A. Overview

SECTION A OVERVIEW

 

Updates since June 2022 (slimmed)

 

ARPP La RECO RAPIDO. June 2022

Video clips < a minute digital ad rules 

CNIL fines Total Energies 1mil Euros (EN)

Fiat 500 Red appeal rejected Aug 2022 (FR)

AI: ensuring GDPR compliance. CNIL Sept 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

Green Claims Directive Proposal. March 22, 2023

Total Energies v Greenpeace France. May 3, 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 

More on Loi SREN from Field Fisher November 3, 2023 (EN)

AI and GDPR. Haas November 27, 2023 (FR)

CSRD transposition (FR) Dec 14, 2023. Squire Patton Boggs 

Delving Into The Influencers Act Naik & Naik Dec 20, 2023

To be or not to be a French influencer Bird&Bird Jan 31, 2024

Above in English March 26, 2024. Re dodging DGCCRF

Latest Haas update Feb 19 covers the ground, esp DSA (FR)

Fast fashion bill goes to senate Reuters March 14, 2024

Data Protection Update (FR) Haas June 13, 2024

 

 

RECENT/ MAJOR ISSUES

 

Environmental labelling. Bird&Bird May 21, 2024

Sponsors of athletes in the Paris games (FR) Grant Thornton May 3, 2024

Practice guide for the security of personal data: 2024 edition (EN)
CNIL. March 26, 2024 French version here. Haas here (FR)

Parliament adopts bill to regulate commercial influence (PR, FR) June 1, 2023. Law here (FR)

Commentary here (FR) from Grant Thornton May 26, 2024. GALA here. Code of Good Conduct here (FR)

 

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. 

 

GENERAL ADVERTISING RULES IN FRANCE 

 

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):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

In the original French (Recommandation Image et Respect de la Personne):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

 

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' FREN. 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

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-of-advertising-and-marketing-communications-identification-of-the-advertiser-code/   (EN)

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)

Parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023. Law here (FR) 

Commentary here (FR) from Grant Thornton May 26, 2024. Code of Good Conduct here (FR)

 

ARPP

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

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:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/safety-code-dangerous-behaviours-and-situations/ (EN)

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 

20 compagnies aériennes épinglées pour greenwashing. Apr 30, 2024

The government presents its “digital decarbonization” roadmap (FR)

Haas Avocats September 25, 2023

 

ARPP announce March 2022 that advertisers/ agencies must consult pre national campaigns with environmental claims.

More here (FR) and key extracts unofficially translated hereSee 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.

 

Omnibus Directive transposition

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

New sectorial rules for TV advertising in France (EN)
Bird & Bird LLP/ Lex April 15, 2024. Decree here (FR)

 

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/ protection

Privacy issues should be reviewed with specialist advisors

 

EDPB data protection guide for small businesses in FR & DE

EDPB May 17, 2024

Privacy Sandbox news and updates (EN)

CNIL's Guide to personal data security: new 2024 editionCNIL March 26, 2024

Tables Informatique et Libertés: the CNIL publishes its doctrine on data protection (FR)

Haas Avocats December 14, 2023

 

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.

 

 

 

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Read more

B. Content Rules

SECTION B CONTENT RULES

 

 Notes

 

  • All advertising, in all media, must be in French (Loi Toubon). 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
  • The core of the marcoms content rules in France is the ICC Code (EN), applied in its French version by ARPP. Around this, the regulator has created a number of specific proprietary codes on subjects of particular national import. As the ICC code also covers those issues more generally, we show both sets of rules as both apply. This makes for a rather lengthy and complex presentation, for which apologies
  • Per above, France has a lot of rules, so this section is longer than most. To help navigate it, some text is  'anchored' and linked to respective headings immediately below

 

1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES

1.1. The ICC Code: key extracts 

1.2. Portrayal of people

1.3. Identification of advertising

1.4. Native

1.5. Sustainability

1.5.1. Environmental claims - the ICC rules

1.6. Safety

1.7. Pricing: ARPP Code

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

2.2. Comparative advertising

2.3. Pricing regulations

2.4. Carbon claims 

2.5. General content rules in broadcast

2.6. Model shots

 

 

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)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

Social responsibility (Art. 2)

 

  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition

 

Decency (Art. 3)

 

  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned

 

Honesty (Art. 4)

 

  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:

 

  • Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
  • The value of the product and the total price to be paid by the consumer
  • Terms for delivery, exchange, return, repair and maintenance
  • Terms of guarantee
  • Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
  • Compliance with standards
  • Official recognition or approval, awards such as medals, prizes and diplomas
  • The extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Such substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code
 

Identification and transparency (Art. 7)

 

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

Identity of the marketer  (Art. 8)

 

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

 

Comparisons (Art. 11)

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected
 
  • Other main articles from the General Provisions of the Code are: 9. Use of Technical/ scientific data and terminology; 10. Use of free and guarantee; 12. Denigration; 13. Testimonials; 14.Portrayal of people and property; 15. Exploitation of goodwill; 16. Imitation; 17. Safety and health; 18. Children and young people; 19. Data protection and privacy; 20. Transparency on cost of communication; 21. Unsolicited products and undisclosed costs; 22. Environmental behaviour
  • Chapters from the Code are Sales Promotion, Sponsorship, Direct Marketing and Digital Marketing Communications, Environmental Claims in Marketing Communication
  • Where the rules are channel-related, they are shown in our following Channel Section C
 

 

 

The full code is here in English:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

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

 

  • Advertising must not be offensive, harmful, provocative or shocking by displaying images of human beings that offend their dignity or decency (Art. 1.1)
  • When nudity is used in an advertisement, it must not be degrading or alienating and must not reduce human to object (Art.1.2)
  • Any degrading or humiliating representation of human beings, in an explicit or implicit way, is prohibited, notably by the use of words, attitudes, postures, gestures, sounds, etc., that are detrimental to human dignity (Art. 1.3)

2. Stereotypes

 

  • Advertising must not reduce human beings, and especially women, to the role of an object (Art. 2.1)

  • Advertising must not condone the idea of inferiority of a person because of their gender, origin, belonging to a social group, sexual orientation or sexual identity, or any other criteria, notably by reducing the person’s role or responsibilities in society (Art. 2.1)
  • Advertising must not encourage, even indirectly, exclusion, or sexist, or intolerant feelings or behaviours (Art 2.3)

 

3. Ethnic or religious references 

 

  • Advertising must pay particular attention to avoid making any reference, even indirectly, to racism or sectarianism (Art. 3.1)
  • Any allusion, even humouristic, to a pejorative aspect or inferiority because of the belonging to an ethnic group or a religion is prohibited (Art.3.2)
  • Expression of stereotypes concerning ethnic groups, religious groups, etc., must be done with a high level of precaution (Art. 3.3)
  • Concerning actual religious references, rituals and Holy Scriptures should not be used in a way to ridicule or shock believers (Art. 3.4)

 

4. Submission, dependence, violence 

 

  • Advertising must not induce ideas of submission or dependence depreciating human beings, and especially women (Art. 4.1)
  • Any complacent presentation of domination and/ or exploitation of one person by another is forbidden (Art. 4.2)
  • Advertising must avoid all scenes of violence, direct or suggested, and must not encourage moral or physical violence. The notion of violence covers, at least, all illegal acts punishable by law (Art. 4.3)
  • Direct violence is the presentation of violent acts themselves. Suggested violence is conveyed by an atmosphere, a situation or a result of a violent act. Moral violence notably includes behaviours of domination and harassment (moral or sexual) (Art. 4.4)
  • Advertising must not, under any circumstances, trivialise violence through its messages, statements and presentations (Art. 4.5)
 

5. Image and other human characteristics

 

  •  “Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained” Article 14-1, ICC Code (Art.5.1)
  • It is forbidden to present a person in an advertisement by using either a voice double or image double without prior authorisation of the person or his beneciariesti (sic.) 5.2

 

1.3. Identification of advertising

 

The full ARPP code is here in English:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-of-advertising-and-marketing-communications-identification-of-the-advertiser-code/  

And here in French:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-de-la-publicite-et-des-communications-commerciales/

 

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)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

 

Specific provisions of the ICC Advertising and Marketing Communications Code. From Chapter C, Direct Marketing and Digital Marketing Communications:

 

Article C1: Identification and transparency 

 

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

 

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 

 

  • In order to ensure good information of the consumers, marketing communications and advertising should be clearly distinguishable as such, whatever their form
  • That identification can be achieved by any means whereby the consumer can clearly and immediately understand that the message is an advert
  • The identity of any advertiser addressing advertising or marketing communication must be apparent

 

2. Digital advertising or marketing communication 

 

  • Concerning digital media, techniques and forms, the identification of marketing communications and advertising and the identification of the advertiser must comply with the provisions of the Digital Advertising and Marketing Communications Code (see below)

 

3. Press

 

  • In the case of a paid for editorial ad or any other advertisement that has the appearance of an editorial ad, the advertiser, the advertising agency and the press media must display the words PUBLICITÉ, COMMUNIQUÉ or any other synonym, in a clear and legible way, and (sic.) the beginning of the advertisement

 

 

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:

 

  • Article 7: Identification and Transparency: Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and the identity of the advertiser should be apparent (see also article 8). Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such.
  • The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
  • Article B1 (in part): Sponsorship should be recognisable as such
  • Article C1 (in part): Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer

 

 

 2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 8 and B12, as follows:

 

  • Article 8 (in part): The identity of the marketer should be transparent
  • 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 Article 4 as follows:

 

  • Article 4 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

 

 

1.5. Sustainability

 

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)

 

  • The Code was amended in April 2020, in force August. More recently, a video presentation of the Code was published (in French, with English sub-titles). The changes, shown here (EN), are primarily to Article 1 (formerly 9) and not hugely significant, though all new clauses should be read with care. In particular, there’s a  ‘tweak’ to the clause related to Cars in the environment. See article 1.1 (e) below  
  • Extracted below are the key clauses of the 2020 Code. For scope, definitions etc. refer back to the Code linked above

 

 

  • Note: without further specifications, the rules below pertain to the overall issue of sustainable development. When the rules apply only to the environmental component of sustainable development, it is specified as such
  • In addition to specific French and Community legislation, these advertisements need, no matter what form they take, to comply with the International Chamber of Commerce Advertising and Marketing Communications Code  (Article 22 of the Consolidated ICC Code Article Marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards of environmentally responsible behaviour and the principles enshrined in Chapter D ‘Environmental Claims in Marketing Communications’ of the same Code) and with the following ethical rules:

 

1. Eco-citizen impacts 

 
  • Advertising must take place in a context of social responsibility by taking into account, in particular, the sensitivity of the social community at a given time and the context in which the advertising is disseminated
  • Without referring to the concept of sustainable development or any of its components, an advertisement must avoid conveying a message contrary to the commonly accepted principles of sustainable development. In this spirit:
 
  • 1.1 Advertising must prohibit any representation likely to trivialize or promote practices or ideas contrary to the objectives of sustainable development. By way of example:
 
  1. Advertising must ban any evocation or representation of behaviour contrary to the protection of the environment and the preservation of natural resources (waste or degradation of natural resources, damage to biodiversity, air, water or soil pollution, climate change, etc.), except in the case of denunciation
  2. Advertising may not directly or indirectly incite excessive consumption patterns or patterns contrary to the principles of the circular economy. In this respect, it must not encourage waste through the scrapping of a product or its degradation while it is still working and/or remains consumable, without taking into account – where possible – its durability, reuse, second life or recycling
  3. Advertising must avoid, in its discourse, minimizing the consequences of the consumption of products that may affect the environment
  4. Advertising must prohibit any representation or evocation of behaviour contrary to the recycling of products or their specific method of treatment
  5. The representation of a motor vehicle on a natural area is prohibited. On the other hand, its representation on a public or private road or area open to traffic, recognizable as such and clearly distinguished from the natural area is permitted (amended from the clause in the previous code, which read: The representation, in any form whatsoever, of motor vehicles in a natural environment should clearly position them on roads open to traffic)
  6. advertising must not appear to endorse working conditions which are contrary to social and human rights. For this reason, advertisements which appear to condone child labour, any form of discrimination, moral harassment, insufficient health and safety conditions are excluded
  7. Advertising must prohibit all statements or visual representations likely to generate irrational or unfounded fears
 
  • 1.2 Advertising must not discredit the principles and objectives, as well as advice or solutions, commonly accepted with regard to sustainable development. Advertising shall not detract from the purpose of environmental protection messages or measures taken in this area

 

2. Truthfulness of actions 

 

  • 2.1 Advertisements must not mislead the public about the actual actions of the advertiser or the properties of its products in terms of sustainable development 
  • 2.2 The actions of advertisers and the properties of their products in this area should be significant before a claim can be made 
  • 2.3 The advertiser must be able to support its sustainable development claims by means of evidence that is reliable, objective and verifiable at the time of advertising. For any message based on a scientific claim, the advertiser must be able to present the origin of the findings and methodology used for the calculation. Advertisements may not resort to demonstrations or scientific conclusions that do not conform to generally approved scientific findings 
  • 2.4 Advertisements cannot make a general sustainable development claim if the commitment of the advertiser does not cumulatively include the three pillars of sustainable development (see below) 

 

The three pillars

 

For businesses, sustainable development means in this sense to balance the following three pillars:

  • Environmental: impact of activities on the environment
  • Social/ societal: working conditions of employees, information policies, training, remuneration, subcontracting, existence and quality of relations with civil society, public health, etc.
  • Economic: relations with customers, suppliers, shareholders, etc.
 

3. Proportionality of messages 

 

  • 3.1 The advertisement must accurately express the action of the advertiser or the properties of its products, in accordance with the available and communicable evidence (*the term ‘and communicable’ is an amend/ addition to this article).The reality of these actions or properties may be assessed in the light of the different pillars of sustainable development, the different types of impacts and the various stages of a product's life-cycle 
  • 3.2 The advertising message must be commensurate with the scale of the advertiser’s action(s) in terms of sustainable development and the properties of the product(s) he is promoting 
  • 3.3 In particular:

 

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 

 

  • 4.1 The advertiser should add clear background information in the advertisement about the qualities the advertised activities or products claim to have 
  • 4.2 If the argumentation is only valid in a particular context, it should be presented clearly as such 
  • 4.3 When an explanation is necessary, it must be clear, legible or audible, and thus meeting the requirements of the Terms and References Code of the ARPP 
  • 4.4 In cases where this explanation is too long to be included in the advertisement, essential information must be included, together with a reference to some means of communication allowing the general public to obtain further information 
  • 4.5 Any messaging within an advertisement based on a scientific study must indicate the source 
  • 4.6 Any argumentation about a decrease of a negative impact or an increase of efficiency must be precise and accompanied by detailed figures, indicating the basis for the comparison 
 

5. Loyalty

 

  • 5.1 The advertising must not attribute exclusive virtues in terms of sustainable development to a product or an advertiser when competitor products or competitors have similar properties 
  • 5.2 An advertiser cannot claim that certain actions are exclusive to it if they are imposed on all by existing regulation. This does not rule out the possibility for an advertisement, for pedagogical purposes, to inform about the existence of regulation in order to promote its implementation 
  • 5.3 An advertisement should not unduly create a link between general corporate actions of an advertiser concerning sustainable development and the properties of a product 
  • 5.4 Concerning ecological claims:

 

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 

 

  • 6.1 Signs or symbols may be used only if their origin is clearly indicated and if there is no likelihood of confusion about their meaning. Further explanations regarding the meaning of these symbols should be made according to the conditions set by article 3.4 of this text (Art. 6.1)
  • 6.2 These signs should not be used in ways that suggest unfounded official approval or certification by a third party (Art. 6.2)
  • 6.3 The advertisement must not attribute a higher value to any signs, logos or symbols used in the ad than they actually have (Art. 6.3)
  • 6.4 The use of logos of associations, foundations or any other body should not create a misleading link between the partnership with these bodies and the properties of the product(s) or the action(s) presented (Art. 6.4)

 

7. Vocabulary

 

  • 7.1 The terms and expressions used must not mislead the public about the nature and scope of the product's properties or the advertiser’s actions in terms of sustainable development 
  • 7.2 When the terms and expressions used are already defined by a standard, they must be employed in a way that fits this definition 
  • 7.3 Where it would be impossible to justify general formulations (e.g., ecological, green, ethical, accountable, to preserve, fair, sustainable, etc.), advertising must make these claims relative by using formulations such as "helps to…" 
  • 7.4 Words, phrases or prefixes used must not unduly reflect a lack of negative impact of the product or activity of the advertiser 
  • 7.5 Technical vocabulary, scientific or legal, may be used if it is appropriate and used in a way that can be readily understood by those to whom the message is directed 

 

8. Visual or audible elements in an ad

 

  • 8.1 The visual or sound elements in an ad should be used in a manner proportionate to the ecological argumentation of the ad and the evidence that supports it.
  • 8.2 They should not be used in a way that suggests a guarantee of safety if this cannot be justified.
  • 8.3 Without excluding their use, the use of natural elements or evoking nature must not mislead the consumer about the environmental properties of the product or the actions of the advertiser.
  • 8.4 When an advertisement uses an environmental claim, it cannot assimilate directly a product that has a negative environmental impact to a natural element (e.g. a car like an animal, a plane covered in plants, etc.)

 

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:

 

  • 9.1 It should take care not to mislead the public about the true scope of the mechanism 
  • 9.2 If it uses simplified language for educational purposes it must provide the public with the necessary explanations, as per the conditions defined in article 3-4 of this Code 
  • 9.3 The advantage of using systems to indirectly compensate the negative impact of a product or an activity should not be referred to in the ad as being a direct quality of the product or activity

 

 

1.5.1. Environmental claims - the ICC rules

 

  • The ICC Code (EN) applies to all marketing communications containing environmental claims, i.e. any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/ consumption or disposal of products. Environmental claims can be made in any medium, including packaging, labelling, package inserts, promotional and point of sales materials, product literature, radio and television, as well as via digital or electronic media such as e-mail, telephone and the Internet (see scope of Chapter D)
  • The term ‘environmental aspect’ means an element of an organisation’s activities or products that can interact with the environment (Chapter D ICC Code, ICC Framework)
  • Chapter D Environmental Claims in Marketing Communications should be read together with the ICC code main provisions. These rules apply to all marcoms containing environmental claims Definition Any statement, symbol or graphic that indicates an environmental aspect of a product, a component or packaging regardless of the medium

 

Additional ICC guidance

 

 

 

1.6. Safety

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/safety-code-dangerous-behaviours-and-situations/

 

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:

 

  • Whether or not they are associated with the use of a product or an object
  • Whether or not the object or product is dangerous

 

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:

 

  • The presentation of a professional athlete or a sportsman, practicing his sport or his discipline, and identified as such in the advertisement
  • The presentation of figurines or imaginary characters;
  • The presentation of an unrealistic or clearly absurd context, making the behaviour impossible to replicate in real life;
  • The total or partial reproduction of a work, in the context of its promotion or exploitation (movies, series, documentary, reports, etc.)

 

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

 

 

1.7. Pricing

 

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/

 

  • The price must be legible in normal reading conditions. Characters used must be:

 

  • Of a sufficient size
  • Normally spaced apart
  • In a font allowing an easy reading (without it being necessarily consistent throughout the advertising)
  • In a colour that contrasts with the background colour of the advertising, for instance, avoiding a light colour against a light background

 

  • When a sign accompanies the price and is used to make a reference to a related remark, the size of this sign next to the price must be large enough to be always legible under normal reading conditions (1.1)
  • The intelligibility of the price implies to use of a wording allowing the consumer to understand it without difficulty and in a non-erroneous way (1.2)
  • Thus, the presentation of the price (s) must allow the consumer: to link the price (s) presented with the product or service he / she will benefit for this amount of money, and to know whether there are conditions or restrictions (1.2)
  • When several prizes (prices) appear in the same advertisement, it is always possible to highlight one of these prices. In order to do so, the different prices may be presented with different font sizes, provided that they comply with the aforementioned principles of legibility, intelligibility, clarity and transparency (3.1)
  • The presentation of several prizes in an advertisement should not lead to any ambiguity for the consumer as to the relationship between the prices and the products or services to which they correspond (3.1)
  • The ‘TTC’ price (i.e. including taxes) must be included in advertisements targeted to consumers. When the price excluding tax is also indicated, the ‘TTC’ price shall not be less readable than the ‘HT’ (excluding taxes) price - in terms of font size, contrast, duration of exposure on the screen or positioning in the advertising (3.2)
  • In the case of an advertisement indicating a price  ‘starting from’, the price of the product or products represented must be perfectly legible and easily identifiable by the use by any appropriate means (character size, character colour, location, use of bold type, underlining etc. (3.6)

 

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/

 

  • We have not extracted the Code here as it’s quite extended and fragmented
  • Section II shows specific rules concerning notes linked to a price; see links above  
  • Where rules are channel-specific we have included them in the relevant channel under Section C

 

1.9. Online Channel/ Digital

 

The ARPP’S 2021/22 Digital Advertising and Marketing Communications Code (V5) is in French here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/

And in English here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/digital-advertising-and-marketing-communications-code/

 

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:

 

  1. The main characteristics of the good or service
  2. The address and the 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 arrangements for payment, delivery, performance and handling of consumer complaints, when they differ from those established in the professional sector concerned
  5. The existence of a right of withdrawal, should this be provided for by law

 

Guidance from the EC here (December 2021)

 

2.2 Comparative advertising

 

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

 

 

  • For products with a protected designation of origin or geographical reference, comparison is only authorised between products with the same reference or designation of origin (Art. L122-3)
  • The display of comparative statements as defined in articles L.122-1 and L.122-2 on packages, invoices, travel tickets, means of payment or tickets giving access to shows or sites open to the public is prohibited (Art. L122-4)
  • 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:

 

  • The Consumer Code (FR/ EN) articles L112-1 to L112-4 and articles L121-2 and L121-3, the latter in the context of an invitation to purchase and transposing UCPD 2005/29/EC requirements in that respect; see 2.1 above. Article L121-4 points 5 to 7 carries promotional pricing rules (see also point below)
  • Article L112-1-1 effective May 28, 2022 carries the promotional pricing rules transposed from the Directive 2019/2161 which in turn amended the Product Pricing Directive 98/6/EC. The Directive's article is here; Commission guidance on the application of the article here
  • Decree of 16 November 1999 (FR) on advertising to the consumer of the selling price per unit of measurement of certain pre-packed products. This Decree transposes the Product Pricing Directive 98/6/EC. While this legislation seems most suited to ‘goods on shelves’ as it requires unit prices (the selling price, including VAT and all other taxes, for one kilogramme, one litre, one metre etc.), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. We can't trace in the French legislation an important definition for 'selling price'. That term is defined in the Directive as 'the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes.' The issue here is the inclusion of 'the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned.' (from the Judgement linked, pt. 37). 
  • The DGCCRF (the competition/ markets authority) published in December 2018 Information on Prices (L’information sur les prix) which brings together a number of sources of rules

 

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

 

2.4. Carbon claims 

 

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

 

  • Advertising must comply with the requirements of truthfulness, decency and respect for the dignity of the human person. Advertising may not undermine the good name of the state (Art. 3)
  • Advertising must be free from discrimination concerning race, gender, nationality, disability, age or sexual orientation; of any violent scenes and any incitement to behaviour prejudicial to health or safety of people and property, or protection of the environment (Art. 4)
  • Advertisements should not contain any element likely to offend viewers’ religious, philosophical or political beliefs (Art. 5)
  • Advertising in any form whatsoever should be designed to respect the interests of the consumer. All publicity comprising false or misleading claims, statements or presentations is prohibited (Art. 6)
  • Advertising must not cause moral or physical detriment to minors. To this end, it must not:

 

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)

 

  • There are some sector prohibitions in broadcast shown here (EN)

 

2.6. Model shots

 

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.

 

 

 

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C. Channel Rules

1. TV/Radio/VOD

SECTION C - TV/AV INC VOD & RADIO

 

 

New sectorial rules for TV advertising in France (EN)
Bird & Bird LLP/ Lex April 15, 2024. Decree here (FR)

 

KEY RULES AND SOURCES

 

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

 

RULES FROM DECREE 92-280 (EN)

 

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

 

PRODUCT PLACEMENT

 

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

PRICING IN AV (ARPP Price Recommendation)

 

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

SPONSORSHIP (Decree 92-280)

 

  • News and political affairs programmes may not be sponsored (Art. 20)
  • The content and programming can in no circumstances be influenced by the sponsor in a manner likely to impair the responsibility and editorial independence of the company or the TV service (Art 18 (1))
  • They (programmes) must not directly encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those goods or services (Art. 18, as amended by Decree No. 2017-193 of February 15, 2017 (FR), which adds ‘directly’ to ‘encourage’ to be more in line with the AVMS Directive
  • Sponsored programmes must be clearly identified as such at the beginning, at the end of, or during the sponsored programme. This identification can take the form of the name, logo, or other symbol of the sponsor, in particular by means of a reference to its goods or services, or a distinctive sign, subject to the following conditions:

 

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)

 

  • In the official sponsorship announcements, the mention of the sponsor must remain brief and discreet and be limited to a reminder of the contribution made by the sponsor (Art. 18/IV)

 

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

 

  • Only allowed on private radio channels
  • The service i.e. the broadcaster ‘must retain full control over the programming of these broadcasts’
  • Mention of the sponsor’s name, corporate name, trading name, and reference to distinctive signs usually associated with the sponsor, may occasionally appear within the sponsored programme

 

 

 

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2. Cinema/Press/Outdoor

SECTION C - CINEMA, PRINT, OUTDOOR

 

 

APPLICABLE TO ALL 3 CHANNELS 

 

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

 

CINEMA

 

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

 

PRINT

 

Price

 

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

Re-touching

 

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

 

OUTDOOR

 

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

 

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

 

 

 

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3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

NEWS/ COMMENTARY

 

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

 

  • Special attention shall be given to the display time and the font size according to the diversity of formats, techniques and existing advertising media
  • In advertisements featuring remarks in a scrolling text, special attention shall also be paid to the scrolling speed and to its good contrast with the background colour
  • Where the format, technique or advertising medium does not allow the remarks to appear on the advertisement itself, they shall be made directly available by any other means (Art. 2/1.2.4 ARPP Price Recommendation)
  • See the Consumer Code linked above for promotional pricing rules effective May 28, 2022 under article L112-1-1, introduced by Ordinance 2021-1734 (FR)

 

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

 

  • An influencer (blogger, vlogger, creator, talent, etc.) is an individual who creates content, expressing a point of view or giving advice, in a specific area and with a style or treatment that is specific to him/ her and with which his/ her audience identifies
  • An influencer can act in a purely editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, distribution of advertising content, etc.)

Qualification & application

 

1. The influencer acts in collaboration with a brand: A commercial collaboration between an influencer and an advertiser with a view to the publication of content must in all cases be brought to the attention of the public by the influencer
2. Some collaborations can qualify as advertising; whether it is advertising is established when the following criteria are cumulatively met:
 
  • When the content is produced in the context of reciprocal commitments; statements by the influencer subject to payment or any other consideration such as, for example, the delivery of products or services for the benefit of the influencer
  • When the advertiser or their representatives approve the content before its publication
  • When the content of the influencer messaging is aimed at promoting the product or service (promotional statements, verbal or visual presentation for promotional purposes, etc.)
 
Consequence: When the advertising nature of the influencer messaging is established, all the ethical provisions of the ARPP, in addition, should be applied by all stakeholders (brands, their representatives, influencers, etc.)

 

Identification

 

  • For the identification of influencer communications made in collaboration with a brand (unless the identification is obvious), it is recommended that an explicit statement is added that establishes identification of same, in a way that does that immediately
  • This identification can be done by any means (in the audio, in the text connected with the content, by a statement in the video, etc.) as long as it is brought to the attention of the public whatever their means of access to the content

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  • See also Article 20 de la loi n° 2004-575 pour la confiance en l’économie numérique du 21 juin 2004 (FR): 'toute publicité, sous quelque forme que ce soit, accessible par un service de communication au public en ligne, doit pouvoir être clairement identifiée comme telle. Elle doit rendre clairement identifiable la personne physique ou morale pour le compte de laquelle elle est réalisée'.  (Advertising in any form whatsoever accessible through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out)

 

Other guidance/ best practice 

 

The European Advertising Standards Alliance (EASA) published in May 2023 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 

 

 
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4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

 

ISSUES / NEWS 

 

Privacy Sandbox news and updates 

Practice guide for the security of personal data: 2024 edition (EN)
CNIL March 26, 2024 French version here. Haas here (FR)

French data agency fines Yahoo! €10 million over cookies policy
DAC Beachcroft February 7, 2024

 

COOKIES
Bird&Bird's Global Cookie Review of Summer 2023 includes a clear and complete summary of rules in France

 

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

 

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

INFORMATION REQUIREMENTS 
from the FDPFA, art. 82

 

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

 

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

 

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

 

EXEMPTIONS

 

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

 

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

 

CONSENT REQUIREMENTS AND GUIDANCE 

 

 
OBA

 

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

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

 

Key rules 

 

  • OBA, like any other advertising, is subject to any product sector rules as well as the content and channel/ placement rules for all sectors, i.e. the general rules
  • Content rules are the General advertising rules from ARPP (EN ICC Code), which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply online; see our earlier content section B
  • Self-regulatory channel rules are primarily from the Digital Advertising and Marketing Communications Code (EN); OBA specifics from this code are shown later in this section, together with the self-regulatory programme from the EDAA 
  • Regarding cookie placement in this OBA context, the CNIL document ‘Cookies and other trackers’ linked above covers the issue under Article 2, from para 19
  • The CNIL reference the Article 29 Data Protection Working Party (now the European Data Protection Board) document ‘Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679.’

 

From ARPP’s Communication Publicitaire Numerique V5 (FR / EN):

 

9. Behavioural advertising and retargeting

 

1) Identification of the commercial nature of behavioral advertising

 

  • ​The commercial nature must be easily understood. Therefore, the use of a visible specific symbol, distinguishable from the message content and entirely legible, can help the consumer know about the behavioural nature of the digital advertising
  • It is further recommended to give the consumer access via a simple click on the aforementioned symbol to a dedicated space where the consumer can find out about the special features inherent in this type of advertising (nature of the data collected, terms of use for behavioural targeting purposes…)
  • This dedicated space must also offer the consumer clear information on the various options to refuse or accept the showing of behavioural advertising, in particular the terms: 

 

 
  • One-off or permanent acceptance of the placement of cookies or other tracking means (browser settings)
  • Deletion of browser cookies
  • Objection to behavioural advertising providers to the showing of any behavioral advertising 
 
2) Protection of children and teenagers
 
  • Professionals must not create specific targeting categories (interest segments) related to interests of children of 13 or under

 

 

OTHER SELF-REGULATION


EASA’s Best Practice Recommendation on OBA 2021

 

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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 

 

 

 

 

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5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

MARCOMS CONTENT RULES

 

STATUTORY CONSENT AND INFORMATION REQUIREMENTS 

 

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

From Article L34-5
Consent requirements

 

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

 

Key extracts from the Consumer Code (CC; EN)

 

Offers and promotions, 'Invitation to Purchase'

 

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

 

Key extracts from the LECN

 

Article 19; information required to be available

 

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

 

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

 

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

 

Article 20; Transparency

 

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

SELF-REGULATORY REQUIREMENTS 

 

 

5a) Identification of advertising

 

  • The commercial nature of such advertising must be clearly apparent. For electronics (sic) mails, identification must be possible as soon as the consumer receives it, with no need to open the email
  • Two different kinds of emails can be identified:

 

  • The case where the commercial nature is obvious (e.g. the advertiser name appears in the message subject). In this case, it would not be necessary to provide additional identification elements
  • The case where the commercial nature of the message is not immediately visible. In this case, it is recommended to state in the mail subject or within the sender’s designation an explicit message enabling immediate identification of the commercial nature of the email

 

  • With regard to SMS or MMS, the identification must be explicit at the beginning of the message. The identification can be satisfied by all means noted above (the advertiser’s name appearing at the beginning of the message, for example). The identification must be clear enough to avoid any confusion with an electronic mail/SMS/MMS sent by a private contact

 

5b) Fair, truthful and honest advertising

 

  • Offer and sales conditions must be clearly specified and easily accessible. Consequently, legal notes and overlays must be accessible directly by any means, in particular:

 

  • On a mobile website, for a clickable mobile message (sent in the context of a direct marketing campaign)
  • Within a distinct SMS or MMS from the one conveying the advertising message (in particular by using the concatenation technique, i.e. technique allowing attachment of several SMS in order not to be limited by the number of characters)

 

  • The conditions must be legible or audible, and intelligible, without prejudice to compulsory provisions applicable to specific sectors

 

Pricing

 

  • The ARPP Price Recommendation (EN) sets out the rules for communication of price and price-related 'remarks' (e.g. conditions, limitations etc.). These rules apply online; see article 2/1.2

 

 

 

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6. Own Websites & SNS

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT 

 

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

 

GENERAL RULES  

 

  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures to restrict access to such websites by minors (Art. C7, ICC Code)
  • Marketers' own marcoms on their own websites are subject to the product category/ sector rules set out above and in our earlier content section B. The General Advertising Rules (EN ICC Code) from ARPP, i.e. those that apply to all sectors, also apply to marketers’ own marketing communications (marcoms)
  • Exemptions are set out in the 2023 EASA Digital Marketing Communications Best Practice document: while this is not binding, it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications. See later (in this section) provisions on UGC from the ARPP

 

CONSENT AND INFORMATION REQUIREMENTS AND AVMSD RULES 

 

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

 

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

 

SELF-REGULATION 

 

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

 

Apps

Digital audio

Influencers and brands

Brand content

Email

 

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

 

  • An influencer (blogger, vlogger, creator, talent, etc.) is an individual who creates content, expressing a point of view or giving advice, in a specific area and with a style or treatment that is specific to him/ her and with which his/ her audience identifies
  • An influencer can act in a purely editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, distribution of advertising content, etc.)

 

Qualification & application

 

1. The influencer acts in collaboration with a brand: A commercial collaboration between an influencer and an advertiser with a view to the publication of content must in all cases be brought to the attention of the public by the influencer
2. Some collaborations can qualify as advertising; whether it is advertising is established when the following criteria are cumulatively met:
 
  • When the content is produced in the context of reciprocal commitments; statements by the influencer subject to payment or any other consideration such as, for example, the delivery of products or services for the benefit of the influencer
  • When the advertiser or their representatives approve the content before its publication
  • When the content of the influencer messaging is aimed at promoting the product or service (promotional statements, verbal or visual presentation for promotional purposes, etc.).
 
Consequence: When the advertising nature of the influencer messaging is established, all the ethical provisions of the ARPP, in addition, should be applied by all stakeholders (brands, their representatives, influencers, etc.)

 

Identification

 

  • For the identification of influencer communications made in collaboration with a brand (unless the identification is obvious), it is recommended that an explicit statement is added that establishes identification of same, in a way that does that immediately
  • This identification can be done by any means (in the audio, in the text connected with the content, by a statement in the video, etc.) as long as it is brought to the attention of the public whatever their means of access to the content

OTHER GUIDANCE

 

The European Advertising Standards Alliance (EASA) published in May 2023 Best Practice Recommendation on Influencer Marketing.

 

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7. Native Advertising

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

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

 

KEY RULES 

 

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

 

7. Identification and transparency 

 

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

 

8. Identity of the marketer

 

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

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

 

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

 

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:

 

  • To use written content in the media to promote a product or service when this content has been financed by the professional himself, without clearly indicating this origin in the content or by the use of images or sounds clearly identifiable by the consumer (Art. L121.4/ 11)
  • To falsely state or give the impression that the professional is not acting towards purposes that fall within the scope of his or her commercial, industrial, craft or self-employed practice, or to present himself or herself as a consumer (Art. L121.4/ 21)
  • Article L121-2 identifies misleadingness inter alia as: ‘3. When the person on behalf of whom the service is implemented is not clearly identifiable.’

 

Law No. 2004-575 (FR) on Confidence in the Digital Economy carries the e-Commerce 'Identification' rule under its article 20:

 

  • Advertising in any form whatsoever that can be accessed through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out

 

 

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8. Telemarketing

 

Following feedback, we no longer cover Telemarketing 

 

9. Direct Postal Mail

SECTION C: DIRECT POSTAL MAIL

 

 

 

CONTEXT

 

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

 

THE LAW AND THE ROBINSON LIST

 

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

 

 

Invitation to purchase and promotional pricing

 

  • As direct mail can include specific offers that may allow a transaction, content may be subject to rules from The Consumer Code (EN key clauses), which in France is the vehicle for transposing the Unfair Commercial Practices Directive 2005/29/EC;
  • Article L112-1-1 of the Consumer Code (linked above in English) effective May 28, 2022 transposes requirements from the Directive 2019/2161 related to promotional pricing - the rule applies to 'any announcement';
  • When making an ‘invitation to purchase’ in commercial communications, the following rule applies: ‘In any commercial communication targeting the consumer, encouraging the latter to make a purchase, and mentioning the price and characteristics of the property or service offered, the following information is considered to be substantial:

 

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 

 

 

  • Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilising another system, such as mailbox stickers; (from January 2021, this is a legal requirement; see above under 'The law and the Robinson list.' )
  • Marketers who are communicating with consumers internationally should, where possible avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such communications (see also General Provisions, article 19, data protection and privacy).
 

PRICING

 

  • The ARPP Price Recommendation (EN) sets out the rules for communication of price and price-related 'remarks' (e.g. conditions, limitations etc.). These rules will apply in DPM; see article 2/1.2.6.

 

 

 

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10. Event Sponsorship/ Field Marketing

 

 

NEWS/ ISSUES

 

Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024

Sponsors of athletes in the Paris games (FR) 

Attention à la communication autour des jeux de Paris (FR)

Both above Grant Thornton May 3 and 19 February, 2024 respectively

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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

 

KEY RULES

 

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

 

 B1. Principles governing sponsorship

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

B2. Autonomy and self-determination

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

B3. Imitation and confusion

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

B4.  Ambushing of sponsored properties

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

B5.  Respect for the sponsorship property and the sponsor

 

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

B6. The sponsorship audience

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

B7. Data capture/ data sharing

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

 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

 

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The European Sponsorship Association (ESA) may also be able to help

 

 

 

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11. Sales Promotion

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

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

 

LEGISLATION

 

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

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

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

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

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

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

 

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

 

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

 

a) Refuse to present the advertised item to consumers;

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

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

 

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

 

Offers made by electronic means

 

Also from the Consumer Code (EN key clauses; FR)

 

  • Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message (Art. L122-8)
  • These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued
  • The conditions applying to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)
  • Articles L. 122-8 and L. 122-9 also apply to advertising, offers, competitions or games sent to professionals (i.e. B2B)

 

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:

 

  • I. Any announcement of a price reduction shall indicate the previous price charged by the trader before the application of the price reduction.
    This previous price corresponds to the lowest price applied by the trader to all consumers during the last thirty days preceding the application of the price reduction.
    As an exception to the second paragraph, in the event of successive price reductions during a determined period, the previous price is that applied before the application of the first price reduction.
    Clause I does not apply to price reduction announcements relating to perishable products liable to rapid deterioration
  • II. These provisions do not apply to activities where a trader compares the prices he/ she presents with those of other traders

 

​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 

 

  • Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product

 

Article A4. Administration of promotions 

 

  • Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers' reasonable expectations.

In particular:

  • The availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. If delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made
  • Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request
  • Complaints should be efficiently and properly handled

 

Article A5. Safety and suitability 

 

  • Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
  • Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

 

Article A6. Presentation to consumers

 

  • Complex rules should be avoided
  • Rules should be drawn up in language that consumers can easily understand
  • The chances of winning prizes should not be overstated

 

 

Information requirements 

 

  • Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase

 

Information should include, where relevant:

 

  • clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • main characteristics of the promotional items offered
  • any time limit on taking advantage of the promotional offer
  • any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. In the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • the value of any voucher or stamp offered where a monetary alternative is available
  • any expenditure involved, including costs of shipping and handling and terms of payment
  • the full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
  • Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause

 

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:

 

  • any rules governing eligibility to participate in the prize promotion
  • any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
  • any restriction on the number of entries
  • the number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
  • in the case of a skill contest, the nature of the contest and the criteria for judging the entries
  • the selection procedure for the award of prizes
  • the closing date of the competition
  • when and how the results will be made available
  • whether the consumer may be liable to pay tax as a result of winning a prize
  • the time period during which prizes may be collected
  • where a jury is involved, the composition of the jury
  • any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

 

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/

 

 

 

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Read more

D. Advice & Clearance

SECTION D: SRO SERVICES

 

 

COPY ADVICE

 

  • ARPP (Autorité de Régulation Professionnelle de la Publicité, the French advertising Self-Regulatory Organisation) provides non-binding advice free of charge across all media i.e. television, press, radio, outdoor, Internet, etc., and within 48 hours for its members. This service is not available to non-members of the ARPP. More information can be found here
  • Any advertiser, advertising agency or media company can submit its non-finalised project to the legal experts of ARPP provided they are a member. The project can take various forms: storyboard, script, poster or half-finalised film etc. and all types of media can be reviewed: TV, press, radio, public boards, internet. Copy advice requests and the enclosures must be sent through the online submission system ARPP.PRO

 

 

CLEARANCE

 

 

All television advertising needs to be pre-cleared by the ARPP. The procedure is as follows:

 

  • Each advertisement must be sent to the ARPP via the dedicated website:
    http://www.arpp-pub.org/ARPP-PRO,931.html
  • Identification form: the advertisement must be accompanied by an identification form, fully completed and paid for. ARPP members benefit from a preferential rate. This document is the identity card of the advertisement and includes the name of the advertiser, of the product, the title of the spot, its length, its nature (original creation, new version or declination of the spot already broadcast), the date of its first broadcasting…. An identification number will be given to the advertisement. That number will be used throughout the ad’s existence and will help its identification and research by the different archiving organisations (INA …). Link to purchase forms

 

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 

 

 

 

CLEARANCE SPECIFICS

 

5-10 clear working days for TV/VOD/Online/Sponsorship (incurs fees)

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

E. Links

SECTION E: LINKS/ SOURCES

 
EUROPEAN LEGISLATION

 

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:

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

 

Five more recent, significant documents:

 

 

Commercial practices: UCPD


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

 

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

 

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

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

 

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

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

 

AVMSD amendment

 

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

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

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

 

 

e-Privacy

 

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

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

 

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

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

 

 

e-Privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

e-Commerce

 

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

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

 

The Digital Services Act

 

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

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

 

 

The Digital Markets Act

 

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

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

 

 

NATIONAL LEGISLATION

 

Toubon

 

1994 Toubon Law on the use of French language (Loi Toubon)articles 1 and 2This 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:

https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006069565/LEGISCTA000032220945/#LEGISCTA000041598964 (FR)

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

 

Sustainability 

 

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:

https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006074220/LEGISCTA000043960254/#LEGISCTA000043960254

The clauses concerned are in English here (translation borrowed from Soulier Avocats/ Mondaq May 2022)

https://www.g-regs.com/downloads/FREnvCodeMay2022EN.pdf

 

 

Privacy legislation and regulator’s guidance

 

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/ECnow 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’:

https://www.cnil.fr/en/home

‘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

 

 

National Channel legislation and regulation

 

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:

http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FD29AF8EAFEEAF0078720A084AB27E51.tpdjo10v_3?cidTexte=LEGITEXT000006078905&dateTexte=20120727 (FR)

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:

https://www.legifrance.gouv.fr/affichTexteArticle.do;jsessionid=3CA8F29980E9B092E202044635B7726C.tplgfr27s_1?idArticle=LEGIARTI000033662943&cidTexte=JORFTEXT000000512205&categorieLien=id&dateTexte=20180101

 

 

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 

 

ARCOM from January 2022

 

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:

https://www.csa.fr/Reguler/Espace-juridique/Les-textes-de-references/Decrets-et-arretes/Decrets-et-arretes-relatifs-a-la-publicite

 

 

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:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006072665&dateTexte=29990101&categorieLien=cid

 

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

 

 

SELF-REGULATION

 

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:

http://www.jdp-pub.org/avis/

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): 

https://www.arpp.org/actualite/recommandation-arpp-developpement-durable-v3-disponible-en-motion-design/

 

Portrayal of people

 

The ARPP introduced in July 2016 an update of ‘Portrayal and Respect of Human Beings’:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/ (EN)

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):

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Identification-de-la-publicit%C3%A9-et-des-communications-commerciales-ARPP.pdf (FR)

 

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.

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/ (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/digital-advertising-and-marketing-communications-code/ (EN)

 

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) :

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-S%C3%A9curit%C3%A9-situations-et-comportements-dangereux.pdf (FR)

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.

 

Crypto

 

ARPP's Crypto-Assets code (EN) in force October 2023. FR version of four financial codes

 

INTERNATIONAL CODES AND GUIDANCE 

 

ICC

 

ICC Advertising and Marketing Communications Code 2018

https://iccwbo.org/wp-content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf (EN)

 

From the introduction to the code: ‘Significant changes include:

 

  • Addressing in Chapter C direct marketing and digital marketing communications by combining previous code Chapters C and D
  • Clearer transparency and disclosure concerning commercial versus editorial and user-generated content b clearer application to all mediums and platforms including social media, mobile, virtual and marketing communications using artificial intelligence Introduction
  • Applicability to other participants in the marketing eco-system, including market influencers, bloggers, vloggers, affiliate networks, data analytics and ad tech companies as well as those responsible for preparing algorithms for marketing communications

 

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

https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/

Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising

https://iccwbo.org/news-publications/policies-reports/mobile-supplement-icc-resource-guide-self-regulation-interest-based-advertising/ 

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/


 

OTHER TRADE ASSOCIATIONS

 

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.'

https://www.iabfrance.com/

Members are here:

https://www.iabfrance.com/article/les-membres

How to Comply with EU Rules Applicable to Online Native Advertising:
IAB Transparency and Consent Framework:
 

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

 

Best Practice Recommendations

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

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: 

www.sponsorship.org

 

 

 

 

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