Earlier this year the Swedish Patent and Market of Appeal Court (PMAC) delivered a notable judgement, which concerned alcohol marketing claims including subjective opinions.
In 2016, the Swedish Consumer Ombudsman (CO) requested an injunction on the use of the following statements within alcohol marketing: “BARGAIN!”, “RECOMMENDED!” and “AN EXCELLENT ALTERNATIVE TO THE BIG PARTY!”. These third party reviews was used in the advertisement of the wine “Charles De Fére Rosé Brut”. The CO argued that the use of these claims was in breach of the requirement of specific moderation when marketing alcohol in Sweden.
The first instance, the Swedish Patent and Market Court (PMC) considered that “RECOMMENDED” was in line with the requirement of specific moderation since there was a distinct connection to the reviews. However, the claim of “BARGAIN!” or “AN EXCELLENT ALTERNATIVE TO THE BIG PARTY!” was found incompatible with the same requirement. “BARGAIN!” was perceived as a message to the consumer that the wine had a relatively low price in relation to its quality and available only to a limited extent. The PMC held that “AN EXCELLENT ALTERNATIVE TO THE BIG PARTY!” appeared as if an alcoholic beverage would be the only alternative to the big party. As these claims could not be substantiated, the marketing was considered to breach the Swedish rules on alcohol advertisement.
The judgment was appealed to the PMAC, which established that the none of the challenged claims was in conflict with the requirement of special moderation. In the judgement, the PMAC initially states that, in the assessment of whether a particular marketing meets the requirement of specific moderation, the fundamental principle of free movement of the EU law and the TFEU as well as the case law of the European Court of Justice must be taken into consideration.Furthermore, the PMAC states that the application of the provisions regarding the marketing of alcohol must not lead to a disproportionate intervention in a trader's right to freely market its products within the EU.
According to the judgement, the wordings “RECOMMENDED” and “BARGAIN!” conveys a positive message of the wine but it cannot be said to give the impression that one should seize the opportunity for a bargain purchase or that the wine is only available in a limited amount or for a limited period of time. Moreover, the court found that “AN EXCELLENT ALTERNATIVE TO THE BIG PARTY!” conveyed a positive impression, but that the wording could not be linked to big parties with alcohol in an inappropriate way or convey the impression that the wine would be the only excellent alternative for a big party.
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