British American Tobacco convicted on appeal for illegal advertising

Summoned for interim relief by the CNCT which requested the removal of its govype.com website dedicated to the promotion of its vaping products, or alternatively the removal of videos and advertising mentions whose nature was "manifestly illicit", British American Tobacco France (BATF) was ordered in February 2021 to remove certain mentions, after removing the two videos in question from its website. The cigarette manufacturer having appealed, the Versailles Court upheld the decision of the interim relief judge and condemned this company on October 7, 2021 for illegal advertising in a particularly reasoned decision.

An advertisement on the Internet is not a poster in a point of sale.

After confirming the admissibility of the action, "The regulation of vaping products and the provisions that penalize their violation are an integral part of the system to combat smoking in the same way as the regulation of tobacco products.", the judges considered that a website is not an establishment within the meaning of the Consumer Code. The Court of Appeal did not follow BATF's argument that its online sales site would benefit from the legal exception to the ban on advertising that concerns posters in establishments selling its products. Another argument by BATF, according to which this site would only be aimed at adult consumers, was also dismissed, the magistrates considering that there was no guarantee that visitors to the site were indeed adults.

Information or advertising?

The judges of the Court of Appeal finally rejected the claim that the information on this site in question was only intended to inform the consumer about the objective and essential characteristics of its products. They considered that messages such as “pioneer in the science of vaping”, “Prepare for the thrill” Or “Subscribe and save” do not constitute objective information but are evaluations of products, promotions, "feelings that can be expected" and consumption incentives. By highlighting the advantages of vaping products over tobacco, BATF also contravened the principle that nicotine-containing products should not suggest that they are less harmful than others or that they have economic or environmental advantages.

For all these reasons, the Court wished to award the CNCT an advance in compensation for its moral damage: “ It is the strategy and marketing power implemented by the BATF company through the advertising slogans present on its site which in itself undermines its mission and obliges it to strengthen its vigilance measures. ".

The assessment of the actual damage suffered by the NGO will be the responsibility of the trial judges in the context of a separate procedure, the examination of which is scheduled for January 2022.

While the manufacturers' objections to vaping product advertisements are, to a large extent, similar to those developed regarding the defense for tobacco advertisements, this case remains important because it represents the first case law protecting public health in this area.

MF