The Draft Ministerial Regulation on Advertising of Alcoholic Beverages (the "Draft Ministerial Regulation"), aimed at controlling visual advertising of alcoholic beverages in Thailand, was approved in principle by the Thai Cabinet on 26 May 2009.
Although the Alcoholic Beverages Control Act B.E. 2551 (2008) (the "Act") came into effect on 14 February 2008, it is arguable that the enforcement of the Act has not been as rigorous as it could have been in the intervening period. Some observers have commented that this may be due in part to a lack of a regulation clarifying the scope of certain areas. In fact, there has been a lot of uncertainty as to how strictly the rules regulating the advertising of alcoholic beverages under the Act would be applied. A further area of uncertainty surrounds the scope of certain exceptions that appear to apply to manufacturers of alcoholic beverages. The Draft Ministerial Regulation helps clarify some of the issues principally relating to visual forms of advertising.
Draft Ministerial Regulation
Provisions covered by the Draft Ministerial Regulation are as follows:
Visual advertising of alcoholic beverages by manufacturers is allowed, but only according to the following conditions:
- advertisements displaying any symbol of an alcoholic beverage or of a manufacturer must: (a) contain provisions of information and socially beneficial knowledge; and (b) not contain any characteristics that directly or indirectly boast their beneficial properties or qualities, or encourage consumption of alcoholic beverages; and
- the display of any symbol of an alcoholic beverage or a manufacturer that is made through the following media must be subject to the criteria set out below.
2.1 For any visual display broadcast on television, in cinemas, on video or via electronic devices or any other similar types of media:
(a) the size of the symbol must not be larger than 5% of the total advertising space;
(b) the period of display must not exceed 5% of the advertisement show time, but in any event may not be longer than two seconds;
(c) the advertisement may only be on air between 10:00 p.m. and 5:00 a.m.; and
(d) the symbol must only be displayed at the end of the advertisement.
2.2 For print media:
(a) the symbol must not be larger than 5% of the total advertising space; and
(b) the symbol must not appear on the front cover, back cover, middle pages or wrapping material of the print media.
2.3 For media other than 2.1 and 2.2, the size of the symbol may not be larger than 3% of the total advertising space of such media.
2.4 For all types of media, a health warning will also be required during the display of the symbol. The contents of the health warning will be prescribed later by the Alcoholic Beverages Control Committee in its notification.
"Information and socially beneficial knowledge"
Prior to the publication of the Draft Ministerial Regulation, there had been some confusion as to what was meant by the term "information and socially beneficial knowledge" as used in the Act (see paragraph 1(i) above). The Draft Ministerial Regulation seeks to clarify the interpretation of that phrase. Essentially, it must be information or facts that provide knowledge which promotes good morals, culture or good social values without displaying all or part of the pictures of the alcoholic beverages or their packaging. No examples as to what is deemed suitable is provided in the Draft Ministerial Regulation.
Definitions are given to a "Symbol of an Alcoholic Beverage" and a "Symbol of an Alcoholic Beverages Manufacturer". Both have to be properly registered and must not be similar to each other in a way that may create public confusion. In addition, they must not:
a. contain picture or parts of the package or the product; or
b. any messages that add to the product's beneficial properties or attractiveness; or
c. have characteristics that directly or indirectly encourage consumption of alcoholic beverages.
The Draft Ministerial Regulation addresses the issue of visual advertising only. Audio advertising is controlled and governed by Paragraph 1 of Section 32 of the Act, which basically prohibits any advertisement of alcoholic beverages that is deemed to boast their beneficial properties or persuade other persons to drink, directly or indirectly.
The Draft Ministerial Regulation is currently with the Council of State for final revision before being sent back to the Cabinet for final approval. Since the Cabinet has approved the Draft Ministerial Regulation in principle, the contents are not expected to be altered significantly.
The approval in principle of the Draft Ministerial Regulation is likely to remove one obstacle that has arguably resulted in the reluctance of the relevant governmental authorities to enforce the Act. The Draft Ministerial Regulation does, however, focus on visual advertising.
All manufacturers, distributors, wholesalers and retailers of alcoholic beverages as well as other business operators conducting businesses relating to alcoholic beverages, such as hotel operators, pub and restaurant owners, etc. will have to analyse their campaigns to determine whether their marketing and advertising activities comply with the applicable law, including the Act. For anti-alcohol lobbying groups, the Draft Ministerial Regulation is likely to be seen as a victory.
For inquiries related to this Client Alert, please contact:
Peter Burke (firstname.lastname@example.org)
Chitanong Poomipark (email@example.com)
Manuswi Intaranont (firstname.lastname@example.org)