Updates since May 2022 (slimmed)
Update on "Greenwashing" Regulation Above from Soulier/ Mondaq May 2022 ARPP La RECO RAPIDO. June 2022 Video clips < a minute digital ad rules CNIL fines Total Energies 1mil Euros (EN) Google says cookie here to stay until 2024 Above from report dated July 27, 2022 Fossil fuel advertising prohibited August 2022 Fiat 500 Red appeal rejected Aug 2022 (FR) AI: ensuring GDPR compliance. CNIL Sept 2022 NGO carbon suit dismissed by tribunal Jones Day/ Lex November 21, 2022 ARPP and Instagram launch “C’est Carré”. Dec 2022 Above re good practice in Influencer Marketing EU green claims regulation December 2022 Meta’s Ad Practices Ruled Illegal Under E.U. Law. Environmental claims dos and don'ts. Denton's Regulation of Influencers Feb 10, 2023 Hogan Lovells |
Consumer law and the Metavers. Haas. March 15, 2023 EASA update on below October 18, 2023 Green Claims Directive Proposal. March 22, 2023 Total Energies v Greenpeace France. May 3, 2023 Six influenceurs épinglés par la DGCCRF. 9 June, 2023 Above from Haas Avocats (FR). Confirms heavy sanctions More from Haas (FR) on reference pricing June 2023 Traceability information rules Haas July 2023 EN trans New ARPP Crypto Assets code (FR) in force Oct 1, 2023 Haas Avocats on ChatGPT (FR) September 26, 2023 Q&A: online advertising in France UGGC Avocats Sept 29 FOD Economie Review guidelines (FR) October 19, 2023 Whether You Like It or Not. (EN) K&L Gates October 18, 2023 Above is helpful on the Influencers Act (FR) and follow-up Deepfakes; Haas Avocats on 26 October, 2023 (FR) More on Loi SREN from Field Fisher November 3, 2023 (EN) CNIL Fines Groupe Canal+ 600k Hunton Oct 31, 2023 Links reviewed Dec 2023; 5 links renewed |
CNIL unveils its first answers for innovative and privacy-friendly AI (EN) October 16, 2023
ARPP's Crypto-Assets code (EN) in force October 2023. FR version of four financial codes
Practical guide to environmental claims (FR) published by DGCCRF and the Consumer Council May 25, 2023
Total Energies v Greenpeace France. Reuters May 3, 2023
French parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023
Commentary here (EN) from Addleshaw Goddard and GALA here. Code of Good Conduct here (FR)
CNIL Fines Apple 8 Million Euros Over Personalized Ads. Hunton Andrews Kurth LLP January 6, 2023
The above is obviously a significant case; GDPR application 'versus' national law discussed
Fossil fuels ad ban; carbon and other claims
From 22nd August 2022, the 'advertising and promotion' (la publicité relative à la commercialisation ou faisant la promotion) of specified fossil fuels is prohibited; see section 8 of the Environmental Code, art. L229-61 (FR) from the 'Climate and Resilience Law'. Some acerbic August 2022 commentary from GALA here. The same law introduced a new section 9 in the Environmental Code on requirements and conditions for carbon claims such as 'carbon neutral', 'zero carbon', 'zero-carbon footprint', 'climate neutral', 'fully offset', '100% offset' or equivalent, applicable as of January 1, 2023. Key clauses are in English here, courtesy of Soulier Avocats. There are other significant environmental information measures aimed at 'waste-generating' products, which include a ban on terms such as 'environmentally friendly' or 'biodegradable' on products and packaging; details to be developed via decree in the coming months; see Better consumer information on the environmental qualities of products from Bird&Bird June 2022, Decree 2022-748 here (FR).
As further emphasis that environmental claims are high on the regulatory agenda, the Consumer Code - principal legislation in advertising content and incorporating transposition of the Unfair Commercial Practices Directive 2005/29/EC - was amended by the same 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) to include specific reference to environmental impact under CC article L121-2, which sets out how a product or service's 'essential characteristics' must not mislead. The full article can be found here in English and the Consumer Code is here in French. ICLG's Consumer Protection Laws and Regulations from April 2023 sets out how various jurisdictions, France included, apply consumer protection law to environmental claims.
Set out below are the rules that affect all product sectors in France. While some sectors are subject to specific rules, they must also observe the ‘general rules’ that deal with e.g. misleadingness, social responsibility, decency, offence, etc. Some countries write their own codes that address those issues, others will deploy the established ICC Advertising and Marketing Communications Code (EN), which applies directly in France. The French version of the code, obviously applicable in this context, is here. Details are in English in our content section B, or see the linked code. The articles frequently referenced in adjudications are 2, Social responsibility and 5, Truthfulness. There's a helpful March 2023 round-up here of 'Prohibited and controlled advertising in France' from lawyers Bernard-Hertz-Béjot via Lex and another piece from them on misleading advertising in France, March 2021.
SRO AND CODES
The Self-Regulatory Organisation in France is the ARPP (Autorité de Régulation Professionnelle De La Publicité). As you might expect, there are a number of codes that are unique to France; they are all collected here in FR and in EN; the overall regulatory position is relatively intricate and certainly not short on rules. Supplementing the ‘base’ ICC Code are a number of sectoral codes such as those for cars, children, gambling etc. Those codes are shown in detail in the sectors we cover elsewhere, or they can be found on the ARPP website linked above. Trans-sector codes from ARPP are also significant influences in both content and channel rules; a selection is:
Portrayal of people
Code for the Portrayal and Respect of People (EN):
In the original French (Recommandation Image et Respect de la Personne):
The code, introduced in 2016, covers aspects such as dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in content section B, or click above.
Children
A separate Children database is available from the home page of this website. Meanwhile, here is the core Article !8 Children and Young People (EN) from the ICC Code and the ARPP 'Recommandation Enfant' FR / EN. There are some provisions on child protection in the ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here); see clause 3. There are also references under point 1.6 (Safety) in the content section B that follows. K&L Gates LLP/ Lex bring to your attention 'French framework for “kidfluencers” - Yet another undertaking for online platforms', which describes the arrival and implications of Act No. 2020-1266 (FR) of 19 October 2020 on the commercial use of the image of children under 16 on online platforms. Under this act, which amends the French Labour Code, anyone (including parents) recording videos featuring children under 16 with the aim of making money on video sharing platforms must request the relevant public authority’s prior authorisation. More here from Klemchuk LLP/ Lex April 14, 2023.
Identification
Identification of advertising and marketing communications. Identification of the advertiser
In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-de-la-publicite-et-des-communications-commerciales/ (FR)
The code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below, and the ARPP Guidance on Influencer Marketing (Video EN sub-titled)
Native
The ICC’s Guidance on native advertising Is in French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
The Digital Advertising and Marketing Communications Code (EN; V5) also carries native advertising provisions
Influencer marketing
Le Guide de bonne conduite pour Influenceurs et créateurs de contenu (FR)
Above from Ministre de l'Économie July 2023. Haas summary here (FR)
French parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023
Commentary here (EN) from Addleshaw Goddard. Code of Good Conduct here (FR)
France leads on specific regulation for influencers and the EU may follow
Osborne Clarke. January 24, 2023. Consultation here closed Jan 31, 2023
ARPP recommendations for influencer marketing
https://www.youtube.com/watch?v=8Jx4gr5bvH0 (EN sub-titles)
Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR). #ad, for example, is not permitted
See also the ARPP ‘Responsible Communications Kit’ (FR)
ARPP announced July 2021 the 'Code de la route de l’influence' (FR) with Influence4You; this is the 'Highway Code' for marketers and influencers
The Digital Advertising and Marketing Communications Code (EN; V5) also carries Influencer provisions
The Media Institute in collaboration with ARPP launched the Responsible Influencing Certificate in September 2021. More here (FR)
ARPP and Instagram launch “C’est Carré” to promote good practice in Influencer Marketing. December 2022
Safety
Safety Code: Dangerous behaviours and situations:
In the original French (Recommandation Sécurité: Situations et Comportements Dangereux):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/securite/ (FR)
The code is particularly protective of children but helpful in describing situations that are permitted
Details in content section B or from the links above
Price
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/publicite-de-prix/ (FR)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/ (EN)
This recommendation sets out the principles, qualifications and formatting by channel when including price in advertising. Details in content section B & channel section C
Sustainability (inc. beyond SRO)
News/ developments
The government presents its “digital decarbonization” roadmap (FR)
Haas Avocats September 25, 2023
EASA update on below October 18, 2023
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here
Helpful summary and commentary here from GALA/Lex also March 22
ARPP announce March 2022 that advertisers/ agencies must consult pre national campaigns with environmental claims.
More here (FR) and key extracts unofficially translated here. See also additional opening entry above re Consumer Code changes & new rules re carbon offsetting and neutrality
Commentary
Quelles Sont Les Nouvelles Obligations Environnementales Pour Les Sites E-Commerce? Haas Avocats April 4, 2023
The French regulatory arsenal against greenwashing. Taylor Wessing/Lex April 3, 2023
The above includes some rulings from ARPP
Communication on the environmental qualities of products: dos and don'ts. Dentons/ Lex
National and international codes and guidance
Practical guide to environmental claims (FR) published by DGCCRF and the Consumer Council May 25, 2023
Helpful commentary on the above here from Hogan Lovells/ Lex June 2, 2023
http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR; V3)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN; V3)
The code covers topics such as truthfulness, vocabulary, signs, labels and logos, clarity and qualifications, and complex systems
Video here: https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN sub-titles)
Ademe, the French Agency for Ecological Transition, publish the Anti-greenwashing Guide (FR) with ARPP
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
On 7 October 2021, Google launched a new environmental claims policy. More here
Chapter D of the ICC Advertising and Marketing Communications Code (EN) is devoted exclusively to environmental claims
ICC Environmental framework 2021 (Nov) 'provides added guidance on some established environmental claims and additional guidance on some emerging claims.'
LEGISLATION IN ADVERTISING CONTENT
Consumer protection (in the marketing context) legislation is provided by the Consumer Code (EN; includes clauses effective May 28, 2022 from Directive 2019/2161), which transposes the Unfair Commercial Practices Directive 2005/29/EC, in December 2021 subject to new Guidance from the Commission. The code covers misleading marketing and advertising practices and e.g. sets out the rules for commercial communications constituting ‘an invitation to purchase’ and the comparative advertising rules; some promotional activities are covered in articles L121-35 to 41. Details in the following content section B. This legislation can apply in Influencer cases: see Influencers and the Consumer Code: the DGCCRF at attention (FR) from Haas/ Mondaq on a recent case brought under article LI21(3), covering failure to indicate 'true commercial intention,' albeit there is now (June 2023) specific Influencer legislation (see above under Issues/ News). Amends from the Climate and Resilience Law (FR) of August 2021 to article L121-2 of the CC incorporate specific reference to 'environmental impact' under 'essential characteristics' which must not mislead. Clauses in English are here. See above in the introductory paragraph reference to rules from the same Climate and Resilience Law on carbon offsetting and carbon neutrality claims in advertising, key clauses in English here and 'Communication on the environmental qualities of products: dos and don'ts' here from Dentons/ Lex Jan 2023 is very helpful in setting out the statutory coverage of various forms of environmental claims. Q&A: misleading advertising practices in France from Bernard-Hertz-Béjot March 28, 2023 has good coverage of these aspects and others more general.
The Consumer Code (FR) now also carries the marketing-related clauses from the 'Omnibus' Directive 2019/2161, which have been transposed via Ordinance No. 2021-1734 (FR) of December 22, 2021. Article L.112-1-1 (of the CC) for promotional pricing (see Haas blog June 2023 on reference vs. comparative pricing (FR)), article L.121-2 for a new misleading practice in international 'dual marketing' rules The Directive's article any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.’and L.121-3 for the information now required in an e-commerce context re search rankings and consumer reviews, all effective May 28, 2022. Unofficial and non-binding translation of all the key clauses here. State department FOD Economie October 2023 guidelines on reviews here (FR).
Models in advertising
Legislation in the Public Health Code (PHC) is from article L2133-2 (EN) addressing retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.
CHANNEL (I.E. PLACEMENT) RULES
Self-regulation
The ICC content rules referenced above apply both offline and online; the online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here). The press release setting out the changes is here in English; scope of the code is here. Scope These rules apply to 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 includes a useful walk through the various techniques online such as In-game, apps, vlogs/ influencers, native advertising, brand content, OBA and retargeting. Full information in our channel section C as applicable, or see the linked code.
Legislation in channel
The influence of legislation in the placement of commercial communications across Europe is significant and covered by a series of Directives assembled here for background. The following paragraphs address their transposition into national legislation and application by channel, albeit details are in section C, so this is a 'snapshot.' Note that as of January 2023 any B2C advertising flyers or catalogues must be printed on recycled paper or paper produced from sustainably managed forests, courtesy of art. 48 LOI No. 2020-105 (FR)
Audiovisual
Decree 92-280 (FR, key clauses translated here) transposed the AVMS Directive and provides the core rules in spot advertising, programme sponsorship, and teleshopping. Two 2017 developments are the lifting of the prohibition (FR) on showing product etc. in TV programme sponsorship, and the introduction of a ban (FR) in and around children’s (U12) programmes for anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’. Amendments brought about by Directive 2018/1808 extending the scope of the AVMSD into e.g. video-sharing platforms are provided nationally in the Léotard Law (FR) via Ordinance 2020-1642 (FR). Details in channel section C, or see the linked files.
Direct electronic communications
Data processing under CNIL is regulated by the French Data Protection and Freedoms Act or FDPFA Act No. 78 -17 of 6 January 1978 (FR) as amended (see below), and electronic communications primarily by the 2013 Mail and Electronic Communications Code (FR), unofficial translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France.
e-Commerce
Rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN) (FR) 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 above under the Legislation in Advertising Content header re amends to the Consumer Code brought about by the Ominibus Directive. There's a helpful June 2022 piece on the implications from Haas Avocats here (FR) and another (FR) from the same company June 2023.
Data processing
Privacy issues should be reviewed with specialist advisors
The CNIL creates an AI Department and begins to work on learning databases
January 26, 2023. From the CNIL
Rulings Awaited Against Both Criteo and IAB Europe: Ongoing Uncertainty for Digital Advertising
August 2022 Goodwin Procter/ Lex
The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, France included, tend to retain their legislation and add to it to ‘recognise’ GDPR. France’s key development in this context is via Ordinance No. 2018-1125 of December 12, 2018 (FR) on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (or the French Data Protection and Freedoms Act - FDPFA), and transposing Directive 2016/680, which accompanies GDPR. Helpful overview and commentary here (EN) from Data Guidance. The Data Protection Authority is CNIL, who publish some text in English. Their GDPR 'toolkit' is here in English; specific rules and guidelines are set out by channel in section C. The CNIL gives its position on the “cookieless” alternatives to third-party cookies 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). This 30 June 2022 announcement from CNIL regarding commercial prospecting and personal rights breaches that led to a fine of 1 million euros against Total Energies is instructive, as it explains the specifics of the case and the rules concerned (in English). The February 2022 'référentiel' on personal data processing from CNIL is here (FR); much of this courtesy of Haas Avocats.
Notes
1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES
1.1. The ICC Code: key extracts
1.3. Identification of advertising
1.4. Native
1.5.1. Environmental claims - the ICC rules
1.7.1. ICC Code – Pricing rules
1.8. Notes and overlays/ titles
1.9. Online channel/ Digital (see also Channel rules)
2. LEGISLATION IN FRENCH ADVERTISING
2.1. Invitation to purchase
2.3. Pricing regulations
2.4. Carbon claims
2.5. General content rules in broadcast
1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES
1.1. The ICC Advertising and Marketing Communications Code
Some key extracts from the ICC Code in English are set out below; évidemment the French translation, which forms the 'general' advertising rules in France, applies
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Comparisons (Art. 11)
The full code is here in English:
And here in French:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/
Advertising must respect, no matter its form, the following principles:
1. Dignity and decency
2. Stereotypes
Advertising must not reduce human beings, and especially women, to the role of an object (Art. 2.1)
3. Ethnic or religious references
4. Submission, dependence, violence
5. Image and other human characteristics
1.3. Identification of advertising
The full ARPP code is here in English:
And here in French:
Note: the French version of this Code has not been updated to reflect the changes introduced by the 2018 ICC Advertising and Marketing Communications Code. The clauses below are in line with the new Code
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Specific provisions of the ICC Advertising and Marketing Communications Code. From Chapter C, Direct Marketing and Digital Marketing Communications:
Article C1: Identification and transparency
Article 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
Advertising, no matter the form, must comply with the rules contained in the ICC Advertising and Marketing Communications Code, as well as the following rules:
1. Principles
2. Digital advertising or marketing communication
3. Press
1.4. Native
The ICC guidance is in French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/
From the document: As online advertising has expanded, ad formats that allow the user to experience ads (organically as part of the content) have evolved. This type of paid-for content marketing is known as “native advertising.” While native advertising is not new, it is rapidly growing as web properties seek new ways to monetize and enhance the user experience. While the mere appearance of a brand or product does not necessarily mean that the content is advertising, there are some principles that are vital to ensure transparency and consumer trust, each of which is addressed in the ICC Advertising and Marketing Communications Code (the ICC Code)
1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 7, B1, and C1 as follows:
2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 8 and B12, as follows:
3. Disclosures should be prominent and understandable to consumers. This principle is covered in Article 4 as follows:
See also the 2021 legislation under point 2 below
The full code is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR)
1. Eco-citizen impacts
2. Truthfulness of actions
The three pillars
For businesses, sustainable development means in this sense to balance the following three pillars:
3. Proportionality of messages
a. The advertisement should not be presented in such a way as to imply that it relates to more pillars of sustainable development, more stages of a product's life-cycle or more impacts than can be justified by the evidence;
b. The message should not unduly suggest a total lack of negative impact;
c. The presentation of action(s), product(s) at an experimental or project stage (prototype, R & D, investment ...) must be clearly presented as such and their scope should not be exaggerated
4. Clarity/ qualifications of messages
5. Loyalty
a. An environmental claim should not emphasise the absence of a component, ingredient, characteristic, or impact (typified by formulations such as "without ...“, or "no …", or "…-free") that never affected the family of products or activities presented by the advertisement;
b. A claim that a product does not contain an ingredient or a specific component (typified by formulations such as "without …“, or "no …", or "…-free") should be used only in line with the rules of the competent authorities that define the maximum thresholds, or, failing that, under the conditions laid down in ISO 14021
c. A reduction of a negative impact should not be presented as a direct “recovery” of natural ecosystems
6. Signs, labels, logos, symbols, self-statements
7. Vocabulary
8. Visual or audible elements in an ad
9. Complex systems
Some recognised systems may be based on highly technical argumentations or complex schemes, whose benefits in terms of sustainable development are indirect (e.g., systems known as “green electricity”, “carbon offset”, “socially responsible investments”, etc.). When an advertisement refers to these types of systems:
1.5.1. Environmental claims - the ICC rules
Additional ICC guidance
1.6. Safety
Context
Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards…. Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk. ICC Code, Article 17
(…) Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic. ICC Code, Article 18.3 Avoidance of harm
The following rules must be respected in all commercial communications, in addition to law and regulation applicable to dangerous objects, products or behaviours:
1. General principles
Commercial communications must not show dangerous or potentially dangerous behaviours or situations and must not encourage engagement in such behaviours and/ or situations:
The different cases must be assessed regarding the context of the advertisement, the persons presented, the graphic design used, the artistic world reproduced and the public targeted
Specific context
Certain dangerous behaviours can nevertheless be accepted, for example:
2. Particular cases: children
Particular attention must be given to scenes portraying children or advertisements targeting children. The presence of a supervising adult can reduce the potentially dangerous nature of a presented situation.
Promotion of safety or health: If one of the assertive goals of the advertisement is to promote safety or health, it can be legitimate to show a dangerous situation or behaviour in order to condemn it. The denunciation of a dangerous behaviour or situation must be unambiguous, in order not to lead to the opposite result
The ARPP Code is in French here:
ARPP Price Advertising Recommendations (FR)
An ARPP English translation is linked below; key clauses below the link and in individual channels in the following Section C
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/
1.7.1. ICC Code - Pricing rules
The linked document below extracts key clauses related to Pricing from the ICC Advertising and Marketing Communications Code, on which the ARPP Code above is based:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
1.8. Notes and overlays/ titles
The full code is in English here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/
And in French here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/
The ARPP’S 2021/22 Digital Advertising and Marketing Communications Code (V5) is in French here:
And in English here:
The code was announced in December 2021 and is in force January 1, 2022; key changes are shown in the press release here in English. The Code covers inter alia Identification, Protection of children and teenagers, Compliance with good societal practice, User-generated content and 'Comfort of use.' It includes a list of applications which provides guidelines by channel/ techniques such as Promotional blogs/ Influencers, Native advertising, Behavioural advertising and retargeting, In-game advertising and Apps. As the Code largely relates to Channel issues, it is spelt out in the relevant sections in that Section (C) below
1.9.1. ICC Code Digital interactive media
https://www.g-regs.com/downloads/ICCChapC2018DMC.pdf
The above linked document provides Chapter C Direct Marketing and Digital Marketing Communications of the 2018 ICC Advertising and Marketing Communications Code, on whose principles the ARPP code above is based
2. LEGISLATION IN FRENCH ADVERTISING
The Consumer Code (CC; FR)
Key clauses in English:
http://www.g-regs.com/downloads/FRConsumerCodeENG.pdf
The Consumer Code (CC), English translation of key clauses linked above, is the core legislation in business-to-consumer commercial communications, and the home of transposition of the Unfair Commercial Practices Directive 2005/29/EC. While many of the CC’s communication requirements will be reflected in Self-Regulation, it’s as well to be aware of the legal context. There are three relevant components below, but meanwhile the 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) incorporated specific reference to environmental impact under article L121-2 of the CC. Clauses in English from the linked document above
2.1. Invitation to purchase
If your ad or ‘commercial communication’ constitutes an ‘invitation to purchase’ - defined as “indicating 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 L121-3 of the Consumer Code requires that the following must be included:
Guidance from the EC here (December 2021)
Article L122-1
Any advertising that makes a comparison between goods or services by identifying, implicitly or explicitly, a competitor or goods and services offered by a competitor is only legal if:
1. It is not false or likely to mislead
2. It relates to goods or services fulfilling the same requirements or having the same objective
3. It objectively compares one or more essential, pertinent, verifiable and representative characteristics of these goods or services, one of which may be the price
Article L122-2 Comparative advertising may not:
1. Take unfair advantage of the reputation attached to a trademark, manufacturer’s brand or service mark, to a trade name or to other distinctive marks of a competitor or to the designation of origin as well as the protected geographical reference of a competing product
2. Lead to the discrediting or denigration of marks, trade names, other distinctive signs, goods, services, activity or situation of a competitor
3. Cause confusion between the advertiser and a competitor or between the advertiser’s marks, trade names, other distinctive signs, goods or services and those of a competitor
4. Present goods or services as an imitation or reproduction of goods or services with a protected mark or trade name
The advertiser on whose behalf the comparative advertising is being circulated must be in a position to prove, within a short time, the factual accuracy of the statements, references and presentations contained in the advertising (Art. L122-5)
The publication in the press of advertising as defined in articles L. 122-1 and L 122-2 does not give rise to the application of article 13 of the law of 29 July 1881 in the freedom of the press and article 6 of law no. 82-652 du 29 July 1982 on audiovisual communication (Art. L122-6)
2.3. Pricing regulations
Pricing regulation is from a number of sources in law; below are the most relevant:
See also pricing from self-regulatory measures shown in full under point 1 above
ARPP Price Advertising Recommendations (FR)
An English translation is linked below; key clauses above under Pt. 1.7 and in individual channels
http://www.g-regs.com/downloads/FRARPPPriceClausesC.pdf
The Climate and Resilience Law (FR) introduced via Decree 2022-539 of April 13, 2022 (FR) on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code. The clauses concerned are in English here. These require substantial evidence to be made available in the event of a 'carbon neutral' or equivalent statement being made
2.5. General content rules in broadcast
From the consolidated version of Decree 92-280 of 27 March 1992 (EN) transposing Directive 2010/13/EU (the AVMS Directive, AVMSD)
Directive 2018/1808 amended the AVMSD to extend scope into e.g. video-sharing platforms. Provisions are applied in Law 86-1067 of September 30 1986 (the Léotard law) in French here. The commercial communications content elements of the directive’s changes, which are not significant, are shown here (EN). What is significant, however, is the pressure placed on self-regulatory systems with the addition of article 4a (shown in the linked file), which appears to require a more aggressive stance in HFSS and alcohol marcoms regulation in particular
1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity
2. Directly encourage minors to persuade their parents or others to purchase the goods or services
3. Exploit or alter the special trust minors place in parents, teachers or other persons
4. Without justification show minors in dangerous situations (Art. 7)
Public Health Code article L2133-2 (EN) on retouched model shots: these must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.
KEY RULES AND SOURCES
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
PRICING IN AV (ARPP Price Recommendation)
SPONSORSHIP (Decree 92-280)
1) The mention of the sponsor during the course of a programme, except during an interruption of/ break in the programme, must remain brief and discreet, simply recalling the contribution made by the sponsor, and cannot become an advertising slogan or the presentation of the product itself or its pack
2) When the sponsorship is supporting a gameshow/ contest programme, the awarding of the sponsor's goods or services to individuals as prizes cannot be in the context of an advertising claim (Art. 18/III)
The last three bullet points above as amended by Decree No. 2017-193 of February 15, 2017 (FR)
RADIO SPONSORSHIP
Consolidated version of Decree 87-239 (EN key clauses) article 9
APPLICABLE TO ALL 3 CHANNELS
CINEMA
Price
Re-touching
OUTDOOR
The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
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;
PRICING
INFLUENCER MARKETING
Video from ARPP (EN sub-titles)
ARPP recommendations for influencer marketing:
https://www.youtube.com/watch?v=8Jx4gr5bvH0
Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR); #ad, for example, is not permitted
The Digital Code referenced above also carries some Influencer rules, GRS (unofficial, non-binding) translation as follows:
Definition
Qualification & application
Identification
...............................................................
Other guidance
The European Advertising Standards Alliance (EASA) published in December 2018 Best Practice Recommendation on Influencer Marketing (EN)
and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope
Le cadre juridique applicable au marketing d'influence (FR) published by Haas Avocats September 2022 is a valuable overview of the regulatory framework around Influencer marketing
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)
INFORMATION REQUIREMENTS
from the FDPFA, art. 82
EXEMPTIONS
CONSENT REQUIREMENTS AND GUIDANCE
Commentary
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023. Connected with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
CNIL Fines Apple 8 Million Euros Over Personalized Ads. Hunton Andrews Kurth LLP January 6, 2023
The above is obviously a significant case; GDPR application 'versus' national law discussed
Meta’s Ad Practices Ruled Illegal Under E.U. Law
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
Effective 19 January 2022
9. Behavioural advertising and retargeting
1) Identification of the commercial nature of behavioral advertising
OTHER SELF-REGULATION
From EASA’s Best Practice Recommendation on OBA: “In addition to the privacy notice on their own websites, Third Parties are required to provide an “enhanced notice” to consumers whenever they are collecting or using data for OBA purposes on a website that is not operated by them. The purpose of the enhanced notice is to provide the web user with information about the identity of the company that is delivering the ad and about the fact that the ad is targeted based on previous web viewing behaviour.”
A number of companies and organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by EDAA: http://www.edaa.eu. The OBA icon,
which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling. OBA segments may not be created for children (under 13)
OTHER SIGNIFICANT INFLUENCES
MARCOMS CONTENT RULES
STATUTORY CONSENT AND INFORMATION REQUIREMENTS
From Article L34-5
Consent requirements
Key extracts from the Consumer Code (CC; EN)
Offers and promotions, 'Invitation to Purchase'
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:
Article 20; Transparency
SELF-REGULATORY REQUIREMENTS
5a) Identification of advertising
5b) Fair, truthful and honest advertising
Pricing
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
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
SELF-REGULATION
Apps
Digital audio
Influencers and brands
Brand content
INFLUENCER MARKETING
Video from ARPP (EN sub-titles)
ARPP recommendations for influencer marketing:
https://www.youtube.com/watch?v=8Jx4gr5bvH0
The Digital code referenced above also carries some Influencer rules, GRS unofficial non-binding translation as follows:
Definition
Qualification & application
Identification
OTHER GUIDANCE
The European Advertising Standards Alliance (EASA) published in December 2018 Best Practice Recommendation on Influencer Marketing.
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.'
7. Identification and transparency
8. Identity of the marketer
The ICC’s Guidance on Native Advertising (EN) includes:
1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 9 (of the main ICC Code; article shown above), B1, and D1 as follows:
Article B1 (in part): Sponsorship should be recognisable as such. Article D1 (in part): The commercial nature of product endorsements or reviews created by marketers should be clearly indicated and not be listed as being from an individual consumer or independent body
2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 10 (of the main ICC Code; article shown above) and 12, as follows: Article B12: Media Sponsorship (in part): 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
3. Disclosures should be prominent and understandable to consumers. This principle is covered in section 3 as follows: Article 3: Honesty: 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
From the ARPP's Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022)
8. Native advertising
Definition: Native advertising covers all advertising formats that adopt - or closely approximate - the design and usage features of the website on which they are placed and adapt themselves to the user experience
LEGISLATION
The Consumer Code (EN key clauses inc. 2022 amends), which in this context is the principal consumer protection legislation in France, and includes transpositions from the Unfair Commercial Practices Directive 2005/29/EC and e-Commerce Directive 2000/31/EC, carries the following clauses in relation to Identity. Deemed misleading is:
Law No. 2004-575 (FR) on Confidence in the Digital Economy carries the e-Commerce 'Identification' rule under its article 20:
Following feedback, we no longer cover Telemarketing
CONTEXT
Invitation to purchase and promotional pricing
1. The main characteristics of the property or service
2. The address and identity of the trader
3. The price, including tax and delivery costs that will be charged to the consumer, or, if this cannot be calculated in advance, the method of calculation used
4. The methods used for payment, delivery, and execution and processing of consumer claims insofar as they differ from customary practice in the professional sector concerned
5. The existence of a right of withdrawal, should this be provided for by law.
From Art. L 121-3 CC.
SELF-REGULATION IN DM
PRICING
Organisation and commercialisation of sports events in France (EN). Joffe & Associés September 2021
B1. Principles governing sponsorship
B2. Autonomy and self-determination
B3. Imitation and confusion
B4. Ambushing of sponsored properties
B5. Respect for the sponsorship property and the sponsor
B6. The sponsorship audience
B7. Data capture/ data sharing
B8. Artistic and historical objects
Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
B9. Social and environmental sponsorship
Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications
B10. Charities and humanitarian sponsorship
Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
B11. Multiple Sponsorship
Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship
The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
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
B13. Responsibility
As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship
.........................................................
The European Sponsorship Association (ESA) may also be able to help
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:
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
Offers made by electronic means
Also from the Consumer Code (EN key clauses; FR)
Article L112-1-1 effective May 28, 2022 represents the transposition of promotional pricing rules from Directive 2019/2161, itself amending the Product Price Directive 98/6/EC. Clauses in English, applicable to 'any announcement' are:
See Haas blog June 2023 on reference vs. comparative pricing (FR)
SELF-REGULATION
From the ICC Advertising and Marketing Communications Code (EN), Chapter A
Article A2. Terms of the offer
Article A4. Administration of promotions
In particular:
Article A5. Safety and suitability
Article A6. Presentation to consumers
Information requirements
Information should include, where relevant:
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
PRICING
The ARPP’s Price Recommendation may be relevant in a sales promotional context. In English (ARPP translation):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/
All television advertising needs to be pre-cleared by the ARPP. The procedure is as follows:
A preferential rate of 38 euros* per advertisement is available to ARPP members, whereas non-members pay 207 euros. The pre-clearance process takes a maximum of 48 hours. Copy advice requests and the enclosures must be sent through the new online submission system ARPP.PRO. More information can be found here (FR) or here (EN). * These fees are probably out of date
5-10 clear working days for TV/VOD/Online/Sponsorship (incurs fees)
For help contact the Traffic Bureau administration@trafficbureau.net
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 in May 2018.
https://eur-lex.europa.eu/eli/reg/2016/679/oj
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. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
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:
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, significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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:
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’).
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. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 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. Transposition in France is primarily, for our purposes, by Ordinance No. 2021-1734 of December 22, 2021, shown below under national legislation.
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 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://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf
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. 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
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
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
Toubon
1994 Toubon Law on the use of French language (Loi Toubon); articles 1 and 2. This law imposes the use of the French language in work, public administration, instructions for use of products, commercial offers and guarantees, and in advertising. Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product:
http://www.dglf.culture.gouv.fr/droit/loi-gb.htm (in English!)
Consumer protection
Consumer Code (Code de la Consommation). The Consumer Code carries the Unfair Commercial Practices Directive 2005/29/EC of 11 May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy. Articles L121-1 to L121-5 of the Code cover misleading commercial practices; L121-3 sets out the specific rules for commercial communications making ‘an invitation to purchase.’ Articles L122-1 to L122-6 set out comparative advertising rules. Requirements for promotions in electronic communications are found under L122-8 to L122-10. Some pricing rules are under L112-1 to L112-4. Act No. 2014-344 of 17 March 2014 transposed EU Directive 2011/83/EU into the Consumer Code; the Directive largely addresses distance selling and off-premise contracts, rights of redress etc. Ordinance 2021-1734 (FR; see below) is the vehicle that transposes various marketing-related rules from Directive 2019/2161 which itself inter alia amends Directives 98/6/EC, the Product Pricing Directive and the UCPD 2005/29/EC. Clauses affect e-Commerce information requirements related to consumer reviews and search rankings (article L121-3) and, separately, promotional pricing rules which are shown under article L112-1-1. The version of the Consumer Code applicable from May 28, 2022 is here:
An unofficial and non-binding translation of most of the articles relevant to this database, including those effective May 28, 2022, is here:
http://www.g-regs.com/downloads/FRConsumerCodeENG.pdf
Ordinance No. 2021-1734 of December 22, 2021 transposing Directive 2019/2161 of the European Parliament and of the Council of November 27, 2019 as regards to better enforcement and modernisation of EU consumer protection rules. Ordonnance n° 2021-1734 du 22 décembre 2021 transposant la directive 2019/2161 du Parlement européen et du Conseil du 27 novembre 2019 et relative à une meilleure application et une modernisation des règles de l'Union en matière de protection des consommateurs. In this context, amends the Consumer Code; the product pricing amends are under Section 2 of the ordinance and Section 3 carries consumer review and search ranking information requirements as well as the addition under misleading actions: 'When an item is presented as being identical to an item marketed in one or more other Member States, even though it has a different composition or characteristics”. The latter amends are to article L121-2 of the Consumer Code. Provisions are in force May 28, 2022.
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044546235 (FR)
The 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021; art 10) established specific reference to environmental impact under article L121-2 of the Consumer Code, which covers how a product or service's 'essential characteristics' must not mislead.
https://www.legifrance.gouv.fr/eli/loi/2021/8/22/TREX2100379L/jo/texte
Consumer authority
The Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) is the public body that enforces the Consumer Code:
https://www.economie.gouv.fr/dgccrf
The Environmental Code
The Climate and Resilience Law (Loi 2021-1104 FR) introduced via Decree 2022-539 of April 13, 2022 on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code which requires that claims such as 'carbon neutral' and equivalent are permitted only if 'the advertiser makes readily available to the public the following: 1. A greenhouse gas emissions assessment report that incorporates the direct and indirect emissions of the relevant product or service; 2. The process by which the greenhouse gas emissions of the relevant product or service are first avoided, then reduced and finally offset. The greenhouse gas emissions reduction trajectory is described using quantified annual progress targets; 3. The methods for offsetting residual greenhouse gas emissions that comply with minimum standards defined by decree.' LOI No. 2020-105 (FR) du 10 février 2020 relative à la lutte contre le gaspillage et à l'économie circulaire (the fight against waste and the circular economy, though the fight is against only the first of those) also places marketing-related clauses into the Environmental Code including, for example, that as from 1 January 2023 B2C advertising flyers or catalogues must be printed on recycled paper or on paper produced from sustainably managed forests. Helpful May 2020 summary in English here from Osborne Clarke.
Decree No. 2022-539 of April 13, 2022 on carbon offsetting and claims of carbon neutrality in advertising
https://www.legifrance.gouv.fr/eli/decret/2022/4/13/TRER2209794D/jo/texte
Section 9 Environmental Code:
The clauses concerned are in English here (translation borrowed from Soulier Avocats/ Mondaq May 2022)
https://www.g-regs.com/downloads/FREnvCodeMay2022EN.pdf
Data processing
Act No. 78-17 of 6 January 1978. Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés. Formally, the 1978 Information Technology, Data Files and Civil Liberties Act, known as the French Data Protection and Freedoms Act (FDPFA). The 1978 act is the core and principal national data protection statute (pace GDPR) in France and established the CNIL (Commission Nationale de l’Informatique et des Libertés, the Data Protection Authority; see below). An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here:
http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf
The consolidated version of the Act, including the amends from Law 2018-493 on Personal Data Protection (FR) and Ordinance 2108-1125 of December 12, 2018, which is the ‘vehicle’ that recognises GDPR, is in French here:
https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee
There have been many amendments to the DPA over the years; significant in this context is Ordinance No. 2011-1012 of 24 August 2011 on electronic communications, which set out cookie provisions from Directive 2009/136/EC. See below. The Ordinance is in French here:
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id
Cookies/ data protection
France implemented the EU Cookies Directive 2009/136/EC, which amended the E-Privacy Directive 2002/58/EC, by Order/decree No. 2011-1012, of 24 August 2011 on electronic communications (see above). This amends the Consumer Code, and the Postal and Electronic Communications Code as well as the Data Protection Act. Relevant specific provisions re Cookies: article 37 of the Ordinance found in Chapter III Changes to Law No. 78-17 of 6th January 1978; amends Article 32II of the FDPFA to provide the rules for information and consent, together with some exemptions:
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id
An English translation of the DPA (including the Ordinance update) is here:
http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf
The version of the DPA that includes amends from Law 2018-493 on Personal Data Protection, which is the ‘vehicle’ that recognises GDPR, is here (in French):
https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee
Electronic communications
Mail & Electronic Communications Code, Article L34-5 (Code des postes et des communications électroniques): This Code is a cornerstone for the regulation of commercial electronic communications; the specific article L34-5 implements the E-Privacy Directive 2002/58/EC and concerns unsolicited commercial communications by fax, telephone or e-mail, which are subject to ‘freely given, specific and informed’ consent, unless direct marketing concerns related goods/ services to an existing customer whose data has been correctly obtained at the time of the sale, and who is given a simple and no-cost opportunity to opt out to the use of his/ her personal data. Consolidated version in force Feb 2019:
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070987&dateTexte=20190213
Translation of article L34-5:
http://www.g-regs.com/downloads/FRMail_E-CommsL34-5.pdf
e-Commerce and privacy
Act No. 2004-575; the Law of 21 June 2004 on Confidence in the digital economy, ‘LECN’ (Loi pour la Confiance dans l'économie numérique). The law inter alia implemented article 13 (unsolicited communications) of the E-Privacy Directive 2002/58/EC, now codified under Article L.34-5 of the Mail and Electronic Communications Code (see above). LECN also part-implemented the E-Commerce Directive 2000/31/EC on certain legal aspects of information society services. LECN articles 19 and 20 address the information and Identification requirements in e-commerce communications. Provisions from this Directive are also found in the Consumer Code (EN) which covers promotional offers/ games and their conditions, from Article 6 of the Directive, under articles L122-8 and L122-9. Consolidated version of the LECN is here:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801164
Personal Data Authority
The CNIL (Commission Nationale de l’Informatique et des Libertés) National Commission for Data Protection: from its website is ‘an independent administrative body that operates in accordance with the data protection legislation of 6th January 1978 as amended on 6th August 2004’. Its role is to ‘protect privacy and freedoms in the digital world, to inform, advise & sanction, having the power to impose significant fines on data controllers who breach the law’:
‘Cookies and Other Trackers’ (EN) ‘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 CNIL GDPR: September 2017 Guide for processors is here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
And their 2018 Guide ‘Security of Personal Data’ is here, also in English:
https://www.cnil.fr/sites/default/files/atoms/files/cnil_guide_securite_personnelle_gb_web.pdf
2021 Annual Report:
https://www.cnil.fr/sites/default/files/atoms/files/cnil_-_42e_rapport_annuel_-_2021.pdf
Decree No. 92-280 on advertising, sponsorship and tele shopping (amended 2011). Articles 18-20 for Sponsorship, 21+ for tele-shopping. This decree contains a number of general advertising content provisions and implements the rules from the AVMS Directive 2010/13/EU updating the Television Without Frontiers Directive on advertising, sponsorship and tele-shopping. A 2017 amendment from Decree No. 2017-193 of February 15, 2017 (FR) amended article 18 on the programme sponsorship regime to be more in line with the AVMS Directive; amendment effective January 2018. Decree 92-280 is here:
An English translation of the relevant clauses is here:
http://www.g-regs.com/downloads/FRDec92-280AdvSponsC.pdf
Product placement
Decision No. 2012-35 of 24 July 2012, by the French Audiovisual Authority CSA on product placement. Implements Directive 2007/65/EC of the European Parliament and of the Council of 11th December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions concerning the pursuit of broadcasting activities; article 3g of the Directive addresses product placement. The CSA decision is here:
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021920619
Radio sponsorship
Consolidated version of Decree 87-239 of 6th April 1987, updated 1989, on rules for private radio stations on advertising and sponsorship (Décret 87-239 du 6 avril 1987, mis à jour en 1989, sur les règles dans les radios privées sur la publicité et le parrainage) Article 9 of this Decree allows sponsorship on private radio stations:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000882734
English translation of the key clauses is here:
http://g-regs.com/downloads/FRPrivateRadioSponsB.pdf
Advertising to children/ young people
LAW No. 2016-1771 of December 20, 2016 (FR) LOI No. 2016-1771 du 20 décembre 2016 relative à la suppression de la publicité commerciale dans les programmes jeunesse de la télévision publique introduced an amend to the Léotard Law; the amend 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 Léotard law, version from January 2018, article 53:
AVMS Directive amends implemented
The same Léotard law as linked above was amended by Ordinance 2020-1642 (FR) to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive. Chapter II articles 59 to 61 of the Léotard law carry the special provisions applicable to video-sharing platforms, inter alia bringing these platforms into the scope of rules for audiovisual commercial communications and requiring that users are informed of commercial communications within posts. Additionally and significantly, article 14 transposes the requirements of article 4a of the AVMS Directive (shown here) relating to HFSS food advertising and requiring that the CSA ‘develop recommendations for improving the self-regulation of the advertising sector.’
https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000512205/2021-03-11/
‘Addressable’ TV advertising
Decree 2020-983 of 5th August 2020 with amends to the television advertising regime (Décret n° 2020-983 du 5 août 2020 portant modification du régime de publicité télévisée). Entered into force 7th August. This decree 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 act from Taylor Wesssing here
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042211231
Regulatory authority
The CSA is the Conseil Supérieur de l’Audiovisuel. Established under article 4 of Loi No. 86-1067 du 30 septembre 1986 relative à la liberté de communication (Loi Léotard), their 'three essential missions' are to inform, protect, and regulate. From their website: Many texts relating to audiovisual law are regulatory in nature and constitute implementing decrees in particular for the law of September 30,1986. Whole sections of radio, television and SMAD (on demand) services and, consequently, of CSA monitoring are governed by regulatory provisions. This is the case, for example, with most of the advertising and sponsorship requirements or those relating to the distribution and production of audiovisual and cinematographic works.' The CSA merges with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022 via Law no. 2021-1382 of 25 October 2021 relating to regulation and protection of access to cultural works in the digital age. CSA Advertising-related texts can be found at this link:
Model shots
Article L2133-2 of the PHC addresses retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. Consolidated version of the PHC as at March 2019:
Decree No. 2017-738 of May 4, 2017 relating to commercial photographs of models whose body appearance has been modified. Per above reference under the PHC, the Decree identifies the types of communication covered by this requirement and defines the terms and conditions for the presentation of the term ‘retouched photograph’ (photographie retouchée) and specifies responsibilities.
https://www.legifrance.gouv.fr/eli/decret/2017/5/4/AFSP1703011D/jo/texte
ARPP/ Industry codes
ARPP is the advertising Self-Regulatory Organisation (SRO) Autorité de Régulation Professionnelle de la Publicité. From their website: ‘The ARPP recommendations constitute the ethical framework for advertising in France. They are based on the ICC Advertising and Marketing Communications Code (ICC Code), and reinforced, according to their themes, by charters of commitments signed by representatives of the business community, ARPP and public authorities. Their development brings together, through the associated bodies of the ARPP, all the representatives of both society and business.’ The ARPP General Advertising Code (FR) is taken directly from the ICC Code, which underpins much of advertising self-regulation worldwide. The English version of the Code is here. All the ARPP Codes are shown in French in the ARPP Guidance document here:
https://www.arpp.org/code-arpp/
The Jury de Déontologie Publicitaire JDP is attached to the ARPP but acts as an independent authority, handling complaints concerning advertising: Opinions/ rulings of the JDP here:
The ARPP publish a number of specific codes or 'Recommendations' (see first para) on various topics. Some of the most significant are shown below:
Price
ARPP Recommendation on Price Advertising 2017 (Recommandation publicité de prix). Based on the principles of the ICC Advertising and Marketing Communications Code, this Recommendation sets out by channel the rules for communicating prices and their qualifications/ limitations:
https://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Publicit%C3%A9-de-prix-ARPP.pdf
An ARPP English translation is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/
Sustainability
ARPP Recommendations on Sustainable Development (ARPP Recommandation Développement Durable, en vigueur depuis 1er août 2020) :
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/
The ARPP English version, only slightly easier to understand, is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/
Video here (EN sub-titles):
Portrayal of people
The ARPP introduced in July 2016 an update of ‘Portrayal and Respect of Human Beings’:
The Code or ‘Recommendation’, introduced in 2016 and based on the ICC Code, covers such aspects as Dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B, or click above. In the original French (Recommandation Image et Respect de la Personne):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/
Children
2004 ARPP Children Recommendation (Recommandation Enfant Juin 2004). This Code applies to all marcoms disseminated in France, whatever their form, and involves marcoms that portray children and that are aimed at them. Rules are under Transparency, Social Responsibility, Decency, Violence, Safety, Integrity, The Young Consumer, Games and Videos, and Interactive Media. The original ARPP Code is here in French:
http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/
The ARPP English version is here:
http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/
Our translation is here:
http://www.g-regs.com/downloads/FRARPPEnfantFR-ENb.pdf
Identification
Identification of advertising and marketing communications. Identification of the advertiser. The Code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below this entry:
http://www.arpp.org/wp-content/uploads/2016/09/Identification_Code.pdf (EN)
In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):
Native
This guidance is also largely based on the iCC Code articles 7 and 8 and B1 and C1 (Sponsorship and Digital respectively). In French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
http://www.g-regs.com/downloads/ICCGuidanceonNativeEn.pdf
Online channels
The ICC content rules above apply online; the online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code. The link is to the ARPP translation of the code of December 2021; in French this is the Communication Publicitaire Numerique, version 5 in force January 1, 2022. The press release which sets out the changes is here in English. These rules apply to ‘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 includes a useful walk through the various techniques online such as in-game, sponsored links, native, OBA and brand content.
Influencers
ARPP recommendations for 'influencer marketing’ (in FR, EN sub-titles):
https://www.youtube.com/watch?v=8Jx4gr5bvH0
The ARPP Digital Advertising and Marketing Communications Code also carries rules on Influencer marketing
http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf
See also:
https://www.arpp.org/actualite/observatoire-marketing-influence-2019/ (FR)
Safety
Safety Code: Dangerous Behaviours and Situations:
http://www.arpp.org/wp-content/uploads/2017/01/Safety-Code-dangerous-behaviours-and-situations.pdf (EN)
In the original French (Recommandation Sécurité: Situations et Comportements Dangereux) :
The Code is particularly protective of children but helpful in describing situations that are permitted.
Qualifications/ notes
Notes and Overlays Code:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/
In the original French: (Recommandation Mentions et Renvois)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/
The Code sets out in some detail and by channel the formatting/ readability required of notes relating to pricing in particular, and some other claims. Details in Content Section B.
ICC
ICC Advertising and Marketing Communications Code 2018
From the introduction to the code: ‘Significant changes include:
Chapter A: Sales Promotion
Chapter B : Sponsorship
Chapter C : Direct Marketing and Digital Marketing Communications
Chapter D : Environmental Claims in Marketing Communications
ICC guidance and frameworks
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf
The ICC’s Guidance on Native Advertising Is in French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/
IAB France/ Europe
IAB France. From their website: 'An association created in 1998 whose mission is threefold: to build the online communications market, to promote its use, and to optimise its efficiency.'
Members are here:
https://www.iabfrance.com/article/les-membres
IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)
WFA
The ‘GDPR Guide for Marketers’ from the WFA (World Federation of Advertisers):
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is 'the European voice for advertising self-regulation.' The following link provides members:
http://www.easa-alliance.org/members
EASA’s Best Practice recommendation on Online Behavioural Advertising
Digital Marketing Communications
Influencer Marketing (2023)
FEDMA
Federation of European Direct and Interactive Marketing (FEDMA). FEDMA is the principal source of knowledge of the DM channel across Europe:
http://www.fedma.org/index.php?id=30
ESA
The European Sponsorship Association can be found at: