ADVERTISING BAN GOES TO EUROPE'S HIDDEN COURT

The EU's Official Journal reports that there has been a request for an Advisory Opinion from the EFTA Court by the Norwegian Markedsrådet (Market Council) in the case of Pedicel AS v Sosial- og helsedirektoratet (Case E-4/04). The questions asked of the EFTA Court are as follows:

1. Since wine is not included in the product coverage of Article 8(3) of the EEA Agreement:
should the Agreement — including Article 18 and Article 23 cf. Protocol 47 — be so understood that Article 11 and/or Article 36 are applicable to wine?
2. Should Article 11 and/or Article 36 of the EEA Agreement be so understood that they are applicable to national legislation that contains a general prohibition against the advertising of alcoholic beverages, such as in the Act on the sale of alcoholic beverages, section 9-2 et al.?
3. If question 2 is answered in the affirmative: Can such a prohibition nevertheless be maintained out of concerns for public health, and if so, is it in conformity with the proportionality principle of EEA law?
When answering this question, it should be indicated to what extent the application of a general precautionary principle in this field would be in conformity with the case law of the EFTA Court/Court of Justice of the European Communities.

The IPKat always gets excited when questions are referred to the EFTA Court, since it's one of Europe's forgotten courts. Advertising bans are bad for consumers, at least to the extent that they deprive them of information they need when making their purchase decisions. They're also bad for brand owners, whose valuable assets cannot be promoted profitably within the most natural medium for them. Merpel says, "advertising bans are all a bit irrelevant these days, aren't they, since whatever is banned in the mass media is generally available over the internet anyway".

EFTA Court here
More on bans on advertising alcohol here, here and here