Last Updated: 15 December 2017

Article by Erik Ullberg (Wistrand); Global Advertising Lawyers Alliance (GALA)

The Swedish Radio and Television Act (“SRTA”) contains a prohibition on advertising of alcohol and sponsorship by alcohol companies in Swedish television and radio broadcasts. The prohibition targets all Swedish television channels, but several television channels has circumvented the general ban. Television channels such as TV3, TV6, TV 8 Kanal 5 and Kanal 9 are more or less exclusively directed towards Swedish viewers, but broadcast under UK licenses which implies that they are subject to UK jurisdiction. The UK legislation regarding alcohol advertisement is, in comparison with Swedish legislation on alcohol marketing, more permissive.

The SRTA has transposed the Audio-visual Media Services Directive 2010/13/EU (AVMS Directive) into Swedish law, which is based on the “country of origin” principle. This implies that the Swedish prohibition on alcohol advertisement is not possible to enforce since these television channels are broadcasting from the UK. Hence, Swedish television viewers are generally exposed to alcohol advertisement.

The Swedish Broadcasting Authority (SBA) has previously submitted a formal request to the British regulator, Ofcom, to urge the concerned broadcasters to adhere to the stricter Swedish rules. The broadcasters, however, chose not to follow the request. In 2014 the SBA, together with the Swedish Consumer Ombudsman (SCO) notified the European Commission and the UK according to article 4 of the AVMS Directive of their intention to take measures against broadcasts from the UK breaching the Swedish rules. The Swedish authorities argued that the broadcasters circumvent Swedish law by establishing in the UK. Due to formality shortcomings, the notification was withdrawn by the Swedish authorities and thus never investigated by the European Commission. The SBA and the SCO have recently done their homework and collected the relevant documentation as required to submit the notification. The Swedish regulators contacted the European Commission on 31 October 2017 once again, requesting that they should be able to enforce the same measures on the UK broadcasters as the ones applicable to broadcasters in relation to advertising and sponsorship of alcohol on television from Sweden. This would mean, for example, that the SCO could enforce Swedish legislation against the concerned television channels in Swedish courts even if they broadcast from the UK.

The Swedish regulators are now waiting to receive an opinion from the Commission if such measures would be compatible with EU law. If the EU Commission considers that it is not, Sweden must refrain from taking any measure. The Commission has until 1 February 2018 to decide on whether or not all the requisites are fulfilled for the Swedish authorities to apply the desired measures.

 

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