Uploaded November 2018.
See individual countries for updates.
Alcohol
Populating November 2022
DISCUS Calls Out Skrewball Whiskey for Multiple Violations of its Advertising Code
Frankfurt Kurnit Klein & Selz PC/ Lex October 25, 2022
* Recommended read
NAD and Pernod Ricard May 17 2023
FTC Takes Aim Against Deceptive AI Practices.* Fenwick & West/ Lex May 5, 2023
Keep your AI claims in check. FTC blog February 27, 2023
FTC, DOJ, CFPB and EEOC Release Joint Statement on AI. April 25, 2023
FTC International monthly May 19, 2023
Marketing Campaigns Under Scrutiny for Potential FTC Law Violations
Klein Moynihan Turco LLP. Some helpful analysis of the FTC basics. April 18, 2023
AI Advertising: The FTC Prepares for Battle. McDermott Will & Emery/ Lex. March 9, 2023
Key Takeaways | Advertising and Marketing. McDermott Will & Emery/ Lex Feb 22, 2023
Covers basic requirements, social media engagement, consumer reviews and promotions
FTC Green Guides consultation extended to April 24, 2023; 'recyclable' workshop here; agenda here
Top 10 issues for 2023 GALA/ Lex. Feb 23 2023
Venable's Advertising Law Toolkit 2023
USA: What Advertising Law Issues Should You Keep an Eye on in 2023?
Frankfurt Kurnit Klein & Selz PC/ Lex. December 29, 2022
NAD's 2022 Annual Report: Advertising Compliance Roadmap
Squire Patton Boggs/ Lex March 20, 2023. Privacy, disclosures, children
If you're reading this through 'international' eyes, i.e. you have some experience of other countries' advertising regulatory systems, we think it's fair to suggest - broadly and somewhat simplistically speaking - that if there's a line that separates self-regulation on the one hand and legislation on the other as the principal influences in advertising's oversight, then the U.S. system sits on or around that line, rather as Germany does, whereas many other European countries fall primarily into the self-regulatory 'camp'. In other words, both regulatory mechanisms are important and influential and both need to be understood, but in the case of the biggest (in terms of household spending) consumer market in the world there are inevitably some complexities arising from a) the federal system, which means, in the idiom, a bunch of state laws that are often the first to be activated in the event of a dispute b) the highly significant role of the Federal Trade Commission which somewhat 'looms' above all other players and c) the generally more litigious environment in U.S. commerce. So, while the U.S. is obviously business-friendly and the biggest advertising market in the world, it is also a place where you need to keep your wits and lawyers around you.
There are three main pieces of federal legislation that govern marketing and advertising issues:
I. The Lanham Act. First in force on July 5, 1947. This is the federal statute that governs trademarks, service marks, and unfair competition. Also known as the Trademark Act and the emphasis is in that legal territory. The act is in four chapters: 1) The principal register, i.e. the main register of trademarks held by by the US Patent and Trademark Office 2) the supplemental register, which are trademarks that don't yet qualify for the principal register 3) general provisions and 4) the Madrid Protocol, the principal system for the registration of trademarks in multiple jurisdictions. For our purposes the key clauses are under Section 43a, now known as 15 U.S.C. §§ 1124–1125, extracted is 'any person who...(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. The Wikipedia entry is here and 9 Key Questions About Lanham Act False Advertising Suits, courtesy of Kramer Levin Naftalis & Frankel/ ALM, is helpful.
II. The FTC Act. You can find the act itself and its purpose and background here. 'Under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based. For some specialized products or services, additional rules may apply.' The advertising/ marketing section of the FTC's business guidance is essential reading as is Competition and Consumer Protection Guidance Documents for more specific category-based issues and papers. These are 'administrative interpretations of the statutes and rules administered by the Commission, and they are advisory in nature.'
III. The Dodd-Frank consumer protection act, known as the Dodd-Frank but the full title is actually the Wall Street Reform and Consumer Protection act; the consumer protection element is related to 'abusive financial services practices.' The act itself is here and its Wikipedia entry, for those of us who like things as simple as possible, here.
In addition to federal laws, each state has its own unfair competition law to prohibit false and misleading advertising. Examples are California's Unfair Competition Law and False Advertising Law; some explanation and cases here from Klein Moynihan Turco LLP/ Lex March 22, 2023
From the FTC business guidance: 'If you advertise directly to children or market kid-related products to their parents, it’s important to comply with truth-in-advertising standards. Check out the FTC's resources about COPPA, the Children’s Online Privacy Protection Act, December 2022 commentary from K&L Gates/ Lex here. The FTC also has a special page about food advertising to children and adolescents.' The full FTC Children's section, which contains some important advice and reports of FTC activities in this space is here. The FTC highlight the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, developed Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020). The more significant influence in this context, however, is probably The Children’s Advertising Review Unit of BBB National Programs (CARU), who publish August 2021 guidelines which are 'widely recognized industry standards.' The Children’s Food and Beverage Advertising Initiative (CFBAI) is another of the BBB's national programmes; its participants undertake to advertise only products that meet CFBAI’s strict Uniform Nutrition Criteria - 2021 annual report here. Sitting alongside that programme is the CCAI, the Children’s Confection Advertising Initiative, whose participants publicly commit not to engage in child-directed advertising and not to advertise in elementary schools.
Some cases and news
FTC files brief in Google v Jones. May 22, 2023
FTC Proposes Blanket Prohibition Preventing Facebook from Monetizing Youth Data. FTC May 2023
Faced with Increasing Pressure, Roblox Adopts New Advertising Standards
From GALA Aprl 18, 2023. Ad standards are here. CARU ruling here May 12
New Utah Law Regulates Social Media for Children. Vorys Sater Seymour and Pease LLP/ Lex April 3, 2023
California Age-Appropriate Design Code Act Impact. Frankfurt Kurnit Klein & Selz PC/ Lex. Feb 27, 2023
President Biden Urges Congress to Prioritize Children's Online Privacy
Katten Muchin Rosenman LLP. Feb 13, 2023
FTC to Digital Media Advertisers: It’s Time to Protect Kids. Venable LLP 24 October, 2022
Above includes news that FTC considering updating COPPA rule, in force since 2013
In 2022, US Congress introduced the Kids Online Safety Act (KOSA)
H&M's "More Sustainable" Claim is Not Misleading
Frankfurt Kurnit Klein & Selz PC. May 19, 2023
Ad Watchers: It’s not easy being green. What’s next in ESG?
BBB National Programs Inc. May 12, 2023
Filling the Gaps in the Green Guides
BBB National Programs Inc April 20, 2023
NARB on 'Every bottle back' initiative. BBB March 16, 2023
NAD Revisits Requirements for Aspirational Environmental Claims
Frankfurt Kurnit Klein & Selz PC/ Lex. Feb 28, 2023
Greenwashing in food and beverage marketing litigation.
The above from Michael Best & Friedrich LLP/ Lex. January 7, 2023
Do You Strive to Make Aspirational Benefit Claims? Lessons Learned from Recent Decisions
Above from GALA Dec 2022 references several cases re aspirational claims including Coke case below
Coke's aspirational claims are not actionable. Frankfurt Kurnit Klein & Selz PC November 20, 2022
The FTC's Guides for the Use of Environmental Marketing Claims, aka the 'Green Guides' are from October 2012, reportedly being updated in 2022, news of consultation here; EXTENDED TO APRIL 24. Helpful commentary and guidance on the issue from Orick Herrick and Sutcliffe/ Lex here March 1, 2023. 5 Key Takeaways | Bringing Clarity to an ESG Grey Area: Advertising Claims from Kilpatrick Townsend & Stockton LLP October 2022 provides some practical self-help in this tricky territory. Can You Make a "Recyclable" Claim if Recycling Facilities Accept the Product, But Don't Actually Recycle it? is a helpful example from Frankfurt Kurnit Klein & Selz PC August 10, 2022, then countered in October 2022 by What Does "Recyclable" Really Mean? Court's Recent Opinion Diverges From FTC Guidance, that court - Northern District of Illinois - holding that 'recyclable' does not require an understanding of the ability to recycle, just whether the product can be. Still from the same erstwhile company FKK&S September 2022 Is Farm-Raised Fish "Sustainably Sourced"? includes an important discussion on the use of the 'sustainable' term. Self-regulatory measures include a section 36 on environmental and provenance claims, the former of which reads 'Advertisers should avoid broad, unqualified environmental claims such as “green,” or “eco-friendly.” Other claims such as “degradable,” “recycled,” and “non-toxic,” should only be used when substantiated and properly qualified. See relevant Weiman cleaning products 'eco-friendly' and 'non-toxic' claims case here March 15, 2023 from BBB. Environmental certifications and seals of approval may be used if properly issued. Additional disclosures are needed if not issued by an independent third-party. Click here for specifics. On ESG reporting, this 2022 Wrap-Up from Beveridge & Diamond PC/ Lex December 2022 covers a number of markets/ regions on this currently highly sensitive issue and to provide a bit of help here is How to Succeed in Environmental Marketing Claims from Sheppard Mullin Richter & Hampton LLP/ Lex March 27, 2023.
Some commentary and rulings
Routine Wellness 'endorsement' case from BBB/NAD March 14, 2023
USA: What Advertising Law Issues Should You Keep an Eye on in 2023?
Frankfurt Kurnit Klein & Selz PC/ Lex. December 29, 2022; includes endorser issues
Social Media Ad Regulations: Key FTC Proposals. Lane Powell PC / Lex. October 25, 2022
FTC Begins Rulemaking on Reviews and Endorsements. Frankfurt Kurnit Klein & Selz PC/ Lex October 2022
Federal Trade Commission Releases Guidance on Consumer Reviews. Venable LLP/ Lex, October 2022
Getting Disclosures Right: An FTC Focus and Evolving Challenge for Advertisers
BBB National Programs/ Lex. August 2022
BBB National Programmes October, 2022
Molson Coors Appeals National Advertising Division Recommendation to Discontinue “Light Beer Shouldn’t Taste Like Water” Claim
BBB National Programs Inc/ Lex. February 23, 2023. And here's the NARB review of appeal April 11, 2023
Demonstrations and Humor in Comparative Advertising
Frankfurt Kurnit Klein & Selz PC; November 9, 2022
Commercial in debate here (we think); NAD decision here
There's a robust, well-resourced self-regulatory organisation (SRO), the Better Business Bureau, an independent, non-profit organisation which operates in much the same way as most SROs in Europe, albeit the BBB scope is broader than those; their advertising programmes are here. BBB publish a significant Advertising Code set out in our Content Section B, but the real action is from their unit The National Advertising Division, widely known as NAD, which 'has become the leading voice in providing guidance for truthful and transparent advertising.' Their database of decisions is under the auspices of BBB National Programs, which provides summaries of all case decisions from the National Advertising Division (NAD), National Advertising Review Board (NARB), Children’s Advertising Review Unit (CARU), Direct Selling Self-Regulatory Council (DSSRC), and Digital Advertising Accountability Program (DAAP). This piece - Nuts and Bolts of NAD Proceedings from Kilpatrick Townsend & Stockton LLP November 16, 2022 - is a helpful insight to how NAD works.
'Diversity washing' is the new greenwashing
Cooley Pubco/ Lex January 23, 2023
Expanding Accountability for DEIB in National Advertising
BBB National Programs Inc. September 2022
The above is helpful input to this issue as it includes reference to much of the research and debate around this sensitive topic. The National Advertising Division, part of the BBB's national programmes, has been consulting with regulators around the world including the ASA in the U.K. and 'beginning today, September 19, 2022, NAD joins CARU in holding advertisers accountable for advertising that portrays or encourages misleading and harmful social stereotyping, prejudice, or discrimination.' CARU (the Children's Advertising Review Unit, another of BBB's programmes) has recently begun monitoring child-directed advertising under their (relatively) new guidelines (published August 2021) and in that context now hold advertisers accountable for advertising that portrays or encourages misleading and harmful social stereotyping, prejudice, or discrimination. This Primark case related to gender sterotyping presentation on kids' clothes; this Moose Toys case finds that the advertiser presented both gender and racial stereotyping. NAD’s procedures are now revised to expressly recognise that its responsibility to analyse questions involving the truth or accuracy of national advertising includes “national advertising that is misleading or inaccurate due to its portrayal or encouragement of negative harmful social stereotyping, prejudice, or discrimination.” Commentary from GALA here.
Stay ADvised: Brand Protection & Advertising Law News. Davis Wright Tremaine LLP May 4, 2023
Above carries some interesting stuff on review sites, pricing and even NAD processes
In brief: prohibited and controlled advertising in USA. Crowell & Moring LLP/ Lex March 28, 2023
From the same company, same date Misleading advertising in the U.S.A.
Do you have a 'reasonable basis' for your advertising claims? Frankfurt Kurnit Klein & Selz PC. November 29, 2022
Advertising & Marketing in the USA Frankfurt Kurnit Klein & Selz PC April 2019, 2022
This Barilla 'Italy's #1 Brand of Pasta' case from the same firm as immediately above is significant and discusses the 'reasonable consumer' standard that applies in California
Is it "Made in the USA"? It Depends on Which Law Applies . . . Frankfurt Kurnit Klein & Selz PC; December 2022 and
Does the FTC's "Made in USA" Standard Apply to Claims That a Product is Made in a Particular State?
Global Advertising Lawyers Alliance (GALA)/ Lex. February 11, 2023
2023 Social Media Advertising Landscape: An Update from a Senior FTC Official
Holland & Knight LLP. April 18, 2023. Covers the regulatory ground in social media
US Digital Advertising Act - A Monumental Shift in 2023? Reed Smith/ Lex. January 2023
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
IAB rails against proposed FTC regulations. November 15, 2022
CFPB Advertising Rule: New Liability for Digital Marketing “Service Providers”
Klein Moynihan Turco LLP August 2022
How does the proposed American Data Privacy and Protection Act compare to the GDPR?
Osborne Clarke August 2022
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
The code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
All the individual rules themselves are set out in the following content section B and channel section C, as applicable
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or Channel | Key European legislation and clause |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
|
Electronic coms. Consent and Information |
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Directive 2019/2161 sets out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
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Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
1. SELF-REGULATION
2. LEGISLATION
BBB Code of Advertising - Summary
Each section of the BBB Code of Advertising is summarized here to help you select the parts of the Code that apply to your specific situations. Please click at the end of a paragraph to access the entire section in detail or click here to go directly to the full text version
1. Basic Principles of the Code
Advertisements should be truthful, sincere offers to sell. Advertisers have a responsibility to have substantiation for all claims made and should be able to provide that substantiation upon request. All advertising that may mislead or deceive consumers should be avoided. Click here for specifics.
2. Comparative Price, Value and Savings Claims
When comparing prices to one’s own former selling price, current price of others, list prices, wholesale prices, or to items which are imperfect, it is important to make sure that consumers have all the necessary information to make an informed purchase. In addition, when offering a price match guarantee, the offer should be made in good faith, include all necessary information to take advantage of it and not place an unreasonable burden on the consumer who wants to take advantage of the offer. Click here for specifics.
3. Comparison with own former selling price
When comparisons are made to a former selling price, it must be to a bona fide price that has been offered for a reasonable time. If no sales had been made at that price, the advertiser must be sure that the markup on the higher priced product is similar to other products. Click here for specifics.
4. Comparison with current price of identical products or services sold by others
Advertisers must be reasonably certain that the compared to price does not appreciably exceed the price at which substantial sales for the identical product have been made. Click here for specifics.
5. Comparison with current price of comparable products or services sold by the advertiser or by others
Advertisers must be reasonably certain that the compared to price does not appreciably exceed the price at which substantial sales for the comparable product have been made. Click here for specifics.
6. List Prices
List prices comparisons may mislead the consumer where they are not to a price at which substantial sales of the product have occurred. An advertiser can use a list-price non-deceptively where it does not claim a savings, and includes certain disclosures. Click here for specifics.
7. Imperfects, Irregulars and Seconds
A price comparison to an imperfect product must include a clear disclosure, among others, that such comparison applies to the price of the product if perfect. Click here for specifics.
8. "Factory to you," "factory direct," "wholesaler," "wholesale price"
Such phrases are appropriate under certain circumstances. For example, the phrase “factory to you” can be used where the advertiser actually makes the product. The phrase “wholesale price” can be used if that price is comparable to the price charged by wholesalers. Click here for specifics.
9. Sales
Retailers can advertise “sales” where they are offering a significant reduction in price for a limited period of time. At the end of the sale period, retailers can, in good faith, convert the sale price to a new regular price if they no longer claim a savings. Click here for specifics.
10. "Emergency" or "Distress" sales
Emergency sales must be for a limited period of time, and only include products that are affected by the emergency. The reason given for the sale must be true. Advertisers stating they are closing out a particular product can do so where the advertiser will no longer carry that product. Click here for specifics.
11. "Up to" price savings claims
When advertising, for example, savings of "up to 40%," at least 10% of the items must be available at 40% off. Advertisers may want to include a disclosure of both the minimum and maximum savings available to provide more information to consumers. Click here for specifics.
12. Lowest Prices, Underselling claims
Advertisers should avoid making unqualified lowest prices claims. One appropriate qualification is to promise truthfully that the advertiser will meet or beat a lower price sold by others. Click here for specifics.
13. Price equalling, meeting competitors' prices
When advertisers offer a price match guarantee, the offer should be made in good faith, include all necessary information to take advantage of it, and not place unreasonable burdens on the consumer who wants to take advantage of the offer. Click here for specifics.
14. Free
Use of the word free includes a requirement, among others, that the “free” item actually is free. When offered with the purchase of another item, the free item should not be paid for by an increase in the regular price of the other item. Click here for specifics.
15. Trade-in Allowances
If an advertiser offers to accept a trade-in when a consumer purchases an item, the advertiser must disclose all terms for the offer clearly and conspicuously. Click here for specifics.
16. Credit
Offering credit to consumers comes with numerous requirements which must be met. In addition, if promising “easy credit,” or “guaranteed financing” or like terms, the consumer should receive what is promised. Click here for specifics.
17. Extra Charges
To avoid confusion, the existence of any extra charges (such as delivery, assembly, postage and handling, etc.) should be clearly and conspicuously disclosed in an advertisement in immediate conjunction with the price. Click here for specifics.
18. Negative Option Plans, Continuity Plans and Automatic Shipments
Advertisements for a product or service that include an offer to sell consumers additional goods or services under a negative option should disclose all material terms of the negative option. Advertisers should avoid making vague or unnecessarily long disclosures that might include contradictory language. Click here for specifics.
19. Bait Advertising and Selling
A “bait” offer is one where the advertiser does not intend to sell the product, but instead to lure the consumer in to switch them to another product, usually at a higher price. Advertisers should avoid such offers. Click here for specifics.
20. Warranties or Guarantees
When using the term “warranty” or “guarantee” the advertiser should clearly and conspicuously include a statement that the complete details of the warranty can be seen prior to the sale which could include putting it on the seller’s website. Advertisers should disclose any material limitations on a "satisfaction guarantee" or "money back guarantee" and define, for consumers, the meaning of claims such as "lifetime guarantee." Click here for specifics.
21. Layout and Illustrations
The illustrations and overall layout of advertising should enhance the consumer's understanding of the offers and accurately represent the featured products and services. Click here for specifics.
22. Asterisks
Asterisks can be used to provide additional information about the product or service. However, they should not be used to contradict or change the meaning of the original claim. Click here for specifics.
23. Abbreviations
Only commonly known abbreviations should be used in advertising. Click here for specifics.
24. Use or Condition Disclosures
Terms including “used,” “secondhand,” “rebuilt,” “reconditioned,” “as-is,” etc. have specific meaning. Advertisers should use them only in those circumstances and with appropriate disclosures. Click here for specifics.
25. "As-Is"
Advertisers must disclose clearly whenever they offer a product “as is.” Click here for specifics.
26. "Discontinued”
Advertisers must not describe products as “discontinued,” or by similar words unless the manufacturer has discontinued the product, or the retailer will discontinue offering it after clearing existing inventories. Click here for specifics.
27. Superiority Claims – Comparatives – Disparagement
Deceptively or falsely disparaging advertising of a competitor’s products or services must not be used. Comparisons should fairly reflect all aspects of the products or services equally. Click here for specifics.
28. Objective Superlative Claims
Claims that relate to tangible qualities and performance values of a product or service can be used when the advertiser has substantiation. An example of a claim requiring substantiation would be "#1 car sales in the city." Click here for specifics.
29. Subjective Claims – Puffery
Expressions of opinion or intangible qualities of a product or service do not need to be substantiated. Such claims include “we try harder” or “best food in the world.” Click here for specifics.
30. Testimonials and Endorsements
Advertisers should ensure that testimonials and endorsement are not misleading and represent the current opinion of the endorser. A consumer endorser’s experience should reflect what users generally achieve, unless there is a clear and conspicuous disclosure of what the expected results will be. Advertisers should not include claims in testimonials that they themselves cannot make and support. Click here for specifics.
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31. Rebates
Rebates are payments of money after the sale. Advertisers should clearly and conspicuously state the before-rebate cost as well as the amount of the rebate and include key terms that consumers need to know. Click here for specifics.
32. Business Name or Trade Style
Business names or trade styles should not contain words that would mislead the public. Words like “factory” or “wholesaler” should only be used under appropriate circumstances. Click here for specifics.
33. Contests and Games of Chance or Skill
Advertisers should publish clear, complete and concise contest rules and provide competent impartial judges to determine the winners. Contests that include the three elements of prize, chance and consideration (payment) are considered lotteries in violation of state and federal laws. Canadian law contains similar prohibitions. Click here for specifics.
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34. Claimed Results
Claims relating to performance and results should be backed up by reliable evidence. Click here for specifics.
35. Unassembled Products
Advertisers should disclose when merchandise requires partial or complete assembly by the consumer, e.g., "unassembled," "partial assembly required." Click here for specifics.
36. Environmental Benefit Claims
Advertisers should avoid broad, unqualified environmental claims such as “green,” or “eco-friendly.” Other claims such as “degradable,” “recycled,” and “non-toxic,” should only be used when substantiated and properly qualified. Environmental Certifications and seals of approval may be used if properly issued. Additional disclosures are needed if not issued by an independent third-party. Click here for specifics.
37. “Made in USA” Claims
"Made in USA," and similar terms used to describe the origin of a product must be truthful and substantiated. In general, all or virtually all of the product must be made in the USA. Qualified “Made in USA” claims can made be under certain circumstances and with appropriate disclosures. Click here for specifics.
38. “Product of Canada” and “Made in Canada” Claims
“Product of Canada," "Made in Canada" and similar terms used to describe the origin of a product must be truthful and substantiated. To make "Product of Canada” claims, virtually all of the product must be made in Canada. Where goods are partially made in Canada, “Made in Canada” claims can be made if appropriately qualified. Click here for specifics.
39. Native Advertising (Deceptively Formatted Advertisements)
Native Advertisements are created to resemble the design, style, and functionality of the media in which they are disseminated, which could make it difficult to distinguish between advertising and non-commercial content. Click here for specifics.
SELF-REGULATION; the ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.2.3. Extracts from the ICC Code related to pricing
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of technical/ scientific data and terminology (Art. 9)
Use of 'free' and 'guarantee' (Art. 10)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art. 13)
Portrayal or imitation of persons and references to personal property (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Safety and health (Art. 17)
D1. Honest and truthful presentation
D2. Scientific research
D3. Superiority and comparative claims
D4. Product life-cycle, components and elements
D5. Signs and symbols
D6. Waste handling
D7. Responsibility
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
Article 18.1. General principles
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
18.3. Avoidance of harm
18.4. Social values
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
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:
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:
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
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
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
Applicable Self-Regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Article B12 Media sponsorship
2023 Social Media Advertising Landscape: An Update from a Senior FTC Official
Holland & Knight LLP April 18, 2023. References FTC formal guidance and 'tips'
OECD Report Highlights Concerns over 'Dark Patterns'. Frankfurt Kurnit Klein & Selz PC/ Lex
This is a helpful explanation of the issue of dark patterns, what they are and why and how they transgress
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in Owned and (some) Earned space as well as Paid
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Also be aware of:
The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation
The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market
The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)
Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth
And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry
And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
C1. Identification and transparency
C2. Identity of the marketer
C7. Marketing communications and children
C10. Respect for the potential sensitivities of a global audience
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
OBA
Some news for financial institutions
CFPB Advertising Rule: New Liability for Digital Marketing “Service Providers”; Klein Moynihan Turco LLP August 2022 (related to financial institutions only)
The Consumer Financial Protection Bureau (CFPB) is a U.S. government agency charged with ensuring that consumers are treated fairly by banks, lenders, and other financial institutions. In connection with this directive, the CFPB has turned its attention to financial firms that use targeted advertising to reach consumers. The recently issued CFPB Advertising – interpretive rule – identifies the circumstances in which digital marketing companies may be held accountable for violating federal consumer financial protection laws. According to the CFPB’s Advertising rule, “[d]igital marketers that are involved in the identification or selection of prospective customers or the selection or placement of content to affect consumer behavior are typically service providers for purposes of the law [emphasis added].” Once considered a “service provider,” marketers are then exposed to a new range of potential regulatory liability.
Privacy Sandbox next steps. May 18, 2023
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
EDPB Decisions on Facebook and Instagram re 'contractual necessity.' Van Bael and Bellis/ Lex. Feb 2023
Report of the work undertaken by the Cookie Banner Taskforce. (EN) From the EDPB Jan 2023
Guidance extracted from the above here courtesy of Stevens & Bolton LLP/ Lex
Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)
From Reed Smith LLP/ Lex May 2022
End of Meta’s targeted ads model? DLA Piper December 9, 2022. Reports on some critical EDPB decisions
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022
Applicable regulation and opinion
Application of notice and choice provisions
C22.1. Notice
C22.2. User control
C22.5. Data security
C22.6 Children
C22.7. Sensitive data segmentation
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:
19.1. Collection of data and notice
19.2. Use of data
Personal data should be:
19.3. Security of processing
19.4. Children’s personal data
19.5. Privacy policy
19.6. Rights of the consumer
19.7. Cross-border transactions
Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked Code
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an E-commerce context
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
Section 2: Commercial communications
Article 6
Article 7
Unsolicited commercial communication
EU guidance documents
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2015
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
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
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
39. Native Advertising (Deceptively Formatted Advertisements)
Native Advertisements are created to resemble the design, style, and functionality of the media in which they are disseminated, which could make it difficult to distinguish between advertising and non-commercial content. Native ads may appear on a page next to non-advertising content on news or content aggregator sites, social media platforms, or messaging apps. In other instances, native ads are embedded in entertainment programming, such as professionally produced and user-generated videos on social media. In still other instances native ads appear in email, infographics, images, animations, and video games.
39.1 Advertisers must not mislead consumers as to the nature or source of native ads they place, or cause to be placed, in any medium, including social media. This includes native ads or links to native ads that appear to be news or public interest stories, but are actually materials promoting products or services. The more a native ad is similar in format and topic to the non-commercial content on a site, the more likely it is to mislead a consumer and require a disclosure to prevent deception.
39.1.1 In instances where it is not otherwise apparent that the native ad is a paid commercial message, the advertiser must ensure that such material promoting its products and services is clearly and conspicuously3 labeled as a “paid ad,” “paid advertisement,” “sponsored advertising content” or other similar words that state expressly that the material is an advertisement.
39.1.2 In other circumstances, where an advertiser sponsors content that does not promote its own product or service (e.g., a running shoe company sponsors an article on vacation spots for fitness enthusiasts that does not discuss its product), it should consider including a disclosure such as “sponsored by ___” or “brought to you by ___” to avoid confusion.
39.2 Statements in NATIVE ADS about the performance, efficacy, price, desirability or superiority of the advertiser’s product or service will likely be considered content promoting that product or service.
39.3 Advertisers should maintain disclosures when native ads are republished by others in non-paid search results, social media, email, or other media.
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code 2018
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Guidance: ICC Guidance on Native Advertising here
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above
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As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
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
Guidelines on consent under Regulation 2016/679 (May 2020)
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.
ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
A1: Principles governing sales promotions
A2: Terms of the offer
Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product
A3: Presentation
A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)
A4: Administration of promotions
Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations
In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
3 relevant clauses extracted
C3: The offer
C4 : Presentation
C17: Substitution of products
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
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
The ICAS Global Factbook of Self-Regulatory Organizations 2019
EASA (European Advertising Standards Alliance)
EASA membership
http://www.easa-alliance.org/members
Link to Best Practice Recommendations
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)
Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)
http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
EASA Best Practice Recommendation on Influencer Marketing
ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: 'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:
https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/
Downloaded:
Translation of the code into eleven languages is here
Additional guides and frameworks
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC guidance documents
ICC Guidance on Native Advertising (May 2015).
https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility. It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.
ICC toolkits
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609