Eventually the law was changed by virtue of law n°2016-41; a different law that used almost identical wording to Macron’s suggestion. Macron has also recently come out in favour of making further changes to the law that will deregulate the advertisement of wine tourism in France, but without changing “either the philosophy or the objective” of the law. The reasons behind these changes are predominantly economic and are aimed at assisting regional wine producers in France.

Although Loi Évin has been altered, there is no discussion around relaxing the provisions within the sporting domain. In December 2014, a group of leading healthcare professionals in the UK wrote an open letter to government ministers urging them to prevent alcohol producers from sponsoring sports teams, evidencing the difference between the UK and France. However, creative strategies by some of the biggest brewers in Europe demonstrate ongoing attempts by alcohol brands to market in and around the sporting domain.

Simon Grossobel and Justine Vesselle are co-authors of this article.