The Supreme Court of Sweden ruled in favor of the Consumer Ombudsman in a case against advertising by Mackmyra Whiskey which transgressed the Swedish Alcohol Act.
The Swedish Alcohol Act prohibits most forms of alcohol advertising, sponsorship, and promotions.
In the autumn of 2019, Mackmyra whiskey was sentenced for improper alcohol advertising on social media by the district court. This ruling was against a series of Mackmyra’s social media ads which depcited their products in different environments. The settings included a bar counter, in nature and by the sea.
What happened with Mackmyra Whickey’s Advertisements?
The Swedish Alcohol Act’s image rule stipulates that only the alcohol product’s packaging and ingredients in the product can be displayed by alcohol companies. This is strictly for informational purposes for the public and not for advertising of products. Images can not convey moods or show poured alcoholic beverages.
The district court senteced Mackmyra for improper alcohol advertising considering that the images on these ads did not adhere to the Swedish Alcohol Act’s image rule.
At the beginning of 2020, the Patent and Market Court of Appeal granted Mackmyra leave to appeal. Then, in the spring of the same year two of the six advertisements were acquitted with reference to the fact that the image rule would be contrary to EU law. The Court of Appeal’s argument was that the image rule does not meet the requirements of proportionality under EU law.
Alcohol industry exploits EU law for their benefit
The reason for the Court of Appeal’s decision was the principle of origin which is exploited by the alcohol industry to circumvent the Swedish Alcohol Act. The principle of origin states that a company’s marketing must follow the rules in the country where the company is established.
The same principle has been used by TV channels including Viaplay, TV3 and TV6, among others, to broadcast alcohol advertising on Swedish television when it was broadcast from the UK even though the ads were clearly targeting a Swedish audience. The alcohol industry and the TV channels ignored the fact that such advertising is prohibited under Swedish law.
The solution is not for Sweden to dismantle its public health protection legislation, instead more EU countries must strengthen their alcohol advertising legislation,” said Emil Juslin, political secretary for EU affairs at IOGT-NTO, as per Accent [Translated from Swedish].Emil Juslin, political secretary, EU affairs, IOGT-NTO
Swedish Supreme Court upholds the Alcohol Act
After the ruling at the Court of Appeal, the Consumer Ombudsman filed a case against Mackmyra Whiskey with the Supreme Court for going against the image rule of the Swedish Alcohol Act.
The Consumer Ombudsman maintained that the image rule in the Alcohol Act does not contravene EU law. Therefore, since Mackmyra’s whiskey advertisement does not live up to the rule the ads were against the law. Thus, banning two more of Mackmyra whiskey’s ads.
The Supreme Court upheld the Consumer Ombudsman’s judgement in a ruling right before Christmas Eve in 2021.
…the image rule states what may be shown: the product, the brand and the ingredients. Everything else is forbidden. It facilitates demarcation,” said Emil Juslin, political secretary for EU affairs at IOGT-NTO, as per Accent [Translated from Swedish].
It is difficult for Facebook and other social media to remove ads if it is not clear what is allowed.”Emil Juslin, political secretary, EU affairs, IOGT-NTO
The image rule protects children and young people from being bombarded with alcohol advertisements. While the Court of Appeal missed how these advertiements could drive consumption, the Supreme Court understood this fact. For example, as one ad showed, a deck chair under an umbrella gives positive feelings about leisure and relaxation which makes alcohol attractive for children and youth, influencing consumption.
Mr Juslin says a total ban on alcohol advertising would be even better. Certainly such a ban would stop the alcohol industry from trying to exploit EU law for their benefit to try and circumvent the Swedish Alcohol Act. Many other countries in the EU have implemented bans or comprehensive regulations on alcohol advertising. For example, the Loi Evin in France limits alcohol advertising to only factual information, and Lithuania bans alcohol advertising, including on billboards, TV, radio, the printed press and the internet. These laws have also been subjected to alcohol industry pressure over the years.