What works for soft drinks, sticks or Cüpli is strictly forbidden for spirits and cocktails. To hold a happy hour legally, the provisions of the Alcohol Act must be observed.
Basically, a distinction must be made between granting and advertising a bonus or a benefit: although both are prohibited in principle, there is some leeway in granting which is worth understanding well.
The granting
The granting of bonuses has been stopped if the bonuses are intended to attract customers. Special attention must be paid to the word "attraction", because certain bonuses are tolerated by the authorities as permissible. However, two conditions must be met:
- The addition must have a direct connection to the product.
- The value of the addition shall not exceed 10% of the selling price of the spirit drink.
What does this mean in concrete terms? An addition has a connection to the spirit if it serves to prepare it or enables its consumption (e.g. a shaker or a drinking glass). Of particular importance for the bar sector are additions that are consumed at the same time as the spirit drink and are therefore also connected to the spirit drink. Examples of such tolerated additions are crisps, peanuts, olives and other small snacks.
Trade provision: "It is prohibited to engage in retail trade in distilled water by granting premiums and other benefits intended to attract consumers".
Art. 41 para. 1 lit. h AlkG
But: The value of these extras must be low, i.e. they must be perceived by the customer as a small thing. This is certainly the case with a small bowl of peanuts. In the case of free access to the antipasti buffet, however, the limit of a maximum of 10% of the liquor sales price is certainly exceeded. This is where the term enticement comes into play.
A consumer will hardly order a spirit in order to receive a small bowl of peanuts for free. The antipasti buffet, on the other hand, creates a completely different incentive and therefore such high-value additions are to be understood as enticement and thus prohibited.
Applying
As it is forbidden by law to grant discounts and premiums for distilled water, this granting can of course not be advertised.
1 Advertising with discounts: only if spirits are explicitly excluded
If a bar operator promises a free welcome drink on a flyer or advertises a happy hour on the board in front of the bar, it may be clear to him that spirits are excluded from this offer. But the average consumer does not understand it that way. If spirits are not explicitly excluded, it is an illegal promise of a discount on spirits. This offence can therefore be fined.
But how can a discount on non-spirits be advertised in compliance with the law? There is a very simple solution: If you add the words "excluding spirits" to the advertisement, you can avoid conflicts with the advertising regulations of the AlkG.
The addition can be placed discreetly in the margin of the advertisement, for example with the help of an asterisk, and now it is also clear to the consumer that spirits are excluded from the offer. Example: (1) Flyer for a happy hour: A violation of the advertising regulations of the AlkG is avoided by the addition of excluded spirits.
Advertising provision: "Price-comparative claims or the promise of bonuses or other benefits are prohibited."
Art. 42b para. 2 AlkG
2 Advertising with a time limit: forbidden for spirits
Apart from buzzwords such as promotion, there are many different words that can be interpreted in advertising as an indication of a discount. These include, for example, prices such as hit price and hammer price.
But also prices such as "only for a short time". The customer can then assume that the price is cheaper than usual right now, during a limited time. And that's when you have to strike! Incidentally, this is also the reason why the Federal Supreme Court ruled the Schnägge-Fritig to be inadmissible (Schnägg = Fünfliber).
It can be assumed that the drinks will be sold at a higher price on all other evenings.
The time limit tonight suggests that the Mojito normally costs more than CHF 8.00.
3 Advertising with price comparisons: Prohibited for spirits
The law also prohibits price-comparative claims. This includes comparing one's own prices with those of the competition as well as comparing one's own prices with previous prices.
All indications such as instead of or earlier are prohibited, as they not only promise a discount, but also give customers the opportunity to compare prices.(3) Price-comparative indications are never permitted. Even small bonuses may never be advertised.
The Confederation and the cantons
Violations of the advertising provisions of the AlkG are punished by the Confederation, because advertising subjects are used throughout Switzerland. Violations of the trade regulations (granting), on the other hand, are punished by the canton.
It should also be noted: thanks to Swiss federalism, the cantons can enact additional laws and ordinances that restrict benefits even on drinks that are not subject to the provisions of the AlkG.
In order to also comply with the cantonal regulations, we therefore recommend that you obtain the appropriate information from the competent cantonal authority.
Advisory service
All advertising material may be submitted to the Federal Customs Administration FCA for examination. Advertising material that arrives at the FCA on Mondays by 4 p.m. at the latest will be assessed at the test that takes place on Tuesdays. Simply send advertisements to khw@ezv.admin.ch.
