Children

Uploaded January 2019

See individual countries for updates.

 

 

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France

A. Overview

Sector

SECTION A OVERVIEW

 

Updates

Reviewed by ARPP Feb 2020

Links refreshed Dec 2020

CNIL 8 recommendations (EN) August 2021

Unicef playbook October 2021

Kidfluencers Act (FR) November 2021

ARPP Digital Code in force Jan 2022 FR / EN

Content policies for YouTube Kids Dec 2021

EC 5 key principles June 2022

 

From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022. The principles are not legally binding, but obviously important

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

Promoting diversity and inclusion in advertising: a UNICEF playbook published July 2021

 

CONTEXT AND SCOPE

 

  • These pages deal with the regulations that affect the sensitive issue of marketing communications to children. French laws generally use the term 'minor' instead of 'child'; the Civil Code defines ‘minor’ as an individual of either sex who has not yet reached eighteen years of age. Some parts of some codes define a child as under 12; an update of December 2016 from the ICC’s document Reference Guide on Advertising to Children declares that 'children' are age 12 and younger for the purposes of advertising, and 'young persons' are teenagers under age 18. The ICC Code  is applied in France by the Self-Regulatory Organisation ARPP 
  • Clearly, children are protected from sectors that they are not permitted to use, such as Alcohol, or Gambling; the marcoms rules for such sectors are separately available. So these pages are for all advertisers, as the Children’s Code from ARPP applies across the board, and especially for those sectors that a) are used by children legitimately and b) where there are no particular category rules that prohibit communications to children. In other words, if you can sell your product to children, or children use it, can you communicate to them and, if so, what are the French rules?
 

CHILD-SPECIFIC CODES

 

There are three specific Self-Regulatory Codes or 'Recommendations' (the linked title is to the French version, the second link beneath is to the ARPP English translation):

 

The ARPP Children’s Advertising Code (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/ (EN)

 

The Code is supported by a video explanation, sub-titled in English, ‘in order to make the application of the Children’s code more explicit’

 

The ARPP Toys Advertising Code (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/toys-code/ (EN)

 

Note also the Government-driven 'Charter for a mixed presentation of toys.' (FR; Sept 2020). This is a significant document with notable pan-industry signatories but does not carry addittional marcoms rules, requiring that existing codes are 'rigorously' observed and that there is a two-yearly review of delivery of commitments

 

And The ARPP Safety Code (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/safety-code-dangerous-behaviours-and-situations/ (EN)

 

 

Food behaviours

 

There is also a significant Food Behaviours Code (EN), including notably references to children, that we do not cover in depth in these pages but which can be found under our Food and Soft Drinks sector, albeit the Code applies to advertising from all sectors. Alcohol and Gambling Codes also provide for children’s protection, both codes also available from the home page of this website.

 

OTHER LEGISLATION AND SELF-REGULATION

 

Broader (versus children-specific) consumer protection legislation is provided by the 2011 Consumer Code (Code de la Consommation – the link is to an English translation of the key clauses), which transposes the Unfair Commercial Practices Directive 2005/29/EC. Article L121-7 prohibits that children are encouraged directly to buy a product or to persuade their parents or other adults to buy on their behalf. General advertising content rules are from ARPP, the advertising Self-Regulatory body in France, whose 'base' rules are from the ICC Advertising and Marketing Communications Code: the French version is here and the English version here. Specific child-related provisions are Articles 18, Children and Teens and 19.4, Children’s personal data. In the context of direct marketing and digital marketing communications to Children, see Chapter C, Article C7. The Children’s Code that we have linked earlier recognises these foundations in its preamble, albeit the 2018 ICC Code ‘clarifies’ Children’s rules. See our following Content Section B for details (point 4).

 

K&L Gates LLP via Lexology bring to your attention 'French framework for “kidfluencers” - Yet another undertaking for online platforms', which describes the arrival and implications of Act No. 2020-1266 (FR) of 19 October 2020 on the commercial use of the image of children under 16 on online platforms. Under this Act, which amends the French Labor Code, anyone (including parents) recording videos featuring children under 16 with the aim of making money on video sharing platforms must request the relevant public authority’s prior authorisation.

 

ADVICE AND GUIDANCE 

 

For ‘context’, two of the ARPP bodies publish papers/ thought pieces on the issue of Children and Advertising:

 

  1. The Advertising Ethics Council CEP (Conseil de l’éthique publicitaire), ARPP’s ‘Think Tank’, published in an Opinion ‘Advertising and Youth Audiences’; the link is to the piece in French - key extract translated here
  2. The Joint Advertising Council CPP (Conseil paritaire de la publicité) are responsible for Sexualisation of Children in Advertising; the linked document is in French and hasn’t been translated as it is largely reporting that the issue is found in editorial, and that there are solid rules to protect Children and their depiction in advertising.
 

CHANNEL RULES

 

As from 1 January 2018, Law No. 2016-1771 of December 20, 2016 (FR) introduced the prohibition of commercial advertising in public television programmes primarily intended for children under the age of twelve, and during the 15 minutes preceding and following those programmes, other than 'generic messages for goods or services relating to children's health and development', or campaigns of ‘general interest’. 

 

Broadcast / AV and privacy

 

Decree 92-280 (key clauses translated here) transposed the AVMS Directive and provides the core rules for broadcasters in commercial communications. Product placement is not permitted in children’s programmes; sponsorship is permitted except of course by prohibited advertisers (Gambling, Alcohol, for example). Data Protection is under the auspices of the independent authority CNIL (Commission Nationale de l’Informatique et des Libertés), and since May 2018 the processing of personal data is subject to the GDPR (see below). Privacy in electronic communications is regulated by the 2013 Mail and Electronic Communications Code, English translation of the key article L34-5 here.

 

 

Self-Regulation online 

 

An important Self-Regulatory influence online is the ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022), which states that digital advertising must respect a) the ICC Advertising and Marketing Communications Code and b) the law. So the Content rules shown in our Section B, except for those specific to Broadcast, as well as the rules that apply to all audiences/ product categories shown under the General tab below, will apply online. The ARPP Digital Code linked above includes provisions for children that are set out in our Channel Section C.

 

GDPR and children

 

Privacy issues should be reviewed with specialist advisors

 

The General Data Protection Regulation 2016/679 (GDPR) applies directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. Rules from the GDPR on Children’s data are set out under Online Commercial Communications in our Channel Section C; a brief extract from the EC’s Data Protection pages provides that: ‘your company/organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age’. Other significant conditions pertain; see our Section C and the GDPR itself (key articles 8 and 12). In August 2021, CNIL the Data Protection Authority, published 8 recommendations to enhance the protection of children online (EN; CNIL translation).

 

GENERAL RULES 

 

As we have indicated above, as well as the rules for specific categories/ groups, it's important that the General rules, i.e. those that apply to the Content of all advertising, Children’s marcoms included, are observed. Adjudications from ARPP’s JDP that find against marcoms from particular sectors such as Children will frequently be derived from general misleadingness rules or those from e.g. social responsibility provisions. The principal rules applicable in France in this respect are from the ICC Advertising and Marketing Communications Code (EN) (FR), the 'General' code in France. Legislation in this context is primarily from the Consumer Code (EN key clauses), also linked above.

 

 

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General

SECTION A OVERVIEW

Updates since Dec 2020

 

Sustainability Code update and vid Dec 2020

Directive 2019/2161 added Section E Jan 2021

Directive 2018/1808 amends in AV 2021

July 2021 'Code de la route de l’influence' (FR)

Google's environmental claims policy Oct 2021

ICC Environmental framework 2021 (Nov)

UCPD Guidance December 2021

ARPP Digital Code in force Jan 2022 FR / EN

Omnibus Directive transposition (FR)

IAB TCF Framework and GDPR Feb 2022

Commission pricing guidance; see 2.3 our Section B

ARPP Digital Club launch April 2022

Update on "Greenwashing" Regulation May 2022

Above from Soulier Avocats/ Mondaq

ARPP La RECO RAPIDO. June 2022

Video clips < a minute digital ad rules 

CNIL fines Total Energies 1mil Euros (EN)

Consumer Code EN clauses effective May 2022

Google says cookie here to stay until 2024

Above from report dated July 27, 2022

CNIL rulings Awaited Against Both Criteo & IAB

August 2022 Goodwin Procter/ Lex

Fossil fuel advertising prohibited August 2022

Fiat 500 Red appeal rejected Aug 2022 (FR)

 

 

RECENT/ MAJOR ISSUES

 

'Greenwashing' March 2022: ARPP announce that advertisers and agencies must consult them before transmission of national campaigns if those contain environmental claims. More here (FR) and key extracts unofficially translated here.

 

Fossil fuels ad ban; carbon and other claims


From 22nd August 2022, the 'advertising and promotion' (la publicité relative à la commercialisation ou faisant la promotion) of specified fossil fuels is prohibited; see section 8 of the Environmental Code, art. L229-61 (FR) from the 'Climate and Resilience Law' referenced above. Some acerbic August 2022 commentary from GALA here. The same law introduced a new section 9 in the Environmental Code on requirements and conditions for carbon claims such as 'carbon neutral', 'zero carbon', 'zero-carbon footprint', 'climate neutral', 'fully offset', '100% offset' or equivalent, applicable as of January 1, 2023. Key clauses are in English here, courtesy of Soulier Avocats. There are other significant environmental information measures aimed at 'waste-generating' products, which include a ban on terms such as 'environmentally friendly' or 'biodegradable' on products and packaging; details to be developed via decree in the coming months; see Better consumer information on the environmental qualities of products from Bird&Bird June 2022. 

 

As further emphasis that environmental claims are high on the regulatory agenda, the Consumer Code - principal legislation in advertising content and incorporating transposition of the Unfair Commercial Practices Directive 2005/29/EC - was amended by the 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) to include specific reference to environmental impact under article L121-2, which sets out how a product or service's 'essential characteristics' must not mislead. The full article can be found here in English and the Consumer Code is here in French.

 

GENERAL ADVERTISING RULES IN FRANCE 

 

Set out below are the rules that affect all product sectors in France. While some sectors are subject to specific rules, they must also observe the ‘general rules’ that deal with e.g. misleadingness, social responsibility, decency, offence, etc. Some countries write their own Codes that address those issues, others will deploy the established ICC Advertising and Marketing Communications Code (EN), which applies directly in France. The French version of the Code, obviously applicable in this context, is here. Details are in English in our Content Section B, or see the linked Code. The articles frequently referenced in adjudications are 2, Social responsibility and 5, Truthfulness. There's a helpful round-up here of 'prohibited and controlled advertising in France' from lawyers Bernard-Hertz-Béjot via Lexology and another piece from them on misleading advertising in France.

 

SRO AND CODES

 

The Self-Regulatory Organisation in France is the ARPP (Autorité de Régulation Professionnelle De La Publicité). As you might expect, there are a number of Codes that are unique to France; they are all collected here in FR and in EN; the overall regulatory position is relatively intricate and certainly not short on rules. Supplementing the ‘base’ ICC Code are a number of sectoral Codes such as those for Cars, Children, Gambling etc. Those Codes are shown in detail in the sectors we cover elsewhere, or they can be found on the ARPP website linked above. Trans-sector codes from ARPP are also significant influences in both Content and Channel rules; a selection is:

 

Portrayal of people

 

Code for the Portrayal and Respect of People (EN):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

In the original French (Recommandation Image et Respect de la Personne):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

 

The Code, introduced in 2016, covers aspects such as dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B, or click above.

 

Children

 

A separate Children database is available from the home page of this website. Meanwhile, here is the core Article !8 Children and Young People (EN) from the ICC Code and the ARPP 'Recommandation Enfant' FREN. There are some provisions on child protection in the ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here); see clause 3. There are also references under point 1.6 (Safety) in the Content Section B that follows. K&L Gates LLP via Lexology bring to your attention 'French framework for “kidfluencers” - Yet another undertaking for online platforms', which describes the arrival and implications of Act No. 2020-1266 (FR) of 19 October 2020 on the commercial use of the image of children under 16 on online platforms. Under this Act, which amends the French Labour Code, anyone (including parents) recording videos featuring children under 16 with the aim of making money on video sharing platforms must request the relevant public authority’s prior authorisation.

 

Identification

 

Identification of advertising and marketing communications. Identification of the advertiser.

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-of-advertising-and-marketing-communications-identification-of-the-advertiser-code/   (EN)

In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-de-la-publicite-et-des-communications-commerciales/​ (FR)

 

The Code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below, and the ARPP Guidance on Influencer Marketing (Video EN sub-titled).

 

Native

 

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

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

And in English here:

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

The  Digital Advertising and Marketing Communications Code (EN; V5) also carries Native advertising provisions

 

Influencer marketing

 

ARPP recommendations for influencer marketing

https://www.youtube.com/watch?v=8Jx4gr5bvH0 (EN sub-titles)

Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR). #ad, for example, is not permitted

See also the ARPP ‘Responsible Communications Kit’ (FR)

ARPP announced July 2021 the 'Code de la route de l’influence' (FR) with Influence4You; this is the 'Highway Code' for marketers and influencers

The  Digital Advertising and Marketing Communications Code (EN; V5) also carries Influencer provisions

The Media Institute in collaboration with ARPP launched the Responsible Influencing Certificate in September 2021. More here (FR)

 

Safety

 

Safety Code: Dangerous behaviours and situations:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/safety-code-dangerous-behaviours-and-situations/ (EN)

In the original French (Recommandation Sécurité: Situations et Comportements Dangereux) :

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/securite/ (FR)

 

The Code is particularly protective of children but helpful in describing situations that are permitted. 

Details in Content Section B or from the links above.

 

Price

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/publicite-de-prix/ (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/ (EN)

This Recommendation sets out the principles, qualifications and formatting by channel when including price in advertising. Details in Content Section B & Channel Section C.

 

Sustainability

 

Greenwashing March 2022: ARPP announce that advertisers and agencies must consult them before transmission of national campaigns if they contain environmental claims. More here (FR) and key extracts unofficially translated here. See also additional opening entry above re changes to the Consumer Code and new rules re carbon offsetting and neutrality claims.

 

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR; V3)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN; V3)

This is sensitive territory in French advertising; the Code covers topics such as Truthfulness, Vocabulary, Signs, Labels and logos, Clarity and qualifications, and Complex systems. 

Video here: https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN sub-titles)

The WFA launched their Planet Pledge in April 2021.

And Global Guidance on Environmental Claims April 2022.

On 7 October 2021, Google launched a new environmental claims policy. More here

ICC Environmental framework 2021 (Nov) 'provides added guidance on some established environmental claims and additional guidance on some emerging claims.'

 

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 ('fixing the planet'); the commercial has been withdrawn, but there's (not entirely objective) reference to it in this activist video. The ASA in the U.K. also uheld a complaint; case here, story here.

 

 

LEGISLATION IN ADVERTISING CONTENT

 

Consumer protection (in the marketing context) legislation is provided by the Consumer Code (EN; includes clauses effective May 28, 2022 from Directive 2019/2161), which transposes the Unfair Commercial Practices Directive 2005/29/EC, in December 2021 subject to new Guidance from the Commission. The Code covers misleading marketing and advertising practices and e.g. sets out the rules for commercial communications constituting ‘an invitation to purchase’ and the comparative advertising rules; some promotional activities are covered in articles L121-35 to 41. Details in the following Content Section B. It is this legislation that largely applies in Influencer cases: see Influencers and the Consumer Code: the DGCCRF at attention (FR) from Haas via Mondaq, which references a recent case brought by the competition authority under article LI21(3), covering the failure to indicate 'true commercial intention.' Also pertinent are amends from the Climate and Resilience Law (FR) of August 2021 to article L121-2 of the CC, which as a result incorporates specific reference to 'environmental impact' under 'essential characteristics' which must not mislead. Clauses in English are here. See above in the introductory paragraph reference to rules from the same Climate and Resilience Law on carbon offsetting and carbon neutrality claims in advertising, key clauses in English here.

The Consumer Code (FR) now also carries the marketing-related clauses from the 'Omnibus' Directive 2019/2161, which have been transposed via Ordinance No. 2021-1734 (FR) of December 22, 2021. Article L.112-1-1 (of the CC) for promotional pricing, article L.121-2 for a new misleading practice in international 'dual marketing' rules The Directive's article 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.’and L.121-3 for the information now required in an e-commerce context re search rankings and consumer reviews, all effective May 28, 2022. Unofficial and non-binding translation of all the key clauses here.

 

Models in advertising

 

Legislation in the Public Health Code (PHC) is from article L2133-2 (EN) addressing retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.

 

CHANNEL (I.E. PLACEMENT) RULES
Self-Regulation

 

The ICC Content rules referenced above apply both offline and online; the Online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here). The press release setting out the changes is here in English; scope of the Code is here. Scope These rules apply to all advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The Code includes a useful walk through the various techniques online such as In-game, Apps, Vlogs/ Influencers, Native advertising, Brand content, OBA and retargeting. Full information in our Channel Section C as applicable, or see the linked code. 

 

Legislation in channel 

 

The influence of legislation in the placement of commercial communications across Europe is significant and covered by a series of Directives assembled here for background. The following paragraphs address their transposition into national legislation and application by channel, albeit details are in Section C, so this is a 'snapshot.'

 

Audiovisual

 

Decree 92-280 (FR, key clauses translated here) transposed the AVMS Directive and provides the core rules in spot advertising, programme sponsorship, and teleshopping. Two 2017 developments are the lifting of the prohibition (FR) on showing product etc. in TV programme sponsorship, and the introduction of a ban (FR) in and around Children’s (U12) programmes for anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’. Amendments brought about by Directive 2018/1808 extending the scope of the AVMSD into e.g. video-sharing platforms are provided nationally in the Léotard Law (FR) via Ordinance 2020-1642 (FR). Details in Channel Section C, or see the linked files.

Direct electronic communications

 

Data processing under CNIL is regulated by the French Data Protection and Freedoms Act or FDPFA Act No. 78 -17 of 6 January 1978 (FR) as amended (see below), and electronic communications primarily by the 2013 Mail and Electronic Communications Code (FR), unofficial translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France.

 

E-commerce

 

Rules for commercial communications are transposed from the E-Commerce Directive 2000/31/EC into both the Consumer Code (EN) (FR) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws are important in this context, setting out what must be included or made available in e-commerce communications (articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the Consumer Code).

 

Data processing

 

Privacy issues should be reviewed with specialist advisors

 

Rulings Awaited Against Both Criteo and IAB Europe: Ongoing Uncertainty for Digital Advertising

August 2022 Goodwin Procter/ Lex

 

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, France included, tend to retain their legislation and add to it to ‘recognise’ GDPR. France’s key development in this context is via Ordinance No. 2018-1125 of December 12, 2018  (FR) on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (or the French Data Protection and Freedoms Act - FDPFA), and transposing Directive 2016/680, which accompanies GDPR. Helpful overview and commentary here (EN) from Data Guidance. The Data Protection Authority is CNIL, who publish some text in English. Their GDPR 'toolkit' is here in English; specific rules and guidelines are set out by channel in Section C. The CNIL gives its position on the “cookieless” alternatives to third-party cookies from Nomos via Lexology October 2021 is a helpful look at how the CNIL is likely to handle alternative tracking and other technologies. The original paper from CNIL is here (FR). This 30 June 2022 announcement from CNIL regarding commercial prospecting and personal rights breaches that led to a fine of 1 million euros against Total Energies is instructive, as it explains the specifics of the case and the rules concerned (in English). The February 2022 'référentiel' on personal data processing from CNIL is here (FR); much of this courtesy of Haas Avocats.

 

 

 

 

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Read more

International

SECTION A OVERVIEW

 

Updates since April 2021
 

WFA Planet Pledge April 2021 

Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021                               

WHO Alcohol consultation October 2021

CJEU judgement re Inbox November 2021

Trade Desk/ UID GDPR issues Nov 2021

UCPD guidance December 2021

ICAS Factbook and database Dec 2021

IAB Guide to Native Advertising Dec 2021

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. March 25, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

 

 

RECENT ISSUES

 

DLA Piper's Advertising Laws of the World August 31, 2022

 ► Greenwashing: Exploring the risks of misleading environmental marketing in China, Canada, France, Singapore and the UK. Gowling WLG, Sept 2022

► Avoid an advertising red card: Middle Eastern considerations for your Qatar ‘22 campaign CMS Cameron McKenna Nabarro Olswang LLP/ Lex Sept 2022

►  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

► Advertising around green and sustainability claims. Baker McKenzie/ Lex August 2022. EU, US, UK

►  Google says cookie here to stay until 2024 July 27, 2022

► The Global ESG Regulatory Framework toughens up White and Case July 2022

► European parliament adopts Digital Services Act and Digital Markets Act CMS Cameron McKenna Nabarro Olswang LLP July 2022

► 2022 Strengthened Code of Practice on Disinformation from the EC. 'Relevant Signatories participating in advertising commit to prevent the misuse of advertising systems to disseminate Disinformation in the form of advertising messages.' EACA, the European agency association, is a signatory

From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022

►  IAB Tech Lab Unveils Global Privacy Platform (GPP) To Consolidate Domestic And Global Privacy Signals For Digital Advertising  June 1, 2022
► Alcohol. The GALA May 2022 overview of various EMEA countries - France, Turkey, the UK, Poland and South Africa - provides an overview of key issues, some interesting adjudications and the do's and dont's of alcohol advertising

► 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

► Incoming EU data and digital legislation from Taylor Wessing/ Lex; IMCO newsletter, both May 2022

 ► Commission proposes new consumer rights and a ban on greenwashing April 2022; Directive proposal here

Related to the above, the Empowering Consumers in the Green Transition initiative, tabled on 30 March 2022 by the European Commission, remains open for feedback until 29 May

► 23/4/22. The 'Trilogue' (representation from the European Commission, the Council and the European Parliament) have reached agreement on the Digital Services Act, 'a landmark piece of legislation that aims to address illegal and harmful content by getting platforms to rapidly take it down.' The Council's press release is here  

► European digital compliance: Key digital regulation & compliance developments. Morrison & Foerster LLP/ Lex April 2022

Data Protection update March 2022 Stephenson Harwood LLP/ Lexology. Includes reference to US-EU agreement of principles for data transfer mechanism to replace Privacy Shield

► Interesting case re Admissible Exaggeration in Advertising; Czech Republic Supreme Administrative Court on a dispute between the Council for Radio and Television Broadcasting (RRTV) and manufacturer of infant formula Sunar. GALA/ Lex April 2022

► Global Privacy Regulations Are Changing: What Advertisers Need To Know Cross Markets. CPO magazine March 2022

► From ICAS March 2022: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here

► ePrivacy Regulation: EU Council agrees on the draft. Härting Rechtsanwälte/ Lex. March 2022

 

ISSUES TO LOOK OUT FOR IN 2022 
 
A February 2022 global/ USA perspective 
►The IMCO committee (Internal Market and Consumer Protection) published in February 2022 A Study on Influencer Marketing. This covers some important legal and Self-Regulatory ground and is one of several signs that the EU is looking to tackle Influencer marketing
► Some environmental rulings in the U.K., Sweden and the U.S. as this is and will remain a high profile issue internationally; see also Greenwashing: Exploring the risks of misleading environmental marketing in the UK, Canada, France and Singapore from Gowling WLG/ Lex April 2022
 
THE OMNIBUS DIRECTIVE

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019. This directive sets out some new information requirements related to 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 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

 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

April 2022. WFA issues Global Guidance on Environmental Claims. The link is to a story from the Drum UK that includes the WFA's six principles for a credible environmental claim

 

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). News story here (EN). The Dutch DPA have subsequently advised companies to to stop using TCF

 

Chrome introduced a new Privacy Sandbox proposal to support interest-based advertising called the Topics API. This new API replaces the previous FLoC proposal. Topics are ‘recognisable interest categories that represent the user's top interests, based on their recent browsing history’. The technique can be used to personalise ads, without sharing specific sites the user has visited. More information here

 

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.' 

December 2021 ICAS published the fourth edition of its Global SRO Database and Factbook

December 2021 EASA update on the progress of the Digital Services Act 

December 2021 EASA update on the progress of the EC Beating cancer plan (BECA), which potentially impacts marketing/ advertising in both the Alcohol and Food categories 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version

This Digital policy and legislation - 2021 roundup from Taylor Wessing/ Lexology December 2021 is a helpful piece on status in digital regulation in Europe and the UK

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

EU Code of Conduct on Responsible Food business and Marketing Practices July 2021

 This from the EDAA is a helpful and simple explanation of the DSA

The EU’s Green Consumption Pledge Initiative focuses on 'non-food or mixed businesses with direct interaction with consumers'

 

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

  • Article 18 of the General Provisions of the ICC Code covers children and teens at some length. Additionally, Article C7 from the Chapter Digital Marketing Communications addresses Marketing communications and children
  • Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 
  • On the home page of this website, you'll find a complete Children's sector with the rules spelt out country by country 

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European Directives and their national implementation in the Sector and General rules shown elsewhere on this website. In this international context, we show only the most immediately relevant Directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that Directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the Food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the Self-Regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere. A valuable June 2021 piece from Simmons and Simmons/ Lexology Media law and regulation in European Union focuses largely on the AVMS Directive and its amendment by Directive 2018/1808.

 

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

 

Issue or Channel Key European legislation and clause
Cookies
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
Electronic coms. Consent and Information 
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance 
Audiovisual media 

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

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

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

Data Processing 

Regulation 2016/679/EU on the processing of personal data (GDPR) 

https://eur-lex.europa.eu/eli/reg/2016/679/oj

 

 

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

 

 

 

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Read more

B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

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

 

 

  1. ARPP CHILDREN’S CODE

 

1.1. Identification of the advertising

1.2. Social responsibility

1.3. Dignity, decency

1.4. Violence

1.5. Safety

1. 6. Honest Advertising

1.7. Education of young consumers

1.8. Interactive advertising

1.9. ‘Videograms’ and entertainment software

 

  1. ARPP TOY CODE

 

2.1. Description

2.2. Size

2.3. Movement

 

  1. ARPP SAFETY CODE

 

  1. ICC RULES FOR CHILDREN’S MARCOMS

 

  1. VIDEO GAMES

 

  1. GENERAL ADVERTISING RULES

 

 

Promoting diversity and inclusion in advertising: a UNICEF playbook published July 2021

 

1. THE ARPP CHILDREN’S CODE

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/ (FR)

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/ (EN)

Video (EN sub-titles):

https://youtu.be/KLcmmD6Vgmw

 

Preamble

 

The Code of Advertising Practice of the International Chamber of Commerce (ICC) contains general provisions recognised by all professionals. Since their introduction, some of these have applied directly to advertising aimed at children. As a result:

 

  • Marketing communication must not exploit inexperience or credulity of children or adolescents (Art. 18 ICC Code)
  • Marketing communication must not include any declaration or visual treatment that risks causing children or adolescents mental, moral or physical harm (Art. 18 ICC Code)

 

Respect for these principles must be assessed in accordance with the sensibilities of society as a whole at any given moment and those of the public sector exposed to the advertising. In this context, the following deontological (ethical) rules apply to any message broadcast or distributed in France, irrespective of its form, when it shows children or is directly aimed at them:

 

1.1.  Identification of the advertising

 

  • 1/1 The advertising must be clearly recognisable as such, irrespective of the medium used
  • 1/2 When it is aimed at children, the fact that the message is an advertisement must be quickly identifiable

 

 

1.2. Social responsibility

 

The advertising must be designed with a sense of social responsibility:

 

  • 2/1 The advertising must not present antisocial or criminal acts in a favourable light, or invite children to commit such acts
  • 2/2 It must not legitimise behaviour that would be contrary to the principles of citizenship or the rules of socially acceptable behaviour, hygiene practices, environmental protection or respect for others
  • 2/3 The advertising must not undermine the authority, responsibility or judgement of parents and educators

 

 

1.3. Dignity, decency

 

  • 3/1 The advertising must not be likely to offend sensibilities, shock or cause provocation by disseminating images of children that violate their dignity or decency
  • 3/2 The advertising must not portray children in situations likely to devalue or harm their physical or moral integrity
  • 3/3 The advertising must not be of such a nature that it makes children feel distressed or uneasy
  • 3/4 If the advertising contains a reference to child nudity, care must be taken to ensure that the child’s behaviour corresponds to that of his or her normal daily environment

 

 

1.4. Violence

 

  • 4/1 The advertising must avoid scenes of moral or physical violence or abuse, whether direct or implied
  • 4/2 Under no circumstances may the advertising, through its messages or its presentation, play down the significance of violence or abuse, or give the impression that such behaviour is acceptable
  • 4/3 It must not encourage children to copy aggressive or violent behaviour

 

 

1.5. Safety

 

  • 5/1 Advertising directed at children must present the products in an environment and in situations that conform to the safety rules established by the standards in force
  • 5/2 The advertising must not give the impression that dangerous or imprudent behaviour is acceptable and can be imitated, irrespective of the situation, including in play

 

 

1. 6. Honest advertising

 

  • 6/1 The possibly misleading nature of an advertisement is assessed in accordance with the public sector the message is aimed at
  • Advertising directed at children must take account of their age and experience
  • Messages intended for children must be clear and simple to take account of their level of knowledge, vocabulary and experience
  • 6/2 The advertising must not mislead children, particularly with regard to:

 

  • The characteristics, size, value, nature, durability or performance of the product,
  • The expected results of its use, for example by minimising the strength, dexterity or skill levels required

 

  • 6/3 If the addition of certain elements or accessories is required for the product in question to function (e.g. batteries), this must be clearly stated
  • 6/4 If the product is part of a set, this information must be clearly displayed in the advertising message
  • 6/5 The advertising must not lead children to have an opinion about a product or service that is so strong that they are subsequently unable to change their minds

 

 

1.7. Education of young consumers

 

  • 7/1 The advertising must not suggest that the possession or use of a product will give a child a physical, social or psychological advantage over others of the same age, or that not possessing the product will have the opposite effect
  • 7/2 Advertising directed at children must not provoke an impulse to buy urgently or suggest that this purchase is essential
  • 7/3 The advertising must not imply that the product shown is within the range of all family budgets or minimise its price by the use of such terms as “only”, “just”, etc.
  • 7/4 The advertising message must not include references that directly encourage children to persuade their parents to buy the product or service for them

 

 

1.8. Interactive advertising

 

The promotional nature of this type of message must be clearly recognisable

 

  • 8/1 When the message appeals directly to children (by telephone or any other interactive means) and encourages some form of spending (for example, by promoting a premium rate number), it must also encourage the children to seek the permission of their parents
  • 8/2 Interactive advertising must be restricted to the commercial purpose of the original promotion, excluding any misleading representation (e.g. wrongly identified icon). It must not provide direct access to a website not related to the original advertising
  • 8/3 There must be no encouragement to arrange meetings with strangers, online or offline, or to go to unknown or unsafe places in order to take part in a game or receive a gift
  • 8/4 Personal data may only be collected or used in strict compliance with the law and the rules of the Commission Nationale Informatique et Libertés (CNIL, the French Data Protection Authority)
 

1.9. 'Videograms' and entertainment software

 

  • Advertising promoting videograms (note: confirmed separately as video games) and entertainment and leisure software must contain the restrictions applied to the content of certain products. The recommended age groups for young audiences of certain films, together with the PEGI (Pan European Game Information) classification introduced by software producers within the framework of the Interactive Software Federation of Europe, must be clearly legible in the advertising
  • See also the Recommendations: ‘Health claims’, ‘Safety’, ‘Toys’ and ‘Dietary Habits’, shown later in these pages

 

 

2. THE ARPP TOY CODE

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/jouets/#toc_0_2

 The link is to the Code in French; the ARPP English version is set out below. Where there are obvious glitches in translation we suggest alternatives italicised in brackets.

The original French version anyway applies 

 

In addition to legal provisions applicable, toy advertising targeting children and teenagers, no matter the form, must comply with these ethical rules:

 

 

2.1. Description

 

  • 1.1 The written, audio or visual description of the toy must not mislead the consumer on its principal features (for example, performance, speed, solidity (strength), durability, dimensions)
  • 1.2 The advertisement must clearly indicate when some items must be bought separately (for example, batteries, paintings, additional accessories, etc.)
  • 1.3 The advertisement must indicate « battery powered » when the toy does not perform function in a mechanic way (only function mechanically). If a price is presented, the advertisement must indicate whether the batteries are provided or not
  • 1.4 As often as (Whenever) possible, the toys must be presented for both between boys and girls without distinction

 

 

2.2. Size

 

  • The real size of the toys or their scale must be easily perceptible, preferably by presenting the toy next to an object whose size and scale can be easily known

 

 

2.3. Movement

 

  • In all demonstrations, it must be made clear whether the movement is mechanical, electric or triggered by a manual action

 

 

3. ARPP SAFETY CODE

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/securite/ (FR)

https://www.arpp.org/wp-content/uploads/2017/01/Safety-Code-dangerous-behaviours-and-situations.pdf (EN)

 

 

Preamble

 

  • Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards. (…). Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk. ICC Code, Article 17 (…)
  • Children and young people should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or behaviour. (…) ICC Code, Article 18, Avoidance of harm
  • The following rules must be respected in all commercial communications, in addition to law and regulation applicable to dangerous objects, products or behaviours.

 

 

1. General principles

 

  • Principles: Commercial communications must not show dangerous or potentially dangerous behaviours or situations and must not encourage engagement in such behaviours and/or situations:

 

  • Whether or not they are associated with the use of a product or an object
  • Whether or not the object or product is dangerous

 

  • The different cases must be assessed regarding the context of the advertisement, the persons presented, the graphic design used, the artistic world reproduced and the public targeted

 

  • Specific context: Certain dangerous behaviours can nevertheless be accepted, for example:

 

  • The presentation of a professional athlete or a sportsman, practicing his sport or his discipline, and identified as such in the advertisement
  • The presentation of figurines or imaginary characters
  • The presentation of an unrealistic or clearly absurd context, making the behaviour impossible to replicate in real life
  • The total or partial reproduction of a work, in the context of its promotion or exploitation (movies, series, documentary, reports, etc.)
 

 

2. Particular cases

 

  • Children. Particular attention must be given to scenes portraying children or advertisements targeting children.  The presence of a supervising adult can reduce the potentially dangerous nature of a presented situation
  • Promotion of safety or health. If one of the assertive goals of the advertisement is to promote safety or health, it can be legitimate to show a dangerous situation or behaviour in order to condemn it. The denunciation of a dangerous behaviour or situation must be unambiguous, in order not to lead to the opposite result

 

 

4. ICC RULES FOR MARCOMS TO CHILDREN

 

ICC Code, Article 18

 

 

18.1 General principles

 

 

Special care should be taken in marketing communications directed to or featuring children or teens:

 

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

 

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

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

 

 

 

18.2 Inexperience and credulity of children

 

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

 

1. When demonstrating a product’s performance and use, marketing communications should not

 

a. Minimise the degree of skill or understate the age level generally required for a child to assemble or operate products

b. Exaggerate the true size, value, nature, durability and performance of the product c. fail to disclose data about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described

 

2. While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy

3. Marketing communications directed to children should be clearly distinguishable to them as such

 

 

18.3 Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically
  • Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic.

 

 

18.4 Social values

 

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

 

For other specific rules on marketing communications with regard to children: for personal data, see Article 19.4 and in digital interactive media see Chapter C, Article C7. These articles are set out in our Section C Channel / Targeting)

 

 

 

5. VIDEO GAMES

 

 

 

From the PEGI Code of Conduct

 

Article 11: Advertising and promotion

 

  • 11.1 Advertising materials shall follow the PEGI Labeling and Advertising Guidelines and in particular show the age rating granted to the Product concerned or, should the license be pending, show the final age rating expected, taking the higher age category as a reference in case of doubt
  • 11.2 The design of print, broadcast and on-line advertising of Products shall comply with laws and regulations applicable to the age category concerned
  • 11.3 More generally, the following principles shall apply:
     
  1. All advertisements shall accurately reflect, to the best extent possible both the nature and content of the Product publicized and the rating associated with that Product. Advertisements should not mislead consumers as to the Product’s true character
  2. Advertisements shall not in any way exploit a PEGI System rating of a Product as such rating is intended as a recommendation only
  3. All advertisements shall be created with a sense of responsibility towards the public
  4. All advertisements shall aim to avoid content that is likely to cause serious or widespread offence to the average consumer targeted
  5. Signatories shall not specifically target advertising for Products rated 16 or 18 to consumers for whom the product is not rated as appropriate
  6. Signatories shall ensure that ancillary or separate products that are being sold or promoted in association with a core Product contain content that is appropriate for the audience for which the core Product is intended
  7. Signatories shall not enter into promotion of Products rated 16 or 18 with another company’s brands, products, or events, if it is reasonable to believe that such company’s products, brands or events will reach consumers for whom the Product is not rated as appropriate
  8. Signatories shall inform the public by means of a general statement of the existence of sponsorship(s) and/ or the existence of ‘product placement(s) associated with any Product. In this regard use of a trademark or brand solely to provide authenticity to the Product environment shall not be held to constitute either product placement or sponsorship provided that license holders do not receive payment in exchange for such use
     
  • 11.4 The PEGI System shall be open to magazine Signatories for the age rating of compact discs and / or DVDs attached to such magazines (cover discs) when they contain excerpts from interactive software products and/ or audiovisual material related to such products provided that those products are published by other Signatories

 

 

 

 

6.1 Statutory rules applicable to all marcoms (including children’s):

  • Advertising must not be false or misleading regarding the existence, availability, nature, composition, substantial qualities, content in useful principles, species, origin, quantity, method and date of manufacture, properties, price and terms of sale of goods or services which are the subject of advertising, conditions of their use, and results which may be expected from their use (from Art. L. 121-2 of the French Consumer Code (EN key clauses), implementing Directive 2005/29/EC concerning unfair commercial practices). There are other stipulations within this clause not covered here.

 

TV and radio/ AV; specific to minors

 

  • Advertising must not cause moral or physical detriment to minors. To this end, it must not:
     
  1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity
  2. Directly encourage minors to persuade their parents or others to purchase the goods or services*
  3. Exploit or alter the special trust minors place in parents, teachers or other persons
  4. Without justification show minors in dangerous situations

(Art. 7 Decree 92-280 - EN)

* This rule is mirrored in the Consumer Code article L121-7 (5), (FR) and therefore applies to all media

 

  • The French language must be used in all advertising, whether oral, written or audiovisual (Article 2 Law 4th August 1994 “Toubon”). Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product

 

 

6.2 Self-Regulatory rules applicable to all marcoms 

 

 

  • As referenced earlier, the general advertising rules that apply to all sectors are from the ICC Advertising and Marketing Communications Code. The applicable Code in this context is the French version. Here is the English version 
  • The structure is: 

 

General principles, and

 

Chapter A. Sales promotion

Chapter B.  Sponsorship

Chapter C. Direct Marketing and Digital Marketing Communications

Chapter D. Environmental Claims in Marketing Communications

 

 

Channel rules from the above are set out in full in the following Section C 

 

 

 

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

General

SECTION B CONTENT RULES

 

 Notes

 

  • All advertising, in all media, must be in French (Loi Toubon). Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product
  • The core of the marcoms content rules in France is the ICC Code (EN). Around this, the regulator ARPP have created a number of specific proprietary codes on subjects of particular national import. As the ICC code also covers those issues more generally, we show both sets of rules as both apply. This makes for a rather lengthy and complex presentation, for which apologies
  • Per above, France has a lot of rules, so this section is longer than most. To help navigate it, some text is  'anchored' and linked to respective headings immediately below

 

 

1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES

 

1.1. The ICC Code: key extracts 

1.2. Portrayal of people

1.3. Identification of advertising

1.4. Native

1.5. Sustainability

1.5.1. Environmental claims - the ICC rules

1.6. Safety

1.7. Pricing: ARPP Code

1.7.1. ICC Code – Pricing rules

1.8. Notes and overlays/ titles

1.9. Online channel/ Digital (see also Channel rules)

 

2. LEGISLATION IN FRENCH ADVERTISING

 

2.1. Invitation to purchase

2.2. Comparative advertising

2.3. Pricing regulations

2.4. Carbon claims 

2.5. General content rules in broadcast

2.6. Model shots

 

 

1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES

 

1.1. The ICC Advertising and Marketing Communications Code 

 

Some key extracts from the ICC Code in English have been set out below; évidemment the French version applies should advertising be the subject of ARPP review

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

Social responsibility (Art. 2)

 

  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition

 

Decency (Art. 3)

 

  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned

 

Honesty (Art. 4)

 

  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:

 

  • Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
  • The value of the product and the total price to be paid by the consumer
  • Terms for delivery, exchange, return, repair and maintenance
  • Terms of guarantee
  • Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
  • Compliance with standards
  • Official recognition or approval, awards such as medals, prizes and diplomas
  • The extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Such substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code
 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
 

Identity of the marketer  (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty
  • The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called ‘teaser’ advertisements)

 

Comparisons (Art. 11)

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected
 
  • Other main articles from the General Provisions of the Code are: 9. Use of Technical/ scientific data and terminology; 10. Use of free and guarantee; 12. Denigration; 13. Testimonials; 14.Portrayal of people and property; 15. Exploitation of goodwill; 16. Imitation; 17. Safety and health; 18. Children and young people; 19. Data protection and privacy; 20. Transparency on cost of communication; 21. Unsolicited products and undisclosed costs; 22. Environmental behaviour
  • Chapters from the Code are Sales Promotion, Sponsorship, Direct Marketing and Digital Marketing Communications, Environmental Claims in Marketing Communication
  • Where the rules are channel-related, they are shown in our following Channel Section C
 

 

 

The full code is here in English:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

And here in French:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/

 

Advertising must respect, no matter its form, the following principles:

1. Dignity and decency

 

  • Advertising must not be offensive, harmful, provocative or shocking by displaying images of human beings that offend their dignity or decency (Art. 1.1)
  • When nudity is used in an advertisement, it must not be degrading or alienating and must not reduce human to object (Art.1.2)
  • Any degrading or humiliating representation of human beings, in an explicit or implicit way, is prohibited, notably by the use of words, attitudes, postures, gestures, sounds, etc., that are detrimental to human dignity (Art. 1.3)

2. Stereotypes

 

  • Advertising must not reduce human beings, and especially women, to the role of an object (Art. 2.1)

  • Advertising must not condone the idea of inferiority of a person because of their gender, origin, belonging to a social group, sexual orientation or sexual identity, or any other criteria, notably by reducing the person’s role or responsibilities in society (Art. 2.1)
  • Advertising must not encourage, even indirectly, exclusion, or sexist, or intolerant feelings or behaviours (Art 2.3)

 

3. Ethnic or religious references 

 

  • Advertising must pay particular attention to avoid making any reference, even indirectly, to racism or sectarianism (Art. 3.1)
  • Any allusion, even humouristic, to a pejorative aspect or inferiority because of the belonging to an ethnic group or a religion is prohibited (Art.3.2)
  • Expression of stereotypes concerning ethnic groups, religious groups, etc., must be done with a high level of precaution (Art. 3.3)
  • Concerning actual religious references, rituals and Holy Scriptures should not be used in a way to ridicule or shock believers (Art. 3.4)

 

4. Submission, dependence, violence 

 

  • Advertising must not induce ideas of submission or dependence depreciating human beings, and especially women (Art. 4.1)
  • Any complacent presentation of domination and/ or exploitation of one person by another is forbidden (Art. 4.2)
  • Advertising must avoid all scenes of violence, direct or suggested, and must not encourage moral or physical violence. The notion of violence covers, at least, all illegal acts punishable by law (Art. 4.3)
  • Direct violence is the presentation of violent acts themselves. Suggested violence is conveyed by an atmosphere, a situation or a result of a violent act. Moral violence notably includes behaviours of domination and harassment (moral or sexual) (Art. 4.4)
  • Advertising must not, under any circumstances, trivialise violence through its messages, statements and presentations (Art. 4.5)
 

5. Image and other human characteristics

 

  •  “Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained” Article 14-1, ICC Code (Art.5.1)
  • It is forbidden to present a person in an advertisement by using either a voice double or image double without prior authorisation of the person or his beneciariesti (sic.) 5.2

 

1.3. Identification of advertising

 

The full ARPP code is here in English:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-of-advertising-and-marketing-communications-identification-of-the-advertiser-code/  

And here in French:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-de-la-publicite-et-des-communications-commerciales/

 

Note: the French version of this Code has not been updated to reflect the changes introduced by the 2018 ICC Advertising and Marketing Communications Code. The clauses below are in line with the new Code 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty
  • The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called ‘teaser’ advertisements)

 

 

Specific provisions of the ICC Advertising and Marketing Communications Code. From Chapter C, Direct Marketing and Digital Marketing Communications:

 

Article C1: Identification and transparency 

 

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

 

Article C2:  Identity of the marketer 

 

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

 

Advertising, no matter the form, must comply with the rules contained in the ICC Advertising and Marketing Communications Code, as well as the following rules:

 

1. Principles 

 

  • In order to ensure good information of the consumers, marketing communications and advertising should be clearly distinguishable as such, whatever their form
  • That identification can be achieved by any means whereby the consumer can clearly and immediately understand that the message is an advert
  • The identity of any advertiser addressing advertising or marketing communication must be apparent

 

2. Digital advertising or marketing communication 

 

  • Concerning digital media, techniques and forms, the identification of marketing communications and advertising and the identification of the advertiser must comply with the provisions of the Digital Advertising and Marketing Communications Code (see below)

 

3. Press

 

  • In the case of a paid for editorial ad or any other advertisement that has the appearance of an editorial ad, the advertiser, the advertising agency and the press media must display the words PUBLICITÉ, COMMUNIQUÉ or any other synonym, in a clear and legible way, and (sic.) the beginning of the advertisement

 

 

1.4. Native

 

The ICC guidance is in French here:

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

And in English here:

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

 

From the document: As online advertising has expanded, ad formats that allow the user to experience ads (organically as part of the content) have evolved. This type of paid-for content marketing is known as “native advertising.” While native advertising is not new, it is rapidly growing as web properties seek new ways to monetize and enhance the user experience. While the mere appearance of a brand or product does not necessarily mean that the content is advertising, there are some principles that are vital to ensure transparency and consumer trust, each of which is addressed in the ICC Advertising and Marketing Communications Code (the ICC Code)

 

 

1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 7, B1, and C1 as follows:

 

  • Article 7: Identification and Transparency: Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and the identity of the advertiser should be apparent (see also article 8). Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such.
  • The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
  • Article B1 (in part): Sponsorship should be recognisable as such
  • Article C1 (in part): Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer

 

 

 2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 8 and B12, as follows:

 

  • Article 8 (in part): The identity of the marketer should be transparent
  • Article B12: Media Sponsorship (in part): Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material.

 

 

3. Disclosures should be prominent and understandable to consumers. This principle is covered in Article 4 as follows:

 

  • Article 4 Honesty: Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge. Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account

 

 

1.5. Sustainability

 

See also the 2021 legislation under point 2 below 

 

The full code is here:

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR)

 

  • The Code was amended in April 2020, in force August. More recently, a video presentation of the Code was published (in French, with English sub-titles). The changes, shown here (EN), are primarily to Article 1 (formerly 9) and not hugely significant, though all new clauses should be read with care. In particular, there’s a  ‘tweak’ to the clause related to Cars in the environment. See article 1.1 (e) below  
  • Extracted below are the key clauses of the 2020 Code. For scope, definitions etc. refer back to the Code linked above

 

 

  • Note: without further specifications, the rules below pertain to the overall issue of sustainable development. When the rules apply only to the environmental component of sustainable development, it is specified as such
  • In addition to specific French and Community legislation, these advertisements need, no matter what form they take, to comply with the International Chamber of Commerce Advertising and Marketing Communications Code  (Article 22 of the Consolidated ICC Code Article Marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards of environmentally responsible behaviour and the principles enshrined in Chapter D ‘Environmental Claims in Marketing Communications’ of the same Code) and with the following ethical rules:

 

1. Eco-citizen impacts 

 
  • Advertising must take place in a context of social responsibility by taking into account, in particular, the sensitivity of the social community at a given time and the context in which the advertising is disseminated
  • Without referring to the concept of sustainable development or any of its components, an advertisement must avoid conveying a message contrary to the commonly accepted principles of sustainable development. In this spirit:
 
  • 1.1 Advertising must prohibit any representation likely to trivialize or promote practices or ideas contrary to the objectives of sustainable development. By way of example:
 
  1. Advertising must ban any evocation or representation of behaviour contrary to the protection of the environment and the preservation of natural resources (waste or degradation of natural resources, damage to biodiversity, air, water or soil pollution, climate change, etc.), except in the case of denunciation
  2. Advertising may not directly or indirectly incite excessive consumption patterns or patterns contrary to the principles of the circular economy. In this respect, it must not encourage waste through the scrapping of a product or its degradation while it is still working and/or remains consumable, without taking into account – where possible – its durability, reuse, second life or recycling
  3. Advertising must avoid, in its discourse, minimizing the consequences of the consumption of products that may affect the environment
  4. Advertising must prohibit any representation or evocation of behaviour contrary to the recycling of products or their specific method of treatment
  5. The representation of a motor vehicle on a natural area is prohibited. On the other hand, its representation on a public or private road or area open to traffic, recognizable as such and clearly distinguished from the natural area is permitted (amended from the clause in the previous code, which read: The representation, in any form whatsoever, of motor vehicles in a natural environment should clearly position them on roads open to traffic)
  6. advertising must not appear to endorse working conditions which are contrary to social and human rights. For this reason, advertisements which appear to condone child labour, any form of discrimination, moral harassment, insufficient health and safety conditions are excluded
  7. Advertising must prohibit all statements or visual representations likely to generate irrational or unfounded fears
 
  • 1.2 Advertising must not discredit the principles and objectives, as well as advice or solutions, commonly accepted with regard to sustainable development. Advertising shall not detract from the purpose of environmental protection messages or measures taken in this area

 

2. Truthfulness of actions 

 

  • 2.1 Advertisements must not mislead the public about the actual actions of the advertiser or the properties of its products in terms of sustainable development 
  • 2.2 The actions of advertisers and the properties of their products in this area should be significant before a claim can be made 
  • 2.3 The advertiser must be able to support its sustainable development claims by means of evidence that is reliable, objective and verifiable at the time of advertising. For any message based on a scientific claim, the advertiser must be able to present the origin of the findings and methodology used for the calculation. Advertisements may not resort to demonstrations or scientific conclusions that do not conform to generally approved scientific findings 
  • 2.4 Advertisements cannot make a general sustainable development claim if the commitment of the advertiser does not cumulatively include the three pillars of sustainable development (see below) 

 

The three pillars

 

For businesses, sustainable development means in this sense to balance the following three pillars:

  • Environmental: impact of activities on the environment
  • Social/ societal: working conditions of employees, information policies, training, remuneration, subcontracting, existence and quality of relations with civil society, public health, etc.
  • Economic: relations with customers, suppliers, shareholders, etc.
 

3. Proportionality of messages 

 

  • 3.1 The advertisement must accurately express the action of the advertiser or the properties of its products, in accordance with the available and communicable evidence (*the term ‘and communicable’ is an amend/ addition to this article).The reality of these actions or properties may be assessed in the light of the different pillars of sustainable development, the different types of impacts and the various stages of a product's life-cycle 
  • 3.2 The advertising message must be commensurate with the scale of the advertiser’s action(s) in terms of sustainable development and the properties of the product(s) he is promoting 
  • 3.3 In particular:

 

a. The advertisement should not be presented in such a way as to imply that it relates to more pillars of sustainable development, more stages of a product's life-cycle or more impacts than can be justified by the evidence;

b. The message should not unduly suggest a total lack of negative impact;

c. The presentation of action(s), product(s) at an experimental or project stage (prototype, R & D, investment ...) must be clearly presented as such and their scope should not be exaggerated 

 

4. Clarity/ qualifications of messages 

 

  • 4.1 The advertiser should add clear background information in the advertisement about the qualities the advertised activities or products claim to have 
  • 4.2 If the argumentation is only valid in a particular context, it should be presented clearly as such 
  • 4.3 When an explanation is necessary, it must be clear, legible or audible, and thus meeting the requirements of the Terms and References Code of the ARPP 
  • 4.4 In cases where this explanation is too long to be included in the advertisement, essential information must be included, together with a reference to some means of communication allowing the general public to obtain further information 
  • 4.5 Any messaging within an advertisement based on a scientific study must indicate the source 
  • 4.6 Any argumentation about a decrease of a negative impact or an increase of efficiency must be precise and accompanied by detailed figures, indicating the basis for the comparison 
 

5. Loyalty

 

  • 5.1 The advertising must not attribute exclusive virtues in terms of sustainable development to a product or an advertiser when competitor products or competitors have similar properties 
  • 5.2 An advertiser cannot claim that certain actions are exclusive to it if they are imposed on all by existing regulation. This does not rule out the possibility for an advertisement, for pedagogical purposes, to inform about the existence of regulation in order to promote its implementation 
  • 5.3 An advertisement should not unduly create a link between general corporate actions of an advertiser concerning sustainable development and the properties of a product 
  • 5.4 Concerning ecological claims:

 

a. An environmental claim should not emphasise the absence of a component, ingredient, characteristic, or impact (typified by formulations such as "without ...“, or "no …", or "…-free") that never affected the family of products or activities presented by the advertisement;

b. A claim that a product does not contain an ingredient or a specific component (typified by formulations such as "without …“, or "no …", or "…-free") should be used only in line with the rules of the competent authorities that define the maximum thresholds, or, failing that, under the conditions laid down in ISO 14021

c. A reduction of a negative impact should not be presented as a direct “recovery” of natural ecosystems

 

6. Signs, labels, logos, symbols, self-statements 

 

  • 6.1 Signs or symbols may be used only if their origin is clearly indicated and if there is no likelihood of confusion about their meaning. Further explanations regarding the meaning of these symbols should be made according to the conditions set by article 3.4 of this text (Art. 6.1)
  • 6.2 These signs should not be used in ways that suggest unfounded official approval or certification by a third party (Art. 6.2)
  • 6.3 The advertisement must not attribute a higher value to any signs, logos or symbols used in the ad than they actually have (Art. 6.3)
  • 6.4 The use of logos of associations, foundations or any other body should not create a misleading link between the partnership with these bodies and the properties of the product(s) or the action(s) presented (Art. 6.4)

 

7. Vocabulary

 

  • 7.1 The terms and expressions used must not mislead the public about the nature and scope of the product's properties or the advertiser’s actions in terms of sustainable development 
  • 7.2 When the terms and expressions used are already defined by a standard, they must be employed in a way that fits this definition 
  • 7.3 Where it would be impossible to justify general formulations (e.g., ecological, green, ethical, accountable, to preserve, fair, sustainable, etc.), advertising must make these claims relative by using formulations such as "helps to…" 
  • 7.4 Words, phrases or prefixes used must not unduly reflect a lack of negative impact of the product or activity of the advertiser 
  • 7.5 Technical vocabulary, scientific or legal, may be used if it is appropriate and used in a way that can be readily understood by those to whom the message is directed 

 

8. Visual or audible elements in an ad

 

  • 8.1 The visual or sound elements in an ad should be used in a manner proportionate to the ecological argumentation of the ad and the evidence that supports it.
  • 8.2 They should not be used in a way that suggests a guarantee of safety if this cannot be justified.
  • 8.3 Without excluding their use, the use of natural elements or evoking nature must not mislead the consumer about the environmental properties of the product or the actions of the advertiser.
  • 8.4 When an advertisement uses an environmental claim, it cannot assimilate directly a product that has a negative environmental impact to a natural element (e.g. a car like an animal, a plane covered in plants, etc.)

 

9. Complex systems 

 

Some recognised systems may be based on highly technical argumentations or complex schemes, whose benefits in terms of sustainable development are indirect (e.g., systems known as “green electricity”, “carbon offset”, “socially responsible investments”, etc.). When an advertisement refers to these types of systems:

 

  • 9.1 It should take care not to mislead the public about the true scope of the mechanism 
  • 9.2 If it uses simplified language for educational purposes it must provide the public with the necessary explanations, as per the conditions defined in article 3-4 of this Code 
  • 9.3 The advantage of using systems to indirectly compensate the negative impact of a product or an activity should not be referred to in the ad as being a direct quality of the product or activity

 

 

1.5.1. Environmental claims - the ICC rules

 

  • The ICC Code applies to all marketing communications containing environmental claims, i.e. any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/ consumption or disposal of products. Environmental claims can be made in any medium, including packaging, labelling, package inserts, promotional and point of sales materials, product literature, radio and television, as well as via digital or electronic media such as e-mail, telephone and the Internet (see scope of Chapter D)
  • The term ‘environmental aspect’ means an element of an organisation’s activities or products that can interact with the environment (Chapter D ICC Code, ICC Framework)
  • Chapter D Environmental Claims in Marketing Communications should be read together with the ICC code main provisions. These rules apply to all marcoms containing environmental claims Definition Any statement, symbol or graphic that indicates an environmental aspect of a product, a component or packaging regardless of the medium

 

Additional ICC guidance

 

 

 

1.6. Safety

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/safety-code-dangerous-behaviours-and-situations/

 

Context

 

Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards…. Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk. ICC Code, Article 17

(…)  Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic. ICC Code, Article 18.3 Avoidance of harm

 

The following rules must be respected in all commercial communications, in addition to law and regulation applicable to dangerous objects, products or behaviours:

 

1. General principles 

 

Commercial communications must not show dangerous or potentially dangerous behaviours or situations and must not encourage engagement in such behaviours and/ or situations:

 

  • Whether or not they are associated with the use of a product or an object
  • Whether or not the object or product is dangerous

 

The different cases must be assessed regarding the context of the advertisement, the persons presented, the graphic design used, the artistic world reproduced and the public targeted

 

Specific context

 

Certain dangerous behaviours can nevertheless be accepted, for example:

 

  • The presentation of a professional athlete or a sportsman, practicing his sport or his discipline, and identified as such in the advertisement
  • The presentation of figurines or imaginary characters;
  • The presentation of an unrealistic or clearly absurd context, making the behaviour impossible to replicate in real life;
  • The total or partial reproduction of a work, in the context of its promotion or exploitation (movies, series, documentary, reports, etc.)

 

2. Particular cases: children

 

Particular attention must be given to scenes portraying children or advertisements targeting children. The presence of a supervising adult can reduce the potentially dangerous nature of a presented situation.

Promotion of safety or health: If one of the assertive goals of the advertisement is to promote safety or health, it can be legitimate to show a dangerous situation or behaviour in order to condemn it. The denunciation of a dangerous behaviour or situation must be unambiguous, in order not to lead to the opposite result

 

 

1.7. Pricing

 

The ARPP Code is in French here:

ARPP Price Advertising Recommendations (FR)

An ARPP English translation is linked below; key clauses below the link and in individual channels in the following Section C

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/

 

  • The price must be legible in normal reading conditions. Characters used must be:

 

  • Of a sufficient size
  • Normally spaced apart
  • In a font allowing an easy reading (without it being necessarily consistent throughout the advertising)
  • In a colour that contrasts with the background colour of the advertising, for instance, avoiding a light colour against a light background

 

  • When a sign accompanies the price and is used to make a reference to a related remark, the size of this sign next to the price must be large enough to be always legible under normal reading conditions (1.1)
  • The intelligibility of the price implies to use of a wording allowing the consumer to understand it without difficulty and in a non-erroneous way (1.2)
  • Thus, the presentation of the price (s) must allow the consumer: to link the price (s) presented with the product or service he / she will benefit for this amount of money, and to know whether there are conditions or restrictions (1.2)
  • When several prizes (prices) appear in the same advertisement, it is always possible to highlight one of these prices. In order to do so, the different prices may be presented with different font sizes, provided that they comply with the aforementioned principles of legibility, intelligibility, clarity and transparency (3.1)
  • The presentation of several prizes in an advertisement should not lead to any ambiguity for the consumer as to the relationship between the prices and the products or services to which they correspond (3.1)
  • The ‘TTC’ price (i.e. including taxes) must be included in advertisements targeted to consumers. When the price excluding tax is also indicated, the ‘TTC’ price shall not be less readable than the ‘HT’ (excluding taxes) price - in terms of font size, contrast, duration of exposure on the screen or positioning in the advertising (3.2)
  • In the case of an advertisement indicating a price  ‘starting from’, the price of the product or products represented must be perfectly legible and easily identifiable by the use by any appropriate means (character size, character colour, location, use of bold type, underlining etc. (3.6)

 

1.7.1. ICC Code - Pricing rules

 

The linked document below extracts key clauses related to Pricing from the ICC Advertising and Marketing Communications Code, on which the ARPP Code above is based:

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

 

 

1.8. Notes and overlays/ titles

 

The full code is in English here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/

And in French here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/

 

  • We have not extracted the Code here as it’s quite extended and fragmented
  • Section II shows specific rules concerning notes linked to a price; see links above  
  • Where rules are channel-specific we have included them in the relevant channel under Section C

 

1.9. Online Channel/ Digital

 

The ARPP’S 2021/22 Digital Advertising and Marketing Communications Code is in French here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/

And in English here:

http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf

 

The code was announced in December 2021 and is in force January 1, 2022; key changes are shown in the press release here in English. The Code covers inter alia Identification, Protection of children and teenagers, Compliance with good societal practice, User-generated content and 'Comfort of use.' It includes a list of applications which provides guidelines by channel/ techniques such as Promotional blogs/ Influencers, Native advertising, Behavioural advertising and retargeting, In-game advertising and Apps. As the Code largely relates to Channel issues, it is spelt out in the relevant sections in that Section (C) below

 

1.9.1. ICC Code Digital interactive media

 

https://www.g-regs.com/downloads/ICCChapC2018DMC.pdf

The above linked document provides Chapter C Direct Marketing and Digital Marketing Communications of the 2018 ICC Advertising and Marketing Communications Code, on whose principles the ARPP code above is based

 

2. LEGISLATION IN FRENCH ADVERTISING

 

The Consumer Code (CC; FR)

Key clauses in English:

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

 

The Consumer Code (CC), English translation of key clauses linked above, is the core legislation in business-to-consumer commercial communications, and the home of transposition of the Unfair Commercial Practices Directive 2005/29/EC. While many of the CC’s communication requirements will be reflected in Self-Regulation, it’s as well to be aware of the legal context. There are three relevant components below, but meanwhile the 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) incorporated specific reference to environmental impact under article L121-2 of the CC. Clauses in English from the linked document above

 

2.1. Invitation to purchase

 

If your ad or ‘commercial communication’ constitutes an ‘invitation to purchase’ - defined as “indicating 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” - article L121-3 of the Consumer Code requires that the following must be included:

 

  1. The main characteristics of the good or service
  2. The address and the identity of the trader
  3. The price, including tax and delivery costs that will be charged to the consumer, or, if this cannot be calculated in advance, the method of calculation used
  4. The arrangements for payment, delivery, performance and handling of consumer complaints, when they differ from those established in the professional sector concerned
  5. The existence of a right of withdrawal, should this be provided for by law

 

Guidance from the EC here (December 2021)

 

 

2.2 Comparative advertising

 

Article L122-1

 

Any advertising that makes a comparison between goods or services by identifying, implicitly or explicitly, a competitor or goods and services offered by a competitor is only legal if:

 

1. It is not false or likely to mislead

2.  It relates to goods or services fulfilling the same requirements or having the same objective

3. It objectively compares one or more essential, pertinent, verifiable and representative characteristics of these goods or services, one of which may be the price

 

Article L122-2 Comparative advertising may not:

 

1. Take unfair advantage of the reputation attached to a trademark, manufacturer’s brand or service mark, to a trade name or to other distinctive marks of a competitor or to the designation of origin as well as the protected geographical reference of a competing product

2. Lead to the discrediting or denigration of marks, trade names, other distinctive signs, goods, services, activity or situation of a competitor

3. Cause confusion between the advertiser and a competitor or between the advertiser’s marks, trade names, other distinctive signs, goods or services and those of a competitor

4. Present goods or services as an imitation or reproduction of goods or services with a protected mark or trade name

 

 

  • For products with a protected designation of origin or geographical reference, comparison is only authorised between products with the same reference or designation of origin (Art. L122-3)
  • The display of comparative statements as defined in articles L.122-1 and L.122-2 on packages, invoices, travel tickets, means of payment or tickets giving access to shows or sites open to the public is prohibited (Art. L122-4)
  • The advertiser on whose behalf the comparative advertising is being circulated must be in a position to prove, within a short time, the factual accuracy of the statements, references and presentations contained in the advertising (Art. L122-5)

  • The publication in the press of advertising as defined in articles L. 122-1 and L 122-2 does not give rise to the application of article 13 of the law of 29 July 1881 in the freedom of the press and article 6 of law no. 82-652 du 29 July 1982 on audiovisual communication (Art. L122-6)

 

2.3. Pricing regulations

 

Pricing regulation is from a number of sources in law; below are the most relevant:

 

  • The Consumer Code (FR/ EN) articles L112-1 to L112-4 and articles L121-2 and L121-3, the latter in the context of an invitation to purchase and transposing UCPD 2005/29/EC requirements in that respect; see 2.1 above. Article L121-4 points 5 to 7 carries promotional pricing rules (see also point below)
  • Article L112-1-1 effective May 28, 2022 carries the promotional pricing rules transposed from the Directive 2019/2161 which in turn amended the Product Pricing Directive 98/6/EC. The Directive's article is here; Commission guidance on the application of the article here
  • Decree of 16 November 1999 (FR) on advertising to the consumer of the selling price per unit of measurement of certain pre-packed products. This Decree transposes the Product Pricing Directive 98/6/EC. While this legislation seems most suited to ‘goods on shelves’ as it requires unit prices (the selling price, including VAT and all other taxes, for one kilogramme, one litre, one metre etc.), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. We can't trace in the French legislation an important definition for 'selling price'. That term is defined in the Directive as 'the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes.' The issue here is the inclusion of 'the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned.' (from the Judgement linked, pt. 37). 
  • The DGCCRF (the competition/ markets authority) published in December 2018 Information on Prices (L’information sur les prix) which brings together a number of sources of rules

 

See also pricing from Self-Regulatory measures shown in full under point 1 above

ARPP Price Advertising Recommendations (FR)

 

An English translation is linked below; key clauses above under Pt. 1.7 and in individual channels

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

 

 

2.4. Carbon claims 

 

 

The Climate and Resilience Law (FR) introduced via Decree 2022-539 of April 13, 2022 on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code. The clauses concerned are in English here. These require substantial evidence to be made available in the event of a 'carbon neutral' or equivalent statement being made

 

 

2.5. General content rules in broadcast

 

From the consolidated version of Decree 92-280 of 27 March 1992 (EN) transposing Directive 2010/13/EU (the AVMS Directive, AVMSD)

 

Directive 2018/1808 amended the AVMSD to extend scope into e.g. video-sharing platforms. Provisions are applied in Law 86-1067 of September 30 1986 (the Léotard law) in French here. The commercial communications content elements of the Directive’s changes, which are not significant, are shown here (EN). What is significant, however, is the pressure placed on Self-Regulatory systems with the addition of article 4a (shown in the linked file), which appears to require a more aggressive stance in HFSS and alcohol marcoms regulation in particular

 

  • Advertising must comply with the requirements of truthfulness, decency and respect for the dignity of the human person. Advertising may not undermine the good name of the state (Art. 3)
  • Advertising must be free from discrimination concerning race, gender, nationality, disability, age or sexual orientation; of any violent scenes and any incitement to behaviour prejudicial to health or safety of people and property, or protection of the environment (Art. 4)
  • Advertisements should not contain any element likely to offend viewers’ religious, philosophical or political beliefs (Art. 5)
  • Advertising in any form whatsoever should be designed to respect the interests of the consumer. All publicity comprising false or misleading claims, statements or presentations is prohibited (Art. 6)
  • Advertising must not cause moral or physical detriment to minors. To this end, it must not:

 

1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity

2. Directly encourage minors to persuade their parents or others to purchase the goods or services

3. Exploit or alter the special trust minors place in parents, teachers or other persons

4. Without justification show minors in dangerous situations (Art. 7)

 

  • There are some sector prohibitions in Broadcast shown here

 

2.6. Model shots

 

Public Health Code article L2133-2 on retouched model shots: these must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

Social responsibility (Art. 2)

 
  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition
 

Decency​ (Art. 3)

 
  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned
 

Honesty (Art. 4)

 
  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account
 

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
     
    • characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
    • the value of the product and the total price to be paid by the consumer
    • terms for delivery, exchange, return, repair and maintenance
    • terms of guarantee
    • copyright and industrial property rights such as patents, trade marks, designs and models and trade names
    • compliance with standards
    • official recognition or approval, awards such as medals, prizes and diplomas
    • the extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)
 

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

  • Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards
  • Instructions for use should include appropriate safety warnings and, where necessary, disclaimers
  • Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk
  • Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary
  • Such health and safety warnings should be made clear by the use of pictures, text or a combination of both

 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (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

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic

 

 

18.4. Social values

 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

 

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

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

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

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

1.TELEVISION (Including VOD)

 

CONTEXT

 

The following are the Channel rules that apply in this medium to this audience (Children). Also applicable are the General channel rules that apply to all audiences, Children included, a selection of which we show below, and all of which are shown under the General tab beneath this 'Sector' tab. In terms of Content rules, all those set out in Content Section B - both the ‘Sector’ rules and the ‘General’ rules - apply in this channel 

 

 

Advertising must not cause moral or physical detriment to minors. To this end, it must not:

 

  1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity
  2. Directly encourage minors to persuade their parents or others to purchase the goods or services
  3. Exploit or alter the special trust minors place in parents, teachers or other persons
  4. Without justification show minors in dangerous situations

(Decree 92-280, art.7)

 

Television advertising and tele-shopping (all sectors)

 

  • TV commercials are subject to mandatory pre-clearance by the ARPP (http://www.arpp-pub.org/Avis-TV-avant-diffusion.html)
  • Law No. 2016-1771 of December 20, 2016 (FR) introduced an amend to the Léotard Law which prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12  and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV
  • For advertising which includes price, either shown superimposed or in a moving banner, the duration of its visibility or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP recommendation on price advertising 2/2. 2.1)
  • Child-sensitive sectors such as Alcohol and Gambling obviously must avoid appearing in programmes intended for Children (Alcohol advertising is anyway prohibited on television; Gambling marcoms prohibited within the meaning of the Act No 49-956 of 16 July 1949)

 

 

Product placement

 

  • Allowed in cinematographic works (feature films), audiovisual fictions (TV films and series) and music videos, except when those are made for children
  • Must not be unduly prominent nor directly encourage purchase or rental of goods or services
  • Viewers must be informed about product placement via the use of a pictogram one minute at the beginning of the program and after each advertising break, and for the entire duration of the end credits. For musical clips, the pictogram should appear for the duration of the clip (DeliberationCSA)

 

 

Sponsorship (Decree 92-280)

 

  • News and current affairs programmes may not be sponsored
  • Only a programme may be sponsored, not a separate section, with the exception of weather reports inside a TV program (but not for news and current affairs programmes)
  • The sponsor must be clearly identified at the beginning and at the end of the program. During the programme, the sponsor can be mentioned, provided it is in a temporary and unobtrusive way
  • See the General sector below for full rules on Sponsorship; amends were made to the law in 2017
  • For game or contest shows, products of the sponsor may be given as prizes. They cannot in so doing incorporate advertising messages

 

 

2. RADIO

 

Product placement

 

N/A

 

 

Sponsorship

 

Permitted in private radio channels, provided that the entity maintains control of programming. Sponsored programmes may not encourage the purchase of the sponsor's products

 

 

 

 

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General

SECTION C - TV/AV INC VOD & RADIO

 

 

KEY RULES AND SOURCES

 

  • For content of commercial communications, the General Advertising Rules from ARPP (EN) apply to all product sectors and media, together with any sector-specific rules 
  • The key legislation in this context is Decree 92-280; the link is to a translation of the articles which cover broad requirements for e.g. ‘respect for the dignity of the human person’, discrimination, violence, religion, health and safety, environment etc. transposed from the AVMS Directive 2010/13/EU. See also point 2.4 of our earlier Content Section B
  • Law No. 2016-1771 of December 20, 2016 (FR) introduced an amend to the Léotard Law (FR), which prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12 and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV
  • The same Léotard law was amended by Ordinance 2020-1642 to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive into e.g. video-sharing channels. The product placement/ sponsorship rules in broadcast are unaffected; the 2018 Directive includes some minor changes in commercial communications' content requirements, shown here
  • Decree 2020-983 (FR) addresses the audiovisual advertising framework and its relationship with online competition by allowing ‘conventional’ broadcast advertising, subject to conditions, to deliver targeted advertising messages according to geographical or behavioural profile. The decree also relaxes the prohibition of cinema advertising. Helpful blog on the decree from Taylor Wesssing here 
    For advertising which includes price, either shown superimposed or in a moving banner, the duration of its visibility or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP Price Code 2/1.2. 1)
  • In radio commercials, price must be ‘easy to hear’ (ARPP Price Code 2/1.2. 5)
  • All TV commercials must be pre-cleared by ARPP at final film stage: https://www.arpp.tv

 

 

RULES FROM DECREE 92-280 (EN)

 

These rules are directed at the broadcaster rather than the advertiser, who is nevertheless impacted; product placement is from the CSA Decision of February 2010, amended in July 2012 (FR). The CSA is the French broadcasting authority, though it merges with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022

 

 

PRODUCT PLACEMENT

 

  • Allowed in feature films, TV films & series, and music videos, but not when those are made for children (Section IV, CSA Decision)
  • Must not give undue prominence to the product, service or brand (Section VI Formal Product Placement, ref. Article 14-1 of the law of 30 September 1986)
  • Must not influence the editorial independence of programmes
  • Must not directly encourage purchase or rental of the products or services of a third party, in particular by making special promotional references to those products or services or brands
  • Viewers must be clearly informed of the existence of product placement. Programmes containing product placement must be identified by the “P” pictogram for one minute at the beginning of the programme, for one minute when the programme resumes after each commercial break, and at the end of the programme for the duration of the closing credits
  • During the broadcast of a music video, the icon appears throughout its broadcast
  • During a period of two months from the date of the first broadcast of a programme with a product placement, the icon must appear for five seconds at the start of the broadcast programme in a banner accompanied by the following clearly legible sentence: “Ce programme comporte un placement de produit” (This programme contains product placement) Following the close of this banner, the icon appears in the manner as prescribed above (Section IX Transitional & Final Provisions)
 

 

PRICING IN AV (ARPP Price Recommendation)

 

  • For references appearing in fixed double exposure on the screen or within moving text (either a banner or non-materialised), the period of the display or the speed of movement of the text must allow the consumer to read all the information without having to wait for another broadcast of the advertising message
  • When the background of the message is not the same colour throughout the advertisement, depending on the script and the set, it is essential to check the perfect readability, in terms of contrast, for all remarks. If necessary, a banner will be materialized, with a single colour which will contrast with the colour of the characters chosen for the text appearing in the said banner
 

 

SPONSORSHIP (Decree 92-280)

 

  • News and political affairs programmes may not be sponsored (Art. 20)
  • The content and programming can in no circumstances be influenced by the sponsor in a manner likely to impair the responsibility and editorial independence of the company or the TV service (Art 18 (1))
  • They (programmes) must not directly encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those goods or services (Art. 18, as amended by Decree No. 2017-193 of February 15, 2017 (FR), which adds ‘directly’ to ‘encourage’ to be more in line with the AVMS Directive
  • Sponsored programmes must be clearly identified as such at the beginning, at the end of, or during the sponsored programme. This identification can take the form of the name, logo, or other symbol of the sponsor, in particular by means of a reference to its goods or services, or a distinctive sign, subject to the following conditions:

 

1) The mention of the sponsor during the course of a programme, except during an interruption of/ break in the programme, must remain brief and discreet, simply recalling the contribution made by the sponsor, and cannot become an advertising slogan or the presentation of the product itself or its pack

2) When the sponsorship is supporting a gameshow/ contest programme, the awarding of the sponsor's goods or services to individuals as prizes cannot be in the context of an advertising claim (Art. 18/III)

 

  • In the official sponsorship announcements, the mention of the sponsor must remain brief and discreet and be limited to a reminder of the contribution made by the sponsor (Art. 18/IV)

 

The last three bullet points above as amended by Decree No. 2017-193 of February 15, 2017 (FR)

 

 

RADIO SPONSORSHIP

 

Consolidated version of Decree 87-239 (EN key clauses) article 9

 

  • Only allowed on private radio channels
  • The service i.e. the broadcaster ‘must retain full control over the programming of these broadcasts’
  • Mention of the sponsor’s name, corporate name, trading name, and reference to distinctive signs usually associated with the sponsor, may occasionally appear within the sponsored programme

 

 

 

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International

SECTION C TV/AV AND RADIO

 

 
APPLICABLE SELF-REGULATION AND LEGISLATION
 
  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful commentary from Simmons & Simmons/ Lexology here. Some provisions are shown below

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

 

CONTEXT

 

The following are the Channel rules that apply in these media to this audience (Children). Also applicable are the General channel rules that apply to all audiences, Children included, a selection of which we show below, and all of which are shown under the General tab beneath this 'Sector' tab. In terms of Content rules, all those set out in Content Section B (both 'Sector' and 'General' rules) apply to these channels, except those rules that identify broadcast and Digital channels 

 

 

CINEMA

 

  • Advertisers from child-sensitive sectors such as Alcohol and Gambling obviously must avoid films made for children, or films where a high proportion of children are likely to be present 
  • The Cinema advertising trade body in France is Mediavision:
    http://www.mediavision.fr/

 

PRINT

 

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

 

  • There are no rules unique to print/ Children
  • Advertisers from Child-sensitive sectors such as Alcohol and Gambling obviously must avoid children’s publications (Article 2/3 amended April 2015 of the ARPP Alcohol Code (EN) requires that advertisers “do not communicate in press, radio or online websites which it is reasonable to assume that the audience is not made up of at least 70% of adults of 18 years and older”; Gambling marcoms are prohibited in publications for youth within the meaning of the Act No 49-956 of 16 July 1949 (i.e. by their nature, presentation or subject matter)

 

 

 

OUTDOOR

 

  • While there are no rules that we can trace that specify the avoidance of proximity to schools, for example, some authorities may be sensitive to placement of advertising for Child-sensitive sectors in areas where there is a preponderance of Children 
  • The international association for OOH advertising is WOO. Membership includes J C Decaux 

 

 

 

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General

SECTION C - CINEMA, PRINT, OUTDOOR

 

 

APPLICABLE TO ALL 3 CHANNELS 

 

  • Specific sector rules above; the rules that follow apply to all product sectors
  • Content rules are from the general advertising rules from ARPP (EN), which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN) also apply; see our earlier Content Section B

 

 

CINEMA

 

  • For advertising which includes price, either shown superimposed or in a moving banner, the duration of its appearance or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP Price Recommendations 2/1.2.1)

 

 

PRINT

 

Price

 

  • Price advertising from ARPP; for press advertising: the size of the characters used in price-related details must be selected according to the format of the media and the advertisement. If a publication or advertisement is in a small format, the size of the selected characters is of key importance and should always enable the price-related details and references to be read in normal conditions (Art. 2/1.2.2 ARPP Price Recommendation)
  • When a reference to another page (as in catalogues, mail shots, etc.) is used, the way these references are used, notably in terms of position in the document, must be perfectly readable and clear (Art. 2/1.2.6)
  • The Recommendation linked above carries an article 2/2 that sets out pricing information requirements for ‘other advertising documents.’

 

 

Re-touching

 

  • In the event that a model’s images/ figures are adjusted, the term ‘photographie retouchée’ must be included in advertising. The way in which that should be done is provided by the ARPP’s Notes and overlays Recommendation

 

 

OUTDOOR

 

  • If including price, the font size of the remarks must be chosen according to the format of the billboard and its type of location (ARPP Price Recommendations 2/1.2.3)

 

 

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

 

 

 

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International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable Self-Regulation and legislation 

 

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

 

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

 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

 

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

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

 

 

Article B12 Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

  • This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc., follow
  • A significant influence in this context is from the ARPP (the French Self-Regulatory Organisation) who publish the Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022) also referenced as the ARPP Digital Code. The Code states that digital advertising must respect a) the ICC Advertising and Marketing Communications Code and b) the law
  • So the Content rules shown in Section B - both the Child-specific and the General rules -  will apply online, except those that identify broadcast media. Some child-specific rules are set out below in this section
  • The Channel (i.e. placement) rules that apply to all advertising, including that directed to children, Definition In all privacy-related sections, including online behavioural advertising, the ICC Code defines 'children' as 12 and underare under the General tab below. These include some significant statutory Consent and Information requirements applicable in most online channels, as well as Self-Regulatory rules from the ARPP Digital Code
  • Issues arise from the introduction of the GDPR from May 2018: much online activity will involve the processing of data that may be personal data and therefore subject to the GDPR, which has new measures addressing the processing of children’s data, shown under point 4 below. Privacy issues should be reviewed with specialist advisors

 

 

KEY RULES 
1. The ARPP Digital Code: Protection of children and teenagers (under Section 3)

  • The ease of access to information, the interactivity of the media used in digital communication and their widespread use by children and teenagers must require issuers (FR émetteurs), platforms, all other intermediaries and distributors of advertising to be particularly vigilant towards them.
  • In order to promote the trust that the public should be able to place in advertising, it is recommended to use information about targeting (such as age or date of birth, etc.) and about the delivery context in order to confine to an adult audience the exposure of advertising content that is likely to harm children and teenagers
  • The ARPP Children Recommendation (FR) applies in full
  • The ARPP Digital Code (EN) includes a number of specific requirements for the protection of children in particular techniques, for example In-game advertising, some of which are shown below. We recommend that you check out the linked Code 
  • Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 

 

 
2. ICC Code (applicable in France as the General Advertising Code) 
Chapter C: Direct Marketing and Digital Marketing Communications

 

Article C7. Marketing communications and children

 

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

 

* The term ’minor’ refers to those below the legal purchase age, i.e., the age at which national legislation permits the purchase or consumption of such restricted products. In countries where purchase age and consumption age are not the same, the higher age applies. For the purpose of this Article, in countries where there is no legal purchase or consumption age minors are defined as those below the age of 18. The meaning of this term has been derived from the definition provided in the ICC Framework for Responsible Marketing Communications of Alcohol

 

 

 

Section 8. Interactive advertising

 

The promotional nature of this type of message must be clearly recognisable

 

  • 8/1 When the message appeals directly to children (by telephone or any other interactive means) and encourages some form of spending (for example, by promoting a premium rate number), it must also encourage the children to seek the permission of their parents
  • 8/2 Interactive advertising must be restricted to the commercial purpose of the original promotion, excluding any misleading representation (e.g. wrongly identified icon). It must not provide direct access to a website not related to the original advertising
  • 8/3 There must be no encouragement to arrange meetings with strangers, online or offline, or to go to unknown or unsafe places in order to take part in a game or receive a gift
  • 8/4 Personal data may only be collected or used in strict compliance with the law and the rules of the Commission Nationale Informatique et Libertés (CNIL - the French Data Protection Agency)

 

 

4. GDPR and Children

 

  • As above, and especially with regard to the processing of children’s data, specialist advice should be sought
  • From the EC Data Protection pages relating to the GPPR:

 

Are there any specific safeguards for data about children?

 

  • Your company/organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age. The age threshold for obtaining parental consent varies between 13 and 16 years, depending on the age established in each EU Member State. Check with your National Data Protection Authority (In the case of France, the CNIL)
  • A reasonable effort must be made, taking into consideration available technology, to verify that the consent given is truly in line with the law. That means that your company/ organisation must implement age-verification measures (for example control questions, actions on the website)
  • The consent from the parent or guardian must be obtained if your organisation works on online social networking sites that provide free games to children or family insurance, for example
  • If your organisation targets children, you must ensure that any information and communication addressed to a child is easily accessible and in clear and plain language that a child can easily understand
  • Preventive or counselling services offered directly to a child don’t require parental authorisation since they are aimed at protecting the children’s best interests

 

 

References

 

Articles 8 and 12 and recitals (38) and (58) of the GDPR. All the above references are here:

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

 

CNIL AND YT KIDS

 

 

5. General online rules

 

Applicable to all marcoms, children’s included

 

  • The rules applicable to all online commercial communications are set out below under the General tab. Some key extracts which have most relevance to Children’s marcoms follow, but it’s important that the ‘General’ rules are understood as by definition they will have bigger holes to fall into
  • Marketing communications and advertising should be clearly distinguishable as such, whatever their form. That identification can be achieved by any means whereby the consumer can clearly and immediately understand that the message is an advert (ARPP Digital Code, Art. 1/1)
  • Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message. These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued (Art. L 122-8 of the French Consumer Code - EN)
  • The conditions applicable to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)

 

 

 

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Read more

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as 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 subject to the rules online in Owned and (some) Earned space as well as Paid. The definition of advertising is therefore important: the ARPP/ ICC definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. See Marketers’ Own Websites below for specifics on owned space. In this channel context, the influence of legislation is significant, particularly in the use of personal data. The impact of GDPR, and national 'stand-alone' legislation or that which applies EU Directives, is also shown under individual channel sections below

 

SOURCE OF RULES 

 

 

  • Content rules are from the General Advertising Rules from ARPP, which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses inc. 2022 amends) also apply; see Content Section B

  • The key channel rules are from the ARPP’s December 2021 V5 Digital Advertising and Marketing Communications Code (EN unofficial trans; FR here); scope of the Code is here. Scope All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The Code deals with various techniques online such as In-game, Native and OBA. Rules for each of these are shown in the relevant sections below

  • Other significant channel rules in the online environment are from are from legislation; we reference GDPR lawful processing rules above in the introduction. The data protection authority is CNIL (EN home page); their GDPR 'toolkit' is here (EN) and their February 2022 reference text on personal data processing is here (FR)

  • The rules relating to Consent and Information requirements in electronic communications are from the 2013 Mail and Electronic Communications Code (FR) - English translation of the key article L34-5 here – which sets out the opt-in/ soft opt-in regime that applies in France

  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021 here (EN)

  • Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Amends were transposed into the law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the Directive's amends to commercial communication content requirements is here and notes on the scope changes here (both EN)

  • In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (CC; EN key clauses inc. 2022 amends) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws set out what must be included or made available in e-Commerce communications (articles L122-8 and L122-9 of the CC, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the CC). Amends to the CC effective May 28, 2022 from the 'Omnibus' Directive 2019/2161 introduced further requirements for information in an e-Commerce context related to search rankings and consumer reviews under article L121-3 and promotional pricing rules under article L112-1-1

  • The CC also carries the core statutory misleadingness rules, transposed from the Unfair Commercial Practices Directive 2005/29/EC. Unfair and misleading commercial practices are regulated under Articles L. 121-2 to L121-4, and aggressive commercial practices in Articles L121-6 and L121- 7. Comparative advertising is under articles L122-1 to L122-5

  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

 

PRICING

 

  • Special attention shall be given to the display time and the font size according to the diversity of formats, techniques and existing advertising media
  • In advertisements featuring remarks in a scrolling text, special attention shall also be paid to the scrolling speed and to its good contrast with the background colour
  • Where the format, technique or advertising medium does not allow the remarks to appear on the advertisement itself, they shall be made directly available by any other means (Art. 2/1.2.4 ARPP Price Recommendation)
  • See the Consumer Code linked above for promotional pricing rules effective May 28, 2022 under article L112-1-1, introduced by Ordinance 2021-1734 (FR)

 

INFLUENCER MARKETING

 

Video from ARPP (EN sub-titles)

ARPP recommendations for influencer marketing:

https://www.youtube.com/watch?v=8Jx4gr5bvH0

Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR); #ad, for example, is not permitted

 

The Digital Code referenced above also carries some Influencer rules, GRS (unofficial, non-binding) translation as follows:

 

Definition

 

  • An influencer (blogger, vlogger, creator, talent, etc.) is an individual who creates content, expressing a point of view or giving advice, in a specific area and with a style or treatment that is specific to him/ her and with which his/ her audience identifies
  • An influencer can act in a purely editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, distribution of advertising content, etc.)

 

Qualification & application

 

1. The influencer acts in collaboration with a brand 
 
A commercial collaboration between an influencer and an advertiser with a view to the publication of content must in all cases be brought to the attention of the public by the influencer
 
2. Some collaborations can qualify as advertising; whether it is advertising is established when the following criteria are cumulatively met:
 
  • When the content is produced in the context of reciprocal commitments; statements by the influencer subject to payment or any other consideration such as, for example, the delivery of products or services for the benefit of the influencer
  • When the advertiser or their representatives approve the content before its publication
  • When the content of the influencer messaging is aimed at promoting the product or service (promotional statements, verbal or visual presentation for promotional purposes, etc.)
 
Consequence: When the advertising nature of the influencer messaging is established, all the ethical provisions of the ARPP, in addition, should be applied by all stakeholders (brands, their representatives, influencers, etc.)

 

Identification

 

  • For the identification of influencer communications made in collaboration with a brand (unless the identification is obvious), it is recommended that an explicit statement is added that establishes identification of same, in a way that does that immediately
  • This identification can be done by any means (in the audio, in the text connected with the content, by a statement in the video, etc.) as long as it is brought to the attention of the public whatever their means of access to the content

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

 

  • See also Article 20 de la loi n° 2004-575 pour la confiance en l’économie numérique du 21 juin 2004 (FR): 'toute publicité, sous quelque forme que ce soit, accessible par un service de communication au public en ligne, doit pouvoir être clairement identifiée comme telle. Elle doit rendre clairement identifiable la personne physique ou morale pour le compte de laquelle elle est réalisée'.  (Advertising in any form whatsoever accessible through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out)

 

Other guidance

 

The European Advertising Standards Alliance (EASA) published in December 2018 Best Practice Recommendation on Influencer Marketing (EN)

and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope

 

Le cadre juridique applicable au marketing d'influence published by Haas Avocats September 2022 is a valuable overview of the regulatory framework around Influencer marketing 

 

 

 

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Read more

International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

  • 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

 

Self-Regulatory clauses 

 

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

 

C1. Identification and transparency

 

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

 

C2. Identity of the marketer

 

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

C7. Marketing communications and children

 

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

 

C10. Respect for the potential sensitivities of a global audience

 

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

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

 

Directive 2018/1808 amending the AVMS Directive 

 

  • 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  

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Privacy issues should be reviewed with specialist advisors

 

  • The general cookie rules, i.e. those that apply to all product categories and audiences, children included, are shown in full under the General tab below
  • Those rules do not identify per se prohibition of (tracking) cookies that might be placed for children; however, protection is provided by data processing rules from the GDPR, which may be applicable in the context of cookies, and national laws that require explicit parental/ guardian consent for the processing of a child’s personal data
  • Article 7-1 of the amended 1978 French Data Protection and Freedoms Act (FR) states: In accordance with Article 8 (1) of Regulation (EU) 2016/679... a minor may consent to the processing of personal data by him/ herself with regard to the direct offer of information society services from the age of fifteen. When the minor is under the age of fifteen, the treatment is lawful only if consent is given jointly by the minor concerned and the 'holder(s) of parental authority' with respect to the minor
  • The controller must set out in clear and simple terms, easily understandable by the minor, the information and communications related to the processing that concerns him/ her (also art. 7.1)
 
 
OBA

 

  • OBA, like any other advertising, is subject to the rules set out in our earlier Content Section B - both the Child-specific and the General rules - except those rules that identify Broadcast channels; the principal set of general rules is the ICC Advertising and Marketing Communications Code, which applies to all sectors and media
  • The Channel rules that apply to all product categories and audiences also apply; see the General tab below 
  • The core statutory requirements in targeted advertising are expressed in ‘Prior Consent to Targeted Advertising’ from CNIL Advertising Solutions of December 2015: https://www.cnil.fr/fr/solutions-pour-la-publicite (FR); as with cookies, these do not include specific prohibitions of advertising targeted to Children, but the tracking/ tracing cookies that may generate the advertising, albeit third party, may also be subject to the cookie rules set out above. Check with specialist advisors
  • The definitive official guidance on profiling for marketing purposes is here: Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679. See Chapter V Profiling and Children. From that: ‘Because children represent a more vulnerable group of society, organisations should, in general, refrain from profiling them for marketing purposes. Children can be particularly susceptible in the online environment and more easily influenced by behavioural advertising. For example, in online gaming, profiling can be used to target players that the algorithm considers are more likely to spend money on the game as well as providing more personalised adverts. The age and maturity of the child may affect their ability to understand the motivation behind this type of marketing or the consequences. ‘ (Footnotes excluded)
  • Self-Regulatory measures from ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022) under point 9 of the list of applications state ‘Professionals must not create specific targeting categories (interest segments) concerning interests of children of 13 or under.’
  • Similarly, albeit allowing with parental consent, Article C22.6 from Chapter C of the ICC Code linked above provides: ‘Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent.’

 

A good number of companies and organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu).  The OBA Icon,

 

 

which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA and managed from a regulatory perspective under the IAB Europe OBA framework

 

 

  • OBA segments for children under 13 are not allowed according to the IAB Europe framework linked above (Principle IV. Sensitive Segmentation A. Children’s segmentation: ‘Companies agree not to create segments for OBA purposes that are specifically designed to target children. For the purposes of this provision, children refers to people age 12 and under.’
  • The French Direct Marketing Association UFMD initiated the Targeted Advertising and Internet Users Protection Code, signed off by 9 other associations:  Reco. 6.2 states ‘Professional Associations recommend, in the area of behavioural advertising, that advertising operators do not create any specific category corresponding to the behaviours and interests of Internet users whose age is less than or equal to 13 years.’

 

 

 

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General

SECTION C: COOKIES AND OBA

 

Cookie Wall & Paywall: Do's And Don'ts. 17 June 2022
by Caroline Bouvier (Bernard – Hertz – Béjot) GALA

CNIL position here (FR)

 

Google says cookie here to stay until 2024

July 27, 2022

 

COOKIES

 

  • Ordinance No. 2011-1012 of 24 August 2011 transposed the EU ‘Cookie Directive’ 2009/136/EC amending article 32 II of the FDPFA, i.e. the 1978 French Data Protection and Freedoms Act (FR), extracts below. The linked file carries the amends from the GDPR-related Law 2018-493 on Personal Data Protection (FR)
  • Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: some commentary suggests that in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules may apply. Check with specialist advisors on how GDPR impacts on cookie regulations in France
  • IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising 
  • CNIL, France's Data Protection Authority, published their September 2020 guidelines here (FR); this courtesy of a significant article by Sidley Austin LLP via Lexology Developments in Cookie Regulation (EN)
  • CNIL recommendations, versus guidelines, are here (FR). The distinction between the two papers is that the guidelines 'review and explain the law', and the recommendations 'propose practical arrangements for obtaining consent in accordance with the applicable rules.' The CNIL Q&A relating to both papers is here (FR)
  • The CNIL gives its position on the “cookie less” alternatives to third-party cookies from Nomos via Lexology October 2021 is a helpful look at how the CNIL is likely to handle alternative tracking and other technologies. The original paper from CNIL is here (FR)
  • From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here
  • And finally, Further Enforcement Actions by the French Data Protection Authority from Squire Patton Boggs/ Lexology December 2021 is a very good summary of some of the actions that have been taken by the CNIL and why. The key issues as the CNIL sees them are: 

 

  • Cookies subject to consent are automatically set on the user’s terminal before acceptance by the user, upon arrival on the site, thus without consent
  • Information banners are still not compliant because they do not allow refusing the setting of cookies as easily as accepting them
  • Information banners seem to offer the user a means of refusing cookies as easily as accepting them, but the actual proposed mechanism is not effective, because cookies subject to consent are still set even after the refusal expressed by the user.
 

INFORMATION REQUIREMENTS 
from the FDPFA, art. 32II

 

  • Any subscriber or user of an electronic communication service shall be informed in a clear and comprehensive manner by the data controller or its representative, except if already previously informed, regarding:

 

  • the purpose of any action intended to provide access, by means of electronic transmission, to information previously stored in their electronic connection terminal device, or to record data in this device
  • the means available to them to object to such action

 

  • Such access or recording may only be carried out provided that the subscriber or user has explicitly expressed, after receiving said information, their agreement that may result from appropriate parameter settings in their connection device or any other system under their control

 

EXEMPTIONS

 

  • These provisions shall not apply if the access to data stored in the terminal device of the user or the recording of information in the terminal device of the user is:

 

  • either exclusively intended to enable or facilitate communication by electronic means; or
  • strictly necessary for the provision of an online communication service at the user’s express request

 

CONSENT REQUIREMENTS AND GUIDANCE 

 

 

 

OBA

 

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

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

Effective 19 January 2022

 

  • OBA, like any other advertising, is subject to any product sector rules as well as the content and channel/ placement rules for all sectors, i.e. the General rules
  • Content rules are the General advertising rules from ARPP (the ICC Code), which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply online; see our earlier Content Section B
  • Self-Regulatory channel rules are primarily from the Digital Advertising and Marketing Communications Code (EN); OBA specifics from this code are shown later in this section, together with the Self-Regulatory programme from the EDAA 
  • Regarding cookie placement in this OBA context, the CNIL document ‘Cookies and other Trackers’ linked above covers the issue under Article 2, from para 19
  • The CNIL reference the Article 29 Data Protection Working Party (now the European Data Protection Board) document ‘Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679.’

 

 

From ARPP’s Communication Publicitaire Numerique (FR / EN):

 

9. Behavioural advertising and retargeting

 

1) Identification of the commercial nature of behavioral advertising

 

  • ​The commercial nature must be easily understood. Therefore, the use of a visible specific symbol, distinguishable from the message content and entirely legible, can help the consumer know about the behavioural nature of the digital advertising
  • It is further recommended to give the consumer access via a simple click on the aforementioned symbol to a dedicated space where the consumer can find out about the special features inherent in this type of advertising (nature of the data collected, terms of use for behavioural targeting purposes…)
  • This dedicated space must also offer the consumer clear information on the various options to refuse or accept the showing of behavioural advertising, in particular the terms: 

 

 
  • One-off or permanent acceptance of the placement of cookies or other tracking means (browser settings)
  • Deletion of browser cookies
  • Objection to behavioural advertising providers to the showing of any behavioral advertising 
 
2) Protection of children and teenagers
 
  • Professionals must not create specific targeting categories (interest segments) related to interests of children of 13 or under

 

 

OTHER SELF-REGULATION


From EASA’s Best Practice Recommendation on OBA: “In addition to the privacy notice on their own websites, Third Parties are required to provide an “enhanced notice” to consumers whenever they are collecting or using data for OBA purposes on a website that is not operated by them. The purpose of the enhanced notice is to provide the web user with information about the identity of the company that is delivering the ad and about the fact that the ad is targeted based on previous web viewing behaviour.”


A number of companies and organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by EDAA: http://www.edaa.eu.  The OBA icon,

 

 

which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling. OBA segments may not be created for children (under 13)

 

 

OTHER SIGNIFICANT INFLUENCES 

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)

From Reed Smith LLP/ Lex May 2022 

The European ‘Cookie Monster’ - Digital services and cookies under scrutiny

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

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

 

C22.1. Notice

 

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

 

C22.2. User control

 

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

 

C22.5. Data security

 

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

 

C22.6 Children

 

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

 

C22.7. Sensitive data segmentation

 

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

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European Self-Regulatory programme for OBA

 

A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling

 

 
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5. Emails & SMS

Sector

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

 Privacy issues should be reviewed with specialist advisors

 

  • The Content rules set out in our earlier Section B - both the Child-specific and the General rules - apply to commercial electronic communications, except for those rules that identify broadcast channels
  • The Channel (i.e. placement) rules that apply to all product categories and audiences also pertain; see the General tab below

 

 

LEGISLATION

 

  • The key national law in marcoms via electronic communications is the 2013 Mail and Electronic Communications Code, Article L34-5 (EN), which implements the E-Privacy Directive 2002/58/EC, permitting unsolicited communications only to those who have given their prior consent
  • The rules from the above, which apply to all product categories and audiences, are set out in full under the General tab below
  • With regard to Children, any processing of personal data that may be involved in direct electronic communication campaigns is subject to the requirements set out under the earlier headings for Online Commercial Communications and for Cookies. Article 7.1 of the 1978 French Data Protection and Freedoms Act (FR) requires that consent to the processing of personal data must be given jointly by the minor (in this context, under 15) concerned and the ‘holders of parental authority’, and that the data controller must inform the minor in ‘clear and simple terms’ about the processing of his/ her data
  • GDPR lawful processing rules may also apply; check with specialist advisors
  • In all cases, the sending of direct marketing messages is prohibited unless accompanied by valid contact details that can be used by the recipient to send a request for such communications to be terminated, at no cost other than that related to the transmission of the request (Art. L34-5 of the Mail and Electronic Communications Code)
  • It is also prohibited to conceal the identity of the person on whose behalf the communication is sent and to mention a subject or item unrelated to the proposed delivery or service (Art. L34-5 of the Mail and Electronic Communications Code)

 

 

SELF-REGULATION

 

  • The key Self-Regulatory requirements in electronic communications aimed at children are from ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022), clauses 19.4 and C7 of the ICC Advertising and Marketing Communications Code, and the ARPP Children’s Code (EN). These rules are all set out under the earlier Online Commercial Communications header
  • The French Direct Marketing Association UFMD (Union Française du Marketing Direct & Digital) publishes an emailing code whose rules comply with the Data Protection Act. It can be downloaded here and is translated here; Article 26 states 'Electronic contact details of minors: Companies primarily targeting minors shall ensure that they do not collect personal data on these minors without asking them to request permission from their parents. For this purpose, a specific reference shall appear on the collection documents of sites whose targets are minors under 16 years. This reference shall stipulate that the legal representative consents to the collection of information on the minor for whom he is responsible.'

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

MARCOMS CONTENT RULES

  • The Content rules set out in our earlier Section B apply in this channel. The principal source of rules is the ICC Advertising and Marketing Communications Code administered in France by ARPP. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply - see Content Section B

 

 

STATUTORY CONSENT AND INFORMATION REQUIREMENTS 

 

  • GDPR: issues arise from the introduction of the GDPR 2016/679: in the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • The 2013 Mail and Electronic Communications Code, (FR) Article L34-5 (EN) implements the 2002 E-privacy Directive 2002/58/EC, prohibiting unsolicited commercial communications by telephone or e-mails without a consumer’s prior consent. The legislation provides for opt-in/ soft opt-in. See linked L34-5 file for the specific clause  
  • In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws are important in this context, setting out what must be included or made available in E-commerce communications (articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase (art. L121-3 of the Consumer Code)
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
 

 

From Article L34-5
Consent requirements

 

  • Use of automated calling systems, fax, or electronic mail for the purposes of direct marketing is prohibited unless prior consent has been obtained (i.e. opt-in)
  • Consent means any freely given, specific and informed indication of his or her wishes by which a person agrees that personal data relating to him/ her may be used for direct marketing purposes
  • There is an exception to this rule in cases where contact details for sending e-mail messages have been obtained in the context of a sale (‘soft opt-in’)
  • Within such an existing customer relationship the company who obtained the data from its customers may use them for the marketing of similar products or services to those it has already sold to the customer, and if the recipient is offered, in specific and unambiguous terms, the opportunity to refuse, at no cost to him/ herself, other than that related to the transmission of the refusal, in a simple manner, the use of his/ her personal details at the time they are collected and each time a marketing email is sent to him/ her if he/ she has not previously refused such exploitation
  • In all cases, the sending of direct marketing messages is prohibited unless accompanied by valid contact details that can be used by the recipient to send a request for such communications to be terminated, at no cost other than that related to the transmission of the request
  • It is also prohibited to conceal the identity of the person on whose behalf the communication is sent and to mention a subject or item unrelated to the proposed delivery or service

 

 

Key extracts from the Consumer Code (CC; EN)

 

Offers and promotions, 'Invitation to Purchase'

 

  • Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message. These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued (Art. L122-8)
  • The conditions applying to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)
  • 'Invitation to Purchase’ (often used in this channel): definition here Definition Commercial communication targeting the consumer, encouraging the latter to make a purchase, and mentioning the price and characteristics of the property or service offered information requirements are under article 121-3
  • Article L112-1-1 of the Consumer Code (linked above in English) effective May 28, 2022 transposes requirements from the Directive 2019/2161 related to promotional pricing - the rule applies to 'any announcement'
 

 

Key extracts from the LECN

 

Article 19; information required to be available

 

(e-Commerce is defined here as: the economic activity by which a person proposes or provides remotely and electronically the supply of goods or services; also included in the scope of e-commerce are services such as providing online information, commercial communications, and tools for searching, accessing and retrieving data, accessing a communication network or hosting of information, including when they are not paid for by those who receive them – art. 14 LECN)

 

Any person who undertakes the activity defined in Article 14 must ensure to recipients of the supply of goods or services the easy, direct and permanent access, using an open standard, the following information:

 

  1. In the case of a natural person, his/ her name and surname and, in the case of a legal person, the name of the business
  2. The address where it is established, its e-mail address, as well as telephone numbers facilitating effective contact
  3. Where it is subject to registration in the trade and companies Register, or to a trade directory, the registration number, the share capital and the address of its registered office
  4. If subject to value added tax and identified by an individual number pursuant to article 286 ter of the general tax code, its individual identification number
  5. Where its activity is subject to an authorisation scheme, the name and address of the relevant supervising authority
  6. If a member of a regulated profession, reference to the applicable professional rules, the professional title and the Member State where it has been granted, as well as the name of the professional body or order to which it is registered
    Any person who carries out the activity defined in Article 14 must, even in the absence of a contract offer, where it mentions a price, indicate it in a clear and unambiguous manner, and in particular if taxes and shipping fees are included. This paragraph applies without prejudice to the provisions governing deceptive marketing practices provided for in Article L. 121-1 of the Consumer Code, or the price information obligations provided for by the laws and regulations in force
 

 

Article 20; Transparency

 

  • Advertising in any form whatsoever accessible through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out
  • The preceding paragraph applies without prejudice to the provisions that restrict misleading marketing practices provided for under Article L. 121-1 of the Consumer Code

 

 

SELF-REGULATORY REQUIREMENTS 

 

 

 

5a) Identification of advertising

 

  • The commercial nature of such advertising must be clearly apparent. For electronics (sic) mails, identification must be possible as soon as the consumer receives it, with no need to open the email
  • Two different kinds of emails can be identified:

 

  • The case where the commercial nature is obvious (e.g. the advertiser name appears in the message subject). In this case, it would not be necessary to provide additional identification elements
  • The case where the commercial nature of the message is not immediately visible. In this case, it is recommended to state in the mail subject or within the sender’s designation an explicit message enabling immediate identification of the commercial nature of the email

 

  • With regard to SMS or MMS, the identification must be explicit at the beginning of the message. The identification can be satisfied by all means noted above (the advertiser’s name appearing at the beginning of the message, for example). The identification must be clear enough to avoid any confusion with an electronic mail/SMS/MMS sent by a private contact

 

 

5b) Fair, truthful and honest advertising

 

  • Offer and sales conditions must be clearly specified and easily accessible. Consequently, legal notes and overlays must be accessible directly by any means, in particular:

 

  • On a mobile website, for a clickable mobile message (sent in the context of a direct marketing campaign)
  • Within a distinct SMS or MMS from the one conveying the advertising message (in particular by using the concatenation technique, i.e. technique allowing attachment of several SMS in order not to be limited by the number of characters)

 

  • The conditions must be legible or audible, and intelligible, without prejudice to compulsory provisions applicable to specific sectors

 

 

Pricing

 

  • The ARPP Price Recommendation (EN) sets out the rules for communication of price and price-related 'remarks' (e.g. conditions, limitations etc.). These rules apply online; see article 2/1.2

 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full Code linked above): Direct Marketing and Digital Marketing Communications
  • General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

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

 

 

Article 19 ICC Code: Data protection and privacy

 

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

 

19.1. Collection of data and notice

 

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

 

 

19.2. Use of data

 

Personal data should be:

 

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

 

 

19.3. Security of processing

 

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

 

 

19.4. Children’s personal data

 

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

19.5. Privacy policy

 

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

 

 

19.6. Rights of the consumer

 

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

 

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

 

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

 

 

19.7. Cross-border transactions

 

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

 

 

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

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

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

 

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

 

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

 
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EU guidance documents

 

  • Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
  • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
    http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
  • November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • Opinion 15/2011 on the definition of consent here 
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
 
 
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6. Own Websites & SNS

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT AND BASICS 

 

  • These owned spaces are in remit in France; that means that website owners’ own 'marketing communications', defined under the applicable ICC Advertising and Marketing Communications Code as “any form of communication produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour”, are covered by the rules in our Content Section B, both Child-specific and General rules
  • ARPP (the French Self-Regulatory Organisation) state in their Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022) the rules apply to 'advertising communications, whatever their format, on advertisers’ own websites.'
  • The key code is the ARPP Children's Code (EN)
  • The Channel (i.e. placement) rules that apply to all product categories and audiences also pertain; see the General tab below. 
  • The rules that apply to all product categories and audiences are shown under the General tab below. We deal in this particular section with the Channel rules that apply to Marketers’ own websites and children’s marcoms in that context. These can’t be exhaustive as the territory is endless; we have selected the most prevalent techniques/ issues

 

 

DATA PROTECTION/ PRIVACY

 

Privacy issues should be reviewed with specialist advisors

 

  • Principal rules in Privacy/ Data Protection are from legislation: if personal data is processed, i.e. an individual is identifiable, then the 1978 French Data Protection and Freedoms Act (FR), together with or as well as the GDPR, may apply. In the context of children’s (personal) data specifically, parental/ guardian permission is required to process children’s  (in France in this context, defined as under 15) personal data
  • The key law in marcoms via direct electronic communications, for example email, is the 2013 Mail and Electronic Communications Code, Article L34-5 (EN), which implements the E-Privacy Directive 2002/58/EC, permitting unsolicited communications only to those who have given their prior consent, and setting out Information requirements and the opportunity to opt out within the communication  

 

 

Self-Regulation in Data Protection

 

From Article 19.4, ICC Code

 

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

 

 

AGE-GATING

 

  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures to restrict access to such websites by minors (Article C7, ICC Code; other clauses from this article available here within a collection of rules for children’s marcoms in the digital space)

 

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From the ARPP Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022) 

 

  • The most recent (December 2021 V5) version of this code takes a different approach to the previous V4 version, the latter of which placed child or teen-specific clauses in many of the applications
  • This version incorporates a section on children and teenagers, states that the Children's Recommendation must be observed, and adds a child-specific clause only to the most sensitive applications, as follows:

 

 

From Section 3 of the code 

 

Protection of children and teenagers

 

  • The ease of access to information, the interactivity of the media used in digital communication and their widespread use by children and teenagers must require issuers (FR émetteurs), platforms, all other intermediaries and distributors of advertising to be particularly vigilant towards them
  • In order to promote the trust that the public should be able to place in advertising, it is recommended to use information about targeting (such as age or date of birth, etc.) and about the delivery context in order to confine to an adult audience the exposure of advertising content that is likely to harm children and teenagers
  • The ARPP Children Recommendation (EN) applies in full

 

From pt. 6 of the application list In-game advertising

 

  • Advertising inserted in video games aimed primarily at children and teenagers must not harm them in any way
  • To this end, when the video game has an age classification, it must be taken into account

 

From pt. 9 of the application list OBA

 

  • Professionals must not create specific targeting categories (interest segments) related to interests of children of 13 or under

 

From pt. 10 of the application list Teaser campaigns

 

  • If the teasing is based on a viral technique, a feature should be provided to flag content that may be harmful to children and adolescents
  • In any case, if the viral content is likely to harm children and adolescents, this should be explicitly stated

 

 

ARPP Children’s Code (EN) Section 8. Interactive advertising

 

The promotional nature of this type of message must be clearly recognisable

 

  • 8/1 When the message appeals directly to children (by telephone or any other interactive means) and encourages some form of spending (for example, by promoting a premium rate number), it must also encourage the children to seek the permission of their parents
  • 8/2 Interactive advertising must be restricted to the commercial purpose of the original promotion, excluding any misleading representation (e.g. wrongly identified icon). It must not provide direct access to a website not related to the original advertising
  • 8/3 There must be no encouragement to arrange meetings with strangers, online or offline, or to go to unknown or unsafe places in order to take part in a game or receive a gift
  • 8/4 Personal data may only be collected or used in strict compliance with the law and the rules of the Commission Nationale Informatique et Libertés (CNIL, the French Data Protection Agency)

 

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT 

 

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 ‘in remit’, i.e. subject to the rules. The ARPP state in their Digital Advertising and Marketing Communications Code (EN; in force Jan 2022) that the rules apply to ‘advertising communications, whatever their format, on advertisers’ own websites.’ Advertising is defined in the applicable ICC Code as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’

 

GENERAL RULES  

 

  • Websites devoted to products or services that are subject to age restrictions such as Alcoholic Beverages, Gambling and Tobacco products should undertake measures to restrict access to such websites by minors (Art. C7, ICC Code)
  • Marketers' own marcoms on their own websites are subject to the product category/ sector rules set out above and in our earlier Content Section B. The General Advertising Rules from ARPP, i.e. those that apply to all sectors, also apply to marketers’ own marketing communications (marcoms)
  • Exemptions are set out in the EASA Digital Marketing Communications Best Practice document: while this is not binding, it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications. See later (in this section) provisions on UGC from the ARPP

 

CONSENT AND INFORMATION REQUIREMENTS AND AVMSD RULES 

 

The core e-Commerce rules are shown in the preceding section for Emails/SMS, or see the linked documents below

 

  • Rules for commercial communication in an E-commerce context are transposed from the E-Commerce Directive 2000/31/EC into both the Consumer Code (EN key clauses) and the Law of 21 June 2004 on Confidence in the digital economy (LECN). Articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN. Also relevant are information rules for e.g. an ‘invitation to purchase’ under art. L121-3 of the Consumer Code
  • The Consumer Code also carries provisions from the UCPD 2005/29/EC, which are applicable in this context. See article L121-1 for misleading and aggressive commercial practices. Additionally, updates effective May 28, 2022 transposed from Directive 2019/2161 via Ordinance 2021-1734 (FR) carry some important e-Commerce related provisions that require information on search rankings and consumer reviews to be made available. New clauses also include 'promotional pricing' rules. See articles L112-1-1 for pricing and L121-3 for search and review information in the linked file above, or to make it even easier, here (EN)
  • The 2013 Mail and Electronic Communications Code (FR) Article L34-5 (EN) implements the E-Privacy Directive 2002/58/EC, prohibiting unsolicited commercial communications by telephone or e-mails without a consumer’s prior consent
  • In the event that data processing identifies individuals, then lawful processing rules from GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, here
  • Some online channels/ platforms are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Recital 3 of the Directive also discusses e.g. ‘stand-alone parts of online newspapers featuring audiovisual programmes or user-generated videos where those parts can be considered dissociable from their main activity’. Amends were transposed into the national law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the Directive's amends to commercial communication content requirements is here and notes on the scope changes here

 

SELF-REGULATION 

 

  • The ARPP’s Digital Advertising and Marketing Communications Code (EN; in force Jan 2022), largely to do with Channel versus Content rules, covers a number of different techniques that will often be deployed on owned websites. The most significant are below. See the linked code for full information 

 

Apps

Digital audio

Influencers and brands

Brand content

Email

 

INFLUENCER MARKETING 

 

Video from ARPP (EN sub-titles)

ARPP recommendations for influencer marketing:

https://www.youtube.com/watch?v=8Jx4gr5bvH0

 

The Digital code referenced above also carries some Influencer rules, GRS unofficial non-binding translation as follows:

 

Definition

 

  • An influencer (blogger, vlogger, creator, talent, etc.) is an individual who creates content, expressing a point of view or giving advice, in a specific area and with a style or treatment that is specific to him/ her and with which his/ her audience identifies
  • An influencer can act in a purely editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, distribution of advertising content, etc.)

 

Qualification & application

 

1. The influencer acts in collaboration with a brand 
 
A commercial collaboration between an influencer and an advertiser with a view to the publication of content must in all cases be brought to the attention of the public by the influencer
 
2. Some collaborations can qualify as advertising; whether it is advertising is established when the following criteria are cumulatively met:
 
  • When the content is produced in the context of reciprocal commitments; statements by the influencer subject to payment or any other consideration such as, for example, the delivery of products or services for the benefit of the influencer
  • When the advertiser or their representatives approve the content before its publication
  • When the content of the influencer messaging is aimed at promoting the product or service (promotional statements, verbal or visual presentation for promotional purposes, etc.).
 
Consequence: When the advertising nature of the influencer messaging is established, all the ethical provisions of the ARPP, in addition, should be applied by all stakeholders (brands, their representatives, influencers, etc.)

 

 

Identification

 

  • For the identification of influencer communications made in collaboration with a brand (unless the identification is obvious), it is recommended that an explicit statement is added that establishes identification of same, in a way that does that immediately
  • This identification can be done by any means (in the audio, in the text connected with the content, by a statement in the video, etc.) as long as it is brought to the attention of the public whatever their means of access to the content

 

OTHER GUIDANCE

 

The European Advertising Standards Alliance (EASA) published in December 2018 Best Practice Recommendation on Influencer Marketing.

 

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International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. 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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

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

Unsolicited communications

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

 

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

 

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

 

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

 

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

 
 
Directive 2018/1808 amending the AVMS Directive 

 

  • 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  

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

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

 

 

  • Native advertising is the same as any other advertising in as much as Content and Channel rules apply; so the Children’s and General rules set out in Section B apply
  • The key rule is obviously that of the Identifiability of Native advertising. This is spelt out in full under the General tab below
  • ‘Native’ advertising aimed at children will be particularly sensitive for obvious reasons: the ARPP Children’s Code reminds advertisers of the requirement of Article 18 of the ICC Code not to ‘exploit the inexperience or credulity of children or adolescents’, and in Article 1 of its (the Children’s Code) sets out:

 

  • 1/1 The advertising must be clearly recognisable as such, irrespective of the medium used
  • 1/2 When it is aimed at children, the fact that the message is an advertisement must be quickly identifiable

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

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.'

 

KEY RULES 

 

  • The ‘Native’ form of advertising is like any other advertising – it’s subject to the Content rules, in this context the ICC Advertising and Marketing Communications Code, applied in its French version by ARPP, the Self-Regulatory Organisation. Other rules set out in Content Section B, relating e.g. to Portrayal of People, Environmental claims etc. also apply 
  • The key general rule is that of identifiability/ disclosure. From the linked code above:

 

7. Identification and transparency 

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

 

8. Identity of the marketer

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)

The ICC’s Guidance on Native Advertising includes:

 

1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 9 (of the main ICC Code; article shown above), B1, and D1 as follows:

Article B1 (in part): Sponsorship should be recognisable as such. Article D1 (in part): The commercial nature of product endorsements or reviews created by marketers should be clearly indicated and not be listed as being from an individual consumer or independent body

 

2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 10 (of the main ICC Code; article shown above) and 12, as follows: Article B12: Media Sponsorship (in part): Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/ or at the end of the programme or publication content. This also applies to online material

 

3. Disclosures should be prominent and understandable to consumers. This principle is covered in section 3 as follows: Article 3: Honesty: Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge. Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account

 

 

From the ARPP's Digital Advertising and Marketing Communications Code (EN; in force Jan 2022)

 

8. Native advertising

 

Definition: Native advertising covers all advertising formats that adopt - or closely approximate - the design and usage features of the website on which they are placed and adapt themselves to the user experience

 

  • Identification of the commercial nature of advertising. The commercial nature must be identified, unambiguously, in a clear and immediate way
  • It is recommended to highlight the commercial nature of the content with a clear statement such as “advertising”, “sponsored by” or “in partnership with” ….
  • That statement must be legible or audible and intelligible in such a way as the commercial nature is immediately understood

 

LEGISLATION

 

The Consumer Code (EN key clauses inc. 2022 amends), which in this context is the principal consumer protection legislation in France, and includes transpositions from the Unfair Commercial Practices Directive 2005/29/EC and E-Commerce Directive 2000/31/EC, carries the following clauses in relation to Identity. Deemed misleading is:

 

  • To use written content in the media to promote a product or service when this content has been financed by the professional himself, without clearly indicating this origin in the content or by the use of images or sounds clearly identifiable by the consumer (Art. L121.4/ 11)
  • To falsely state or give the impression that the professional is not acting towards purposes that fall within the scope of his or her commercial, industrial, craft or self-employed practice, or to present himself or herself as a consumer (Art. L121.4/ 21)
  • Article L121-2 identifies misleadingness inter alia as: ‘3. When the person on behalf of whom the service is implemented is not clearly identifiable.’

 

Law No. 2004-575 (FR) on Confidence in the Digital Economy carries the E-Commerce 'Identification' rule under its article 20:

 

  • Advertising in any form whatsoever that can be accessed through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

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.' 

 

Standard rules

 

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

 

Self-Regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing 

General

 

Following feedback, we no longer cover Telemarketing 

 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

 

  • Content rules set out in Section B apply to Direct Mail, except those rules that identify broadcast channels, together with the Content rules shown under the General tab in Section B; the key code is the ARPP Children's Code (EN)
  • The Channel (i.e. placement) rules that apply to all product categories and audiences shown under the General tab below also pertain. These include some significant statutory consent and information requirements
  • Obviously, child-sensitive sectors such as Alcohol and Gambling should avoid sending DM to Children
  • Any processing of data that identifies individuals, i.e. ‘personal data’, is subject to rules from the 1978 French Data Protection and Freedoms Act (FR), as amended, together with or as well as the GDPR. In the context of children’s (personal) data specifically, parental/ guardian permission is required (in France in this context, children are defined as under 15)
  • ‘The controller shall take appropriate measures to provide any information referred to in Articles 13 and 14 and any communication under Articles 15 to 22 and 34 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means’ (Art. 12.1 GDPR)
  • Direct Mail in most countries, France included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; it is not clear whether that action needs to be taken by parent/ guardian in the case of children

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

CONTEXT

 

  • Content rules from our earlier Section B apply to Direct Mail, both 'General' rules applicable to all sectors and sector-specific rules. Principal source of the former is the General Advertising Rules from ARPP, the ICC Code, which apply to all product sectors and media/ channels. Other 'trans-sector' rules from the ARPP and legislation from e.g. the Consumer Code (EN key clauses), which largely addresses misleading and aggressive commercial practices derived from the Unfair Commercial Practices Directive 2005/29/EC, also apply in postal Direct Mail; see Content Section B
  • The Consumer Code linked above also provides rules for commercial communications that constitute an ‘invitation to purchase’ (often deployed in direct mail) under article L121-3. See clauses below 
  • This section does not address ‘mail drops’ as in the delivery of unaddressed leaflets, flyers etc., though those may remain subject to advertising content rules. These paragraphs cover addressed mail (including those addressed to ‘the occupier’ etc.) in ‘hard’ form
  • Direct Mail in most countries, France included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications

 

 
THE LAW AND THE ROBINSON LIST

 

  • Consumer protection is from two principal sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications and 2) the ‘Robinson list’ or equivalent, an opt-out list of those who do not wish to receive marcoms
  • In the case of the first, the rules in France are provided by the 1978 French Data Protection and Freedoms Act (FDPFA - FR). The linked law is in French and includes the latest amends. An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here 
  • Law 2018-493 on Personal Data Protection (FR) amended the FDPFA in some aspects of Data Processing and reflects the GDPR 2016/679 in that regard. If data processing for a DM database involves personal data, GDPR rules may apply. Privacy issues should be reviewed with specialist advisors
  • The National Postal Address Service (SNA) manage the Robinson list

 

 

Invitation to purchase and promotional pricing

 

  • As direct mail can include specific offers that may allow a transaction, content may be subject to rules from The Consumer Code (EN key clauses), which in France is the vehicle for transposing the Unfair Commercial Practices Directive 2005/29/EC
  • Article L112-1-1 of the Consumer Code (linked above in English) effective May 28, 2022 transposes requirements from the Directive 2019/2161 related to promotional pricing - the rule applies to 'any announcement'
  • When making an ‘invitation to purchase’ in commercial communications, the following rule applies: ‘In any commercial communication targeting the consumer, encouraging the latter to make a purchase, and mentioning the price and characteristics of the property or service offered, the following information is considered to be substantial:

 

1. The main characteristics of the property or service

2. The address and identity of the trader

3. The price, including tax and delivery costs that will be charged to the consumer, or, if this cannot be calculated in advance, the method of calculation used

4. The methods used for payment, delivery, and execution and processing of consumer claims insofar as they differ from customary practice in the professional sector concerned

5. The existence of a right of withdrawal, should this be provided for by law.

From Art. L 121-3 CC

 

SELF-REGULATION IN DM

 

 

  • Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilising another system, such as mailbox stickers
  • Marketers who are communicating with consumers internationally should, where possible avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such communications (see also General Provisions, article 19, data protection and privacy)
 

PRICING

 

  • The ARPP Price Recommendation (EN) sets out the rules for communication of price and price-related 'remarks' (e.g. conditions, limitations etc.). These rules will apply in DPM; see article 2/1.2.6

 

 

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International

 

Applicable Self-Regulation and legislation 

 

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

 

 

Standard rules

 

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

 

 

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

 

 

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Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

 

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

 
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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

  • Associated promotional material should observe the rules set out in our Content Section B, together with the Content rules shown under the General tab in Section B
  • The Channel/ placement rules that apply to all product categories and audiences also pertain; see the General tab below 
  • Advertisers from child-sensitive sectors such as Gambling and Alcohol will need to avoid events where there is or might be a significant proportion of children (guidance from most authorities is 25% or more of the audience)
  • The general sponsorship rules, i.e. those that apply to all categories, can be found under Chapter B of the ICC Advertising and Marketing Communications Code; rules are spelt out under the General tab below or in the linked document

 

 

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General

 

Organisation and commercialisation of sports events in France. Joffe & Associés/ Lex September 2021

 

  • Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the General Advertising Rules (EN) from the ICC/ ARPP
  • Legislation from e.g. the Consumer Code (EN key clauses), which largely addresses misleading and aggressive commercial practices derived from the Unfair Commercial Practices Directive 2005/29/EC, also applies to marketing material in Event Sponsorship and Field Marketing; see Content Section B or the linked file 
  • The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from the ICC Code linked above. For scope, definitions etc., see Chapter B of the linked Code. Main clauses follow below

 

 

 B1. Principles governing sponsorship

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

B2. Autonomy and self-determination

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

B3. Imitation and confusion

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

B4.  Ambushing of sponsored properties

 
  • No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public
 
 

B5.  Respect for the sponsorship property and the sponsor

 

  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position 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

 
  • If personal data is used in connection with sponsorship, the provisions of article 19 are applicable
 
 

 B8.  Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects

  • Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

 

 

B9.  Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship

  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)

  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications

 

 

 B10.  Charities and humanitarian sponsorship

 

  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected

 

 

B11. Multiple Sponsorship

 

  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors

  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship

  • The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors

 

 

B12.  Media sponsorship

 

  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier

  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material

  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

 

B13. Responsibility

 

  • As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content

  • Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

 

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

 

 

 

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International

 

 

 

Self-Regulation

 

 

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

B3: Imitation and confusion

 

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

 

 

 B4: 'Ambushing' of sponsored properties

 

  • No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage
  • The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

 

 

B5: Respect for the sponsorship property and the sponsor

 

  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position that might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
  • The sponsored party should not obscure, deform or bring into disrepute the image or trade- marks of the sponsor, or jeopardise the goodwill or public esteem associated with them

 

 

B6: The sponsorship audience

 

  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

 

 

B7: Data capture/ data sharing

 

  • If an individual’s data are used in connection with sponsorship, the provisions of article 19  are applicable

 

 

B8: Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

 

 

B9: Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship.
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications

 

 

B10: Charities and humanitarian sponsorship

 

 

  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected

 

 

B11: Multiple sponsorship

 

  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity
  • In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship. The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal

 

 

STANDARD RULES 

 

  • Promotional material should observe the Content rules - both the Sector rules and the General rules - set out in Content Section B
  • The Channel rules that apply to all product categories and audiences also apply; see the General tab below. These include some significant statutory requirements in pricing, for example  
  • There are no rules exclusive to Children in a specific SP context; however, some general children’s rules are particularly relevant. These are shown immediately below

 

 
The ARPP Children’s Code. SP-relevant extracts

 

  • Advertising directed at children must not provoke an impulse to buy urgently or suggest that this purchase is essential
  • 7.3 The advertising must not imply that the product shown is within the range of all family budgets or minimise its price by the use of such terms as “only”, “just”, etc.
  • 7.4 The advertising message must not include references that directly encourage children to persuade their parents to buy the product or service for them
  • 8/1 When the message appeals directly to children (by telephone or any other interactive means) and encourages some form of spending (for example, by promoting a premium rate number), it must also encourage the children to seek the permission of their parents

 

 

Legislation in TV and Radio; specific to minors

 

  • Advertising must not cause moral or physical detriment to minors. To this end, it must not:
     
  1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity
  2. Directly encourage minors to persuade their parents or others to purchase the goods or services*
  3. Exploit or alter the special trust minors place in parents, teachers or other persons
  4. Without justification show minors in dangerous situations
     

(Art. 7, Decree 92-280)

* This rule is mirrored in the Consumer Code article L121-7 (5), and therefore applies to all media

 

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal. Some general rules for Sales Promotions in France, i.e. those that apply to all sectors, can be found below. These are sourced from the Consumer Code law (key extracts below), and the General Advertising Rules from ARPP/ ICC that applies in France. The specific ICC Sales Promotion rules are Chapter A of the Code. Key extracts below under Self-Regulation. Finally, SP material should also observe the Content rules set out in Section B

 

LEGISLATION

 

From the Consumer Code (EN key clauses inc. 2022 amends)

See Guide to sales operations with bonuses/ premiums (FR) from Haas Avocats August 2022

 

From Article L121-4. Considered a misleading commercial practice is:

 

  • 5. To offer to sell products or provide services at a specified price without disclosing the existence of reasonable grounds that 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 services or equivalent products or services at that price for a period that is and in quantities that are, reasonable given the product or service, and the scale of advertising of the product or service and the proposed price;
  • 6. To offer to sell the products or provide the services at an indicated price and then:

 

a) Refuse to present the advertised item to consumers;

b) Or refuse to take orders concerning these products or services or deliver or supply them within a reasonable time frame

c) Or present a flawed sample of a product or service with a view to promoting an alternative product or service

 

  • 7. To falsely state that a product or service will only be available for a very limited period of time and will only be available under special conditions for a very limited period of time in order to secure an immediate decision and deprive consumers of the opportunity of having sufficient time to make a soundly based decision

 

 

Offers made by electronic means

 

Also from the Consumer Code (EN key clauses)

 

  • Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message (Art. L122-8)
  • These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued
  • The conditions applying to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)
  • Articles L. 122-8 and L. 122-9 also apply to advertising, offers, competitions or games sent to professionals (i.e. B2B)

 

Article L112-1-1 effective May 28, 2022 represents the transposition of promotional pricing rules from Directive 2019/2161, itself amending the Product Price Directive 98/6/EC. Clauses in English, applicable to 'any announcement' are:

 

  • I. Any announcement of a price reduction shall indicate the previous price charged by the trader before the application of the price reduction. 
    This previous price corresponds to the lowest price applied by the trader to all consumers during the last thirty days preceding the application of the price reduction.
    As an exception to the second paragraph, in the event of successive price reductions during a determined period, the previous price is that applied before the application of the first price reduction.
    Clause I does not apply to price reduction announcements relating to perishable products liable to rapid deterioration.
  • II. These provisions do not apply to activities where a trader compares the prices he/ she presents with those of other traders.
 

 

SELF-REGULATION

 

From the ICC Advertising and Marketing Communications Code, Chapter A

 

Article 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

 

Article A4. Administration of promotions 

 

  • Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers' reasonable expectations.

In particular:

  • The availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. If delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made
  • Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request
  • Complaints should be efficiently and properly handled

 

Article A5. Safety and suitability 

 

  • Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
  • Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

 

Article A6. Presentation to consumers

 

  • Complex rules should be avoided
  • Rules should be drawn up in language that consumers can easily understand
  • The chances of winning prizes should not be overstated

 

 

Information requirements 

 

  • Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase

 

Information should include, where relevant:

 

  • clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • main characteristics of the promotional items offered
  • any time limit on taking advantage of the promotional offer
  • any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. In the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • the value of any voucher or stamp offered where a monetary alternative is available
  • any expenditure involved, including costs of shipping and handling and terms of payment
  • the full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
  • Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause

 

Information in prize promotions 

 

Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:

 

  • any rules governing eligibility to participate in the prize promotion
  • any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
  • any restriction on the number of entries
  • the number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
  • in the case of a skill contest, the nature of the contest and the criteria for judging the entries
  • the selection procedure for the award of prizes
  • the closing date of the competition
  • when and how the results will be made available
  • whether the consumer may be liable to pay tax as a result of winning a prize
  • the time period during which prizes may be collected
  • where a jury is involved, the composition of the jury
  • any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

 

 

PRICING

 

The ARPP’s Price Recommendation may be relevant in a sales promotional context. In English (ARPP translation):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/

 

 

 

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International

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price 
of the main product

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations

 

In particular:

 

  • the availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. if delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made;
  • defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request;
  • complaints should be efficiently and properly handled

 

 

A5: Safety and suitability

 

  • Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
  • Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

 

 

A6: Presentation to consumers

 

  • Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated

 

 

Information requirements

 

Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:

 

  • Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • Main characteristics of the promotional items offered
  • Any time limit on taking advantage of the promotional offer
  • Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. in the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • The value of any voucher or stamp offered where a monetary alternative is available
  • Any expenditure involved, including costs of shipping and handling and terms of payment
  • The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)

 

Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.

 

 

Information in prize promotions

 

Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:

 

  • Any rules governing eligibility to participate in the prize promotion
  • Any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
  • Any restriction on the number of entries
  • The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
  • In the case of a skill contest, the nature of the contest and the criteria for judging the entries
  • The selection procedure for the award of prizes
  • The closing date of the competition
  • When and how the results will be made available;
  • Whether the consumer may be liable to pay tax as a result of winning a prize
  • The time period during which prizes may be collected
  • Where a jury is involved, the composition of the jury
  • Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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D. Advice & Clearance

General

SECTION D: SRO SERVICES

 

 

COPY ADVICE

 

  • ARPP (Autorité de Régulation Professionnelle de la Publicité, the French advertising Self-Regulatory Organisation) provides non-binding advice free of charge across all media i.e. television, press, radio, outdoor, Internet, etc., and within 48 hours for its members. This service is not available to non-members of the ARPP. More information can be found here
  • Any advertiser, advertising agency or media company can submit its non-finalised project to the legal experts of ARPP provided they are a member. The project can take various forms: storyboard, script, poster or half-finalised film etc. and all types of media can be reviewed: TV, press, radio, public boards, internet. Copy advice requests and the enclosures must be sent through the online submission system ARPP.PRO

 

 

CLEARANCE

 

 

All television advertising needs to be pre-cleared by the ARPP. The procedure is as follows:

 

  • Each advertisement must be sent to the ARPP via the dedicated website:
    http://www.arpp-pub.org/ARPP-PRO,931.html
  • Identification form: the advertisement must be accompanied by an identification form, fully completed and paid for. ARPP members benefit from a preferential rate. This document is the identity card of the advertisement and includes the name of the advertiser, of the product, the title of the spot, its length, its nature (original creation, new version or declination of the spot already broadcast), the date of its first broadcasting…. An identification number will be given to the advertisement. That number will be used throughout the ad’s existence and will help its identification and research by the different archiving organisations (INA …). Link to purchase forms

 

A preferential rate of 38 euros* per advertisement is available to ARPP members, whereas non-members pay 207 euros. The pre-clearance process takes a maximum of 48 hours. Copy advice requests and the enclosures must be sent through the new online submission system ARPP.PRO. More information can be found here (FR) or here (EN). * These fees are probably out of date 

 

 

 

CLEARANCE SPECIFICS

 

5-10 clear working days for TV/VOD/Online/Sponsorship (incurs fees)

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

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

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

 

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

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E SOURCES

 

 

EUROPEAN LEGISLATION

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 2018.

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en

Articles relating to Children are Nos. 8 and 12, and Recitals 38 and 58. These have been assembled here:

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

 

 

European Data Protection Authority

Article 29 Working Party/ EDPB





The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom.

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

 

 

EU Framework of law for children’s rights:

http://www.europarl.europa.eu/RegData/etudes/note/join/2012/462445/IPOL-LIBE_NT(2012)462445_EN.pdf

 

UN Convention on the Rights of the Child

http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

Art 161. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation

 

 

UCPD

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 The ‘Unfair Commercial Practices Directive’, known as the UCPD. This is the core consumer protection legislation from the EU, transposed in all member states, and in France placed in the Consumer Code (see entry below). Provisions address misleading commercial practices and include a number on commercial communications. Key is Annex I which lists a number of practices that are “in all circumstances considered unfair.” No. 28 prohibits in advertising a direct exhortation to children to buy advertised products or persuade their parents or other adults to do so for them:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF

 

 

AVMSD
 
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 (Audiovisual Media Services Directive). Article 9: audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.

 

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

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

 

 

NATIONAL LEGISLATION

 

Not all of these entries are children-specific, but most or all will apply to children along with general audiences, or contain clauses that address children’s marcoms. Other more general entries can be found under the General tab below  

 

Consumer protection

 

Consumer Code (Code de la Consommation). The Consumer Code transposes the Unfair Commercial Practices Directive 2005/29/EC of 11 May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy, and subsequent re-structuring by the Order 2016-3021 of March 14 2016. Articles L121-2 to L121-5 address misleading commercial practices; aggressive commercial practices related to marcoms are dealt with in articles L121-6 and L121-7. Comparative advertising rules can now be found in articles L122-1 to L122-6. Clause 5 of article L121-7 sets out the prohibition of “incitement / exhortation of children directly to purchase or persuade their parents or other adults to buy the product being advertised”:

https://.www.legifrance.gouv.fr/affichCode.do?idArticle=LEGIARTI000032227301&idSecti onTA=LEGISCTA000032227303&cidTexte=LEGITEXT000006069565&dateTexte=20161004

An English translation of the most relevant articles of the Consumer Code is below; this reflects the amends and re-structuring from the 2016 ordinance:

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

 

 

Privacy legislation

 

Act No. 78-17 of 6 January 1978. Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés. Known as the French Data Protection and Freedoms Act (FDPFA). The 1978 act is the core and principal data protection statute in France and established the CNIL (Commission Nationale de l’Informatique et des Libertés, the Data Protection Authority; see below). An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here:

http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf

 

The consolidated version of the Act, including the amends from Law 2016-1321 of 7 October 2016 (see below), which is in part the ‘vehicle’ that recognises the GDPR, is linked below. Article 7 (1) In accordance with Regulation 2016/679 (GDPR) article 8, and established by national Law 2018-493 permits a minor to consent to the processing of personal data regarding a direct offer of information society services from the age of fifteen. When the minor is under fifteen, the treatment is lawful only if consent is given jointly by the minor and his/ her parent/ guardian. The Data controller is required to write ‘in clear and simple terms’, easily understandable by the minor, about the information related to the processing that concerns him/ her.

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000886460 (FR)

The FDPFA is also amended by the Digital Republic Act No. 2016-1321 of 7 October 2016, in particular articles 54-58. As they are not specific to children, these are set out in the entry for the Act under the General tab below.

https://www.legifrance.gouv.fr/eli/loi/2016/10/7/ECFI1524250L/jo

 

 

Mail and Electronic Communications Code, Article L34-5 (Code des postes et des communications électroniques): this Code is a cornerstone for the regulation of electronic communications in France; the specific article L34-5 implements the 2002 EU Directive Privacy in e-communications 2002/58/EC, banning unsolicited commercial communications to fax, telephone or e-mails without a consumer’s prior consent:

http://www.legifrance.gouv.fr/affichCode.do;jsessionid=4AD8C529F2AAAB8CFE6055DF3AD6FD8C.tpdjo08v_1?idSectionTA=LEGISCTA000006165910&cidTexte=LEGITEXT000006070987&dateTexte=20130417

An English translation of article L34-5 is here:

http://www.g-regs.com/downloads/FRMail_E-CommsL34-5.pdf

 

 

Cookies

 

France implemented the EU Cookies Directive 2009/136/EC, which amended the E-Privacy Directive 2002/58/EC by Order No. 2011-1012, of 24 August 2011 on electronic communications. This Order amended the Consumer Code, the Penal Code, the Postal and Electronic Communications Code and the Data Protection Act. Relevant specific provision re Cookies is article 37 (found in Chapter III: Changes to Law No. 78-17 of 6 January 1978 relating to Information Technology, Data Files, and Civil Liberties – DPA - and to Penal Code) amends Article 32II of the French DPA:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&dateTexte=20170121

 

 

Broadcast/ AV

 

Decree No. 92-280 on advertising, sponsorship and tele-shopping (amended 2011). This decree implements the rules from the Audiovisual Media Services Directive (AVMSD), updating the Television Without Frontiers Directive on advertising, sponsorship and tele-shopping. Article 7 requires: Advertising must not cause moral or physical detriment to minors. To this end, it must not: 1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity 2. Directly encourage minors to persuade their parents or others to purchase the goods or services 3. Exploit or alter the special trust minors place in parents, teachers or other persons 4. Without justification show minors in dangerous situations.

http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FD29AF8EAFEEAF0078720A084AB27E51.tpdjo10v_3?cidTexte=LEGITEXT000006078905&dateTexte=20120727

An English translation of the relevant clauses is here:

http://www.g-regs.com/downloads/FRDec92-280AdvSponsB.pdf

 

 

Product placement

From the CSA:  Conseil Supérieur de l’audiovisuel

 

Deliberation 2010-4 of February 16, 2010 relating to the placement of product in the programs of the television services, amended by Deliberation 2012-35 of July 24, 2012. Article IV provides: Product placement is permitted in cinematographic works, audiovisual fiction and music videos, except when they are intended for children. It is forbidden in other programmes.

https://www.csa.fr/Arbitrer/Espace-juridique/Les-textes-reglementaires-du-CSA/Les-deliberations-et-recommandations-du-CSA/Recommandations-et-deliberations-du-CSA-relatives-a-d-autres-sujets/Deliberation-du-16-fevrier-2010-relative-au-placement-de-produit-dans-les-programmes-des-services-de-television-modifiee-par-la-Deliberation-du-24-juillet-2012

 

Law No. 2016-1771 of December 20, 2016 introduced an amend to the Léotard Law which prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12  and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV.

http://www.legifrance.gouv.fr/eli/loi/2016/12/20/MCCX1526288L/jo/texte (FR)

 

 

 

INDUSTRY CODES
ARPP

 

 

 

The advertising regulator in France is the ARPP, Autorité de Régulation Professionnelle de la Publicité: http://www.arpp.org/. Their Advertising Code is effectively the International Chamber of Commerce (ICC) Advertising and Marketing Communications Code, adopted in its entirety in France as the general code. Articles 18 (General principles, Credulity, Safety, and Social Values), 19.4 (Children’s data) and C7 from Chapter C Direct Marketing and Digital Marketing Communications all address children specifically. The French version of the ICC Code is here:

https://iccwbo.org/content/uploads/sites/3/2018/12/icc-publicite-et-marketing-code-de-communications.pdf

and the English version here:

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

 

 

Children’s code

 

2004 ARPP Children Recommendation. This Code applies to all marcoms disseminated in France, whatever their form, and involves marcoms that portray children and that are aimed at them. Rules are under Transparency, Social Responsibility, Decency, Violence, Safety, Integrity, The Young Consumer, Games and Videos, and Interactive Media. The Code is in French here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/

The ARPP English version is here:

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/

Video (EN sub-titles):

https://youtu.be/KLcmmD6Vgmw

 

Toys

 

The ARPP Toys Advertising Code. This code covers all elements in Toys commercial communications and includes aspects such as the treatment of size, safety precautions, description of the product, price communication, results from painting, building etc.

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/jouets/

ARPP English version is here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/toys-code/

 

Safety

 

ARPP Safety Code. From the Introduction: “Advertising in any form whatsoever shall not affect the safety of people and property and must therefore respect the following rules of conduct: Unless justifiable on educational or social grounds, advertising should not include any visual presentation or any description of dangerous practices or of situations where safety and health are not respected (Article 17 of the ICC Code). Particular caution applies to advertising using children or adolescents, or addressing them.” Section 2 of the Safety Code covers children specifically: “Particular attention must be given to scenes portraying children or advertisements targeting children. The presence of a supervising adult can reduce the potentially dangerous nature of a presented situation.”

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/securite/ (FR)

The ARPP English version is here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/safety-code-dangerous-behaviours-and-situations/

 

 

Food behaviours

 

‘”Aware that they could contribute to prevent unbalanced diets and bad eating habits, the advertising industry decided to promote well-balanced diets and healthy physical activities, especially in adverts aimed at youngsters. These rules apply to all adverts representing a food behavior, no matter the persons represented, and no matter the audience. They concern all advertising sectors.”

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/comportements-alimentaires/ (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/food-behaviors-code/ (EN)

 

 

Digital

 

The Online channel in various commercial forms is covered by ARPP’s Digital Advertising and Marketing Communications Code (Communication Publicitaire Numérique). The Code covers techniques/ formats online such as Brand content, Sponsored links, Native advertising, OBA and some ‘Influencer’ rules. The code was amended in late 2021; new version in force January 1, 2022. A December 2021 press release setting out the changes is here in English. 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/ (FR)

In English (this is an unofficial and non-binding GRS translation):

http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf

 

UFMD

 

2012 E-mailing Charter. From the French Direct Marketing Association UFMD (Union Francaise du Marketing Direct et Digital). Articles 26 and 27 address children’s data.

http://www.ufmd.org/downloads/

Our translation is here:

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

 

UFMD also initiated the Targeted Advertising and Internet Users Protection Code, signed off by nine other associations. Recommendation 6.2 is that in OBA operators do not create a category corresponding to the behaviors and interests of Internet users of 13 or under, and that applicable content rules such as those from the ICC and the ARPP Children’s code are observed.

http://www.ufmd.org/downloads/Documents-de-reference_t13740.html

 

 

National and European Toy Industry

 

 

The principal French Toy Trade Association is the Fédération Française Des Industries Jouet Puériculture:

http://www.fjp.fr/

 

FJP is an active member of the International Federation ICTI, International Council of Toy Industries, who publish “Guiding Principles for Advertising & Marketing Communication to Children”. Below are those ‘rules’ that do not duplicate existing requirements from authorities:

 

  • Pricing, if indicated, must be accurate and clear to those parents and children to whom the advertising is directed
  • Competitors must be portrayed fairly
  • Any qualifying statements must be clear to those parents and children to whom they are directed
  • Popular personalities should be used appropriately
  • Premiums should be used and presented responsibly. There should be no sales pressure
  • Children’s privacy must be protected absolutely
  • Online advertising must indicate a clear, prominent and comprehensive privacy policy for websites or on-line services directed to children.

 

TIE: Toy Industries of Europe

 

From their website: “TIE is the trade association for the European toy industry. TIE provides a unique source of information both for and on the toy industry in Europe.  Founded in 1991, TIE has been working at the heart of Europe for more than two decades. At present, membership includes fourteen direct member companies and most national toy associations, representing approximately 80% of European toy sales. With over €16 billion in annual sales in Europe, the toy industry is robust, fast-paced and highly competitive. It is also one of the most dynamic business sectors in Europe with 60% of toys representing new products on the market each year.”

www.tietoy.org

Their self-regulatory Code from 2001 is here:

http://www.g-regs.com/downloads/EUTIE2001selfregchildrensadvertising.pdf

 

 

International

 

ICC

 

The full set of ICC Codes is set out under the General tab below, and the main code is shown under the ARPP entries. Those immediately below are more relevant to Children

https://cdn.iccwbo.org/content/uploads/sites/3/2012/09/Framework-for-Responsible-Food-and-Beverage-Marketing-Communications-2012.pdf

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

 

‘ICC’s rich history of support for freedom of commercial communications, responsible marketing communications, and guidance on responsible marketing to children and teens is reflected a variety of useful reference documents. This Toolkit incorporates relevant ICC materials demonstrating the global advertising industry’s commitment to strong, effective self-regulation of marketing and advertising communications to strengthen confidence in markets and help power economic growth’:

https://cdn.iccwbo.org/content/uploads/sites/3/2017/10/ICC-Toolkit-Marketing-and-Advertising-to-Children-2017.pdf

 

 

The International Chamber of Commerce (ICC) has issued a Statement on Code Interpretation to clarify the age of “children” (12 and younger) and the age of “young people,” also referred to here by the more common terms “teenagers” or “teens,” for purposes of the ICC Code. This reference guide reflects the almost 100 years of child development research and sources supporting that interpretation.

https://iccwbo.org/content/uploads/sites/3/2017/01/Reference-Guide-on-Advertising-to-Children-Statement-on-Code-Interpretat....pdf

 

 

 

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Read more

General

SECTION E: LINKS/ SOURCES

 
EUROPEAN LEGISLATION

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 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. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

 

 

European Data Protection Authority

Article 29 Working Party/ EDPB





The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

 

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
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 2022. Transposition in France is primarily, for our purposes, by Ordinance No. 2021-1734 of December 22, 2021, shown below under national legislation.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Pricing

 

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

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

 

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. 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

 

 

E-privacy Regulation draft (10 February 2021)

 

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

 

 

NATIONAL LEGISLATION

 

Toubon

 

1994 Toubon Law on the use of French language (Loi Toubon)articles 1 and 2This law imposes the use of the French language in work, public administration, instructions for use of products, commercial offers and guarantees, and in advertising. Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product:

http://www.dglf.culture.gouv.fr/droit/loi-gb.htm  (in English!)

 

Consumer protection

 

Consumer Code (Code de la Consommation). The Consumer Code carries the Unfair Commercial Practices Directive 2005/29/EC of 11 May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy. Articles L121-1 to L121-5 of the Code cover misleading commercial practices; L121-3 sets out the specific rules for commercial communications making ‘an invitation to purchase.’ Articles L122-1 to L122-6 set out comparative advertising rules. Requirements for promotions in electronic communications are found under L122-8 to L122-10. Some pricing rules are under L112-1 to L112-4. Act No. 2014-344 of 17 March 2014 transposed EU Directive 2011/83/EU into the Consumer Code; the Directive largely addresses distance selling and off-premise contracts, rights of redress etc. Ordinance 2021-1734 (FR; see below) is the vehicle that transposes various marketing-related rules from Directive 2019/2161 which itself inter alia amends Directives 98/6/EC, the Product Pricing Directive and the UCPD 2005/29/EC. Clauses affect e-Commerce information requirements related to consumer reviews and search rankings (article L121-3) and, separately, promotional pricing rules which are shown under article L112-1-1. The version of the Consumer Code applicable from May 28, 2022 is here:

https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006069565/LEGISCTA000032220945/#LEGISCTA000041598964 (FR)

An unofficial and non-binding translation of most of the articles relevant to this database, including those effective May 28, 2022, is here:

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

                                                                                                

 

Ordinance No. 2021-1734 of December 22, 2021 transposing Directive 2019/2161 of the European Parliament and of the Council of November 27, 2019 as regards to better enforcement and modernisation of EU consumer protection rules. Ordonnance n° 2021-1734 du 22 décembre 2021 transposant la directive 2019/2161 du Parlement européen et du Conseil du 27 novembre 2019 et relative à une meilleure application et une modernisation des règles de l'Union en matière de protection des consommateurs. In this context, amends the Consumer Code; the product pricing amends are under Section 2 of the ordinance and Section 3 carries consumer review and search ranking information requirements as well as the addition under misleading actions: 'When an item is presented as being identical to an item marketed in one or more other Member States, even though it has a different composition or characteristics”. The latter amends are to article L121-2 of the Consumer Code. Provisions are in force May 28, 2022.

https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044546235 (FR)

 

The 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021; art 10) established specific reference to environmental impact under article L121-2 of the Consumer Code, which covers how a product or service's 'essential characteristics' must not mislead. 

https://www.legifrance.gouv.fr/eli/loi/2021/8/22/TREX2100379L/jo/texte

 

Consumer authority

 

The Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) is the public body that enforces the Consumer Code: 

https://www.economie.gouv.fr/dgccrf

 

Sustainability 

 

The Environmental Code

 

The Climate and Resilience Law (FR) introduced via Decree 2022-539 of April 13, 2022 on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code which requires that claims such as 'carbon neutral' and equivalent are permitted only if 'the advertiser makes readily available to the public the following: 1. A greenhouse gas emissions assessment report that incorporates the direct and indirect emissions of the relevant product or service; 2. The process by which the greenhouse gas emissions of the relevant product or service are first avoided, then reduced and finally offset. The greenhouse gas emissions reduction trajectory is described using quantified annual progress targets; 3. The methods for offsetting residual greenhouse gas emissions that comply with minimum standards defined by decree.' 

Decree No. 2022-539 of April 13, 2022 on carbon offsetting and claims of carbon neutrality in advertising

https://www.legifrance.gouv.fr/eli/decret/2022/4/13/TRER2209794D/jo/texte

Section 9 Environmental Code:

https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006074220/LEGISCTA000043960254/#LEGISCTA000043960254

The clauses concerned are in English here (translation borrowed from Soulier Avocats/ Mondaq May 2022)

https://www.g-regs.com/downloads/FREnvCodeMay2022EN.pdf

 

 

Privacy legislation and regulator’s guidance

 

Data processing

 

Act No. 78-17 of 6 January 1978. Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés. Formally, the 1978 Information Technology, Data Files and Civil Liberties Act, known as the French Data Protection and Freedoms Act (FDPFA)The 1978 act is the core and principal national data protection statute (pace GDPR) in France and established the CNIL (Commission Nationale de l’Informatique et des Libertés, the Data Protection Authority; see below). An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here:

http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf

The consolidated version of the Act, including the amends from Law 2018-493 on Personal Data Protection (FR) and Ordinance 2108-1125 of December 12, 2018, which is the ‘vehicle’ that recognises GDPR, is in French here:

https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee
There have been many amendments to the DPA over the years; significant in this context is Ordinance No. 2011-1012 of 24 August 2011 on electronic communications, which set out cookie provisions from Directive 2009/136/EC. See below. The Ordinance is in French here:   

http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id

 

Cookies/ data protection

 

France implemented the EU Cookies Directive 2009/136/EC, which amended the E-Privacy Directive 2002/58/EC, by Order/decree No. 2011-1012, of 24 August 2011 on electronic communications (see above). This amends the Consumer Code, and the Postal and Electronic Communications Code as well as the Data Protection Act. Relevant specific provisions re Cookies: article 37 of the Ordinance found in Chapter III Changes to Law No. 78-17 of 6th January 1978; amends Article 32II of the FDPFA to provide the rules for information and consent, together with some exemptions:

http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id

An English translation of the DPA (including the Ordinance update) is here:
http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf

The version of the DPA that includes amends from Law 2018-493 on Personal Data Protection, which is the ‘vehicle’ that recognises GDPR, is here (in French):

https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee

 

Electronic communications

 

Mail & Electronic Communications Code, Article L34-5 (Code des postes et des communications électroniques): This Code is a cornerstone for the regulation of commercial electronic communications; the specific article L34-5 implements the E-Privacy Directive 2002/58/EC and concerns unsolicited commercial communications by fax, telephone or e-mail, which are subject to ‘freely given, specific and informed’ consent, unless direct marketing concerns related goods/ services to an existing customer whose data has been correctly obtained at the time of the sale, and who is given a simple and no-cost opportunity to opt out to the use of his/ her personal data. Consolidated version in force Feb 2019:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070987&dateTexte=20190213

Translation of article L34-5: 

http://www.g-regs.com/downloads/FRMail_E-CommsL34-5.pdf

 

E-commerce and privacy

 

Act No. 2004-575; the Law of 21 June 2004 on Confidence in the digital economy, ‘LECN’ (Loi pour la Confiance dans l'économie numérique). The law inter alia implemented article 13 (unsolicited communications) of the E-Privacy Directive 2002/58/ECnow codified under Article L.34-5 of the Mail and Electronic Communications Code (see above). LECN also part-implemented the E-Commerce Directive 2000/31/EC on certain legal aspects of information society services. LECN articles 19 and 20 address the information and Identification requirements in e-commerce communications. Provisions from this Directive are also found in the Consumer Code (EN) which covers promotional offers/ games and their conditions, from Article 6 of the Directive, under articles L122-8 and L122-9. Consolidated version of the LECN is here: 

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801164
 

Personal Data Authority

 

The CNIL (Commission Nationale de l’Informatique et des Libertés) National Commission for Data Protection: from its website is ‘an independent administrative body that operates in accordance with the data protection legislation of 6th January 1978 as amended on 6th August 2004’. Its role is to ‘protect privacy and freedoms in the digital world, to inform, advise & sanction, having the power to impose significant fines on data controllers who breach the law’:

https://www.cnil.fr/en/home

‘Cookies and Other Trackers’ (EN) ‘The purpose of this document is to describe the practical modalities for obtaining consent in accordance with the applicable rules, to propose concrete examples of user interface, and to present best practices that go beyond the legal requirements.’ See also Cookies and other tracking devices: the Council of State issues its decision on the CNIL guidelines 29 June 2020

The CNIL GDPR: September 2017 Guide for processors is here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

And their 2018 Guide ‘Security of Personal Data’ is here, also in English:
https://www.cnil.fr/sites/default/files/atoms/files/cnil_guide_securite_personnelle_gb_web.pdf

2021 Annual Report:

https://www.cnil.fr/sites/default/files/atoms/files/cnil_-_42e_rapport_annuel_-_2021.pdf

 

 

National Channel legislation and regulation

 

Decree No. 92-280 on advertising, sponsorship and tele shopping (amended 2011). Articles 18-20 for Sponsorship, 21+ for tele-shopping. This decree contains a number of general advertising content provisions and implements the rules from the AVMS Directive  2010/13/EU updating the Television Without Frontiers Directive on advertising, sponsorship and tele-shopping. A 2017 amendment from Decree No. 2017-193 of February 15, 2017 (FR) amended article 18 on the programme sponsorship regime to be more in line with the AVMS Directive; amendment effective January 2018. Decree 92-280 is here:

http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FD29AF8EAFEEAF0078720A084AB27E51.tpdjo10v_3?cidTexte=LEGITEXT000006078905&dateTexte=20120727 (FR)

An English translation of the relevant clauses is here:

http://www.g-regs.com/downloads/FRDec92-280AdvSponsC.pdf

 

Product placement


Decision No. 2012-35 of 24 July 2012, by the French Audiovisual Authority CSA on product placement. Implements Directive 2007/65/EC of the European Parliament and of the Council of 11th December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions concerning the pursuit of broadcasting activities; article 3g of the Directive addresses product placement. The CSA decision is here:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021920619

 

Radio sponsorship

 

Consolidated version of Decree 87-239 of 6th April 1987, updated 1989, on rules for private radio stations on advertising and sponsorship (Décret 87-239 du 6 avril 1987, mis à jour en 1989, sur les règles dans les radios privées sur la publicité et le parrainage) Article 9 of this Decree allows sponsorship on private radio stations:

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000882734 
English translation of the key clauses is here:

http://g-regs.com/downloads/FRPrivateRadioSponsB.pdf

 

Advertising to children/ young people

 

LAW No. 2016-1771 of December 20, 2016 (FR) LOI No. 2016-1771 du 20 décembre 2016 relative à la suppression de la publicité commerciale dans les programmes jeunesse de la télévision publique introduced an amend to the Léotard Law; the amend  prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12  and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV: The Léotard law, version from January 2018, article 53:

https://www.legifrance.gouv.fr/affichTexteArticle.do;jsessionid=3CA8F29980E9B092E202044635B7726C.tplgfr27s_1?idArticle=LEGIARTI000033662943&cidTexte=JORFTEXT000000512205&categorieLien=id&dateTexte=20180101

 

 

AVMS Directive amends implemented

 

The same Léotard law as linked above was amended by Ordinance 2020-1642 (FR) to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive. Chapter II articles 59 to 61 of the Léotard law carry the special provisions applicable to video-sharing platforms, inter alia bringing these platforms into the scope of rules for audiovisual commercial communications and requiring that users are informed of commercial communications within posts. Additionally and significantly, article 14 transposes the requirements of article 4a of the AVMS Directive (shown here) relating to HFSS food advertising and requiring that the CSA ‘develop recommendations for improving the self-regulation of the advertising sector.’

https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000512205/2021-03-11/

 

‘Addressable’ TV advertising

 

Decree 2020-983 of 5th August 2020 with amends to the television advertising regime (Décret n° 2020-983 du 5 août 2020 portant modification du régime de publicité télévisée). Entered into force 7th August. This decree addresses the audiovisual advertising framework and its relationship with online competition by allowing ‘conventional’ broadcast advertising, subject to conditions, to deliver targeted advertising messages according to geographical or behavioural profile. The decree also relaxes the prohibition of cinema advertising. Helpful blog on the act from Taylor Wesssing here 
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042211231

 

Regulatory authority 

 

ARCOM from January 2022

 

The CSA is the Conseil Supérieur de l’Audiovisuel. Established under article 4 of Loi No. 86-1067 du 30 septembre 1986 relative à la liberté de communication (Loi Léotard), their 'three essential missions' are to inform, protect, and regulate. From their website: Many texts relating to audiovisual law are regulatory in nature and constitute implementing decrees in particular for the law of September 30,1986. Whole sections of radio, television and SMAD (on demand) services and, consequently, of CSA monitoring are governed by regulatory provisions. This is the case, for example, with most of the advertising and sponsorship requirements or those relating to the distribution and production of audiovisual and cinematographic works.' The CSA merges with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022 via Law no. 2021-1382 of 25 October 2021 relating to regulation and protection of access to cultural works in the digital age. CSA Advertising-related texts can be found at this link:

https://www.csa.fr/Reguler/Espace-juridique/Les-textes-de-references/Decrets-et-arretes/Decrets-et-arretes-relatifs-a-la-publicite

 

 

Model shots

 

Article L2133-2 of the PHC addresses retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. Consolidated version of the PHC as at March 2019:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006072665&dateTexte=29990101&categorieLien=cid

 

Decree No. 2017-738 of May 4, 2017 relating to commercial photographs of models whose body appearance has been modified. Per above reference under the PHC, the Decree identifies the types of communication covered by this requirement and defines the terms and conditions for the presentation of the term ‘retouched photograph’ (photographie retouchée) and specifies responsibilities.

https://www.legifrance.gouv.fr/eli/decret/2017/5/4/AFSP1703011D/jo/texte

 

 

SELF-REGULATION

 

ARPP/ Industry codes

 

ARPP is the advertising Self-Regulatory Organisation (SRO) Autorité de Régulation Professionnelle de la Publicité. From their website: ‘The ARPP recommendations constitute the ethical framework for advertising in France. They are based on the ICC Advertising and Marketing Communications Code (ICC Code), and reinforced, according to their themes, by charters of commitments signed by representatives of the business community, ARPP and public authorities. Their development brings together, through the associated bodies of the ARPP, all the representatives of both society and business.’ The ARPP General Advertising Code (FR) is taken directly from the ICC Code, which underpins much of advertising Self-Regulation worldwide. The English version of the Code is here. All the ARPP Codes are shown in French in the ARPP Guidance document here:

https://www.arpp.org/code-arpp/

The Jury de Déontologie Publicitaire JDP is attached to the ARPP but acts as an independent authority, handling complaints concerning advertising: Opinions/ rulings of the JDP here:

http://www.jdp-pub.org/avis/

The ARPP publish a number of specific codes or 'Recommendations' (see first para) on various topics. Some of the most significant are shown below:

 

Price

 

ARPP Recommendation on Price Advertising 2017 (Recommandation publicité de prix). Based on the principles of the ICC Advertising and Marketing Communications Code, this Recommendation sets out by channel the rules for communicating prices and their qualifications/ limitations:

https://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Publicit%C3%A9-de-prix-ARPP.pdf

An ARPP English translation is here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/

 

Sustainability

 

ARPP Recommendations on Sustainable Development (ARPP Recommandation Développement Durable, en vigueur depuis 1er août 2020) :

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/

The ARPP English version, only slightly easier to understand, is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/

Video here (EN sub-titles): 

https://www.arpp.org/actualite/recommandation-arpp-developpement-durable-v3-disponible-en-motion-design/

 

 

Portrayal of people

 

The ARPP introduced in July 2016 an update of ‘Portrayal and Respect of Human Beings’:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/ (EN)

The Code or ‘Recommendation’, introduced in 2016 and based on the ICC Code, covers such aspects as Dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B, or click above. In the original French (Recommandation Image et Respect de la Personne):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/

 

 

Children

 

2004 ARPP Children Recommendation (Recommandation Enfant Juin 2004). This Code applies to all marcoms disseminated in France, whatever their form, and involves marcoms that portray children and that are aimed at them. Rules are under Transparency, Social Responsibility, Decency, Violence, Safety, Integrity, The Young Consumer, Games and Videos, and Interactive Media. The original ARPP Code is here in French:

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/

The ARPP English version is here:

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/

Our translation is here: 

http://www.g-regs.com/downloads/FRARPPEnfantFR-ENb.pdf

 

 

Identification

 

Identification of advertising and marketing communications. Identification of the advertiser. The Code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below this entry:

http://www.arpp.org/wp-content/uploads/2016/09/Identification_Code.pdf (EN)

In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Identification-de-la-publicit%C3%A9-et-des-communications-commerciales-ARPP.pdf (FR)

 

 

Native

 

This guidance is also largely based on the iCC Code articles 7 and 8 and B1 and C1 (Sponsorship and Digital respectively). In French here:

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

And in English here:

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

 

Online channels

 

The ICC Content rules above apply online; the Online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code. The link is to the GRS unofficial and non-binding translation of the Code of December 2021; in French this is the Communication Publicitaire Numerique, version 5 in force January 1, 2022. The press release which sets out the changes is here in English. These rules apply to ‘All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and ‘All targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.’ The Code includes a useful walk through the various techniques online such as In-game, Sponsored links, Native, OBA and Brand content.

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/

http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf

 

 

Influencers

 

ARPP recommendations for 'influencer marketing’ (in FR, EN sub-titles):

https://www.youtube.com/watch?v=8Jx4gr5bvH0

The ARPP Digital Advertising and Marketing Communications Code also carries rules on Influencer marketing

http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf 

See also:
https://www.arpp.org/actualite/observatoire-marketing-influence-2019/ (FR)

 

 

Safety

 

Safety Code: Dangerous Behaviours and Situations:

http://www.arpp.org/wp-content/uploads/2017/01/Safety-Code-dangerous-behaviours-and-situations.pdf (EN)

In the original French (Recommandation Sécurité: Situations et Comportements Dangereux) :

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-S%C3%A9curit%C3%A9-situations-et-comportements-dangereux.pdf (FR)

The Code is particularly protective of children but helpful in describing situations that are permitted.

 

 

Qualifications/ notes

 

Notes and Overlays Code:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/

In the original French: (Recommandation Mentions et Renvois)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/

The Code sets out in some detail and by channel the formatting/ readability required of notes relating to pricing in particular, and some other claims. Details in Content Section B.

 

 

INTERNATIONAL CODES AND GUIDANCE 

 

ICC

 

ICC Advertising and Marketing Communications Code 2018

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

 

From the introduction to the Code: ‘Significant changes include:

 

  • Addressing in Chapter C direct marketing and digital marketing communications by combining previous code Chapters C and D
  • Clearer transparency and disclosure concerning commercial versus editorial and user-generated content b clearer application to all mediums and platforms including social media, mobile, virtual and marketing communications using artificial intelligence Introduction
  • Applicability to other participants in the marketing eco-system, including market influencers, bloggers, vloggers, affiliate networks, data analytics and ad tech companies as well as those responsible for preparing algorithms for marketing communications

 

Chapter A: Sales Promotion

Chapter B : Sponsorship

Chapter C : Direct Marketing and Digital Marketing Communications

Chapter D : Environmental Claims in Marketing Communications

 

ICC guidance and frameworks 

 

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

https://cdn.iccwbo.org/content/uploads/sites/3/2012/11/ICC-Resource-Guide-for-Self-Regulation-of-Online-Behavioural-Advertising-1.pdf

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

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

ICC Guide for Responsible Mobile Marketing Communications

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

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

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

And in English here:

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


 

 

OTHER TRADE ASSOCIATIONS

 

IAB France/ Europe

 

IAB France. From their website: 'An association created in 1998 whose mission is threefold: to build the online communications market, to promote its use, and to optimise its efficiency.'

https://www.iabfrance.com/

Members are here:

https://www.iabfrance.com/article/les-membres

How to Comply with EU Rules Applicable to Online Native Advertising:
IAB Transparency and Consent Framework:
 

IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)

 

WFA

 

The ‘GDPR Guide for Marketers’ from the WFA (World Federation of Advertisers): 

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 members:

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

 

EASA’s Best Practice recommendation on Online Behavioural Advertising 

 Digital Marketing Communications 

Influencer Marketing

 

 

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: 

www.sponsorship.org

 

 

 

 

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Read more

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

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:

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

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.

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

 

ICC toolkits

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

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

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

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

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

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

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

https://eur-lex.europa.eu/eli/reg/2016/679/oj 

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016:

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

 

 

 

Key Directives in marketing communications

 

Privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (10 February 2021)

 

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 to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: 
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

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here 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

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

 

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