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06 June 2019
The marketing of alcoholic beverages has long been subject to heavy regulation in Sweden, based on the belief that unbridled marketing in this field would promote drinking to the detriment of society.
Under the general rule in the Alcohol Act, all consumer marketing of alcoholic beverages must be carried out with "particular moderation", leaving scant room for the kind of aggressive marketing activities that many brand owners use to market thirst-quenching libations in other jurisdictions.
In a recent case, the Patent and Market Court of Appeal assessed the use of quotations from wine reviews in ads and found the terms 'bargain' and 'recommended' and the phrase 'an excellent alternative for the big party' acceptable under the applicable Swedish and EU law.(1)
The case marks a small but significant shift in the strict Swedish jurisprudence on the subject and may give market actors a reason to pop a celebratory bottle.
In 2015 an importer published a wine ad in a Swedish daily that quoted a number of wine reviews. The Consumer Ombudsman, which brings cases for violations of the Alcohol Act's marketing rules, found that the ad did not comply with the particular moderation requirement and sued for unfair marketing.
The first-instance, the Patent and Market Court, handed down a split decision, which found the term 'recommended' acceptable as it clearly referred to a review; however, it rejected the use of the term 'bargain' and the phrase 'an excellent alternative for the big party' as they were considered to contribute to a positive view of alcohol as such and thus risked contributing to an increased or maintained level of alcohol consumption in Sweden. No doubt fortified in their beliefs in one way or another, both parties appealed to the Patent and Market Court of Appeal.
The appellate court framed the matter at issue as a balance of interests between:
Since Sweden is a comparative outlier in its heavy regulation of marketing in this field, the Swedish national rules have to be interpreted in the light of EU law. With reference to Gourmet International (C-405/98), the Swedish rules would have to be applied in a proportional manner.
On the merits, the court reiterated that Swedish legislation and case law clearly stipulate that the marketing of alcoholic beverages should not contribute to a positive view of alcohol as such, and may not contribute to an increased or maintained level of alcohol consumption in Swedish society. The court went on to find that the legislature had intended for such marketing to be limited to factual claims about the marketed products and that such marketing should not be coloured by value judgements on the merits of the product. But this seemingly strict and inflexible Swedish jurisprudence was about to run head first into the principle of proportionality and a more liberal EU-wide view of alcohol that Swedes sometimes refer to as 'continental'.
Importantly, the court found that all three quotations referenced reviews of the wine, which is something other than a subjective value judgement from the market actor. The court agreed with the lower court's assessment that the intent of the use was for the wine to be perceived as priceworthy.
Even though assertions that a wine is priceworthy may indeed increase the sales of the wine at issue, such information was also found to be of general value for consumers and to be commonly included in wine reviews. According to a proportional application of the Swedish rules in view of applicable EU law, marketing which incorporates such use must therefore be accepted.
On the terms 'bargain' and 'recommended', the court noted that both conveyed a positive perception of the wine. However, neither assertion gave the impression that a customer would have had to act quickly to grasp the opportunity of a limited offering or similar. As regards 'an excellent alternative for the big party', the court found that the assertion neither linked alcohol to parties in an undue manner nor gave the impression that the wine was the only alternative for a big party. Consequently, the marketing was considered particularly moderate in its entirety and thus compliant with the Alcohol Act. Since no leave to appeal to the Supreme Court was allowed, it was last call for the Consumer Ombudsman.
This case marks a small but significant shift in the previously established strict case law on the marketing of alcohol in Sweden. Most significantly, the court found that the marketing assertions conveyed a positive perception of the wine, but nonetheless accepted the marketing under the principle of applying the Swedish rules proportionally.
Under previous strict Swedish case law, this fact alone would typically lead to a finding that the marketing risked contributing to an increased or maintained societal alcohol consumption, and would thus have been considered unfair marketing. For now, the scope of this precedent is likely limited to the explicit use of positive language from reviews.
The use of value judgements such as 'bargain' or similar in alcohol marketing is thus still likely to be considered unacceptable and constitute unfair marketing if used without references to a review. But the practical implications of this decision on market actors in Sweden should not be underestimated, since it opens up new vistas of available marketing language.
Wine critics in Sweden should expect an increase in business about as quickly as you can say 'skål!'.
For further information on this topic please contact Hans Eriksson or Petter Larsson at Westerberg & Partners Advokatbyrå Ab by telephone (+46 8 5784 03 00) or email (email@example.com or firstname.lastname@example.org). The Westerberg & Partners Advokatbyrå Ab website can be accessed at www.westerberg.com.
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