SECTION A OVERVIEW

Updates since May 2022 (slimmed)

New JEP Influencer rules May 2022 (EN)

Law of 8th May 2022 (FR) transposing 2019/2161

CommToZero platform and guidelines (EN)

Chambers Advertising & Marketing 2022 (Nov)

Above includes review of Belgian law & practice

EU green claims regulation December 2022

Meta's Ad Practices Ruled Illegal under EU Law

New Detergents Code (FR) Feb 2023

Greenwashing in advertising. Liedekirke Feb 16, 2023

New Febiac Car Advertising Code March 2023 (FR)

Above applicable May 1, 2023. Translation here

New Food code effective June 1, 2023

EN translation of the above here

Key changes in ad rules Lydian/Lex June 16, 2023

Q&A: online advertising in Belgium
Agio Legal/Lex. September 29, 2023

McDonald's 'sustainable beef' ruling (NL)

Above Nov 15, 2023. Curiously uncertain

CJEU rules on IAB's TCF. Hunton March 8, 2024

More on the above from BCLP May 29, 2024

DMA implemented. Strelia May 7, 2024 

DLA Piper Environmental Advertising Claims Guide

Above from Aug 7, 2024 includes Belgium

New ICC Code (EN) Sept 18, 2024. FR here Nov 7

A new path for Privacy Sandbox on the web July 22, 2024

Influencers: the rules applicable to your social media marketing
Seeds of Law (formerly Peeters Law). May 22, 2024

Greenwashing and consumer protection: new European and Belgian rules ahead
Lydian/ Lex March 14, 2024

How brands and influencers can both succeed online (EN) Novagraaf. Jan 3, 2024

Influencer marketing: Wat moet je weten over reclamewetgeving? (NL) Novagraaf Group. 27 October 2023

What do you need to know about advertising law? Includes VRM's Content Creator Protocol (NL) for the Flemish region 

The advertising SRO JEP applies and administers the ICC Advertising and Marketing Communications Code (EN 2024). Applicable ICC Code in French here (2024) and Dutch here (2018). The code is structured in two sections: General Provisions and Chapters. The former are fundamental principles and other broad concepts that apply to all marketing in all media. Chapters apply to specific marketing areas:

Sales Promotion (A)

Sponsorship (B)

Direct Marketing and Digital Marketing Communications (C) and

Environmental Claims (D)

Children and Teens (D) 2024 code 

JEP also deploy sectoral codes such as the Covenant on Advertising and Marketing of Alcoholic Beverages, the Advertising Code for Foods (Fevia), Motor Vehicles (Febiac) - the latter two updated April 2023, see individual sector databases or 'Updates' above - for Cosmetic and Hygiene products (Detic), all of which are referenced and translated in their respective sectors on the WikiRegs website. Other rules relevant to this General sector are:

Rules on the depiction of people* FR-NL / EN

Rules on humour in advertising FR-NL / EN

2022 Influencer marketing guidelines FR-NL / EN

2019 Native Advertising Code FR-NL / EN

SECTION B CONTENT RULES

1. SELF-REGULATION

1.1. JEP General Code (2024 ICC Code)

1.2. JEP Rules/ recommendations

1.2.1. Depiction of people

1.2.2. The use of humour in advertising

2.  LEGISLATION

2.1. Misleading Commercial Practices

2.2. Unfair B2B Commercial Practices

2.3. Content of audiovisual commercial communications 

3.  SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.2. Pricing

4. ADJUDICATIONS 

1.1. The JEP General Advertising Code, which is a direct transposition of the ICC Advertising and Marketing Communications Code (EN 2024) will apply; extracts below; 2024 amends shown in italics

1.1 General provisions 

Basic principles (Art. 1)

• All marketing communications should be legal, decent, honest and truthful;
• All marketing communications should be prepared with a due sense of social, environmental and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
• No communication should be such as to impair public confidence in marketing.
• No communication should in the content and manner made undermine the public’s trust and confidence in marketing communications.

Social responsibility (Art. 2)

• Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
• Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, physical attributes, mental health, disability, or sexual orientation. Marketers are encouraged to be mindful of diversity and inclusion (see ICC guidance on diversity and inclusion in advertising, 2023) and seek to avoid stereotypes and objectification. Explanation Stereotyping is the practice of referring to or playing on an oversimplified and untrue notion of a particular group, sometimes employing archetypal traits. Objectification means representing people not as persons or individuals but as objects of sexual or other templating character.
• No marketing communication should be associated with corrupt practices (See ICC Rules on Combatting Corruption which defines in Part 1 “Corruption” or “Corrupt Practice(s)” as used in these rules shall include bribery, extortion or solicitation, trading in influence and laundering the proceeds of these practices) of any kind.
   Marketers should take due account of the ICC Rules on Combating Corruption and other ICC anti-corruption tools 
  ​

Marketing communications should not:

• without justifiable reason play on fear or exploit misfortune or suffering;
• appear to condone or incite violent, unlawful anti-social behavior or animal abuse;
• appear to encourage or condone irresponsible use or harmful behaviour;
• play on superstition;
• marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards concerning climate change, sustainable and environmentally responsible behaviour;
• they should respect the principles set out in Chapter D on environmental claims in marketing communications and be mindful of the ICC Framework for Responsible Environmental Marketing Communications.

Decency​ (Art. 3)

• Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
• Marketing communications should not contain anything which offends standards of decency currently prevailing in the country and culture concerned and strive to respect social norms and tradition;
• Marketing communications should not incite or condone hate speech by using elements associated to it, such as false testimonials or endorsements, conspiracy theories, or other means to circulate harmful content

Honesty (Art. 4)

• Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
• Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
• Marketing communications should be structured in a way that does not take advantage of consumer trust or exploit their inexperience or limited understanding;
• Relevant factors that can affect consumers’ decisions should be communicated in a manner and at a time that allows them to consider them effectively;
• High-pressure marketing tactics which might be construed as harassment or hamper consumer choice, should not be used;
• Marketing communications should not abuse the trust of consumers by using deceptive practices or spreading disinformation using elements such as false testimonials or endorsements, conspiracy theories, such as bait and switch or clickbait. Nor should they knowingly support, engage in, facilitate or fund illegal activities. See ICC Statement on Misplaced Digital Ads.

• Other main articles from the General Provisions of the Code are: 9. Use of Technical/ scientific data and terminology; 19.Portrayal of people and property; 21. Safety and health; 20. Children and teens; 22. Data protection and privacy; 23. Unsolicited products and undisclosed costs; articles 24-26 are largely procedural
• Chapters from the Code are Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E)
• Where the rules are channel-related, they are shown in our following channel section C

1.2.1. Rules on the depiction of people EN; NL-FR

1. Every advertisement should be prepared with a due sense of social responsibility and cannot be such as to impair public confidence in advertising (Art. 1 ICC Code)

2. Advertisements should not contain statements or visual presentations which offend prevailing standards of decency (Art. 2 ICC Code)

• Depending on the feeling/ sensitivity of society at a given time, the public audience exposed to the advertising, the social or cultural contexts, and its evolution as well as the validity (currency/ relevance), it is desirable that the advertising does not devalue or abuse the human being which, by spreading an image infringing their dignity and decency, is likely to shock or even offend the public. In this regard, it is appropriate to pay attention to the tone of the messages and their visual presentation
• The representation of the human body in whole or in part cannot be of an indecent or obscene nature. Special care must be taken when the representation (depiction) of the human body is unrelated to the product and its objective and subjective characteristics. When advertising uses nudity, particular efforts shall be made to ensure that its representation cannot be regarded as demeaning and alienating

3. Advertisements should not condone any form of discrimination, including that based upon race, national origin, religion, sex or age, nor should they in any way undermine human dignity (Art. 4.1 ICC Code). Thus, the following should be avoided:

• Generating contempt, disrepute or ridicule regardless of the ethnic, social, professional, economic or demographic group to which a person belongs
• Exploiting, promoting or developing pejorative (disparaging / derogatory) comparisons based on the sex, age, race, nationality, social or professional status of individuals. Advertising cannot ignore the skills, aspirations and roles of various human and social categories.
• Likewise, endorsing the idea of the inferiority or the superiority of a person because of their affiliation to a social group, or even promoting, directly or indirectly, feelings or behaviours of exclusion, intolerance or racism, should be avoided

4. Advertisers must be aware at all times to changing moral values and avoid contributing to the perpetuation (protraction/ continuance) of social prejudices or stereotypical images that run contrary to changing conditions in society (societal development) or ideas accepted by large segments of the population

• This is why using stereotypes, referring to characters intended to be representative of a social, ethnic group etc. must make particular efforts to comply with the principles developed in these Guidelines
• It is necessary to avoid inducing a sense of submission or dependence devaluing the individual/ human being or presenting in a complacent manner a situation of domination or exploitation of a person by another

5. Advertisements should not appear to condone or incite violence, nor to encourage unlawful or reprehensible behaviour (Art. 4.3 ICC Code)

• Gratuitous use of violence, direct or implied and any incitement to violence whether physical or psychological should be avoided. The concept of violence covers at least all illegal, unlawful and reprehensible activities provided for in current legislation. Direct violence translates into (results in) the representation of the act of violence itself; implied violence means an atmosphere, indeed a context resulting in an act of violence; psychological violence includes, in particular, dominating behaviour patterns and harassment (psychological or sexual)
• Advertising shall not under any circumstances trivialise violence through statements or presentations

1.2.2. Rules on humour in advertising (1992) EN; NL-FR

• As in any communication, humour is not in itself objectionable. However, since advertising is a communication with a commercial purpose, humour is subject to restrictions distinct from those found in other areas, such as editorial content in the media, or in the world of entertainment
• Moreover, the use of humour (in written form, audio, visual, or graphic) never absolves the author or creator of the message from legal or ethical responsibility. Advertising cannot be made which is contrary to the law or rules of advertising ethics
• So, humour must not lead to:

• Deception/ misleadingness about measurable and verifiable facts
• Denigrating or discrediting:
   
  • A product or service
  • A person or group of people
  • An institution or organisation
  • Moral, religious, philosophical or political convictions
     
• Use of disparaging/ derogatory references or indications based on the gender, age, race, nationality, social or economic status of individuals
• The incitement of reprehensible behaviour in terms of safety, health or social responsibility
• The use of caricature or parody therefore requires caution and requires a case-by-case assessment. The use of prior copy advice from JEP in sufficient time before production and dissemination of the advertising is highly recommended

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation. In December 2021, the European Commission issued Guidance on the interpretation and application of Directive 2005/29/EC

2.1. Core rules

• The key law is Book VI of the Economic Law Code FR-NL: ‘Market Practices and Consumer Protection.’ English translation of key provisions here
• See article 97 for misleading actions and misleading omissions, the latter of which includes rules relating to an 'invitation to purchase' Definition Indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase 
• ​Article 100 represents the ‘Blacklist’. These are the provisions transposed from annex I of the Directive 2005/29/EC that set out market practices that are ‘in all circumstances considered unfair’
• Articles 5 and 6 from e-Commerce Directive 2000/31/E, found in articles 6 and 12 Book XII of Code of Economic Law EN, set out information requirements in an e-Commerce context​

2.2. Comparative advertising

• Under Article 17 (1), comparative advertising shall be permitted when it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI
• ‘Comparative advertising’ means any advertising that, explicitly or implicitly, identifies a competitor or goods or services offered by a competitor (Art. I.8 (14) from Chapter 4 of Book I Definitions of the ELC) 

Article 17 (Chapter V) of Book VI. Comparative advertising

1. Comparative advertising shall be permitted when the following conditions regarding the comparison are met:
 

1. it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI; English translation of the relevant section here
2. It compares goods and services meeting the same needs or intended for the same purpose
3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
4. It does not create confusion among businesses, between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor
5. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
6. For goods with designation of origin, it relates in each case to goods with the same designation
7. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name

2. All comparative advertising which does not respect the conditions laid down in § 1 shall be prohibited

Unfair B2B commercial practices; see Chapter 2, Book VI Arts. 105-109

Belgium has extended the scope of its legislation to B2B transactions only for certain banned practices from Annex 1 of UCPD

http://www.g-regs.com/downloads/BEGenB2BUnfPractices.pdf

• The Audiovisual Media Service Directive 2010/13/EU in its original form regulated European broadcast media; as the media landscape has developed and ‘digitised’, so has the directive, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platforms in particular
• in this section we set out only the commercial communication content rules. The Directive continues to regulate e.g. AV media sponsorship, product placement, commercial communication minutage, programme sourcing etc. Where the rules affect commercial communications we show them in our following Channel Section C
• Much of the regulation is aimed at broadcasters, social media platforms and VOD providers, versus advertisers/ agencies. Nevertheless, it is a significant influence in the European media landscape for all brands; the recent amends referenced above are important for the media platforms they cover and as a result the advertising that appears in that media
• The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The translations we show below are unofficial and non-binding. These are not significantly changed versus former iterations – amends were largely to scope, i.e. where the rules apply. Key changes to Content rules in the Directive are here 
• Belgium’s AV regulatory set-up is complex; media is a cultural matter and therefore under the supervision of individual French, Dutch or German-speaking regions. The media authorities in each region have in the past transposed directives somewhat differently. In this case, the law linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities’ (from a helpful blog on the subject from lawyers Baker McKenzie). We are not clear where the federal and regional rules ‘meet’; seek specialist advice if uncertain, albeit observing the Directive’s rules should keep you in good stead

Art. 2.3-1

Programmes and commercial communications may not be transmitted that:

1. Transgress laws, decrees and regulations or are counter to the general interest
2. Offend human dignity
3. Contain public incitement to commit a terrorist offense as referenced in article 137 of the Criminal Code
4. Promote a current of thought, belief or opinion that constitutes a threat to democracy, human rights and fundamental freedoms guaranteed by the Constitution or the European Convention on Human Rights or seek to undermine the good faith of the public
5. Are inclined to deny, minimise, justify or approve of the genocide committed by the German National Socialist regime during World War II, as well as any other form of genocide
6. Constitute offenses relating to racism and xenophobia referenced in the law of July 30, 1981 to repress certain acts inspired by racism and xenophobia
7. Constitute offenses related to child pornography, within the meaning of article 383 bis of the Criminal Code

Art. 2.3-2

• All providers of video sharing services must take appropriate measures to protect the user from user-generated programmes and videos encountering the situations referenced in article 2. 3-1
• Other provisions related to video-sharing services are found in this section of the Decree but are not directly related to content of commercial communications; see Section C/3 Online Commercial Communications 

Art. 2.4-1

Programmes and commercial communications may not be transmitted that:

1. Undermine respect for equality between women and men or contain or promote discrimination or incitement to discrimination, hate, or violence based on sex or similar criteria which are in particular pregnancy, motherhood, sex change, gender expression, gender identity or including incitement to violence against women and domestic violence
2. Comprise or promote discrimination or incite discrimination, hatred or violence, in particular on the grounds of nationality, assumed race, skin colour, ancestry or national origin or ethnicity, age, sexual orientation, religious or philosophical belief, disability, marital status, birth, wealth, political belief, language, current or future state of health, a physical or genetic characteristic, social background or membership of a union

Title I general provisions includes definitions not shown here

Title II. Commercial communications in linear and non-linear services

• Art. 5.2-1. Commercial communication must not transgress laws, decrees, regulations and European directives as well as the regulations of the advisory committee of the Audiovisual Council (CSA) referenced in Article 9.1.2-1, sections 1 and 2, and approved by the Government, which regulate advertising in general or advertising for certain products or services
• Art. 5.2-2. In addition to compliance with the provisions of Book II, Titles 3 and 4 (see above), commercial communication may not:

1. Encourage behaviour prejudicial to health or safety, in particular by promoting violent behavior
2. Encourage behaviour prejudicial to the protection of the environment
3. Contravene the rules on literary, artistic and industrial property and the right of personal portrayal
4. Contain references to a specific person or institution, of statements or declarations from them, without their permission or that of their dependents
5. Be about attachment to a religious or philosophical belief

• Art. 5.2-3. Commercial communication must not cause physical, mental or moral detriment to minors and in particular in this context must meet the following criteria for their protection:

1. It cannot encourage excessive consumption of food products and drinks containing trans fatty acids, salt, sodium or sugars, the regular intake of which is not recommended for health; the Advisory Board of the CSA drafts and updates one or more codes of conduct allowing the establishment of proven guidelines on the basis of best practice designed to ensure compliance with this point
2.  It must not directly encourage minors to buy or hire a product or service by exploiting their inexperience or credulity
3. It must not directly encourage minors to persuade their parents or third parties to buy the products or services concerned
4. It must not exploit the special trust that minors have in their parents, teachers or other persons
5. It must not unreasonably show minors in a dangerous situation

Art. 5.2-4

1. Commercial communication must be easily identifiable as such. It must be clearly separated from programmes or programme sequences by clearly identifiable optical or acoustic means
2. Any direct or indirect reference in the commercial communication of the programme or programme sequence likely to create confusion as to the commercial nature of the communication is prohibited
3. Commercial communication must not use subliminal techniques
4. The volume of commercial communication spots, as well as the announcements that precede and follow them, must not intentionally fluctuate, by whatever means, with respect to the rest of the programmes
5. Surreptitious commercial communications are prohibited
6. The second sentence of § 1 is not applicable to sponsorship, virtual advertising and product placement. The second paragraph is not applicable to sponsorship and self-promotion

3.1. Environmental claims

Self-regulation

• The general advertising code in Belgium is a direct transposition of the ICC Code; in this context, Chapter D Environmental Claims in Marketing Communications would be most relevant
• The Code of Environmental Advertising FR-NL / EN (CEA) mirrors the principles and provisions in the 2018 ICC Code; it's not yet clear whether there will be impact from the amends to the 2024 version
• ICC Framework for Responsible Environmental Marketing Communications 2021 provides 'added guidance on some established environmental claims and additional guidance on some emerging claims'. Appendix I carries an Environmental Claims Checklist

3.1.1. Key provisions

We set out below only the clauses from the most significant of several national self-regulatory influences, the Code of Environmental Advertising (CEA), which closely reflects the ICC Code’s Chapter D:

• Advertising must be designed so as not to exploit the concerns of society as a whole on environmental issues, or exploit any lack of knowledge in this field
• Advertising may not encourage, nor appear to endorse or promote, behaviour or actions that conflict with the protection of the environment, especially under the law or self-regulatory codes
• Advertising may not contain a claim, designation (sign/ mark/label), illustration or representation that is likely to mislead directly or indirectly on the properties and characteristics of a product or service related to its environmental impact
• When advertising refers to the contribution of a company or group of companies to environmental protection, the reference to products, services or particular actions/ practices cannot give the impression without justification (substantiation) that they are representative of the entire activity of a company or group of companies
• When the qualities or benefits of a product or service in terms of environmental impact depend on conditions or special rules for consumption or use, advertising must specify them or failing that, the advertiser must be able to demonstrate/ provide evidence that the consumer information is provided
• References to environmental impact cannot give the impression they apply to more stages of the life cycle of the product or service or to more properties of the product or service than is actually the case and must clearly indicate the stage of the product cycle or the property to which they apply
• Expressions, claims/ statements or absolute slogans such as, for example, ‘good for the environment’ (FR: bon pour l'environnement NL: milieuvriendelijk) ‘environmentally/ ecologically safe’ (FR: écologiquement sûr NL: ecologisch veilig), ... implying that a product or service has no impact/ effect on the environment whatever the stage of its life cycle, are prohibited, without evidence established under Article 14 of this Code
• If the advertisement refers to the absence or a reduced proportion of ingredients or elements having an effect on the environment compared with the same category of products or services previously placed on the market, it must be clearly stated what has been reduced. Possible replacement elements must bring a significant reduction in environmental damage, which will have to be proved/ substantiated in accordance with Article 14
• Advertising can use scientific reasoning or findings on environmental impact only if they comply with the standard of proof as set out in Article 14
• Scientific or environmental terminology is acceptable provided it is relevant and easily understood by consumers. Any confusion on this point must be avoided
• Testimonials or certificates can only be used to support arguments referring to environmental impact if their content is in line with the state of development of science or technology in this area, given the composition of the product or service and market conditions at the time of their use
• Advertising cannot suggest false superiority or disparage other products or services that are similar in terms of environmental impact. Environmental superiority over competitors can only be claimed if a significant advantage can be demonstrated
• Signs or symbols on environmental impact cannot be misleading or cause confusion about their meaning. These signs or symbols must not falsely imply official approval
• The advertiser must be able to justify/ substantiate with certainty and without delay any claim, designation (name/ mark/ label), illustration or representation referring to environmental impact. To be valid, the evidence must, in the case of a challenge, be approved by an organisation or person accepted by the parties concerned, provided it is deemed necessary by the supervisory body of the Code (i.e. JEP)

Legislation/ EU/ ISO

3.1.2. Channel-specific

The AVMS Directive 2010/13/EU carries an environmental claim provision under Article9/ iv: audiovisual commercial communications shall not: encourage behaviour grossly prejudicial to the protection of the environment. This provision is transposed in the February 2021 Decree on audiovisual media services and video sharing services under article 5.2.-2 in Book V, Title II, losing the word ‘grossly’ along the way

3.1.3. EU guidance

• On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). Section 4.1. covers Sustainability, environmental claims at 4.1.1, from which: 'The coordinated screening of websites ('sweep') that the Commission and national consumer authorities carried out in 2020 confirmed the prevalence of vague, exaggerated, false or deceptive green claims', with some half of 'green claims' lacking evidence

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors

3.2.1. Channel-specific

a) TV/ Radio

• Price statements should not be such as not to cause children to minimise the real value of the product or service. No advertising aimed at children should imply that the product or service is within the reach of any family budget (Point 6 CSA’s Advice Note FR)
• Commercial communications may not contain elements that are aimed at misleading the consumer as regards: the price or the way in which the price is calculated, as well as the conditions subject to which the goods are delivered or services are provided (Art. 60.1.2 FlMD EN)

b) Online/ e-commerce

• Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included Art. 6 (2) Book XII of Code of Economic Law (EN)

3.2.2. Self-regulation; General Provisions of the ICC Code (2024)
 

• The new (2024) code carries a number of provisions that relate to price, e.g. article 5 Truthfulness includes reference to 'the value of the product, the total price and taxes to be paid by the consumer' and Article 10 – Use of “free” regulates some forms of price maniplulation and a new article (11) 'presentation of the offer' covers some promotional terms. There is also a full chapter (A) on sales promotions 
• Chapter E on Children and Teens also carries pricing references in relation to that audience: from E1: 'Marketing communications that invite children or teens to make a purchase or contact the marketer should encourage them to obtain, as appropriate, parental or legal guardian’s consent if any cost, including that of a communication, is involved'; 
• And from E4: 'Marketing communications should not include any direct appeal to children to persuade their parents or other adults to buy products for them. Factual disclosures regarding the need for parental or guardian’s consent to purchase does not contravene this provision. Prices should not be presented in such a way as to lead children or teens to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget.

Legislation/ case law

• Product Pricing Directive 98/6/EC (PPD) implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL; the PPD was amended by Directive 2019/2161, adding rules re promotional pricing extracted here. Guidance from the Commission on the application of this new article 6a is here. The rules were required to be in force in member states by 28 May, 2022
• Belgium eventually transposed via the law of 8th May 2022 (FR) amending Books 1, 6 and 15 of the CEL (Code of economic Law), which faithfully transposed the directive's rules 
• Case law CJEU Citroën/ZLW case C‑476/14; and ECJ '30 day' judgement Aldi promotional pricing Sept 24, 2024 case here; Pinsent Oct 4 commentary here 
• Book VI of the Economic Law Code (FR / NL) Market Practices and Consumer Protection; English translation of key provisions here (Arts. 99 and 100)

3.2.3. Key points

• Where advertising states the price of a product, the selling price should be stated; selling price is defined in the PPD linked above as the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Art. 2a, PPD)
• The Directive was referenced in the Citroën/ZLW case C‑476/14 where it was ruled: ‘As a final price, the selling price must necessarily include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the ‘pecuniary consideration for the acquisition of the product concerned’ (para. 37, Citroën case)
• On promotional pricing, from article 6a of the directive, now transposed in Belgium in the law of 8th May 2022, which amends the CEL: '1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction. 2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction. 3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly. 4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2. 5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.’;

3.2.4. Misleading action

• A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer in relation to: the price or the manner in which the price is calculated, or the existence of a specific price advantage (italics ours) even if the information is factually correct, and in either case it causes or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 97.4 Book VI CEL)

3.2.5. Misleading omission/ Invitation to Purchase

In the case of an invitation to purchase, Definition commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. I.8 (23) Book I CEL) it will be regarded as a misleading omission if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits:

• The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable

Adjudications from JEP are here. There's a search facility on these pages

A high profile decision on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld

SECTION D SRO SERVICES

Copy advice is available in the early stages of advertising development, on the basis of a script and/ or storyboard, or for the finished advertisement. An online copy advice request form is available on JEP’s website.

• Advice provided by the SRO Secretariat:
   
  • Members of the Belgian Advertising Council 150€ + VAT
  • Non-members of the Belgian Advertising Council 300€ + VAT
     
• Advice provided by the SRO Jury:
   
  • Members of the Belgian Advertising Council 250€ + VAT
  • Non-members of the Belgian Advertising Council 500€ + VAT

• JEP handles complaints from the public i.e. consumers, consumer organisations, public authorities and professional associations
• Competitor complaints are not within JEP's remit
• Fee: No charge
• Complaints must be submitted via an online form or in writing
• File a complaint in Dutch/ in French
• View decisions in Dutch/ in French

Must be made direct to Broadcaster 

TV and VOD

Allow 3-5 days 

For help contact the Traffic Bureau administration@trafficbureau.net

SECTION E SOURCES/ LINKS

GDPR

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018:

https://eur-lex.europa.eu/eli/reg/2016/679/oj

This is the FAQ from UBA, the advertiser organisation in Belgium:

https://www.ubabelgium.be/fr/news-insights/detail/2017/05/30/GDPR-Frequently-Asked-Questions

European Data Protection Authority


Article 29 Working Party/ EDPB

The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

Five more recent and significant documents:

• Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
• Guidelines on consent under Regulation 2016/679 (May 2020)

• Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019

• Guidelines 8/2020 on the targeting of social media users adopted April 2021

Commercial practices: UCPD

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance:  On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.

The Omnibus Directive 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', does not require very significant changes as far as most commercial communication is concerned, it does set out some important new information requirements under the UCPD, pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes significant information requirements relating to e.g. search rankings and consumer reviews, which do not directly impact this database. Helpful explanatory piece from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

Pricing

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN

Comparative advertising

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

Audiovisual media

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

AVMSD amendment

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS and video-sharing platforms in particular. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.

Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

e-Privacy

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

e-Privacy Regulation draft (10 February 2021)

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

e-Commerce

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

The Digital Services Act

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

The Digital Markets Act

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925