French Superior Audiovisual Council notice of December 19, 2003 on television advertising in favour of the press sector

Decree no. 2003-960 of October 7, 2003, amending decree no. 92-280 of March 27, 1992, lifted the ban on the press sector's access to television advertising. As a result, as of January 1, 2004, advertisers in this sector can access television advertising screens.
In view of the need to harmonize advertising regulations, the French Superior Audiovisual Council has decided to use its interpretative powers to specify the conditions under which television advertising for the press sector may be carried out.
The following guidelines are intended to provide television service editors with a clearer idea of the principles that guide the Conseil in its task of enforcing regulations, and will obviously be assessed on a case-by-case basis.

I - Areas where television advertising is prohibited

First of all, press advertising must take account of the fact that certain sectors are banned from television advertising, either for reasons of public health protection or to preserve cultural diversity.

A/ Protection of public health

1/ Tobacco or tobacco products
Article L. 3511-3 of the French Public Health Code prohibits"direct or indirect propaganda or advertising for tobacco or tobacco products".
Under the provisions of the first paragraph of article L. 3511-4 of the aforementioned Code,"propaganda or advertising in favor of an organization, service, activity, product or article other than tobacco or a tobacco product is considered to be indirect propaganda or advertising when, through its graphics, presentation, use of a brand name, advertising emblem or other distinctive sign, it is reminiscent of tobacco or a tobacco product". In accordance with the second paragraph of article L. 3511-4, these schemes do not apply"to propaganda or advertising for a product other than tobacco or a tobacco product which was placed on the market before January 1, 1990 by a company which is legally and financially distinct from any company which manufactures, imports or markets tobacco or a tobacco product. The creation of any legal or financial link between these companies renders this derogation null and void".
Subject to this proviso, advertising in favor of a press publication devoted specifically to tobacco or its products should be prohibited, as should advertising in favor of any other publication that lists tobacco or tobacco products in any way other than critically.

2/ Alcoholic beverages
Under the provisions of article L. 3323-2 of the French Public Health Code,"direct or indirect propaganda or advertising for alcoholic beverages" is prohibited on television, and without prejudice to the second paragraph of article L. 3323-3 of the said Code, which regulates propaganda or indirect advertising for a product other than an alcoholic beverage, advertising for a press publication devoted specifically to alcoholic beverages should be prohibited, as should advertising for any other press title ostensibly listing alcoholic beverages or presenting their consumption in a favorable light.

3/ Prescription drugs
Under the provisions of article L. 5122-6 of the French Public Health Code,"a medicine may only be advertised to the public if it is not subject to medical prescription, is not reimbursable by compulsory health insurance schemes, and the marketing authorization or registration does not include restrictions on advertising to the public because of a possible risk to public health".
While this provision does not constitute an obstacle to television advertising in favor of a specialized press title, the French Superior Audiovisual Council nevertheless considers that no reference, other than generic or critical, should be made to a drug subject to medical prescription. This rule applies especially to advertising for non-specialized publications.
Advertising messages in television programs accessible only to health professionals are exempt from this constraint.

4/ Firearms
Under the provisions of article 5 of decree no. 85-1305 of December 9, 1985,"in order to advertise [firearms and ammunition] in accordance with article 3 of the aforementioned law of July 12, 1985, audiovisual communication means which make available to the public by radio or any other means, whether sound, images, documents, data or messages of any kind, must, without prejudice to the provisions of article 3 of the aforementioned law of July 12, 1985, make available to the public by radio or any other means, images, documents, dataor messages of any kind, withoutprejudice to the provisionsof article 5 of decree no. 85-1305 of December 9, 1985,images, documents, data or messages of any kind, must, without prejudice to other rules relating to advertising in the audiovisuel communication field, devote more than one third of the part of their programs left free by advertising to programs relating to hunting, fishing or sport shooting".
Consequently, television services which devote more than a third of their programs to hunting, fishing or shooting sports may show advertising messages for specialized or non-specialized press titles which refer to firearms or their ammunition.
On other television services, the French Superior Audiovisual Council considers that advertising in favor of a press publication, whether specialized or not, must not make conspicuous reference to firearms or their ammunition, or present their use in a favorable light.

B/ Other sectors

1/ Cinema
Advertising messages in favor of the film industry, with the exception of those shown in programs subject to special access conditions for film services distributed by cable or broadcast by satellite or digital terrestrial broadcasting, are prohibited on television.
Consequently, advertising for a press title, whether specialized or not, that clearly lists a film currently showing in cinemas or about to do so, should be prohibited.

2/ Literary publishing
As of January 1, 2004, the decree of October 7, 2003 opens up the advertising screens of television services distributed by cable or shown by satellite to the literary publishing sector.
For other services, shown by terrestrial broadcasting, advertising for books and collections remains forbidden. For this reason, they should not be allowed to show advertisements for specialist or non-specialist press titles that clearly list the launch of a book or collection.

3/ Distribution
The ban on television advertising in the retail sector was lifted on October 7, 2003. Advertising in this sector is now authorized, subject to the following conditions: it must not relate to"commercial promotional operations", i.e. supplies of products or services, or the organization of events of an occasional or seasonal nature, and it must not, until January 1, 2007, be broadcast on the advertising screens of national terrestrial channels.
Consequently, advertising for a press publication listing a retailer should remain banned on national analog terrestrial services until January 1, 2007. On other services, such advertising is legal, provided that it does not list commercial promotions.

II - Advertising that may contain political content

Under the provisions of article 14 of law no. 86-1067 of September 30, 1986, as amended,"political advertising programs are prohibited". Under article 5 of decree no. 92-280 of March 27, 1992,"advertising must not contain any element likely to shock viewers' religious, philosophical or political convictions".
The French Superior Audiovisual Council considers that the new freedom set out in the decree of October 7, 2003 should be seen as an extension of press freedom.
Consequently, unless they are clearly circumvented, the aforementioned schemes do not appear to the Conseil Supérieur de l'Audiovisuel to preclude advertising for a publication listing a political figure, event, party or grouping, in compliance with the provisions of article 5 of the aforementioned decree of March 27, 1992.
During periods of application of the French Superior Audiovisual Council's notices guaranteeing the plurality of expression of currents of thought and opinion during election periods, television service editors must not show advertisements whose content could influence the vote.
Advertisements containing verbal or visual references to candidates or lists of candidates, to the electoral competition or to the possible consequences of the election at local, regional or national level are likely to influence the ballot.
The French Superior Audiovisual Council will reiterate these specific rules for election periods in each of its notices.

III - Charming press

In accordance with article 15 of the amended law of September 30, 1986,"the French Superior Audiovisual Council ensures the protection of children and adolescents and respect for human dignity in programs made available to the public by an audiovisual communication service".
Under the provisions of article 3 of the decree of March 27, 1992,"advertising must comply with the requirements of truthfulness, decency and respect for human dignity". In accordance with article 7 of the aforementioned decree,"advertising must not cause moral or physical harm to persons under 18".
While all advertising for press publications must comply with these various principles, both verbally and visually, the nature of certain publications requires them to be subject to a special advertising regime. This applies to publications of an erotic nature and those containing pornographic images.
The French Superior Audiovisual Council considers that any advertising for a publication containing pornographic images is forbidden on a television service not authorized to program works forbidden to persons under 18.
If it has not been subject to an advertising ban under article 14 of law no. 49-956 of July 16, 1949, because of the danger it could present to young people, a publication containing pornographic images may be promoted, between midnight and 5 a.m. and subject to dubbed programming, on television services authorized to program works forbidden to persons under 18.
Advertising for erotic publications containing no pornographic images is authorized on television services other than those intended for young people, provided it is programmed in accordance with the procedures laid down by the French Superior Audiovisual Council for works forbidden to under-sixteens, i.e. after 8:30 p.m. on cinema and pay-per-view services, and after 10:30 p.m. on other services.

IV - Composite products

In 1999, the French Superior Audiovisual Council adopted a scheme to regulate television advertising for so-called"composite" products, i.e. those combining an audio or video cassette, a CD, a video game, a CD-ROM or a DVD with a booklet.
The opening up of advertising screens to the press sector renders this scheme obsolete as of January 1, 2004.

The present notice will be published in the Official Journal of the French Republic.

Browse the French Superior Audiovisual Council's notice on television advertising in favor of the literary publishing sector (December 19, 2003).