General

Council adopts new rules on markets in crypto-assets (MiCA). 16 May, 2023

The ICLG Consumer Protection Report 2023. 17 jurisdictions 

What's Going on With Self-Regulation Globally? Frankfurt Kurnit Klein & Selz PC/ Lex

ICC Diversity and Inclusion in Advertising. March 8, 2023

'Provides related current ICC provisions and self-regulatory rules, industry best practices and initiatives 
to diversity and inclusion matters in marketing communications and advertising'

Metaverse advertising - applying old rules to a brave new world. DLA Piper Feb 28, 2023.

 Explains the likely impact on regulation in the U.K. and cross-border 

Advertising in the Metaverse: a New Virtual Legal World
Charles Russell Speechlys/ Lex. Feb 1, 2023

Environmental

Greenwashing: Key Drivers, Risks. May 22

EU/ UK. 'High end' view from Latham & Watkins LLP

Developments in the UK, US and EU

Covington and Burling/ Lex May 5, 2023 

WFA Sustainable Marketing 2030. May 2023

'Close the gap between intent and action.'

ESG update Macfarlanes/ Lex 4 April, 2023*

Covers Asia-Pacific, Australia, European Union, United Kingdom, USA 

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

Greenwashing: Existing and Forthcoming Legislation in the UK & EU 

Above from Jones Day; April 21, 2023

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

EC press release on the above here, feedback request here, GALA here. Status May 2023

There's a lot of legal comment on this proposal. Four pieces linked here

Risks of misleading environmental marketing in China, Canada, France, Singapore and the UK 

Gowling WLG/ Lex, September 20, 2022

Proposal for a Directive on empowering consumers for the green transition

Above March 30, 2022. Will impact UCPD. Status May 2023

Digital/ data privacy

Privacy Sandbox next steps. May 18, 2023

EU hits Meta with record €1.2B privacy fine. May 22, 2023

A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU

Mark Scott of Politico discusses a global AI rulebook and digital policy making data rules. 20th April, 2023*

EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023*

Data Protection update March 2023. Stephenson Harwood LLP. EU, UK. April 5, 2023

The EU's Digital Services Act reaches its first milestone as the UK's Online Safety Bill weaves towards the finish*
Travers Smith LLP/ Lex. February 20, 2023

Data Protection update - December 2022-January 2023. February 2, 2023
Stephenson Harwood LLP/ Lex. Includes Australia, EU, France, Global, Ireland, Japan, Russia, UK, USA 

Google Analytics, Cookies and GDPR. Outside GC LLC/ Lex January 2023. U.S. EU & France. RR*

Countdown to 2023: Privacy Compliance Checklist for The End of The Year. Kilpatrick Townsend & Stockton LLP. Dec 2022

Above covers new state privacy rules in the US, GPC signals and EU/US data transfers

The Digital Markets & Digital Services double Act take the stage. GALA/ Lex. October 28, 2022. Simple and broad explanation with a nod to the U.K.

Children

Faced with Increasing Pressure, Roblox Adopts New Advertising Standards

GALA Aprl 18, 2023. Ad standards are here

New Utah Law Regulates Social Media for Children. Vorys Sater Seymour and Pease LLP/ Lex April 3, 2023

From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
 The new strategy for a better Internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here

* Recommended read

Advertising, Media and Brands Global Compliance Challenges

Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA

Top 10 issues for 2023 GALA/ Lex. Feb 23 2023. U.S., global

Top 10 Advertising and Marketing Issues for 2023

Global, USA. Davis & Gilbert/ Lex January 24, 2023

Marketing & advertising tips, traps and trends for 2023

Canada and EU. Smart & Biggar/ Lex Jan 2023

December 2022: ICAS publishes 2021 Factbook and Global SRO Database 

Chambers Global Practice Guide Advertising & Marketing 2022

Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland

 DLA Piper's Advertising Laws of the World August 31, 2022. '13 key jurisdictions.'

Data

A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU

Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023

DLA Piper's Data Protection Laws of the World Handbook 2023 edition

2023 Top Privacy Issues: New Laws & Expanded Enforcement. GALA/ Lex Jan 2023. U.S. & EU

Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively

1. PROHIBITIONS

• Audiovisual commercial communications of drinks with an alcohol content above 20% ABV are prohibited except between 0100 and 0500 hrs. (Art. 123 AV Gen Law 13/2022 (EN key clauses inc. 2022 amends) and article 5.5 General Advertising Law 34/1988 (EN key clauses inc. 2022 amends) and:
• The advertising of beverages with an alcoholic strength of more than 20% ABV shall be prohibited in those places where its sale and consumption is prohibited (Art. 5.5 Law 34/1988); note: essentially, that means public places/ thoroughfares, though there can be regional differences in autonomous communities; more information under Outdoor in our channel section C; it also means that beverages with alcohol content below 20% ABV can be advertised, even in places where its sale or consumption is prohibited. (Explanation from Autocontrol: Art. 5.5 Law 34/1988 on General Advertising was modified by the Seventh Additional Disposition of Law 12/2012 on Urgent Trade Liberalisation Measures. The amendment introduces the possibility of advertising beverages with alcoholic content below 20% ABV, even in places where its sale or consumption is prohibited. With the previous regulation, the advertising in these places of all alcoholic drinks regardless of its strength was prohibited) 
• Beverages below 20% are subject to an 8.30 watershed and all, of course, also subject to heavy restrictions on advertising content - set out below. Some drinks that are technically spirits have an ABV of less than 20%, and are therefore allowed to advertise on TV etc.
• Nutritional and health claims relating to drinks containing more than 1.2% of alcohol by volume are prohibited, with the exception of those which refer to a reduction in the alcohol or energy content of an alcoholic beverage (Art. 4 (3): 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)

2. BEER

Relevant national legislation and Industry codes

• General Law on Audiovisual (AV) Communication 13/2022 here (EN key clauses inc. 2022 amends)
• General Law on Advertising 34/1988 here (EN key clauses inc. 2022 amends)
• Self-Regulatory Code of Advertising from Cerveceros de España (Brewers of Spain) 
  http://www.g-regs.com/downloads/SPAlcBrewersCodebEN.pdf (EN) (ES)

The General AV Law (applicable to audiovisual communications) article 123/3 prohibits commercial communication which:

1. Is specifically directed at minors, or presents minors consuming said beverages
2. Associates consumption with improved physical performance or with driving
3. Gives the impression that its consumption contributes to social or sexual success, or associates, links or relates it with ideas or behaviours that express personal, family, social, sports or professional success
4. Suggests that alcoholic beverages have therapeutic properties, or a stimulating or sedative effect, or that they constitute a means of resolving conflicts, or that they have health benefits
5. Promotes immoderate consumption or offers a negative image of abstinence or sobriety
6. Underlines alcohol content as a positive quality of the drinks
7. Does not include a message of moderate consumption and of low risk

General principles applicable to all Beer marcoms 

• Must be legal, honest, truthful and in accordance with the principles of fair competition and good business practices
• Must be developed with a sense of social responsibility based on the principles of good faith and fairness between the parties concerned
• Must under no circumstances infringe the bounds of ethics, human dignity and human integrity (from the Brewers' Code preamble)

Headings are not necessarily in the same order as those shown in the code itself; clauses are identified

• 2.1. Misuse. Beer marcoms must not:
• Describe situations that create the impression of excessive consumption and consumption associated with psychotropic substances and/ or tobacco (Chap. 3 (5))
• Show people in a state of intoxication or highlighting ‘drunkenness’ as positive exemplary behaviour (Chap 3, point 7)
• Encourage aggressive or violent behaviour - equally, the consumption of beer may not be associated with the use or handling of weapons and explosives (Chap. 3 (9))

• 2.2. Dangerous activities/ sports issues. Beer marcoms must not:
• Link drinking with the use of dangerous machinery (Chap. 6 (2))
• Reflect that the consumption of beer improves performance in sport (Chap. 3 (11))
• Suggest that there is a ‘safe level’ for the consumption of alcohol or that there is a product that can mask the effects of alcohol on a breathalyser test (Chap. 5 (2))
• Link the consumer with the act of driving (Chap. 5 (3))
• Commercial communications of alcohol-free beer may be recommended as a consumption alternative in connection with driving (Chap. 5 (7))

• 2.3. Alcohol content. Beer marcoms must not place emphasis on high alcohol content as being a positive attribute of the beverage (Chap. 3(6))
• 2.4. Medical/ nutritional aspects. Beer marcoms must never be aimed at people undergoing medical treatment in general and pregnant women in particular, nor can they give the impression that the consumption of beer has any therapeutic effect on them (Chap. 3 (11))

​

• 2.5. Performance/ work. Beer marcoms must not:
• Make a positive connection between the consumption of alcoholic beverages and good performance at work and job success
• Show consumption of alcoholic drinks in a working environment unless it is clearly established that the working day has ended
• Be linked with the use of dangerous machinery (Chap. 6 (1-3))

General principles; Chap. 2, B: Prevent design or promotion from being aimed at minors, paying attention to the following elements:

• Use of designs or codes of communication likely to be aimed at children or minors
• Use of minors or people appearing to be minors drinking or encouraging the consumption of beer in campaigns
• Allusions or images related to the consumption of drugs and tobacco
• Links with violence or antisocial behaviour
• Insinuations of social or sexual success associated with the consumption of alcohol
• Encouragement of minors to consume alcohol
• Sponsorship or advertising at events or on supports or media specifically aimed at minors
• The distribution of alcoholic beverages to minors free of charge as well as the sale or distribution of promotional products specifically designed for children and minors free of charge

Specifically marcoms:

• Must not be aimed at minors under 18 years of age
• Labelling of beer containers must include a +18 graphic/symbol (Annex I); only applicable to beer brewed and marketed in Spain

• Must only use actors who are at least 21 years old (also applies to non-alcoholic beer)
• Must not suggest that the consumption of beer is a sign of maturity and that not drinking is a sign of immaturity
• Must not show people who give the impression that they used to drink beer when they were minors
• Must not use designs, codes of communication, fictional characters or people specifically connected to child audiences or minors (also applies to non-alcoholic beer)
• No type of beer or promotional material designed especially for child audiences or minors must be produced or distributed (Chapter 4 (3-7; also applies to non-alcoholic beer)

• 2.7. Social success. Beer marcoms: 
• Must not indicate that beer consumption contributes to the reduction or disappearance of feelings of anxiety, internal conflict or feelings of social maladjustment as a result of its consumption.  It may never be suggested that drinking beer on one’s own contributes to the solution of these problems (Chap. 3 (8))
• May reflect the pleasure of communication, conviviality and socialising accompanying the responsible consumption of beer but must never imply that drinking is necessary for a successful social or working life or that non-drinkers are less accepted or less successful than those who drink (Chap. 3 (9))
• Must not claim or suggest that beer can help to overcome shyness (Chap. 3 (10))

• 2.8. Sexual aspects/ discrimination. Beer marcoms must not: 
• Make sexist references that misrepresent the role of women in society (Chap. 3 (12))
• Claim or suggest that beer can contribute to sexual attraction or success (Chap. 3 (10))
• Contain any type of discriminatory reference on the basis of race, sexual orientation, religion or political inclination (Chap. 3 (13))

Responsible Consumption Message

'(The corresponding trademark/ beer brand) recommends responsible consumption' ‘(la marca correspondiente) recomienda el consumo responsable’

• The message must be presented in a legible format for the target audience and must always appear horizontally
• Applies to television spots, newspaper and magazine advertisements and outdoor hoardings (excluding supports located at the tops of buildings, monoposts/column or similar)
• For TV advertising: the caption must appear in lettering with a font size of 26.  Exposure time must be 3 seconds in spots of up to 10 seconds; 5 seconds in spots of between 11 and 30 seconds; and 7 seconds in spots longer than 30 seconds

Exemptions: any type of non-conventional advertising which lasts less than ten seconds, e.g. sponsorship (Ch. 3 (2))

3. WINE

Relevant national legislation and Industry codes

• General Law on Audiovisual (AV) Communication 13/2022 here (EN key clauses inc. 2022 amends). Clauses set out above under Beer 
• General Law on Advertising 34/1988 here (EN key clauses inc. 2022 amends)​
• The Wine Code of Commercial Communication January 2021, from the Spanish Wine Interprofessional Organisation (OIVE) 
• https://www.autocontrol.es/wp-content/uploads/2021/03/codigo-comunicacion-comercial-vino_2021.pdf (ES)
  https://www.autocontrol.es/wp-content/uploads/2021/03/code-for-wine-commercial-communications_2021.pdf (EN)

The Wine code 

The code is set out verbatim from the original English version linked above; translation has not been enhanced. See the code for preamble, full scope, compliance, sanctions etc. The code ‘should be applied to all wine commercial communications’, related definitions here

Principles (Ch. V)

• “Communications” are welcome to outline the wine sector and/or any of the specific attributes of wine (e.g., origins, tradition, vinification process, specific features, and product service), as well as other activities related to leisure, joviality or socialitazion in a moderate and responsible consumption context
• By no means, “communications” are allowed to encourage, under any circumstances, any kind of irresponsible and/or abusive consumption of wine

Communications must respect the following principles:

• 1-3. Legality, Veracity, Good faith . Wine commercial communications must comply with legislation in force, regarding content, broadcast method or whatever the form it might take
• All "Communications" regarding wines must be decent, honest and truthful
• All “communications” regarding wine must bear in mind their social responsibility. Thus, they will meet the good faith requirements and good business practices, regardless their content, the type of media or the way they are consumed
• “Communications” must not be amoral or discriminatory. They must not violate the accepted standards of good taste and decency neither be an affront to human dignity and integrity

"Commercial communications" shall never:

• Encourage or tolerate excessive or irresponsible consumption of wine. Neither this kind of behavior nor abstinence or moderate wine consumption shall be trivialized
• Suggest any type of connection with violence, aggressiveness or any antisocial, illegal or dangerous behavior
• Display situations of abusive consumption. They shall not exhibit people showing signs of excessive consumption or somehow accepting it

• 1. Messages of moderate and responsible consumption. Wine communications shall foster responsible wine consumption. To this effect: 

1. Commercial communications being visible enough must include: 

• The Wine in Moderation logo, according to the style guide found in annex 1
• The 'Wine - only appreciated in moderation' message
• This obligation shall NOT apply to:

1. Freely expressed contents on mass media based on press releases, as long as they are not a paid job or whenever the content has been published without the member being able to control it
2. Product labeling, where is an opt-in
3. Winemakers sponsoring an activity or event in any advertising campaign
4. Corporate advertising whenever not promoting products or consumption

2. On a voluntary basis and in those cases where the aforementioned logo and message is mandatory, it is strongly recommended use the logos included in annex 2, or similar ones
3. Radio spots with a duration of more than 20 seconds are only obliged to include the “Wine only appreciated in moderation” message or an equivalent one
4. The message referred to on point a) applies to Spain

The Code (EN) includes details in the annexes on how and where to apply the moderate consumption messages/ logo and in summary in this page of the Code

• 2. Misuses

1. Shall not encourage or tolerate excessive or irresponsible consumption of wine. Neither this kind of behavior nor abstinence or moderate wine consumption shall be trivialized
2. Shall not display situations of abusive consumption. They shall not exhibit people showing signs of excessive consumption or somehow accepting it
3. Shall not suggest any type of connection with violence, aggressiveness or any antisocial, illegal or dangerous behavior

• 3. Alcoholic strength 

1. Commercial communications must not lead to confusion when informing about wine’s alcoholic strength
2. Whenever commercial communications inform about wine’s alcoholic strength, they shall do it for the purposes of information only
3. Commercial communications must not give the wrong impression that high alcohol content is a positive attribute of wine nor a purchase trigger
4. Commercial communications must not give the wrong impression that low alcohol content wines prevent from abusive consumption

​

1. Websites of those companies where this code is applied must set up an age control system in order to prevent minors from entering
2. Commercial communications must not be intended for minors, nor display minors or people looking like minors drinking or encouraging wine consumption
3. Commercial communications must not be broadcasted by mass media intended for minors²
4. Commercial communications must not suggest that abstinence is equivalent to immaturity
5. Commercial communications must not suggest that consumption triggers growth or maturity
6. Commercial communications must not use any appealing element (objects, people, images, styles, symbols, logos, colors, music or characters) for minors. An effective system to avoid minors from accessing commercial communications is age control tools or parental control apps. Audiovisual media can use age groups audience figures
7. Those advertising legal restrictions applied to alcoholic drinks shall also apply to non-alcoholic drinks commercial communications

(2) An effective system to avoid minors from accessing commercial communications is age control tools or parental control apps. Audiovisual media can use age groups audience figures

• 5. Drinking and driving and other potential risky activities, recreational or job related. Commercial communications must not associate wine consumption with driving or operating with potentially dangerous machinery, nor with any type of recreational activities or those implying third parties’ responsibilities

• 6. Workplace. Commercial communications must not associate wine consumption with permanent workplaces nor with people consuming wine while working, with the exception of workplaces or people directly related to wine as a profession

• 7/8. Health issues, pregnancy. Commercial communications shall not claim or suggest wine having health properties, or wine consumption helping preventing, treating or healing any kind of human illness by any medical effect

• Commercial communications must not display pregnant women while drinking or specifically target pregnant women
• 9. Psychosocial aspects (disinhibition, anxiety and psychic conflicts) Commercial communications shall NOT:
• Claim the disinhibiting effect of wine consumption
• Suggest that wine consumption helps overcoming shyness and fear, or invite to transgression
• Display situations that might suggest that wine consumption helps to reduce or eliminate social maladjustment, anxiety or psychosocial conflicts and, in general terms, they shall never suggest or present solitary drinking as a mean to solve this type of problems
• 10. Performance abilities. Commercial Communications must not give the false impression that wine consumption improve mental or physical capacities
• 11.  Social success. Commercial communications are allowed to display people socializing or cohabitating but shall not:

1. Suggest that wine consumption helps social acceptance or social success
2. Suggest that abstinence is equivalent to social, work or business failure

• 12. Sexual issues 

1. Commercial communications must not display images discriminating or degrading men or women, nor share any kind of stereotype, feminine or masculine, or images or to incite violence
2. Commercial communications must not suggest that wine consumption enhances sexual strength, nor stimulates sexual appetite or leads to sexual encounters​

4. SPIRITS

Relevant national legislation and Industry codes 

• General Law on Audiovisual (AV) Communication 13/2022 here (EN key clauses inc. 2022 amends)
• General Law on Advertising 34/1988 here (EN key clauses inc. 2022 amends)​
• Spanish Spirits Association Advertising Self-Regulation Code (Federación Española de Bebidas Espirituosas Abbrev. FEBE):
  Applicable version in Spanish here; AC translation below:
  https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_febe_en.pdf (EN)

Prohibitions

• Audiovisual commercial communications of alcoholic beverages with an alcohol content above 20% ABV are prohibited except between the hours of 0100 and 0500 (Art. 123/4 Gen Law 13/2022); and article 5/5 General Advertising Law 34/1988
• The advertising of beverages with an alcoholic strength of more than 20% ABV shall be prohibited in those places where its sale and consumption is prohibited. Note: not all spirits exceed 20% ABV

Chapter II General deontoligical principles 

• Article 4. Legality principles. The advertising of beverages to which this Code applies shall comply with the legislation in force, whatever its content, the dissemination medium or the form that it takes
• Article 5. Fairness principle. The advertising of beverages to which this Code applies shall meet the requirements of good faith and good business practices, whatever their content, the dissemination medium or the form that they take
• Article 6. Veracity principle 6.1. The advertising to which this Code applies shall be truthful and identifiable as advertising
• 6.2. The advertising to which this Code applies shall avoid any error as to the alcoholic strength of the beverage advertised. To this effect, advertising that is visually perceptible shall inform consumers in a clearly legible format of the alcoholic strength of the beverage advertised in accordance with the conditions set out in Article 7 
• Article 7. Social responsibility principle. 7.1. The advertising to which this Code applies, both in its content and in its form and dissemination, shall be effected with a sense of social responsibility
• 7.2. The advertising to which this Code applies shall not encourage abusive consumption. To this effect, advertising which is visually perceptible shall include the Responsible Consumption Message indicating that moderation is a basic premise for responsible consumption. The said message shall be common to all FEBE member companies and shall be displayed to consumers in a clearly legible format. To this end, the FEBE Responsible Consumption message:

1. Must be affixed in a clearly visible place
2. Must have a minimum size equivalent to 1% of the total area of the advertisement; when it is a question of advertising in cinemas or on television, it must have a minimum size of 1.5% of the total area of the advertisement and must be displayed for at least 2 seconds
3. Must be printed in a colour which allows it to be clearly visible and legible against the background of the advertisement
4. Must be accompanied by an indication of the alcoholic strength of the product, in the same format and colour and immediately following the said message

• 7.3. Additionally and voluntarily, FEBE member companies may include in their promotional material the FEBE Responsible Consumption Message or any other moderation message, in accordance with the parameters established in Article 13 below
• 7.4 The FEBE General Assembly may complete and/ or modify the parameters relating to the FEBE Responsible Consumption Message indicated in subparagraph 7.2 above

​

Chapter III. Deontological principles relating to advertising content 

• Article 8 References to consumption. The advertising to which this Code applies:

1. may highlight the pleasure of communication, conviviality or socialising associated with responsible consumption, but may never suggest that nonconsumption is synonymous with immaturity, failure in social or working life or in business or that non-consumers are less accepted or are less successful than consumers;
2. may not reflect situations of sexual success or suggest that consumption may contribute towards professional success, may enhance sexual attractiveness or may help to overcome shyness;
3. may not show situations inferring that consumption contributes towards reducing or eliminating problems of social maladjustment, anxiety or internal conflicts and, in general, may never suggest that consumption in solitude helps to solve this type of problem;
4. may not show situations in which it may be inferred that consumption improves physical or mental efficiency;
5. may not attribute to beverages the possibility or preventing, treating or curing diseases or indicate that they have therapeutic properties, and may not be specifically aimed at persons undergoing medical treatment;
6. may not show or be specifically aimed at pregnant women;
7. may not show images of women of a discriminatory or degrading nature or stereotypical female images that may encourage violence;
8. may not present situations of abusive consumption;
9. may not present a high alcoholic strength as a positive quality or allow it to be inferred that a low alcoholic strength justifies immoderate use;
10. may not show abstinence or moderate consumption in a negative light;
11. may not associate drinks with situations of violence, aggression, danger or antisocial behaviour; may not associate consumption with carrying out a job which involves responsibility for third persons or a high-risk activity, or suggest that it has a positive effect on performance.

• Article 9. Road safety. 9.1 The advertising to which this Code applies may not suggest that a minimal amount of alcohol can be consumed without a risk to driving and road safety. Nor may it show situations which associate alcohol consumption with driving vehicles or allow the appearance in the content of the advertising message, in a primary and not merely secondary manner, of vehicles or elements directly linked with driving, regardless of whether or not this is in a driving situation, except for cases of responsible consumption campaigns.
• 9.2. The advertising to which this Code applies may not be inserted in motor magazines or other publications or in specialised supplements or sections of magazines or other publications whose main content is motor vehicles

• Article 10. Minors.10.1. The advertising to which this Code applies may not be specifically aimed at minors
• 10.2 Minors may not play a part in or figure in advertising to which this Code applies
• 10.3 The models in advertising to which this Code applies must not be under 23 years of age
• 10.4. The advertising to which this Code applies and the presentation of beverages included in its objective scope may not use images, drawings, icons, fictional persons or persons of public renown directly or fundamentally connected with minors
• 10.5. With a view to reducing the impact of the advertising to which this Code applies on minors:

1. the said advertising may not be broadcast on television or radio or shown in cinemas during, immediately before or immediately after programmes or sessions specifically intended for minors or the majority of the audience for which are minors
2. the said advertising may not be broadcast on television until the beginning of the news in the evening/night and in no case before 20:30
3. the said advertising may not be inserted in publications aimed at minors or on pages for minors in publications not specifically intended for them
4. when the said advertising is direct and, in particular, when it is a question of sending out leaflets, graphic advertising and other advertising media by any means to a particular consumer or predetermined consumers, in this case it must be sent to adults and, to this effect, its external presentation shall indicate the name of the adult to whom it is addressed and its internal content shall include the words “Not suitable for minors” or similar, clearly establishing that the said advertising is in no case intended for minors

• 10.6.The advertising to which this code applies, in both the printed press and broadcast media, shall only be shown during the hours, programmes or sections of the said media output, when at least 70% of the audience are reasonably expected to be adults of 18 years or older

​

1. Article 11. Corporate advertising. Corporate advertising by companies manufacturing, importing or marketing beverages to which this Code applies is legal whenever it sets out to attain a certain and reasonable objective within the company’s corporate communications plan
2. Nevertheless, corporate advertising may not be used as indirect advertising of particular beverages or brands whose advertising is prohibited in the medium through which it is disseminated. In order to prevent any supposition of illegal indirect advertising within the meaning of the previous paragraph, corporate advertising shall at least fulfil the following conditions:

1. no corporate name, business name or other distinctive sign substantially identical to a brand whose advertising is prohibited in the medium through which it is intended to disseminate advertising may be used except in the hypotheses considered in this Article
2. the complete corporate name or business name of the advertiser must be given
3. the design of the advertising message must not evoke a beverage or brand, even without its being expressly mentioned, the advertising of which is prohibited through the medium in which it is intended to disseminate the advertising, using all necessary means to ensure that the consumer perceives without any confusion that it is not a question of advertising a beverage or brand prohibited in the medium through which it is intended to disseminate the said advertising
4. it may not immediately precede or follow or coincide in time with advertising campaigns for brands or beverages leading to the recipient’s possibly establishing a direct link between them

3. In particular, it shall be legal to use corporate advertising which, complying with the above-mentioned criteria, is carried out on the occasion of events of relevance to the legal-business life of the company which reasonably justifies its use, such as a stock exchange flotation or a share or bond issue

• Article 12. Brand extension advertising. 12.1. The use of a brand of one of the beverages to which this Code applies to designate another product, alcoholic or otherwise, or a service is the right of a company established by legal edict.
• 12.2. Nevertheless, advertising a product identified through a brand identical or similar to one of the beverages to which this Code applies must not be used as a form of indirect advertising of the said beverage in media in which its advertising is prohibited. In order to prevent any supposition of illicit indirect advertising within the meaning of the previous paragraph, brand extension advertising for the products to which this Code applies shall fulfil the following conditions at least:

1. it must correspond to a real and reasonable intention to place the new product on the market;
2. once the product has been launched on the market, for its advertising to continue it must be possible to demonstrate that an average weighted distribution is being made, detectable on an independent index confirming its continued marketing;
3. it must clearly identify the product that is the subject of the advertising, so that the consumer is aware of its nature, using all necessary means to ensure that the consumer perceives without any confusion that it is advertising for a product different from that whose advertising is prohibited in the medium in which it is intended to disseminate it;
4. the advertising must not use common slogans, images or motifs that can be associated by the consumer with previous, simultaneous or subsequent campaigns relating to the beverage whose advertising is prohibited in the medium in which its intended to disseminate it.

• Article 13. Responsible consumption advertising. 13.1. FEBE member companies and the beverages to which this Code applies which they produce or market may use advertising messages within their own Responsible Consumption Advertising (“Responsibility Advertising Message”). However, there must be no risk of confusion in consumers’ minds which may lead them to think that the said Responsibility Advertising Message is a sectoral message.
• 13.2 In view of the above, any FEBE member company intending to carry out Responsible Consumption Advertising must in all cases ensure that there is sufficient differentiation between on the one hand its Responsibility Advertising Message and on the other hand the FEBE Responsible Consumption Message, which means that the text of its Responsibility Advertising Message:

1. must always be clearly linked to the brand or business name of the member company that uses it;
2. must never be similar or sufficiently like the FEBE Responsible Consumption Message or use the same terms, even though structured differently, or the same typography;
3. must always be larger than the FEBE Responsible Consumption Message and must appear in a clearly differentiated place where it can never be confused with the FEBE Responsible Consumption Message.

• 13.3 The Responsibility Advertising Message must not:

1. make responsible use of the beverages to which this Code applies appear commonplace or trivial, evoke fear or negative feelings or denigrate or have a negative impact on the image of FEBE or any of its members;
2. mislead;
3. be associated with any content or conduct not permitted by this Code;
4. be used for direct or indirect advertising for products or companies associated with FEBE, including advertising in those media in which the advertising of alcoholic beverages is not permitted, or be used in any other way to evade legal or self-regulation prohibitions in force as regards the advertising of the beverages covered by this Code

• Article 14. Sponsorship. 14.1 Sponsorship is that activity whereby a natural or legal person, called the sponsor, contributes towards the financing of any kind of social, cultural or sports event or a spot in communication media to the benefit of another natural or legal person, called the sponsored, with the objective of promoting the name, brand, image, activities or relations of the sponsor. Simply contracting for static advertising at events does not constitute sponsorship, which in any case must comply with the legislation applicable in this field
• 14.2. Sponsorship, and especially sponsorship of radio and television programmes, shall comply with the applicable legislation concerning the advertising of alcoholic beverages. In so far as the beverages to which this code applies are concerned, FEBE member companies may not:

1. sponsor events specifically aimed at or minors or in which minors mostly participate;
2. sponsor events which are broadcast on television when the main objective of the said sponsorship is promotion through the medium of television of any alcoholic beverage whose advertising is prohibited in this medium. Promotion through the medium of television is considered to exist when there is a consideration for the medium on the part of the member company, whether directly or through the organiser of the event or any other intermediary. Nevertheless, it is to be understood that promotion through the medium of television does not exist when the event is of informational interest in itself or forms part of sports competitions, cultural or social programmes, courses or series and any other acts provided that they are of an official nature

• Article 15. Advertising on the Internet. 15.1 Advertising on the Internet and the websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies, both on national sites or international sites intended for the Spanish public (henceforth called “websites”) is governed by the provisions of this Code
• 15.2 The websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies must show, on the first page of the section of the website where alcoholic beverages to which this Code applies are displayed or promoted:

1. the FEBE Responsible Consumption Message, in accordance with Article 7 above. In the case of international websites intended for the Spanish public, the obligations laid down in this subparagraph shall be deemed to be fulfilled when a message is introduced similar to the FEBE Responsible Consumption Message, in a language easily understandable to Spanish users and meeting all the obligations that are mentioned
2. For access thereto, a warning and a compulsory pass button which differentiates between adult users and non-adults and which the user must click in order to continue viewing the website, provided that he or she is an adult. The said button must appear in an immediately visible position as soon as the website opens and be of a size and colour making it clearly visible. If the user is not an adult, when the corresponding button is clicked the system sends the user back to the home page, refusing further access to minors
3. Likewise, when there are questionnaires on websites for any kind of survey or for participation in promotions applicable to Spanish territory, they must include a request for the complete date of birth (day, month and year) and the system must refuse access to the data process to minors, sending the user back to the home page of the website

• 15.3.Digital publicity on web site controlled by the advertiser or on social network should have a compulsory pass button for age confirmation were they interact directly with the user. The user should click in order to continue viewing the provided contents, the user should be at least 18 years old or above. If this is not the case, access should be blocked
• 15.4.Without prejudice to the responsibilities due to the current legislation, digital publicities created with the aim of reposting content, should clearly specify that are not aimed to underage people and can´t be forwardable to them

5. GENERAL ADVERTISING RULES 

The alcohol sector, as with any other, must also observe the general rules, i.e. those that apply to all advertising; rules are set out under the General tab below; principal self-regulatory source is the General Code of Advertising Practice (EN). In legislation, the core rules are those from Law 3/1991 on Unfair Competition and the General Advertising Law 34/1988 (both EN key clauses inc. 2022 amends)

1. ‘Acts of unfair competition’, which affect companies/ businesses as well as consumers, the latter in Articles 4, 5, 7 and 8, Chapter II
2.  ‘Commercial practices with consumers and users’ in Chapter III, Articles 19-31. This section regulates acts of misleadingness/ deception towards consumers

A. Acts of unfair competition; key points from Chapter II

Misleading acts (Art. 5; unofficial translation, 2022 amend in italics)

1. Any conduct containing false information or information that although true, by virtue of its content or presentation, leads or could lead its recipients to an error in judgement and is liable to alter their economic behaviour is considered misleading and hence unfair, provided that it has an impact on one of the following elements:

1. The existence or nature of the goods or services
2. The main characteristics of the good or service such as its availability, benefits, risks, execution, composition, accessories, 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 essential features of tests or checks carried out on the good or service
3. After-sales customer service and complaint handling
4. The extent of the entrepreneur's or professional's undertakings, the motives for the commercial practice and the nature of the commercial transaction or contract and any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the good or service
5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
6. The need for a service, part, replacement or repair
7. The nature, attributes and rights of the entrepreneur or professional 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
8. The consumer’s statutory or contractual rights or the risks he/ she may face

2. When the entrepreneur or professional indicates in a commercial practice that he is bound to a code of conduct, failure to adhere to the commitments assumed in that code is considered unfair, provided that the commitment is firm (not aspirational) and can be verified and, in its factual context, this conduct is likely to significantly distort the economic behaviour of its recipients
3. Any marketing of a good as identical to another marketed in other Member States is also considered unfair, when said good has significantly different composition or characteristics, unless it is justified by legitimate and objective factors

Misleading omissions (Art. 7)

Considered unfair (Art. 7.1):

1. The omission or concealment of information necessary for the recipient to make or be able to make a prior informed decision on his/ her economic behaviour is considered unfair. It is likewise unfair if the information provided is unclear, unintelligible, ambiguous, is not offered at the right time or the commercial purpose of that practice is not revealed when it is not evident from the context
2. The factual context of acts, taking account of all of their characteristics and circumstances and the limitations of the media employed, shall be considered in determining the misleading nature of the acts referred to in the preceding paragraph
   In assessing the existence of an omission of information when the media used imposes space or time limitations, such limitations shall be taken into account along with all the steps taken by the entrepreneur or professional to convey the necessary information through other channels

Article 9: Acts of denigration

• The creation or dissemination of statements about the activity, services, establishment or commercial relations of a third party that are designed to undermine or damage its credibility in the market is considered unfair, unless they are accurate, true and relevant. In particular, statements concerning the nationality, beliefs or ideology, private life or any other strictly personal circumstances of the person concerned, will not be deemed relevant

Article 10: Acts of comparison

Summary with relevant cases here

Public comparison, including comparative advertising by means of an explicit or implicit reference to a competitor, is allowed if the following requirements are met:

1. The goods or services compared must have the same purpose or meet the same needs
2. An objective comparison is made between one or more material, relevant, verifiable and representative features of the goods and services, which may include price
3. In the case of products protected by a designation of origin or a geographical indication, specific designation or a certified traditional speciality, the comparison may only be made with products of the same designation
4. Goods or services may not be presented as imitations or replicas of goods or services bearing a protected trade mark or trade name
5. The comparison may not infringe the provisions of Articles 5, 7, 9, 12 or 20 regarding misleading and denigrating acts and exploitation of another’s reputation

Article 12: Exploitation of the reputation of others

• The misappropriation, for one's own benefit or that of a third party, of the advantages of the industrial, commercial or professional reputation acquired by another party in the market, is deemed unfair
• In particular, the use of distinguishing signs of others or false designations of origin together with the real product origin, or expressions such as 'models', 'system', 'type', 'class' and similar, is deemed unfair

We have extracted and placed in the file below those articles from Law 3/1991 on Unfair Competition that are most relevant to marcoms: translation is unofficial and non-binding. Clauses include those transposed in 2022 from the Directive 2019/2161 relating to search rankings and consumer reviews:

http://www.g-regs.com/downloads/SPGenUnfCompExtracts2022EN.pdf

2.3.  Article 20: Royal Legislative Decree 1/2007 (RLD 1/2007) General Consumer and User Protection Act ES / EN key clauses unofficial translation

‘Invitation to purchase’

1. Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase, must contain, if not already apparent from the context, at least the following information:
    

a) Name, registered name and full address of the entrepreneur responsible for the product offered and, where appropriate, the name, registered name and full address of the entrepreneur on whose behalf he acts

b) The essential characteristics of the good or service, in a manner appropriate to its nature and to the means of communication used

c) The full and final price, inclusive of taxes, providing a breakdown, where appropriate, of the amount of additions or discounts applicable to the transaction and any additional costs being passed onto the consumer or user. In other cases where, owing to the nature of the good or service, the price cannot be accurately determined in the commercial offer, the consumer and user must be informed of the basis of the calculation in order to allow them to check the price. Similarly, when the additional costs being passed on to the consumer or user cannot be calculated in advance on objective grounds, they must be informed of the existence of these additional costs, and if known, their estimated amount

d) Payment procedures, deadlines for delivery and performance of the contract and the complaint handling policy, where they depart from the requirements of professional diligence, as defined in Article 4.1 of the Unfair Competition Law

e) Where appropriate, the existence of a right of withdrawal

2. For the purposes of complying with the provisions of the previous section and without prejudice to the sectoral regulations that may be applicable, the information required to be included in the commercial offer must be provided to consumers or users, mainly in the case of vulnerable consumers, in clear, understandable, truthful terms and in a format that ensures their accessibility, in such a way that secures their proper understanding and allows optimal decision-making for their interests
3. Failure to comply with the provisions of the preceding paragraphs will be considered unfair practice on the grounds of being misleading in the same terms as those established in article 7 of Law 3/1991, of January 10, on Unfair Competition
4. Commercial practices in which an entrepreneur enables access to consumer and user reviews of goods and services must contain information on whether or not the entrepreneur ensures that said published reviews have been made by consumers and users who have actually used or acquired the good or service. To this end, the entrepreneur must provide clear information to consumers and users about how reviews are managed
5. The burden of proof of compliance with the information requirements established in this article will fall on the entrepreneur
6. Failure to comply with the provisions of the preceding paragraphs will be considered an unfair practice as it is misleading in the sense of article 7 of Law 3/1991 of January 10 on Unfair Competition

2.4. Broadcast law; content rules

General Law on Audiovisual Communications 13/2022 of 7 July (ES; EN key clauses), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services. Includes rules on various sectors such as alcohol, medical products, rules related to children, surreptitious and subliminal advertising. Transposes the 2010/13 Directive and its amending directive 2018/1808

3. SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.1.1. Self-Regulation (national)

• Autocontrol’s General Code of Advertising Practice (EN)
• Commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour (art. 13)
• Sectoral Code, relevant mainly to cars: Self-Regulatory code on the use of environmental claims in commercial communications (2009) ES / EN 
• The Ministry of Agriculture and Fisheries, Food and Environment MAPAMA, Autocontrol, and companies from the energy and automotive sectors established a Code of Good Practice that guides companies in the development, execution and dissemination of advertising messages that include environmental claims. The Code applies only to the signatory companies

• Resolution 16.02.2012 ES:  re illegible information in advertising for Hyundai iX35; breach of Article 3.3 General Code of Conduct: the FC&CO2 data in a TV commercial were displayed on a scroll/ overlay that appeared on the screen so briefly they were impossible to read
• Resolution 03.12.2015 ES: Re cars 'parked' on the beach in a commercial for Volvo XC60. Contrary to Article 12, General Advertising Code The article Commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour and Article 33.5 of Law 22/1988 of 28 June on Coasts which establishes 'parking and unauthorised movement of cars is prohibited' on beaches and Article 72.1 of Royal Decree 876/2014 of 10 October which confirms that parking and movement of vehicles is prohibited on beaches

3.1.2. International Self-Regulation

• The ICC Advertising and Marketing Communications Code applies, in particular:
   
  • Section I: General Provisions 
  • Chapter D: Environmental Claims

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

• EU legislation in environmental marketing is confined to specific sectors such as energy-related and organic products; the UCPD applies to all claims made in B2C commercial practices, including those related to the environment
• Environmental claims may be reviewed inter alia under Articles 6 Misleading actions, 7 Misleading omissions and 12 of the UCPD; in Spain in Law 3/1991 on Unfair Competition (EN key clauses) articles 5 and 7 respectively, and article 21 which reflects Annex I of the UCPD regarding trust marks; see also Commission Guidance below

• On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). Section 4.1. for Sustainability and 4.1.1. for Environmental claims specifically
• Also helpful, albeit not 'a formal interpretation of community law', is the Compliance Criteria on Environmental Claims (2016) from the 'Multi-stakeholder Dialogue on Environmental claims.'

3.1.5. Comparative claims

Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising (MACAD) Article 4 MACAD / Article10 Law 3/1991 sets out the criteria under which comparative advertising is allowed. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 10 Law 3/1991 on Unfair Competition):

• 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

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)

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) 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 'claims checklist' is under the Appendix

Applicable self-regulation 

• Articles 18 and 19 ICC Code; see above or here
• ICC Statement on code interpretation and ICC reference guide on advertising to children here
• ICC toolkit: Marketing and advertising to Children (2017) here
• Framework for Responsible Food and Beverage Marketing Communications here
• WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children 
• For amalgamated ICC Code children’s provisions, from general provisions, data protection, and Digital Marketing Communications:
  http://www.g-regs.com/downloads/ICCChildrenCollection2018.pdf

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 

• ICC Framework for responsible marketing communications of alcohol here
• The International Alliance for Responsible Drinking (IARD) ‘Guiding Principles and Digital Guiding Principles
• In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
• World Federation of Advertisers; Responsible Marketing Pact (RMP) here
• Directive 2010/13/EU, the Audiovisual Media Services Directive (consolidated following amends from Directive 2018/1808)

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 (UCPD) TO BE AMENDED 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document which covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA

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

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

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')

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

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

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

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

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
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 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
7. 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

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 (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