Ireland, 12-11-2021 Matheson
Kate McKenna, Simon Shinkwin and Neringa Juodkunaite
The prohibition on alcohol advertising in or on a “sports area” during a sporting event will come into effect on today: 12 November, 2021. The new prohibition is part of the Irish Government efforts to reduce the consumption of alcohol in Ireland under the Public Health (Alcohol) Act 2018 (the “Act”). The wide range of measures in the Act regarding availability, price, marketing, labelling and advertising of alcohol have been implemented gradually since November 2019.
Prohibition of Alcohol Advertising and Sponsorship
The latest phase of implementation will see Section 15 of the Act prohibit the act of advertising alcoholic beverages in or on a “sports area” (eg, a playing pitch) during a sporting event, at events aimed at children or in which the majority of participants or competitors are children. Section 16 of the Act also prohibits sponsorship of events where the majority of participants or competitors are children, or the event is primarily aimed at children. However, the Act permits sportspersons to wear clothing containing the name, trademark or logo of a brand of alcohol product, provided the sporting event in question is not aimed primarily at children. This allowance for alcohol brands to remain as kit sponsors for sports teams is most likely explained by an acceptance of the practical and cost barriers to a sports team having different kits for matches in Ireland and outside the jurisdiction (where the Act does not apply).
A contravention of the new restrictions is an offence for which there are severe penalties, including a fine of up to €250,000 and / or up to three years imprisonment. Given criminal sanctions apply, the wording of the new prohibition should be strictly construed, with only clear breaches being capable of prosecution. We would also expect the enforcement authority (the HSE) not to jump to taking a criminal prosecution as a first enforcement step, and to instead issue a formal warning (inviting an advertiser to cease a certain practice in order to avoid prosecution) as a first step.
Section 15 of the Act has been compared to the French Loi Evin, which imposed a complete ban on alcohol sponsorship of sporting events in France. This led to the development of so-called “alibi marketing”, where features linked to the brand are used for promotional purposes without explicitly referring to the brand itself. Chief Executive Dr Sheila Gilheany of Alcohol Action Ireland, an advocate for reducing alcohol harm, has called for “the Irish Government and public health officials to be wary of the current loopholes seen in the French approach and ensure our regulations protect against this”.  However, the Act contains no clear prohibition on “alibi marketing” and as noted above the Act must be strictly construed as a criminal statute.
Sheila Gilheany (Alcohol Action Ireland)
Even if Ireland sees a switch to permissible “alibi” and “off the pitch” marketing post 12 November, Section 15 of the Act is still likely to have a significant impact on the dynamics of sports sponsorship. There will be particular impacts on the value of ‘legacy’ sponsorships in the short-term and in the medium-term we will likely see the beginning of partnerships with alternative sponsors and the development of a predictable pattern of enforcement practice by the HSE’s Environmental Health Officers.