Thailand’s New Alcohol Labeling and Message Requirements by Alan Adcock and Aaron Le Marquer (Tilleke & Gibbins – Thailand)
On January 22, 2015, the Notification of the Alcoholic Beverages Control, Re: Rules, Procedures, and Conditions for Labels of Alcoholic Beverages was published in the Royal Thai Government Gazette. It sets out Thailand’s Ministry of Public Health’s (MoPH) controversial labeling and message restrictions for alcoholic beverages that could result in major losses for the alcohol industry. The Notification has been challenged before Thailand’s Administrative Court, but pending the outcome of that case, it has come into effect on April 22, 2015.
The basis of the Notification is the Alcoholic Beverage Control Act (2008) and its subsequent Ministerial Regulation (2010), under which alcoholic beverages cannot be advertised in any way which boasts of efficacies, benefits, or qualities, or induces one to drink.
Alcoholic beverages have long been branded and marketed with labels, containers, and packaging containing important messages depicted graphically which have been registered as trademarks and/or service marks. The MoPH will likely argue that many such future trademarks unregistered before April 22, 2015, violate the requirements in the Notification, and therefore operators would be prohibited from displaying such trademarks on their products in Thailand. This would disallow rights holders to use their trademarks in accordance with their registration and would put those marks at risk of cancellation based on non-use.
With the Notification now in effect, the MoPH appears to be moving once more toward the reintroduction of requirements for graphic health warnings on alcoholic beverage packaging. The MoPH has now twice, in 2010 and 2014, proposed the introduction of graphic health warnings akin to those already in place for tobacco products.
In a novel move, the MoPH launched a public competition to design new graphic health warnings for alcoholic beverage packaging. Four winning graphic warnings have been announced:
However, the delegation of this part of the regulatory process to the general public is bound to question whether any resultant notification or regulation is based upon internationally-recognized principles of evidence-based policymaking, and can therefore be demonstrated to be an effective and proportionate measure to tackle genuine public health and social harms associated with alcoholic beverages.
The blanket imposition of large graphic health warnings on all alcoholic beverage products is also likely to meet opposition from alcoholic beverage manufacturers and importers on the basis that it unreasonably restricts their right to use their lawfully-registered trademarks to market their legal products to adult consumers.
Ministerial Notifications are, however, subject to legal challenge in Thailand’s Administrative Court, which has the power to overturn or amend unlawful acts by administrative agencies or state officials. Upon application, the Court may issue an injunctive order suspending execution of the measure pending the outcome of the legal challenge.