The present case arises out of the lawsuit brought by ALTADIS, S.A. (“ALTADIS”) against PHILIP MORRIS SPAIN, S.L. (“PHILIP MORRIS”), exercising the declaratory action for unfairness and the actions for cessation, prohibition of future repetition and rectification provided for in article 32 LCD.

The claim arose from the appearance in the printed and digital press, since January 2017, of information (advertorials, coverage of presentation events, company news, interviews with executives and newspaper articles) relating to the products IQOS and HEETS, which are marketed by PHILIP MORRIS. IQOS is the brand name of an electronic tobacco heating device and HEETS is the brand name of a specific type of disposable tobacco units with certain characteristics. The IQOS device can only be used with HEETS tobacco units and HEETS tobacco units can only be consumed using the IQOS device.

The Commercial Court handed down a judgment on 30 September 2019, declaring that PHILIP MORRIS had carried out unlawful acts of advertising of the IQOS device and HEETS tobacco subsumed under article 18 LCD, for which PHILIP MORRIS appealed to the Provincial Court of Madrid.


1. On the advertising activity behind the contested judgment and the question of Philip Morris’s non-materiality.

Firstly, the Board held that the appeal itself had already acknowledged the existence of a “media plan” which allowed “the communicative messages of my client to be communicated and those messages to be of interest to various media”, as an integral element of the corporate communication plan of PHILIP MORRIS. Thus, the Court ruled that the appellant’s reference to PHILIP MORRIS’s lack of involvement in the advertising message was of little relevance.

Next, the first question that the Board answered was whether PHILIP MORRIS’s actions could be considered “commercial communication” activities within the meaning of L28/2005. For this purpose, the Board followed the judgment of the Court of Justice of 5 April 2011, Société fiduciaire nationale d’expertise comptable, C-119/09, EU:C:2011:208, concerning the definition of “commercial communication”: “any form of communication intended to promote, directly or indirectly, goods, services or the image of an undertaking, organisation or person carrying on a commercial, industrial or craft activity or exercising a regulated profession”, “includes not only classic advertising, but also other forms of advertising and data communications intended to win new customers”. From this perspective, the Board observed that PHILIP MORRIS’s conduct clearly involved the communication of data.

The second question that the Board answered was whether the fact that the information generated by PHILIP MORRIS was addressed to journalistic professionals or media, precluded PHILIP MORRIS from being considered as carrying out an activity of ‘commercial communication’. In that regard, the Board concluded that PHILIP MORRIS’s conduct, consisting of information about its products to journalists and the media, was capable of falling within the concept of ‘commercial communication’ because, according to the judgment of the Court of Justice of 14 July 2016, Verband Sozialer Wettbewerb, C-19/15, EU:C:2016:563, in this case, professionals are ‘mere intermediaries contacted by an undertaking because they may facilitate the promotion of the product which it sells by ensuring the transmission of commercial information about it to potential buyers, in particular by recommending its purchase’.

2. On the informative nature of the content of the publications to which the contested judgment responds.

With regard to this issue, the Board did not hesitate to hold that the launch of a product incorporating a novel technology by a reference company may constitute a newsworthy event; the Board held that the crux of the matter was whether the information provided by PHILIP MORRIS and reflected in the news items and newspaper articles contained an advertising message in the terms in which that concept was defined in the applicable sectoral legislation.

Accordingly, the Board considered the approach of the contested judgment to be appropriate, whereby it held that the continuous appearances in the press of the CEO of PHILIP MORRIS promoting the IQOS device, the newspaper articles on events to present the said device, as well as the appearance in press advertisements, could not be understood as isolated facts and should be understood as strategic elements of PHILIP MORRIS’s corporate communication plan.

3. The consideration of the advertising of the IQOS device as prohibited advertising.

Finally, on this point, the Board ruled that, according to the judgment under appeal, it was clear that the reason for considering the advertising of the IQOS device to be prohibited was not because it categorised the device as a “tobacco product”, but because the only possible use of such a device was the consumption of HEETS disposable tobacco units, and such disposable tobacco units could only be consumed by using the IQOS device. Furthermore, the advertising of the IQOS device is subsumable under the concept of advertising of the L28/2005 and therefore under the prohibition of advertising of tobacco products in article 9.1.

For these reasons, the Court dismissed the appeal brought by PHILIP MORRIS SPAIN S.L. and ordered it to pay the costs of the second instance proceedings.

ECLI:ES:APM:2022:2 3 January 2022