Alcohol

Netherlands

 

Uploaded November 2018  

 

Uploaded November 2018

Adjudications UK 12/18

New Wine Code SP 4/19

New BE Convention 6/19

UK PG Code 6th edition 9/19

UK CAP News 11/19 

Sector review completed March 2020

NL Alc Free and low alc Code Dec 2020

UK: Alcohol rules 'updated' Jan 2021

NL Alcohol act July 2021

Alcohol

A. Overview

Sector

SECTION A

 

SRC review March 2020

WIM re-brand effective April 2020

AVMSD and amended Directive May 20

RVAAB Code Nov 2020

New Media Act Dec 2020

New NRC links Jan 2021

Alcohol act July 2021

IARD Influencer Global standards Sept 2021

 

 

SELF-REGULATION LATEST

 

 

 

As a result of the ‘Prevention Agreement’ between industry and government, the STIVA alcohol code will be evaluated in 2020 by STIVA with the Ministry of Health. In this agreement the following is concluded:

 

- The alcohol industry will propose solutions before 2021 to restrict the reach and influencing of young people wherever they see most alcohol marketing

- From 2019 no new contracts for alcohol advertising in the grounds of amateur sport clubs. Existing signs need to phase out before the end of 2022

- A special advertising code will be introduced for alcohol-free beer; this new code to enter into force in the first half of 2020 (see below)

 

For more information (NL): https://www.rijksoverheid.nl/onderwerpen/gezondheid-en-preventie/nationaal-preventieakkoord

 

 

 

  • On October 15 2020, the Advertising Code for Alcohol-free and Low-alcohol beer (RvAAB) came into effect. The code stipulates, among other things, that advertising for alcohol-free and low-alcohol beer may not be aimed at young people under the age of 18 and that advertising for Low-alcohol beer may not be aimed at pregnant women nor reference driving. This move represents one of the agreements that Dutch Brewers and STIVA (Stichting Verantwoorde Alcoholconsumption) made in the context of the National Prevention Agreement. The Code is here (NL) and in English here
  • The Alcohol act (NL) came into force July 1 2021. The act does not specifically address marketing communications. Its primary role is to limit discounting to a maximum of 25%, marking the end as STIVA reports, of e.g. BOGOFs. We assume that communication of any more than the stated 25% limit would also be illegal.

 

 

KEY RULES

 

  • Alcohol (any beverage over 0.5% ABV) advertising in the Netherlands is less heavily legislated than in some countries, and largely industry-regulated; that regulation is nevertheless tight and specific, and across a wider expanse of activity than can be the case in some markets: promotional and sponsorship activity, for example, is covered in some detail.
  • The principal source of rules is the Alcohol Code ‘owned’ by STIVA (NL), the Foundation for the Responsible Consumption of Alcohol, the self-regulatory and lobby body of the Dutch alcohol industry. Their Code is incorporated into the Dutch Advertising Code (DAC-EN) and managed by the Self-Regulatory authority, Stichting Reclame Code (SRC).
  • Where STIVA members - virtually all Netherlands-based producers - are concerned, Alcohol advertising must be pre-cleared (advice is non-binding and based on Self-Regulation) for TV, Radio, and Cinema. Note: the code on the SRC website and STIVA's is essentially the same. The only difference is that STIVA have added some extra explanation. But the single Code that applies to all advertisers (STIVA member or otherwise) is that on the SRC website known as the RVA Code (Reclamecode voor alcoholhoudende dranken – RVA), in English here.

 

 

SRC CHECK-LIST

 

There’s also an helpful alcohol advertising ‘check-list’ (NL) from the SRC, in the form of an interactive series of questions and answers; again, details in the following section, but a brief re-cap is:

 

Does the advertising include?

 

1. A lot of drinks and drinking in the execution?

2. People younger or appearing to be younger than 25?

3. The Educational Slogan? (see below)

4. That alcohol improves physical or mental performance?

5. People drinking alcohol at work?

6 Social or sexual success because of alcohol?

7. Connection with risky, violent or aggressive behaviour?

8. A link between drinking and some form of transport?

9. Is it via a medium specifically aimed at young people and/ or minors?

10. An age check if you have a website?

11. If using social media, are you safeguarding minors?

 

The answers are not always straightforward; they are shown in the above link, albeit in Dutch, and translated in the Content Section B that follows

 

 

RCMs

 

 

Responsible consumption messages (EN), or educational slogans ‘Geen 18? Geen Alcohol’; (Not 18? No alcohol) must always be used in all marcoms and can be in combination with: ‘Geniet, maar drink met mate’; (Enjoy, but drink in moderation) to formats and sizes that are stipulated by medium. The slogan must be clearly distinguishable from the background colour with as much positive (black) or negative (white) as possible. The logo above is optional. Details in the following Sections B and C and the preceding link in this paragraph. For those who observe the ‘Wine in Moderation’ programme, reference to the re-brand from November 2019 is here.

 

 

CHANNEL RULES

 

The Media Act of 2008 (NL), as amended in 2020 and transposing elements of the AVMS Directive prohibits any Alcohol advertising between 6am and 9pm, but does not transpose the rules in the Directive on the targeting of minors and the encouragement of immoderate consumption, because these are dealt with in Self-Regulation, as shown by the DAC (EN) ‘Table of Concordance Audiovisual Media Services Directive.’ There are detailed and specific rules for programme sponsorship and product placement that vary according to commercial/ public TV channels (see our Section C). Alcohol advertising is not permitted on TV and Radio immediately before, during or immediately following programmes whose audience comprises more than 25% minors (from the Alcohol Advertising Code, article 22). There are 7 channel Codes within the DAC. One which may be more relevant to the Alcohol sector is the Social Media and Influencer Advertising Code (EN), which covers the issue of e.g. bloggers, vloggers and/ or online content creators and their ‘Relevant Relationship’, i.e. that between the Advertiser and the ‘Distributor’ in return for payment or any benefit, and the various forms of disclosure that must be applied to the relationship. Rules by channel are shown in our following Section C.

 

 

GENERAL RULES 

 

It's important that the rules for all product sectors, shown below under the General tab, are also understood; adjudications against Alcohol advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the Dutch Advertising Code, also linked above.
 
 
 
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General

SECTION A

 

Recent updates

IAP review March 2020

AVMSD amends May 2020

EDPB updates Aug 2020

Media Act Dec 2020

New NRC links Dec 2020

Directive 2019/2161 Section E Jan 2021

New Postal Filter code April 2021

New Media Act link July 2021

 

 

SELF- REGULATION

 

Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN, which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General Section contains a body of rules with which all advertising should comply. The Special Codes apply to advertising for specific products and services, or using specific channels; see Channel section below.

There is also the:

Children/ Young People Advertising Code (EN) and the

Environmental Advertising Code (EN)

The General Recommendations Section C (EN) covers topics such as guarantees, superlatives, and product images.

 

 

CONSUMER PROTECTION LEGISLATION

 

Articles 193a-193j (EN / NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (EN / NL) of Section 4 (misleading and comparative advertising), Book 6 Dutch Civil Code, regulate comparative advertising as reflected from Directive 2006/114/EC

 

 

CHANNEL (I.E. PLACEMENT) RULES

 

The 7 Channel codes from the DAC are: 

Code for distribution of advertisements by e-mail EN

Social Media and Influencer Advertising Code 2019 EN

Letterbox advertising, door2door sampling and direct response advertising EN

Advertising Code for the use of the postal filter 2021 EN

Code for the distribution of unaddressed printed advertisements EN and

Field Marketing Advertising Code EN

 

Rules from these are set out under the relevant headers in our Channel Section C

 

 

AV LEGISLATION AND AUTHORITY

 

Statutory regulation of Dutch audiovisual media in the Netherlands is from the 2021 amended 2008 Media Act (NL). The amendment referenced is that which is brought about by the 2018/1808 Directive which amends the AVMS Directive 2010/13/EU, ‘in view of changing market realities’. There is some debate about the application of the rules as they relate to an ‘on-demand audiovisual media service’ and whether this definition ‘catches’ vloggers; there's a note on the SRC website here (the DAC is the official repository for content rules transposed from the AVMS Directive.) What is more certain is that video-sharing platforms are now in scope of the Media Act (chapter 3a; NL). Separately, in collaboration with the media authority CVDM, a group of YouTubers have created a code for YouTube NL / EN. This is aimed more at the YouTubers than advertisers, though they work only with advertisers who adhere to the code. The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)

 

 

CHANNEL - DIRECT ELECTRONIC COMMUNICATIONS 

 

The Telecommunications Act NL / EN Article 11.7 implements the E-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user. Tracking cookies are presumed to entail the processing of personal data under the DPA, meaning prior unambiguous consent of the user is required. There may also be implications from the introduction in May 2018 of the GDPR. See below. 

 

Information requirements for information society services and sending of online commercial communications as per E-commerce Directive 2000/31/EC can be found in Articles 15d and15e Book 3 Dutch Civil Code EN / NL.

 

 

DATA PROCESSING/ PRIVACY

Privacy issues should be reviewed with specialist advisors 

 

From May 25 2018, the Dutch Personal Data Protection Act was repealed in the light of Regulation 679/2016, the General Data Protection Regulation (GDPR), which repeals Directive 95/46/EC which the Dutch act transposed. The European Commission page on GDPR is here. The GDPR 'implementing' act in the Netherlands is here (NL). The Authority Autoriteit Persoonsgegevens AP supervises processing of personal data; their advice on the introduction of the GDPR is here, albeit only in Dutch at this point.

 

 

SPECIFIC CLAIM AREAS 
Pricing

 

When a price is mentioned in advertising, the final/ total price should be indicated, including VAT and all other price components; see recent ‘Scooter’ case EN. The basis of this ruling stemmed from the UCPD (per above, under Consumer Protection), as represented in Article 193 of the Dutch Civil Code (EN). In the Netherlands, the Product Pricing Directive has been implemented in the Product Pricing Decree PPD NL / EN. Also known as the Price Labelling Regulations, they apply to advertising (Art. 5.1 PPD). Both the Dutch Advertising Code, supplemented by the SRC Check on Unfair Advertising, and the Civil Code Book 6, Title 3, Section 3A, include further pricing provisions such as use of the term ‘free’ and ‘Bait and Switch’ advertising. The ACM (Authority for Consumers and Markets) also has a note on price promotions EN and advertised prices of new cars EN. See our following Content Section B for details.

 

 

Environmental claims

 

The use of environmental claims in advertising may be assessed against general misleadingness legislation from Book 6 of the Civil Code on unfair commercial practices (EN) and Section A of the Dutch Advertising Code (EN), articles 7 and 8. From a specific Self-Regulatory perspective, the SRC’s Code for Environmental Advertising (NL / EN) applies. This is supplemented by the SRC Check: Environment and Sustainability (NL), as well as the SRC Checklist. The ACM (Authority for Consumers and Markets, per above) publish Guidelines Sustainability Claims (EN) on which CMS Netherlands comment in a helpful article Sustainability, Advertising and Greenwashing. According to  Maverick Advocaten NV June 2021, ACM has asked more than 170 companies in the energy, dairy and clothing sectors to check the accuracy of their product range against the Guidelines. Additional guidance can be found in the ICC Framework for Responsible Environmental Marketing Communications, which includes an environmental claims checklist. See also EU Commission Guidance on application of the UCPD to such claims, section 5.1. Content Section B for details of all of the above. The WFA launched their Planet Pledge in April 2021.

 

 

 

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International

SECTION A

 

Uploaded Oct 2018
AVMS amends March 2020
EDPB amends Oct 2020
Various updates April 2021
WFA Planet Pledge April 2021
Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021
 
 
SOME NEWS

 

September 2021

 

EASA's latest Cross-Border Complaints Report is out; In 2020, the network handled 337 cross-border complaints. The full report is available here

 
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There follows reference to some of the key developments out of the EC. These are medium to longer term in their implications and will be updated from time to time.  

 

The Digital Services Act package

 

From the EU pages: The content on the 'Digital Single Market' website is progressively being archived. Please bookmark https://digital-strategy.ec.europa.eu/en for up-to-date information of the Commission’s Digital Decade.

 

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 EU pages on the Farm to Fork strategy here

 

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In the context of Europe’s ‘Beating Cancer Action Plan’, there will be some impact on self-regulation regarding HFSS food advertising, alcohol advertising and Audiovisual Media Service Directive (AVMSD) provisions on commercial communications, similar to the above ‘Farm to Fork’ implications. This relates to the new clauses introduced by the 2018/1808 Directive

 

The EU’s Green Consumption Pledge Initiative focuses on “non-food or mixed businesses with direct interaction with consumers”  and complements the EU Code of conduct for responsible business and marketing practices that will focus on the food sector. This is planned for June 2021

 

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Not from the EU

 

'Diversity, equity and inclusion in global campaigns' from Frankfurt Kurnit Klein & Selz PC

 

The World Federation of Advertisers (WFA) launched their 'Planet Pledge' in April 2021. From their website: 'Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs.' (Sustainable development goals)

 

 

1. SELF-REGULATION
1.1 The ICC Code
 
This 'International' sector provides largely Self-Regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2018, underpins much of Self-Regulation worldwide.
 
Most countries feature national advertising Self-Regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide a 'gateway' to Codes around the world, as do ICAS, the International Council for Advertising Self-Regulation.
 
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of Advice and Good Practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between Paid and Unpaid communications. These documents are placed and linked in relevant channels within the text in each country.
 
 
1.3 Structure and scope of the ICC Code

 

The Code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code Chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':


ICC Guide for Responsible Mobile Marketing Communications

 

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

 

ICC Framework for Responsible Marketing Communications of Alcohol

 

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

 

ICC Framework for Responsible Environmental Marketing Communications

 

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC International Code of Direct Selling

 

All the individual rules themselves are set out  in the following Content Section B and Channel Section C.

 

 
1.4 Sector and channel rules 

 

The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the iCC Code, such as those for OBA, are shown within the relevant sub-heads under our Channel Section C, together with the applicable European legislation.

 

 
2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European Directives and their national implementation in the Sector and General rules shown elsewhere on this website. In this international context, we show only the most immediately relevant Directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that Directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the Food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the Self-Regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere.

 

The issue with European rules is that it can be difficult to understand which regulation applies to which marketing technique or process, especially as some Directives apply to several marketing tools. The table below provides an overview; the marcoms-relevant rules are set out in Content Section B and Channel Section C, as applicable.
 
 
European Directives in marketing

 

Issue or Channel Key European legislation and clause
Cookies
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
Electronic coms. Consent and Information 
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms 

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

 

 

Sections B and C below sets out the rules that are relevant to marketing communications from the Directives above, together with the Self-Regulatory measures referenced under Point 1 in this overview.

 

 

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B. Content Rules

Sector

SECTION B

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings below

 

 

Sources 

 

  • Throughout these pages, we refer to the Advertising Code for Alcoholic Beverages 2014, sometimes known as the RVA Code (Reclamecode voor alcoholhoudende dranken – RVA) which is found within the Dutch Advertising Code and separately here
  • This Code can also be  found on the STIVA website (Stichting Verantwoorde Alcoholconsumption – the Foundation for the Responsible Consumption of Alcohol). The STIVA Alcohol Code (EN) carries identical rules, with sometimes different or more extensive explanatory notes, especially in areas such as events and sponsorship.  Where it’s more helpful/ explanatory, we may reference the STIVA text, but the Alcohol Advertising Code from the DAC is the Code that is applied by the Self-Regulatory Organisation to all advertisers, whether or not they are STIVA members
  • The headings below are not necessarily precisely those shown in the Code, as we have standardised in this description/ order across Europe so that comparisons are easier

 

 

 
  1.1. Misuse
  1.2. Dangerous activities
  1.3. Alcohol content
  1.4. Medical/ nutritional aspects
  1.5. Performance/ work
  1.7. Social success 
  1.8. Sexual aspects 
 
 
 
 
 

 

1. THE ALCOHOL ADVERTISING CODE

 

From the 2014 Alcohol Advertising Code 

 

Because irresponsible consumption of alcoholic beverages may cause problems, restraint must be observed in all advertising for these beverages

 

 

1.1 Misuse

 

  • Advertising for alcoholic beverages may not display, suggest, or encourage excessive or otherwise irresponsible consumption (Art. 1)
    Explanation Article 1
    Excessive or otherwise irresponsible consumption includes in any event, but is not limited to:

 

  • Visibly emptying a full glass in one go
  • Portraying a glass that is at least twice the size of a standard-sized glass (a standard-sized glass for beer contains 250 ml; for wine 100 ml and for distilled spirits 35 ml) for the category of the relevant alcoholic beverage
  • Portraying an extraordinary-size packaging, e.g. a bucket or similar object, from which multiple individuals can drink directly, for example by using straws. Portraying a pitcher is solely permitted within the context of the contents of the pitcher being poured into multiple glasses

 

 

Under-the-cap

 

An under-the-cap campaign meaning a promotion organised by the advertiser in which consumers can obtain winning codes or similar codes by opening a non-resealable packaging (bottles with caps, cans), with which they can compete for prizes  is not permitted, unless the following conditions are met:
 

  1. Consumers cannot participate only by opening non-resealable packaging (bottles with caps, cans with lips), but can also participate via an alternative means, which is clearly communicated (e.g. visiting a website, etc.)
  2. The alternative for participation mentioned in para 1 is reasonably proportionate to participation by means of purchasing and opening an alcoholic beverage in non-re-sealable packaging
 
 

Abstinence

 

  • Advertising for alcoholic beverages may not portray abstinence from alcohol consumption or moderate or moderate alcohol consumption in a negative manner, nor may advertising for alcoholic beverages be derogative (derogatory) towards any non-alcoholic beverage (Art. 2)

 

 

Good taste and/ or decency

 

  • Advertising for alcoholic beverages may not be contrary to good taste or decency, and may not prejudice human dignity or integrity (Art. 5)

 

 

1.2. Dangerous activities

 

  • Advertising for alcoholic beverages may not reflect situations that solicit or encourage risky, violent or aggressive behaviour (Art.14)
    Explanation article 14
    Communications may display risky behaviour to a certain extent, providing such risk is reasonably limited and the advertising communication does not promote copying the risky behaviour

 

Drugs

 

  • Advertising for alcoholic beverages may not show any acceptance of, association with, or reference to illegal substances (Art. 15)

 

 

Events

 

  • Public order: Advertising for alcoholic beverages within the context of events is prohibited if it must reasonably be suspected that this would be conducive to disturbance of the public order and/ or disturbance of the relevant event (Art. 16)
  • Events: Risk of Personal Injury. Advertising for alcoholic beverages within the context of events is prohibited if it can reasonably be suspected that this would create a risk of personal injury to participants and/ or visitors (Art. 17)

 

 

Traffic

 

  • Para 1. Advertising for alcoholic beverages may not create any connection between the consumption of alcoholic beverages and actively participating in traffic with any means of transport whatsoever
  • Para 2. When a commendation for alcoholic beverages is displayed on any means of transport, the means of transport must also display a clearly legible warning against active participation in traffic after consuming alcohol (SRC interpretation on this point: the SRO believe this refers principally to advertising placed on a car, in the context of “don’t drink and drive”. It is about active participation in traffic – so from the perspective of being the driver. In the context of a poster on a metro – this could be regarded as passive participation. As yet there have not been any cases which have invoked this para.)  An exception is made for means of transport used to transport alcoholic beverages, such as lorries, tap equipment technicians and technical service vehicles for the catering industry (Art. 18)

 

 

1.3 Alcohol content and nature

 

  • Advertising for alcoholic beverages may not cause confusion as to the alcoholic nature and the alcoholic percentage of the drink (Art. 3, para1)
  • Advertising for an alcoholic beverage, including its brand name, type name and packaging, may not create the impression that the beverage is a soft drink, lemonade or other non-alcoholic beverage (Art. 3, para2)
  • Advertising for alcoholic beverages may not suggest that the alcohol percentage is in itself a favourable characteristic. Nor may it be suggested that risks diminish as the alcohol percentage decreases (Art. 4)

 

 

1.4 Medical/ nutritional aspects; claims

 

  • Advertising for alcoholic beverages may not refer to the uninhibiting effect of alcoholic beverages, such as reducing or removing feelings of anxiety and inner or social conflicts (Art. 6, para 1)
  • Advertising for alcoholic beverages may not refer to the possible health benefits of consuming alcoholic beverages (Art. 6, para2)

 

 

1.5 Performance/ work

 

Advertising for alcoholic beverages may not:

 

  • Suggest that consumption of alcoholic beverages improves physical or mental performance (Art.6, para 3)
  • Suggest that the consumption of alcoholic beverages has a positive effect on sporting performance (Art. 6, para 4)
  • Suggest that the consumption of alcoholic beverages has a positive effect on professional performance (Art. 7)
     

Explanation Article 7
People should not be shown consuming alcoholic beverages at the workplace, or if there is a direct connection to the workplace. If the setting is to be a working environment, it must be clear that the work has ended. An indirect connection is permitted - e.g. consuming alcoholic beverages at the end of the work day in an area other than the workplace, such as a canteen or recreational area 

 

 

Sport

See also Event Sponsorship in our Channel Section C that follows

 

  • Advertising for alcoholic beverages may not be carried on the person of an individual sportsman or sports team (Art. 30, Para 1)
  • Advertising for alcoholic beverages may not be carried on means of transport and/ or attributes used by the sportsman or sports team when actively participating in sports (Art. 30, Para 2)
  • Hiring athletes who actively participate in sports on the highest adult level (European or World Championships and Olympic Games) by or on behalf of the advertiser for radio, cinema and television commercials and printed communications is prohibited when use is made of enacted situations with scripts. Portraying these athletes on packaging and labels is also prohibited (Art. 30, Para 3)
  • Packaging for alcoholic beverages may not portray active participation in sports (Art. 30, Para 4)
  • Active participation in sports may be portrayed in advertising communications, but only to portray the context of celebrating the performance after the performance (Art. 30, Para 5)

 

 

Vulnerable groups

 

1.6 Minors

 

  • Advertising for alcoholic beverages may not specifically target minors (Art. 10). More in particular, communications as described in the explanation to Article 10 are prohibited
     

Explanation Article 10
Prohibited advertising communications within the context of Article 10 of the Advertising Code for Alcoholic Beverages include, but are not limited to:

 

  • Communications making use of teenage idols
  • Communications/promotions making use of promotional items - e.g. Toy figures, stuffed animals, toy cars, games, stickers, buttons, football cards, beach toys or school-related items - in so far as these specifically target minors
  • Music specifically targeting teenagers that can be downloaded free of charge
  • Communications making use of music specifically targeting teenagers
  • Communications in which use is made of teenage language
  • Communications in which use is made of situations that refer to teenage behaviour: rebellious behaviour, an infatuation, school parties, finals
  • Communications in which Sinterklaas or Santa Claus is portrayed, in so far as these specifically target minors
  • Communications using design that is popular at such time among minors

 

  • Advertising for alcoholic beverages may not portray individuals who are or appear to be evidently younger than 18. For advertising communications in which use is made of enacted situations with scripts and models hired by or on the instructions of the advertiser, no individuals who are or who evidently appear to be younger than 25 may be portrayed (Art. 11)
     

Explanation Article 11

On social network sites like Facebook and other sites with photographs showing individuals who have not been hired by the advertiser, in which the content of the site is managed by or on behalf of the advertiser and over which the advertiser has editorial control, the individuals portrayed must be 18 or older

 

  • Advertising for alcoholic beverages may not suggest that the consumption of alcoholic beverages is a sign of maturity and that abstinence from consuming alcohol is a sign of immaturity (Art. 12)
  • Offering premiums or causing their offering to minors during catering industry promotions is prohibited (Art. 13)

 

 

Pregnant women

 

  • Advertising for alcoholic beverages may not specifically target pregnant women

 

 

1.7 Social success 

 

  • Advertising may not give the impression of a causal connection between the consumption of alcoholic beverages and social success (Art. 8)
     

Explanation Article 8 Social success

  • Communications in which one or more individuals are portrayed in “before” and “after” situations, where one or more persons evidently have inadequate social and/ or interpersonal skills in the “before” situation and, after consumption of an alcoholic beverage, have such social and/ or interpersonal skills in the “after” situation
  • Communications in which an individual receives a promotion at work as a result of alcohol or its consumption
  • Communications in which an individual clearly acquires improved social status as a result of alcohol or its consumption.

 

 

1.8 Sexual aspects 

 

  • Advertising may not give the impression of a causal connection between the consumption of alcoholic beverages and sexual success. Such impression of such a causal connection can also be created by suggesting that alcohol is consumed without actually showing the alcoholic beverage or its consumption (Art. 8)
  • More in particular, communications as described in the explanation to Article 8 are prohibited (which list is not exhaustive)
     

Explanation ​sexual success

 

  • Communications portraying a situation in a bar, discotheque or party, in which others are only willing to dance with the lead character in the communication after he or she has consumed an alcoholic beverage (and evidently did not want to before then)
  • Communications in which individuals are portrayed in “before” and “after” situations, in which successfully flirting with or picking up someone in a catering establishment or obtaining sexual favours is shown to be a direct result of alcohol or its consumption
  • Communications in which an individual removes his or her clothes, adopts a more provocative stance or clearly makes his or her willingness to engage in sex known to either another person in the communication or to the viewer, in which this conduct is clearly a result of alcohol or its consumption
  • Communications in which a man removes all of his clothes or allows these to be removed or is completely naked, even if this is not clearly the result of alcohol or its consumption
  • Communications in which a woman removes her clothes or allows these to be removed until she is topless or completely naked, even if this conduct is not clearly the result of alcohol or its consumption

 

Note: In itself, portraying one or more individuals who are (already) socially or sexually successful does not violate Article 8 of the Advertising Code for Alcoholic Beverages

 

 

 

1.9. Alcohol-free and low-alcohol beer

 

 

  • On October 15 2020, the Advertising Code for Alcohol-free and Low-alcohol beer (RvAAB) came into effect. The code stipulates, among other things, that advertising for alcohol-free and low-alcohol beer may not be aimed at young people under the age of 18 and that advertising for low-alcohol beer may not be aimed at pregnant women nor reference driving
  • The Code is here (NL) and in English here

 

 

2. THE CHECK-LIST

http://www.checkdereclamecode.nl/check/product-of-dienst/alcohol/

 

The check-list in the form of an interactive series of questions and answers; self-evidently, the regulator’s reaction is predictable, but also helpful in providing some nuance and directing towards the source of the rule concerned. Note: in this case, the links below are in some cases to the Dutch version of the Alcohol Advertising Code as that version allows access to particular sections, where the official English version of the Alcohol clauses is less accessible. Direct access to the official English version is here:

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

 

 

1. Is there a lot of drinks and drinking in the execution? For example, is there drinking from large glasses, or a drink emptied in one gulp?

 

 

YES NO

 

Alcohol advertising must not show, suggest or stimulate excessive or otherwise irresponsible consumption. This can be found in the Advertising Code for Alcoholic Beverages (RVA) 2014

 

 

 

 

2. Are people shown in the advertising who are younger or appear to be younger than 25 years of age?

 

 

YES NO

 

Models and actors for alcohol advertising must be at least 25 years old, and may not appear younger

 

 

 

3. Is the message ‘Geen 18, geen alcohol’ used?

 

 

YES NO

For formatting, read the explanation to article 33 of the Advertising Code for Alcoholic Beverages (RVA). See also the STIVA website; STIVA is the ‘owner’ of the RVA.

 

Mandatory for advertising alcohol on television, cinema, print and in commercials for alcohol on the internet (this is the reaction provided on the check-list; you should assume that all marcoms should include the ES; see entries under Responsible Consumption Messages later in this Section)

 

 

 

4. Is it suggested that alcohol improves physical or mental performance?

 

 

YES NO

 

No claims or suggestions can be made relating to positive health effects of alcohol

 

 

 

5. Does the advertising show people drinking alcohol at work?

 

 

YES NO

 

Advertising for alcohol should not show people while they consume alcoholic beverages at the workplace or if there is a direct link with the workplace. (This is the formal reaction on the check-list. It’s important to understand the full clause which reads: Explanation Article 7 - People should not be shown consuming alcoholic beverages at the workplace, or if there is a direct connection to the workplace. If the setting is to be a working environment, it must be clear that the work has ended. An indirect connection is permitted - e.g. consuming alcoholic beverages at the end of the work day in an area other than the workplace, such as a canteen or recreational area  

 

See note in the left hand column

 

6. Do those portrayed in the advertising enjoy social or sexual success because of alcohol?

 

 

YES NO

 

Advertising should not give the impression that there is a causal relationship between alcohol consumption and social and sexual success

 

Alcohol is not a panacea

 

 

 

7. Is drinking connected to dangerous, violent or aggressive behavior or is such behaviour encouraged?

 

 

YES NO
This is not permitted, unless the risk is reasonably limited and the execution does not encourage imitation of the risky behaviour

 

Nothing in the execution may associate drinking with dangerous behaviour

 

 

 

8. Is there a link between drinking alcohol and driving some form of transport?

 

 

YES NO

 

Advertising for alcohol advertising may not make any connection between consumption of alcohol and active traffic participation in traffic by any means of transport

 

 

 

 

 

9. Is the advertising via a medium specifically aimed at young people and/ or minors?

 

 

YES NO

 

No alcohol advertising can be placed in youth media; not even in magazines or on websites that specifically target minors. For more information, see the STIVA website . 

(Note: this links to guidance which includes a list of prohibited websites)

 

 

 

10. Do you include an age check if you have a website?

 

 

YES NO
 

 

According to article 25 of the Alcohol Advertising Code, access to the website may only be provided to adult visitors via an age-check

 

 

 

 

11. If using social media, have you taken into account the protection of minors?

 

 

YES NO

 

The requirements for care with regard to minors also apply to social media. For more information, see article 24 of the Alcohol Advertising Code

 

 

 

 

 

3. MANDATORY RESPONSIBLE CONSUMPTION MESSAGES

 

  • All drinks marketing communications require the display of responsible consumption messages/ educational slogans, per below. These were amended in January 2014 to take account of the rise in permitted drinking age to 18 (formerly 16 for some alcohol).
  • Format specifications by medium can be found in the following Channel Section C, and a PDF of an extract of the key pages on the ‘Educational Slogan’ is here:

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

 

  • The educational slogan ‘Geen 18? Geen alcohol’ (Not 18? No alcohol) is mandatory for all advertising for alcoholic beverages, including that on the Internet, and can be used in combination with ‘Geniet, maar drink met mate’ (Enjoy, but drink in moderation)
  • The logo associated with the campaign to communicate the change of the legal drinking age is below. Advertisers can apply via http://www.huisstijlvannix.nl/ to carry the message, though the logo does not need to be incorporated in advertising
  • A ‘toolkit’ is available here; this version is for retailers:
    https://www.nix18.nl/toolkit/detailhandel

 

 

 

While not mandatory, for those who observe the ‘Wine in Moderation’ programme, reference to the re-brand from November 2019 is here

 

 

4. INTERNATIONAL ALCOHOL RULES

 

 

The International Chamber of Commerce (ICC) Framework for Responsible Marketing Communications of Alcohol tailors the standards of their Advertising and Marketing Communications Code  to specific Alcohol situations 

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

 

.....................................................

General

SECTION B


This section is longer than most. To help navigate it, some of the text is 'anchored' and linked to respective headings immediately below

 

 

1. SELF-REGULATION

 

1.1. Section A General rules, Dutch Advertising Code

 

Good taste and decency

Unfairness and misleadingness

Invitation to purchase

Identifiability

Comparative advertising 

Aggressive advertising

Blacklist: annex 1 and 2

 

1.2. Section C of the Dutch Advertising Code

 

Use of ‘comparable retail value’

Superlatives, guarantees

The term ‘recommended price’

Advertising for branches

Pictures of the product 

 

1.3. Advertising Checker service from SRC

 

2. LEGISLATION

 

2.1. Comparative advertising

2.2. Misleading commercial practices

2.3. Invitation to purchase

2.4. The Blacklist

 

3. SPECIFIC CLAIM AREAS

 

3.1. Pricing

3.2. Environmental claims

 

 

1. SELF-REGULATION

 

Note: where the English version of the Dutch Advertising code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full Code in English is linked here

 

 

 Section A. General rules

 

  • Definition of Advertising (Art. 1): any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising. Explanation of Art. 1 in full

 

 

Good taste and decency

 

  • Advertising must be in accordance with the law, the truth, good taste and decency (Art. 2. Explanation)
  • Advertising must not contravene the public interest, public order or good morals (Art. 3)
  • Advertising must not be gratuitously offensive or constitute a threat to mental and/or physical public health (Art. 4)
  • The form and content of advertising must not undermine confidence in advertising (Art. 5)
  • Without justifiable cause, advertising must not arouse feelings of fear or superstition (Art. 6)
  • This ruling, which did not uphold a complaint about a Zeeman underwear commercial, is good context
 

 

 Unfairness and misleadingness

 

  • Advertising must not be unfair. Advertising is considered to be unfair if it contravenes the requirements of professional diligence, and if it materially distorts or is likely to materially distort the economic behaviour of the average consumer reached, or targeted, as regards the product. Misleading and/ or aggressive advertising is considered to be unfair in all cases (Art. 7. Explanation)
  • When assessing whether or not an advertisement is misleading, account must be taken of all its characteristics and circumstances, the factual context, the limitations of the communication medium, and the intended audience (Art. 8.1)
  • Any advertising which contains incorrect/ false information, or information that is unclear or ambiguous for the average consumer in respect of one or more of the elements as listed in points a - g hereunder, and causes or is likely to cause the average consumer to take a transactional decision that he would not have otherwise taken, is considered to be misleading (Art. 8.2):

 

  1. The existence or nature of the product
  2. The main features of the product, such as availability, benefits, risks, execution, composition, accessories, customer service and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose (suitability for use), usage, quantity, specification, geographical or commercial origin, expected results, or the results and essential characteristics of tests and controls performed on the product
  3. The extent of the obligations of the advertiser, the motives for advertising and the nature of the sales process, any statement or symbol related to direct or indirect sponsorship, or recognition/ approval of the advertiser or the product
  4. The price or the way in which the price is calculated, or the existence of a specific price advantage
  5. The need for a service, spare part (component), replacement or repair
  6. The nature, characteristics and rights of the advertiser or his agent, like for example his identity, his assets, qualifications, status, approval, affiliation, connections; ownership of industrial, commercial or intellectual property rights, or his prizes, awards and distinctions
  7. The legal rights of the consumer, including the right of replacement or refund, or the risks he might run/ face

 

  • Advertising is also regarded as misleading if it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves the following (Art. 8.3. Explanation Where the medium used for advertising involves limitations of space or time, these limitations as well as measures taken by the advertiser to make the information available to consumers by other means, shall be taken into account when deciding whether information has been omitted. Essential information consists, among other things, of all information the advertiser has to provide pursuant to the law)
     
    1. Marketing of a product in a way that could lead to confusion with a competitor’s products, trademarks, trade names and other distinguishing marks
    2. Non-compliance by the advertiser with a code of conduct by which he has undertaken to be bound, insofar as the commitment/ obligation is capable of being verified and the advertiser indicates (in advertising) that he is bound by the code of conduct
    3. Omitting, keeping hidden, or providing in an unclear, unintelligible, ambiguous or untimely manner, essential information that the average consumer needs in order to make an informed transactional decision

 

 

Invitation to purchase

 

(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)

 

  • In case an advertisement serves as an invitation to purchase, which does not relate to a distance contract or off-premises contract, the following information shall be supplied:

 

  1. The main characteristics of the product, to an extent appropriate to the medium and the product
  2. The geographical address and the identity of the advertiser, in particular, his trading/ business name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. The price including taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges/ costs cannot reasonably be calculated in advance, the fact that such additional charges/ costs may be payable
  4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. For products and transactions involving a right of withdrawal/ revocation or cancellation, the existence of such a right

 

 

Invitation to purchase in relation to a distance or off premises contract

http://www.g-regs.com/downloads/NLGenDACArt8I2Pexp.pdf

 

  • The methods of advertising which are considered misleading under all circumstances are set out in Annex 1 (EN) of the Dutch Advertising Code (Art. 8.5. Explanation The methods of advertising referenced in Annex 1 of the Dutch Advertising Code are misleading under all circumstances. Therefore, it is not necessary to consider whether they are misleading for the average consumer, or if the economic behaviour of the average consumer is materially distorted or is likely to be materially distorted)
  • Testimonials, commendations or expert statements that are used in advertising must be based on the truth and must be in line with the latest accepted scientific views (Art. 9)
  • In advertising intended for the general public, scientific terms, statistical data and quotations shall be used with the utmost care in order to prevent/ avoid confusion of ideas. If use is made of statistics that are valid only within certain limits, such limits shall be stated clearly (Note: e.g. where statistics are based on provisional figures or for a certain period of time, these qualifications should be mentioned, otherwise it could be misleading). No technical terms, descriptions, illustrations or pictures that are manifestly intended to suggest in a quasi-scientific or misleading manner the presence of non-existent properties of goods or services, shall be used (Art. 10)

 

 

 Identifiable advertising 

 

  • Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
  • Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2 Explanation The term audio-visual media particularly refers to programmes broadcast on radio and TV. Subliminal techniques refer to techniques that employ inserted images and/ or sounds of very brief duration in an attempt to influence viewers or listeners, possibly without their knowledge or ability to perceive them)

 

 

Comparative advertising EN (Art. 13)

 

Aggressive advertising (Art. 14. Explanation Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)

 

  • Aggressive advertising is prohibited. An advertisement is considered to be aggressive in the event that, taking into account all its features and circumstances, the factual context, the limitations of the communication medium and the intended audience, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product, by means of intimidation/ harassment, coercion, including the use of physical violence, or undue influence, which thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 14.1)
  • The methods of advertising which are considered aggressive under all circumstances are listed in Annex 2 of the Dutch Advertising Code
  • At the request of the Advertising Code Committee or the Board of Appeal the advertiser must demonstrate the accuracy or fairness of the advertisement, should this be disputed for good reasons (Art. 15)
  • The Dutch Advertising Code must not only be applied according to the letter of its provisions but according to its spirit as well (Art. 16)
  • In the case of Special Advertising Codes, the General Section of the Dutch Advertising Code shall remain fully in force (Art. 17)
  • Companies as well as consumers have the right to submit a complaint about violations of the Dutch Advertising Code with the Advertising Code Authority (SRC). This means that where in this part of the General Code reference is made to consumers, corporate bodies are also covered (Art. 18)

 

 

Blacklist: Annex 1 and 2

 

Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances

 

 

1.2. Section C of the DAC: General recommendations

 

The topics below are set out in full here (EN)

 

Use of words ‘comparable retail value’

Superlatives, guarantees

Use of the term ‘recommended price’

Advertising for branches

Pictures of the product 

 

 

1.3. Advertising Checker Service from the SRC

 

Context

 

This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc.  that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information, it may be best to check the Dutch version linked above

 

Taste and decency

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

Recognition of advertising

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

For guidance on identifiability across several issues/ channels, including example cases

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

Unfair advertising

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

A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair

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

 

Information requirements

Last updated by SRC 10/10/2017 NL

Key extracts in English here:

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

 

 

2. LEGISLATION

 

While advertising regulation is largely a self-regulatory system, legislation plays a part in Channel especially, but also in advertising Content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit they are largely echoed in Self-Regulation, in the Netherlands in particular

 

 

Applicable laws

 

  • Articles 193a - 193j, Title 3, Section 3A, Book 6 Civil Code: EN / NL Unfair commercial practices; includes the ‘Blacklist’;
  • Articles 194 -196, Title 3, Section 4, Book 6 Civil Code: EN / NL Misleading and comparative advertising; B2B and B2C with the exception of Article 193a (2d)

 

 

Material information requirements for commercial communications, per Article193f Book 6

 

  • Articles 15d, paras 1&2, and 15e para. 1. Book 3 Dutch Civil Code: EN / NL
  • Material Information in a commercial communication Book 6 Civil Code EN (refer to foot of document) / NL

 

 

2.1. Comparative advertising (Art. 194a Book 6 CC)

 

1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor

2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

 

a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g, available here

b. It compares goods or services meeting the same needs or intended for the same purpose

c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price

d. it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor

e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor

f. For products with designation of origin, it relates in each case to products with the same designation

g. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products

h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name

 

3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply.

 

 

2.2. Misleading commercial practices (Article 193c Book 6 CC)

 

  • A commercial practice is misleading if information is provided which is actually incorrect or which deceives or is likely to deceive the average consumer, whether or not by means of an overall presentation of the information, like with respect to (Art. 193c(1a-g):

 

  • The existence or the nature of the product
  • The main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product
  • The trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product
  • The price or the way in which the price is calculated, or the existence of a specific price advantage
  • The need for a service, part, replacement or repair
  • The nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions
  • The consumer's rights, including the right to repair or replace the supplied asset or the right to a price reduction, or the risks he may face

 

which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken

 

 

2.3. Misleading purchase invitation (Art. 193e Book 6 CC)

 

In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase  if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):

 

  1. The main characteristics of the product, to an extent appropriate to the medium and the product;
  2. The geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. If there is a right of withdrawal or cancellation, the existence of such a right

 

 

2.4. The commercial practices ‘Blacklist’ EN / NL

 

  • Article 193g lists commercial practices which are misleading in all circumstances (and therefore unfair under Art. 193b (3a) Book 6 CC)
  • Art. 193i lists commercial practices which are aggressive under all circumstances (and therefore unfair under Article 193b (3b) Book 6 CC)

 

 

3.  SPECIFIC CLAIM AREAS

 

3.1. Pricing


Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say

 

 

Applicable Self-Regulation

 

  • Dutch Advertising Code Section A (EN) General and Section C (EN) General Recommendations
  • SRC Check for Unfair Advertising and Information Obligations - Total Price
  • Advertising Code Committee Case Kia Picanto 2012/00088 EN
  • Chairman’s Decision ‘Scooter’ Case No. 2017/00281 EN

 

Applicable legislation

 

  • Product Pricing Decree NL and EN
  • Book 6 Dutch Civil Code NL / EN
  • ALM Authority for Consumers and Markets Price Promotions Note EN
  • Case Law: Court of Justice of the European Union (CJEU) C‑476/14 (Citroën/ZLW) Judgement and AG Opinion Self-Regulatory clauses

 

 

  • Art. 8.3 DAC: Advertising is also regarded as misleading if it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves the following:

 

  1. Omitting, keeping hidden, or providing in unclear, unintelligible, ambiguous or untimely manner essential information which the average consumer needs in order to make an informed transactional decision

 

  • Art. 8.4 DAC In the case of an invitation to purchase in advertising, which does not relate to a distance contract or off-premises contract, the following material information must be provided:

 

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

 

  • In case the medium used for advertising has its limitations in space or time, these limitations as well as the measures taken by the advertiser to supply the information in another way, will be taken into account when deciding whether information has been omitted. Essential information consists among other things of all information the advertiser has to provide pursuant to the law (explanation of article 8.3)

 

 

Example case: Kia Picanto EN. Extracts below

 

  • In May 2012, the Board of Appeal (CVB) of the Advertising Code Committee made an important ruling on the stated price of a Kia Picanto in a TV commercial and on the Kia website as “from” and “available from” €7,995. The complaint was that the car could not be bought for that price; there were mandatory additional costs amounting to c. €700
  • The Board ruled that this advertising constituted an invitation to purchase, which must always state the “total price” i.e. a price in which all costs are included in so far as these costs (1) can be determined in advance (2) are unavoidable and (3) are not apparent from the context of the advertisement
  • The entry-level price excluded “ready-for-use” (delivery) costs, as well as other admin charges and recycling fees. The Board ruled that these costs would have been known at the time of publication, and so should have been included in the advertised price. Because the delivery costs were considerable, and led to a "significantly higher purchase price" compared to the price quoted, the average consumer may have been enticed to make a purchase decision that he would not otherwise have taken
  • The total price not being shown was ruled to be a misleading omission under Article 8.3 (c) DAC in connection with Article 8.4 (c). The Appeal Board therefore considered the advertising to be unfair in the sense of article 7. The article Advertising shall not be dishonest. Advertising is considered to be dishonest if it contravenes the requirements of professional commitment, and if it substantially disrupts or may disrupt the economic behaviour of the average consumer reached, or targeted, as regards to the product. Misleading and/ or aggressive advertising is considered to be (by any means) dishonest

 

The Chairman’s scooter

 

The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of Art. 8.4c DAC in conjunction with Article 2b of the Prices Act and Article 3 paragraph 1 of the Product Pricing Decree.

 

 

Comparing prices

 

 

 

Other types of pricing deception within the DAC; Annex I

 

  • Bait Advertising/ Limited Supply Offer: Offering products for a specified price without disclosing the existence of any reasonable grounds the advertiser may have for suspecting that he might not be able to supply, nor have another advertiser/ trader supply, these products or similar products at that price, for a period that is, and in quantities that are, reasonable, taking into account the product itself, the range/ scale of the advertising campaign for this product and the price offered (Pt. 5, Annex I DAC). See SRC Check advice here
  • Bait and Switch: Offering a product for a specified price and subsequently:

 

  • Refusing to show the consumer the offered product; or
  • Refusing to accept an order or refusing to deliver the product within a reasonable term; or
  • Showing a defective example of the product

 

        With the intention to promote another product (Point 6 (a-c), Annex I DAC)

 

  • Free: Describing a product as “gratis” (gratis); “free” (voor niets); “without charge/ complimentary” (kosteloos) or similar if the consumer has to pay anything other than the inevitable cost of responding to the offer and collecting or paying for delivery of the product (Point 19, Annex I DAC). See SRC ‘Checker’ advice on ‘Free’ here:
    http://www.g-regs.com/downloads/NlGenSRCCheckFreeNote.pdf (EN)

 

 

Recommended price (adviesprijs) Point g, Section C (EN) Dutch Advertising Code

 

  • Advertisements can only use the term 'recommended price' if an official list of prices recommended by the producer of the advertised product exists and if the consumer is granted inspection of these lists, on request (final para, point g)

 

 

Case law and key clauses from legislation

 

Total price

 

Key points from case C‑476/14 Citroën/ZLW):

 

  • Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (para. 37 Citroën case). Other price components = integral parts of the final price (para. 23)

 

Key legislation

 

  1. Product Pricing Decree: Dutch implementation of the PPD (see Art. 3.1) NL / EN. Extracts below:

 

  1. Advertisements for products which mention the selling price or unit price must comply with Articles 2,3, and 4 (2) of the Product Pricing Decree (Art. 5.1 PPD)
  2. The unit price (e.g. price per kilogram, litre or metre) must be included along with the selling price (final price) unless it is identical to the selling price or it meets one of the other exceptions listed in Art. 3 (3) PPD 
  3. The indication of the selling price and the unit price must be comprehensible and unambiguous, and expressed in euros (Art. 4.2 (a/b) PPD)

 

  1. Dutch Civil Code Book 6; Title 3; Section 3A Unfair Commercial Practices Articles 193b (3a); 193c (1d); 193d (1-4); and 193e (c) NL / EN
  2. The linked document below assembles some of the rules, commentary and guidance on pricing in advertising in the Netherlands, with particular reference to the Unfair Commercial Practices Directive and its transposition into Book 6 of the Dutch Civil Code. This includes rules such as information obligations and those from the ‘Blacklist’ of commercial practices. The rules are well covered, almost word for word, in the Self-Regulatory section, so they are included here in the legislation section for the record
    http://www.g-regs.com/downloads/NLGenPriceCommentaryUCPDCCb.pdf

 

 

3.2. ENVIRONMENTAL CLAIMS

 

Self-Regulation

 

  • Code for Environmental Advertising; Special Advertising Code, Section B: Dutch Advertising Code NL / EN
  • SRC Check: Environment and Sustainabilit: NL

 

The Dutch Advertising Code: Environmental advertising

 

  • 1. Applicability. This Code applies to all environmental claims, in other words, to all advertising messages referring implicitly or explicitly to environmental factors connected with the production, distribution, consumption or waste processing of goods, or with related services, hereinafter known collectively as 'products'). Explanation of Article 1 
  • 2. No misrepresentation. Environmental claims shall contain no statements, pictures or suggestions that may mislead the consumer concerning environmental aspects of the products recommended or the contribution of the advertiser to maintaining and promoting a clean and safe environment in general. Explanation of Article 2 
  • 3. Demonstrability. All environmental claims shall be demonstrably correct. The burden of proof rests with the advertiser. The more absolute the formulation of the claim is the more stringent are the requirements with respect to evidential material Explanation of Article 3 
  • 4. Constituent parts and aspects. Should environmental claims relate exclusively or virtually exclusively to particular constituent parts or aspects of the products recommended, this limitation shall be stated clearly
  • 5. Absence or reduction of constituent parts An environmental claim that relates to the absence or reduction of constituent parts that are environmentally harmful is permissible only in the following cases:
     
    • If any replacement parts are less environmentally harmful and
    • if no wrongful assertion or suggestion is made that comparable products do possess these environmentally harmful constituent parts
       
  • 6. Comparisons. This article was withdrawn as of 1 October 2000
  • 7. Designations and symbols. Environmental designations and symbols shall not be used unless the origin of the designation or symbol is clear and no confusion can arise on the meaning of the designation or symbol. Explanation of Article 7 
  • 8. Scientific works Quotations from, and reference to scientific works shall be representative and verifiably correct. Should the scientific works not be generally accessible, the advertiser shall submit such works on request when a complaint is handled
  • 9. Testimonials. Testimonials used in environmental claims shall be based on the expertise of the person or body giving them. Explanation of Article 9 
  • 10. Waste processing, collection and recycling Environmental claims that relate to (separate) refuse collection and/or waste processing are permissible only if the recommended method of collection or processing is sufficiently available to the target group for which the environmental claim is intended. Environmental claims that relate to the recycling of products or parts of products are permissible only if a sufficient proportion of the recommended products or parts are actually recycled. Explanation of Article 10 
  • 11. Environmentally unfriendly behaviour Advertising messages shall not set as an example environmentally unfriendly behaviour that is avoidable, nor shall such behaviour be encouraged. Explanation of Article 11 
  • 12. Government rules. Notwithstanding the provisions of the paragraphs 1 through 11, environmental claims are permissible if they comply with specific advertising rules issued by government authorities in connection with environmental issues. Explanation of Article 12: this article is intended to prevent the accumulation of rules. The Code no longer applies if the government has introduced specific rules concerning advertising on environmental matters

 

 

SRC Check: Environment and sustainability

 

The SRC are the Self-Regulatory Organisation in The Netherlands. The ‘Check’ system has recently been introduced, and helps guide agencies and advertisers through the various Codes. It has not yet been formally translated. The extracts below have been translated by GRS, the owners of this website. As is always the case, the applicable rules are anyway those in the original Dutch. The file here is the full Check section on Environment and sustainability. Read it if you want further background and help on environmental claims:

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

The original:

http://www.checksrc.nl/check/milieu_en_duurzaamheid/

 

Adjudication: File No. 2017/00812; 20/12/2017

Link no longer active; summary below

 

  • Coca-Cola published an ad “Our packaging is 100% recyclable”
  • Greenpeace filed a complain claiming the advertising was misleading, in violation of Arts 2,3, and 10 of the Environmental Code, and overstating something that was not unique (PET bottles are always 100% recyclable)
  • Also that CC was inferring that its bottles were 100% recycled, and that the recyclability of the packaging was of little value in practice because much packaging isn't recycled
  • The complaint was dismissed. The strapline "Our packaging is 100% recyclable" was not a suggestion by Coca-Cola of any positive differentiation from its competitors. Coca-Cola was not suggesting that its packaging was made entirely from recycled materials, as consumers appreciate the difference between recyclable and recycled
  • The Committee ruled that there were sufficient facilities available for recycling Coca-Cola packaging, so this was not simply a theoretical possibility under Article 10
 
 

ACM Sustainability claims guidelines (January 2021)

 

ACM Is the Dutch consumer and markets authority, a stautory body. This is a significant document from an organsiation empowered to take action against companies they consider to be in breach. The linked document contains some explanations of the core 'rules of thumb' below, the legal context and some relevant cases

 

 

  • Rule of thumb 1: Make clear what sustainability benefit the product offers
  • Rule of thumb 2: Substantiate your sustainability claims with facts, and keep them up-todate
  • Rule of thumb 3: Comparisons with other products, services, or companies must be fair
  • Rule of thumb 4: Be honest and specific about your company’s efforts with regard to sustainability
  • Rule of thumb 5: Make sure that visual claims and labels are useful to consumers, not confusing

 

 

EU guidance

 

  • EU Compliance Criteria on Environmental Claims 2016 EN. This advice is not legally binding, but fed into the revision of the Commission Guidance on the application of the UCPD (Section 5.1 Environmental Claims)
  • EU Commission Guidelines for making and assessing environmental claims Dec 2000 EN. The guidelines, which are consistent with the international standard ISO 14021-1999, contain references to environmental claims that should be deemed misleading. Now revised by ISO 14021:2016 (see below)
 

 

Comparisons

 

Comparative environmental claims should be assessed under the criteria from the Directive on Misleading and Comparative Advertising MACAD Article 4 / Article 194a Book 6 Civil Code EN/ Article 13 Dutch Advertising Code (EN). These criteria apply to advertising that compares the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things:

 

  • Not be misleading within the meaning of the UCPD
  • Compare goods or services meeting the same needs or intended for the same purpose (usually interpreted to mean that the comparison should refer to the same product category)
  • Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

 

 

ISO Environmental labels and declarations

 

The ISO (International Organisation for Standardisation) 14020 series of environmental standards establishes general and specific requirements for environmental claims and the criteria for the evaluation and verification of claims. Refer also to the WikiRegs International tab.  Full information here:

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

 

 

 

 

................................................................................

International

SECTION B

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

Includes key legislation and ICC framework
Includes key legislation and ICC framework
 
  1. THE LAW 


2.1. General provisions from the Unfair Commercial Practices Directive  (UCPD)
2.2 Specific pricing measures 
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social 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. 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”)
 

Use of technical/ scientific data and terminology (Art. 9)

 

  • Marketing communications should not
     
  • misuse technical data, e.g. research results or quotations from technical and scientific publications
  • present statistics in such a way as to exaggerate the validity of a product claim
  • use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity

 

 

Use of 'free' and 'guarantee' (Art. 10)

 

  • The term "free", e.g. “free gift” or “free offer”, should be used only
     
    • where the offer involves no obligation whatsoever; or
    • where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer
       
  • Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that
  • The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal
  • Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not
  • The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous

 

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

 

 

Denigration (Art. 12)

 

  • Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule

 

 

Testimonials (Art. 13)

 

  • Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
  • Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used

 

 

Portrayal or imitation of persons and references to personal property (Art. 14)

 

  • Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved

 

 

Exploitation of goodwill (Art. 15)

 

  • Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution
  • Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent

 

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time

 

 

Safety and health (Art. 17)

 

  • 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
  • Instructions for use should include appropriate safety warnings and, where necessary, disclaimers
  • Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk
  • Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary
  • Such health and safety warnings should be made clear by the use of pictures, text or a combination of both

 

 

 

  • An 'environmental' claim is defined in the ICC Code as 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 labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)

 

 

D1. Honest and truthful presentation

 

  • Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge
  • Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry
  • An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments
  • Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made
  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling

 

 

D2. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence
  • Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology)
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence

 

 

D3. Superiority and comparative claims

 

  • Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose
  • Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative
  • Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging

 

 

D4. Product life-cycle, components and elements

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis
  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code

 

 

D5. Signs and symbols

 

  • Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification

 

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described

 

 

D7. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23)

 

 

 

Additional guidance

 

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim.

 

The ICC Framework for Responsible Environmental Marketing Communications. Included in the Framework is a checklist aimed at those developing marketing communications campaigns around environmental claims, and a chart that provides an easy reference to relevant Code provisions, Chapter D principles, and interpretations and comments on specific current issues related to environmental marketing

 

  • Appendix I: Environmental Claims Checklist; factors that should be considered when developing marketing communications that include an environmental claim
  • Appendix II

 

  • Summary of the General Provisions of the Consolidated ICC Code and those outlined in Chapter E on environmental claims, supplemented by additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.
  • Guidance on use of selected specific environmental claims often appearing in marcoms 

 

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

  • Special care should be taken in marketing communications directed to or featuring children or teens
     
    • Such communications should not undermine positive social behaviour, lifestyles and attitudes
    • Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them
    • Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them

      For rules on data protection relating specifically to children’s personal data see article 19

      For other specific rules on marketing communications with regard to children:

       
    • with respect to direct marketing and digital marketing communications see chapter C, article C7
    • within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications

 

 

18.2. Inexperience and credulity of children

 

Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:

 

  1. When demonstrating a product’s performance and use, marketing communications should not
     
    1. minimise the degree of skill or understate the age level generally required to assemble or operate products
    2. exaggerate the true size, value, nature, durability and performance of the product
    3. fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described
       
  2. While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
  3. Marketing communications directed to children should be clearly distinguishable to them as such
 

 

18.3. Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. 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

 

 

18.4. Social values

 

  • Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect
  • Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values
  • Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them
  • Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget
  • Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved

 

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page 

 

 

Applicable Self-Regulation and legislation 

 
  • ICC Framework for Responsible Food and Beverage Marketing Communications here
  • The EU Pledge, enhanced July 2021 effective Jan 2022
  • Regulation 1924/2006 on nutrition and health claims made on foods
  • Regulation 432/2012 establishing a list of permitted health claims on food 
  • Regulation 1169/2011 on the provision of food information to consumers
  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page of this website 

 

 

Applicable Self-Regulation and legislation 

 

 

 

Legislation 

 

Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

 

  1. it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages
  2. it shall not link the consumption of alcohol to enhanced physical performance or to driving
  3. it shall not create the impression that the consumption of alcohol contributes towards social or sexual success
  4. it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts
  5. it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light
  6. it shall not place emphasis on high alcoholic content as being a positive quality of the beverages

 

 

 

2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC

Article 6. Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

(a) the existence or nature of the product

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

(e) the need for a service, part, replacement or repair

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions

(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face

 

2.   A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

 

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
 

(i) the commitment is not aspirational but is firm and is capable of being verified, and

(ii) the trader indicates in a commercial practice that he is bound by the code

 

 

Article 7. Misleading omissions

 

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

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

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

1. Claiming to be a signatory to a code of conduct when the trader is not

2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation

3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have

4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds 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 equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

9. Stating or otherwise creating the impression that a product can legally be sold when it cannot

10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer

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

13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not

16. Claiming that products are able to facilitate winning in games of chance

17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations

18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not

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

 

 

Aggressive commercial practices

 

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC

28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

  • there is no prize or other equivalent benefit, or
  • taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

2.2.1. Article 3 (4) of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

(a) 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;

(b) unit price shall mean 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 or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

Article 3

 

1.  The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.

2.   Member States may decide not to apply paragraph 1 to:

 

  • products supplied in the course of the provision of a service
  • sales by auction and sales of works of art and antiques

 

3.   For products sold in bulk, only the unit price must be indicated

4.   Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

1.   The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited

2.   The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

1.   Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion

2.   With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

 (d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

 

Article 7

Misleading omissions

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

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

 

Annex I

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds 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 equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product ('bait and switch')

 

 

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2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Content rules excluding Alcohol (see pt. 1.5 above) in audiovisual commercial communications

 

 

Article 9

 

  1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited
  2. audiovisual commercial communications shall not use subliminal techniques
  3. audiovisual commercial communications shall not

 

  1. prejudice respect for human dignity
  2. include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. encourage behaviour prejudicial to health or safety
  4. encourage behaviour grossly prejudicial to the protection of the environment

 

  1. all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited
  2. audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

  1. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 (see pt. 1.5 above)

 

The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

 

CONTENT, CLEARANCE & SCHEDULING 

 

  • The Content rules set out in Section B - both the Sector and the General rules - apply, except those that identify specifically non-broadcast requirements. Principal general rules are from the DAC
  • Pre-clearance of Alcohol advertising is mandatory for TV and radio and must be requested at STIVA, at advies@stiva.nl; advice is non-binding
  • Alcohol advertising, tele-shopping, and product placement are prohibited between 06h00/6am and 21h00/9pm (Art. 2.94 Media Act)
  • No Alcohol advertising on TV and radio immediately before, during, or immediately following programmes whose audience comprises more than 25% minors, according to viewer or listener figures generally accepted in the market (Art. 22, Alcohol Advertising Code)
  • Alcohol advertising is prohibited on youth broadcasting stations (Art. 23, para 1, Alcohol Advertising Code)

 

 

RESPONSIBLE CONSUMPTION MESSAGE

 

http://stiva.nl/en/alcoholcode/1506-2/educational-slogan/

 

  • Alcohol advertising must include an educational slogan ‘Geen 18, geen alcohol’ ('Not 18, no alcohol.’) This can be used in combination with the other established message ‘Geniet, maar drink met mate’ (‘Enjoy, but drink in moderation’)
     
  • Font: Arial Italic 
  • Font size: with an aspect ratio of 16:9 – standard broadband ratio - the slogan should be shown in font size 26
  • Duration: the slogan shall be visible for at least 5 seconds. In tag-ons and tag-forwards the educational slogan shall be visible for 5 seconds as well. If the tag-on or tag-forward is shorter than 5 seconds, then the slogan has to be visible for the entire duration of the communication
  • Position: horizontal at base of the screen in the ‘title safe area’ (or ‘text safe’)
  • Layout: the slogan shall be clearly distinguishable from the background colour with as much positive (black) or negative (white) as possible
  • Timing: the slogan shall not be visible simultaneously with a pack-shot, disclaimer or pay-off. Furthermore, the slogan has to be placed sufficiently separated from the laid-out body text, so as to attract sufficient attention

 

 

PUBLIC CHANNELS (Media Act - NL)

 

  • STER (Stichting Ether Reclame) http://www.ster.nl/ Foundation for Broadcast Advertising is the Independent agency handling advertising exclusively on Netherlands Public Broadcasting's television, radio and online outlets. Advertising rules for public broadcasters apply to all their media services including, for example, websites or media services on demand (Art 2.98)
 

 

Product placement

 

  • Prohibited on all public channels

 

Sponsorship

 

Nederland 1, 2, & 3; shared by public broadcasters (Section 2.5.3, Articles 2.106, 2.107, 2.108). CvdM Media Authority policy on sponsorship in public broadcasting:

https://www.cvdm.nl/regelgeving/beleidsregels-cvdm/beleid-ten-aanzien-van-alle-publieke-media-instellingen/

 

  • No (drinks) sponsorship in programmes with an audience of more than 25% children under 12, or in news programmes
  • Where drinks sponsorship is permitted, the Responsible Consumption Message/ Educational Slogan must be shown. See adjudication
  • The rules that should be followed by all product sectors, Alcohol included, are shown under the General tab below

 

 

PRIVATE/ COMMERCIAL CHANNELS

 

The 2008 Media Act sets the following requirements on programming provided by commercial media service providers (incorporates TV and radio)

 

 

Product placement

 

  • Alcohol advertising, tele-shopping, and product placement are banned between 06h00/6am and 21h00/9pm (Art. 2.94 Media Law)
  • After 2100h/9pm and before 0600h/ 6am; only in films, series, sports, and light entertainment programmes 
  • See the general rules below for provisions that should be followed by all sectors, Alcohol included

 

 

Sponsorship

 

  • Sponsorship between 06h00/6am and 21h00/9pm may only mention the company name and/ or logo
  • After 21h00/9pm or before 06h00/6am, mentions may include name, logo or other characteristics, but selling messages are not allowed
    (Art. 3.16 Media Act)

 

 

The Channel rules shown under the General tab below apply to all product sectors, Alcohol included

 
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General

 

KEY RULES AND SOURCES 

 

  • The Content rules shown in our earlier Section B apply to these channels; the principal source of rules is the Dutch Advertising Code (DAC; EN)
  • The DAC is the official repository for content rules transposed from the AVMS Directive; under the terms of the (2021 amended) Media Act 2008 (NL) articles 3.6 and 2.92 for commercial and public broadcasters respectively, broadcasters are required to be affiliated with the DAC
  • The latest English version of the DAC does not reflect the amendments to content rules, albeit not really  significant in this context, that Directive 2018/1808 provided to the AVMS Directive; content amends to the Directive are shown here
  • The principal channel  (i.e. placement) rules in this context are from the Media Act 2008 implementing aspects of the AVMS Directive and its amendment Directive 2018/1808, e.g. rules on sponsorship and product placement 
  • There is some uncertainty around the Act’s 2020 provisions transposed from the amending Directive, the purpose of which was to recognise and address a media landscape shaped by ‘the ongoing convergence of television and internet services’ (recital 1, 2018/1808 Directive). This uncertainty manifests itself especially with regard to Influencers/ vlogging, as they can fall under the definition of a ‘media service on demand’. See this helpful piece from Field Fisher Netherlands here and a significant article from the DDMA (Data Driven Marketing Association of the Netherlands) counsel here (NL)
  • Meanwhile, the Dutch Media Authority (CVDM; link is to the page on the amended Media Act) supervises compliance with the Media Act 2008, issuing regulations/ guidelines related to the Act's requirements. These are linked below in their respective contexts and for our (advertising) purposes address principally product placement and sponsorship, essentially unchanged in the amended Media Act, in part because these elements are unchanged in the revised Directive
 
 

COMMERCIAL CHANNELS 

 

Incorporates TV and Radio and On-demand

 

  • Arts 3.6 - 3.14 Media Act 2008 sets out the base rules for advertising/ teleshopping, 3.15–3.19 for sponsorship and 3.19a-c for product placement 
  • Dutch Media Authority (CVDM) regulations:

 

CVDM Policy on advertising, commercial media organisations 2012 (EN)

CVDM Policies sponsoring commercial media organisations 2012 (EN)

CVDM regulation on product placement by commercial media institutions 2014 (EN)

 

 

PUBLIC CHANNELS 

 

Summary

 

STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Public Broadcasting's television, radio and online outlets. Advertising rules are applicable to all their media services including, for example, websites or media services on demand (Art. 2.98 Media Act). STER is affiliated to the SRC self-regulatory advertising authority and is legally obliged to observe the Dutch Advertising Code (Art. 2.92 Media Act)

 

  • Advertising is permitted, but with less frequency than on commercial channels
  • Product placement is prohibited for public broadcasting services (Art. 2.88b (3b))
  • Sponsorship is allowed in public broadcasting services under strict conditions, limited to, for example, arts and sports programmes (Arts 2.107-2.108)
  • As with commercial broadcasting, rules are a combination of requirements from the Media Act and the Media Authority’s (CVDM) regulations:

 

CVDM Policy rules on advertising for public media institutions 2019 (NL) (EN)

CVDM Policy rules for sponsorship, public media institutions 2018 (NL) (EN)

 

 

 

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International

 

 

Applicable Self-Regulation and legislation

 
  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; provisions shown below 

 

 

Sponsorship (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

Legislation key clauses

 

Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content

 

 

Article 9

 

1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
  2. Audiovisual commercial communications shall not use subliminal techniques
  3. Audiovisual commercial communications shall not:

 

  1. Prejudice respect for human dignity
  2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. Encourage behaviour prejudicial to health or safety
  4. Encourage behaviour grossly prejudicial to the protection of the environment

 

  1. All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
    shall be prohibited
  2. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below

 

2.  Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

4.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5.  Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

 

CINEMA

 

  • Content rules set out in our earlier Section B apply - both the Sector-specific rules and the General rules, the latter shown under the General tab in Content Section B. Principal general rules are from the DAC
  • Advertising for alcoholic beverages may not be shown in Cinemas  prior to children’s movies, family movies with a synchronised translation (dubbed) in Dutch or movies shown during a children’s matinee or in school viewings. In respect of all other movies: alcohol advertising may only be shown if no more than 25% of the audience are minors (Art. 28, Para 2, Alcohol Advertising Code - EN)
  • Pre-clearance of drinks commercials is mandatory Clarification Mandatory pre-clearance is is for STIVA members only, but a good idea for all alcohol advertisers for cinema and must be requested at STIVA, the Foundation for Responsible Use of Alcohol, and ‘owners’ of the Code: e-mail advies@stiva.nl. Cost is €350 ex VAT 
  • Alcohol advertising must include an educational slogan ‘Geen 18, geen alcohol’ ('Not 18, no alcohol.’) This can be used in combination with the other established message ‘Geniet, maar drink met mate’ (‘Enjoy, but drink in moderation’). Formatting/ positioning etc. as per TV above

 

 

PRINT

 

Press, magazines, promotional literature, e.g. leaflets, brochures, etc.

 

  • Content rules set out in our earlier Section B apply - both the Sector-specific rules and the General rules, the latter shown under the General tab in Content Section B
  • Advertising for alcoholic beverages is prohibited in magazines that specifically target minors

 

 

 

Responsible Consumption Message

 

  • Article 23. The requirements for the use of the educational slogan ‘Geen 18, geen alcohol’ ('Not 18, no alcohol’) and ‘Geniet, maar drink met mate’ (‘Always drink in moderation') are for advertising in newspapers, magazines, periodicals, flyers and posters in or on which an alcoholic beverage, brand or manufacturer advertise; formatting per below (Art. 33 STIVA Alcohol Code)

 

  • Font: Arial Italic
  • Format. Dependent on the dimensions of the communication. For paper sizes up to A5, the headline must be displayed in a size similar to the body text of the communication. For larger paper sizes, the following requirements apply to the font size of the slogan:

 

  • A5 (210 x 148 mm): size 9
  • A4 (210 x 297 mm): size 12
  • A3 (420 x 297 mm): size 16
  • A2 (420 x 594 mm): size 20
  • A1 (841 x 594 mm): size 24
  • A0 (841 x 1189 mm): size 30
  • Abri/Mupi *(1160 x 1710 mm): size 150

    *These are bus shelters/ illuminated advertising street columns; link is to an example
    For deviating (different) paper sizes larger than A4, font size should be per the paper size closest to the standard sizes stated above
     
  • Position: the slogan must be sufficiently separate from the body text and positioned horizontally so that it attracts sufficient attention
  • Layout: the slogan must clearly contrast with the background colour, making use of positive (black) and negative (white) as much as possible

 

 

 

OUTDOOR

 

  • Content rules set out in our earlier Section B apply - both the Sector-specific rules and the General rules, the latter shown beneath the General tab in Content Section B
  • Advertising for alcoholic beverages is prohibited on billboards, on scaffolding banners, in bus shelters and on multi-purpose advertising installations located within the sight of rehab clinics or educational institutions of which the majority of the visitors are minors and when located along motorways or other roads outside of built-up areas (Art. 28, para 1 Alcohol Advertising Code - EN) Note: SRC have confirmed that this means that posters would be permitted in urban areas, though not on motorways that might run through them, as long as they are not in sight of rehab clinics or educational institutions/ schools
  • In the case of drinks advertising displayed on a vehicle, the vehicle must also display a clearly legible warning against drinking and driving. Excluded are vehicles used for the transportation of alcoholic beverages, such as trucks, Tapwacht (a service to the drinks trade) vehicles, and hospitality technical services (Art. 18, Para 2 Alcohol Advertising Code)
  • From 2019 no new contracts for alcohol advertising in the grounds of amateur sport clubs. Existing signs need to phase out before the end of 2022. Advertising for non-alcoholic beer remains an option; this is part of the 'prevention agreement made between STIVA and the Department of Health 
 
 

 

Responsible Consumption Message

 

  • The requirements for the use of the educational slogan ‘Not 18, No alcohol’ and ‘Always drink in moderation' include posters - billboards, swanks (building wraps), bus shelters
  • The formatting requirements are shown in the print section above, and here

 

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General

     

  CINEMA

 

  • Content rules set out in our earlier Section B apply in Cinema; the key set of rules is the Dutch Advertising Code  
  • Under this ‘General’ tab, the cinema medium does not attract specific channel (i.e. placement) rules. Some regulation-sensitive product categories, such as Alcohol, are subject to cinema-specific rules. See Sector tabs on the WikiRegs home page
  • SAWA is the Screen Advertising World Association: http://www.sawa.com/.

 

 

PRINT

 

  • See Direct Postal Mail entries later in this Channel section for mailshots/ print advertising in mail
  • Content rules set out in our earlier Section B will apply; the key set of rules is the Dutch Advertising Code  
  • Under this ‘General’ tab, the print medium does not attract specific channel rules. Some regulation-sensitive product categories, such as Cars and Alcohol, do have print-specific requirements. See Sector tabs on the WikiRegs home page

 

 

OUTDOOR

 

  • Content rules set out in our earlier Section B will apply
  • Under this ‘General’ tab, the Outdoor medium does not attract specific channel rules. Some regulation-sensitive product categories, such as Alcohol and Gambling, do carry Outdoor-specific requirements. See Sector tabs on the Home Page

 

 

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

 

 

 

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International

 

Applicable Self-Regulation and legislation 

 

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

 

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

 

 

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').

 

 

Legislation key clauses 

Annex I of the UCPD 

 

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

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

 

 

Article B12 Media sponsorship

 

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

 

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3. Online Commercial Communications

Sector

 

CONTEXT

 

This section provides the broad picture for the commercial digital environment. More specific channel rules, such as Owned websites, OBA, Email etc. follow below. As the boundaries online can be less clear, and as space online is often advertiser-owned, identification of advertising is important as it's subject to the rules in Owned and (some) Earned space as well as Paid. Advertising is defined as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as Advertising.’ (Art. 1 Dutch Advertising Code (EN), Section A)

 

 

STANDARD RULES 

 

  • Content rules set out in our earlier Section B apply online - both the Sector-specific rules and the General rules, the latter shown under the General tab in Content Section B. See individual channels for application by medium
  • The General channel rules will also apply to these channels. Many of them carry statutory Consent and Information requirements, recently joined by the GDPR lawful processing rules. Details are under the General tab(s) below

 

 

Responsible Consumption Message 

 

  • The requirements for the use of the educational slogan ‘Geen 18, geen alcohol’ ('Not 18, no alcohol’) and ‘Geniet, maar drink met mate’ (Enjoy, but drink in moderation’) apply to all advertising identified here including online/ digital. Video expressions must be formatted per the rules shown in our earlier TV and Radio section
  • Requirements cover all types of web banners except those equal to or less than 120 pixels wide and 60 pixels high (Art. 35, STIVA Alcohol Code)

 

  • Slogan Font: Arial Italic 
  • Slogan Format: Font Size 11 
  • Slogan position: the slogan must be sufficiently insulated from the typeset body text and placed horizontally, so that it attracts sufficient attention
  • Slogan Layout: The slogan must clearly contrast with the background colour, making use of positive (black) and negative (white) as much as possible

 

 

ALCOHOL MARCOMS ONLINE 

 

From the Alcohol Advertising Code (EN); online communications rules

 

 

Article 11 Minors

 

  • Advertising for alcoholic beverages may not portray individuals who are or appear to be evidently younger than 18. For advertising communications in which use is made of enacted situations with scripts and models hired by or on the instructions of the advertiser, no individuals who are or who evidently appear to be younger than 25 may be portrayed

 

Explanation article 11

 

  • On social network sites like Facebook and other sites with photographs showing individuals who have not been hired by the advertiser, in which the content of the site is managed by or on behalf of the advertiser and over which the advertiser has editorial control, the individuals portrayed must be 18 or older

 

 

Article 23 Minors; youth channels

 

  • Advertising for alcoholic beverages is prohibited on websites that specifically target minors
  • STIVA and the Dutch Brewers agree not to buy social media profiles younger than 18; this is part of the 2019 'prevention agreement' made between STIVA and the Ministry of Health 

 

Age check

 

  • With websites where the brand name or trade name of the alcoholic beverage is part of the domain name, visitors must be asked via an age check on the home page or prior to the first page on the website being visited whether they are 18 or older. The age check must at least consist of entering or clicking on the visitor’s date of birth (day/month/year). Access to the website (or page if the visitor is directed there) may only be provided if the visitor has indicated that he or she is at least 18 at the time of the age check (Art.25 Alcohol Advertising Code)

 

 

Article 24 Active internet marketing

 

Definition: advertising that is actively distributed or enabled on and/ or via the Internet by the advertiser, or completely or partially on his behalf. Active Internet Marketing includes, among other things: advertising actively sent by the advertiser to selected recipients; advertising on or via an Internet platform, including a social media platform, by the advertiser, as well as advertising by a third party completely or partially on behalf of the advertiser, in so far as this involves an Internet platform over which the advertiser has some degree of control of or influence on the display or the content of the communication


 

Para 2 Age indication in image advertising via the Internet

 

Advertising originating with the advertiser that is wholly or partially compiled of still or moving images and that is intended for distribution via the Internet, by the advertiser or otherwise, must clearly display the educational slogan referred to in Article 33 (2)

 

 

Para 3 Communications on an Internet platform controlled by the advertiser
 

  1. Advertising placed on an Internet platform controlled to some extent by the advertiser must satisfy the Dutch Advertising Code irrespective of the party placing it

  2. If a party other than the advertiser places advertising on the aforementioned platform:
     

    • The advertiser must also, in addition to paragraph 3 (a), have ascertained that the person placing the advertising is at least 18, unless:
    • This person must have stated that he or she is at least 18
       
  3. If the statement referred to in paragraph 3(b), second point, is lacking and/ or in case there is doubt as to whether the person is at least 18, the advertiser shall ensure that this person cannot place communications. If no selection or access control is possible in respect of an Internet platform, the advertiser must indicate at a clearly observable spot that the content of and placing on that Internet platform is meant exclusively for persons who are at least 18

 

Para 4 Communications distributed by the advertiser

 

With active Internet marketing in which the recipient can be selected, including but not limited to advertising via email, posts on a social media account of a party other than the advertiser or direct marketing based on digital profiles linked to a cookie:

 

  1. A minimum age of 18 must be applied as effective selection criterion, or another selection criterion must be applied from which this minimum age ensues, unless:
  2. The recipient has stated to be at least 18
  3. If the statement referred to in paragraph 4 (b) is lacking, the advertiser shall ensure that no more than 25% minors are reached as provided in Article 21

 

Para 5. Social media
 

Before making advertising comprised of placing or responding to a communication on a social media account other than that of the advertiser, the advertiser must have ascertained that the owner of that social media account is at least 18. If this has not proven to be the case or if it is impossible to do so, placing a communication is prohibited

 

 

Explanation article 24
 

  • “Liking” the advertiser on any post, status, photograph or other communication by third parties or “re-tweeting” is currently prohibited for that reason unless it can be demonstrated that the owner of the relevant social media account is at least 18. For example, the account may be the official account of a company or a well-known natural person.
  • If a natural person is involved who is not well-known, the advertiser must be reasonably able to determine, using information on his profile page, that the person involved is 18 or older.

 

 

Article 25 Websites

 

  • With websites where the brand name or trade name of the alcoholic beverage is part of the domain name, visitors must be asked via an age check on the home page or prior to the first page on the website being visited whether they are 18 or older. The age check must at least consist of entering or clicking on the visitor’s date of birth (day/month/year). Access to the website (or page if the visitor is directed there) may only be provided if the visitor has indicated that he or she is at least 18 at the time of the age check

 

 

GENERAL RULES  

 

  • The rules on the protection of personal data (as set down in the Personal Data Protection Act, GDPR, the Telecommunications Act and the Distribution of Advertising by Email Code, among others) apply to all product sectors, Alcohol included. Rules from these are shown under the General tab below
  • Also applicable to all sectors, but perhaps particularly relevant to Alcohol, is the 2019 Social Media and Influencer Advertising Code (EN). This addresses e.g. Influencer Marketing and how and where that should be made to be recognisable as such, showing example solutions for individual platforms

 

 

IARD

 

The International Alliance for Responsible Drinking (IARD) publishes Digital Guiding Principles (DGPs) to supplement their Guiding Principles, shown in our Section E under Industry Guidelines. The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” Members are hereIn April 2020, IARD published How to add safeguards to social media marketing; In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

 

 

SOCIAL MEDIA 

 

Alcohol Advertising policies from Social Media platforms

TikTok is not included in the above; their rules are here

 

 

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General

 

CONTEXT 

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment The DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ 

 

The impact of GDPR is shown under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors

 

 

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  • Per the introduction above, online advertising is subject to the rules set out in Content Section B. The key set of rules is from the Dutch Advertising Code. A significant issue in online’s less structured environment is the identification of advertising, hence in this case opening with recognisability rules, but if it’s advertising, it’s in remit and therefore subject to all the rules. 

 

 

Recognisability; Self-Regulation

 

  • Article 11.1 DAC: An advertisement shall be recognisable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended
  • SRC Check Recognisability NL: on the Internet, an advertisement must be easily identifiable as such. When content on websites is specifically associated with a particular product, advertising will usually be involved. Under no circumstances may the consumer be misled, for example by giving the impression that it is an ‘official‘ newsflash/ message. See case 2011/00311 

 

 

Recognisability: legislation

 

  • Article 15e (1) Book 3 Civil Code from the E-Commerce Directive 2000/31/EC: Where commercial communications form part of, or constitute, an information society service Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the service without parties having been simultaneously present at the same placethe one who has instructed to use this way of communication must ensure that: 

 

  1. The commercial communication is clearly recognisable as such
  2. That his identity can be deduced from the commercial communication
  3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them
  4. That unrequested commercial communication, sent electronically, is clearly and unambiguously recognisable as such as soon as it is received by the recipient

 

 

 Information requirements 

 

  • Dutch Advertising Code Arts 8.2, 8.3c and 8.4 for specific 'invitation to purchase' Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase requirements 
  • SRC Check Information Obligations NL. The link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. We have also translated requirements by Group or ‘Column’, as below:

 

  1. General advertising, without price/ product
    http://www.g-regs.com/downloads/NLGenSRCCheckCol1.pdf
  2. Non digital offers (not specific to this context but to show how the versions differ)
    http://www.g-regs.com/downloads/NLGenSRCCheckCol2.pdf
  3. Digital offer (webshop)
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pdf
  4. Medium/ product
    http://www.g-regs.com/downloads/NLGenSRCCheckCol4b.pdf

 

 

Other Self-Regulatory rules by channel and re Content creators

 

  • Social Media and Influencer Advertising Code EN / NL. This code, amended February 2019 for more specific Influencer marketing rules, sets out terms so that advertising via bloggers, vloggers and content creators generally, is clearly recognisable as such. It is set out under the Marketers’ Own Websites header following in this Channel Section C
  • SRC Checklist: Social Media NL; EN. Social Media information obligations SRC Check NL; Social Media recognisability SRC Check NL
  • Social Code: YouTube NL / EN The Code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority CvdM
  • The SRC published in January 2021 What are the rules for fair and transparent advertising on TikTok? (NL)
  • The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
 

 

 Information requirements from legislation

 

  • Art. 15d Book 3 Civil Code from the E-Commerce Directive 2000/31/EC: Accessibility of data and information. See the linked file for requirements or under the Marketers’ Own Websites header later in this Channel Section C. Note: the information must be made ‘directly, easily and permanently accessible.’

  • The Telecommunications Act NL / EN Article 11.7 implements the E-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent. See provisions from the linked files or under the email header later in this Channel Section C. If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors

  • Article 193e from Book 6 of the Dutch Civil Code on 'Invitation to Purchase' covers information requirements for this type of advertising. Provisions are almost word-for-word per the DAC article 8.4 referenced above,  as both sources derive from the UCPD 2005/29/EC

  • The Media Act (NL) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider

 

 

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International

 

 

CONTEXT

 

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

 

 

Applicable Self-Regulation, legislation, and guidance 

 

 

 

Legislation

 

  • Directive 2002/58/EC on privacy and electronic communications
  • Directive 2000/31/EC on electronic commerce

  • 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. Which channels are effected depends on how the directive is transposed in individual countries. Content rules, shown here, are not signifcantly changed anyway; changes are more to do with where those rules apply. The prudent view is probably that AVMS rules apply or will apply to audiovisual commercial communications online 

 

 

Self-Regulatory clauses 

 

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

 

C1 Identification and transparency

 

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

 

 

C2  Identity of the marketer

 

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

 

C7 Marketing communications and children

 

  • Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
  • Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
  • Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children

 

 

C10 Respect for the potential sensitivities of a global audience

 

  • Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Now repealed; GDPR applies 

 

Directive 2000/31/EC: Article 5

 

General information to be provided

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
     

(a) The name of the service provider

(b) The geographic address at which the service provider is established

(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner

(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register

(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority

(f) As concerns the regulated professions:
 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
 

  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here

 

EASA

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

  • Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
  • Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
  • Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
  • Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
  • Identifies forms of digital content which lie outside of SRO’s remit under all circumstances

 

 

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4. Cookies & OBA

Sector

 

COOKIES 

 

  • In the context of tracing/ tracking cookies, minors should be avoided: Article 10 of the Alcohol Advertising Code (EN) states ‘Advertising for alcoholic beverages may not specifically target minors’; while cookies aren’t advertising, any ‘Active Internet Marketing’* that includes minors is likely to fall foul of the Code; see Article 24 reference below under OBA 
  • *‘Active Internet Marketing’ is defined as advertising that is actively distributed or enabled on and /or via the Internet by the advertiser, or completely or partially on his behalf. It includes, among other things, advertising actively sent by the advertiser to selected recipients, advertising on or via an Internet platform, including a social media platform, by the advertiser, as well as advertising by a third party completely or partially on behalf of the advertiser, in so far as this involves an Internet platform over which the advertiser has some degree of control of or influence on the display or the content of the communication
  • See also Cookie rules for all product sectors, Alcohol included, under the General tab below. These set out statutory Consent and Information requirements  

 

 

 

OBA

 

  • OBA, like any other form of Alcohol advertising, is subject to the rules set out in our earlier Content Section B, both the Sector-specific and the General rules, the latter shown under the General tab in Section B
  • The principal source of general rules is the DAC
  • The ‘Educational slogan’ requirements apply; formatting rules here
  • Regarding Channel/ targeting restrictions, from Article 24 of the Alcohol Code linked above (Para. 4. Communications distributed by the Advertiser):
     
    • With active Internet marketing in which the recipient can be selected, including but not limited to advertising via email, posts on a social media account of a party other than the advertiser or direct marketing based on digital profiles linked to a cookie:
       
  1. A minimum age of 18 must be applied as effective selection criterion, or another selection criterion must be applied from which this minimum age ensues, unless
  2. The recipient has stated to be at least 18
  3. If the statement referred to in paragraph 4 (b) is lacking, the advertiser shall ensure that no more than 25% minors are reached as provided in Article 21
     
  • The general rules for OBA, including the self-regulatory programme managed by the EDAA, are below under the General tab. These should be observed by advertisers in all product sectors, Alcohol included

 

 

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General

 

COOKIES

 

  • Key Statutory Provision: Article 11.7a Telecommunications Act (TA) NL / EN implements article 5.3 of the e-Privacy Directive 2002/58/EC, amended by Directive 2009/136/EU, sometimes called the cookie clause
  • Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: some interpretation is that when cookies identify individuals, then GDPR lawful processing rules may apply (the above linked Telecoms Act clauses have been amended to reflect GDPR). Privacy issues should be reviewed with specialist advisors
 

 

Guidance

 

 

 

OBA

 

 

 

Self-Regulation

 

  • OBA, as with any other advertising, is ‘in remit’, i.e. subject to the DAC and the other rules set out in Content Section B
  • Refer to the International tab for details of the self-regulatory initiative for OBA, which is underpinned by the IAB Europe OBA Framework and the EASA Best Practice Recommendation. The European Interactive Digital Advertising Alliance (EDAA) is the non-profit organisation based in Brussels responsible for enacting key aspects of the self-regulatory initiative for Online Behavioural Advertising (OBA) across Europe
  • EDAA’s principal purpose is to licence the ‘OBA Icon’ to companies involved in Online Behavioural Advertising across Europe; The OBA Icon is a consumer-facing, interactive symbol that links consumers to an online portal, www.youronlinechoices.eu, where they can find easy-to-understand information on the practice of OBA as well as a mechanism for exercising informed choice; if they wish, consumers may ‘turn off’ OBA from some or all companies

 

 

 

 

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International

 

 

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

 

 

Article 29/EDPB Working Party documents

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 04/2012 on Cookie Consent Exemption here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
  • Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR here

 

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

 

 

Legislation

 

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

 

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

 

 

GDPR

 

  • The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules may apply. GDPR/ privacy issues should be overseen by legal advisors

 

 

2. OBA 

 

EDAA has published their latest European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

Applicable regulation

 

 

 

Application of notice and choice provisions

 

  • Any third party participating in OBA should adhere to principles of notice and user control as set out below
  • Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
  • The following guidance provides further clarification for how these principles apply to OBA

 

 

C22.1. Notice

 

  • Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
  • Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
  • Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices

 

 

C22.2. User control

 

  • Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)

 

 

C22.5. Data security

 

  • Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
  • Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent

 

 

C22.6 Children

 

  • Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent

 

 

C22.7. Sensitive data segmentation

 

  • In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

 

 

European Self-Regulatory programme for OBA

 

A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (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 the OBA Consumer Choice Platform - 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

 

 
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5. Emails & SMS

Sector

 

STANDARD RULES 

 

  • The rules in our earlier Content Section B apply to direct electronic communications. Principal source of rules is the DAC (EN)
  • See also Email rules for all product sectors, Alcohol included, under the General tab below. These set out statutory Consent and Information requirements. Note that GDPR lawful processing rules may apply in the event of processing personal data. Details under the General tab below
 
 

TARGETING

 

  • Article 10 of the Alcohol Advertising Code (EN) states ‘Advertising for alcoholic beverages may not specifically target minors’
  • From Article 24 of the Alcohol Code: With Active Internet Marketing in which the recipient can be selected, including but not limited to advertising via email (italics ours), posts on a social media account of a party other than the advertiser or direct marketing based on digital profiles linked to a cookie:

 

  1. A minimum age of 18 must be applied as effective selection criterion, or another selection criterion must be applied from which this minimum age ensues, unless
  2. The recipient has stated to be at least 18
  3. If the statement referred to in paragraph 4 (b) is lacking, the advertiser shall ensure that no more than 25% minors are reached as provided in Article 21

 

 

RESPONSIBLE CONSUMPTION MESSAGE

 

  • Any advertising for alcoholic beverages must show an educational slogan ‘Geen 18, geen alcohol’ ('Not 18, no alcohol.’) Article 33, Alcohol Code. Formatting requirements here do not specifically address email/SMS/MMS. If in doubt, consult advisors or STIVA or SRC and see below
  • Explanation Article 33: Displaying the educational slogan ‘Geen 18, geen alcohol’ is mandatory for advertising for alcoholic beverages on television, in cinemas, in print and in commercials for the Internet. In assessing complaints about the use (or lack) of the new slogan the efforts that the advertiser does (or did) to match its operations to the new slogan will be taken into account

 

 

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General

 

KEY RULES AND THEIR SOURCE 

 

  • Marketing communications via email/ SMS/ MMS are subject to the Content rules set out in Section B; the principal rules are from the Dutch Advertising Code
  • In this Channel rules context, the main regulatory issues are from Self-Regulation and legislation that deals with Consent and Information requirements. The Code linked above is comprehensive and reflects legislation closely, so the provisions below are largely Self-Regulatory, though there is a collection of statutory requirements at the base of this page
  • If data processing involves personal data (that which identifies individuals), then lawful processing rules from the GDPR may apply
  • If applicable (check with advisors), the core GDPR articles on Information to be provided to data subjects and their right to object are assembled here 

 

 

SELF-REGULATION

 

Email Code from Section B of the Dutch Advertising Code EN / NL. Key Points from the Code (below as EC):

 

  • Opt-in consent: e-mail advertising is in principle permitted if the recipient of the e-mail advertising has actively granted permission in advance to the database owner (1.3a EC)
  • Soft opt-in: E-mail advertising is also in principle permitted if the database owner has obtained the e-mail address within the scope of a sale to or donation by the recipient and is used for offering similar products or services (including asking for donations by idealistic or charitable institutions), as long as no use is made of the possibility to unsubscribe in the same way as meant in article 5 of this Code (the Right to Object). The obligation will not be met solely by including either a provision in the General Terms and Conditions or a privacy statement (1.1a EC)

 

Identification 

 

  • Advertising by e-mail must be clearly identifiable as such by layout, presentation, content or otherwise (Art. 2.1 EC)
  • The advertiser shall take care that the database owner identifies himself in each email in such a way that he is easily and actually accessible to the recipient of the e-mail by means of the contact data of the database owner. At least his name, postal address and contact data shall be specified or an active link shall refer to these data(Art. 2.2 EC) Note: Contact details also means phone number, from case 2017/00361 in which a name, address and email address was not considered sufficient
  • The database owner must include his label in the 'From' field. At the same time, his e-mail must contain an active reply-address in the Reply to- field, where a response will be received (Art. 2.3 EC)

 

 

The right to object

 

  • The advertiser must ensure that the recipient is given the opportunity, in each message, to object (to the database owner), free of charge and in a simple electronic way, to the use of his e-mail address for the distribution of advertising messages. (Art. 5.1 EC)
  • This right of objection must be made possible in a simple, clear and preferably uniform manner. The database owner must ensure that the request is actioned immediately (Art. 5.1 EC)
  • The recipient must be given the opportunity in every instance to opt-out - as per Art. 5.1 - of receiving advertising messages for the label, product, or service for which the e-mail address was compiled. The opt-out may cover several or all labels, products or services (Art. 5.2 EC)

 

Note: In the old B2B Email Code, opt-in was not required for Emails sent to generic addresses (i.e. info@ or sales@). No mention of this exemption in the new Email code. SRC (the Self-Regulatory Organisation for the Netherlands) state it no longer applies, meaning opt-in required for these addresses

 

 

LEGISLATION

 

As the Self-Regulatory Email Code is comprehensive, clauses from legislation are not spelt out in this section, but the key provisions are assembled here

 

  • The Telecommunications Act Article 11.7, which deals with Cookie regulation and establishes the opt-in principle from the E-Privacy Directive 2002/58/EC
  • Book 6 of the Civil Code carries the rules from the UCPD 2005/29/EC including misleadingness provisions and e.g. ‘invitation to purchase’ informational requirements (article 193e)
  • Articles 15d and 15e of Book 3 of the Civil Code also carry identification and informational requirements, in this case in the context of e-commerce, transposed from Directive 2000/31/EC 
  • If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors if uncertain

 

 

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International

 

 

 

Applicable Self-Regulation and legislation

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full Code linked above): Direct Marketing and Digital Marketing Communications
  • General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
  • Directive 2000/31/EC on electronic commerce
  • Directive 2002/58/EC on privacy and electronic communications
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 

 

General Provisions; refer to our earlier Section B or the linked ICC document for full provisions; of particular relevance below:

 

 

Article 19 ICC Code: Data Protection and Privacy

 

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

 

19.1 Collection of data and notice

 

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

 

 

19.2 Use of data

 

Personal data should be:

 

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

 

 

19.3 Security of processing

 

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

 

 

19.4 Children’s personal data

 

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

19.5 Privacy policy

 

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

 

 

19.6 Rights of the consumer

 

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

 

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

 

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

 

 

19.7 Cross-border transactions

 

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

 

 

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

 

 

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Legislation 

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Repealed; GDPR applies 

 

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Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name of the service provider
  2. The geographic address at which the service provider is established
  3. The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
  5. Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. As concerns the regulated professions

 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

  1. Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
  2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

  • Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient.
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves.

 

 
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EU Guidance Documents

 

  • Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
  • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
    http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
  • Opinion 15/2011 on the definition of consent here 
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
 
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6. Own Websites & SNS

Sector

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. Alcohol advertising is defined as: 'any public and/or systematic direct or indirect commendation of alcoholic beverages and non-alcoholic beverages in so far as these are commended for consumption in combination with alcoholic beverages by an advertiser or completely or partially on his behalf, either with or without the aid of third parties. Advertising is also understood to include the solicitation of services.' From General provisions Alcohol Advertising Code (EN) and Article 1, Dutch Advertising Code (EN), Section A

 

 

STANDARD RULES

 

  • Marketers' own advertising on their own websites will be subject to the rules set out in our earlier Content Section B - both the Sector-specific rules and the General rules, the latter shown under the General tab in Section B
  • Exemptions are not set out to any significant extent in the Alcohol Code. A useful reference in this context is EASA’s Digital Communications Best Practice Recommendation. In this document, UGC is exempted, for example, except when it has been endorsed by the marketer. The same principle applies to viral communications 

 

 

AGE-GATING

 

  • Article 25 of the Alcohol Advertising Code (EN); with websites where the brand name or trade name of the alcoholic beverage is part of the domain name, visitors must be asked via an age check on the home page or prior to the first page on the website being visited whether they are 18 or older. The age check must at least consist of entering or clicking on the visitor’s date of birth (day/month/year). Access to the website (or page if the visitor is directed there) may only be provided if the visitor has indicated that he or she is at least 18 at the time of the age check​

 

 

ARTICLE 24 Active Internet Marketing Definition Active Internet Marketing: advertising that is actively distributed or enabled on and/or via the Internet by the advertiser, or completely or partially on his behalf. Active Internet Marketing includes, among other things: advertising actively sent by the advertiser to selected recipients; advertising on or via an Internet platform, including a social media platform, by the advertiser, as well as advertising by a third party completely or partially on behalf of the advertiser, in so far as this involves an Internet platform over which the advertiser has some degree of control of or influence on the display or the content of the communication 

 

  • Paragraph 1: Additional Effect. In addition to the provisions of the Dutch Advertising Code, the provisions of this article apply to Active Internet Marketing
  • Paragraph 2: Age Indication in Image Advertising via the Internet. Advertising originating with the advertiser that is wholly or partially compiled of still or moving images and that is intended for distribution via the Internet, by the advertiser or otherwise, must clearly display the educational slogan referred to in Article 34 (2)
  • Paragraph 3: Communications on an Internet Platform Controlled by the Advertiser

 

  1. Advertising placed on an Internet platform controlled to some extent by the advertiser must satisfy the Dutch Advertising Code irrespective of the party placing it.
  2. If a party other than the advertiser places advertising on the aforementioned platform:
     
    • the advertiser must also, in addition to paragraph 3 (a), have ascertained that the person placing the advertising is at least 18, unless:
    • this person must have stated that he or she is at least 18
       
  3. If the statement referred to in paragraph 3 (b), second point, is lacking and/ or in case there is doubt as to whether the person is at least 18, the advertiser shall ensure that this person cannot place communications. If no selection or access control is possible in respect of an Internet platform, the advertiser must indicate at a clearly observable spot that the content of and placing on that Internet platform is meant exclusively for persons who are at least 18

 

  • Paragraph 4: Communications Distributed by the Advertiser. With Active Internet Marketing in which the recipient can be selected, including but not limited to advertising via email, posts on a social media account of a party other than the advertiser or direct marketing based on digital profiles linked to a cookie:
     
  1. a minimum age of 18 must be applied as effective selection criterion, or another selection criterion must be applied from which this minimum age ensues, unless
  2. the recipient has stated to be at least 18
  3. If the statement referred to in paragraph 4 (b) is lacking, the advertiser shall ensure that no more than 25% minors are reached as provided in Article 21
     
  • Paragraph 5: Before making advertising comprised of placing or responding to a communication on a social media account other than that of the advertiser, the advertiser must have ascertained that the owner of that social media account is at least 18. If this has not proven to be the case or if it is impossible to do so, placing a communication is prohibited

 

 

Explanation article 24

 

“Liking” the advertiser on any post, status, photograph or other communication by third parties or “re-tweeting” is currently prohibited for that reason unless it can be demonstrated that the owner of the relevant social media account is at least 18. For example, the account may be the official account of a company or a well-known natural person. If a natural person is involved who is not well-known, the advertiser must be reasonably able to determine, using information on his profile page, that the person involved is 18 or older

 

 

ARTICLE 11 MINORS

 

  • Advertising for alcoholic beverages may not portray individuals who are or appear to be evidently younger than 18. For advertising communications in which use is made of enacted situations with scripts and models hired by or on the instructions of the advertiser, no individuals who are or who evidently appear to be younger than 25 may be portrayed.
  • Explanation Article 11: On social network sites like Facebook and other sites with photographs showing individuals who have not been hired by the advertiser, in which the content of the site is managed by or on behalf of the advertiser and over which the advertiser has editorial control, the individuals portrayed must be 18 or older.

 

 

SOCIAL MEDIA 

 

 

 

CONSENT AND INFORMATION 

 

  • When communicating with consumers/ users in a commercial context, producers should be aware of statutory Consent and Information requirements. These are set out under the General tab below, as they apply to all product categories. GDPR lawful processing rules may apply in the event of processing personal data. Details under the General tab below

 

IARD

 

The International Alliance for Responsible Drinking (IARD) publishes Digital Guiding Principles (DGPs) to supplement their Guiding Principles (referenced in our Section E below, under Industry Guidelines). The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” In April 2020, IARD published How to add safeguards to social media marketingMembers are hereIn September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

 

 

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General

 

CONTEXT

 

The same principle that applies in Paid space also applies in Owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.

 

Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then the rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 

 

 SELF-REGULATION

 

  • The Dutch Advertising Code (EN) applies; in particular in this context Articles 8.2, 8.3c; Invitation to Purchase in relation to a distance contract, Article 8.4 (f-s). Article 11, Recognisable advertising
  • ‘SRC Check’ for Information Obligations NL. The preceding link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. The specific ‘column’ requirements for digital offers/ webshops are more formally translated here:
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pd
  • EASA’s Best Practice Recommendation Digital Marketing Communications establishes some exemptions in this context, such as User-Generated Content (unless endorsed by the marketer), under Section 2 of the linked document
  • ACM, the Authority for Consumers and Markets, and the Dutch Data Protection Authority AP, have combined to produce a Joint ruling on ‘Tell-a-friend’ systems on websites:
    autoriteitpersoonsgegevens.nl/sites/default/files/downloads/mijn_privacy/jointruling_opta_cbp_tellafriendsystems.pdf (EN)
  • E-Mail Code 2012 EN; from Section B of the Dutch Advertising Code S. 1.5; clauses set out in the earlier Email header or from the linked Code 
  • Social Media and Influencer Advertising Code 2019 (SMAC) EN / NL; set out below. Explains disclosures on 'relevant relationship' with content creators
  • Social Code YouTubers NL / EN. This is a Code written by YouTubers for YouTubers 

 

 

LEGISLATION

 

See linked documents for clauses. These are not set out below 

 

  • Article15d Book 3 Civil Code EN requires ‘Providers of Information Society Services’ Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the service to make available to users certain information about the operator and its services; transposed from the E-Commerce Directive 2000/31/EC; clauses shown below 
  • Article 193e from Book 6 of the Dutch Civil Code on Invitation to Purchase Definition Commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase
  • If communicating with users, then personal data may be processed, which may require observation of the GDPR; equally, consent to marketing communications from the Telecommunications Act Article 11.7, which deals with Cookie regulation and establishes the opt-in principle, may apply; check with advisors
  • The Media Act (NL) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider
 
 

1.1.  Social Media and InfluencerAdvertising Code 2019 EN; key clauses article 3

 

Explanation

https://www.reclamecode.nl/social-toelichting/ (NL)

Advice tool

https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)

Guidance document

https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf

FAQs

https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)

 

 

Key clauses article 3: disclosure and identifiability of ‘Relevant relationship’

 

  1. Advertising via social media must be clearly recognisable as such 
  2. If the ‘Distributor’ (blogger/ vlogger etc.) receives payment in cash or in kind from the Advertiser, then this must be explicitly stated in the communication ​
  3. The requirements referred to in points a and b can be met in any event if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/ or presentation. The content and nature of the Relevant Relationship is in any event clearly recognisable if it is formulated in accordance with the suggestions in the explanation to this article (Note: the linked file has some specific help by platform on how Influencer marketing should ‘label’ posts etc.)

 

 

Manipulation ban

 

  • It is prohibited to modify posts or other communications on social media in such a way that the average consumer may be misled (Art. 4a SMAC)
  • If the Advertiser modifies posts or other communications on social media or allows others to modify them (on the Advertiser’s behalf) in order to commend/ promote a product, service or activity of the Advertiser or a third party, the Advertiser must disclose this in a clear and accessible manner (Art. 4b SMAC)
  • If posts or other communications on social media are modified, selected or compared within the context of commending/ promoting a product of the Advertiser or a third party, the Advertiser must do everything necessary to clearly mention the nature of the “Relevant Relationship” (Art. 4c SMAC)
  • The Advertiser is furthermore prohibited from systematically creating and/ or using false or non-existent identities in bulk to communicate about a product and/ or service through social media (Art. 4d SMAC)
  • Explanation to the above can be found here

 

Teasers

 

Teasers are permitted except when the teaser causes or is likely to cause the average consumer to make a decision about a transaction that he would not otherwise have made

 

 

Children

 

Advertisers are prohibited from directly encouraging children aged 12 or under to advertise products or services on social media (Art. 5 SMAC)

 

 

Duty of care

 

Advertiser’s responsibility towards the Distributor and third parties

 

 

Example case (Identification)

 

https://www.reclamecode.nl/cases-uit-de-praktijk-van-de-nederlandse-reclame-code/chips-maken-bij-de-boer/

 

 

YouTubers Code NL / EN website:

www.desocialcode.nl

 

 

The Code sets out rules according to 4 situations; depending on whether the YouTuber:

 

  1. Gets paid by the brand

 

Step 1: Reference advertising in the video itself by either:

  1. Inserting a text caption on the screen for at least 3 seconds before the video starts, e.g. with white letters on a black background filling the entire screen
  2. YouTuber mentions advertising verbally/ in person

Step 2: Specific text inserted at the foot of video description

 

  1. Gets paid by a charity

 

Referenced in the same way as above as with paid commercial ad; only applies CBF or designated Public Benefit Organisations) or non-commercial bodies

 

  1. Receives a free or discounted product/ service

 

Nothing needs to be mentioned in the video; a specific text must be placed at the foot of the video description below the video; and

 

  1. Pays for the product/ service himself/ herself

 

Does not have to be referenced in the video but should be inserted via text at the foot of the video description; aim is to provide clarity and avoid speculation as to whether the YouTuber paid for the product

 

 

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The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)

 

 

 

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International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. It can be equally important to know what isn't advertising; the single most helpful source of remit issues in this context (that we are aware of) is the EASA Best Practice Recommendation on Digital Marketing Communications, which covers remit under pages 10/11, some of which is set out below. The other aspect of this environment that can be subject to regulatory issues is in 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

Directive 2002/58/EC on Privacy and Electronic communications; Article 13

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
 
Directive 2000/31/EC on E-commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 

 

Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

  1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted
  4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 
 
GUIDANCE

 

EU Guidance/ opinion documents

 

 
 
 
2.2.5. Marketer-owned digital properties
 
As established in the previous sections, all marketing communications, as defined by the ICC Code, fall within the remit of SR systems. It is not, however, always immediately apparent to what extent content on marketer-owned digital properties may constitute marketing communications and thus fall within the remit of the SROs. It should never be automatically assumed that a marketer-owned digital property is a marketing communication in its entirety. The actual content of the marketer-owned digital property must be reviewed to determine that which is marketing communication content and that which is not. For this purpose the following criteria establish whether or not the content, or part of the content of a marketer-owned digital property constitutes a marketing communication:
 
  • Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
  • Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
  • Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
  • Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

 

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 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

 

 

  • ‘Native’ advertising is like any other Alcohol advertising or any sector’s advertising - it’s subject to the Content rules set out in Section B (both Sector and General rules)
  • The principal source of rules is the DAC (EN)
  • The key general rule in this context, spelt out under the General tab below, is that of identifiability/ disclosure
  • Article 10 of the Alcohol Advertising Code (EN) states ‘Advertising for alcoholic beverages may not specifically target minors’

 

RESPONSIBLE CONSUMPTION MESSAGE

 

  • Format depending on the channel, an ‘Educational Slogan’ should be included. Formatting and other requirements have been extracted from the Alcohol Advertising Code here

 

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General

 

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 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 rulesThe key issue, obviously, is that of advertising identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier Content Section B, primarily those from the Dutch Advertising Code

 

 

SELF-REGULATION 

 

  • Article 11 Recognisability of advertising. Dutch Advertising Code (DAC) Section A (EN)
  • Art. 8.5 DAC; Annex 1 Points 10 and 21
  • SRC Check: Unfair Advertising
  • Case Example: File Number 2014/00327 NL, re an article on www.voetbalzone.nl about football matches and winning chances, which turned out to be advertising for Unibet, while it was presented as editorial content

 

 

Identifiable/ recognisable as advertising (Art. 11)

 
  • Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
  • Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2)

 

 

SRC Check: Unfair advertising - always unfair: Blacklist NL

 

  • Advertising in editorial articles (Native). An advertorial should also be easily recognisable as advertising. If advertising is paid for and not recognisable as advertising, that is by definition a violation of number 10 of the blacklist of Annex 1 of the DAC (see below). If the word 'advertorial' (advertorial) or 'advertisement' (advertentie) is sufficiently clear with the piece, or the consumer is otherwise sufficiently clearly informed that the piece contains advertising, then it is permitted
 
 

Blacklist: Misleading under all circumstances and thus unfair advertising under Article 7 DAC

 

  • Annex 1: Advertising is considered misleading under all circumstances in the event of:
     
    • 10. Using editorial content in the media to promote a product, where the advertiser has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)
    • 21. Falsely claiming or creating the impression that the advertiser is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

LEGISLATION

 

As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause

 

  • Article 15 (e) (1) Book 3 Civil Code; requirements for online commercial communications EN
  • Article 193g (k) and (v) Book 6 Civil Code. Black List, i.e. circumstances in which a commercial practice is misleading and therefore an unfair commercial practice, under Article 193b (3a) Book 6 CC) EN / NL
  • Article 193d Misleading Omission; Book 6 Civil Code EN / NL

 

 

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International

 

 

NATIVE

 

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

 

 
APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

 

 

Standard rules

 

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

 

 

Self-Regulation: key rules from the ICC 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”).

 

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

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8. Telemarketing

Sector

 

 

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

 

STANDARD RULES

 

  • The Content rules set out in Section B (both the Sector and the General rules) apply in Direct Postal Mail 
  • The principal source of rules is the DAC (EN)
  • The channel rules for all sectors, Alcohol included, are under the General tab below. These identify statutory Consent and Information requirements. GDPR lawful processing rules may apply in the event of processing personal data. Details under the General tab below
  • Advertising may not target minors (Art. 10 Alcohol Advertising Code)

 


RESPONSIBLE CONSUMPTION MESSAGE

 

  • The requirements for the use of the educational slogan ‘Geen 18, geen alcohol’ ('Not 18, no alcohol’) and ‘Geniet, maar drink met mate’ (‘Enjoy, but drink in moderation’) are for most forms of print advertising - in newspapers, magazines, periodicals, flyers and posters in or on which an alcoholic beverage, brand or manufacturer advertise; formatting rules here

 

 
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General

 

DIRECT POSTAL MAIL 

 

Includes unaddressed door-to-door

 

  • Content of commercial communications via Direct Postal Mail and other form of distribution shown below is subject to the rules of the Dutch Advertising Code and other statutory Content rules set out in our earlier Content Section B 
 
 

SELF-REGULATION

 

  • Letterbox advertising, door-to-door sampling and direct response advertising code Abbrev. LDDR. Most relevant in this context is letterbox advertising, defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
  • Advertising code for the use of the postal filter 2021 EN / NL
  • Flowchart for sending Direct Mail (addressed advertising via postal mail) here
  • Code for the distribution of unaddressed printed advertisements 'Sticker Code' SC  EN / NL

 

 

Addressed Direct Postal Mail - definitions and terms 

 

  • Checklist for sending direct mail (addressed advertising mail): Post Filter Code Flowchart (as above)
  • Letterbox advertising: all advertising material which is distributed via the mail box or post box and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) Note: applies to direct mail (addressed) or door-to-door (unaddressed); unaddressed door-to-door is covered separately below
  • Direct response advertising: all advertising in which the goods, services or information offered can be obtained directly from the provider by means of a written, electronic or telephone response (Art. 1c LDDR)

 

  • Advertising is addressed if the address of the recipient (post office box or home address) and city is stated. It is not important whether a name is included in an address; printed advertising that is addressed to “the occupant of” a specific address is therefore still considered to be 'addressed' (Taken from explanation of Art. 1.1.d. SC)
  • Identification: The advertiser must be identified in such a way that he/ she is easily recognisable to the recipient and effectively contactable/ accessible by the recipient. The name and address of the advertiser/ client must be stated in the offer, for which it is not sufficient to state the PO Box number (Art. 2 LDDR)

 

 

Content of the offer

 

  • The goods and/ or services that are offered shall be depicted and/ or described clearly and truthfully (Art. 3 LDDR)
  • Every offer must contain a brief, simply worded summary of the rights and obligations attached to acceptance of the offer, in particular: the cash price, the costs and conditions for paying in instalments, any postal charges/ shipping costs and other conditions such as whether or not the offer is on approval without obligation, so that the recipient knows exactly what is being offered and what his rights and obligations are should he accept the offer (Art. 4 LDDR)
  • For vouchers/ coupons, discount vouchers, and savings/ currency stamps, the advantage or reduction for the recipient must be easily identifiable and verifiable by him, and the offer's term of validity must be indicated, as well as any other restrictions (Art. 5 LDDR)
  • Right to object: Should the recipient state in writing that he does not want addressed advertising, the advertiser shall ensure that this wish is honoured unconditionally, as soon as possible and in any case within a period of three months of receipt of the request (Art. 14 LDDR)

 

 

Advertising code for the use of the Postal Filter (PFC)

 

  • Businesses that send unsolicited addressed advertising material by post must comply with this Code, which forms part of the Dutch Advertising Code; unsolicited advertising material, with the exception of market research, which is addressed (whether or not with name/ surname, so will apply to material addressed as “resident of”) and physically sent by post to a person with whom the advertiser does not have an existing relationship - is permitted (without the need for obtaining prior consent from the individual) provided that:

 

  • The recipient has not opted-out of receiving advertising material by registering on the Postal Register or via an heir/ directly concerned person on the National Register of Deceased Persons via www.postfilter.nl (Art 2/3 PFC)
  • Prior to making use of addresses from prospects Definition A person with whom an Advertiser does not have an existing customer relationship and whose contact data has been used by an Advertiser, either directly or via a third party (Art. 1.8 PFC) in order to send direct mail, the advertiser must always check the Postal Register and National Register of Deceased Persons. It is prohibited to contact a prospect whose personal data has been recorded in either register (Art. 5.1 and 5.2 PFC)
  • Consultation of such registers must take place no longer than a maximum of 6 weeks before the direct mail is sent (Art. 5.3 PFC)

 

  • If the recipient is an existing customer and has not previously opted-out, direct mail can be sent without having to consult the National Postal Register; if the existing customer is registered, direct mail (addressed advertising mail) can still be sent. The National Register of Deceased Persons should still be consulted; if a deceased person is registered, it is not permitted to send direct mail (addressed advertising mail). See Flowchart
  • The recipient of any commercial communication should be notified of his right to object. This may include a reference to the National Register of Deceased Persons or the Postal Filter (see Flowchart/ Art. 7 PFC)

 

Unaddressed advertising and free local papers

 

  • Letter box/ mailbox advertising, door-to-door sampling and direct response advertising code (abbrev. LDDR); most relevant in this case is letterbox advertising Definition Defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
  • Code for the distribution of unaddressed printed advertisements; Sticker Code ‘SC’ EN / NL

 

 

LEGISLATION

 

As Self-Regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause

 

  • Art. 193i (c) Book 6 Civil Code EN / NL, which prohibits making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media (italics ours) except in circumstances and to the extent justified under national law to enforce a contractual obligation
  • The same legislation provides rules in the event of communications that constitute an ‘Invitation to Purchase’ (often the case in postal mail). See article 193e
  • Consumer protection BEFORE mail can be sent is from two 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, i.e. an opt-out list of people who do not wish to receive marcoms
  • Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing that precedes transmission of electronic communications identifies individuals, then the rules from the GDPR related to lawful processing may apply. GDPR/ privacy issues should be reviewed with specialist advisors

 

 

 

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International

 

Applicable Self-Regulation and legislation 

 

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

 

 

Standard rules

 

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

 

 

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

 

 

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Legislation

 

As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:

 

4.   In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

  • In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors

 

 

Guidance

 

Guidelines on consent under Regulation 2016/679 (May 2020)

 
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10. Event Sponsorship/ Field Marketing

Sector

 

STANDARD RULES 

 

  • Associated sponsorship material should observe the Alcohol brand rules in our earlier Content Section B (Article 19, para 4 of the Alcohol Advertising Code (EN) from the DAC)
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in our earlier Content Section B, primarily from the DAC (EN)

 

 

 

SPORTS SPONSORSHIP 

 

From the Sport and Event Sponsorship section (19) of the STIVA Code and the Alcohol Advertising Code (EN) unless otherwise stated

 

  • The linkage of a brand name of an alcoholic beverage to an event is permitted
  • It is permitted to show the sponsorship on physical advertising materials in the framework of events, provided that the rules of Articles 10, 16, 17, 21 and 30 are complied with
  • It is permitted to advertise through physical advertising materials in the framework of events, provided that articles 10, 16, 17, 21 and 30 are complied with
  • With regard to the content of the advertising messages that are used in paragraphs 1 up to 3, it applies that in case of sports and events sponsorship all rules of this Code are applicable
    (Art. 19, paras 1-4 STIVA Code)
  • Advertising alcohol in connection with events is not permitted if it may reasonably be suspected that doing so may facilitate disturbance of public order and/ or disruption of the event (Art. 16 STIVA Code)
  • Advertising alcohol in the course of events is not permitted where it is reasonably expected that this may create the risk of personal injury to participants and/ or spectators (Art.17 STIVA Code)
    Guidelines to Article 17: This refers to the sponsoring of events that apart from the element of competition and/ or sports also have aggressive features and/ or where bodily harm can be inflicted on participants in the event (such as boxing)
  • The advertising of alcoholic beverages may not be displayed on an individual athlete or sports team (Art. 30 Para. 1 STIVA Code)
  • Advertising messages for alcoholic beverages may not be displayed on vehicles and/ or attributes that are used by the sportsman or sports team in their active practice of sports (Art. 30 Para. 2 STIVA Code)
  • Individuals who actively perform sports at the highest senior international level (European or World Championships and Olympic Games) are not allowed to be hired by or on behalf of the advertiser for radio, cinema and television commercials and printed advertising messages that use staged situations with scripts. It is not allowed to portray such individuals on packages and labels either (Art. 30 Para. 3 STIVA Code)
  • Advertising messages for alcoholic beverages may not portray the active practice of sports on packaging of alcoholic beverages
  • It is permitted to portray active sports practice in advertising messages, but exclusively to portray the context of celebrating the performance afterwards (Art.30 Para. 5 RVA)

 

 

GUIDELINES TO ARTICLE 19  – SPORTS AND EVENTS SPONSORSHIP

 

  • The linkage of a brand name of an alcoholic beverage to an event is permitted. All rules of the Code also apply to sports and events sponsorship. It is permitted to show the sponsorship through physical advertising materials, provided that articles 10 (Minors’ communication), 16 (Public Order), 17 (Risk of Personal Injury), 21 (Minors in audience) and 30 (Sports application) are complied with.
  • Under the terms of Article 21 it is necessary to find out through or together with the organisation who exactly will be visiting the event and what percentage of this is younger than 18 years old. If you cannot determine this for certain and if there are any signals that more than 25% of the visitors is younger than 18, than it would be wise not to sponsor this event.
  • Also remember Article 30, because a brand name of an alcoholic beverage may not be portrayed on clothing, attributes and means of transport that are used by a sportsman or sports team for active sports

 

 

 

MINORS: EVENTS

Carrier (Medium) Article 21 

 

  • Advertising for alcoholic beverages of in any form whatsoever may not reach an audience comprised of more than twenty-five per cent (25%) of minors. The reach is determined over a representative measurement period that is determined based on the specific circumstances of the case (including the location, the medium, the impact and the proportionality) and using reach figures that are as objective as possible
  • The standard for determining the reach of advertising communications is the reach survey generally accepted in the market or, if this is unavailable, other sound and representative proof
  • The visitor figures apply as the standard for the reach of events. The burden of proof in respect of the reach is borne by the advertiser, who must base such proof on viewer or listener figures generally accepted in the market or other sound and representative proof. For websites and their pages, the user profile must be made plausible
  • Article 21 does not apply to advertising communications that are part of the regular street scene or to incidental situations that cannot be influenced by the advertiser. The regular street scene is understood to include all situations that can be reasonably expected in the street scene and that are also permitted pursuant to this Code, for example lightboxes depicting the brands sold or on tap on the building fronts of bars and/or restaurants, and advertising on bus shelters. Incidental situations are situations of a one-off nature, for example a Sinterklaas (Santa Claus) parade in part of a city centre or village, but also, for example, a situation in which a promotional team is moving from one catering establishment to another without actively advertising and accidentally encounters a group of minors

 

 

 

EXPOSITIONS AND TOURS

Article 29 of the Alcohol Advertising Code (EN)

 

  • Visiting an exposition or tour in a brewery/ distillery/ vineyard is prohibited for individuals under 18, unless:
  1. they are accompanied by an adult during the visit
  2. the exposition or tour predominantly focuses on the production process and/ or the craftsmanship and/ or the affiliation with a town or region, and in which, therefore, less predominant focus is placed on commending alcoholic beverages
  3. the consumption of alcoholic beverages on site must always be held in a location that is physically separated from the exposition or tour area, with the exception of allowing the tasting of intermediate and/ or finished products of the brewing/ distillation/ fermentation process in small amounts and as a manner of explanation. All applicable laws and rules, in particular those regarding the age limit for the supply of alcoholic beverages, must be observed

 

 

FREE SUPPLY

Article 20 of the Alcohol Advertising Code

 

  • Paragraph 1. With the exception of tasting activities in licensed shops and sampling during catering industry promotions, advertising is prohibited in which alcoholic beverages are supplied to private consumers free of charge or for less than half of the regular sales price of the alcoholic beverage by a member of the industry or with the active participation of a member of the industry
  • Paragraph 2. The value of a premium offered may not be more than half of the total value of the purchased product including the premium acquired. Explanation Article 20 For paragraph 1, this means that the discount may be no more than 50% of the regular sales price. The word “free” or its synonyms (e.g. “gift” or “treat”) may not be used in the communication. For grocery packages and prizes in contests and/ or promotions, no alcoholic beverages may be given away either, even if the word “free” or any one of its synonyms are not used

 

 

 

TRADE FAIRS 

 

  • Participants in trade fairs are permitted to introduce their products to buyers during a trade fair. The conditions mentioned in Article 26 (see below under Sales Promotions) do not apply to this (Art. 3, Alcohol Advertising Code)
  • Tap Equipment The members of the industry are prohibited from making professional tap equipment available free of charge or for a symbolic consideration at gatherings, events and festivities (Art. 32, Alcohol Advertising Code)

 

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General

 

 

SELF-REGULATION 

 

The DAC Field Marketing code is linked below (EN)

https://www.reclamecode.nl/nrc/advertising-code-for-field-marketing/?lang=en

And in the original Dutch here:

https://www.reclamecode.nl/nrc/reclame-code-voor-fieldmarketing-rfm/

This Code applies to advertising relating to sale and promotion off-premise

 

 

Chapter II General
A. Advertising recognition

 

  • Article 2, Paragraph 1. When starting a Field Marketing pitch the Field Marketer shall clearly communicate the commercial, idealistic or charitable objective of the pitch to the Consumer
  • Paragraph 2. If this does not appear from the commercial, idealistic or charitable objective the Field Marketer shall specify to the Consumer who the Advertiser is and what the objective is of the pitch
  • Article 3, Paragraph 1. Field Marketers shall carry a valid Dutch ID upon them and a. a clearly visible badge or pass stating the name of the Advertiser and/or the Field Marketing Agency and his or her name, or b. Field Marketers shall wear recognizable clothing which clearly shows by order of what Advertiser they work. This can be done for instance by affixing the logo of the Advertiser on the clothing
  • Paragraph 2. In the event of recruitment for charitable institutions the Field Marketer shall meet the conditions in a. and b.
  • Paragraph 3. Upon being asked by the Consumer, the Field Marketer shall communicate what Field Marketing Agency he works for

 

 

B. Performance
Article 4

 

  1. Unfair and misleading approachment is not allowed. That laid down in Articles 7 and 8 of the Dutch Advertising Code applies in full
  2. The special advertising codes of the Dutch Advertising Code fully apply, to the extent that they are relevant to Field Marketing by reason of the product/service to be advertised and/or by reason of the target group, in particular the provisions regarding promotions in the Advertising Code for Alcoholic Beverages (RVA) and the Advertising Code for Games of Chance (RVK)
  3. During the performance of Field Marketing activities, the Field Marketer shall:

 

  • not mislead the consumer
  • not approach the consumer in an aggressive manner
  • approach the consumer for a pitch with two Field Marketers maximum
  • only address the consumer once upon passing
  • cease the approach as soon as the Consumer unambiguously indicates not to be interested
  • not block or obstruct the passers-by flow or the pavement

 

Other topics covered in the Code linked above are:

 

Vulnerability (article 5)

Age restrictions

Recruiting times

Supplementary Provisions for Direct Sales

Supplementary Provisions for Door2Door Recruiting

Complaints Handling
 

This Code effective from 1 January 2016

 

 

 

EVENT SPONSORSHIP

 

  • There is no Sponsorship Code per se in the Netherlands, though some elements of sponsorship activities are covered above
  • Sponsorship material should observe the Content rules set out in Section B
  • Some product categories, such as Alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs Home page
  • The ICC Sponsorship Code is a solid ‘catch-all' for sponsorship activity nationally and internationally. This is set out in Chapter B of the ICC Advertising and Marketing Communications Code; articles are under the following headers 
 

 B1. Principles Governing Sponsorship

B2. Autonomy and Self-Determination​

B3. Imitation and Confusion

B4.  'Ambushing of Sponsored Properties

B5.  Respect for the Sponsorship Property and the Sponsor​

B6. The Sponsorship Audience

B7.  Data Capture/ Data Sharing

 B8.  Artistic and Historical Objects

B9.  Social and Environmental Sponsorship​

 B10.  Charities and Humanitarian Sponsorship

B11. Multiple Sponsorship

B12.  Media Sponsorship

B13. Responsibility

 

 

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

 

 

 

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International

 

 

 

Self-Regulation

 

 

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

B3: Imitation and confusion

 

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

 

 

 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 that 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 trade- marks 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 an individual’s data are 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 that 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.
  • 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

 

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11. Sales Promotion

Sector

 

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, for example, are checked for any provisions that affect SP and included below. In the case of the Netherlands, the Industry Code provides some specific rules for Alcohol promotions, shown below 

 

 

  • The Alcohol act (NL) came into force July 1 2021. The act does not specifically address marketing communications. Its primary role is to limit discounting to a maximum of 25%, marking the end as STIVA reports, of e.g. BOGOFs. We assume that communication of any more than the stated 25% limit would also be illegal.
  • Promotional material should observe the Content rules for Alcohol brands set out in Section B
  • The Content rules that apply to all product sectors, i.e. the 'General' rules, should also be observed. These can be found beneath the Sector rules in Content Section B; primary source is the DAC (EN)
  • The Channel rules set out here are specific to the Alcohol sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, some statutory requirements when running promotions or competitions, or when communicating price in a promotional context
  • From the Alcohol Advertising Code (EN); specific forms. The recommendation of alcoholic beverages by catering promotion teams should not be aimed at minors. This form of recommendation is not permitted in areas where there are more than 25% of minors (Art. 26, Para 1, and Art. 13)

 

 

 

FREE SUPPLY 

Art. 20, STIVA Code

 

  • Except in the case of tasting sessions, advertising involving an alcoholic beverage being offered by a member of the industry or with the active co-operation of a member of the industry to private individuals free of charge or at less than half the normal retail price is not permitted
  • The value of a premium offered may not be more than half of the total value of the purchased product including the purchased premium
    Explanation of Article 20
    The maximum discount permitted is 50% of the normal retail price. It is not allowed to use the word ‘free’ or synonyms thereof (such as ‘present’ or ‘treat’) in communications. Note introduction of the Alcohol Act above restricting discounts to 25%
    It also holds for grocery packages and rewards in competitions and/or actions that no alcoholic beverages may be given away, even though the word ‘free’ or a synonym of it is not used in the message

 

 

 

UNDER THE CAP

 

  • From Article 1 of the Alcohol Advertising Code: An under-the-cap campaign is not permitted, unless the following conditions are met:
  1. Consumers cannot participate only by opening non-resealable packaging (bottles with caps, cans with lips), but can also participate via an alternative means, which is clearly communicated (e.g. visiting a website, etc.)
  2. The alternative for participation mentioned in paragraph 1 is reasonably proportionate to participation by means of purchasing and opening an alcoholic beverage in non-resealable packaging

 

 

 

CATERING INDUSTRY PROMOTIONS 

Article 26 Alcohol Advertising Code

 

  • The commendation of alcoholic beverages by catering industry promotional teams may not target minors. Commendation in this manner is prohibited at locations where more than twenty-five percent (25%) of the audience at that time consists of minors (Para. 1)
  • During catering industry promotions, alcoholic beverages may not be offered free of charge (Para. 2)
  • During catering industry promotions, selling alcoholic beverages for less than half of their regular sales price is prohibited. In addition, no more than one beverage may be offered to each client at a discount (Para. 3)
  • Sampling may be organised during catering industry promotions
  • Catering industry promotions must be performed by individuals who are at least 18 (Para. 4)

 

 

 

Explanation Article 26

 

If a catering industry promotion has the form of a sampling then:

 

  • the sampling may only be held in catering establishments with an Alcohol and Catering Industry licence or at events for which an exemption has been granted within the context of Article 35 of the Alcohol Licensing and Catering Act
  • sample servings may only be used of 2 cl for distilled spirits, 5 cl for wine and 7.5 cl for beer and cider
  • each individual may only be allowed to taste a maximum of one unit of one brand of an alcoholic beverage. If multiple variations of one brand are being promoted during a promotional activity, each individual may taste a total of at most three units. If multiple brands of one type are being promoted during a promotional activity, each individual may taste a total of at most three units. If multiple types are being promoted during a promotional activity, each individual may taste a total of at most three units. All of the alcoholic beverages to be tasted must be different in these cases
  • beer, wine and distilled spirits may not be tasted together
  • all members of the promotional team, dressed in the look & feel of the alcohol brand if desired, must be at least 18

 

 

 

SAMPLING IN A LICENSED SHOP

Article 27 Alcohol Advertising Code

 

  • Paragraph 1 Sampling alcoholic beverages in a licensed shop is permitted pursuant to Article 13 of the Alcohol Licensing and Catering Act. In addition to the statutory conditions, the conditions below in paragraphs 2 and 3 apply
  • Paragraph 2 Promotional teams are explicitly prohibited from allowing consumers to taste in a licensed shop
  • Paragraph 3 Promotional teams, dressed in the look & feel of the alcohol brand if desired, may - if the relevant licensed shop-owner has granted permission - be present in a licensed shop to give product information and to draw attention to the sampling. These promotional activities must be performed by individuals who are at least 18

 

  • For promotional advertising in the retail channel, a slogan other than that mentioned in paragraph 2 (‘Geen 18? Geen alcohol’) may be used. Prior to the first use of another slogan, permission must be obtained from the Code Contact person for the retail trade and from STIVA (Art. 33, Para 3, STIVA Code)

 

 

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General

 

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 and SP administration 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 to be a lottery and are generally illegal. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and Self-Regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.

 

 

SOME STANDARD RULES 

 

  • Sales promotional material should observe the rules set out in our earlier Content Section B; principal source of rules is the Dutch Advertising Code (EN)
  • Price Promotions ACM note: promotions must be genuine promotions EN

 

 

LEGISLATION 

 

  1. Code of Conduct for Promotional Games of Chance (Gedragscode Promotionele Kansspelen) NL / EN 
  2. Information obligations: Article 15e Book 3 Dutch Civil Code EN / NL; sets out rules in E-commerce re recognisability and the provision of e.g. promotional  conditions
  3. Blacklist: Article 193i (h) Book 6 Civil Code: commercial practices which are aggressive in all circumstances EN / NL. Covers some other promotional aspects in e.g. pricing and (separately) the abuse of the promise of prizes 
 

 

1. Promotional Games of Chance 
Includes prize promotions such as prize draws/ sweepstakes

 

  • Under Article 1 Betting and Gaming Act (BGA), games of chance are defined as those that ‘provide an opportunity to compete for prizes or premiums if the winners are designated by means of any calculation of probability over which the participants are generally unable to exercise a dominant influence, (italics ours) unless a licence has been granted therefore, under this law’. The player does not have to place a stake; the law does not differentiate between games of chance with or without monetary stakes
  • So the BGA takes a ‘prohibited unless licensed’ approach (Art. 1); a licence must be granted for all types of games of chance unless they comply with the Code of Conduct for Promotional Games of Chance. If the Code is not observed, then the games are unlawful under the BGA. See Preamble of Code of Conduct; points 1 and 2

 

A promotional game of chance must:

 

  • Promote a product, service or organisation and must not form a standalone service (preamble; Point 4)
  • Be free to enter, with the exception of communication costs of up to €0.45 per participant (Arts 3.1, 3.2)
  • Be temporary with up to 20 draws being permitted annually, per good, service or organisation (Art. 2) More than one winner may be designated in any one draw (Explanation of Art. 1)
  • Involve prizes or premiums with a total value not exceeding EUR100,000 per promotional game per year (Art. 4.1)
  • Require minors to get permission from a parent or legal guardian to participate (Art. 6.4)
  • Not gather any personal details of minors, nor permit these to be gathered, without verifiable permission from a parent of the minor, unless that is necessary to request the minor to provide contact details of his/her parent for the purpose of gaining permission for distributing prizes or premiums (Art. 6.3)
  • Make sure the general conditions (T&Cs) for games (see Art. 7.2) are made available to participants and potential participants free of charge and easily available (Art. 7)
  • Not have as its sole purpose the collection of personal data of the participants.  It has to be for product, service, or brand promotion; the collection of the personal data of participants can only be an additional benefit (Notes accompanying Art. 1)
  • Ensure the marketing (invitation to participate) as well as the terms and conditions are not misleading, incomplete or give rise to false expectations in the participants (Art. 5.1)
  • Contain the name of the product, service or organisation to be promoted (Art. 5.1)
  • Take care not to encourage excessive participation in the promotional games of chance organised by the supplier (Art. 5.2)

 

Notes accompanying Article 5: Promotion  Definition Every form of promotion, whether direct or indirect, of the public profile of an organisation or the sales of goods or services (Art. 1.6)

Promotion may not be misleading in any way. Some examples of what may be misleading include the following:

 

  1. The suggestion that the recipient is already the winner of a prize, for example by means of reporting the name of the recipient in an excerpt from the list of winners
  2. The use of imitations of cheques or other valuable papers, without inclusion of the printed word ‘specimen’ or other indication that its use involved an example of no value whatsoever
  3. The suggestion that the recipient had a greater chance of receiving a prize than other participants, for example by providing another name together with the printed word ‘loser’
  4. Stating in large print that the recipient is already a prize winner, while it appears from the general conditions that the recipient only has a chance at winning a prize
  5. Not depicting the chance of the recipient winning in a sufficiently fair light by giving the impression that the recipient has already won a prize, while this is not refuted in the mailing itself, but only in the appendix or appendices or the regulations; and
  6. By designating every recipient of a sweepstake as ‘winner’ (‘everybody wins’ method), whereby only one prize of minimal value will be awarded
 

 

2. Information obligations when using commercial communications (Art. 15e Book III DCC)

 

1. Where commercial communication forms a part of a service of the information society or makes out such a service itself, the one who has instructed to use this way of communication has to ensure:
 

  1. That the commercial communication is clearly recognisable as such
  2. That his identity can be deduced from the commercial communication
  3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them (italics ours)

 

 

3. Blacklist/ Commercial practices considered unfair in all circumstances (Art. 193g Book 6 Civil Code):

 

  • Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds 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 equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (‘bait advertising’)
  • f. Making an invitation to purchase products at a specified price and then: 1. Refusing to show the advertised item to consumers, or; 2. Refusing to take orders for it or supply it within a reasonable time, or 3. Demonstrating a defective sample of it, with the intention of promoting a different product (‘bait and switch’)
  • g. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
    Art. 193g Book 6 Civil Code
 

 

SELF-REGULATION 
Advertising contests and promotions 

 

Under the Dutch Advertising Code, Section B (Special Codes): c. Contests: advertisements for prize promotions and contests in print and electronic media must contain at least the following information:

 

  • The name and address of the organiser of the promotion or contest
  • The number of prizes available with a description from which their monetary value is known or can be easily derived
  • The submission deadline
  • Any exclusions or disqualifications from participation
  • The date and manner in which the results will be announced; and
  • In the event special conditions apply to be able to participate in the contest, a short description of those conditions

 

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​Annex II Dutch Advertising Code EN; SRC Check Unfair advertising NL echoes the Blacklist rules shown above under point 3. Rule are shown under the linked Annex 2 document

 

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From the ICC Advertising and Marketing Communications Code, Chapter A. Key headers are 

 

Article A2. Terms of the offer
Article A4. Administration of promotions
Article A5. Safety and suitability
Article A6. Presentation to consumers​
 
 

 

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International

 

 

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, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

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

Directive 98/6/EC on the Prices of Products offered to Consumers

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

  • All sales promotions should deal fairly and honourably with consumers
  • All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
  • The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
  • The terms and conduct of all sales promotions should be transparent to all participants
  • All sales promotions should be framed in a way that is fair to competitors and other traders in the market
  • No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

 

 

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

 

 

A3: Presentation

 

A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)

 

 

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

 

 

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

 

 

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

 

The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

  • The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion

 

 

C4 : Presentation

 

  • Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
  • Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
  • Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase

 

 

C17:  Substitution of products

 

  • If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer

 

 

LEGISLATIVE CLAUSES

 

As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds 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 equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:
 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time or

(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

15. Claiming that the trader is about to cease trading or move premises when he is not

16. Claiming that products are able to facilitate winning in games of chance

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

there is no prize or other equivalent benefit, or

taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

Directive 98/6/EC on the Prices of Products offered to Consumers (PPD)

 

Article 1

 

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 2

 

For the purposes of this Directive:

 

(a) 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;

(b) unit price shall mean 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 or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

 

Article 3

 

  1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price
  2. Member States may decide not to apply paragraph 1 to:

 

— products supplied in the course of the provision of a service

— sales by auction and sales of works of art and antiques

 

  1. For products sold in bulk, only the unit price must be indicated
  2. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

  1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited
  2. The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

  1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion
  2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

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D. Advice & Clearance

General

SECTION D

 

ADVICE 

 

 

The Self-Regulatory Organisation SRC Stichting Reclame Code provides copy advice for a standard fee to advertisers, for example to those who have to adapt or withdraw an advertisement, to ensure that the amended advertisement complies with the decision of the Advertising Code Committee and/ or Board of Appeal. This advice is available only to advertisers who pay their annual financial contribution to the SRC. Advertisement copy advice is informal and non-binding; access is provided at: http://www.checksrc.nl/copy_advies. SRC also offers training on the rules of the DAC; you can check their website for the current offer or if you want a tailor-made training, you can contact the Compliance department of the SRC.

 

Besides Copy Advice and Training, SRC offers advertisers two websites (in Dutch) with explanations of the advertising rules: (1) www.checkdereclamecode.nl and (2) www.checksrc.nl. The first site offers a practical tool that makes it possible to check an advertisement or a campaign on the basis of a few simple questions. The second site offers advertisers the opportunity to go into a little more depth on specific subjects, such as misleading advertising, rules for children, and identification of advertising.

 

 

CLEARANCE 

 

Pre-clearance is mandatory for Alcohol advertising on radio and television and in cinemas. Requests should be e-mailed to STIVA (the alcohol industry body) advies@stiva.nl and consist of a script, storyboard or video. Cost is €350 ex VAT; advice within 5 working days. Otherwise: 

 

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

International

 

EASA (European Advertising Standards Alliance)

http://www.easa-alliance.org/

 

EASA membership

http://www.easa-alliance.org/members

 

Link to Best Practice Recommendations

http://www.easa-alliance.org/products-services/publications/best-practice-guidance

 

Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)

http://www.easa-alliance.org/sites/default/files/EASA%20Common%20Principles%20and%20Operating%20Standards%20of%20Best%20Practice.pdf

 

Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf

 

EASA Digital Marketing Communications Best Practice Recommendation 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on Online Behavioural Advertising

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Online%20Behavioural%20Advertising_0.pdf

 

EASA Best Practice Recommendation on Influencer Marketing

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

 

 

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E. Links

Sector

SECTION E

 

 

LEGISLATION

 

European legislation

 

Regulation (EU) No. 1169/2011 on the provision of food information to consumers. This Regulation essentially combines two directives in one piece of legislation: Directive 2000/13/EC on the labelling, presentation and advertising of foods and Directive 90/496/EEC on the nutrition labelling for foods. The full list of mandatory particulars to be included on the label is contained in Article 9 (1). This Regulation is also the vehicle for the prohibition in advertising of any claims related to the prevention, treating or curing of a human disease (article 7 (3))

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32011R1169

Key clauses:
http://www.g-regs.com/downloads/EUfoodlabelling1169-2011.pdf

 

 

Regulation (EC) No. 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. On 1st July 2007, this Regulation came into force and is directly applicable in Member States. The Regulation prohibits the making of health or nutritional claims in advertising for alcoholic products which contain more than 1.2% alcohol by volume. As an exception, the only nutrition claims permitted for drinks containing more than 1.2% ABV are those relating to low alcohol levels, or to the reduction of the alcohol or energy content (Art. 4 (3)). Normally, claims in this Regulation have very specific conditions and guidance as to how they may be communicated; according to Italian Counsel those have not yet been established:

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006R1924

 

Recommendation

 

Council Recommendation 2001/458/EC of 5 June 2001 on the drinking of alcohol by young people, in particular children and adolescents. In relation to advertising, the Council puts forward recommendations for the establishment of mechanisms by Member States to ensure that alcoholic beverages are not designed or promoted to appeal to children, and that advertising in the media is not aimed at this group. To be avoided are links with violence and anti-social behaviour, implications of social, sexual or sporting success, the free promotion of drinks to children. (Part II, Section I). As a Recommendation, provisions are non-binding.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:161:0038:0041:EN:PDF

 

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010, the Audiovisual Media Services Directive, provides under article 9 (e) that ‘audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages.’ Article 22 provides ‘Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria: (a) it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages; (b) it shall not link the consumption of alcohol to enhanced physical performance or to driving; (c) it shall not create the impression that the consumption of alcohol contributes towards social or sexual success; (d) it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; (e) it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; (f) it shall not place emphasis on high alcoholic content as being a positive quality of the beverages:

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. 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

 

 

National legislation 


Beverage and Catering Act (Drank en Horecawet) of 7 October 1964; also known as the Alcohol Licensing and Catering Act. This law regulates how licensing for the sale or serving of alcoholic beverages can be requested by bars, cafés, restaurants and hotels. Article 2 specifically empowers the government to adopt rules restricting or banning the advertising of any alcoholic beverage; currently there is no such governmental regulation: 

http://wetten.overheid.nl/BWBR0002458/2017-12-31

 

Law of 16 December 2020 amending the Beverage and Catering Act in connection with the National Prevention Agreement. AKA the Alcohol Act; in force July 1 2021. The act does not specifically address marketing communications. Its primary role in this context is to limit discounting to a maximum of 25%.

https://www.eerstekamer.nl/behandeling/20210128/publicatie_wet_4/document3/f=/vlftg0476xzd.pdf

 

 

Channel legislation - AV

 

Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)):

https://wetten.overheid.nl/BWBR0025028/2021-07-01
 

 

 

 

SELF- REGULATION

 

National industry organisations and codes 

 

 

Advertising Code Foundation (Stichting Reclame Code - SRC):

https://www.reclamecode.nl/

 

The Dutch Advertising Code (Nederlandse Reclame Code – NRC)

https://www.reclamecode.nl/nrc_taxonomy/algemeen/ (NL)
https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en (EN)


The Dutch Advertising Code (DAC) contains the general rules (misleadingness, decency, social responsibility etc.) with which all advertising should comply and a number of Special Codes within the DAC that apply to advertising for specific products and services, including an Alcohol Code, details of which are set out in earlier sections, and reference to which is also below

 

The Alcohol code

 

The Alcohol Advertising Code (Reclamecode voor alcoholhoudende – RVA). The ‘owner’ and founder of this code is the alcohol industry association STIVA (see below); the Code is managed and administered by the advertising Self-Regulatory organisation SRC, per the entry above. The Code applies to advertising for alcoholic and non-alcoholic beverages, in so far as these are commended for consumption in combination with alcohol, and applies to all channels. The Code is one of several Special Codes within the full Dutch Advertising Code (EN) from the SRO; it’s separately below:

https://www.reclamecode.nl/nrc/reclamecode-voor-alcoholhoudende-dranken-rva/ (NL)

https://www.reclamecode.nl/nrc/advertising-code-for-alcoholic-beverages-2014/?lang=en (EN)

 

 

Alcohol-free and low-alcohol beer

 

On October 15 2020, the Advertising Code for Alcohol-free and Low-alcohol beer (RvAAB) entered into force. The code stipulates, among other things, that advertising for alcohol-free and low-alcohol beer may not be aimed at young people under the age of 18 and that advertising for low-alcohol beer may not be aimed at pregnant women nor reference driving, or ‘active traffic participation’. This move represents one of the agreements that Dutch Brewers and STIVA (Stichting Verantwoorde Alcoholconsumption) made in the context of the National Prevention Agreement. 

https://www.reclamecode.nl/nrc/reclamecode-voor-alcoholvrij-en-alcoholarm-bier-rvaab/ (NL)

http://www.g-regs.com/downloads/NLAlcNilorLowAlcBeerCodeRVAABEN.pdf (EN)

 

 

 

Social media 

 

Social Media Advertising Code 2019 (Reclamecode Social Media RSM). The code requires that advertising via bloggers, vloggers, Influencers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved.

https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/ (NL)

https://www.reclamecode.nl/nrc/advertising-code-for-social-media-influencer-marketing-rsm-2019/?lang=en (EN)

 

 

STIVA

 

STIVA Stichting Verantwoord Alcoholgebruik, the Foundation for Responsible Alcohol Consumption, is the key alcohol industry body in the Netherlands, representing (virtually all) Dutch producers and importers of Beer, Wine and Spirits. The STIVA Alcohol Code, linked below, was established some 30 years ago and is (also) administered by the self-regulatory organisation SRC (see above). A particular feature of the Code is its broad range through retail and marketing communications, and its notes of interpretation and guidance on each topic. The STIVA website:

http://stiva.nl/

The (applicable) Code in Dutch:

http://stiva.nl/alcoholcode/

The English version of the Alcohol Code:

http://stiva.nl/en/alcoholcode-2/

 

 

Educational Slogans/ Responsible Consumption Messages

 

The Nix 18 campaign nix = niks = “nothing” or “no way” until you’re 18. ‘information and tools’ can be found below. On registering, allow 24 hours for a password that will allow the downloading of materials: 

http://www.huisstijlvannix.nl/

The Government website which covers the issue of alcohol and young people is here: 

http://www.rijksoverheid.nl/onderwerpen/alcohol

 

 

National Beer

 

The Dutch Brewers Association (Nederlandse Brouwers). The Association, a member of The Brewers of Europe represents the interests of 8 Netherlands-based breweries, accounting for some 95% of beer production in the country. The Dutch Brewers Association does not publish a communications code; the Association espouses and supports the official Alcohol Code with which Netherlands Brewers have been working since 1989; and they are represented on the board of STIVA, the Foundation for Responsible Alcohol Advertising. Their specific efforts to drive responsible consumption towards a “social norm” can be found here:

http://www.nederlandsebrouwers.nl/onze-themas/verantwoorde-bierconsumptie

And their home page is here:
www.nederlandsebrouwers.nl/home

 

National Wine

 

KVNW is the royal Dutch association of wine importers, who are also on the board of STIVA. Their ‘mission statement’ is expressed as ‘Advocacy, professionalism, responsible wine consumption, and the sharing of knowledge. They are on the board of STIVA, and support and reference the STIVA alcohol Code on the KVNW website: https://www.kvnw.nl

 

 

 

Other industry rules/ guidelines 

 

 

ICC

 

International Chamber of Commerce. The ICC produces a Framework for Responsible Marketing Communications of Alcohol that tailors the standards of their Advertising and Marketing Communications Code:

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

The following Codes or Guidelines are often a) voluntary, and apply only to the members of the associations concerned and b) anyway reflect the Self-Regulatory codes and the law. Nevertheless, taken together the members cover significant volume in the market, so it’s best at least to be aware of their requirements. Players, contacts, and rules or guidelines are as follows:  

 

 

IARD

 

http://www.iard.org

 

The International Alliance for Responsible Drinking: IARD is a not-for-profit organisation dedicated to addressing the global public health issue of harmful drinking. Its members are leading international beer, wine, and spirits producers. IARD is the Secretariat of the Beer, Wine and Spirits Producers’ Commitments to Reduce Harmful Drinking.

 

‘Guiding Principles: Self-Regulation of Marketing Communications for Beverage Alcohol’ were published in November 2011. They 'highlight the underlying global values in responsible advertising and marketing practices across beverage alcohol industry sectors and form a basis for developing new codes or assessing existing codes in diverse markets': 

http://iardwebprod.azurewebsites.net/getattachment/72ca6517-8b3d-431f-b82f-e3e9e7a3f9b2/digitalguidingprinciples2014.pdf

 

To supplement the Guiding Principles, Digital Guiding Principles (DGPs) were launched in September 2014. The scope of the DGPs is ‘relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.’ In April 2020, IARD published How to add safeguards to social media marketing. IARD website:

http://www.iard.org

 

In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

 

 

WFA: Responsible Marketing Pact

 

The World Federation of Advertisers (WFA). WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets & marketers worldwide, representing approximately 90% of global marketing communications spend. WFA champions responsible, effective marketing communications: 

http://www.wfanet.org/en

 

The Responsible Marketing Pact is in force from 1st June 2015. Under the RMP, Europe’s eight largest alcohol producers (AB InBev, Bacardi, Brown-Forman, Carlsberg, Diageo, Heineken, Pernod Ricard and SAB Miller) have agreed to build common standards for the responsible marketing of their brands

https://www.wfanet.org/priorities/public-affairs/alcohol-marketing/ and the rmp website is here: https://the-rmp.eu/

 

 

Europe Spirits

 

spiritsEUROPE http://spirits.eu/ is the European representative body for the spirits sector and comprises 31 national associations as well as a group of leading spirits producers. Membership here. In April 2012 spiritsEUROPE adopted EU-wide Guidelines for the Development of Responsible Marketing Communications. The rules cover both the content and placement of commercial communications as well as the mention of a Responsible Drinking Message e.g. in the form of a consumer information website address, in all marketing communications. spiritsEUROPE member-controlled websites should provide a link to an information website on responsible drinking, such as the national websites referenced under http://www.responsibledrinking.eu or the EU Portal itself.

 

 

Europe Beer

 

The Brewers of Europe. Founded in 1958 in Brussels as a not-for-profit European association, the BofE “brings together national brewers’ associations from 29 European countries and provides a voice to represent the united interests of Europe’s 9,500 breweries. Responsible Beer Advertising Through Self-Regulation. 7 Operational Standards:
The Beer Pledge, a package of responsibility initiatives from Europe’s brewers, was launched in 2012. The 2017 third edition report is available here. The Brewers of Europe is actively involved, as an associated partner, in the Responsible Marketing Pact managed by the World Federation of Advertisers. 

 

 

Europe Wine

 

CEEV
 
Comité Européen des Entreprises Vins. Founded in 1960, CEEV is the representative professional body of the EU Industry and trade in wines, including still and aromatised wines, sparkling wines, liqueur wines and other wine products. CEEV 'brings together 23 EU national associations and was the driver and founding member for the ‘Wine in Moderation - Art de vivre’ Programme (WIM)'.  CEEV 'actively guides and supports' the development of the WIM programme (see WIM details below). www.ceev.eu

 

 
WIM
 

Wine in Moderation. ‘The roots:

  • A single global message to reduce harm and inspire moderation when drinking wine
  • Tailored by each culture and community where it is introduced
  • A social responsibility program launched in 2008 by the European wine sector to demonstrate social responsibility and managed by the WiM Association

Wine in moderation is for all wine producers and wine professionals who want to responsibly present, sell and serve wine’

https://www.wineinmoderation.eu/

 

Wine Communication Standards

 

‘These standards are established as a set of basic principles and criteria to comply with the law and with good faith and good business practices. They do not seek to replace relevant national laws or codes of conduct but do provide best practice guidelines for application by national self-regulatory bodies responsible for sector and company codes. Wine sector representative associations and/or individual companies are recommended to cooperate with the respective national self-regulatory bodies or other appropriate independent organisations for the adaptation, effective implementation and compliance monitoring at national level of these Standards. (please see annex)’

https://www.wineinmoderation.eu/medias/380/WCS-v2020.pdf

 

 

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Read more

General

SECTION E

 

 

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 on May 25 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. 

 

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.

 

Four recent and significant papers in the GDPR context:

 

 

 

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
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

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

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

 

Pricing

 

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

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

 

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. 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 (4 November 2020)

 

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

 

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

 

 

NATIONAL LEGISLATION

 

Consumer protection

 

Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Wrongful/ unlawful acts; Section 3A: Unfair Commercial Practices. Section 3A was inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets – ACM. 

NL: http://wetten.overheid.nl/BWBR0005289/2017-07-01#Boek6_Titeldeel3_Afdeling3A

Key provisions in English:

http://www.g-regs.com/downloads/NLChap6.3.3ADCCUnfairCommPracWR.pdf

 

Book 6 Dutch Civil Code Title 3, Section 4: Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other Acts into line with Directive 2005/29/EC.  

NL: http://wetten.overheid.nl/BWBR0005289/2017-07-01#Boek6_Titeldeel3_Afdeling4

English translation of Section 4:

http://www.g-regs.com/downloads/NLChap6.3.4DCCMisleadingCompWR.pdf

English translation of Book 6 Dutch Civil Code not up to date; does not include most recent amendments via Act of March 29, 2016; includes three new paras after Article 194(1)):

http://www.dutchcivillaw.com/civilcodebook066.htm

 

 

Book 6 Dutch Civil Code, Title 5 Agreements in general; Section 2B Provisions for contracts between traders and consumers. Information requirements for distance and off-premises contracts (Article 230m and 230v) Act of 12 March, 2014 amending Books 6 and 7 of the Civil Code, the Consumer Protection Enforcement Act and other laws relating to the implementation of Directive 2011/83/EU of the European Parliament and the Council of 25 October 2011 Law on consumer rights. Article 1D inserted new section B into Title 5 of Book 6 Dutch Civil Code, which relates to information requirements for distance and off-premises contracts. A number of these information requirements are listed as being essential information to be included in a commercial communication, as per Article 193f(b) of Title 3A, Book 6). Relevant provisions in Articles 193f(b) and Articles 230m and 230v:

http://www.g-regs.com/downloads/NLChap6.3.3ADCCUnfairCommPracWR.pdf

NL; Section 2b:

http://wetten.overheid.nl/BWBR0005289/2017-07-01#Boek6_Titeldeel5_Afdeling2b

 

 

Authority

 

ACM: Autoriteit Consument & Markt; Authority for Consumers and Markets. The Consumer Authority, Competition Authority, and the Independent Post and Telecommunications Authority joined forces appropriately on April 1st 2013, creating a new regulator: the Netherlands Authority for Consumers and Markets. This merger has been authorised in the Establishment Act of the Netherlands Authority for Consumers and Markets (NL). ACM is an independent regulator that champions the rights of consumers and businesses, is charged with competition oversight, sector-specific regulation, and enforcement of consumer protection laws. Importantly in this context, the ACM publish Guidelines Sustainability Claims (EN) which provides their 5 'rules of thumb' related to sustainability claims, included within which document is the legal context and relevant cases. This is a significant addition to the regulatory line-up for environmental claims

 

 

Channel legislation

 

Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping, as well as online 'audiovisual media services', the implications of which are in debate. Chapter 3a brings video-sharing platforms into scope: article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider.  The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)).

https://wetten.overheid.nl/BWBR0025028/2021-07-01

 

Media Regulation (Mediaregeling) 2008 NL. December 18, 2008, implementing rules of the Media Act 2008. Chapter II, Title 2.2.2 Advertising and Teleshopping Messages, Articles 10 and 11. The Media Regulation 2008 contains implementing rules of articles in the Media Act 2008

 

 

Regulatory authority

 

The Dutch Media Authority: Commissariaat voor de Media (CvdM). This body upholds the rules formulated in the Media Act and Media Decree. The CvdM is an independent administrative body responsible for audiovisual content and distribution matters. It grants licences to broadcasters, registers VOD services, and systematically monitors compliance with the rules on quotas, advertising and protection of minors. The CvdM can also develop policy rules for public and commercial media, and publishes brochures in relation to those (see below): https://www.cvdm.nl/english/   

Commercial broadcasting

 

  1. Regulation of Media Authority of 10 July 2012 on policy regarding the permissibility, recognition and delineation of advertising and teleshopping messages in the media offer commercial media institutions EN / NL Leg. website NL 
  2. Regulation of the Media Authority of 10 July 2012 concerning policy on commercial sponsorship, media institutions EN / NL Leg. website NL
  3. Regulation of the Media Authority of 18 November 2014 containing rules concerning product placement of commercial media institutions 2014 NL / EN Leg. website NL

 

 

Public broadcasting

 

  1. Regulation of the Media Authority of 17 May 2016 containing policy rules regarding sponsorship of public media institutions and rules regarding title/ heading sponsorship 2018 NL 
  2. Regulation of Media Authority concerning policies relating to the eligibility, recognition and delineation of advertising and teleshopping messages in the media provision of public media institutions 2019 NL 

 

CvdM re linked advertising 

 

Public Media Broadcasting: ‘Aanhakende’ (Tie-in/ Linked) Advertising Brochure Dutch Media Authority Version 1.1 June 2011 NL. Tie-in / linked advertising is when there is a deliberate reference to a commercial entity close to editorial that covers the same subject. The brochure provides examples of such advertising, which violates the Media Act Article 2.89, which prohibits avoidable expressions (advertising/ teleshopping excluded) that clearly lead to the purchase of products or services being promoted.

 

E-commerce

 

Book 3 Dutch Civil Code, Articles 15d and 15e. The act of 13th May 2004 implemented the E-commerce Directive 2000/31/EC; Article 1C of Act of 13/05/2004 inserted Article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly) NL:

http://wetten.overheid.nl/BWBR0005291/2017-03-10

English version Book 3:

http://www.dutchcivillaw.com/civilcodebook033.htm

GRS translation of Articles 15d and 15e:

http://www.g-regs.com/downloads/NLBook3DCCArt15d_15eWR.pdf

 

E- privacy

 

Telecommunications Act (Telecommunicatiewet). Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7(2/3). Article 11.7a implements Article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) of the Telecommunications Act to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies (Art. 11.7a (5) TA). The most recent amendment in May 2018 took account of the arrival of the GDPR, recognised in this legislation:

https://wetten.overheid.nl/BWBR0009950/2020-07-11 (NL)

http://www.g-regs.com/downloads/NLTelecomsActGDPRamends.pdf  (EN)

 

 

Data protection

 

National GDPR implementation and authority

 

Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming 'UAVG'). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC:

http://wetten.overheid.nl/BWBR0040940/2018-05-25

 

The Data Protection Authority (Autoriteit Persoonsgegevens - AP)

AP website (EN):

https://autoriteitpersoonsgegevens.nl/en

Guidance on advertising and direct marketing:
https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/internet-telefoon-tv-en-post/direct-marketing (NL)

 

 

 

SELF-REGULATION

 

 

Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.

 

 

Industry codes

 

The Dutch Advertising Code (Nederlandse Reclame Code - NRC) 

Section A: General EN; Blacklist in Annexes 1 and 2 EN

Section B: Special Advertising Codes (EN). A selection of these is below. See the linked ‘Section B’ for the full complement

Section C: General Recommendations:
https://www.reclamecode.nl/nrc_taxonomy/algemene-aanbevelingen/ (NL)
https://www.reclamecode.nl/nrc/general-recomendations/?lang=en (EN)

 

Social Media and Influencer Advertising Code. This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved:

https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/ (NL)

https://www.reclamecode.nl/nrc/advertising-code-for-social-media-influencer-marketing-rsm-2019/?lang=en (EN)

Explanation:

https://www.reclamecode.nl/social-toelichting/ (NL)

Advice tool:

https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)

Guidance document:

https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf (NL)

FAQs:

https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)

 

 

Full Dutch Advertising Code in English:

https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en

And in Dutch:

https://www.reclamecode.nl/nrc/

 

 

Social media

 

Social Code: YouTube. The Code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority (Commissariaat voor de Media CvdM) following an investigation by CvdM, which concluded that 75% of popular vlogs on YouTube contained surreptitious advertising. The code was also discussed with other parties, including the Advertising Code Foundation (SRC - Stichting Reclame Code), Multi-Channel Networks (MCNs) and interest groups/ agencies.  Social Code: YouTube NL / EN. CvdM commentary:

https://www.cvdm.nl/nieuws/youtubers-ontwikkelen-hulp-commissariaat-media-code-om-transparanter-reclame/#

 

 

DDMA

 

Data Driven Marketing Association (DDMA). The DDMA is the trade organisation for data driven marketing & advertising in the Netherlands. DDMA represents the interests of users, service providers and media/ carriers of data driven marketing, both in the Netherlands and at a European level. The DDMA has 300 member organisations. http://www.ddma.nl/

Full list of DDMA Codes can be found here:

https://ddma.nl/juridisch/

 

DDMA codes are incorporated within the Dutch Advertising Code Section B

 

 

Opt-out registers 

 

Telemarketing: Dutch regulator ACM and Stichting Infofilter run the don’t-call-me register, from 1/10/2009. Article 11.7 (6-12) of the Telecommunications Act contains provisions related to opt-out registers. The Telemarketing Code within the Dutch Advertising Code also refers to the opt-out register and places the onus on the advertiser to inform the consumer in every conversation of the existence of the Do-not-call-registry. Companies cannot register i.e. no ‘legal persons’ https://www.bel-me-niet.nl/. The ACM enforces legislation on telemarketing.

 

Direct Mail:  Since 1st October 2009, Stichting Postfilter has been responsible for The National Post Register, which allows consumers to opt out of receiving unsolicited advertising mail. The Stichting Reclame Code oversees the enforcement of the rules. The Advertising Code for the Use of The Postal Filter also contains relevant provisions:

http://www.g-regs.com/downloads/DACPostalFilterCode2015.pdf

https://www.postfilter.nl/

 

 

 

INTERNATIONAL SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

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

 
Chapter A . Sales Promotion 
Chapter B . Sponsorship 
Chapter C . Direct Marketing and Digital Marketing Communications 
Chapter D . Environmental Claims in Marketing Communications

 

Additional ICC guidance and frameworks 

(non-exhaustive)

 

The ICC Framework for Responsible Environmental Marketing Communications provides a general overview and guidance on 'green' claims, shows definitions of some common terms, and includes in Appendix I an Environmental Claims Checklist and in Appendix II a summary of the General Provisions of the ICC Code and those outlined in Chapter D on environmental claims, with guidance on use of environmental claims that often appear in marcoms:

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-environmental-marketing-communications-2019.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://cdn.iccwbo.org/content/uploads/sites/3/2012/11/ICC-Resource-Guide-for-Self-Regulation-of-Online-Behavioural-Advertising-1.pdf

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

https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf

ICC Guide for Responsible Mobile Marketing Communications

https://cdn.iccwbo.org/content/uploads/sites/3/2018/08/icc-guide-for-responsible-mobile-marketing-communications.pdf

The ICC’s Guidance on Native Advertising Is in English here:

https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

 

 

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 access to alliance membership:

http://www.easa-alliance.org/members

EASA’s Best Practice Recommendation on Online Behavioural Advertising is here:

http://www.easa-alliance.org/sites/default/files/EASA Best Practice Recommendation on Online Behavioural Advertising_0.pdf

And on Digital Marketing Communications here:

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

And on Influencer Marketing here:

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

IAB NL/ Europe

 

From the national website (GT): ‘IAB is the trade association for digital advertising and marketing innovation. IAB accelerates digital growth and makes a structural contribution to the qualitative development of the market.’

https://www.iab.nl/

How to Comply with EU Rules Applicable to Online Native Advertising December 2016:

https://www.iabeurope.eu/wp-content/uploads/2016/12/IAB-Europe-Online-Native-Advertising-Guidance.pd

IAB Transparency and Consent Framework:

https://iabeurope.eu/transparency-consent-framework/

 

 

WFA

 

From the website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':

https://www.wfanet.org/

This is the ‘GDPR Guide for Marketers’:

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

 

ESA

 

The European Sponsorship Association can be found at:

www.sponsorship.org

 

 

FEDMA

 

Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:

http://www.fedma.org/index.php?id=30

 

 

 

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International

SECTION E

 

 

SELF-REGULATION 
 

ICC

 

 ICC Advertising and Marketing Communication Practice Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communication Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:

https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/

Downloaded:

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

 

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

 

ICC guidance documents

 

 

ICC Guidance on Native Advertising (May 2015). 

https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

 

ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility.  It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

 

ICC toolkits

 

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising 

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

http://www.easa-alliance.org/

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

http://www.easa-alliance.org/products-services/publications/best-practice-guidance 

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 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. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. 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.

 

 

 

 

Key Directives in marketing communications

 

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

 

 

E-privacy Regulation draft (4 November 2020)

 

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

 

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 to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.

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

 

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 below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

 

Commercial practices 

 

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 European legislation that most impacts marketing and advertising in Europe. 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
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

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

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

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (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. 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

 

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). 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). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

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