Alcoholic beverages that do not exceed 5% alcohol strength may be advertised in Ecuador, in accordance with the provisions of the Communications Law

Misleading advertising is prohibited, as well as all types of advertising or propaganda of child pornography, cigarettes, controlled substances, and all types of betting or sports forecasting systems. That’s what he says regulation of the Organic Law on Communication (LOC) in Article 56, which was passed on August 23 by the President of the Republic, Guillermo Lasso, by Executive Decree 853.

This regulation also states that drinks which they must not exceed 5% alcohol strengthsuch as beer, bottled cocktails and certain brands of carbonated alcoholic beverages.

There are different views on its application. Constitutionalist André Benavides points out that this is illegal because it contradicts Article 94 of the Communications Act, which establishes the prohibition of misleading advertising of “alcoholic beverages, cigarettes and intoxicating and psychotropic substances”. And that “the media must not advertise products whose regular or repeated use affects people’s health”.

The regulation adds an exception, which is precisely the green light for advertising drinks that do not exceed 5% alcohol strength. “In this sense, the moment the regulation would establish this percentage (of 5%), it would be against the law; and, therefore, the regulation is contrary, it is illegal, it is against the law, and this regulation should be contested”, claims Benavides.

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Mention it the challenge can be in a civil-administrative procedure through an appeal for annulment or a claim of unconstitutionality, “due to violation of legal security”. Benavides explains that the regulation develops the procedure of what is in the Law on Communications. By not determining the percentage, that development is no longer appropriate,” he points out.

However constitutionalist Aldrin Gómez indicates that Article 56 has several interpretations. The first is the one mentioned by Benavides, who he considers “extreme”. “You can freely say: if there is a general prohibition in the regulation, you cannot establish certain exceptions, because that is what you are doing one way or another,” says Gómez.

In addition, he says that there is another reading. “It is true that the Communications Act has a general ban on the advertising of alcoholic beverages, but what does the regulation do? in an established way You regulate which type of alcoholic beverages you may promote so that they are not in conflict with the law: that they have up to five degrees of alcohol, and that parameter follows certain technical aspects”, he explains.

For Gómez, one of the parameters is that drinks up to five degrees do not affect people’s health immensely, as long as they are consumed in moderation, like beer. “It’s a drink you can share. So, of course, it’s not the same for you to promote (for that type of drink) something stronger, like cognac. I believe that the regulations have a basis for establishing these exceptions; that is, don’t do it arbitrarily or indiscriminately,” says Gómez.

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That’s why he the constitutionalist affirms that it is not illegal. “There is a technical justification, and what is the technical justification? The degree of alcohol,” he says, adding that the text is regulation should be agreed upon and wait for the controls to be given: “Establish a certain policy of public control”.

In 2022, in the second supplement of Official Journal 188, an organic law was published by the National Assembly of Ecuador, with which reformed the Organic Law of Communication.

There was nothing in those amendments to ban the misleading advertising or promotion of child pornography, cigarettes, controlled substances, and any type of betting or sports prediction system.

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