AMERICAS

CHILE: Changes in the Tobacco Law favour cigarette advertising in Chile
Author: Loreto Bresky, Albagli, Zaliasnik & Cia.

On December 21st 2005, the Health Commission of the House of Representatives made a substantial change to the bill regulating the sale and advertising of tobacco in Chile. According to this new project, the sale of cigarettes outside of schools might be permitted, as would advertising of cigarettes geared towards those older than 18 years of age.

These changes have generated a strong dispute due to the possibility that tobacco companies might start lobbying to pare down the bill, given that the prior version prohibited tobacco advertising except at indoor points of sale, as well as outlawed the sale of cigarettes within 100 meters of a schools’ entrance doors.

The new bill, which will be voted by the Chilean House of Representatives at the end of January 2006, also sets forth that the warning message on the cigarettes boxes must be “clear and precise” regarding the damages, illnesses or effects of the tobacco based upon scientific knowledge. Regarding the warning notice, this must appear on both main sides of the boxes and cover at least 50% of each of them.

CHILE: Law Submitted to Congress Proposing the Regulation of Alcoholic Beverages
Author: Loreto Bresky, Albagli, Zaliasnik & Cia.

A draft law has recently been submitted to the Congress of the Republic of Chile that proposes the regulation of advertising of alcoholic beverages. This proposal has been presented on the basis of a concern for promoting public welfare and amongst this, people’s health, establishing that an adequate protection of our health is required in the face of a problem in our current society such as alcoholism.

Although it is true that norms exist to regulate the production, preparation, marketing, export and import of alcohol and vinegar and another that deals with the sale of alcoholic beverages, the measures on prevention and rehabilitation of alcoholism and the sanctions and the procedures applicable to those that infringe the pertinent regulations, in none of these legal provisions is there a norm that regulates the advertising of alcohol. Notwithstanding the above, we should point out that currently, advertising of alcohol falls under the auspices of CONAR’s (Council for the Self-Regulation and Ethics of Advertising) Code of Ethics, which is not binding and states that:

Advertising of alcoholic beverages may not contain messages or be aired through media or during hours specially directed at minors, nor may it encourage them to consume such products.

In particular, this advertising must avoid:

A. The utilization of minors, both in image and voice, whichever the media used. All those appearing in such advertising must be and must appear to be adults.

B. The utilization of situations typically of minors. 

C. The utilization of backups, media or their sections, directed fundamentally at minors.

D. Their display in cultural, social or sporting events directed specifically at minors.

Advertising of alcoholic beverages must not encourage excessive or irresponsible consumption, nor induce its consumption in illegal, dangerous, improper or socially unacceptable places or circumstances. 

Advertising in general must not depict alcoholic beverages as a challenge. Nor must they imply contempt for those that do not consume these products.

Advertisements for alcoholic beverages must not imply any association between their consumption and driving vehicles.

Those promoting this proposed law maintain that the heavy limitations placed on tobacco in order to protect public health appear totally arbitrary if the same is not done with alcohol, a product that can be equally or more harmful to one’s health than tobacco.

It is of no use to have, on the one hand, prevention campaigns, but on the other, to be able to see advertisements during the “All Spectator” timetable and thus depicting drinking favorably, especially for the youth.

For this reason, the project seeks to severely limit the advertising of products that contain alcohol, establishing that this may only be displayed between midnight and 6am and with that prevent minors from watching the advertisements. Furthermore, it establishes the obligation of producers of alcoholic products and those that publicize them, to place on them a label with clearly visible dimensions on which it must demonstrate graphically that alcohol is harmful to one’s health.

Thus, the containers or labels of any alcoholic beverage with a grade of 4.5º or higher, must bear, in a legible form, utilizing distinguishing colors between the text and the background and occupying 15% of the total surface of the label, one of the following messages:

“Warning: EXCESSIVE CONSUMPTION OF ALCOHOL IS HARMFUL TO YOUR HEALTH”. “Warning: “CONSUMPTION OF ALCOHOL DURING PREGNANCY MAY CAUSE IRREVERSIBLE HARM TO THE FETUS”. “Warning: “SALE FORBIDDEN TO MINORS”

The same phrase shall be included in the advertisements inserted in newspapers, magazines, television spots and radio announcements and, in general, in any propaganda or promotion of consumption of alcohol announced by any social communications media.  

In the case of television or cinematographic propaganda, after the spot or announcement, a sign that covers the entire screen containing the warning described in Point 2 will be projected for a period of not less than 5 seconds.

Furthermore, the project proposes that the communications media may not display simultaneously advertising of alcoholic beverages and State publicity.

Infringement of these norms will carry fines that fluctuate between approximately USD 2,000 and USD 4,000.

The project was sent to Congress recently so there is still much ground to be covered and it may well suffer modifications during this period.

DOMINICAN REPUBLIC: Caribbean without Bikinis?
Author:  Zaida E. Lugo, Esq., Angeles & Lugo Lovaton

On April 12, 2007, Congressman Néstor Cruz introduced to the Chamber of Representatives a project of law seeking the protection against the abuse of the image of women on television.

In eight introductory supportive paragraphs, Cruz defended his initiative which, according to his beliefs, aims to care for both mental and spiritual health of Dominican citizens.

One of the paragraphs supporting the Project, stated that: “the use and abuse of the body and figure of women in television propaganda is negatively affecting the education of children of both sexes, to the point where it is limiting their intellectual capacity and deforming their vocational interests”.

The first paragraph of proposed Article 5 indicated that the use of images of women in bikinis in television commercials for means other than to promote a bathing suit trademark or to cover a fashion show would be a violation to the law.

The project encountered criticism and opposition by the Dominican Advertisement Agencies Association, Inc. (LIDAP), who presented arguments in writing and during a public hearing held by the special commission of Representatives appointed to review the initiative.  Among the critics:

1) That the project ignored, for procedure purposes, the existence of Laws No. 358-00 regarding Consumer Protection, and 136-03 regarding the Protection of Children and Teenagers.

2) That a particular matter should not be addressed by a law, but instead the Commission should study the proposal prepared by LIDAP for the approval of a General Publicity Law.  LIDAP has prepared said Project of Law with the aid of Law Offices ANGELES & LUGO LOVATON.

As a result, the Permanent Commission of the Chamber of Representatives for Matters related to Media, has appointed Zaida E. Lugo, Esq., of ANGELES & LUGO LOVATON, as their formal advisor for the drafting of a Publicity Law.  Mrs. Lugo is now working with client LIDAP to give final touches to the project.

On December 4, 2007, during a Press Conference, the Commission announced the rejection of the “Bikini Law Project” and that works have started to promote a general Publicity Law for Dominican Republic.

PARAGUAY: Ambush Advertising and the World Cup 2006
Author: Carlos Cazana, BERKEMEYER


Ambush Advertising Concept

At its quest to catch as much public attention as possible and to achieve its objectives advertising uses all avenues that are available. Sometimes, these avenues are occasional or even accidental, but a good advertiser identifies them rapidly and knows how to get the most of them successfully.

The problem is that at times, external elements that could mean a great opportunity for an advertiser are not fortuitous nor are caused by mere natural reasons, but they are the result of a human conscious deliberated plan and effort which deserves protection based on intellectual property and other kind of norms.

And so, an attempt by a party to associate itself directly or indirectly to one of said propitious circumstances by including given wordings, sounds and/or images in ads or promotions without proper authorization –and of course without paying- is called “ambush advertising” or “ambush marketing".

Basically, unauthorized companies seek to relate their trademarks or products or services to trademarks or other distinctive symbol of the event, in order to bring about confusion and to take unfair advantage of the economic efforts of the organizers and its official sponsors and suppliers, which have invested considerable sums of money to be part of said event.

There are certain aspects that cause ambush advertising cases to be more frequent and blatant in relation to an event: popularity, proximity, among others.

The FIFA World Cup 2006

Football (or soccer) is a very simple game. Perhaps this is the reason it is one of the most popular sports in the world.

Every four years, the worldwide football authority, FIFA, organizes the World Cup, a one-month contest between teams from all countries, which results in the biggest worldwide event related to one single sport. The best players from each country are part of a team that looks to obtain first place at the competition and be considered as the best football team in the world. Winning is a great honor that is celebrated by all the citizens of the victorious country, who follow the matches with great attention and interest.

This year, the FIFA World Cup takes place in Germany. This event requires a huge financial investment that is obtained mostly from official sponsorships and suppliers.

In order to reward such economic input, FIFA grants official sponsors and suppliers exclusive rights to FIFA’s trademarks and marketing elements (such as entrance tickets to matches), so only they can use them for their own commercial activities and campaigns and increase their profits. No other company is allowed to use FIFA’s trademarks and elements without prior authorization of FIFA or its affiliates.

The opportunity to profit from this event, especially for those countries whose teams pass the preliminary rounds and earn the right to play there, is a great temptation, especially since not that many are strong. Although sometimes benefits come with no effort nor transgression. For example, it is very common to notice that sales of certain goods such as televisions and national soccer team’s T-shirts are increased extraordinarily from these games, sales of which do not require advertising.

However, in order to concentrate on sales or to encourage the sale of products that are not benefited by the World Cup on their own, undue ambush advertising is widely used in terms of promotions and/or use of elements for ads related to said competition.

Ambush advertising in Paraguay

In Paraguay, where fondness for football reaches fanaticism, as in many other countries, there is a great sense of anxiety as Paraguay’s  national soccer team is one of the four teams from South America that gained the right to be at the FIFA World Cup in Germany last June 2005.

As a consequence, companies that were not related to the FIFA World Cup 2006 in economic terms launched promotions that included FIFA’s trademarks or elements and/or that offered travel packages to the World Cup that included entrance tickets to matches as prizes. This is true in the following two cases.

The “Munich” World Cup 2006 Promotion

A local alcoholic beverages manufacturer that owns a beer called “MUNICH” launched an aggressive promotion entitled “THE MUNICH WORLD CUP 2006 PROMOTION”. This promotion included FIFA’s trademarks and registered elements and it offered entrance tickets to the World Cup as the main prize. Warning   notices  were   dispatched to the local company regarding unauthorized use of FIFA’s trademarks and distribution of entrance tickets to matches.

The company committed to cease use of FIFA’s trademarks but refused to exclude entrance tickets to matches from the prizes.

Since there were no legal solid fundaments to file a quick and effective judicial action to stop this promotion, FIFA decided to inform the public through newspapers and other forms of media that any entrance tickets to World Cup matches that were obtained as a prize from a promotion conducted by companies that aren't official sponsors will be deemed as void and could be annulled by the Organization Committee. Therefore, any person with such tickets can be banned from entering the stadiums and can be even expelled.

After such maneuver, the local company notified that they would finish their promotion once the first part was finished.

The “Personna” Promotion

A local import company launched a promotion in relation to one of its products, a razor called “PERSONNA” and offered as the main prize a trip to the World Cup 2006 in Germany that included entrance tickets to matches.

Warning notices were mailed to the company, in order to inform them that free distribution of tickets was illegal and was banned by FIFA.

The company was also advised that any entrance ticket to World Cup matches obtained from a promotion would be considered void and the Organization Committee will cancel them.

In spite of these warnings, the local import company continued promotion until the end as previously planned.

Conclusion

As in many countries, in Paraguay there is no legislation that deals with and prevents ambush advertising specifically.

It is considered as an expression of unfair competition in general, and so any claim related to ambush advertising should be conducted at a full trial procedure, which is complicated and lasts too long. Besides, judges do not have a uniform criterion in this field.

For such reason, it is necessary to create a proper legislation related to ambush advertising that will allow affected parties to obtain a measure or a solution promptly.

Ambush marketing is a complicated subject, there are situations that require a profound analysis to determine whether it should be considered ambush advertising or not. For example:

  • In case of use of general wording or images that are not related to the event and that are not protected under IP laws.
  • Advertising activities of entities that are not related those responsible for the event but to one of its affiliates (for example, a company that sponsors a national soccer team but not the FIFA World Cup).

Perhaps it is a good opportunity to start working on this field more decidedly, so for the next World Cup a more complete and efficient effort can be conducted against ambush marketing.