The Public Health (Prohibition on Advertisement, Sponsorship and Restriction on Sale and Consumption in Public Places, of Alcoholic Drinks) Regulations 2008 were amended in July 2021 to further restrain the advertisement, promotion and sponsorship of alcoholic drinks. “Alcoholic drink” is now defined as a drink having an alcoholic strength exceeding 0.5 per cent of alcohol by volume.
The term “public place” has now an enlarged definition to not only cover any place where the public has or is entitled or permitted to have access, whether on payment or otherwise, a workplace, public fair, public concert, or public transport, but also covers a health institution, an educational institution, a sports complex, and any other public conveyance. A public beach and business premises which are licensed for the sale of alcoholic drink by retail for consumption on such premises continue to be excluded from the definition of public place.
Since 2008, there is a prohibition on the advertisement of an alcoholic drink for its sale or consumption. The 2021 amendment defines the term “advertise” as meaning “to publicise any drawn, still or moving picture, sign, symbol, trademark, manufacturer’s name, logo, brand name, other visual image or message or audible message” and includes any commercial communication through media or any other means. It further extends the prohibition to the advertisement of a trademark, a manufacturer’s name, logo or brand name which is associated with any alcoholic drink. It also contains a catch-all provision which prohibits the advertisement of “any such other thing associated with an alcoholic drink”. This catch-all provision is meant to capture taglines which any reasonable person would immediately associate with an alcoholic drink.
There were a number of convictions under the 2008 regulations, namely shops having refrigerators with the phoenix beer logo thereon1, or refrigerators on which there was a sticker which read “Guinness, Essayez sa (SIC) bien frais’2. There was another conviction where there was a table cloth on one of the tables inside a shop, on which was written “Phoenix Beer” together with the logo of Phoenix beer at several places on the cloth3.
The 2021 amendment further prohibits the promotion of alcoholic drinks or any such other thing which is associated with an alcoholic drink. The term “promote” is defined as any “act intended to, or likely to, encourage, directly or indirectly, the purchase or use, or to create an awareness” and it also includes the offer or supply of an alcoholic drink free of charge, at a discounted price, as a prize, pursuant to a lottery or otherwise.
In today’s digital era, all companies invariably have a digital presence and a social media page. It is debatable whether any posts coming from the seller on such a social media page would amount to promoting the said alcoholic drink. A consumer who posts his appreciation for an alcoholic drink, writes a review or simply uploads a picture of himself with his favourite alcoholic drink with or without a caption could also be captured under the 2021 amendment as amounting to promotion.
Since 2008, there is a prohibition on any form of sponsorship in relation to an alcoholic drink or a brand associated with an alcoholic drink. The 2021 amendment defines “sponsorship” as “any form of contribution to any event, activity, or individual with the aim, effect, or likely effect or promoting an alcoholic drink or consumption of an alcoholic drink, directly or indirectly”.
The 2021 amendment further adds a new series of prohibitions namely:
- no person shall sell, offer to sell, distribute or cause to be distributed, free of charge, any alcoholic drink, in a public place, to a person aged under 18 years;
- no person under the age of 18 years shall be in possession of an alcoholic drink in a public place;
- no person shall sell an alcoholic drink on credit on the business premises licensed for the sale of alcoholic drinks.
These new amendments have to be read in conjunction with section 16 of the Child Protection Act which provides that “no person shall sell any liquor, rum, or compounded spirits to a child”. A child is defined as an unmarried person under the age of 18. Under the Child Protection Act, although the restriction to sell is absolute, in that it is not limited only to a public place, the restriction, however, does not pertain to any alcoholic drink or beverage but only to liquor, rum, or compounded spirits; each one being clearly defined in the Excise Act.
The 2021 amendments raise a number of other questions, namely:
- would the holding of “happy hours” be prohibited inasmuch as offering an alcoholic drink free of charge or at a discounted price would amount to promotion, which is prohibited?
- Can a manufacturer of alcoholic drink who also manufactures non-alcoholic drink advertise the non-alcoholic drink inasmuch as it is precluded from using its name or logo in any kind of advertisement simply because it also manufactures alcoholic drinks?
- can satellite channels transmitting foreign tv channels which advertise alcoholic drinks continue to do so without infringing the 2021 amendments?
- since the 2021 amendment prohibits the possession of any alcoholic drink by a minor in a public place, would it mean that a minor can lawfully possess an alcoholic drink on private premises, and a the public beach?
- can a restaurant (which is a business premises licensed for the sale of alcoholic drink by retail for consumption on such premises, and as such exempted from the definition of a public place) offer free of charge an alcoholic drink to a minor?
In other jurisdictions, laws relating to the prohibition on the advertisement, promotion and sponsorship of alcoholic drinks contain certain exceptions which cater for commercial realities like for instance, inscriptions on vehicles used for the delivery of such beverage, shop fascia and signage of sales outlets specialised in the sale of alcoholic drinks. Such exceptions are not catered for in our local laws nor does our law bear in mind our local specificities and realities like certain family names or locality names which have a long history of manufacturing or distributing alcoholic drinks.
Even if the 2021 amendment seems to have adopted a very precautionary approach to address the increasingly sophisticated advertising and promotion techniques used to market alcohol including linking alcohol brands to sports and cultural activities, sponsorships and the use of social media, the authorities need to ensure that they will have the capacity and ability to enforce these regulations. In the past, we have seen many instances where established companies were complying with the regulations whereas smaller online shops were using social media to promote alcoholic drinks without being sanctioned thus creating unfair competition. As mentioned above, there are several issues which must be addressed by the responsible ministry to shed light on the correct interpretation and application of the new regulations.