The Ratchaburi Court (Court of First Instance) issued a judgment on 27 April 2011, concerning advertisement of alcoholic beverages under Section 32 of the Alcohol Beverage Control Act B.E. 2551 (2008) (Act). The judgment has important implications for company directors and wholesalers and retailers of alcoholic beverages.
In this case, a distributor of various alcoholic brands placed posters on its premises depicting producers and importers of alcoholic products with trademarks.
The public prosecutor of Ratchaburi Province initiated legal action against the distributing company and its director for allegedly breaching Section 32 of the Act. Section 32 prohibits anyone from advertising alcoholic beverages in any way to promote their consumption or to induce consumers to consume them.
The public prosecutor alleged that the company and its director willfully and knowingly displayed posters on the company’s premises. The public prosecutor also alleged that the company and its director arranged for the alcoholic beverages products to be displayed with an intention to promote the products to consumers and induce them into buying the products.
Based on the allegations and the facts presented by the public prosecutor, the judge of the Court of First Instance rendered judgment in effect as follows:
- Willfully displaying posters depicting producers and importers of alcoholic beverages with trademarks on the company’s premises is advertising in breach of Section 32 of the Act for which the distributing company and its director are punishable; and
- Displaying alcoholic beverage products on the company’s premises in the normal course of selling the beverage (for example, normal shelf displays) without any intent to promote the products to the consumer to induce consumption is not considered a breach of Section 32 of the Act. A contrary interpretation of Section 32 of the Act would unduly limit the seller’s freedom to sell its products. However, Section 32 would have been breached if the distributor used special equipment or used a special arrangement to display its alcoholic products.
This judgment illustrates two important principles – first, the authorized persons of a juristic person i.e. a company or partnership, that breaches Section 32 of the Act are likely to face punishment just as the juristic person, and second, displaying alcoholic beverage products in the normal course of selling without using special equipment or arrangements and without an intention to promote the products to consumers or induce consumption by consumers will not be considered to be advertising alcoholic beverages.
This decision, however, is a decision by the Court of First Instance and will not be final until both parties exhaust their rights to appeal to the Appeals Court and then the Supreme Court or allow the times allowed for appeals of court judgments to lapse without filing an appeal