SECTION C: TV & RADIO/ AV

SECTION C - TV/AV INC VOD & RADIO

KEY RULES AND SOURCES

• For content of commercial communications, the ICC code representing the General Advertising Rules from ARPP (EN) applied in the French translation to all product sectors and media, together with any sector-specific rules 
• The key legislation in this channel context is Decree 92-280; the link is to a translation of the articles which cover broad requirements for e.g. ‘respect for the dignity of the human person’, discrimination, violence, religion, health and safety, environment etc. transposed from the AVMS Directive 2010/13/EU. See also point 2.4 of our earlier content section B
• Law No. 2016-1771 of December 20, 2016 (FR) introduced an amend to the Léotard Law (FR), which prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12 and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV
• The same Léotard law was amended by Ordinance 2020-1642 (FR) to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive into e.g. video-sharing channels. The product placement/ sponsorship rules in broadcast are unaffected; the 2018 Directive includes some minor changes in commercial communications' content requirements, shown here
• Decree 2020-983 (FR) addresses the audiovisual advertising framework and its relationship with online competition by allowing ‘conventional’ broadcast advertising, subject to conditions, to deliver targeted advertising messages according to geographical or behavioural profile. The decree also relaxes the prohibition of cinema advertising. Helpful blog on the decree from Taylor Wesssing here 
  For advertising which includes price, either shown superimposed or in a moving banner, the duration of its visibility or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP Price Code 2/1.2. 1)
• In radio commercials, price must be ‘easy to hear’ (ARPP Price Code 2/1.2. 5)
• All TV commercials must be pre-cleared by ARPP at final film stage: https://www.arpp.tv

RULES FROM DECREE 92-280 (EN)

These rules are directed at the broadcaster rather than the advertiser, who is nevertheless impacted; product placement is from the CSA Decision of February 2010, amended in July 2012 (FR). The CSA is the French broadcasting authority, though it merged with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022

PRODUCT PLACEMENT

• Allowed in feature films, TV films & series, and music videos, but not when those are made for children (Section IV, CSA Decision)
• Must not give undue prominence to the product, service or brand (Section VI Formal Product Placement, ref. Article 14-1 of the law of 30 September 1986)
• Must not influence the editorial independence of programmes
• Must not directly encourage purchase or rental of the products or services of a third party, in particular by making special promotional references to those products or services or brands
• Viewers must be clearly informed of the existence of product placement. Programmes containing product placement must be identified by the “P” pictogram for one minute at the beginning of the programme, for one minute when the programme resumes after each commercial break, and at the end of the programme for the duration of the closing credits
• During the broadcast of a music video, the icon appears throughout its broadcast
• During a period of two months from the date of the first broadcast of a programme with a product placement, the icon must appear for five seconds at the start of the broadcast programme in a banner accompanied by the following clearly legible sentence: “Ce programme comporte un placement de produit” (This programme contains product placement) Following the close of this banner, the icon appears in the manner as prescribed above (Section IX Transitional & Final Provisions)

PRICING IN AV (ARPP Price Recommendation)

• For references appearing in fixed double exposure on the screen or within moving text (either a banner or non-materialised), the period of the display or the speed of movement of the text must allow the consumer to read all the information without having to wait for another broadcast of the advertising message
• When the background of the message is not the same colour throughout the advertisement, depending on the script and the set, it is essential to check the perfect readability, in terms of contrast, for all remarks. If necessary, a banner will be materialized, with a single colour which will contrast with the colour of the characters chosen for the text appearing in the said banner

SECTION C TV/AV AND RADIO

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
• The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

Article B12: Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

​

SECTION C: CINEMA, PRINT, OUTDOOR

CINEMA

• All advertising of drinks over 1.2% ABV is prohibited in French cinemas, except advertising that incorporates/ utilises the recent Clause L.3323-3-1 of the Public Health Code, translated as: ‘Not considered to be advertising/ publicity within the meaning of this chapter are: the content, images, representations, descriptions, comments or references relating to a production area, a region name, a reference or geographical information, a land, a route linked to a production area, a ‘savoir faire’, an historic, cultural, gastronomic or landscape heritage associated with an alcoholic beverage having an identification of quality or origin, or protected under Article L. 665-6 of the Rural And Maritime Fishing Code
• ARPP indicate that such advertising could be permitted in cinema. Copy advice available from the ARPP for member

SECTION C - CINEMA, PRINT, OUTDOOR

APPLICABLE TO ALL 3 CHANNELS 

• Specific sector rules above; the rules that follow apply to all product sectors
• Content rules are from the general advertising rules from ARPP (EN ICC code), which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN) also apply; see our earlier content section B

CINEMA

• For advertising which includes price, either shown superimposed or in a moving banner, the duration of its appearance or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP Price Recommendations 2/1.2.1)

PRINT

Price

• Price advertising from ARPP; for press advertising: the size of the characters used in price-related details must be selected according to the format of the media and the advertisement. If a publication or advertisement is in a small format, the size of the selected characters is of key importance and should always enable the price-related details and references to be read in normal conditions (Art. 2/1.2.2 ARPP Price Recommendation)
• When a reference to another page (as in catalogues, mail shots, etc.) is used, the way these references are used, notably in terms of position in the document, must be perfectly readable and clear (Art. 2/1.2.6)
• The Recommendation linked above carries an article 2/2 that sets out pricing information requirements for ‘other advertising documents.’

Re-touching

• In the event that a model’s images/ figures are adjusted, the term ‘photographie retouchée’ must be included in advertising. The way in which that should be done is provided by the ARPP’s Notes and overlays Recommendation

OUTDOOR

• If including price, the font size of the remarks must be chosen according to the format of the billboard and its type of location (ARPP Price Recommendations 2/1.2.3)

The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
• The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
• In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)

Refer to Content Section B for provisions; of particular relevance below:

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

Annex I of the UCPD 

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

Article B12 Media sponsorship

• The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
• Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
• Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

CONTEXT

This section provides the broad picture for the commercial digital environment for the alcohol sector. More specific channel rules such as those for email, OBA and own websites, follow under respective headers. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is subject to the rules in owned and (some) earned space as well as paid. Advertising is defined in the applicable ICC Code here Definition ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. At the base of this section, you’ll find the social media platforms’ alcohol advertising policies

ALL SECTORS, ALCOHOL INCLUDED

The 'general' channel rules, i.e. those that apply to all product categories including alcohol, are shown below under the General tab. These include statutory consent and information requirements in most digital channels. Additionally, rules from the amended AVMS Directive, delivered in the Léotard law (FR), have been extended further online, as audiovisual media services are re-defined in the framework of the digitisation of European media. Video-sharing platforms are specifically addressed; while the rules are primarily aimed at platforms and the content of commercial communications is not significantly affected, advertisers/ agencies need to be aware that those rules, some of which are alcohol-related, are extended further online. Because France has such a particular alcohol advertising environment, no significant impact is likely (depending on the activity of individual brands), but agencies/ advertisers should anyway take note​

KEY RULES

• The content rules shown in section B apply online, together with the general advertising rules (EN) applicable in France, and more specifically:

The Public Health Code (PHC; EN) was amended by the Bachelot Law to include the following, referenced in the ARPP Alcohol Code (EN). From the PHC L3323-2 (9). “Publicity or advertising, whether direct or indirect, used for the promotion of alcoholic beverages that may be produced and sold legally is only allowed…

• ‘On on-line communications services, with the exception of those which, by their nature, their appearance or their objective, seem to be mainly intended for young people. Note that The Paris Court has considered that “Ads are not primarily addressed to young public when Facebook’s statistics show the network is mainly composed by adults in a proportion of 87%”. Paris Court, February 20th, 2014, as well as those produced by sports associations, societies and federations or professional leagues within the meaning of the Sports Code, on condition that the publicity or advertising is not intrusive or interstitial. a page or communication that is displayed before an expected content page. A case on this issue involving the producer Ricard is set out briefly here (EN). See also the 'Your best Riflon' (FR) case from May 2022.

Online marcoms are referenced in the ARPP Alcohol Code (EN) as follows:

• Above and beyond the rigorous application of the law of 21 July 2009 (the Bachelot Law), commercial communications in on-line communication services comply with all of the above recommendations (that means Chapters 1 to 3 of the ARPP Alcohol Code, which sets out rules for marcoms content per Section B of this website)
• Access to the websites of brand names is dependent on the obligation by the Internet user to state his/ her age or date of birth, with access blocked if the information entered indicates an age below 18 years (3/ 4.2)
• In other words, no 'intrusive' communications or on sports websites, marcoms must follow the rules that also apply online, and brand websites must have an age-restriction system

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

CNIL unveils its first answers for innovative and privacy-friendly AI (EN) October 16, 2023

The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024;

Q&A: online advertising in France from UGGC Avocats/ Lex October 2022 is a helpful walk through the prevailing regulations in different forms of online advertising;

Q&A: online advertising in France from UGGC Avocats September 29, 2023 is an update on the above.

CONTEXT

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA, social networks etc. follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is subject to the rules online in owned and (some) earned space as well as paid. The definition of advertising is therefore important: the ARPP/ ICC definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. See Marketers’ Own Websites header below for specifics on owned space. In this channel context, the influence of legislation is significant, particularly in the use of personal data. The impact of GDPR, and national 'stand-alone' legislation, or that which applies EU Directives, is also shown under individual channel sections below

SOURCE OF RULES 

• Content rules are from the General Advertising Rules (EN ICC Code) from ARPP, which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses inc. 2022 amends) also apply; see content section B

• The key channel rules are from the ARPP’s December 2021 V5 Digital Advertising and Marketing Communications Code (EN; FR here); scope of the code is here. Scope All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The code deals with various techniques online such as in-game, native and OBA. Rules for each of these are shown in the relevant sections below

• Other significant channel rules in the online environment are from legislation; we reference GDPR lawful processing rules above in the introduction. The data protection authority is CNIL (EN home page); their GDPR 'toolkit' is here (EN) and their February 2022 reference text on personal data processing is here (FR)

• The rules relating to consent and information requirements in electronic communications are from the 2013 Mail and Electronic Communications Code (FR) - English translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France

• European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021 here (EN);

• Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Amends were transposed into the law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the directive's amends to commercial communication content requirements is here and notes on the scope changes here (both EN);

• In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (CC; EN key clauses inc. 2022 amends) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws set out what must be included or made available in e-Commerce communications (articles L122-8 and L122-9 of the CC, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the CC). Amends to the CC effective May 28, 2022 from the 'Omnibus' Directive 2019/2161 introduced further requirements for information in an e-Commerce context related to search rankings and consumer reviews under article L121-3 and promotional pricing rules under article L112-1-1;

• The CC also carries the core statutory misleadingness rules, transposed from the Unfair Commercial Practices Directive 2005/29/EC. Unfair and misleading commercial practices are regulated under Articles L. 121-2 to L121-4, and aggressive commercial practices in Articles L121-6 and L121- 7. Comparative advertising is under articles L122-1 to L122-5;

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Meta and self-regulation December 2023 

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels, online included
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below under 'self-regulatory clauses'
• ICC Guide for Responsible Mobile Marketing Communications
• EASA Best Practice Recommendation on Digital Marketing Communications 2023
• EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

• Directive 2002/58/EC on privacy and electronic communications

• Directive 2000/31/EC on electronic commerce

• Regulation 2016/679/EU on the processing of personal data (GDPR) 

• Directive 2018/1808 amending AVMS Directive 2010/13/EU 

Also be aware of:

The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation

The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market

The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)

Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth

And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

C1. Identification and transparency

• Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
• Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
• Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
• Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

C2. Identity of the marketer

• The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
• At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer

SECTION C: COOKIES AND OBA

COOKIES

• There are no alcohol-specific cookie rules, aside from those related to OBA; see rules under the General tab below for the Cookie and OBA rules that apply to all sectors, alcohol included
• Any cookie placement would obviously need to be mindful of the Article 2/3 amended in the April 2015 version of the ARPP Alcohol Code (EN) which requires that advertisers ‘do not communicate in press, radio or online websites which it is reasonable to assume that the audience is not made up of at least 70% of adults of 18 years and older’

OBA

• Permitted provided that the ARPP Digital Advertising and Marketing Communications Code (EN; in force Jan 2022) and the Alcohol Code are observed. The general content rules, i.e. those that apply to all sectors, should also be observed
• There are some significant OBA/ targeting rules applicable to all sectors, alcohol included, set out below under the General tab. The recent extension of scope to the AVMS Directive, brings more online channels into play for its rules, which include a number of alcohol-related requirements. These are anyway 'covered' under the Alcohol Code linked above, and/ or subsumed by the very specific Loi Evin environment 

SECTION C: COOKIES AND OBA

CNIL Fines Groupe Canal+ 600k Hunton Oct 31, 2023

CNIL and cookies: the story continues. Freshfields Bruckhaus Deringer August 8, 2023

The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

Et si la donnée pseudonymisée n’était pas une donnée personnelle?

From Haas Avocats blog June 2023 

Cookies a hot topic for France's digital advertising sector? Taylor Wessing/ Lex April 11, 2023

Cookie Wall & Paywall: Do's And Don'ts. 17 June, 2022 by Caroline Bouvier (Bernard Hertz Béjot) GALA

CNIL position here (FR)

• The EU ‘Cookie Directive’ 2009/136/EC provisions are found under article 82 of the FDPFA, i.e. the 1978 French Data Protection and Freedoms Act (FR), extracts below. The linked file carries the amends from the GDPR-related Law 2018-493 (FR) on Personal Data Protection
• IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising 
• CNIL, France's Data Protection Authority, published their September 2020 guidelines here (FR); a significant article by Sidley Austin LLP via Lex: Developments in Cookie Regulation (EN) sets out the authority's position and points out its plan to audit websites for compliance with cookie regulations 
• CNIL recommendations, versus guidelines, are here (FR). The distinction between the two papers is that the guidelines 'review and explain the law', and the recommendations 'propose practical arrangements for obtaining consent in accordance with the applicable rules.' The CNIL Q&A relating to both papers is here (FR); 
• From the Bird&Bird review linked above: 'CNIL underlines that the consent provided for by these provisions (those in the Data Protection Act) refers to the definition and conditions set forth in Articles 4(11) and 7 of the GDPR. The consent must therefore be freely given, specific, informed and unambiguous, and the user must be able to withdraw it at any time. It must be as easy to withdraw as to give consent.'
• The CNIL gives its position on the “cookieless” alternatives to third-party cookies here from Nomos via Lexology October 2021 is a helpful look at how the CNIL is likely to handle alternative tracking and other technologies. The original paper from CNIL is here (FR) 
• Google says cookie here to stay until 2024 July 27, 2022. Google has also published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here
• April 2022 UFMD (Union francaise du marketing direct & digital), with notable support from the likes of IAB and the ARPP, published a good practice guide on the use of advertising cookies; here in French 
• And finally, Further Enforcement Actions by the French Data Protection Authority from Squire Patton Boggs/ Lexology December 2021 is a very good summary of some of the actions that have been taken by the CNIL and why. The key issues as the CNIL sees them are: 

• Cookies subject to consent are automatically set on the user’s terminal before acceptance by the user, upon arrival on the site, thus without consent
• Information banners are still not compliant because they do not allow refusing the setting of cookies as easily as accepting them
• Information banners seem to offer the user a means of refusing cookies as easily as accepting them, but the actual proposed mechanism is not effective, because cookies subject to consent are still set even after the refusal expressed by the user.

INFORMATION REQUIREMENTS 
from the FDPFA, art. 82

• Any subscriber or user of an electronic communication service shall be informed in a clear and comprehensive manner by the data controller or its representative, except if already previously informed, regarding:

• the purpose of any action intended to provide access, by means of electronic transmission, to information previously stored in their electronic connection terminal device, or to record data in this device
• the means available to them to object to such action

• Such access or recording may only be carried out provided that the subscriber or user has explicitly expressed, after receiving said information, their agreement that may result from appropriate parameter settings in their connection device or any other system under their control

EXEMPTIONS

• These provisions shall not apply if the access to data stored in the terminal device of the user or the recording of information in the terminal device of the user is:

• either exclusively intended to enable or facilitate communication by electronic means; or
• strictly necessary for the provision of an online communication service at the user’s express request

CONSENT REQUIREMENTS AND GUIDANCE 

• ‘Cookies and Other Trackers’ (EN) Recommendation from the CNIL the French Data Protection Authority January 2020. ‘The purpose of this document is to describe the practical modalities for obtaining consent in accordance with the applicable rules, to propose concrete examples of user interface, and to present best practices that go beyond the legal requirements.’
• See also Cookies and other tracking devices: the Council of State issues its decision on the CNIL guidelines 29 June 2020
• The key EU guidance is Guidelines on consent under Regulation 2016/679 May 2020

SECTION C: COOKIES AND OBA

Reject All” button in cookie consent banners - An update from the UK and the EU

Reed Smith LLP/ Lex November 8, 2023

Cookies banners and beyond: how to avoid common mistakes
EU, USA, November 3, 2023. Bryan Cave Leighton Paisner 

Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*

Covers interplay between the AI act, the DSA and GDPR 

GDPR Jargon Buster: Cookies. Stevens & Bolton LLP October 9, 2023

Files prior to the above date here 

Applicable legislation, self-regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

• E-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
• The introduction of the GDPR 2016/679 from May 25, 2018 

• European Commission Data Protection website:
  https://ec.europa.eu/info/law/law-topic/data-protection_en

• IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era

• And in July 2021 the Guide to Contextual Advertising

• February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

• Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

KEY RULES AND SOURCE 

• Article 2/3 as amended April 2015 of the ARPP Alcohol Code (EN) requires that advertisers ‘do not communicate in press, radio or online websites which it is reasonable to assume that the audience is not made up of at least 70% of adults of 18 years and older’
• While Email/SMS is not specifically identified, channels or media that reach high proportions of young people (see above) are obviously to be avoided
• Content rules set out in section B will apply, together with the general advertising rules (EN; ICC Code) applicable in France; these are shown in full under the 'General' tab in section B
• Online alcohol communications are permitted ‘on condition that the publicity or advertising is not intrusive or interstitial’ (the latter a page or communication that is displayed before an expected content page)
• It may be appropriate to seek advice on whether email is per se ‘intrusive’; the linked document includes advice from the SRI: Syndicat des Régies Internet (FR); a loose translation is Association of Internet Authorities; this is a significant organisation who work closely with the ARPP in contexts such as these, and who comprise among others major online publishers and agencies
• The SRI describes an intrusive format as one that is both ‘disturbing’ and unsolicited. They include among ‘non-intrusive’ media (Push) Direct Marketing

HEALTH MESSAGE 

“L’abus d’alcool est dangereux pour la santé, à consommer avec modération”

(Alcohol abuse is dangerous for health, consume with moderation)

If the size of the medium/ communication is too small to accommodate the full text, it is acceptable to use only the first half of the message:

“L’abus d’alcool est dangereux pour la santé”.

In order to be clearly legible and visible, the health message:

• Must be displayed horizontally only (3/3–1 Alcohol Code)
• Its letters must be in bold print, in a colour that stands out from the background, with all letters no less than 1/100th of the total height/ width of the notice in question. However, the size and dimensions of the letters may be altered for reasons of legibility related to the size of the printed medium (3/3–2)
• The space from the edge of the notice must be at least twice the height of the letters. However, this space may be altered for reasons of legibility related to the size of the print medium (3/3–3)

GENERAL CHANNEL RULES 

• Statutory consent and information rules in electronic communications, i.e. those rules that apply to all sectors, alcohol included, are below under the General tab
• ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022) applies to all sectors, including alcohol

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

MARCOMS CONTENT RULES

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• The content rules set out in our earlier section B apply in this channel. The principal source of rules is the ICC Advertising and Marketing Communications Code (EN) the French translation of which is administered in France by ARPP. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply - see content section B

STATUTORY CONSENT AND INFORMATION REQUIREMENTS 

• GDPR: issues arise from the introduction of the GDPR 2016/679: in the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
• The 2013 Mail and Electronic Communications Code, (FR) Article L34-5 (EN) implements the 2002 e-Privacy Directive 2002/58/EC, prohibiting unsolicited commercial communications by telephone or e-mails without a consumer’s prior consent. The legislation provides for opt-in/ soft opt-in. See linked L34-5 file for the specific clause  
• In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws are important in this context, setting out what must be included or made available in E-commerce communications (articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase (art. L121-3 of the Consumer Code)
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

From Article L34-5
Consent requirements

• Use of automated calling systems, fax, or electronic mail for the purposes of direct marketing is prohibited unless prior consent has been obtained (i.e. opt-in)
• Consent means any freely given, specific and informed indication of his or her wishes by which a person agrees that personal data relating to him/ her may be used for direct marketing purposes
• There is an exception to this rule in cases where contact details for sending e-mail messages have been obtained in the context of a sale (‘soft opt-in’)
• Within such an existing customer relationship the company who obtained the data from its customers may use them for the marketing of similar products or services to those it has already sold to the customer, and if the recipient is offered, in specific and unambiguous terms, the opportunity to refuse, at no cost to him/ herself, other than that related to the transmission of the refusal, in a simple manner, the use of his/ her personal details at the time they are collected and each time a marketing email is sent to him/ her if he/ she has not previously refused such exploitation
• In all cases, the sending of direct marketing messages is prohibited unless accompanied by valid contact details that can be used by the recipient to send a request for such communications to be terminated, at no cost other than that related to the transmission of the request
• It is also prohibited to conceal the identity of the person on whose behalf the communication is sent and to mention a subject or item unrelated to the proposed delivery or service

Key extracts from the Consumer Code (CC; EN)

Offers and promotions, 'Invitation to Purchase'

• Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message. These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued (Art. L122-8)
• The conditions applying to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)
• 'Invitation to Purchase’ (often used in this channel): definition here Definition Commercial communication targeting the consumer, encouraging the latter to make a purchase, and mentioning the price and characteristics of the property or service offered information requirements are under article 121-3
• Article L112-1-1 of the Consumer Code (linked above in English) effective May 28, 2022 transposes requirements from the Directive 2019/2161 related to promotional pricing - the rule applies to 'any announcement'

Key extracts from the LECN

Article 19; information required to be available

(e-Commerce is defined here as: the economic activity by which a person proposes or provides remotely and electronically the supply of goods or services; also included in the scope of e-commerce are services such as providing online information, commercial communications, and tools for searching, accessing and retrieving data, accessing a communication network or hosting of information, including when they are not paid for by those who receive them – art. 14 LECN)

Any person who undertakes the activity defined in Article 14 must ensure to recipients of the supply of goods or services the easy, direct and permanent access, using an open standard, the following information:

1. In the case of a natural person, his/ her name and surname and, in the case of a legal person, the name of the business
2. The address where it is established, its e-mail address, as well as telephone numbers facilitating effective contact
3. Where it is subject to registration in the trade and companies Register, or to a trade directory, the registration number, the share capital and the address of its registered office
4. If subject to value added tax and identified by an individual number pursuant to article 286 ter of the general tax code, its individual identification number
5. Where its activity is subject to an authorisation scheme, the name and address of the relevant supervising authority
6. If a member of a regulated profession, reference to the applicable professional rules, the professional title and the Member State where it has been granted, as well as the name of the professional body or order to which it is registered
   Any person who carries out the activity defined in Article 14 must, even in the absence of a contract offer, where it mentions a price, indicate it in a clear and unambiguous manner, and in particular if taxes and shipping fees are included. This paragraph applies without prejudice to the provisions governing deceptive marketing practices provided for in Article L. 121-1 of the Consumer Code, or the price information obligations provided for by the laws and regulations in force

Article 20; Transparency

• Advertising in any form whatsoever accessible through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out
• The preceding paragraph applies without prejudice to the provisions that restrict misleading marketing practices provided for under article L. 121-1 of the Consumer Code

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications
• General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
• Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
• Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
• GDPR may apply if processing personal data; check privacy issues with specialist advisors 
• See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:

• When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations

19.1. Collection of data and notice

• When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

19.2. Use of data

Personal data should be:

• collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
• adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
• accurate and kept up to date
• preserved for no longer than is required for the purpose for which the data were collected or further processed

19.3. Security of processing

• Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

19.4. Children’s personal data

• When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
• Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
• Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
• Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
• Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
• For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7

19.5. Privacy policy

Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

19.6. Rights of the consumer

Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

• opt out of direct marketing lists
• opt out of interest-based advertising
• sign on to general direct preference services
• require that their personal data not be made available to third parties for their marketing purposes; and
• rectify incorrect personal data which are held about them

• Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

19.7. Cross-border transactions

• Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code 

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. The ARPP state in their Digital Advertising and Marketing Communications Code  (EN; V5 in force Jan 2022) that the rules apply to "advertising communications, whatever their format, on advertisers’ own websites." Advertising is defined in the applicable ICC Code as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’

KEY RULES 

• In this context, i.e. in owned space, the key issue is whether the communication constitutes a marketing communication and is therefore in remit, i.e. subject to the rules. The definition of a marcom is above
• Clearly, not all communications on a producer website are marketing communications, and exemptions such as UGC anyway apply. These are explained under the General rules section below; the EASA Digital Marketing Communications Best Practice Recommendation is not binding, but it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer
• Content rules from the earlier Section B apply, i.e. any marketing communication must observe the rules established by the PHC with the ARPP executional guidance and additional rules on e.g. social success, together with the the general advertising rules applicable in France (the ICC Code, linked in English)
• Additionally, online alcohol communications according to the PHC are allowed ‘on condition that the publicity or advertising is not intrusive or interstitial’ (the latter a page or communication that is displayed before an expected content page)
• Marketers own social network spaces, and marketing communications and consumer connections that arise from them, are also subject to the rules in Content Section B and above
• The General channel (placement) rules, i.e. those that apply to all product categories, Alcohol included, are shown below under the General tab. These include statutory Consent and Information requirements in some channels which will apply when e.g. emailing consumers/ users in a commercial context
• In the (immediately) above context, rules from the amended AVMS Directive, delivered in the Léotard law (FR), have been extended further online, as an audiovisual media service has been re-defined in the framework of the digitisation of European media. Video-sharing platforms are specifically addressed; while new rules are largely aimed at platforms and affect the content of commercial communications 'only' in as much as rules must be observed in a larger digital scope, this is nevertheless a significant development in the way in which regulators manage the media landscape. Implications below under the General tab, especially as this sector's commercial communications are anyway so confined

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. subject to the rules. The ARPP state in their Digital Advertising and Marketing Communications Code (EN; in force Jan 2022) that the rules apply to ‘advertising communications, whatever their format, on advertisers’ own websites.’ Advertising is defined in the applicable ICC Code as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’

GENERAL RULES  

• Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures to restrict access to such websites by minors (Art. C7, ICC Code)
• Marketers' own marcoms on their own websites are subject to the product category/ sector rules set out above and in our earlier content section B. The General Advertising Rules (EN ICC Code) from ARPP, i.e. those that apply to all sectors, also apply to marketers’ own marketing communications (marcoms)
• Exemptions are set out in the EASA Digital Marketing Communications Best Practice document: while this is not binding, it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications. See later (in this section) provisions on UGC from the ARPP

CONSENT AND INFORMATION REQUIREMENTS AND AVMSD RULES 

The core e-Commerce rules are shown in the preceding section for Emails/SMS, or see the linked documents below

• Rules for commercial communication in an e-Commerce context are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN key clauses) and the Law of 21 June 2004 on Confidence in the digital economy (LECN). Articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN. Also relevant are information rules for e.g. an ‘invitation to purchase’ under art. L121-3 of the Consumer Code
• The Consumer Code also carries provisions from the UCPD 2005/29/EC, which are applicable in this context. See article L121-1 for misleading and aggressive commercial practices. Additionally, updates effective May 28, 2022 transposed from Directive 2019/2161 via Ordinance 2021-1734 (FR) carry some important e-Commerce related provisions that require information on search rankings and consumer reviews to be made available. New clauses also include 'promotional pricing' rules. See articles L112-1-1 for pricing and L121-3 for search and review information in the linked file above, or to make it even easier, here (EN)
• The 2013 Mail and Electronic Communications Code (FR) Article L34-5 (EN) implements the e-Privacy Directive 2002/58/EC, prohibiting unsolicited commercial communications by telephone or e-mails without a consumer’s prior consent
• In the event that data processing identifies individuals, then lawful processing rules from GDPR may apply. Privacy issues should be reviewed with specialist advisors
• European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, here
• Some online channels/ platforms are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Recital 3 of the directive also discusses e.g. ‘stand-alone parts of online newspapers featuring audiovisual programmes or user-generated videos where those parts can be considered dissociable from their main activity’. Amends were transposed into the national law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the directive's amends to commercial communication content requirements is here and notes on the scope changes here

SELF-REGULATION 

• The ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022), largely to do with channel versus content rules, covers a number of different techniques that will often be deployed on owned websites. The most significant are below. See the linked code for full information 

Apps

Digital audio

Influencers and brands

Brand content

Email

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

ICC Advertising and Marketing Communications Code (EN); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2015

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

SECTION C: NATIVE ADVERTISING

CONTEXT and GUIDANCE 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules. The ICC’s Guidance on Native Advertising is linked and also shown under the General tab

KEY RULES 

• The ‘Native’ form of advertising is like any other alcohol advertising or any sector’s advertising – it’s subject to the content rules; the key general rule, spelt out under the General tab below, is that of identifiability/ disclosure
• A brief extract from the ARPP Digital Communications Code (EN; V5 in force Jan 2022)

1. Identification of the commercial nature of advertising: The commercial nature must be identified, unambiguously, in a clear and immediate way. It is recommended to highlight the commercial nature of the content with a clear statement such as 'advertising', 'sponsored by' or 'in partnership with'. That statement must be legible or audible and intelligible in such a way as the commercial nature is immediately understood

• The content rules for alcohol in our content section B apply, together with the general advertising rules (EN) applicable in France; this is the ICC Code, English version
• Health messaging is required; see the Print section above or content section B for requirements
• Alcohol advertising of any kind may not appear ‘in press, radio or online websites which it is reasonable to assume that the audience is not made up of at least 70% of adults of 18 years and older

SECTION C: NATIVE ADVERTISING

CONTEXT

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'

• The ‘Native’ form of advertising is like any other advertising – it’s subject to the content rules, in this context the ICC Advertising and Marketing Communications Code (EN), applied in the French translation by ARPP, the Self-Regulatory Organisation. Other rules set out in content section B, relating e.g. to portrayal of people, environmental claims etc. also apply 
• The key general rule is that of identifiability/ disclosure. From the linked code above:

7. Identification and transparency 

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

8. Identity of the marketer

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)

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SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below

ICC Advertising and Marketing Communications Code (EN) 2018

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Guidance: ICC Guidance on Native Advertising here

IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here

And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.' 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
• These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Identification and transparency (Art. 7)

• Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

Identity of the marketer (Art. 8)

• The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)

Unfair Commercial Practices Directive 2005/29/EC, Annex I

Commercial practices which are in all circumstances considered unfair

• 11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC

• 22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

Following feedback, we no longer cover Telemarketing 

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Following feedback, we no longer cover Telemarketing 

Following feedback, we no longer cover Telemarketing 

SECTION C: DIRECT POSTAL MAIL

KEY RULES

• The content rules for alcohol in our content section B apply, together with the general advertising rules (EN ICC Code) applicable in France

• The channel rules set out here are specific to the alcohol sector; the channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory consent and information requirements when processing personal data, and rules on commercial communications that constitute an 'Invitation to Purchase'

• Any distribution of mail might be mindful of Article 2/3 amended in the April 2015 version of the ARPP Alcohol Code (EN), which requires that advertisers ‘do not communicate in press, radio or online websites in which it is reasonable to assume that the audience is not made up of at least 70% of adults of 18 years and older’
• The Public Health Code (EN) article L3323-2 permits among others the following publicity or advertising: 
   
  • ‘In the form of messages, commercial flyers, catalogues, and brochures sent by producers, manufacturers, importers, wholesalers, distributors or storage agents, provided that these documents only contain the references set out in article L. 3323-4 (explained/amplified in the ARPP Alcohol Code (EN) Art. 3/ 1) and the conditions of sale of the products offered in the same”

HEALTH MESSAGE 

• The health message sequirements from our content section B apply; exemptions are ‘commercial flyers intended for professionals or sent by post to named individuals, as well as small posters, price lists, menus or items of a specialised nature inside the sales premises’ (art. L3323-4 PHC)

“L’abus d’alcool est dangereux pour la santé, à consommer avec modération”

(Alcohol abuse is dangerous for health, consume with moderation)

If the size of the medium/ communication is too small to accommodate the full text, it is acceptable to use only the first half of the message:

“L’abus d’alcool est dangereux pour la santé”.

In order to be clearly legible and visible, the health message:

• Must be displayed horizontally only (3/3–1 Alcohol Code)
• Its letters must be in bold print, in a colour that stands out from the background, with all letters no less than 1/100th of the total height/ width of the notice in question. However, the size and dimensions of the letters may be altered for reasons of legibility related to the size of the printed medium (3/3–2)
• The space from the edge of the notice must be at least twice the height of the letters. However, this space may be altered for reasons of legibility related to the size of the print medium (3/3–3)

SECTION C: DIRECT POSTAL MAIL

CONTEXT

• Content rules from our earlier section B apply to Direct Mail, both 'general' rules applicable to all sectors and sector-specific rules. Principal source of the former is the General Advertising Rules (EN) from ARPP, the ICC Code, which applies to all product sectors and media/ channels. Other 'trans-sector' rules from the ARPP and legislation from e.g. the Consumer Code (EN key clauses), which largely addresses misleading and aggressive commercial practices derived from the Unfair Commercial Practices Directive 2005/29/EC, also apply in postal Direct Mail; see content section B;
• The Consumer Code linked above also provides rules for commercial communications that constitute an ‘invitation to purchase’ (often deployed in direct mail) under article L121-3. See clauses below; 
• This section does not address ‘mail drops’ as in the delivery of unaddressed leaflets, flyers etc., though those may remain subject to advertising content rules. These paragraphs cover addressed mail, including those addressed to ‘the occupier’ etc., in ‘hard’ form; (note recent rules, however, shown under 'The Law and the Robinson list')
• Direct Mail in most countries, France included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications.

• Consumer protection is from two principal sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications and 2) the ‘Robinson list’ or equivalent, an opt-out list of those who do not wish to receive marcoms. More recent requirements are shown under the final two bullet points in this section;
• In the case of the first, the rules in France are provided by the 1978 French Data Protection and Freedoms Act (FDPFA - FR). The linked law is in French and includes the latest amends. An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here;
• Law 2018-493 on Personal Data Protection (FR) amended the FDPFA in some aspects of data processing and reflects the GDPR 2016/679 in that regard. If data processing for a DM database involves personal data, GDPR rules may apply. Privacy issues should be reviewed with specialist advisors;
• The National Postal Address Service (SNA) manage the Robinson list;
• Lack of compliance with a statement/sign indicating that an individual or an entity does not want to receive non-dedicated advertisings at their place of residence or offices is punishable by a criminal fine up to €7,500 for a legal entity, courtesy of Loi n° 2020-105 relative à la lutte contre le gaspillage (waste) et à l’économie circulaire, as reported by Osborne Clarke May 2020. Placing ad papers on cars is punishable by the same fine;
• The same law, in this case encoded in the Environment Code article L541-15-17 here (FR), requires that from January 2023 B2C advertising flyers or catalogues must be printed on recycled paper or on paper produced from sustainably managed forests.

SECTION C: DIRECT POSTAL MAIL

Applicable Self-regulation and legislation 

​

• National 'Robinson lists' or opt-out lists
• The General Data Protection Regulation 2016/679 for the processing of personal data
• Directive 2005/29/EC on unfair commercial practices (UCPD) 

• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
• The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

SECTION C: EVENTS/ SPONSORSHIP

KEY RULES 

• Any associated promotional material will need to observe the rules, for alcohol specifically and advertising generally set out in our content section B, the latter under the General tab
• In the event that a brand shares the name of the manufacturer (Heineken, for example) then that name, when sponsoring an event, must always be accompanied by the word “company” or foundation” or some other word that clarifies the nature of the business. (Formal version Chapter 5 ARPP Alcohol Code: Within the framework of the law of 10 January 1991, as amended by the law of 2 August 2003, when sponsorship deals are made in the name of the producer or distributor of an alcoholic beverage, the name must always be accompanied by the clearly and visibly displayed word “company”, “foundation” or some other word, abbreviation or initials clarifying the nature of the business when this name is also used by the producer as a brand or trade name for an alcoholic beverage)
• Any form of sponsorship is forbidden when its aim or effect is to provide direct or indirect publicity or advertising to benefit the promotion of alcoholic beverages (PHC L3323-2)
• Per all alcohol marketing, not to be targeted to minors (ARPP Alcohol Code, EN; Chapter 2, Art.2; EN)

“Publicity or advertising, whether direct or indirect”, according to the Public Health Code (EN), is allowed:

• In the promotion of traditional festivals and fairs devoted to locally produced alcoholic beverages and within the confines of such festivals and fairs, subject to the conditions set out in the decree (Art. L3323-2 (6)
• In the promotion of museums, universities, societies or introductory courses in traditional wine-making, as well as in the promotion of presentations and wine-tasting sessions, subject to the conditions set out in the decree (Art. L3323-2 (7)

And the following, which suggests that if you “sponsor” cultural restoration, you can publicise the fact in a limited way:

• The initiator(s) of a sponsorship campaign may publicise their participation exclusively by means of written references included in the documents circulated at the time of such a campaign or on souvenirs or commemorative items on the occasion of actions to improve or restore items of natural or cultural heritage (Art. L3323-6)

Organisation and commercialisation of sports events in France (EN). Joffe & Associés September 2021

• Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the General Advertising Rules (EN) from the ICC/ ARPP
• Legislation from e.g. the Consumer Code (EN key clauses), which largely addresses misleading and aggressive commercial practices derived from the Unfair Commercial Practices Directive 2005/29/EC, also applies to marketing material in Event Sponsorship and Field Marketing; see Content Section B or the linked file 
• The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from the ICC Code linked above. For scope, definitions etc., see Chapter B of the linked Code. Main clauses follow below

 B1. Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2. Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement

B3. Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

B4.  Ambushing of sponsored properties

• No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

B5.  Respect for the sponsorship property and the sponsor

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
• The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them

B6. The sponsorship audience

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

B7. Data capture/ data sharing

• If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

SECTION C: EVENTS/ SPONSORSHIP

• Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below 
• ICC Advertising and Marketing Communications Code (EN): Chapter B Sponsorship

B1: Principles governing sponsorship

• All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
• Sponsorship should be recognisable as such
• The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
• There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

B2: Autonomy and self-determination

• Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement

B3: Imitation and confusion

• Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

SECTION C: SALES PROMOTIONS

CONTEXT

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation and the specifics of offers and mechanics. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that may affect SP and included below. Note that the Channel rules set out here are specific to the Alcohol sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, some important requirements when running promotions or competitions, or when communicating price in a promotional context

STANDARD RULES 

• Marketing communications for the sales promotion of an alcohol brand should observe that only some printed media and limited ‘non-intrusive’ online activity is allowed

• The content rules for alcohol in our content section B, including the requirement for a health message, apply in this context, together with France's general advertising rules (EN ICC Code); these linked rules are also shown under the General tab in section B

SECTION C: SALES PROMOTIONS

CONTEXT

This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal. See Loterie publicitaire et jeu-concours: les pièges à éviter from Haas Avocats Jan 2023.

Some general rules for sales promotions in France, i.e. those that apply to all sectors, can be found below. These are sourced from the Consumer Code law (key extracts below), and the General Advertising Rules (EN) from ARPP/ ICC that apply in France. The specific ICC sales promotion rules are Chapter A of the code. Key extracts below under self-regulation. Finally, SP material should also observe the content rules set out in section B

LEGISLATION

Article L.121-4 of the Consumer Code (EN) is supplemented by clause 23 explained here (EN) by Osborne Clarke.

Re above, see under 'Definition of a new misleading practice.' 

Loterie publicitaire et jeu-concours: les pièges à éviter (FR; Haas Avocats Feb 2023)

See Guide to sales operations with bonuses/ premiums (FR) from Haas Avocats August 2022

And Haas blog June 2023 on reference vs. comparative pricing (FR) 

Extracts from the Consumer Code (EN key clauses inc. 2022 amends):

From Article L121-4. Considered a misleading commercial practice is:

• 5. To offer to sell products or provide services at a specified price without disclosing the existence of reasonable grounds that the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or services or equivalent products or services at that price for a period that is and in quantities that are, reasonable given the product or service, and the scale of advertising of the product or service and the proposed price;
• 6. To offer to sell the products or provide the services at an indicated price and then:

a) Refuse to present the advertised item to consumers;

b) Or refuse to take orders concerning these products or services or deliver or supply them within a reasonable time frame

c) Or present a flawed sample of a product or service with a view to promoting an alternative product or service

• 7. To falsely state that a product or service will only be available for a very limited period of time and will only be available under special conditions for a very limited period of time in order to secure an immediate decision and deprive consumers of the opportunity of having sufficient time to make a soundly based decision