On 16 January 2026, Poland submitted to the TRIS portal the above Draft Act (hereafter “the draft Act”). The draft Act introduces extensive amendments to the regulatory framework governing the advertising, promotion, product forms, and enforcement of alcoholic beverage rules. While improving public health and consumer protection are legitimate objectives, the draft raises significant concerns regarding compliance with EU law, the functioning of the Single Market, and the proportionality of the measures. This submission addresses the key provisions of the draft Act.
Comprehensive Advertising and Promotion Ban
The draft broadens the definition of “promotion” to include bonus sales, discounts, loyalty programmes, vouchers, coupons, and any financial or personal benefit linked to alcoholic or non-alcoholic beverages. The proposed definition does not limit the promotion ban solely to activities directed at the public (end consumers) - such a broad and open definition of prohibited promotional activities may in practice result in a far-reaching ban on sales practices throughout the distribution chain, potentially also covering wholesale-level arrangements between, e.g. manufacturers and distributors of alcoholic or non-alcoholic beverages (e.g. discounts and other commercial practices); Polish law provides for a general ban on the promotion of alcoholic beverages; consequently, a broad, unclear definition of the promotion of alcoholic of non-alcoholic beverages may in practice constitute a significant barrier.
Please note that Polish regulations on the promotion of alcoholic beverages are already very restrictive (public encouragement to purchase alcoholic beverages is already completely prohibited, except for beer). Promotional activities are therefore permitted to a very limited extent and may potentially only be directed at a limited, closed group of consumers who have already decided to purchase alcoholic beverages and in relations between business entities (in the distribution chain). In this situation, any permitted promotional activities do not serve to encourage the consumption of alcoholic beverages, but primarily to inform consumers about the range of beverages on offer and to ensure the competitiveness of the various products available for sale (and are therefore a normal and desirable activity in a free market). Further restrictions on promotional activities, as proposed in the draft, may lead to a violation of EU freedoms.
Article 34 TFEU (free movement of goods) prohibits quantitative restrictions on imports and all measures having equivalent effect. A comprehensive ban on advertising and promotion (with very limited exemptions) constrains market access for imported products, particularly new or smaller brands that rely on marketing to build consumer awareness. Article 56 TFEU (freedom to provide services across the EU) protects cross-border marketing and media services, which are directly affected by broad advertising restrictions. If interpreted broadly (as the literal wording may suggest), such a total ban may result in prohibition of promotion not only in consumer-facing contexts but also in B2B relationships within the distribution chain, while special offers or launch discounts are commonly used marketing practices that enable products, including those imported from other Member States, to enter the national market and compete effectively. New products that are just being introduced to a given national market rely on such mechanisms to create distribution channels and gain visibility in a competitive marketplace. By restricting the use of these standard commercial practices, the draft risks disproportionately disadvantaging new entrants and imported brands compared to established operators with strong market recognition and pre-existing distribution networks, thus affecting the free movement of goods, as interpreted in the case-law of the Court of Justice of the European Union. Even if formally applicable without discrimination, a measure that substantially impedes access to the national market for products originating in other Member States may constitute a measure having equivalent effect to a quantitative restriction[1].
While Article 36 TFEU (exceptions for public health and other interests) permits national restrictions for public health, such measures must be necessary and proportionate. The draft does not demonstrate that less restrictive alternatives—such as targeted advertising codes, age-verified digital marketing controls, or consumer education programmes—would be insufficient to achieve the policy objectives. It has also not been sufficiently proven why the introduction of such a far-reaching ban on the promotion and advertising of non-alcoholic beverages would contribute to the protection of public health, particularly given the (very broad) restrictions already existing in this area.
Restrictions on points of sales, Night Sales Ban
The draft extends municipal powers to impose night-time bans from 22:00 to 09:00 (currently, individual municipalities are permitted to impose such restrictions between 22:00 and 06:00) and nationwide restrict points of sale (by prohibiting, for example, the sale of alcoholic beverages at petrol stations). Cumulative restrictions (the possibility of further local sales hours restrictions and restrictions on points of sale) may hinder market access for imported and cross-border products, raising concerns under Article 34 TFEU (free movement of goods). While public health protection is legitimate under Article 36 TFEU (exceptions for public health), the draft does not assess less restrictive alternatives. Small retailers and cross-border suppliers are more likely to be disproportionately affected because the restrictions increase fixed costs and operational complexity in ways that scale-dependent players can absorb more easily:
- Limited resources: Small retailers often cannot absorb lost sales from night-time bans as easily as larger chains. A few hours of closure can represent a significant portion of revenue.
- Distribution inflexibility: Cross-border suppliers may rely on centralized logistics and cannot easily adjust delivery schedules to comply with municipal restrictions. Large domestic chains can adjust store hours more efficiently.
- Licensing and compliance burden: Each municipality could impose slightly different rules on opening hours. Navigating multiple local regulations creates administrative costs that are proportionally higher for small or foreign businesses.
- Market access dependency: Smaller or foreign suppliers often have fewer retail partners. Restrictions on sales hours or the location of points of sale reduce the outlets available to them, disproportionately limiting their market reach. While local distributors, being highly familiar with domestic regulations, may be able to adapt by offering their products in neighbouring municipalities that have not adopted such restrictions, foreign suppliers may not have the same flexibility. Navigating and monitoring local regulatory differences can be significantly more challenging for foreign operators, who may face informational and administrative barriers when attempting to identify and access alternative points of sale.
While public health objectives are legitimate under Article 36 TFEU, the proportionality of broad night sales bans remains questionable. The draft does not appear to consider less restrictive measures targeted at specific risks—such as underage consumption or binge drinking. The effect of availability restrictions may therefore be seen as both a market access barrier and a discriminatory measure, undermining Single Market principles.
It must also be underlined that the justification of the draft does not provide any evidence capable of demonstrating that restricting the alcohol sales points (by prohibiting sales at petrol stations) or limiting sales hours would produce tangible effects in terms of significant benefits for public health or improving public safety. The proposed solution appears to be based solely on general statements and assumptions, without any supporting statistical analysis concerning the structure of the alcohol market or patterns of distribution and consumption. In the absence of such evidence, it cannot be concluded that the legislator has fulfilled its obligation to carry out a proper proportionality assessment, as required under EU law, in accordance with Article 36 TFEU.
Restrictions on the materials used to make alcoholic beverage packaging
The draft proposes restricting the materials used to make alcoholic beverage packaging, where the nominal volume of the alcoholic beverage does not exceed 300 ml, to glass and metal only. It should also be noted that the draft provides for criminal liability for violating these prohibitions.
According to the justification for the draft, the new regulation is intended to prevent consumers from being misled when purchasing alcoholic beverages. However, we would like to point out that misleading consumers, including through product packaging, is already prohibited at European Union level (Article 7(4) of EU Regulation 1169/2011[2]). Polish legislators cannot, in principle, enter the European Union's competences to the extent that certain issues are already harmonised at European Union level (in accordance with Article 39(1) of EU Regulation 1169/2011: “With regard to matters specifically harmonised by this Regulation, Member States may not adopt or maintain national provisions unless permitted by Union law. National provisions may not create obstacles to the free movement of goods, including discrimination against foodstuffs from other Member States.”).
Independently of the above, we would like to point out that restricting the materials from which alcoholic beverage packaging may be manufactured may constitute a so-called measure having equivalent effect to a quantitative restriction within the meaning of Article 34 TFEU. The above-mentioned provision applies to all kinds of trade barriers between Member States, including barriers of a legal nature (a requirement to use exclusively packaging made of glass or metal would certainly constitute such a measure).
As for the draft - neither the justification of the draft, nor the attached Regulatory Impact Assessment demonstrates that limiting the materials from which packaging is to be made constitutes a necessary and indispensable measure for the protection of public health (in particular, the protection of minors against the purchase of alcoholic beverages or the protection of adults against the “accidental” purchase of an alcoholic beverage). These documents do not indicate whether alternative solutions were considered or whether any studies were conducted showing that restricting the types of materials from which packaging may be made would achieve the objective pursued by the proposer. Therefore, it cannot be argued that the requirement of proportionality is satisfied in this case.
Furthermore, the legislators seem to ignore the fact that materials other than metal and glass are also used in the manufacture of packaging for alcoholic beverages, the labelling of which is not intended to mislead anyone. For example, alcoholic beverages in plastic packaging are mainly products offered at airports and on planes, as plastic packaging is lighter than glass.
A ban on plastic packaging for alcoholic beverages with a capacity of up to 300 ml would undoubtedly constitute an unacceptable (under EU regulations) barrier to entry into the Polish market for producers of such products from other Member States and, as such, constitutes not only an unjustified interference in the competences of the European Union, but also a prohibited measure interfering with the free movement of goods.
Additional requirements for packaging labelling
The draft provides for the obligation to include additional information on the label of alcoholic beverages and also provides for additional requirements regarding their labeling (in particular, it provides for a number of prohibitions relating to the labelling of alcoholic beverages, e.g. a ban on misleading the identification of an alcoholic beverage; the draft also provides for the obligation to place graphic markings on the packaging, including information about the ban on driving under the influence of alcohol etc.).
The proposed content of the draft raises serious formal concerns, as the issue of labelling alcoholic beverages is already regulated by legal acts adopted by the European Union – EU law generally prohibits Member States from adopting provisions on matters regulated by EU regulations. Therefore, the introduction of additional labelling requirements is legally unacceptable. For these reasons, any changes to the requirements for the labelling of alcoholic beverages should be considered and adopted at EU level.
In accordance with Article 45(2) of Regulation 2019/787[3], Member States may not prohibit or restrict the import, sale or consumption of spirit drinks produced in other Member States or in third countries that comply with the requirements of Regulation 2019/787. A similar situation applies to Regulation 1169/2011, which lays down requirements for the labelling of all food (including all alcoholic beverages). Article 7(1) of this legal act provide for a general prohibition on the use of labelling that could mislead consumers – as this prohibition also applies to all alcoholic beverages, there is no need to repeat this regulation in the Polish Act, as we have already pointed out. This legal act also prohibits Member States from introducing national provisions relating to the area regulated by Regulation 1169/2011 (Article 39(1) of this Regulation).
EU regulations are general in scope, binding in their entirety and directly applicable in all Member States (Article 288 TFEU). Furthermore, in accordance with the principle of primacy developed in the case law of the CJEU, EU law takes precedence over the national law of Member States. This principle applies to all national provisions of Member States, regardless of their place in the hierarchy of sources of law. Consequently, Member States not only cannot enact provisions that conflict with EU law but should not enact national provisions at all in areas already regulated by EU regulations. Introducing an obligation to adapt labelling exclusively to the Polish market would be disproportionately difficult in technical and logistical terms, while at the same time generating significant costs for businesses, which would reinforce the barrier preventing the free movement of goods within the European Union.
Prohibition on the sale of food products whose name, trademark, graphic design or packaging uses a similarity or is identical to the designation of an alcoholic beverage
The proposed draft provisions introduce a blanket prohibition on the sale of food products whose name, trademark, graphic design or packaging is identical or similar to the designation of an alcoholic beverage, subject to criminal sanctions. Such a far-reaching measure gives rise to serious interpretative concerns and significant doubts as to its scope of application.
First and foremost, it remains unclear which specific categories of products would be covered by the ban, i.e. if the regulation would also apply to non-alcoholic equivalents of alcoholic beverages. Non-alcoholic beverages constitute food products within the meaning of food law and could therefore fall within the scope of the draft provisions.
It is also unclear whether the ban is intended to cover other products that may contain references to alcohol, such as confectionery containing alcohol. The absence of precise definitions and clear delimitations of the scope of the prohibition creates a risk of arbitrary interpretation and legal uncertainty for market operators.
According to the justification of the draft, the objective of the proposed amendment is to reduce early alcohol initiation. The justification indicates that non-alcoholic beverages containing flavourings are attractive to children and young people and may accustom them to the widespread consumption of alcohol. However, the draft does not present evidence demonstrating a direct and sufficiently substantiated link between the marketing of such products and the initiation of alcohol consumption by minors. Nor does it appear that alternative, less restrictive measures were adequately considered (e.g. a requirement to sell non-alcoholic equivalents of alcoholic beverages only to adults).
In light of the above, the introduction of a total ban of this nature may constitute a measure having equivalent effect to a quantitative restriction within the meaning of Article 34 of TFEU, as it directly affects the free movement of goods by restricting access to the national market for products lawfully manufactured and marketed in other Member States, thereby hindering intra-EU trade. In the absence of a clearly defined objective, a coherent regulatory framework and a thorough proportionality assessment demonstrating that the measure is necessary and appropriate to achieve the stated public health aim (according to Article 36 of TFEU), the proposed restrictions seem to be incompatible with EU law.
Prohibition on the introduction of alcoholic beverages whose name, trademark, graphic design, or packaging uses a similarity or is identical to the designation of a non-alcoholic food product.
The proposed provision introduces a total prohibition on placing on the market alcoholic beverages whose designation refers to food products that do not contain alcohol. The provision is ambiguous and, in practice, may give rise to serious doubts as to whether the sale of all “flavoured” or aromatised alcoholic beverages would remain permissible (since information about a particular flavour could be regarded as a prohibited reference to a non-alcoholic food product, e.g. fruit). Similar concerns arise in relation to alcoholic beverages marketed as ready-to-drink cocktails.
It should be emphasised that the legal requirements already applicable to alcoholic beverages ensure that such products are sufficiently distinguishable from non-alcoholic products. Alcoholic beverages are subject to specific labelling requirements, including mandatory indication of alcohol content. Furthermore, there is a general prohibition on misleading consumers as to the characteristics of a food product, including through its appearance, description or graphical presentation (Article 7 of Regulation (EU) No 1169/2011, which also applies to alcoholic beverages). These requirements ensure that consumers are not exposed to the risk of being misled or of accidentally purchasing alcohol.
Considering the above, the introduction of additional restrains concerning the designation of alcoholic beverages — particularly such broad restrictions adopted without a proper proportionality analysis — cannot be regarded as justified. The proposed provisions amount to a far-reaching and disproportionate interference with the freedom to conduct a business, as protected under Article 16 of the Charter of Fundamental Rights of the European Union.
Moreover, although the draft provides for the most severe measure possible (a complete marketing ban), the justification fails to identify any specific objective to be achieved by prohibiting the sale of alcoholic beverages whose designation refers to non-alcoholic food products. No data, risk assessments or other evidence have been presented to substantiate the need for such extensive legislative intervention. The draft does not also contain a proportionality assessment, which — according to the settled case-law of the Court of Justice of the European Union — constitutes a necessary condition for the permissibility of restrictions on fundamental freedoms guaranteed by EU law.
Furthermore, these provisions may constitute a measure having equivalent effect to a quantitative restriction within the meaning of Article 34 TFEU, as it may restrict the import, distribution and marketing of alcoholic beverages originating from other Member States. According to the case-law of the Court of Justice of the European Union, such measures may be considered compatible with EU law only where they pursue an overriding reason in the public interest and where the restrictions imposed are appropriate, necessary and proportionate to the objective pursued (Article 36 TFEU). In the absence of such justification and analysis — and indeed in the absence of a clearly defined objective — the proposed provisions risk seems to be incompatible with Article 34 TFEU and, consequently, contrary to the principle of the free movement of goods within the internal market.
Impact Assessment Deficiencies
Under EU law, national measures that restrict the free movement of goods (Article 34 TFEU, free movement of goods) or the freedom to provide services (Article 56 TFEU) must be justified under Article 36 TFEU (exceptions for public health and other legitimate interests) and satisfy the proportionality test. This requires that restrictions be necessary to achieve a legitimate public interest objective and that no less trade-restrictive alternatives are available. The draft’s Declared Regulatory Impacts do not provide a robust or transparent evidence base to justify the extensive regulatory design.Specifically:
- There is no meaningful assessment of alternative policy options that might achieve similar public health outcomes with less impact on trade.
- The economic effects on small and medium-sized enterprises, importers, cross-border traders, and service providers are not adequately quantified.
- The cross-border implications of restricting e-commerce and advertising services are not systematically analysed.
- Assertions about likely public health benefits are not supported by peer-reviewed evidence or comparable evaluations.
Given these gaps, it is not possible to conclude that the proposed measures meet the necessity and proportionality criteria required under EU law.
The impact assessment for Notification 2026/0016/PL does not examine how advertising bans, packaging restrictions and sanctions interact with the availability, pricing and remote sales restrictions introduced under Notification 2026/0033/PL. The absence of a cumulative assessment risks underestimating the combined barrier to intra-EU trade
While separate notification may facilitate domestic legislative management, EU law requires that the proportionality of restrictions be assessed in substance rather than in formal legislative segments. The fact that the reform has been divided into two parallel draft Acts should not shield its cumulative restrictive effect from full Single Market scrutiny
Conclusions
When assessed together, the two draft Acts risk creating a regulatory environment characterised by restricted advertising, compressed retail hours, constrained online sales, statutory price floors, expanded packaging mandates and heightened sanctions. The overall effect may amount to a substantial narrowing of lawful market access conditions for alcoholic beverages within Poland.
The draft Act, in its current form, risks:
- Creating unjustified barriers to the free movement of goods and services within the EU Single Market.
- Imposing disproportionate regulatory burdens on cross-border trade, online services, and marketing activities.
- Introducing price controls and retail restrictions with potential discriminatory effects.
- Expanding sanctions in ways that may deter legitimate commercial behaviour.
spiritsEUROPE therefore respectfully requests the Commission to:
- Jointly assess notifications 2026/0033/PL and 2026/0016/PL. Although notified separately, the two draft Acts form part of a single, coordinated reform of the Polish alcohol regulatory framework. They pursue overlapping public health objectives, regulate interconnected aspects of market access, advertising, pricing and distribution, and rely on partially overlapping enforcement and financing mechanisms. Any assessment must consider their cumulative effects on intra-EU trade and services, rather than in isolation. A segmented assessment would risk underestimating the overall restrictive impact of the reform package.
- Assess whether the draft Act is compatible with Article 34 (free movement of goods), Article 36 (exceptions for public health and other legitimate interests), Article 56 (freedom to provide services across the EU), as well as European Union food regulations, in particular EU Regulation 1169/2011, and European Union regulations concerning the labelling of alcoholic beverages, in particular EU Regulation 2019/787.
- Ensure that any Commission assessment or potential detailed opinion takes into account the interdependence of Notifications 2026/0033/PL and 2026/0016/PL, given their overlapping objectives and cumulative trade effects. Consider whether the cumulative effect of the measures creates disproportionate barriers to intra-EU trade and services.
- Invite Poland to reconsider or amend provisions that are not demonstrably necessary and proportionate.
- Request renotification if Poland intends to maintain measures that disproportionately affect imported products or cross-border operators.
spiritsEUROPE remains available to provide additional data and analysis to support the Commission’s assessment.
[1] Judgment of the Court of 24 November 1993, Criminal proceedings against Bernard Keck and Daniel Mithouard. References for a preliminary ruling: Tribunal de grande instance de Strasbourg - France. Free movement of goods - Prohibition of resale at a loss. Joined cases C-267/91 and C-268/91.
[2] Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 Text with EEA relevance.
[3] Regulation (EU) 2019/787 of the European Parliament and of the Council of 17 April 2019 on the definition, description, presentation and labelling of spirit drinks, the use of the names of spirit drinks in the presentation and labelling of other foodstuffs, the protection of geographical indications for spirit drinks, the use of ethyl alcohol and distillates of agricultural origin in alcoholic beverages, and repealing Regulation (EC) No 110/2008.
