Product placement 

Radio and Television art. 17a Broadcasting Act; all applicable to VOD except Article 17a (4) BA

• Product placement is only permitted (Art. 17a (1) BA):
   

• In cinematographic works (feature films), films or series made for audiovisual media services (TV and radio), sports programmes and light entertainment programmes, or
• Where there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme, with the exception of children’s programmes
   

• Product placement must not prejudice the autonomy and editorial independence of the broadcaster through its impact on contents or scheduling and must not release the broadcaster of the liability for contents of the programme (Art. 17a (4) BA)
• Programmes that contain product placement must not (Art. 17a (5) BA):
   

• Give undue prominence to the product in question
• Directly encourage the purchase or rental of goods or services, in particular by making promotional references to those goods or services

Sponsorship 

 TV and Radio: Art. 17 Broadcasting Act (BA); National Broadcasting Council Regulations concerning sponsorship of programmes and other broadcasts; all provisions applicable to VOD, except Article 17 (paras 3 and 6) BA
 

• Viewers/ listeners must be clearly informed about sponsoring. Sponsored programmes or other broadcasts must be identified as such by sponsor credits at the start and the end of the programme, and when a programme resumes after an advertising or teleshopping break. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, a reference to its products, services or their trademark (Art. 17 (1) BA)
• The identification of the sponsor or any component part thereof must not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services (Art. 17 (1a) BA)
• Sponsor credits may not contain the name, business name, trademark or other individual identification of the business operator or its business operations, the image of a product or service, the advertising of which is prohibited by virtue of Article 16b Para. 1 (Art. 17 (2) BA)
• The sponsor must not influence the content of the programme or any other broadcast and their scheduling in a manner that would prejudice the autonomy and editorial independence of the broadcaster. Sponsorship must not release the broadcaster from liability for the content of the programme (Art. 17 (3) BA)
• Sponsored programmes or other broadcasts may not encourage the purchase or other use of the products or services of the sponsor or a third party (Art. 17 (4) BA)
• Subject to para. 6, programmes or other broadcasts may not be sponsored by (Art. 17(5) BA):
   

1. Political parties
2. Trade unions
3. Employers’ organisations
4. Natural or legal persons whose principal operations consist in the production or sale of products or the provision of services referred to in Article 16b para. 1

SELF-REGULATION

Rada Reklamy Code of Ethics in Advertising EN includes Chapter VI on Sponsorship, incorporating reference to TV and Radio broadcasting:
 

• Sponsorship-related activities must not be misleading as to the sponsored entity, brand or other identification markings/ designations of the sponsored entity/ party/ event, in particular when the sponsored event is presented on TV or Radio (Art. 43)

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

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

4. 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
5. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
6. 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
7. 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 

• Beer advertising only, to the sector and general content rules set out in section B;  principal source of beer rules is Appendix 1 of the Rada Reklamy Code of Ethics in Advertising
• The Alcohol Act Article 13 (1) prohibits the targeting of minors 
• Advertising and promotion of beer, as stated in Article 13 (1) clause 1 of the Alcohol Act is prohibited:
   
• On advertising masts/ pillars and billboards, as well as on other fixed or mobile spaces which can be used for advertising purposes, unless 20% of the advertisement's surface is covered with visible and legible written information about the harmful effects of alcohol consumption or the ban on selling alcoholic beverages to minors (Art. 13 (1); clause 2.5 Alcohol Act)
   
• Beer advertising must carry the Health Messages per the Ordinance of the Minister of Health of 6 November 2003
• Examples of beer advertising which includes the Health Messages on posters are here and here
• Formatting requirements are prescriptive and specific and example templates/ designs can be found in the linked document above (i.e. the Health Minister Ordinance) under Annex 1 (The template/ design for placing an informative inscription on beer ads about the harmfulness of drinking alcohol) and Annex 2 (The template/ design for placing an informative inscription on beer ads on the prohibition of selling alcohol to minors); there are 3 standard designs/ templates for each informative inscription, one of which is shown immediately below:

The Polish text above is 'tooltipped' with an English translation. Hover the cursor over the text and the English version will appear

The choice between two mandatory messages is:

1.  Messages for pregnant women and drivers: 

“½ litra piwa zawiera 25 gramów czystego alkoholu etylowego. Nawet taka ilość szkodzi zdrowiu kobiet w ciąży i jest niebezpieczna dla kierowców” A ½ litre of beer contains 25 grams of pure ethanol. Even this amount has a damaging effect on pregnant women’s health and is dangerous for drivers

2. Messages about illegality of selling alcohol to minors:

“½ litra piwa zawiera 25 gramów czystego alkoholu etylowego. Sprzedaż alkoholu osobom do lat 18 jest przestępstwem” A ½ litre of beer contains 25 grams of pure ethanol. The sale of alcohol to persons under the age of 18 is a criminal offence

• The two messages must be placed above the advertisement, divided horizontally in two equal parts. They must be printed in colour to be distinguished from the advertisement itself, either red on white background or white on a red background. Capital letters in Avalon, Avant Garde or Arial Bold constituting 20-25% of its height
• For posters for the same manufacturer, 50% of the advertising must carry the first choice of messages (pregnant women and drivers) and 50% the second choice (minors)
• Examples of both kinds of message are shown in the links below in 'live' ads:
  http://www.g-regs.com/downloads/POposterWarning1.pdf
  http://www.g-regs.com/downloads/POPosterWarning2.pdf

IARD

• The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers manufacturers, publish Digital Guiding Principles (DGPs) to supplement their Guiding Principles (shown in our Section D 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 here. In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

OTHER INFLUENCES 

From an April 2021 blog from Traple Konarski Podrecki & Partners: Rules for advertising strong alcohol in social media found here (PO)

Alcohol Advertising Policies by Social Media Platform 

TikTok is not included in the above; their rules can be found here

KEY CLAUSES SELF-REGULATION 
(some translation enhanced)

• The content rules from the RR Code of Ethics in Advertising (EN) are set out in our earlier section B and apply to advertising online. The code includes some channel rules under e.g. Chapter VII Direct Marketing and Chapter VI Sponsorship. Clauses are shown under the relevant specific headers that follow 

Sect. 38 SMB Code of Ethics: Commercial communication (Chapter VI E-Commerce)

• All commercial communications should be easily recognisable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable. This rule also applies without exception to unsolicited commercial communications which are carried out by electronic mail (s. 38 (1) SMB Code)
• All promotional offers and contests will be easily recognisable as such. The terms and conditions of participation shall be described in a clear, unambiguous and precise manner (s. 38 (2) SMB Code)
• Internet technology should not be used to mislead customers as to the nature of a product or service in a promotion or offer. In addition, traders should not deceitfully restrict/ hamper the customer’s ability to leave the website and should make every effort to ensure that the search criteria accurately reflect the content of the site (s. 38 (3) SMB Code)
• Comparisons of prices shall not mislead the customer. All the comparisons referring to special offers should indicate the start and end dates of such offers and any other special terms and conditions (s. 38 (3) SMB Code)

KEY CLAUSES LEGISLATION

Labelling requirement and Information obligations from the Act on the Provision of Services by Electronic Means:

• Commercial communications must be clearly identified and marked in such a way that there is no doubt that it is a commercial communication (Art. 9.1 PSEM)
• Commercial communications must include (Art. 9.2 (1-3) PSEM):
   
  • The name of the entity, on behalf of whom the communication is made, and its email addresses
  • Clear description of the form of promotional activities, in particular: price reductions (discounts), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the clear identification of the conditions necessary to take advantage of these benefits, if they are a component of the offer
  • Any other information, which may have an impact on the extent of the responsibility of the parties, in particular warnings and restrictions

• The following practice may be regarded as a misleading omission: failing to disclose the commercial purpose of the practice if this is not clearly apparent from the circumstances and if this causes or may cause the average consumer to take a contractual decision which he/ she otherwise would not have taken (s. 6.3 (2) UCPA)
• When assessing whether a commercial practice is misleading by omission all its features and circumstances related to the product launch, including its overall presentation, should be taken into account (Art. 6.5 UCPA)
• As electronic communications will frequently include offers, information requirements from the UCPA when making an ‘Invitation to purchase' are extracted here
• All marketing communications/ advertising content in electronic communications is subject to the UCPA rules on unfair commercial practices, especially in this context misleading or unfair actions or omissions shown under articles 5, 6 and 7 of the Act linked again here (EN key clauses)
• The Unfair Competition Act (EN) is most relevant in this context to rules on comparative advertising; see article 16 of the UCA

• The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
• And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679

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

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 

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)
 

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

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

• Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

• For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications  

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 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

OBA

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

William Fry/ Lex September 8, 2023. Connects with Meta news below 

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023 NYT
The above reported case could have very significant implications for targeted advertising

EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024

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

Effective 19 January 2022​

• In as much as data will be processed prior to the development of OBA, then GDPR lawful processing rules may apply if that data identifies individuals. Privacy issues should be reviewed with specialist advisors
• Key profiling guidance is from the Article 29 Working Party, now the European Data Protection Board, in February 2018:
  Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
• OBA marcoms content will be subject to the Rada Reklamy Code of Ethics in Advertising here; the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) also applies and includes a clause (article 9/3) on 'persistent and unwanted solicitations' 
• Also applicable is the Act on the Provision of Services by Electronic Means (PSEM) PO / EN (articles 4-10) transposes implements elements of the e-Commerce 2000/31/EC and e-Privacy 2002/58/EC Directives; requirements for transparency and for clarity on e.g. promotional conditions are found in articles 9/1 and 9/2
• See the International tab for details of the self-regulatory initiative for OBA, which is underpinned by IAB Europe’s OBA framework. The European Interactive Digital Advertising Alliance EDAA licences the OBA Icon, a consumer-facing, interactive symbol that links consumers to an online portal, www.youronlinechoices.eu, where they can find information on OBA and a mechanism for exercising informed choice
• IAB Poland replicate the IAB Europe OBA Framework - PO, which will apply to all 3rd parties involved in OBA, and manage the Polish version of the ‘Your Online Choices Consumer Choice platform’:
  http://www.youronlinechoices.com/pl/

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 apply. GDPR/ privacy issues should be overseen by legal advisors

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022

Applicable regulation and opinion

• ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
• Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
• Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act, around the practice
• Provisions for Interest-based Advertising (IBA/OBA). These have been extracted from the 2018 ICC Advertising and Marketing Communications Code Chapter C and uploaded here; selected key rules below
• OBA, like any other advertising, is subject to Content rules. in this context, the principle source of international rules is the ICC Code linked above 

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

Article 29 Working Party* documents

• Opinion 2/2010 on online behavioural advertising here
• Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here 
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679

*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

• 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
• EDAA has published their latest (2021) 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

KEY CLAUSES SELF-REGULATION

• SMB Code: All commercial communications should be easily recognisable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable. This rule also applies without exception to unsolicited commercial communications which are carried out by electronic mail (s. 37 (1) SMB Code) 
• New email section (33) of the SMB Code here (EN)
• Rada Reklamy Code of Ethics in Advertising (EN): Chapter VII Direct Marketing, articles 45-48 , applicable to B2C and B2B:

• 1. Direct marketing activities, including the offers related to direct marketing, should be carried out so as to be understandable for the beneficiary. In particular, the beneficiary should always be able to identify the advertised product and the terms of the offer, including the price. 2. The beneficiary of an offer delivered within the framework of direct marketing should always be able to identify such offer as an advertisement. An offer may easily be mistaken for a bill or an invoice should not be made. 3. An offer delivered within the framework of direct marketing must clearly indicate what liabilities will be imposed on the beneficiary upon offer acceptance. 4. The information transferred within the framework of direct marketing, which has an effect on the beneficiary’s decision (e.g. payment terms, making returns, and waivers of the agreement), must be transferred in such a manner and within such time to make it possible for the beneficiary to take such information into account before accepting the offer. 5. No products for which a payment is requested without prior ordering of such products can be offered within the framework of direct marketing (Art. 45)
• 1. An offer delivered within the framework of direct marketing cannot be misleading in particular with respect to the true sizes, value, nature, durability, appearance, and technical potential of the product advertised, and if: a) additional accessories are necessary for: (i) using the product or (ii) obtaining the described or demonstrated effect, this must be clearly stated, b) the offer is applicable to separately sold products, this should be unequivocally stated. 2. If an offer delivered within the framework of direct marketing contains a proposal of, for example, “free examination” or “free trial” of a product, then the offer must contain the terms of such use, including but not limited to the information on who bears the costs of product return and time limitations in its use. 3. An offer delivered within the framework of direct marketing must contain information on when the seller and the advertiser may be contacted so as to enable the beneficiary to directly and effectively contact them. At the moment of delivery of the product the beneficiary must be informed on complete names, addresses, and telephone numbers of the seller and the advertiser (Art. 46)
• 1. Within the framework of direct marketing, offers must be made so as to respect the privacy of the beneficiary. 2. If personal data are collected within the framework of direct marketing, the beneficiary must be clearly informed thereof, with indication of the scope of processing of such data. The collection, storage, and use of data must be compliant with the Personal Data Protection Act. 3. The beneficiary of offers received within the framework of direct marketing, including but not limited to offers received with the use of addressed mails, non-addressed prints, telephones, telephone text and multimedia messages (e.g. SMSs, MMSs, etc.), faxes, e-mail or other methods of addressed online communications must be able to verify the sender of such an offer, and where applicable also the source from which the beneficiary’s data originate. 4. The promoter must comply with beneficiaries’ demands if they wish not to receive offers delivered within the framework of direct marketing, including but not limited to addressed mails, non-addressed prints, telephones, telephone text and multimedia messages (e.g. SMSs, MMSs, etc.), faxes, e-mail or other methods of addressed online communications, by cessation of delivery of such offers. The beneficiary may express his will not to receive the mails from the specific promoter by transferring to such promoter the respective request. The beneficiary may also express his wish not to receive the mails of the specific type by registering himself on the appropriate preference list or by displaying at the place of delivery of mails the information on such request (Art. 47)

• Code of Good Practice in Mobile Advertising PO / EN; applicable to push ads SMS/ MMS. Point 8: SMS Spam Policy: Five principles of anti-spam policy in mobile advertising

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 

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
 

7. 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)
8. 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

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

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 
• November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
• Opinion 15/2011 on the definition of consent here 
• May 2020 Guidelines on Consent under Regulation 2016/679 here

• The other definition of advertising that should be considered/ understood is that from the Alcohol Act: 'public promotion of alcoholic beverage trademarks and graphic symbols connected with such beverages, as well as the public promotion of names and graphic symbols of entrepreneurs producing alcoholic beverages, which do not differ from the names and graphic symbols of alcoholic beverages and are used in order to promote alcoholic beverage trademarks; information used for trading purposes by entrepreneurs professionally engaged in the production, wholesale turnover and retail trading of alcoholic beverages shall not be considered an advertisement‘ (art. 2 (1) clause 3)

GUIDANCE AND ADVICE 

• The guidance on this issue from RR is that they distinguish between advertising and information, and if the marketer’s own website is serving information only, and age checks are in place, that would be considered permissible. ‘Typical’ advertising on third party websites, including blogs, will still be illegal. This does not apply to beer, however, which Rada Reklamy considers is permitted to advertise online, albeit subject to the rules
• An adjudication against Ostoya Vodka (PO) is helpful in this context; some of the language was deemed to be advertising (versus blogging), and there was insufficiently obvious warning signaling to minors
• A solid source of guidance is EASA’s Digital Marketing Communications Best Practice Guide. Exemptions for material on advertisers own websites include, for example, User Generated Content, unless it has been endorsed by the marketer. The same principle applies to viral communications
• Seek legal advice if uncertain or RR Copy Advice

Sect. 37.1 SMB Code: Commercial Communication:

• All commercial communications should be easily recognizable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable. This rule also applies without exception to unsolicited commercial communications which are carried out by electronic mail (s. 37 (1) SMB Code)
• Internet technology should not be used to mislead customers as to the nature of a product or service in a promotion or offer. In addition, traders should not deceitfully restrict/ hamper the customer’s ability to leave the website and should make every effort to ensure that the search criteria accurately reflect the content of the site (s. 37 (3) SMB Code)

KEY CLAUSES LEGISLATION

Obligations for service providers who provide services by electronic means:

• Commercial communications must be clearly identified and marked in such a way that there is no doubt that it is a commercial communication (Art. 9.1 PSEM)
• Commercial communications must include (Art. 9.2(1-3) PSEM):

• The name of the entity on behalf of whom the communication is made, and its email addresses
• Clear description of the form of promotional activities, in particular: price reductions (discounts), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the clear identification of the conditions necessary to take advantage of these benefits, if they are a component of the offer,
• Any other information, which may have an impact on the extent of the responsibility of the parties, in particular warnings and restrictions

• Article 6 (1). A commercial practice shall be regarded as tacitly misleading if it fails to provide material information that the average consumer needs to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that (s)he would not have taken otherwise
• 3. In particular, the following practices may be misleading:​ 1) withholding material information on the product or failing to provide such information in a clear, unambiguous or timely manner;​  2) failing to disclose the commercial purpose of the practice if this is not clearly apparent from the circumstances and if this causes or may cause the average consumer to take a contractual decision which (s)he otherwise would not have taken
• Article 7. The following misleading commercial practices constitute unfair commercial practices in all circumstances:​ 11) advertorial, which involves 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;​ 22) claiming or creating the impression that the trader is not acting for purposes relating to his/her business or profession, or representing oneself as a consumer when this is not the case

• 4. In the case of an offer to purchase a product, material information within the meaning of Article 6 (1) shall be constituted by the following in particular:

•  1) the main characteristics of the product, to an extent appropriate to the medium used to communicate with consumers and the product;​  2) forename, surname (corporate name) and address of the trader (registered office) and of the trader on whose behalf it 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 all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, information to the effect that such additional charges may be payable;​ 4) the arrangements for payment, delivery, performance and the complaint handling policy;​ 5) information on the right to withdraw from or annul the contract, if such a right is enshrined in the Act or in the contract

• 5. When assessing whether a commercial practice is tacitly misleading, all of its elements and the circumstances of the product launch, including the way in which it was presented, should be taken into account
• 6. Where the medium used to communicate with consumers for 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 when deciding whether information has been omitted

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

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
    

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

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

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

EU Guidance/ opinion documents

• Opinion 15/2011 on the definition of consent here 
• GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
• Guidelines 8/2020 on the targeting of social media users adopted April 2021

• 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

1. FACEBOOK

• https://www.facebook.com/policies/ads (also includes references to Instagram)
• branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content

2. INSTAGRAM 

• https://help.instagram.com/116947042301556/?helpref=hc_fnav&bc[0]=368390626577968&bc[1]=835763516568404
• https://www.facebook.com/policies/brandedcontent/

3. TWITTER:

• https://business.twitter.com/en/help/ads-policies/introduction-to-twitter-ads/twitter-ads-policies.html
• https://business.twitter.com/en/help/troubleshooting/how-twitter-ads-work.html
• Promotions/ contests on Twitter:
  https://help.twitter.com/en/rules-and-policies/twitter-contest-rules

4. YOUTUBE: advertiser friendly content guidelines here:

• Ad Policy Overview
• Adult content in ads
• Advertisers' Live Streaming Programmes

• Paid product placements and endorsements
• Advertising on YouTube Kids
• Age targetting and ads 
• Youtube’s contest policies and guidelines
• Homepage advertiser Guidelines
• Tell a friend
• Unbranded ads or Brand Channels

5. SNAPCHAT:

• https://www.snap.com/en-GB/ad-policies/
• Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules

6. GOOGLE +

• Promotions/ Contests:
  https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html
•  For advertising on the Google network:
  https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336  /
  https://support.google.com/adwords/answer/6316?hl=en-GB​

7. TIK TOK

• Advertising guidelines

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)

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

• Clause 9 (of Alcohol Act article 13 (1)). 'No ban provided for in the above paras 1-8 shall apply to advertisement and promotion of any alcoholic beverage provided inside premises of a wholesaler, a separate department, or a point of sale of alcoholic beverage only, and at a point of sale of alcoholic beverages for consumption at place of sale.' (The paras 1-8 are the general restrictions on alcohol advertising/ promotion/ sponsorship as found in the Alcohol Act; this clause 9 exempts the premises described)
• Sponsorship/ event material must observe the content rules set out in our earlier section B (both the sector rules and the general rules). The principal source for beer advertising material is Appendix 1 of the Rada Reklamy Code of Ethics in Advertising
• In the event that spirits brands are active in this context, then they should be aware of the Spirits Code from the Polish Spirits Industry

Channel rules for event sponsorship/ field marketing that apply to all sectors, alcohol included, are under the General tab below 

 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

KEY CLAUSES SELF-REGULATION

Rada Reklamy Code Chapter VIII: Sales Promotions

• 1. Sales promotions cannot be developed and conducted so as to mislead the recipients. 2. Neither the design nor the implementation of a promotion should be such as to provoke, or to appear to condone, aggressive or illegal behaviour, and cannot otherwise be inconsistent with the social coexistence principles. Moreover, they cannot encourage practices contrary to the public interest (Art. 49)
• Sales promotions should be so framed as not to abuse the trust of the recipients and not to exploit their possible lack of experience or knowledge (Art. 50)
• Sales promotions should be so devised as to make it easy for the beneficiary to identify clearly the terms of the offer. Care should be taken not to exaggerate the value of the additional benefit and the price of the main product should not be concealed by the promotional activity (Art. 51)
• Sales promotions should be administered with adequate resources and supervision methods. In particular, the sales promoter should make sure that the availability of the additional benefits is adequate to allow demand to be honoured within a reasonable time. If delay is inevitable, the beneficiaries should be so advised, and if necessary actions should be undertaken which shall result in adjustment of the advertising concerning the offer (Art. 52)
• 1. When organising sales promotions, the right of privacy of each entity should be respected. No additional liabilities not arising from the sales promotions rules can be imposed on such entities 2. If as a result of the sales promotion organised personal data of natural persons are collected, then the beneficiary should be clearly informed thereof, with indication of the scope of processing of such data. The collection, storage, and use of data must be compliant with the Personal Data Protection Act (Art. 53)
• Sales promotions should be designed and conducted with proper regard to appropriate standards of safety to the extent necessary for protection of the beneficiaries participating in such promotions against health damage (Art. 54)
• The presentation of sales promotions should allow participants, before making any required purchase, to be informed of the rules of such promotion if they can affect their decision to purchase the relevant product. In particular, the presentation should include, where applicable: a) clear instructions on the method of making use of, or obtaining, the promotional offer, e.g. conditions for obtaining free gifts or premiums; b) general characteristics of the additional benefits offered; c) time limitations for using the promotional offer; d) any limitation as to the geographical area, age, quantity (number) of promoted items or other additional benefits available, or any other limitations on quantity. e) the value of any voucher or stamp offered where a monetary alternative is available; f) expenditure involved, including costs of shipping, handling and the terms of payment; g) 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 (Art. 55)
• 1. Where the sales promotion includes a competition, in addition to the information required by Article 55 above, the following information should be given or at least be made available on request and unconditional on purchase of the main product, prior to participation: a) rules governing eligibility to participate in the competition; b) all costs associated with participation known to the promoter, and where applicable also information on the rates used (e.g. for special calls); c) number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize; d) in the case of a skill contest, the nature of the contest and the criteria for judging the entries; e) method of selecting the winners and the prize; f) closing date of the competition; g) when and how the results will be announced; h) whether the beneficiary may be liable to pay tax as a result of winning a prize; i) time period during which prizes may be collected; j) how the jury is selected; k) the composition of the jury, on announcement of the results at the latest; l) any intention to use winners or winning contribution in post-event activities. 2. If the sales promotion includes a lottery, the provisions of paragraph 1 above shall be applicable to the lottery, respectively, where applicable (Art. 56) 
• 1. The promoter should always obtain the prior agreement of the operator if the promoter inter alia intends to: a) invite the employees of the operator to assist in any sales promotion; b) propose (offer) to such employees any benefits of value or obtaining any benefits of value for such employees’ assistance or for any sales achievements in connection with any sales promotion. 2. If the offer referred to in paragraph 1 above is addressed to a wide circle of recipients it must contain clear instruction that employees must obtain their employer’s permission before they accept such offer (Art. 57)
• Sales promotions which require active co-operation by the operator and its employees cannot adversely affect the performance of any existing contractual obligations of such operator (Art. 58)
• Sales promotions which have been accepted by the operator should be fairly and honestly handled, and properly administered by the operator (operator’s employees) (Art. 59)
• 1. Sales promotions involving any specific responsibility on the part of the intermediary should be so handled by him/her that no misinterpretation is likely to arise in particular as to the terms, value, limitations or availability of the offer subject to the sales promotion. 2. In particular, the operator should adhere to the plan and conditions of the promotion as laid down by the promoter. No changes of the agreed arrangements, e.g. alteration to the time-limit, should be made by the operator without the prior agreement of the promoter (Art. 60)
• 1. Sales promotions containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with other principles of fair competition. 2. Points of comparison should be based on verifiable facts and should not be unfairly selected. Article Art 11 of the Code shall be applicable per analogy (Art. 61)

SMB Polish Marketing Association Code of Ethics
(some translation enhanced)

Section 14 Promotion and Advertising, in context of mail order and catalogue selling

1. Trader’s (i.e. businesses/ companies), which as part of a promotional offer, carry out bonus sales (contests, draws/ lotteries etc.) undertake to observe all legal regulations governing this type of activity. It is the trader’s responsibility to set out clearly and precisely all the terms and conditions upon which the sales are carried out (14.1)
2. If the sending of the reply is tied to participation in a contest, the offer should specify the exact deadline/ cut-off date for sending replies, which will enable participation in the contest (14.2)
3. The deadline for sending applications should be set at least one month from the date of sending the offer (14.3)
4.  Each ticket in a lottery must have an equal chance of winning (14.4)
5. Winners must receive the prize within six weeks of the end of the promotion unless they have been informed in advance about another date. Companies should strive to ensure that the prize or the information about the prize is sent within three weeks of the contest or lottery closing date (14.5)
6. All restrictions on the availability of the prizes should be truthful and justified (14.6)
7. Traders undertake not to use the type of promotion referred to as “Everybody wins/ Win-Win/ Everybody is a winner” ("Wygrywa każdy"). This slogan is understood to mean any free lotteries or prize draws in which the consumer is informed about the supposedly random drawing of the prize (14.7)
8. The determining factor is chance/ luck. Where the trader has decided to give away the same or similar goods to all or most of the consumers, it is prohibited to use such terms as “prize” (nagroda), “you have won” (wygrałeśś), “you have most likely won” (najprawdopodobniej wygrałeś), or “see if you have won” (sprawdź, czy wygrałeś) and others. Such given goods shall be referred to as “gifts for everybody” (prezentami dla każdego), and not “prizes” (nagrodami) (14.8)

KEY CLAUSES LEGISLATION

The Law on Counteracting Unfair Commercial Practices PO / EN 

Aggressive commercial practices which are unfair in all circumstances:

• Creating the impression that the consumer has already won, will win unconditionally, or will win on taking a particular course of action, a prize or other equivalent benefit, when in fact claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring other costs (Art. 9.8)

Misleading commercial practices which are unfair in all circumstances:

• Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent (Art. 7.19 UCPA)
• Presenting a product as ‘gratis’ (gratis), ‘free’ (darmowy), ‘without charge’ (bezpłatny) 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 (Art. 7.20 UCPA)

Act on the Provision of Services by Electronic Means PO / EN (Art. 9.2.2)

• (Electronic) commercial communications must include: a clear description of the form of promotional activities, in particular price reductions (discounts), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the clear identification of the conditions necessary to take advantage of these benefits, if they are a component of the offer

The Unfair Competition Act UCA PO / EN translation note here

• The following is an act of unfair competition: the sale to consumers of goods or services with the award to all or some purchasers of the products or services with a free bonus in the form of products or services different from those representing the subject of the sale, notwithstanding the point below (Art. 17a.1)
• The above-mentioned sale is not an act of unfair competition if the bonuses are goods or services (Art. 17a.2(1-2):
   

• of low value or a sample of the product
• won in promotional lotteries organised under the rules on gambling or contests/ competitions the result of which does not depend on chance 

Gambling Act

The Gambling Act of 19 November 2009 PO: relevant to a prize draw (promotional lottery) where participation in the promotion is conditional on the purchase of goods, services or another game ticket. Note: If the purchasing of goods, services or another game ticket is optional (i.e. participation in the promotion is not conditional on the purchase of goods, services or another game ticket), the game should be generally treated as a prize promotion, not as a lottery. Scope: The Gambling Act applies to gambling games (gry hazardowe) which includes 3 main categories (games of chance, betting, slot machines). Promotional lotteries come under the games of chance category

Definitions and conditions

• Games of chance: "games for cash or in-kind prizes, the result of which depends in particular on chance, and the rules of which are specified in the terms and conditions of a given game” (Art. 2.1 Gambling Act)
• Games of chance includes: Promotional lotteries, where participation in a free-of-charge lottery occurs by purchasing a product, a service or other game ticket and the entity organising the game/ lottery offers cash or in-kind/ material prizes (Art. 2.1.10 Gambling Act) 
• Organising promotional lotteries requires a prior permit (Art. 7.1 GA); online promotional lotteries are now permitted, following amendment to the act (Art. 5 (1b) GA): Art. 7.1 Gambling Act: promotional lotteries can be organised by natural persons, legal entities and non-legal entities under the permit granted
• Gambling on the Internet, with the exception of pool betting and promotional lotteries, is governed by the state monopoly. Up until amendment to the Gambling Act via Act of 15 December 2016 (via Art. 1 (5)), online betting was the only form of online gambling permitted in Poland

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

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

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

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

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

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