Advertising of Tobacco Prohibited: When the Court of Cassation Reminds Distributors of Their Responsibilities

You are the owner of a tobacconist's in Cabestany, near Perpignan, and you receive your tobacco deliveries as usual. On the packets, a catchy phrase: "An unforgettable experience" or "The philosophy: relaxing with friends and having a good time". You think it's just a sales pitch, nothing serious. Yet the Évin Law of 1991 prohibits all advertising in favour of tobacco, regardless of the medium. As a distributor, you can be prosecuted for complicity in prohibited advertising. This was reminded by the Court of Cassation in a judgment of 21 January 2014, which quashed an appeal decision acquitting a distribution company on the ground that the disputed statements had been removed after the events. The message is clear: the offence is assessed at the time it is committed, and subsequent corrective measures do not erase the criminal fault.

The facts: a story like many others

We are in 2010. A bailiff, instructed by the National Committee Against Smoking (CNCT), goes to a tobacconist's in the 9th arrondissement of Paris and buys two packets of rolling tobacco of the brand "Spirit". On the packaging, slogans extolling the product's merits can be read: "That is why our tobacco blends are slightly more expensive, but of the highest quality" and "Spirit, an unforgettable experience". The CNCT then sues the company responsible for distributing these products for complicity in prohibited advertising in favour of tobacco. At first instance, the criminal court acquits the company, holding that the statements do not constitute advertising. The Paris Court of Appeal confirms in June 2008, noting that, according to the statements appearing inside the products, the tobacco distributed offered an "unforgettable experience" or had as its "philosophy to relax with friends and have a good time". But above all, the Court of Appeal relies on a temporal argument: the disputed packets are no longer distributed since the manufacturer removed the statements. The distribution company therefore cannot be convicted. The CNCT appeals to the Court of Cassation. The Court of Cassation quashes the appeal judgment. It reminds that all forms of commercial communication, regardless of the medium, and any distribution of objects whose purpose or effect is to promote tobacco or a tobacco product are prohibited. And above all, the defendant cannot exonerate itself from criminal liability by invoking measures subsequent to the commission of the offence. In other words, it does not matter that the packets were removed after the events: the offence existed at the time of sale.

The reasoning of the court — dissected

The Court of Cassation relies on Article L. 3511-3 of the Public Health Code (now codified in Article L. 3512-4), which prohibits all direct or indirect advertising in favour of tobacco. This provision is a matter of public policy: it aims to protect public health by limiting the attractiveness of tobacco. The distributor, as a link in the marketing chain, can be complicit in this advertising if it knowingly participates in the distribution of products bearing promotional messages. The central issue was whether the distributor could defend itself by arguing that the statements had been removed after the events. The Court of Cassation answers no, categorically. The principle is that the offence is assessed at the time of its commission. It does not matter that the manufacturer subsequently modified its packaging: the offence of complicity in prohibited advertising was constituted on the day of the sale noted by the bailiff. The appeal judges therefore made an error in accepting this argument. Furthermore, the Court reminds that the slogans in question are clearly promotional: speaking of an "unforgettable experience" or a "philosophy of relaxation" aims to give a positive image of the product, which is prohibited. The acquittal could not therefore be upheld on this ground.

What this means for you — concretely

For owners of tobacco outlets in Perpignan or elsewhere, this judgment is a warning. You cannot hide behind the manufacturer to escape liability. If you sell a packet of tobacco whose packaging contains an advertising slogan, even if you are not the author of that slogan, you can be prosecuted for complicity. Concretely, what would happen if a bailiff instructed by the CNCT bought from you a packet with a disputed statement? You risk a fine of up to €100,000 (for a legal entity) and, in the most serious cases, a ban on practising. For tenants of tobacco business assets, caution is advised: systematically check the packaging of the products you receive. If you notice a suspicious statement, refuse the delivery and report it to your supplier. Buyers of a tobacco business must also be vigilant: during the transfer, request a warranty from the seller regarding the absence of proceedings related to advertising. A concrete example: imagine you are the manager of a tobacconist's in Cabestany and the CNCT sues you. The legal fees for a criminal trial can easily exceed €5,000, not including the fine and moral damages. Better safe than sorry.

Four tips to avoid this type of dispute

• Check each delivery. Before putting on the shelf, inspect the packaging of tobacco packets. Any slogan extolling quality, experience, conviviality or pleasure is suspicious. If in doubt, consult a lawyer or the CNCT.
• Require guarantees from your suppliers. In your distribution contracts, insert a clause whereby the manufacturer guarantees that the packaging complies with the regulations and undertakes to indemnify you in case of proceedings.
• Train your staff. Explain to your employees that they must report any product whose packaging appears promotional. Simple collective vigilance can prevent an offence.
• Keep evidence of your steps. If you have refused a delivery or reported a problem to your supplier, keep written records. In case of proceedings, this can demonstrate your good faith.

Further reading: related case law and developments

This judgment is part of a line of severe decisions by the Court of Cassation in matters of tobacco advertising. For example, in a judgment of 28 February 2006 (No. 05-81.482), the Court had already ruled that the distribution of objects bearing the brand of a cigar (such as lighters) constituted prohibited advertising, even if the object was not sold. The trend is therefore towards a broad interpretation of the concept of advertising. Since the Évin Law, the legislator has further strengthened the system with the Public Health Law of 2016, which in particular prohibits any mention of "taste" or "flavour" on packets. Courts are increasingly attentive to the commercial practices of manufacturers and distributors. For professionals, this means being irreproachable. And for individuals who consider themselves victims of misleading advertising? They can join as a civil party in proceedings brought by the CNCT, but it is rare for individuals to bring an action alone.

What you absolutely must remember

FAQ:

• Can a distributor be prosecuted for slogans printed by the manufacturer? Yes, for complicity in prohibited advertising. The distributor has an obligation to check the compliance of the products it sells.
• What should I do if I discover an advertising slogan on a packet already on the shelf? Remove it immediately from sale and keep it as evidence. Report it to your supplier and the CNCT.
• Are corrective measures after the sale useful? Yes, they can mitigate the penalty, but they do not erase the offence. It is better to act upstream.
• What is the financial risk? A fine of up to €100,000 for a legal entity, and damages to the civil party.

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