SECTION A OVERVIEW

Updates since May 2022 (slimmed)

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

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

Practical guide to environmental claims (FR) published by DGCCRF and the Consumer Council May 25, 2023

Total Energies v Greenpeace France. Reuters May 3, 2023

French parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023 

Commentary here (EN) from Addleshaw Goddard and GALA here. Code of Good Conduct here (FR)

CNIL Fines Apple 8 Million Euros Over Personalized Ads. Hunton Andrews Kurth LLP January 6, 2023

The above is obviously a significant case; GDPR application 'versus' national law discussed

Fossil fuels ad ban; carbon and other claims
From 22nd August 2022, the 'advertising and promotion' (la publicité relative à la commercialisation ou faisant la promotion) of specified fossil fuels is prohibited; see section 8 of the Environmental Code, art. L229-61 (FR) from the 'Climate and Resilience Law'. Some acerbic August 2022 commentary from GALA here. The same law introduced a new section 9 in the Environmental Code on requirements and conditions for carbon claims such as 'carbon neutral', 'zero carbon', 'zero-carbon footprint', 'climate neutral', 'fully offset', '100% offset' or equivalent, applicable as of January 1, 2023. Key clauses are in English here, courtesy of Soulier Avocats. There are other significant environmental information measures aimed at 'waste-generating' products, which include a ban on terms such as 'environmentally friendly' or 'biodegradable' on products and packaging; details to be developed via decree in the coming months; see Better consumer information on the environmental qualities of products from Bird&Bird June 2022, Decree 2022-748 here (FR).

As further emphasis that environmental claims are high on the regulatory agenda, the Consumer Code - principal legislation in advertising content and incorporating transposition of the Unfair Commercial Practices Directive 2005/29/EC - was amended by the same 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) to include specific reference to environmental impact under CC article L121-2, which sets out how a product or service's 'essential characteristics' must not mislead. The full article can be found here in English and the Consumer Code is here in French.  ICLG's Consumer Protection Laws and Regulations from April 2023 sets out how various jurisdictions, France included, apply consumer protection law to environmental claims. 

Set out below are the rules that affect all product sectors in France. While some sectors are subject to specific rules, they must also observe the ‘general rules’ that deal with e.g. misleadingness, social responsibility, decency, offence, etc. Some countries write their own codes that address those issues, others will deploy the established ICC Advertising and Marketing Communications Code (EN), which applies directly in France. The French version of the code, obviously applicable in this context, is here. Details are in English in our content section B, or see the linked code. The articles frequently referenced in adjudications are 2, Social responsibility and 5, Truthfulness. There's a helpful March 2023 round-up here of 'Prohibited and controlled advertising in France' from lawyers Bernard-Hertz-Béjot via Lex and another piece from them on misleading advertising in France, March 2021.

SRO AND CODES

The Self-Regulatory Organisation in France is the ARPP (Autorité de Régulation Professionnelle De La Publicité). As you might expect, there are a number of codes that are unique to France; they are all collected here in FR and in EN; the overall regulatory position is relatively intricate and certainly not short on rules. Supplementing the ‘base’ ICC Code are a number of sectoral codes such as those for cars, children, gambling etc. Those codes are shown in detail in the sectors we cover elsewhere, or they can be found on the ARPP website linked above. Trans-sector codes from ARPP are also significant influences in both content and channel rules; a selection is:

Portrayal of people

Code for the Portrayal and Respect of People (EN):

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' FR / EN. There are some provisions on child protection in the ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here); see clause 3. There are also references under point 1.6 (Safety) in the content section B that follows. K&L Gates LLP/ Lex bring to your attention 'French framework for “kidfluencers” - Yet another undertaking for online platforms', which describes the arrival and implications of Act No. 2020-1266 (FR) of 19 October 2020 on the commercial use of the image of children under 16 on online platforms. Under this act, which amends the French Labour Code, anyone (including parents) recording videos featuring children under 16 with the aim of making money on video sharing platforms must request the relevant public authority’s prior authorisation. More here from Klemchuk LLP/ Lex April 14, 2023.

Identification

Identification of advertising and marketing communications. Identification of the advertiser

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)

French parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023 

Commentary here (EN) from Addleshaw Goddard. Code of Good Conduct here (FR)

France leads on specific regulation for influencers and the EU may follow
Osborne Clarke. January 24, 2023. Consultation here closed Jan 31, 2023

ARPP recommendations for influencer marketing

https://www.youtube.com/watch?v=8Jx4gr5bvH0 (EN sub-titles)

Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR). #ad, for example, is not permitted

See also the ARPP ‘Responsible Communications Kit’ (FR)

ARPP announced July 2021 the 'Code de la route de l’influence' (FR) with Influence4You; this is the 'Highway Code' for marketers and influencers

The  Digital Advertising and Marketing Communications Code (EN; V5) also carries Influencer provisions

The Media Institute in collaboration with ARPP launched the Responsible Influencing Certificate in September 2021. More here (FR)

ARPP and Instagram launch “C’est Carré” to promote good practice in Influencer Marketing. December 2022

Safety

Safety Code: Dangerous behaviours and situations:

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 

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

Haas Avocats September 25, 2023

EASA update on below October 18, 2023

Proposal for a Directive on Green Claims. March 22, 2023

European Commission press release on the above here 

Helpful summary and commentary here from GALA/Lex also March 22

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

More here (FR) and key extracts unofficially translated here. See also additional opening entry above re Consumer Code changes & new rules re carbon offsetting and neutrality 

Commentary

Quelles Sont Les Nouvelles Obligations Environnementales Pour Les Sites E-Commerce? Haas Avocats April 4, 2023

The French regulatory arsenal against greenwashing. Taylor Wessing/Lex April 3, 2023

The above includes some rulings from ARPP

Communication on the environmental qualities of products: dos and don'ts. Dentons/ Lex 

National and international codes and guidance 

Practical guide to environmental claims (FR) published by DGCCRF and the Consumer Council May 25, 2023

Helpful commentary on the above here from Hogan Lovells/ Lex June 2, 2023

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR; V3)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN; V3)

 The code covers topics such as truthfulness, vocabulary, signs, labels and logos, clarity and qualifications, and complex systems

Video here: https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN sub-titles)

Ademe, the French Agency for Ecological Transition, publish the Anti-greenwashing Guide (FR) with ARPP

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

On 7 October 2021, Google launched a new environmental claims policy. More here

Chapter D of the ICC Advertising and Marketing Communications Code (EN) is devoted exclusively to environmental claims 

ICC Environmental framework 2021 (Nov) 'provides added guidance on some established environmental claims and additional guidance on some emerging claims.'

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 

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

• The ICC Framework for Responsible Environmental Marketing Communications (EN) published November 2021 provides 'added guidance on some established environmental claims and additional guidance on some emerging claims'. Appendix I carries an Environmental Claims checklist

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

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.

SECTION D: SRO SERVICES

• 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

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 

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

For help contact the Traffic Bureau administration@trafficbureau.net

SECTION E: LINKS/ SOURCES

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:

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

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

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

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://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf

Comparative advertising

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

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

Audiovisual media

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

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

AVMSD amendment

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

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

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

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

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

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

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

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