No outside food or drink is permitted in this facility.” You may have come across a sign like this at the entrance to a music festival. This is a business tactic that is also known in cinemas and theaters: prohibiting entry with products from outside in order to force consumption at the bar, in the bars, and in the catering areas within the premises. Sometimes at devilish prices.
In recent weeks, this ploy for some and the legitimate business strategy for others have come under scrutiny from authorities. More than twenty festival organizers and cinema owners were reported this summer by the consumer association Facua. The reason: The doors were closed for users who had something to nibble on or drink with them, and they had to throw it in the trash before entering the area. The flood of complaints triggered an unprecedented reaction: a month ago, the Ministry of Consumer Affairs used its power for the first time and opened a sanction procedure against an organizer present throughout the territory who refused entry with sandwiches wrapped in silver paper or homemade food. According to the ministry headed by Alberto Garzón, the company now faces fines of between 10,000 and 100,000 euros, although if the offense is classified as very serious, the fine could be up to one million euros.
There are two very different sides to this debate. On the one hand, consumer advocates claim that entertainment companies put users in a difficult position by forcing them to consume products they don’t want: they eliminate their choice (the offer is the only one in the venues) and they force them to accept exorbitant prices, especially when it comes to long-running shows, a modern version of selling water in the desert.
The organizers do not agree with this position, arguing that their business is now based on a joint offer of cultural and gastronomic services. And the latter is not a side job but a main job. Therefore, just like bars and restaurants, they have the right to prohibit access to external products.
The tangle of laws governing the matter does not help in the crossfire. In Spain, there is no harmonized regulation that establishes the right of users to consume their own food at public events, nor is there a law that expressly protects the right of entry of business people from those who carry a sandwich in their backpack. In fact, “the general police regulations on public entertainment and leisure activities, which include festivals, do not prohibit the introduction of food or drinks into festival venues by the public,” confirms lawyer Juan Pablo Tejero of the law firm IUS+Aequitas Trial Lawyers.
Loophole in the law
However, there is a loophole that would prove the defenders of the home sandwich right. These are articles 86.7 and 89.4 of the General Law on the Protection of Consumers and Users. These prohibit any clause “that has not been negotiated in detail and that, contrary to the requirements of good faith,” restricts “the rights of the consumer and user” and prescribes “unsolicited supplementary or accessory items.” Tejero believes this item could include “the food and drinks marketed by the festival itself.” Therefore, according to this thesis, it would be an abuse of consumers if festivals forced the consumption of their own products and only these.
However, the matter becomes more complicated when legislative power is transferred to the Autonomous Communities. These address the problem in different ways and lead to contradictory norms. The regulations of Castilla y León, for example, favor companies that prohibit entry with foreign products “provided this is indicated on the tickets issued and at the entrances to the premises”. Belén lvarez, partner lawyer at Gabeiras & Asociados with experience in advising entertainment organizers, lists several regions that follow these steps: “Andalusia, the Canary Islands, Castile and León, Catalonia, Galicia, the Basque Country and Navarre expressly consider the law. The organizer undertakes to prevent entry with food and drinks purchased outside the venue.” In his opinion, the fact that “many festivals are registered in the CNAE category with reference to restaurants is evidence that gastronomy is not complementary to service.”
At the same time, there are regions that more or less explicitly protect the right to consume food from outside sources. In Asturias, the law clearly emphasizes that “the right to choose the products that (consumers) wish to consume and the place where they wish to purchase them must be guaranteed, as long as their consumption is permitted during the fair.” “Madrid’s regulations are very good,” adds Rubén Sánchez, spokesman for Facua, making it clear that “the right of entry can only be restricted for security reasons.” For the association spokesman, blocking access to food from outside represents “unauthorized enrichment.” particularly at music festivals as “business people force you to buy products within the venue because you can’t spend 10 or 12 hours in the venue.” A festival without food or drink.” The idea of a mousetrap is gaining traction because “Some festivals charge extra to re-enter.” For Sánchez, a dead end for the consumer.
To the judge for the food at the cinema
One of the major obstacles to clarifying this issue is the lack of previous judgments. However, there is a decision on this issue from the Supreme Court of Castile-La Mancha. In 2001, this TSJ ruled on some cinemas that had banned the consumption of drinks and food in their cinema halls. He sided with consumers and then focused on a key idea: banning access for those who bring food from home. It is an abuse because it limits the consumer’s freedom of choice, but it is also discriminatory because it cannot affect some users (those who buy outside) but not others (those who buy inside).
