New Regulation of the Alcohol Law: More Regulation on Labeling and Advertising of Alcoholic Beverages

Felipe Von Unger from Alessandri Abogados analyzes the new Chilean Law on Alcohol

Almost two years after the enactment of the Alcohol Law, on July 7, 2023, the Chilean Ministry of the Interior and Public Safety published the regulations, which regulate the provisions of the new Articles 40 bis and 40 ter. The regulations applicable to the marketing of alcoholic beverages are reaching the standards and requirements existing in other mass consumption industries

Law No. 21,363, of August 2021, whose text modifies, among others, Law No. 19,925, (Alcohol Law), established a series of rules regarding the advertising and marketing of alcoholic beverages, that is, those with an alcohol content equal to or greater than 0.5 degrees. This amendment to the Alcohol Law brought a set of novelties whose entry into force was conditioned to the issuance of a supplementary regulation by the authority. Thus, the new articles (40 bis and 40 ter) of the Alcohol Law would enter into force one year and 36 months after the publication of said regulation, respectively.

Regarding the content of such articles, we can say:

Article 40 bis of the Alcohol Law

1. In compliance with certain technical requirements (e.g., size, percentage of the container), all beverages with an alcohol content equal to or greater than 0.5 degrees that are intended to be marketed in Chile must bear a clear, precise and visible warning on the container about the consequences of its harmful consumption. The same warning shall be contained in the boxes or packages of promotional character destined to the consumer, which contain them.

2. Also complying with certain requirements, the containers must have a printed graphic warning showing a car, a pregnant woman or a number 18, each surrounded by a circumference, or whatever the corresponding regulation may indicate.

3. The warnings indicated in numbers 1 and 2 above shall also be included in any graphic or advertising action that is disseminated in the written media, or on posters or advertisements of any kind, whether physical or virtual. Said warning must be inserted in a box covering at least 15 percent of the surface of the graphic action. In any case, any graphic action encouraging the consumption of alcohol shall be prohibited on public property, except for those signs or signage located on roads or highways that allow access to vineyards, wineries or places where alcoholic beverages are produced.

4. In audiovisual advertising, while the commercial is shown and for a period of no less than three seconds, a legend that complies with the provisions for labeling shall be projected.

5. In the case of radio advertisements, any of the warnings indicated in the second paragraph shall be reproduced after the advertisement, and for a period of no less than three seconds.

6. The manufacturers, producers, distributors and importers of alcoholic beverages shall inform on the containers or labels thereof, the amount of energy present therein. Said obligation shall not prevent compliance with the specific regulations on the production, preparation, labeling and marketing of alcoholic beverages.

Article 40 ter of the Alcohol Law

1. The advertising of alcoholic beverages on television may only take place between 10 p.m. and 6 a.m. The direct or indirect advertising of alcoholic beverages on radio is prohibited between 4 p.m. and 6 p.m.

2. Any form of commercial or non-commercial advertising, direct or indirect, of alcoholic beverages in sports activities, such as the promotion, communication, recommendation or advertising of such beverages, their brands and products, is prohibited. The above, with the exception of mega sporting events held in Chile, understood as those international sporting competitions of a global, continental or regional nature, as determined in the regulations.

3. Sports articles intended for mass distribution, such as t-shirts and uniforms, and those promotional objects linked to all kinds of sports activities, may not contain names, logos or images of alcoholic beverage brands, including any sign or allusion to their brands or products.

4. Any form of advertising, commercial or non-commercial, direct or indirect, of alcoholic beverages in any product, publication or activity intended exclusively for minors is prohibited. In any case, minors may not be induced to consume alcoholic beverages, nor use means that take advantage of their credulity. The sale of these products may not be made through commercial hooks, such as gifts, contests, games and other elements of child attraction.

Infringement of these obligations entails, by virtue of Law No. 21,363, fines of up to 200 UTM -which may be doubled in the case of repeat offenses- and confiscation of the beverages, when applicable.

On July 7, 2023, the Ministry of the Interior and Public Safety finally published -with some delay- the regulation that gives application to the new articles 40 bis and ter of the Alcohol Law. This regulation, in addition to setting the date from which the deadlines for the entry into force of the aforementioned articles will be counted, raises some very interesting substantive issues, among which we highlight the following:
 

• It specifies the conditions to be met by the warnings and graphics to be included in the containers of alcoholic beverages, on the harmful effect of alcohol consumption.
• It indicates the messages that must be added in any graphic or advertising action that is disseminated in the written media or on posters or advertisements of any kind, including points of sale. The same for audiovisual and radio advertising.
• It indicates the way in which the energetic value must be informed on the container or label of the alcoholic beverage.
• In view of the prohibition contained in the Alcohol Law, the Regulation provides hypotheses in which it will be understood that the advertising of alcoholic beverages is directed to minors.
• It offers a definition of "mega sporting event", for the application of the exception provided in the new article 40 ter of the Alcohol Law, in the sense that only in this kind of sporting events alcoholic beverages advertising may be carried out. The rest is subject to the general prohibition. It remains to be seen what impact these measures will have, since there are countless sponsors with their names, logos and images in sporting events of all kinds.

As can be seen, the regulations applicable to the marketing of alcoholic beverages are reaching the standards and requirements existing in other mass consumption industries. This requires a careful review of these developments and a rapid adaptation to their obligations, some of which will come into force in 2024.