Updates
WLTP values
IAP review March 2020
Links checked July 2021
ICC Environmental Framework November 2021
LD 208/2021 (IT) transposing D 2018/1808
Links checked September 2022
Tesla is fined millions of dollars for false advertising
Above from Electrek January 2023 re Korean market
Amended consumer code (EN) in force April 2nd 2023
CONTEXT AND SCOPE
Italy is not the most heavily regulated in commercial communications for the car sector. There’s no ‘Car code’ per se, but as is the case with all countries and sectors, non-compliant car advertising is often ‘caught’ by general rules applied by the Self-Regulatory Organisation IAP (Istituto dell’Autodisciplina Pubblicitaria) such as those that cover misleadingness, social responsibility etc. As a member state, Italy is subject to the EU directives that apply in this context to environmental and credit issues in particular – details below and in content section B. As the car sector can be particularly active online, note that most digital activity will be ‘in remit’, i.e. subject to the rules, which means that the distinction between advertising and ‘editorial’ needs to be understood, especially on owned websites. The IAP Code of Marketing Communication (EN) states ‘marketing communication’ shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.’
SAFETY
There is no ‘Car advertising code’ in Italy. Safety rules are based on the Consumer Code (EN; art. 21.3 of the linked Code) reflected in article 12 bis of the IAP Code of Marketing Communication (EN). Rules particularly pertinent to cars such as those on environmental claims (art. 12) and credit references (art. 17) are also included in IAP’s code, as are the general rules of taste, decency, social sensitivity etc. that apply to all sectors, shown under the General tab below. Commercial communications should also respect the ‘Codice della Strada’ or Highway Code, key extracts from which are set out in content section B. Also not car-specific, but a significant influence through Europe, is the clause from the AVMS Directive that audiovisual commercial communications 'shall not encourage behaviour prejudicial to health or safety.' The directive, and its amending Directive 2018/1808, is transposed in Italy by Legislative Decree 208/2021 (IT) the relevant clause being article 43 (1c). The directive and decree apply to 'audiovisual media services' - note on the directive's scope here - which incorporate, and which the amending directive specifically brought in to scope, video-sharing platforms. Some vlogging/ influencer audiovisual communications may also be in remit. More in channel section C.
THE ENVIRONMENT
IAP/ Self-regulation
While there aren’t such extensive and specific rules as in some other countries, article 12 of the IAP Code linked above is pretty robust: ‘Advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence. Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefits refer to.’ Relevant in this context albeit more from an international perspective is Chapter D - Environmental Claims - of the ICC Advertising and Marketing Communications Code, together with the ICC Framework for Responsible Environmental Marketing Communications 2021, updated and issued in November 2021. Appendix I carries a handy environmental claims checklist.
AGCM/ the law
The other and potentially highly significant regulatory influence in this context is the Italian competition authority AGCM and the application of the Consumer Code (EN), itself a transposition of the Unfair Commercial Practices Directive (UCPD) 2005/29/EC, the primary European legislation relating to misleading actions and omissions in commercial communications. A relatively recent example is the AGCM 'greenwashing' case against ENI of April 2020 (IT press release) in which the fuel supplier was fined 5 million euros. There’s a note on the case and how it relates to UCPD from Conti and Partners here. Also very important in this context is the November 2021 Commission Notice Guidance on the interpretation and application of Directive 2005/29/EC. See section 4.1. for sustainability and for environmental claims in particular, it’s 4.1.1.
The AVMS Directive includes a clause stating audiovisual commercial communications 'shall not encourage behaviour grossly prejudicial to the protection of the environment.' The directive, and its amending directive 2018/1808, is transposed in Italy by Legislative Decree 208/2021 (IT) the relevant clause found under article 43 (1c) and faithfully transposed. The directive and decree apply to 'audiovisual media services' - note on the directive's scope here - which include in this context video-sharing platforms. Some vlogging/ influencer audiovisual communications may also be in remit. More in channel section C.
Directive 2000/53/EC on end-of-life vehicles is transposed in Italy by Legislative Decree 24 June 2003 No. 209 which requires in article 11(6) that information on the re-cycling/ re-use treatment of vehicles is made available to vehicle buyers by including it in promotional literature used in the marketing of that same vehicle. English translation of key articles here.
ENERGY DATA (FC&CO2)
Rules for energy data in car marcoms in Italy follow the general pattern in EU markets: national legislation Presidential Decree No. 84 of 17 February 2003 (DPR 84/2003, as amended by Ministerial Decree of 6 April 2005; English translation of key clauses here) is drawn down from EU Directive 1999/94/EC on Fuel Consumption and CO2 labelling and applies to all print media including leaflets and brochures. From 1 January 2019, member states should ensure that only WLTP fuel consumption and CO2 emission values are used for consumer information purposes (from Commission Recommendation 2017/948)
END-OF-LIFE VEHICLES
Directive 2000/53/EC requires that information on the manufacturer’s disposal and recycling practice and progress is made available to buyers of vehicles by including it in the ‘promotional literature’ used in the marketing of the same vehicle. Legislative Decree 24 June 2003 No. 209 (IT) implements, translation of key clauses here. Technically, the law requires that this information is provided in e.g. all print ads. There is not much evidence of compliance to that extent. Manufacturers will probably include it on their websites.
CREDIT
Agencies/ clients will be aware of the 'mandatory information' that is a statutory requirement in Credit advertising as a function of the EU Consumer Credit Directive 2008/48/EC, applying to ‘any advertising concerning credit agreements which indicates an interest rate or any figures relating to the cost of the credit to the consumer’. These elements if present, and other provisions such as restricted expressions, should be reviewed/ finalised by national practitioners and advisors. In other words, check Credit offer advertising with your lawyers.
The relevant legislation in Italy is the Consolidated Act on Banking and Credit Provisions LD 385/1993 Art.123 (EN) (IT) supported/ reflected by the IAP Code of Marketing Communication (EN) article 17. Details below in content section B under point 4.
PRICING
Pricing, as in how a car price is stated in advertising, can be a source of difficulties. The two most important influences (after article 2 misleadingness clause in the IAP Code) are article 18 in the same code on distance selling (set out in content section B), and the Consumer Code (EN inc. 2023 amends), which sets out some restrictions on promotional pricing, for example, also shown in section B and in channel section C under Sales Promotions. New price reduction rules deriving from Directive 2019/2161, which amended the Product Price Directive, are here in an unofficial English translation and can be found under the transposing LD No. 26 of March 7, 2023 (IT).
CHANNEL RULES
All of the content rules referenced above and set out in the following content section B apply to all media, except requirements for FC&CO2 data, as per Annex IV of the DPR No. 84/2003, which apply to print media including leaflets and brochures. Rules from the AVMS Directive shown above and in the following sections apply to 'audiovisual media services.' The Channel (i.e. placement) rules that apply to all product sectors, Cars included, should also be observed, as they include in some channels e.g. statutory consent and information requirements. and some important disclosure/ recognisability requirements online from the IAP Digital Chart. These ‘General’ channel rules are beneath the sector rules in our channel section C.
GENERAL RULES
It's important that the rules for all product sectors, shown in full below under the General tab, are also observed; adjudications against car advertising may well come from general misleadingness or taste and decency rules, for example, especially as there is no ‘Car code’ in Italy. The primary source of general rules is the IAP Self-Regulatory Code of Marketing Communications (EN). The principal statutory influence in commercial communications is the Consumer Code (EN inc. 2023 amends), which transposes the Unfair Commercial Practices Directive 2005/29/EC, and which can be deployed by the competition authority AGCM in the event of, for example, environmental claims that are perceived to be ‘greenwashing’. See the environment header above for an example. The Consumer Code applies to business-to-consumer commercial practices, as defined under article 18, and covers content-related issues such as misleading acts and omissions, including e.g. ‘invitation to purchase' (art. 22). Sanctions and distance selling rules have been extracted and are shown here (EN). Protecting businesses from misleading advertising and in particular providing the rules on comparative advertising (section 4) is LD 145/2007 (EN AGCM translation).
Updates since Jan 2022
Decree 208/2021 (IT) transposing 2018/1808
IAB TCF Framework and GDPR February 2022
Commission guidance promotional pricing
Prohibited and controlled advertising in Italy March 2022
Above from Studio Legale Jacobacci & Associati
As is misleading advertising practices March 2022
First enforcement of sponsorship ambush Decree (EN)
Above from Portolano Cavallo/ Gala May 2022
Google says cookie here to stay until 2024
Q&A: online advertising in Italy (EN)
ICT Legal Consulting/ Lex October 2022
EU green claims regulation December 2022
Meta’s Ad Practices Ruled Illegal Under E.U. Law
Above from the NYT Jan 2023
Directive 2019/2161 transposed via LD No.26
EN trans of the above in text. CMS Italy here
Green Claims Directive Proposal. March 22, 2023
IAP Code art. 27 amended for crypto assets
Related guidelines here (IT). March 22, 2023
Prohibited advertising Jacobacci/ Lex March 28, 2023
ChatGPT silenced by the Italian authorities. Ius Laboris/ Lex; April 6, 2023
Italy restores ChatGPT after OpenAI responds to regulator. Reuters April 28, 2023
SELF-REGULATION
The Code of Marketing Communication Self-Regulation (IT / EN), which is administered by IAP, provides the core advertising rules in Italy. The code sets out the general rules of conduct in Title I, covers rules for 'sales systems' (e.g. distance selling and prize promotions) in Title II A and specific product categories under Title II B. IAP’s Digital Chart (IT / EN) reviews the most commonly used forms of online marcoms including influencer marketing (blogging/ vlogging/ celebrity), native, in-app, SNS, advergames, and establishes criteria for the recognisability of these in line with article 7 of the IAP Code, Identification of advertising. Details under our channel section C, or see the linked file.
CONTENT LEGISLATION
Statutory regulation of advertising is from the Consumer Code (IT / EN key clauses inc. 2023 amends) LD 206/2005 which implemented the Unfair Commercial Practices Directive UCPD 2005/29/EC and protects consumers against e.g. misleading and aggressive advertising or marketing; LD 145/2007 (EN / IT) which implemented article 14 UCPD 2005/29/EC protects businesses from misleading advertising, and sets out conditions for comparative advertising (art. 4); and article 2598 (EN) of the Italian Civil Code on unfair competition. Details under content section B or see the linked documents. This case, courtesy of Gala/ Lex November 2021, is an example of how the Consumer Code is applied by the authorities, specifically the Italian Competition Authority AGCM, in the context of some apparently dubious advertising from Crystal Drops co. on the TikTok platform. What is new in the Italian Consumer Code from ICT Legal Consulting January 2022 sets out amends to the Consumer Code that relate largely to sales contracts and the supply of digital content, transposing measures from directives 2019/771 (Sale of Goods Directive) and 2019/770 (Digital Content and Digital Services Directive). More recent (March 2023) amends are a result of transposition from Directive 2019/2161 delivered by Legislative Decree No. 26 of March 7, 2023 (IT), which introduces clauses related to search rankings and how they are achieved, the validity of consumer surveys, the consistency of international campaigns and promotional pricing requirements, the latter shown under the Pricing header later in this section. See E-commerce and new specific information requirements from CMS Italy March 21, 2023 and for a broader picture Q&A: misleading advertising practices in Italy from Studio Legale Jacobacci & Associati/ Lex March 28, 2023. Not that broad, however, as there seems to be no recognition of the role of self-regulation. Earlier contributions from the same company are shown under Updates.
CHANNEL LEGISLATION
Broadcast/ AV/ Influencers
The arrival of Directive 2018/1808, which significantly amended the scope of the AVMS Directive 2010/13/EU by extending rules online and into video-sharing platforms in particular, was recognised by the Legislative Decree of 8 November 2021, No. 208 (IT), which largely repealed the former AVMS Code. This is a significant move in AV regulation, reflecting the 'digitisation' of European audiovisual media. Commercial communication content rules are not significantly changed, however - the Directive's amends in that context are here. Arguably the most significant development is the new rules under article 28b of the Directive and 41/42 of the Decree for video-sharing platforms (VSPS). These rules include the application of the Directive's commercial communication articles linked earlier to VSPS and require the platforms to make available to those who post video(s) a means by which they can declare if such videos contain commercial content, if known, and similarly the platform must advise users accordingly. There is some debate about whether Influencers/ vloggers constitute an 'audiovisual media service.' Best source for understanding the issue and the regulators' view of it is ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers (EN). Channel section C for more, or see the linked documents.
Privacy/ online commercial communications
Privacy issues should be overseen by specialist advisors
The Data Protection Code (DPC) LD 196/2003 (IT), containing provisions for the adaptation of national law to Regulation 2016/ 679 (GDPR) was amended and re-named (as shown) by LD 101/2018 (IT); section 1 of the DPC now provides that the processing of personal data will be according to the standards of GDPR (see para below). There’s an English translation of the DPC from the Data Protection Authority Garante here (Dec 2021 text). Section 130 of the DPC covers unsolicited communications, implementing the e-Privacy Directive 2002/58/EC providing for opt-in consent to electronic communications. Some data processing aspects of the article are now subject to GDPR. Legislative Decree 70/2003 IT / EN (the e-Commerce law, relevant articles: 7 - 9,12,13), which implements the e-Commerce Directive 2000/31/EC inter alia provides requirements applicable to advertising from ‘information society services.’ There's a 'succinct Q&A on the law and practice surrounding online advertising in Italy, covering key regulations and restrictions' from ICT Legal Consulting here (Oct 2022). European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, are here. And finally, Garante/ GPDP published in July 2021 Guidelines for cookies and other tracking tools (IT); the English version is on the link or here. Finally finally, this Feb 27, 2023 piece from CMS Italy/ Lex is a helpful catch-up with the EDPB cookie banner task force findings and potential implications in Italy.
GDPR application
Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023
The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, Italy included, tend to retain their national privacy legislation and ‘recognise’ GDPR. Italy’s key data protection law LD 196/2003, referenced above, was amended following an enabling law 163/2017 (IT) and Guidelines (IT) from Garante, the Data Protection Authority. There’s a helpful blog on those from DLA Piper here. Garante published on 24 May 2021 European Regulation: Guidelines for DPOs (IT) and in English The Personal Data Protection Code from March 2020, as linked above, which lays down the provisions to adapt the national legislation to GDPR. Specific rules related to the above are set out by channel in our section C, headers as relevant. See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex.
KEY CLAIM AREAS
Environmental
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here
Helpful summary and commentary here from GALA/Lex also March 22
As the whole territory of environmental claims is high profile for well-documented reasons, we reference two late 2021 self-regulatory cases, one from the U.K. and one from Sweden. The UK case relates to Lipton Ice Tea: a complaint about a '100% recycled' claim was upheld despite the advertising including a qualification; an interesting commentary here from GALA/ Mondaq with reference to a similar case in the U.S. The Swedish case concerns a complaint against an Innocent Drinks 'greenwashing' claim; the commercial has been withdrawn, but there's (not entirely objective) reference to it in this activist video. |
In self-regulation, article 12 of the IAP Code of Marketing Communication covers the protection of the natural environment. On an international scale, chapter D Environmental Claims in Marketing Communications from the ICC Advertising and Marketing Communications Code is also relevant, together with The ICC Framework for Responsible Environmental Marketing Communications 2021, published November 2021. An interesting article from CMS Italy via Lexology Sustainability, Advertising and Greenwashing discusses some of the broader claims and their legal compliance and in the case of Italy the role of competition authority AGCM. The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. The use of environmental claims in advertising can also be assessed against the Consumer Code referenced above. Additionally, guidance is in the form of Commission Guidance on application of the UCPD (December 2021); see section 4.1.1. for environmental claims. The IAP jury/ Comitato di Controllo decision 50/2021 (IT) December 2021 covers how Freshly Cosmetics transgressed article 12: broad claims, no substantiation.
On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.
Pricing in advertising
Pricing in advertising is often a source of complaint and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors
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.
...............................................................
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. SAFETY
1.1. Self-regulation and legislation
1.2. Highway Code
2.1. Self-regulation and legislation
2.2. Energy data
2.3. End-of-life vehicles
1. SAFETY
1.1. General (all sectors) self-regulation and legislation
From the IAP Code of Marketing Communication (EN); the Codice della Strada (IT) Highway Code; and LD 208/2021 (IT). There is no 'Car Advertising Code' per se in Italy. Safety rules are expressed in general terms in article 12 bis of the IAP Code of Marketing Communication linked above, and in the rules from the AVMS Directive applicable to audiovisual media services and transposed in the Legislative Decree linked above:
IAP code
On the basis of the above, the IAP Jury has in the past (refer, for instance, to the Jury Decision No. 76/14 dated October 22nd, 2014, which found that insufficient attention was being paid to driving versus singing) ruled that certain car communications should not:
From the IAP: 'This means that any future decisions will be informed by this judgement and that advertisers should take this into account when creating advertising.'
Audiovisual media
Commercial communications should also respect the 'Codice della Strada' or Highway Code (HC), which means among other requirements that marcoms should not:
The Highway Code is linked under the sub-heading of Safety and also in links section E. It is not translated, as it is a lengthy document and much of it irrelevant to marketing communications
2.1. Self-regulation and legislation
IAP Code of Marketing Communication (EN) Art. 12 , Legislative Decree 208/2021 (IT) and the Consumer Code (EN inc. 2023 amends)
Presidential Decree 17 February 2003 No. 84 (EN) DPR 84/2003 (IT)
From 1 January 2019, Member States should ensure that only WLTP fuel consumption and CO2 emission values are used for consumer information purposes (from Commission Recommendation 2017/948)
Information on fuel consumption and CO2 emissions, in respect of new passenger cars offered for sale or lease, must be made available to consumers as follows:
These pages below focus on ‘Promotional Literature’. The definition ‘includes as a minimum technical manuals, brochures, advertisements in newspapers and magazines, the trade press and advertising posters.’ (Art. 1(m) DPR 84/2003). Information must comply with the following minimum requirements (Art. 6 (1) & Annex IV, DPR 84/2003):
The vehicle manufacturer shall make the following information available to the purchaser of the vehicle, by including it in promotional literature used in the marketing of that same vehicle:
a) the design/ construction of the vehicle and of its components which can be re-used, recovered, and recycled
b) the correct treatment, in relation to the environment, of end-of-life vehicles, with particular reference to the removal of all fluids and dismantling
c) the optimisation of ways to reuse, recycle and recover the end-of life vehicle and its components
d) the progress made in relation to recovery and recycling in order to reduce the disposal of the end-of-life vehicle and of the waste made up of its components and materials
(Arts 11 (5) and (6) of the of the Decree of 24 June, 2003)
Compliance does not seem to be widespread in ‘promotional literature’ defined in the directive. Manufacturers will probably include the information on their websites
Consolidated Act on Banking and Credit Provisions LD 385/1993, Art. 123 (EN) IT and the IAP Code of Marketing Communication (EN) article 17). Applicable to all media:
A car credit advertisement quoting an interest rate or other figures relating to the cost of credit shall state the following basic information, in a clear, concise and prominent manner, and by means of a representative example (Art. 123 LD 385/1993):
The above is supported by article 17 from the IAP Code, Sale by Instalment:
Section 23 the Consumer Code (EN inc. 2023 amends). Marcoms must not:
1) Refuse to show the advertised item to consumers, or
2) Refuse to take orders for it or deliver it within a reasonable time, or
3) Demonstrate a defective sample of it with the intention of promoting a different product
('Bait and switch' advertising)
1. SELF-REGULATION; IAP Code
1.1. Fairness
1.3. Terminology/ statistical data
1.4. Testimonials
1.5. Guarantees and warranties
1.6. Substantiation
1.8. Superstition, credulity, fear
1.9. Violence, vulgarity, indecency
1.10. Moral, civil, & religious beliefs; human dignity
1.11. Children and young people
....................................................
1.12. Protection of the natural environment
1.12b. Safety
1.13 Imitation, confusion and exploitation
1.14. Denigration
1.16. Variability
................................................
2.1. Consumer Code
2.2. LD 145/2007 Comparative advertising
2.2.1. Case law and IAP rulings
2.3. Rules in audiovisual media
.......................................................
3. SPECIFIC CLAIM AREAS
3.1.1. Self-regulation (national)
3.1.2. International self-regulation
3.1.3. Horizontal statutory legislation
3.1.4. Commission guidance
1. SELF-REGULATION
The Code of Marketing Communication Self-Regulation IT / EN
1.2. Misleading marketing communication (Art. 2)
..............................................................
1.7. Identification (Art. 7)
.......................................................
See rulings from the IAP Jury regarding article 10:
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Aquilantibath.pdf
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Mobyb.pdf
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Santhe.pdf
.........................................................
1.15. Comparative advertising (Art. 15)
1.16. Variability (Art. 16)
Also shown above under relevant articles; the linked files are summaries in English
On 11th February 2019, IAP launched a new online database containing all the formal adjudications from 1966 to present day, with real-time updates. This new tool ‘greatly simplifies the identification of adjudications and allows users to login through different devices. The database is available through a subscription, free for the first 30 days.’
2.1. Key clauses Consumer Code
2.2. Key clauses LD 145/2007 (EN); Comparative advertising Section 4
Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
2.2.1. Case law and AGCM and IAP rulings
Case law is reported essentially verbatim; in some instances, commentary has been taken from online contributions. None of this text represents a view or guidance from GRS, but information to be interpreted as marketers, agencies, or advisors see fit
2.3. Content rules in audiovisual media
3. SPECIFIC CLAIM AREAS
3.1.1 Self-regulation (national)
Article 12 IAP Code; Protection of the Natural Environment
Example cases:
3.1.2. International self-regulation
The ICC Advertising and Marketing Communication Code will apply, in particular:
3.1.3. 'Horizontal' legislation
The Unfair Commercial Practices Directive UCPD 2005/29/EC transposed into Italian law by the Consumer Code IT / EN (inc. 2023 amends)
3.1.4. MDEC/ Commission guidance
Check prices in advertising with legal advisors
3.2.1. Self-regulation
3.2.2. Legislation and key case
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')
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2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
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
KEY RULES
Content rules set out in Section B apply in these channels, except that requirements for FC&CO2 data apply to print marcoms only
In particular, while not car-specific rules per se, in these channels (audiovisual media services, which include VOD and broadcast TV and radio) LD 208/2021 (IT) carries some rules from the AVMS Directive that relate to Car advertising, even if only indirectly: article 43 (1) requires that audiovisual commercial communications must not encourage behaviour prejudicial to health or safety or grossly prejudicial to the protection of the environment
APPLICABLE REGULATION
AV CONTENT RULES
Chapter III, LD 208/2021, art. 43
Extracts of the more general clauses. There are also clauses related to alcohol and to gambling
General principles: audiovisual commercial communications must be readily recognisable as such; surreptitious audiovisual commercial communications are prohibited. And must not:
SPONSORSHIP
(Art. 46 of the LD)
The content and scheduling of a sponsored programme must not be influenced by the sponsor so as to affect the responsibility and editorial independence of the media service provider
PRODUCT PLACEMENT
(Art. 48 of the LD)
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
Fuel Consumption & CO2 Emissions Presidential Decree 84/2003 (EN) DPR 84/2003
All published promotional literature (i.e. printed marcoms including technical manuals, brochures, advertisements in newspapers and magazines, trade press) must contain the official values relating to the official fuel consumption and official specific CO2 emissions of the passenger car models to which it refers. This information must comply with the following minimum requirements (Art. 6 (1) & Annex IV, DPR 84/2003):
Per print above
CINEMA
OUTDOOR
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
CONTEXT AND SCOPE
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important. The IAP version is ‘advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used’. This August 2021 'Q&A: online advertising in Italy' from ICT Legal Consulting/ Lex incorporates some definitions and is a good round-up of the issues; updated October 2022
GDPR
In the context of these channels, the influence of legislation is significant, particularly on the use of personal data. GDPR’s impact is shown under particular channel sections where relevant; in broad, if processing personal data, lawful processing rules from the GDPR now apply. For guidance, we show below the most relevant Data Protection Authority - Garante - statements, together with EU documentation
Privacy issues should be reviewed with specialist advisors
1. SELF- REGULATION
2. LEGISLATION
GUIDANCE
The Italian Data Protection Authority Garante per la protezione dei dati personali is the independent authority established by the Personal Data Protection Code as responsible for monitoring application of the GDPR
Article 29 Working Party/ EDPB
Established by Article 29 of Directive 95/46/EC, hence the name. As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Nevertheless, WP29 papers/ guidelines remain valid. The 1997-2016 archive is here. Three key papers in this context are:
1.1. Key clauses self-regulation
Ad labelling/ Identification
Endorsements/ Influencers (extract from Section 2 IAP Digital Chart)
“Pubblicità/Advertising”, or
“Promosso da … brand/Promoted by … brand” or
“Sponsorizzato da … brand/Sponsored by … brand”, or
“in collaborazione con … brand/In partnership with … brand”;
2.1 Key clauses legislation and authority guidance
Invitation to purchase and advertising identification
Article 23 Consumer Code; Commercial practices which in all circumstances are misleading
Information requirements; from e-Commerce law LD 70/2003 (EN), Article 8
1. In addition to the information obligations stipulated for specific goods and services, marketing communications that constitute an information society service (Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services) or form an integral part thereof must contain specific information, from first dispatch, clearly and unequivocally, aimed at indicating:
Additionally, the service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information
Influencer Marketing: review by competition authority
The Italian Competition Authority AGCM investigated Influencer Marketing practices on social media; press release 24th July 2017 here
Following brands in social media
Garante guidelines on promotional activity/ marketing and the fight against spam, July 4 2013 Doc. No. 2542348 IT, GRS trans EN; Garante trans EN Doc. No. 4304228. Clause 6.1 ‘Social spam'
Note: the Consent rules referenced in this documentation and below may now be impacted by lawful processing rules from the GDPR. Garante have not, however, withdrawn documentation from their website, or adapted it accordingly. As this (communication by brands in social media) is highly sensitive territory, it’s best to review the position with specialist advisors
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:
COOKIES
Privacy Sandbox next steps. May 18, 2023
Privacy issues should be reviewed with specialist advisors
Legislation and guidance
Key clause
OBA
Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
Effective 19 January 2022
Profiling/ Behavioural cookies
Self-regulation
First 2 paras of this link:
ICC
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
(DIRECT) ELECTRONIC COMMUNICATIONS INC SMS/MMS
LEGISLATION MOST RELEVANT TO THIS CHANNEL
GARANTE GUIDANCE
CONSENT/ EDPB GUIDANCE
KEY CLAUSES
Section 121 (m) of the DPC: electronic mail is defined as any text, voice, sound or image message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient
SOFT OPT-IN
GUIDELINES
Garante document Guidelines on Marketing and against Spam - 4 July 2013 [4304228]
From the Garante summary document ‘NO to Spam, YES to Consumer-Friendly Marketing’
PROMOTIONAL OFFERS AND SPAM
SIMPLIFIED RULES FOR COMPLIANT COMPANIES
AGGRESSIVE COMMERCIAL PRACTICE
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 space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. The IAP Code of Marketing Communication states 'marketing communication shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.’
CONTEXT
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the IAP Code here Definition ‘Advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used, as well as forms of communication regulated by Title VI.’ (Charity appeals). Clearly, much content on owned websites won’t be advertising; for exemptions, e.g. UGC, see the EASA Recommendation linked below for some non-binding guidance. The IAP’s Digital Chart is also important in this context, as it explains disclosure/ recognisability requirements for various forms of website marcoms. Issues arise from the introduction of the GDPR: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors
SELF-REGULATION
KEY CLAUSES SELF-REGULATION
LEGISLATION AND GUIDELINES
VIRAL
Clause 6.2 Garante Guidelines on Marketing and against Spam, July 4 2013 EN:
SOCIAL MEDIA
Garante Guidelines on Marketing and against Spam, July 4 2013 Doc. No. 2542348 IT; Garante trans EN Doc. No. 4304228. Clause 6.1: Social Spam'
EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)
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
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. The ICC’s Guidance on Native Advertising is linked and also shown under the General tab below. Category-specific rules, such as they are, are immediately below
The ‘Native’ form of advertising is like any other Car advertising or any sector’s advertising – it’s subject to the Content rules; the key general rule, spelt out under the General tab below together with the other rules that should be observed, is that of identifiability/ disclosure. In that context, the IAP Digital Chart covers Native advertising in some depth. Rules are set out below under the General tab, or see the linked document (scroll down to the header 'Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet')
The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found beneath the Sector rules in Content Section B; principal sources are the IAP Code of Marketing Communication (EN) and, in law, the Consumer Code (EN) and Legislative Decree No. 145 of 2 August 2007 (AGCM translation) protecting businesses from misleading advertising, providing the rules on comparative advertising (section 4)
As the Car sector creates a lot of 'content' and this may well be deployed using the native technique, advertisers/ agencies should be aware that new rules stemming from the amendment of the AVMS Directive by Directive 2018/1808 bring video-sharing platforms (VSPS) in particular into scope. Two potential issues arise: first, that AVMS rules related to safety and the environment, both of which may be relevant to the Car sector, now apply to a number of online platforms including VSPS and second, that there are new commercial communication identification rules for VSPS. These are set out under article 28b of the earlier linked Directive, transposed in Italy under article 42 (sections 2 and 7) of LD 208/2021 (IT) and extracted from the Directive here
CONTEXT
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 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 and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
SELF-REGULATION
IAP Code of Marketing Communication Self-Regulation EN / IT
IAP Digital Chart IT / EN Native: in-feed units, paid search units, recommendation widgets
6) In-feed units
“Pubblicità/Advertising”, “Promosso da … brand/Promoted by … brand”
“Sponsorizzato da … brand/Sponsored by … brand”
“Contenuto Sponsorizzato/Sponsored content”
“Post Sponsorizzato/Sponsored post”
“Presentato da … brand/Presented by … brand”
7) Paid search units
8) Recommendation widgets
LEGISLATION
'Blacklist': Article 23 (1) (m) and (aa) Consumer Code LD 206/2005 EN
Misleading omission: article 22(1), (2) and 22 (5) Consumer Code
The Blacklist
Relevant extracts from the list of commercial practices which in all circumstances are misleading
Misleading omission
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
REGULATIONS MOST RELEVANT TO THIS CHANNEL
KEY CLAUSES
INVITATION TO PURCHASE
Article 22 of the Consumer Code (EN)
In the case of an invitation to purchase Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase the following information shall be regarded as material, within the meaning of paragraph (1), if not already apparent from the context:
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
..............................................................
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)
Spotlight: organisation and commercialisation of sports events in Italy. Sports Generation/ Lex September 2022
from Portolano Cavallo/ Gala/ Mondaq May 9, 2022
More on the law here from Bird&Bird June 2020 and the law itself is here (IT)
B1. Principles governing sponsorship
B2. Autonomy and self-determination
B3. Imitation and confusion
B4. “Ambushing” of sponsored properties
B5. Respect for the sponsorship property and the sponsor
Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
B6. The sponsorship audience
The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
B7. Data capture/ data sharing
B8. Artistic and historical objects
B9. Social and environmental sponsorship
B10. Charities and humanitarian sponsorship
B11. Multiple sponsorship
B12. Media sponsorship
B13. Responsibility
................................................................
The European Sponsorship Association (ESA) may also be able to help/ inform
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
CONTEXT
This website was created to provide international rules on marketing communications; we do not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation, or law on the mechanics and administration of promotions. Italy in particular has some intricate legislation that we show below, but which we recommend be managed/ interpreted by specialist advisors. Self-regulatory codes and consumer protection legislation relating to promotional pricing is also shown below.
Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal;
sales promotional material should observe the rules set out under the earlier content section B
LEGISLATION
Promotional pricing
See also pricing requirements under Point 3.2 in our content section B
e) Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
f) Making an invitation to purchase products at a specified price and then:
1. Refusing to show the advertised item to consumers, or
2. Refusing to take orders for it or deliver it within a reasonable time, or
3. Demonstrating a defective sample of it with the intention of promoting a different product (bait and switch)
g) Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
Additional prize promotions legislation
Key Points/ obligations for promoters
Prize contest/ competition
Prize operation
SELF-REGULATION
From the IAP Self-Regulation Code of Marketing Communication
Article 20. Special sales
Article 21. Prize promotions
From the ICC Advertising and Marketing Communications Code, Chapter A
A2. Terms of the offer
A4. Administration of promotions
In particular:
A5. Safety and suitability
A6. Presentation to consumers
Information requirements
Information should include, where relevant:
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:
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
COPY ADVICE
IAP (the self-regulatory body Istituto dell’Autodisciplina Pubblicitaria) provides copy advice on request and subject to a fee of 900€ + VAT for IAP members and 1.000€ + VAT for non-members. The whole list of tariffs can be found here on the IAP website.
The validity and completeness of the information, supplied with the approval of the advertisement, binds the IAP Review Board not to intervene against the approved communication. Copy advice is given within five working days, but particularly complex cases may require up to eight working days. In practice, however, the process usually takes less time. IAP can also offer an “express copy advice” within 24 hours.
The IAP website home page is http://www.iap.it
COMPLAINTS HANDLING
CLEARANCE
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
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
Commission Recommendation (EU) 2017/948 of 31 May 2017 on the use of fuel consumption and CO2 emission values type-approved and measured in accordance with the World Harmonised Light Vehicles Test Procedure when making information available for consumers pursuant to Directive 1999/94/EC of the European Parliament and of the Council:
https://eur-lex.europa.eu/eli/reco/2017/948/oj
Car-specific
Presidential Decree dated 17 February 2003, No. 84 relating to the availability of consumer information on fuel economy and CO2 emission data in respect of the marketing of new passenger cars, as amended by Ministerial Decree of 6th April 2005 appendices I, II, III and IV. This law implements EU Directive 1999/94/EC, setting out the specific rules for communication of energy data in printed promotional material, including templates for posters and labels at points of sale:
https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.del.presidente.della.repubblica:2003-02-17;84!vig=
English translation of the relevant clauses:
http://www.g-regs.com/downloads/ITCarsDecree84CO2DTSb.pdf
Regulatory Authority: The Ministry of Economic Development is responsible for the implementation of the information requirements. The provincial Chambers of Commerce, Industry, Craft Trade and Agriculture are responsible for monitoring the correct implementation of the law:
https://www.sviluppoeconomico.gov.it/index.php/it/mercato-e-consumatori/qualita-di-prodotti-e-servizi/auto-ed-emissioni-co2
ELV
Legislative Decree 24 June 2003 No. 209 Implements Directive 2000/53/EC on end-of-life vehicles (OJ No. 182 of 07.08.2003 Ordinary Supplement No. 128; relevant Section Article 11 disclosure of data and information. Article 11 (6) requires information as listed in Article 11 (5) to be made available to buyers of vehicles by including it in the promotional literature used in the marketing of that same vehicle. Consolidated text:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-06-24;209!vig=
English Translation of Articles 11(5) and 11(6):
http://www.g-regs.com/downloads/ITRegELVc.pdf
Highway Code
New Highway Code (Nuovo Codice della Strada) Legislative Decree no. 285 dated 30 April1992; Article 172 on safety belts. This Decree, inter alia, implements the Directive on the mandatory use of safety belts when driving, and for special safety car seats for children:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:1992-04-30;285!vig=
Article 23 of the Highway Code covers generic rules for advertising on roads and vehicles:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:1992-04-30;285!vig=
Credit
T.U.B. (Testo Unico Bancario) Legislative Decree 1 September 1993 No. 385 Consolidated Law on Banking and credit system as amended by Legislative Decree 13 August 2010. No. 141 implementing Directive 2008/48/EC on credit agreements for consumers regarding the regulation of entities operating in the financial sector, and the financial activities of agents and brokers. Article 123 imposes rules for information in all credit advertising for amounts between 200€ and 75000€, whenever a specific figure is included in the advertising:
www.normattiva. en / uri-res / N2Ls? urn: nir: state: decreto.legislativo: 01/09/1993; 385! = vig
English translation of the relevant clauses:
http://www.g-regs.com/downloads/ITConsumerCreditE.pdf
Legislative Decree September 6, 2005, No. 206 Consumer Code, in accordance with Article 7 of the Law of 29 July 2003 No. 229. (Codice del consume). The Consumer Code is the single act which covers the different stages in consumer dealings with businesses, from brand advertising to correct pre-contract information, and represents the national application of the Unfair Commercial Practices Directive (UCPD) 2005/29/EC. The Consumer Code applies to all forms of advertising, regardless of the specific means used. Section 23 covers 'Commercial practices which are in all circumstances considered misleading', also known as the 'blacklist' of prohibited commercial practices, some of which have relevance to the car sector in particular. Directive 2019/2161 - the Omnibus Directive - amended both the UCPD and the Product Pricing Directive PPD 98/6/EC, creating new rules in the UCPD related to the transparency of search rankings, the authenticity of consumer reviews and the consistency of international campaigns. New price reduction rules were established in the PPD. These amends were transposed (rather late in Italy) by the Legislative Decree No. 26 of March 7, 2023 (IT) into the Consumer Code and are found under articles 17, 22 and 23:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=
Unofficial non-binding GRS translation:
http://www.g-regs.com/downloads/ITConsumerCode2023EN.pdf
Regulatory authority is the Italian Competition Authority (AGCM)
Pricing
Law No. 287/1990 of 10th October, Competition and Fair Trading Act (OJ No. 240 of 13/10/1990). Contains specific antitrust rules that regulate pricing practices.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1990-10-10;287!vig=
Legislative Decree No. 208/2121 of 8 November, 2021. Implementation of Directive (EU) 2018/1808 of the European Parliament and of the Council, of November 14, 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 consolidated act for the supply of audiovisual media services in view of changing market realities. This Decree, as it describes in the title, implements Directive 2018/1808 which amended the AVMSD 2010/13/EU, reflecting the 'digitisation' of audiovisual media in Europe and so extending scope online and in particular to video-sharing platforms (VSPS). The Decree repeals the AVMS Code (LD 177/2005) and carries many of its provisions. For our (commercial communication) purposes, those are largely found in Chapter III - article 43 for the 'general' AV rules prohibiting discrimination, offense, protecting minors etc. and articles 46 and 48 for sponsorship and product placement. VSPS provisions are under Chapter II and require those platforms to identify commercial content where they are aware of it. Helpful piece on the Directive from Simmons and Simmons LLP here. Note that the AVMS rules relating to the environment and safety are particularly relevant to the Car sector and can be found under article 43 (1) of the Decree:
https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:DECRETO.LEGISLATIVO:2021-11-08;208!vig=
IAP
The IAP Self-Regulation Code of Marketing Communication (Codice Di Autodisciplina Della Comunicazione Commerciale), 68th edition effective February 9th, 2021. The IAP (Istituto dell’Autodisciplina Pubblicitaria) is Italy’s advertising standards authority since 1966. Rules are enforced by the Review Board (Comitato di Controllo) and Jury (Giurì). The Code is only binding on IAP members or those advertisers who are separately contracted. Scope: The term 'marketing communication' is defined as any type of communication, either private or public, including advertising, used to promote the sale of goods or services irrespective of the means used. The Code includes general rules and behaviours to which marcoms must comply (Title I). Title II Special Rules of the Code covers marcoms rules applicable to sales systems and specific product categories.
EN: http://www.iap.it/about/the-code/?lang=en
IT: http://www.iap.it/codice-e-altre-fonti/il-codice/
IAP Digital Chart
The objective of the Chart is to review the most common forms of marketing communication on the web and in the digital world in general, and to establish criteria for the recognition of marketing communications in compliance with Article 7 of the IAP Code. The forms of online communication covered in the Digital Chart include:
Endorsements via celebrities/ influencers/ bloggers, vloggers, and UGC
Native advertising in the form of in-feed units, paid search units, and recommendation widgets
In-app advertising and
Advergames
In Italian:
https://www.iap.it/codice-e-altre-fonti/regolamenti-autodisciplinari/regolamento-digital-chart/
The Regulation: (scroll down to the entry ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet'):
https://www.iap.it/regulations/?lang=en
ICC
The ICC Code Centre is at https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/ where you can find all the ICC Codes. More specifically related to the Cars sector is Chapter D Environmental Claims, from the ICC Advertising and Marketing Communications Code;
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
GDPR
Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Five more recent and significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’)
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/eli/dir/1998/6/oj
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here 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.
Article 28b addresses video-sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
e-Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Consumer protection
Consumer Code. Legislative Decree No. 206 of 6 September 2005. Entry into force 23/10/2005. The Code applies to all forms of advertising regardless of the means used. Key amendments are from Legislative Decree August 2, 2007, No. 146 implementing the Unfair commercial Practices Directive (UCPD) 2005/29/EC (see arts. 18-27 Consumer Code), and Legislative Decree February 21, 2014 No. 21 implementing the Consumer Rights Directive 2011/83/EC (arts. 45-67 Consumer Code). This is the core legislation related to marketing and advertising, covering misleadingness in the form of misleading acts and omissions and including rules on 'invitation to purchase' (art. 22) and distance selling. Directive 2019/2161 - the Omnibus Directive - amended both the UCPD and the Product Pricing Directive PPD 98/6/EC, creating new rules in the UCPD related to the transparency of search rankings, the authenticity of consumer reviews and the consistency of international campaigns. New price reduction rules were established in the PPD. These amends were transposed (rather late in Italy) by the Legislative Decree No. 26 of March 7, 2023 (IT) into the Consumer Code and are found under articles 17, 22 and 23:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=
Unofficial non-binding GRS translation:
http://www.g-regs.com/downloads/ITConsumerCode2023EN.pdf
Business protection
Legislative Decree of 2nd August 2007, No. 145. Implementing Article 14 of Directive 2005/29/EC, amending Directive 84/450/EEC on misleading advertising, now codified as Directive 2006/114/EC concerning misleading and comparative advertising. Entry into force 21/09/2007. The Decree is exclusive to the protection of businesses, as Directive 2006/114/EC applies to B2B relations. Article 4 sets out the conditions under which comparative advertising is considered lawful. The Decree covers advertising only where such advertising may harm a competitor, but does not cause direct consumer detriment. Where a consumer is affected, the Consumer Code is applicable.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2007-08-02;145!vig=
AGCM translation is here
Italian Civil Code
Royal Decree of 16 March 1942 No. 262. Approval of the text of the Civil Code. (GU 79 of 04.04.1942) Entry into force 19.4.1942:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:regio.decreto:1942-03-16;262!vig=
- Section 2250 provides the information that must be shown on websites/ emails; mirrors the provisions set out in Article 7 LD 70/2003
- Section 2598 outlines the basic principles of unfair competition and does not include any direct reference to advertising. However, practice in some case law has taken advantage of the broad definition provided in article 2598 (3) to incorporate misleading, confusing or denigrating advertising within the meaning of acts of unfair competition. In the case L’Oreal v Johnson & Johnson, comparative advertising was deemed to constitute unfair competition. Article 2598 (3) states that: “anyone commits an act of unfair competition who directly or indirectly uses any other means not in conformity with the principles of professional correctness, and able to damage another’s company”. English translation of key articles:
http://www.g-regs.com/downloads/ITCivilCode2250_2598.pdf
e-Commerce
Legislative Decree of 9th April 2003, No. 70. Entry into force 14/05/2003. Implementing Directive 2000/31/EC on certain legal aspects of information society services; known as the E-Commerce Directive. This decree applies to Information Society Service Providers (ISSP’s), defined as “any service normally provided for remuneration, at a distance, by electronic means, and at the individual request of a recipient of the service” (Art. 2 LD 70/2003). The requirement for an ISS to be “normally provided for remuneration” does not restrict scope to services giving rise to buying and selling online; the Decree also covers services that are not directly remunerated by those who receive them, such as those services offering online information. The Decree establishes information requirements for commercial communications, i.e. any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity, or exercising a regulated profession (Art. 8). Article 12 sets out information required to conclude a contract electronically.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-04-09;70!vig=
English translation of relevant articles:
http://www.g-regs.com/downloads/ITLDApr03Ecommerce.pdf
Law 20 November 2017, No. 167 Provisions for the fulfilment of the obligations deriving from Italy's membership of the European Union - European Law 2017: Entry into force 12/12/2017. (LEGGE 20 novembre 2017, No. 167 Disposizioni per l'adempimento degli obblighi derivanti dall'appartenenza dell'Italia all'Unione europea - Legge europea 2017). This ‘enabling’ law prepared for Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data:
http://www.gazzettaufficiale.it/eli/id/2017/11/27/17G00180/sg
Guidelines from the national authority
From the Italian Data Protection Authority Garante per la Protezione dei data Personali Guide on the application of EU Regulation in the matter of protection of personal data updated edition February 2018 (IT)
http://www.g-regs.com/downloads/ITGenGuidaallapplicazionedelRegolamentoUE2016_679.pdf
Personal data
Legislative Decree of 30th June 2003, No. 196. Personal Data Protection Code (containing provisions for the adaptation of national law to Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals concerning the processing of personal data and the free movement of such data and repealing Directive 95/46/EC). Entry into force 01/01/2004. The Decree originally implemented Data Protection Directive 95/46/EC and Directive 2002/58/EC, the E-Privacy Directive. The Legislative Decree of 10 August 2018, No. 10 re-named the Code and applied amendments resulting from the introduction of GDPR, essentially repealing and re-structuring large sections; see link below. The core consent rules from articles 23 and 24 are now assigned to the GDPR regime. Title X, Chapter I covers privacy in electronic communications, providing opt-in/ opt-out requirements for marketing across various channels, implementing Directive 2002/58/EC. The key section 130 is amended in some data processing aspects, but its opt-in provision remains. There is comment in Italian regulatory circles that the legitimate interest aspect of the GDPR does not seem to be addressed. See DLA Piper blog here. The regulatory authority is the Data Protection authority garante per la protezione dei dati personali; see entries below
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-06-30;196!vig= (IT)
English translation from Garante:
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9740796
The DPA
Note: the arrival of the GDPR created a new regime in the lawfulness of the processing of personal data. Most of the entries/ DPA decisions below were established pre GDPR. While decisions may well remain applicable (some are not impacted by GDPR, and some may anyway be consistent with GDPR), interpretation of the different aspects of decisions to different aspects of marketing communications may vary. In short, especially while this territory is somewhat uncertain, the opinion of specialist advisors should be obtained
Data Protection Authority (Garante per la protezione dei dati personali). The DPA or ‘Garante’ was established in 1997 when the former Data Protection Act came into force (675/1996). It is an independent authority set up to protect fundamental rights and freedoms in connection with the processing of personal data.
The application of EU Regulation in the matter of protection of personal data; updated edition February 2018:
http://www.g-regs.com/downloads/ITGenGuidaallapplicazionedelRegolamentoUE2016_679.pdf (IT)
Guidelines on the processing of personal data for online profiling; March 19, 2015
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3881513 (IT)
How to lawfully email advertising messages
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1589969 (IT)
European Regulation: Guidelines for DPOs; May 24 2021
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9589388 (IT)
Guidelines for cookies and other tracking tools; June 10 2021
www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9677876 (IT)
FAQ on cookies (June 2021)
https://garanteprivacy.it/web/guest/faq/cookie
See also under the header Direct Marketing below
B2B unsolicited communications
DPA Decision 13 November 2012. This decision is on the applicability of Section 130 (Data Protection Code – LD 193/2003)) relating to protection from unsolicited marketing. It confirms that the provisions on marketing obligations are still applicable to legal entities and not only to natural persons. The decision came in response to legislative amendments (Decree Law 201/2011), which excluded legal entities from the definition of ‘data subject’ and consequently protection from unsolicited communications. Decree No. 69/2012, subsequently amended the Code to replace 'data subjects' with 'contracting parties', extending the protection to legal entities once again. Garante confirmed that while legal entities now benefit from the protection under section 130 as 'contracting parties', they remain excluded from other sections, which still refer to 'data subjects' or 'personal data'.
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2094796 IT)
Privacy/ opt-out register
Presidential Decree 7 September 2010, No. 178. Regulation establishing and managing the public register of subscribers who are opposed to the use of their phone number for sales or sales promotions. Entry into force 17/11/2010. The Presidential Decree created the public opt-out register or Register of Opposition (registro pubblico delle opposizioni as referenced in Article 130 (3-bis) of the Data Protection Code in relation to telemarketing activities, which now allows companies to make unsolicited telemarketing calls to any individual whose number is listed in a public telephone directory (electronic/ printed) provided that they have not objected by registering their telephone number on the Register. In July 2011, the opt-out system was extended to include direct mail (Decree Law 13 May 2011, No. 70). In English (Garante translation):
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1788873
Law of January 11, 2018, No. 5. New provisions on the registration and functioning of the register of oppositions and establishment of national prefixes for telephone calls for statistical, promotional and market research purposes:
www.gazzettaufficiale.it/eli/id/2018/02/03/18G00021/sg (IT)
Opt-out Register registro pubblico delle opposizioni. The Register is a 'do not call' list of telephone numbers; legal entities as well as individuals are entitled to register (see definition of subscriber in DPR). The Data Protection Authority La Garante supervises the operation of the Register as per Article 130 (3-quart) DPC, 3c in the amended version of the Code.
Legislative Decree 28 May 2012, No. 69. Amending Legislative Decree 30 June 2003, No. 196, establishing the law relating to the protection of personal data in the implementation of the Directive 2009/136/EC, which amended Article 5 (3) of Directive 2002/58/EC (E-Privacy Directive). Article 122 introduces new provisions on the use of cookies by website operators: that storing information on users’ equipment or access to information stored therein is allowed only on condition that users are informed on the use of cookies on the relevant website and that users provide their consent.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2012-05-28;69!vig=
English translation of article 122:
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9740796
For guidance on cookies, see entries under the DPA above
Italian DPA via its decision dated 19 June 2008 (published in Italy's Official Journal no. 152 dated 1st July 2008 as well as on www.garanteprivacy.it under web document No. 1526724, link below). Re Soft Opt-in principle outlined in Art. 130 (4) of the DPC for email marketing extended to Direct mail marketing:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1526724
Direct marketing (general)
Guidelines relating to promotional activity and combating spam: July 4th 2013 Doc. no. web. 2542348. The Guidelines lay down the first consolidated set of measures and precautions helping companies plan marketing campaigns with special focus on unsolicited marketing using social networking services (SNS), viral and targeted marketing. Doc. No. 2542348 (IT) GRS trans EN; Garante trans EN Doc No. 4304228
Section 2: Consent to processing of personal data for purposes of direct marketing. Section 6.1: Social Media and 6.2: Viral Marketing. IT:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2542348
English translation of key provisions:
http://www.g-regs.com/downloads/ITGaranteDoc2542348B.pdf
DPA Guidelines 23/07/2013 No. 2554512. 'No to spam, yes to consumer friendly marketing' (EN). Guidelines by the Garante on unsolicited commercial communications. Provides a summary of the guidelines from Doc. no. 2542348.
EN: http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2554512
IT: http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2549317
General decision: Consent to data processing for direct marketing purposes by means of traditional and automated systems. May 15, 2013 Doc. No. Web 2543820. This decision aims further to simplify the requirements applying to direct marketing. It complements Doc no. 2542348 and clarifies that consent obtained for the purposes of direct marketing by means of emails, sms, fax etc…(as per Art. 130(1&2) DPC) also covers marketing carried out by more traditional methods such as telemarketing, direct mail:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2543820 (IT)
English translation of key provisions:
http://www.g-regs.com/downloads/ITDPADocNo2543820B.pdf
D.P.R. (Presidential Decree) No. 430 of 26 October 2001 on ‘Regulations concerning the comprehensive revision of standards governing contests, reward-based loyalty programmes and local draws pursuant to article 19 (4) of Law 449/1997 of 27 December’. The Decree regulates both prize competitions and prize operations, the two types of sales promotions with prizes that are permitted in Italy. Prize Contests (concorsi a premio) are awarded on the basis of chance (raffle) or special skill; Prize Operations (Operazioni a premio) concern the provision of prizes to each and every purchaser of a product. Prior notification to the Ministry of Economic Development (via Prima online at www.impresa.gov.it) is required.
Consumer Code LD 206/2005 (shown above under Legislation) implements the Unfair Commercial Practices Directive 2005/29/EC. Sales promotions fall within the scope of the Directive: commercial practices such as combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers are regulated by its provisions, transposed into the Consumer Code.
Note: The above selections are only two important regulations within Sales Promotions, which is a heavily regulated activity in Italy. The full list of decrees can be found here:
http://www.g-regs.com/downloads/ITGenSPcollection.pdf
The Consolidated Text on Radio and Audiovisual Media Services (Testo unico dei servizi di media audiovisivi e radiofonici), known as the AVMS Code; Legislative Decree No. 177 31st July 2005. The AVMS Directive 2007/65/EC, codified 2010/13/EC, was implemented by Legislative Decree No. 44/2010, the ‘Romani Decree’, which amended the original Broadcasting Code so as to align it to the AVMS Directive. The AVMS Code regulates TV and Radio and incorporates all audiovisual media services (linear: analogue and digital TV, live streaming, webcasting and near VOD; non-linear: VOD). The Act is enforced by the Italian Communications Authority AGCOM who adopted two regulations in 2010 which confirmed that the scope of the regulations will extend to those service providers that have editorial responsibility and an annual income in excess of €100,000; it will not include UGC portals such as Youtube, Vimeo. Consolidated text:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-07-31;177!vig
English translation of key provisions:
http://www.g-regs.com/downloads/ITLDSingle177-2005AVMSCode.pdf
Repealed by the below (art. 70)
Legislative Decree No. 208/2121 of 8 November, 2021. Implementation of Directive (EU) 2018/1808 of the European Parliament and of the Council, of November 14, 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 consolidated act for the supply of audiovisual media services in view of changing market realities. This Decree, as it describes in the title, implements Directive 2018/1808 which amended the AVMSD 2010/13/EU, reflecting the 'digitisation' of audiovisual media in Europe and so extending scope online and in particular to video-sharing platforms (VSPS). The Decree repeals the AVMS Code (LD 177/2005) above and carries many of its provisions. For our (commercial communication) purposes, those are largely found in Chapter III - article 43 for the 'general' AV rules prohibiting discrimination, offense, protecting minors etc. and articles 46 and 48 for sponsorship and product placement. VSPS provisions are under Chapter II and require those platforms to identify commercial content where they are aware of it. Helpful piece on the Directive from Simmons and Simmons LLP here.
https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:DECRETO.LEGISLATIVO:2021-11-08;208!vig=
Law No. 112 of 3 May 2004 (‘Gasparri Law’). Regulations establishing principles for the organisation of the radio and television system and Rai-Radiotelevisione Italiana SpA, as well as granting authority to the Government to issue a consolidated radio and television law. RAI is Italy’s national public broadcasting company; article 10 Protection of Minors in TV programmes mirrors the AVMS Code and Framework Law (125/2001), stating broadcasters must observe the Self-Regulatory Code on Media and Minors. Broadcasters are also required to apply specific measures in programming from 16.00 to 19.00 and within programmes aimed at minors. Consolidated text:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2004-05-03;112!vig=
The Self-Regulatory Code on Media and Minors (EN):
http://www.g-regs.com/downloads/IT_MinorsSelf-RegCodeTV.pdf
The IAP Self-Regulation Code of Marketing Communication, 68th edition effective February 9th, 2021 (Codice Di Autodisciplina Della Comunicazione Commerciale). The IAP (Istituto dell’Autodisciplina Pubblicitaria) is Italy’s advertising standards authority since 1966. Rules are enforced by the Review Board (Comitato di Controllo) and Jury (Giurì). The Code is binding only on IAP members or those advertisers otherwise contracted. Scope: The term 'marketing communication' is defined as any type of communication, either private or public, including advertising, used to promote the sale of goods or services irrespective of the means used. The Code includes general rules and behaviours to which marcoms must comply in Title I. Special Rules of the Code in Title II covers A. marcoms rules applicable to sales systems and B. specific product categories. The Code also incorporates a number of Regulations (EN), which 'form an integral part of the Code'. These include e.g. the 'Digital Chart' (see below) and in February 2021 the Regulation governing marketing communication for food products and beverages to protect children and ensure healthy eating, added in the context of amends to the AVMS Directive.
EN: http://www.iap.it/about/the-code/?lang=en
IT: http://www.iap.it/codice-e-altre-fonti/il-codice/
IAP Digital Chart
The objective of the Chart is to review the most common forms of marketing communication on the web and in the digital world in general, and to establish criteria for the recognisability of marketing communication in compliance with Article 7 of the IAP Code. The forms of online communication covered in the Digital Chart include:
Endorsements via celebrities/ influencers/ bloggers, vloggers, and UGC
Native advertising in the form of in-feed units, paid search units, and recommendations widgets
SNS
In-app advertising and
Advergames
In Italian:
https://www.iap.it/codice-e-altre-fonti/regolamenti-autodisciplinari/digital-chart/
IAP translation: scroll down to the entry ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet':
https://www.iap.it/regulations/?lang=en
ICC Advertising and Marketing Communications Code 2018
Chapter A: Sales Promotion
Chapter B : Sponsorship
Chapter C : Direct Marketing and Digital Marketing Communications
Chapter D : Environmental Claims in Marketing Communications
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf
ICC Guide for Responsible Mobile Marketing Communications
The ICC’s Guidance on Native Advertising:
https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
Self-Regulatory Code On Media and Minors (Codice di autoregolamentazione media e minori). The Code was signed by major public and private broadcasting companies and approved on 29 Nov 2002. The agreement was recognised by law No. 112/04 Article 10 (1) (the Gasparri Law – see earlier entry), and referenced in the AVMS Code Article 34 (6). The enactment of these statutes has made the Agreement binding on all TV broadcasters regardless of the type of platform employed (analogue, satellite, digital terrestrial, IPTV online TV). Section 4 provides rules on advertising with three levels of protection: General, Enhanced 7am-4pm and 7pm-10.30pm, and Specific 4pm-7pm
Section 4 GRS translation:
http://www.g-regs.com/downloads/IT_MinorsSelf-RegCodeTV.pdf
The Internet
Self-Regulatory Code on Internet Services (Codice di Autoregolamentazione per i Servizi Internet; ISC). Put together by AIIP, the Association of Italian Internet Providers, and Assinform, the Italian Association of Information and Communication Technology. Section 9e of the Internet Services Code specifically refers to the IAP Self-Regulatory Code of Marketing Communication. Therefore, the IAP Code will be binding on the companies that adhere to the ISC.
http://www.privacy.it/codeonprovideraiip.html
Telecoms
Asstel Telemarketing Code. Asstel is the official Employers’ Association of the telecommunication operators (fixed, mobile, internet etc.). Their Code lays out consumer protection rules in Telemarketing:
http://www.asstel.it/wp-content/uploads/2011/05/Codice-di-Condotta.pdf
English Translation:
http://www.g-regs.com/downloads/ITAsstelCode.pdf
The Italian Competition Authority (AGCM). The Competition Authority, also known as the Antitrust Authority, was established in Italy in 1990 by Law 287/1990. As of 2007, the Authority has been responsible for the protection of consumers from unfair commercial practices, as well as from all misleading advertising. In order to ensure fair market competition, it may also intervene in comparative advertising:
http://www.agcm.it/en/index.php
Italian Communications Authority (Autorità per le garanzie nelle comunicazioni) AGCOM. An independent body set up in accordance with Law No. 249 of 31 July 1997, an ‘umbrella’ authority for both the audio-visual and the telecommunications sectors. Agcom is empowered to issue regulations and guidelines for advertising in this area, usually in the form of deliberations.
DMA Italy. Association for Data Driven Marketing. The mission of DMA Italy, a member of FEDMA (see below), is to facilitate the practice of direct communication in all media channels available today (off-line, on-line, mobile, social). DMAItalia do not, as far as we can establish, publish a Code:
IAB/ Europe
IAB Italy. From their website (GT) ‘... is the Italian charter of the Interactive Advertising Bureau, the most important association in the field of digital advertising worldwide and represents the entire chain of the interactive communication market in Italy. ‘
How to Comply with EU Rules Applicable to Online Native Advertising:
https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/
IAB Transparency and Consent Framework:
https://iabeurope.eu/transparency-consent-framework/
IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)
World Federation of Advertisers: WFA
From the website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':
This is their ‘GDPR Guide for Marketers’:
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
http://www.easa-alliance.org/members
EASA’s Best Practice Recommendation on Online Behavioural Advertising is here:
And on Digital Marketing Communications here:
And on Influencer Marketing here:
FEDMA
Federation of European Direct and Interactive Marketing (FEDMA). FEDMA is the principal source of knowledge of the DM channel across Europe:
http://www.fedma.org/index.php?id=30
ESA
The European Sponsorship Association can be found at:
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