EU law could block Poland's alcohol ad ban
By : Jeffrey Sparshott
In a ruling that could affect Poland's legislative efforts to curb alcohol advertising, the European Court of Justice decided earlier this month that a Swedish law banning such ads are a restriction on the right to provide services and breach the European Union's (EU) founding treaty.
Poland's laws already curtail ads for alcoholic beverages and the Sejm three weeks ago amended its "sobriety education and prevention of alcoholism" law to further restrict marketing. The Senate is now considering the legislation before it is sent back to the Sejm or kicked up to the president's office.
"If the law goes through, it certainly will be challenged some time or other," said Mike Pullen, a partner with the London-based law firm DLA. "It must be. I think the Poles could find themselves having to justify a ban that is contrary to EU law."
The draft law forbids advertising for alcoholic beverages except beer; beer ads are off-limits on TV, radio, and in movie theaters between 6 a.m. and 11 p.m.; in products aimed at children; and on billboards. The draft law also closes a loophole that allows ads for non-alcoholic beers and some alcohol-related products.
Senate committees began deliberations on the legislation last week and a final vote should come near the end of the month, said Senator Dariusz Kleczek, chairman of the Committee on Family and Social Policy, one of the lead committees reviewing the legislation. Kleczek said he expects the bill to be amended in the Senate, though it is likely to find approval. He said he was surprised that the EU frowned on a similar ban in Sweden but he withheld further comment until hearings begin.
The Swedish case originated with a dispute between that government and Gourmet magazine, which distributed a publication that included ads for whiskey and wine banned under Swedish and Polish laws.
"Usually an outright ban is a no-no," Pullen said, explaining that the EU court ruling requires laws to meet a test of proportionality. Proportionality requires that a restriction be reasonable and that its intention could not be achieved by a less restrictive measure.
The European court ruling will be sent to the Swedish court, which must apply the decision to the dispute with Gourmet, said Fionnuala Connolly, a spokeswoman at the Court of Justice.
While Poland is not yet an EU member, it hopes to become one in 2003, though a more likely date would fall in 2004. Prior to accession, its laws must be in line with the EU unless it negotiates specific exceptions or transitions.
The ruling is a new twist to EU law and a breakthrough for advertising because it is the first time the EU court recognized advertising as a service, noted Pullen, who has worked with the European Commission (EC) and has drafted complaints related to the free trade of goods and services filed before the European court.
Robert Wylot contributed to this article
