Comparative

 

Uploaded May/June 2020.

See individual countries for updates.

Italy

A. Overview

Sector

SECTION A

 

Posted June 2020

 

 

EU PRINCIPLES AND NATIONAL IMPLEMENTATION 

 

The core principle established in European law is that comparative advertising must not mislead according to terms defined in the Misleading and Comparative Advertising Directive 2006/114/EC and the Unfair Commercial Practices Directive 2005/29/EC. These directives are applied in Italy as follows:

 

  1. Legislative Decree 145/2007 (EN / IT) implemented Article 14 UCPD 2005/29/EC (incorporated in Directive 2006/114/EC) under Section 4 of the Decree setting out the conditions under which comparative advertising is considered lawful - see below;
  2. Those conditions include misleadingness within the meaning of Sections 21-23 of Legislative Decree 206 /2005, the ‘Consumer Code’ (EN); details in our following Content Section B or see the linked Code;
  3. The Self-Regulatory Code of Marketing Communication from IAP. Article 15 addresses Comparative advertising, reflecting the provisions set out in Section 4, LD 145/2007. Articles 13 (Imitation, Confusion and Exploitation) and 14 (Denigration) will also be relevant.

 

 

SPECIFIC RULES FROM LD 145/2007 SECTION 4 
 
Conditions under which comparative advertising is lawful
 
  1. It is not misleading within the meaning of Sections 21, 22 and 23 of Legislative Decree No 206 of 6 September 2005 enacting the 'Consumer Code';
  2. It compares goods or services meeting the same needs or intended for the same purpose;
  3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
  4. It does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;
  5. It does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
  6. For products with designation of origin, it relates in each case to products with the same designation;
  7. It does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
  8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.

 

 

FROM THE IAP CODE OF MARKETING COMMUNICATION 
 
Article 15 Comparative advertising
 
Comparative advertising is permitted when it helps to explain the technical or financial features and benefits of promoted products and services, objectively comparing the relevant basic, technically verifiable and representative features of competitive goods and services, that meet the same needs or are intended for the same purpose. Comparisons should be fair and not be misleading, nor generate the risk of confusion, or discredit or denigrate others. Comparisons should not draw unfair advantage from the notoriety of others.

 

 

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Additionally, article 2598 The clause An act of unfair competition is committed by anyone that (2) spreads news and comments/ opinions on the products and activities of a competitor, which are likely to discredit them, or appropriates the good qualities of the products or of the enterprise of a competitor; (3) takes advantage, directly or indirectly, of any other means which do not conform with the principles of correct behaviour in the trade and are likely to injure another’s business from Book V of the Italian Civil Code (IT) has been interpreted broadly in case law to include misleading, confusing or denigrating advertising. See later references under our following Content Section B, point 1.3.

 

The Italian Competition Authority (ICA or AGCM - Autorità Garante della Concorrenza e del Mercato) established under LD 287/1990 is competent to rule on misleading and comparative advertising. Its powers are set out in Article 8 LD 145/2007. The ICA may act of its own accord or following a written complaint.

 

 

CHANNEL RULES

 

There are no channel rules specific to Comparative advertising. The Content rules shown referenced in this section and set out in Content section B apply across all channels. The following Channel Section C notes some pointers by channel, and under the General tab in that section shows all the General channel rules, which apply to Comparative advertising. A significant addition to the IAP’s rules is in the form of the Digital Chart (IT / EN scroll down to ‘Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet’). The document regulates the most commonly used forms of online marcoms, including influencer marketing (blogging/ vlogging/ celebrity), native, in-app, SNS, advergames, and establishes criteria for recognisability in line with article 7 of the IAP Code, Identification of advertising Article 7 Identification. Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations

 

 

GENERAL RULES 

 

Comparative advertising should also observe the general rules, i.e. those that apply to all product sectors and all forms of advertising. While Comparative advertising should be most conscious of the misleadingness rules that are spelt out in these pages, rules for harm/ offense/ decency etc. also apply. Those rules are set out in Self-Regulatory measures in the IAP Code of Marketing Communication and in legislation in the Consumer Code; they can be found in full under the General tab below or see the linked documents for the principal regulatory measures

 

 

 

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General

SECTION A OVERVIEW

 

Updates

IAP review March 2020

New links IAP Code April 2020

Digital Chart changes April 2020

AVMSD amends May 2020

Links refreshed July 2020

EDPB updates August 2020 and Feb 2021

Directive 2019/2161 Section E Jan 2021

New IAP Regulation HFSS Feb 2021

DPC trans, new Garante guidelines May 2021

Garante cookie guidelines (EN) July 2021

Google's environmental claims policy Oct 2021

AGCM investigation November 2021

 

 

SELF-REGULATION

 

The Code of Marketing Communication Self-Regulation (IT / EN), which is administered by IAP, provides the core advertising rules in Italy. The Code sets out the general rules of conduct in Title I, covers rules for 'sales systems' (e.g. distance selling and prize promotions) in Title II A and specific product categories under Title II B. IAP’s Digital Chart (IT / EN) reviews the most commonly used forms of online marcoms including influencer marketing (blogging/ vlogging/ celebrity), native, in-app, SNS, advergames, and establishes criteria for the recognisability of these in line with article 7 of the IAP Code, Identification of advertising. Details under our Channel Section C.

 

 

CONTENT LEGISLATION

 

Statutory regulation of advertising is from the Consumer Code (ITEN) LD 206/2005 which implemented the Unfair Commercial Practices Directive UCPD 2005/29/EC and protects consumers against e.g. misleading and aggressive advertising or marketing; LD 145/2007 (EN / IT) which implemented Article 14 UCPD 2005/29/EC protects businesses from misleading advertising, and sets out conditions for comparative advertising (art. 4); and article 2598 (EN) of the Italian Civil Code on unfair competition. Details under Content Section B or see the linked documents. This case, courtesy of Gala/ Lexology November 2021, is an example of how the Consumer Code is applied by the authorities, specifically the Italian Competition Authority AGCM, in the context of some apparently dubious advertising from Crystal Drops co. on the TikTok platform.

 

 

CHANNEL LEGISLATION 

 

Broadcast/ AV

 

The Consolidated Law on Radio and Audiovisual Media Services IT / EN known as the AVMS Code sets out the commercial broadcast rules, including TV advertising, teleshopping, product placement and sponsorship (see Art. 2 (1dd) AVMS Code). Scope includes linear (TV/webcasting) and non-linear (VOD) audiovisual media services. Channel Section C TV/Radio header for full information.

 

 

Privacy/ online commercial communications 

 

Privacy issues should be overseen by specialist advisors

 

The Data Protection Code (DPC) LD 196/2003 (IT), containing provisions for the adaptation of national law to Regulation 2016/ 679 (GDPR) was amended and re-named (as shown) by LD 101/2018 (IT); Section 1 of the DPC now provides that the processing of personal data will be according to the standards of GDPR (see para below). There’s an English translation of the DPC from the Data Protection authority Garante here. Section 130 of the DPC covers unsolicited communications, implementing the E-Privacy Directive 2002/58/EC providing for opt-in consent to electronic communications. Some data processing aspects of the article are now subject to GDPR. Legislative Decree 70/2003 IT / EN (the E-Commerce law, relevant articles: 7 - 9,12,13), which implements the E-Commerce Directive 2000/31/EC inter alia provides requirements applicable to advertising  from ‘information society services.’ There's a 'succinct Q&A on the law and practice surrounding online advertising in Italy, covering key regulations and restrictions' from ICT Legal Consulting hereEuropean Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, are here. And finally, Garante/ GPDP published in July 2021 Guidelines for cookies and other tracking tools (IT).

 

 

GDPR application

 

The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, Italy included, tend to retain their national privacy legislation and ‘recognise’ GDPR. Italy’s key data protection law LD 196/2003, referenced above, was amended following an enabling law 163/2017 (IT) and Guidelines (IT) from Garante, the Data Protection Authority. There’s a helpful blog on those from DLA Piper here. Garante published on 24 May 2021 European Regulation: Guidelines for DPOs (IT) and in English The Personal Data Protection Code from March 2020, as linked above, which lays down the provisions to adapt the national legislation to GDPR. Specific rules related to the above are set out by channel in our Section C, headers as relevant.

 

 

KEY CLAIM AREAS

Environmental

 

 

In Self-Regulation, article 12 of the IAP Code of Marketing Communication covers the protection of the natural environment. On an international scale, Chapter D Environmental Claims in Marketing Communications from the ICC Advertising and Marketing Communications Code is also relevant, together with The ICC Framework for Responsible Environmental Marketing Communications 2021, published November 2021. An interesting article from CMS Italy via Lexology Sustainability, Advertising and Greenwashing discusses some of the broader claims and their legal compliance and in the case of Italy the role of competition authority AGCMThe WFA launched their Planet Pledge in April 2021. The use of environmental claims in advertising can also be assessed against the Italian Consumer Code referenced above. Additionally, there are two key guidance documents in the form of:

 

EU Commission Guidance on application of the UCPD; see section 5.1 for environmental claims

EU Compliance Criteria on Environmental Claims (2016) from MDEC Full name MultiStakeholder Dialogue on Environmental Claims EN;

 

On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.

 

 

Pricing in advertising

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors

 

  • The CJEU judgement in the 2016 Citroën/ZLW case ruled that when a price is included in advertising, the final price including VAT and all other price components must be stated; Arts 13-17 of the Consumer Code implement the Product Price Directive (PPD) 98/6
  • The Consumer Code (EN) includes other pricing references in B2C communications, particularly with regard to ‘bait and switch’ advertising; see article 23 (1e/f)
  • The information obligations in article 22.4 ‘Invitation to Purchase’ may also apply when a price is indicated in advertising
  • The IAP Code of Marketing Communication in article 2 (misleadingness) prohibits ‘representations that could mislead consumers including omission, ambiguity, or exaggeration that are not obviously hyperbolical, particularly regarding the characteristics and effects of the product, prices, free offers...’

 

 

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International

SECTION A OVERVIEW

 

Updates
Uploaded Oct 2018
AVMS amends March 2020
EDPB amends Oct 2020
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 November 2021

 
 

SOME INTERNATIONAL NEWS

 

 

 

Alcohol. October 2021

 

Advertisers/ agencies should be aware of two significant influences on the horizon that may have an impact on regulation of their business/ advertising. In the context of Europe’s ‘Beating Cancer Action Plan’, there will likely be some impact on self-regulation of alcohol advertising. The second influence is the WHO consultation on the first draft of the Global Alcohol Action Plan 2022-2030. The action plan will be considered by the 75th World Health Assembly through the Executive Board in 2022. The board has requested of the Director General 'to develop a technical report on the harmful use of alcohol related to cross-border alcohol marketing, advertising and promotional activities, including targeting youth and adolescents, before the 150th session of the WHO Executive Board, which could contribute to the development of the action plan.'  ICAS has highlighted in its submission the econometric and social benefits that effective and meaningful advertising self-regulation can have at national level.

 

Cookies September 27, 2021

 

EDPB establishes cookie banner taskforce

 

X-border complaints. September 2021

 

EASA's latest Cross-Border Complaints Report is out; In 2020, the network handled 337 cross-border complaints. The full report is available here

 
EC developments  

 

The Digital Services Act package

EASA's September 2021 update on the DSA here 

And on the Better Internet for Children Strategy (BIK strategy) here

And on environmental claims and the new consumer agenda here

 EU pages on the Farm to Fork strategy here

 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'

 And complements the EU Code of Conduct for Responsible Food Business and Marketing Practices, in force July 2021 

 

Not from the EC

 

IAB Europe on 16 September published ‘The Wider Socio-Economic & Cultural Value of Targeted Advertising In Europe’ 

'Diversity, equity and inclusion in global campaigns' from Frankfurt Kurnit Klein & Selz PC March 31, 2021

WFA launched 'Planet Pledge' in April 2021, '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 sustainable development goals.'

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

 

 

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.
 
 
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

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.

 

 
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.

 

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
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

 

 

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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B. Content Rules

Sector

SECTION B

 

This section is longer than most. To help navigate it, some of the text is 'anchored' and linked to respective headings immediately below 
 
 
  1. LEGISLATION
 
1.1.Legislative Decree 145/2007
1.2. The Consumer Code 
1.4. Case Law
 
  1. SELF-REGULATION
 
2.1. The IAP Code
2.2. Adjudications from the IAP Jury
 
 
  1. GENERAL RULES 
 
 
1. LEGISLATION

 

1. 1. Legislative Decree 145/2007 (EN)

 

Definitions

 

  • ‘Misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor (Art. 2 (b) LD 145/2007)
  • ‘Comparative advertising’ means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor (Art. 2 (d) LD 145/2007)
 

Conditions under which comparative advertising is lawful (Section 4)

 
Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
 
  1. It is not misleading within the meaning of Sections 21, 22 and 23 of Legislative Decree No 206 of 6 September 2005 enacting the Consumer Code
  2. It compares goods or services meeting the same needs or intended for the same purpose;
  3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
  4. It does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor
  5. It does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor
  6. For products with designation of origin, it relates in each case to products with the same designation
  7. It does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
  8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name
  1. The requirement of verifiability pursuant to paragraph (1) (c) shall be deemed met when the data used to illustrate the properties of the goods or services advertised are demonstrable
  2. Any comparison referring to a special offer must clearly and unequivocally indicate the deadline date for the offer or, if the special offer has not yet started, the starting date of the period in which the special price or other particular conditions shall apply or, if relevant, the fact that the special offer depends on the availability of the goods and services
 
 
 
The Consumer Code is shown here as it defines/ sets out misleadingness; the ‘first rule’ of comparative advertising is that it must not be misleading 

 

CHAPTER II. Unfair commercial practices. Section 20

 
  1. Unfair commercial practices shall be prohibited
  2. A commercial practice shall be unfair if it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers
  3. Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally
  4. In particular, commercial practices shall be unfair which:
 
  1. are misleading within the meaning of Sections 21, 22 and 23 or
  2. are aggressive within the meaning of Sections 24, 25 and 26
 
  1. Sections 23 and 26 contain the list of those commercial practices which shall in all circumstances be regarded as misleading and aggressive, respectively.
 
 

Section 21

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:
 
  1. The existence or nature of the product
  2. The main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, aftersale 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
  3. 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
  4. The price or the manner in which the price is calculated, or the existence of a specific price advantage
  5. The need for a service, part, replacement or repair
  6. 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
  7. The consumer's rights, including the right to replacement or reimbursement under Section 130 of this Code.
 
  1. 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:
 
  1. 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
  2. Non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where the commitment is firm and capable of being verified, and the trader indicates in a commercial practice the binding nature of the code.
 
  1. It is considered to be an unfair commercial practice, in relation to products likely to harm the health and safety of consumers, to fail to state this likelihood such that consumers are induced to neglect to observe the normal standards of prudence and vigilance
 
 
The above references under articles 4 and 5 are to some clauses that are lengthy and less immediately related to Comparative advertising, so we don’t spell them out here. They are important, however, because they relate to misleading commercial practices that in turn relate to Comparative advertising. The Consumer Code is linked above; the referenced clauses can be found in the linked document
 

 

 

Article 2598, the tort of unfair competition provides that:

 

“Subject to the provisions that concern the protection of distinctive signs and patent rights, anyone who engages in acts of unfair competition:

 

  1.  Uses names or distinctive signs capable of producing confusion with names or distinctive signs legitimately used by others, or slavishly imitates a competitor’s product, or performs by any other means acts likely to cause confusion with the products and the activities of a competitor
  2. Spreads/ disseminates news and opinions about the products and the activities of a competitor, which may discredit them, or appropriates the qualities of the products or of the business of a competitor
  3. Directly or indirectly uses any other means which do not comply with the principles of professional fairness and are likely / able to damage another’s company/ business”.

 

  • For Article 2598 to be applicable, both parties have to be entrepreneurs / businesses and a competitive relationship must exist between them
  • Article 2598 does not specifically reference advertising. Case law, however, has exploited the broad provision under Article 2598 (3) to include misleading and comparative advertising as falling under the prohibition
  • The courts have cited Article 2598 in cases involving illicit advertising: article 2598 (2) in cases involving derogatory advertising and 2598 (3) in cases involving misleading advertising. These types of advertising have therefore been treated as acts of unfair competition between companies and the case law has identified several distinct categories of illicit advertising
  • Even though specific legislation now governs this issue (in the form of LD 145/2007), some courts still refer to the Civil Code only in their decisions on misleading advertising
  • 1999 Ruling of the Supreme Court according to which the rules of the IAP Code (IAP) were considered legitimate criteria for defining 'professional correctness', since they are evidence of the professional and commercial ethics which article 2598 point 3 of the Italian Civil Code is intended to protect (according to this point of the article any activity failing to comply with principles of 'professional correctness' is to be regarded as constituting unfair competition

 

 

1.4 Case law summaries 

 

Note that all case law is reported essentially verbatim; in some instances, commentary has been taken from online contributions. None of the text or related text represents a view, opinion or guidance from GRS, but is there simply for information to be interpreted as marketers or their legal advisors see fit 

 

 

CASE

L’Oréal vs Johnson & Johnson

Court of Turin

BACKGROUND

The advertising was for an anti-wrinkle J & J brand claiming that it was "up to three times more effective - sino a tre volte più efficace" than three facial creams, one of which was marketed by the famous brand of L’Oréal. 

FINDING

  • The IAP Jury initially blocked the advertising, deeming it contrary to Article 15 of the IAP Code as it did not compare goods or services meeting the same needs or intended for the same purpose; in addition, the veracity of the claim had not been proven
  • In pre-trial proceedings, the Court of Turin endorsed the IAP Jury’s decision and sanctioned the wrongfulness of the widespread dissemination of comparative advertising
  • In its judgment of 9 December 2011, the Court of Turin stated that the misleading advertising campaign had produced: “an unlawful effect further than the impropriety itself of the advertising campaign."
  • Johnson & Johnson were ordered to pay L’Oréal Italy about €400k, based on incremental business following the advertising, reputation damage and costs

 

 

 

 

CASE

Jean Louis David and PML srl 

Supreme Court, January 7, 2016 

BACKGROUND

  • Corani & Partners SpA, the exclusive licensee for Italy of the JLD (Jean Louis David) trademark, used for franchise hairdresser salons and for hair care products, brought an action against PLM Srl, a company that markets hair care products to hairdresser salons
  • It was claimed that PLM Srl had launched an advertising campaign targeted at Jean Louis David franchise hairdresser salons, in which the advertised products were presented as identical to those bearing the JLD trademark.

RULING

  • District Court of Milan had ruled that the message was a case of unlawful comparative advertising as well as unauthorised use of the JLD trademark, and that it amounted to unfair competition under Art. 2598 (2) of the Civil Code. The court had consequently ordered the defendant to pay damages.
  • PML Srl lost appeal and brought the case before the Italian Supreme Court, which rejected the appeal
  • PML Srl in their defence claimed that since the advertised products did not bear the JLD trademark, there was no confusion between the products
  • The Supreme Court rejected this claim, confirming that confusion is not a necessary requirement to prove unlawful comparative advertising; this could have been proven by the breach of Art. 4 (g) and (h) of LD 145/2007 in relation to the imitation or counterfeit of a good or service protected by a trademark or registered name (see Supreme Court, Div. 1, Sentence no. 10416 of 1998)
  • Article 2598 (2) of the Italian Civil Code states that misappropriating the qualities of a competitor’s products or business amounts to unfair competition

 

 

 

 

2.1. The IAP Code of Marketing Communication

 

Article 13 Imitation, confusion and exploitation

 

  • Marketing communication should not copy or slavishly imitate that of others even if it concerns non-competitive products, especially if there is the risk of generating confusion with the marketing communication of others
  • Moreover, any exploitation of the name, trademark, notoriety and corporate image of other marketers should be avoided, if it is intended to generate an undue advantage
  • Marketing communication should not denigrate the activities, companies or products of others, even if not specifically named (Article 14 Denigration)
  • Comparative advertising is permitted when it helps to explain the technical or financial features and benefits of promoted products and services, objectively comparing the relevant basic, technically verifiable and representative features of competitive goods and services, that meet the same needs or are intended for the same purpose (Article15 Comparative advertising)
  • Comparisons should be fair and not be misleading, nor generate the risk of confusion, or discredit or denigrate others. Comparisons should not draw unfair advantage from the notoriety of others (Article15 Comparative advertising)

 

 

2.2. Adjudications from the iAP Jury

 

Source here: http://www.iap.it/il-diritto/decisioni/pronunce-del-giuri/ (IT)

 

2.2.1.Barilla and Plasmon (Heinz Group)

 

 

RULING

 

The IAP jury, and the court of Milan who had issued an injunction, found against Plasmon, on various grounds. Case is here (EN)

 

 

2.2.2. ING Direct NV v IW Bank Spa (121/2006). 

 

The IAP’s Jury considered a commercial communication in which a coach (symbolising the advertiser) smashed a pumpkin, which represented a well-known figurative trademark that had been used to identify ING Direct for several years. The image was held to communicate a denigrating message, leading to a finding against the advertisement. As such, it was unnecessary to consider IW Bank’s claim that the advertisement was true and useful in allowing consumers to choose a more suitable and appropriate service

 

 

2.2.3. Volkswagen Group Italy SpA v Fiat Group Decision 89/2014 of 16/12/2014

 

Advertising: https://youtu.be/4xKmXdUAiVo 

 

 

Advertising message: “Panda Cross. Italia. Land of Panda”. VW claimed that the advertising broadcast on TV and Radio was contrary to Articles, 13,14,15 of the Code. The advertising uses a voiceover from Piero Chiambretti with car on muddy terrain crossing streams while the voice says: “It has been said in Germany that this is the country of the 4x4… it is a country of forest, mud, snow… think about it tomorrow when you look at a river bringing the kids to the pool… when it will come down from the mountains for grocery shopping, or maybe when you try to ... to park downtown?” VW felt the advert evoked its ad campaign: "Audi. Italy. Land of Four "
 

Ruling

 
Advertising contrary to Articles 13 (Imitation, confusion and exploitation) and 14 (denigration) of the Code. Deeming that Fiat had taken advantage of the reputation and corporate image of the competitor, through an advertising message that is similar to the competitor. It did not believe there to be an infringement of Article 15: it was not apparent that the products were compared as competitors or substitutes
 
 
 
 
  • It's important that the rules for all advertising, Comparative included, shown in full below under the General tab, are also understood; adjudications against Comparative advertising anyway are closely associated with general misleadingness rules, and taste and decency rules, for example, will also apply. The principal source of rules for all advertising content is the IAP Code of Marketing Communication in Self-Regulation 
  • In legislation, the key law related to marketing communications in Italy, consistent with all member states, is the transposiiton of the Unfair Commercial Practices Directive 2005/29/EC. Rules are set out in the Consumer Code (EN). As well as the misleadingness clauses that we have referenced earlier, the code covers issues such as promotional pricing, information requirements when delivering an 'Invitation to purchase', and some 'Identifiability' rules that are particulary pertinent for Influencer marketing
  • The rules referenced immediately above, and some others besides, are spelt out under the General tab below

 

 

...............................................................................​

General

SECTION B CONTENT RULES

 

 

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

 

 

1. SELF-REGULATION; IAP Code

 

1.1. Fairness

1.2. Misleadingness

1.3. Terminology/ statistical data

1.4. Testimonials

1.5. Guarantees and warranties

1.6. Substantiation

1.7. Identification

1.8. Superstition, credulity, fear

1.9. Violence, vulgarity, indecency

1.10. Moral, Civil, & Religious Beliefs; Human Dignity
1.11. Children and young people

 

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

 

1.12. Protection of the natural environment

1.12b. Safety

1.13 Imitation, Confusion and Exploitation

1.14. Denigration

1.15. Comparative advertising

1.16. Variability

1.17. IAP Digital Chart

1.18. IAP Jury Decisions

 

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

 

2. LEGISLATION

 

2.1. Consumer Code

2.2. LD 145/2007 Comparative Advertising

2.2.1. Case law and IAP rulings

 

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

 

3. SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

3.1.1. Self-Regulation (national)

3.1.2. International Self-Regulation

3.1.3. Horizontal Statutory Legislation

3.1.4. EU Guidance

 

3.2 Pricing in advertising

 

 

1. SELF-REGULATION

 

The Code of Marketing Communication Self-Regulation IT / EN 

 

1.1. Fairness in marketing communication (Art. 1)

 

 

 

1.2. Misleading marketing communication (Art. 2)

 

  • Marketing communication must avoid statements or representations that could mislead consumers, including omissions, ambiguity or exaggeration that are not obviously hyperbolical, particularly regarding the characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes or awards
  • In assessing whether or not a marketing communication is misleading, the benchmark is the reasonable consumer belonging to the relevant target group

 

 

1.3. Terminology, quotations, technical and scientific tests, statistical data (Art. 3)

 

  • Terms, quotations and references to scientific and technical tests must be used appropriately. Technical and scientific tests and statistical data with limited validity must not be presented in such a way as to make them appear generally valid

 

 

1.4. Testimonials (Art. 4)

 

  • Testimonials and other forms of recommendation of a product, with a promotional intention, should be distinguishable as such as well as authentic and responsible
 

 

1.5. Guarantees and warranties (Art. 5)

 

  • Mandatory guarantees cannot be communicated in such a way as to convey the belief that they offer rights greater or different to those provided by law, when they do not
  • Should guarantees or warranties be communicated that are greater or different to those that are mandatory, such marketing communication must specify the contents and conditions of the guarantee or warranty offered, or alternatively provide a brief but comprehensive description thereof together with reference to the written sources of information available at the point of sale or supplied with the product

 

 

1.6. Substantiation (Art. 6)

 

  • The contents of marketing communication must be capable of substantiation; such substantiation should be available to the Jury or Review Board to prove the truthfulness of the data, descriptions, statements, illustrations used and the consistency of any testimonies

 

 

1.7. Identification (Art. 7)

 

  • Marketing communication must be clearly distinguishable as such. In the media and in the marketing communication when news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable as such via the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations
    See ruling from the IAP Jury regarding article 7:
    http://www.g-regs.com/downloads/ITGenIAPrulingArt7Taboolab.pdf

 

 

1.8. Superstition, credulity, fear (Art. 8)

 

  • Marketing communication should not play on superstition, credulity or, except in justifiable cases, fear

 

 

1.9. Violence, vulgarity, indecency (Art. 9)

 

  • Marketing communication should not contain statements, audio or visual treatments depicting physical or moral violence or, that may be considered indecent, vulgar or repugnant to prevailing standards

 

 

1.10. Moral, civil, and religious beliefs and human dignity (Art. 10)

 

  • Marketing communication should not offend moral, civil and religious beliefs
  • Marketing communication should respect human dignity in every form and expression and should avoid any form of discrimination, including that of gender

 

 

See rulings from the IAP Jury regarding article 10:
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Aquilantibath.pdf

http://www.g-regs.com/downloads/ITGenIAPrulingArt10Mobyb.pdf

http://www.g-regs.com/downloads/ITGenIAPrulingArt10Santhe.pdf

 

 

 

 

  • Special care should be taken in marcoms directed to (or to which they may be exposed) children (U12) and young people
  • Such marcoms must not contain anything that could cause psychological, moral or physical harm to children or young people (adolescents), and must not take advantage of their natural credulity, lack of experience or their sense of loyalty
  • In particular, such marcoms must not suggest:

 

  • Violating generally accepted rules of social behaviour
  • Acting dangerously or seeking exposure to dangerous situations
  • That failure to posses the promoted product means either their own inferiority or their parents’ failure to fulfil their duties
  • That the role of parents and educators is inadequate in supplying healthy nutritional advice
  • Adopting poor eating habits or neglecting the need for a healthy lifestyle

 

  • Marketing communication for food products and beverages directed to children, or to which they might be exposed, is also subject to the provisions contained in the specific Regulation, which forms an integral part of this Code (the Regulation to which this point refers is here in Italian and here in English on the iAP website, otherwise downloaded here in English)
  • Marketing communication must not include a direct exhortation to children to buy the promoted product or to persuade other people to purchase it
  • The portrayal of children and young people in marketing communication must avoid playing on the natural sentiments of adults towards the young
  • Visual depictions of children, or persons resembling children, engaged in or seeming to engage in sexually explicit conduct are prohibited

 

 

1.12. Protection of the natural environment (Art. 12)

 

  • Advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence
  • Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefits refer to

 

 

1.12b. Safety (Art. 12-bis)

 

  • Marketing communication involving products that may potentially endanger health, safety or the environment, especially when such dangers are not immediately recognisable, should indicate such dangers clearly
  • In any case marketing communication should not contain descriptions or representations that may lead consumers to be less cautious than usual or less watchful and responsible towards their own health and safety, including body images inspired by aesthetic models clearly associated with eating disorders that are harmful to health

 

 

1.13. Imitation, confusion and exploitation (Art. 13)

 

  • Marketing communication should not copy or slavishly imitate that of others even if it concerns non-competitive products, especially if there is the risk of generating confusion with the marketing communication of others
  • Moreover, any exploitation of the name, trademark, notoriety and corporate image of other marketers should be avoided, if it is intended to generate an undue advantage

 

 

1.14. Denigration (Art. 14)

 

  • Marketing communication should not denigrate the activities, companies or products of others, even if not specifically named

 

 

1.15. Comparative advertising (Art. 15)

 

  • Comparative advertising is permitted when it helps to explain the technical or financial features and benefits of promoted products and services, objectively comparing the relevant basic, technically verifiable and representative features of competitive goods and services, that meet the same needs or are intended for the same purpose
  • Comparisons should be fair and not be misleading, nor generate the risk of confusion, or discredit or denigrate others. Comparisons should not draw unfair advantage from the notoriety of others

 

1.16. Variability (Art. 16)

 

  • Marketing communication which is acceptable for one medium or product may not necessarily be acceptable for another, due to the different characteristics of the various media and products
  • In the cases referred to in articles 17 (credit sales), 18 (distance selling), 21 (prize promotions), 27 (financial and real estate transactions), 28 (package tours) and 46 (social marcoms) below, messages that are limited to general statements are permitted to omit all the relevant necessary information
  • Compliance of a marketing communication with the provisions of the Code does not rule out the right of the media to decide, based on their contractual autonomy, to reject it on the grounds that it breaches stricter criteria they may have put in place

 

 

1.17. IAP Digital Chart

 

  • The IAP Digital Chart IT / EN establishes the criteria for the recognition or detectability of common forms of online marketing communications in compliance with Article 7 of the IAP Code. Details in Channel Section (Online Commercial Communications and Native). See also ruling below on article 7

 

 

1.18. Jury decisions

 

Also shown above under the relevant articles; the linked files are summaries in English

 

 

On 11th February 2019, IAP launched a new online database containing all the formal adjudications from 1966 to present day, with real-time updates. This new tool ‘greatly simplifies the identification of adjudications and allows users to login through different devices. The database is available through a subscription, free for the first 30 days.’

https://archivio.iap.it/

 

 

2 .LEGISLATION

 

 

  • Consumer Code LD 206/2005; AGCM translation is here
  • LD145/2007 on Comparative Advertising IT /  EN

 

 

2.1. Key clauses Consumer Code

 

  • Sections 23 & 26 contain the list of commercial practices which shall in all circumstances be regarded as misleading and aggressive, respectively; known as the Black List, extracted here
  • 2.1.1. Misleading Commercial Practices, i.e. Misleading actions and omissions (Arts 21-23); includes requirements for ‘Invitation to Purchase’ Definition Means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. 18i) 

 

 

2.2. Key clauses LD 145/2007; Comparative advertising Section 4

 

Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

 

  1. It is not misleading within the meaning of Sections 21, 22 and 23 of Legislative Decree No 206 of 6 September 2005 enacting the ‘Consumer Code’
  2. It compares goods or services meeting the same needs or intended for the same purpose
  3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
  4. it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor
  5. It does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor
  6. For products with designation of origin, it relates in each case to products with the same designation
  7. It does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
  8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name

 

 

2.2.1. Case law and AGCM and IAP rulings

 

Case law is reported essentially verbatim; in some instances, commentary has been taken from online contributions. None of this text represents a view or guidance from GRS, but information to be interpreted as marketers, agencies, or advisors see fit

 

 

 

3. SPECIFIC CLAIM AREAS

 

3.1. Environmental

 

3.1.1 Self-Regulation (national)

 

Article 12 IAP Code; Protection of the Natural Environment

 

  • Advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence
  • Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefits refer to

 

Example cases:

 

  • Injunction No. 14/17 of 6/3/17 IT re print ad for cosmetic Vitality’s ‘Zero’ hair colouring cream. The claim “la prima colorazione con etichetta ambientale, buona con te, buona con l’ambiente” (the first colourant with an environmental label, good with you, good with the environment) was ruled in breach of article 12, as well as articles 2 misleadingness and 23, health claims. The Review Board confirmed that article 12 prohibits generic claims;
  • Jury Decision No. 69/2016 of 28/10/2016 IT and summary IT. The advertising focused on the ecological/ environmental qualities of diapers (100% naturalproduced with raw materials of plant originbiodegradablecompostableChemical freeAntibacterial - Phthalate-free). It was ruled contrary to articles 2 and 12, as the messages would induce consumers to believe, wrongly, that the nappies were natural, biodegradable and compostable.
  • The IAP website includes a section of archived decisions from the Review Board and Jury from 2011-2017 and includes archived decisions relating to ‘Green Claims’, accessible here

 

 

3.1.2. International Self-Regulation

 

The ICC Advertising and Marketing Communication Code will apply, in particular:

 

  • General Provisions; Section I of the Code, and
  • Chapter D: Environmental Claims in Marketing Communications Section

 

  • These principles apply to all marcoms containing environmental claims, i.e. any claim in which explicit or implicit reference is made to environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products, regardless of the medium, including labelling, package inserts, promotional and point-of-sales materials, product literature as well as via telephone or digital or electronic media such as e-mail and the Internet
  • The ICC Framework for Responsible Environmental Marketing Communications (November 2021). 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' 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.' 

 

 

3.1.3. 'Horizontal' legislation

 

The Unfair Commercial Practices Directive UCPD 2005/29/EC transposed into Italian law by the Consumer Code IT / EN

 

  • There is no 'general' EU legislation harmonising environmental marketing claims; specific proviswion is made for sectors such as energy-related and organic products
  • UCPD provisions apply to all claims made in the context of B2C commercial practices; the Directive is part-designed to complement sector-specific EU legislation as a ‘safety net’ by ‘filling the gaps’ (recital 10 UCPD)
  • Competitors may challenge environmental claims as unfair commercial practices before national courts, and the Autorita Garante della Concorrenza e del Mercato (the Market and Competition Authority) may also adjudicate; claims are assessed against the UCPD/ IT Consumer Code, application of which has been incorporated into a separate paper here:
    http://www.g-regs.com/downloads/ITGenApllicationUCPD2Environmental.pdf

 

 

3.1.4. EU guidance

 

  • EU Compliance Criteria on Environmental Claims (2016) EN, developed by a multi-stakeholder group on environmental claims MDEC. This advice is not legally binding, but fed into the revision of the updated Commission Guidance on the implementation/ application of the UCPD (below)
  • EU Commission Guidance on the Application of Directive 2005/29/EC on Unfair Commercial Practices EN  (section 5.1 Environmental claims)
  • EU Commission Guidelines for making and assessing environmental claims (Dec 2000) EN. The guidelines, which are consistent with the international standard ISO 14021-1999Revision Now revised by ISO 14021:2016; specifies requirements for self-declared environmental claims, including statements, symbols and graphics. Describes selected terms commonly used in environmental claims and gives qualifications for their use and describes an evaluation and verification methodology for self-declared environmental claims. include references to environmental claims which should be deemed misleading

 

 

3.2 PRICING

 

Check prices in advertising with legal advisors

 

3.2.1. Self-Regulation

 

  • IAP Code of Marketing Communication Self-Regulation (IT / EN) Art. 2 Misleading marketing communication. Marketing communication must avoid statements or representations that could mislead consumers, including omissions, ambiguity or exaggeration that are not obviously hyperbolical, particularly regarding the characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes or awards. In assessing whether or not a marketing communication is misleading, the benchmark is the reasonable consumer belonging to the relevant target group

 

 

3.2.2. Legislation and key case

 

  • Italian Consumer Code LD 206/2005 from articles 21, 22, 23; AGCM trans EN, for specific pricing clauses articles13-17 EN 
  • Court of Justice of the European Union (CJEU): C‑476/14 (Citroën/ZLW) Judgement and AG Opinion; the CJEU ruled that car retailers may not advertise a price that does not include all necessary and unavoidable costs. This is an important judgement

 

 

 

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

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 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 ICC Framework for Responsible Environmental Marketing Communications. Included in the Framework is a checklist aimed at those developing marketing communications campaigns around environmental claims, and a chart that provides an easy reference to relevant Code provisions, Chapter D principles, and interpretations and comments on specific current issues related to environmental marketing

 

  • Appendix I: Environmental Claims Checklist; factors that should be considered when developing marketing communications that include an environmental claim
  • Appendix II

 

  • Summary of the General Provisions of the Consolidated ICC Code and those outlined in Chapter E on environmental claims, supplemented by additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.
  • Guidance on use of selected specific environmental claims often appearing in marcoms 

 

 

 

 

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

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')

 

 

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

 

 

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

 

  • There are no rules specific to Comparative advertising in these channels
  • The Content rules set out in our earlier Section B apply; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT)  and Sections 21-26 of the Consumer Code (EN / IT) in legislation;
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative included, should also be observed. The principal source is the IAP Code linked above. All the ‘general’ content rules can be found under the General tab, in the Content Section B
  • The general channel rules also apply and can be found under the General tab below. These include, for example, sponsorship and product placement rules in TV and radio. The principal source of TV and Radio rules in Italy is the AVMS Code IT / EN (LD 177/2005)

 

 

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

General

SECTION C: TV & RADIO/ AV

 

 

CONTENT RULES AND APPLICABLE REGULATION 

 

  • Rules from the IAP Code (EN) and from the legislation we show in the earlier Content Section B apply to all media; TV and Radio carry some specific content rules of their own, shown below in this section. Those rules extend to VOD
  • The AVMS Code IT / EN (LD 177/2005) applies to Radio commercials and Audiovisual commercial communications, meaning television advertising, sponsorship, teleshopping and product placement, both linear and non-linear, but not including Radio on-demand
  • Linear audiovisual media services = TV broadcasts e.g. analogue and digital television, and online TV: live streaming, webcasting and near-video-on-demand e.g. Sky Box Office (Art. 2i)
  • Non-linear audiovisual media services = on-demand audiovisual media services, for example, video-on-demand/ IPTV (Art. 2m)
  • Self-Regulatory Code on Media and Minors applies to TV and is undersigned by all Italian broadcasters; Section 4 covers advertising. The code applies different levels of protection for minors according to the timeframe

 

 

TV / RADIO (art. 36-bis AVMS code)

 

General principles: Audiovisual commercial communications must be readily recognisable as such; surreptitious audiovisual commercial communications are prohibited. And must not: 

 

  • Use subliminal techniques 
  • Prejudice respect for human dignity 
  • Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  • Encourage behaviour prejudicial to health or safety 
  • Encourage behaviour grossly prejudicial to the protection of the environment 
  • Cause physical or moral detriment to minors; they must not:

 

  • Exhort minors to buy or hire a product or service by exploiting their inexperience or credulity
  • 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
  • Unreasonably show minors in dangerous situations 

 

 

SPONSORSHIP

 

Applicable to TV and Radio (Art. 39 AVMS Code)

 

  • The content and scheduling of a sponsored programme must not be influenced by the sponsor so as to affect the responsibility and editorial independence of the media service provider

  • Sponsored programmes must be clearly identified as such and the name or logo of the sponsor indicated at the beginning and end of the programme
  • They must not encourage the purchase or rental of the goods or services of the sponsor or of a third party, in particular by making special promotional references to those products or services 
  • Television and radio news programmes and political affairs programmes must not be sponsored
  • The showing of a sponsorship logo during children’s programmes, documentaries and religious programmes is prohibited 

 

 

 

PRODUCT PLACEMENT 

 

Applicable to TV; no reference in AVMS Code to PP on Radio (Art. 40-bis)

 

The following rules for product placement apply

 

  • Permitted in cinematographic works (feature films released initially in the cinema), films and series made for TV, sports, and light entertainment programmes
  • Prohibited in children’s programmes
  • Placement may occur in return for payment or take place free of charge in exchange for certain goods and services, such as production props and prizes, with a view to their inclusion in a programme. 
  • Programmes that contain product placement must not:

 

  • Influence editorial independence of the programme
  • Directly encourage purchase or rental of goods or services
  • Give undue prominence to the product
  • Viewers must be informed of the existence of Product Placement via an alert/ warning at the start and end of the programme, and when resuming after an advertising break

 

 

VOD

 

  • The general rules from article 36-bis AVMS Code (EN) will apply to VOD services
  • The rules for sponsorship will also apply to VOD services (Art. 39 AVMS Code)

 

 

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Read more

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; provisions 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

 

  • There are no rules specific to Comparative advertising in these channels
  • The Content rules set out in our earlier Section B apply; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT) and Sections 21-26 of the Consumer Code (EN / IT) in legislation;
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative included, should also be observed. The principal source is the IAP Code linked above. All the general content rules can be found under the General tab in the Content Section B

 

 

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General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The Content rules set out in our earlier Section B from the IAP Code (EN) and from legislation apply in all media, except those rules from the AVMS Code
  • Rai Pubblicità is the SAWA (Screen Advertising World Association) representative in Italy. Contact them for any further information on cinema advertising in Italy:
    http://www.raipubblicita.it/

 

PRINT

 

  • The Content rules set out in our earlier Section B from the IAP Code and from legislation apply in all media, with the exception of those rules set out in the AVMS Code

 

 

OUTDOOR

 

  • The Content rules set out in our earlier Section B from the IAP Code and from legislation apply in all media, with the exception of those rules set out in the AVMS Code

 

  • The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
  • Use of billboards to 'dress' buildings which are in the process of being restored: companies are sponsoring the restoration of Italian historical monuments and therefore provide advertising banners to cover scaffolding etc. over the building. See Art. 49.3 Law on Cultural Heritage and Landscape. Under article 49.1 It is forbidden to place or post signs or other means of advertising on buildings and in protected areas as cultural assets. Restrictions are contained in:

 

  • Law protecting landmarks and historical buildings (restrictions on how and where billboards/ posters can be erected) Law on cultural heritage and landscape Art. 49 LD no. 42/2004 IT
  • Italian Traffic Code / Highway Code (Codice della Strada) LD No. 285/92 IT (Art. 23: Advertising on roads and vehicles)
  • Regulations for the implementation and execution of the Highway Code Articles 47-49 refers to Art. 23 of Highway Code (DPR no. 495/92: Decree No 495 of the President of the Republic of 16th Dec 1992 - IT)
  • Regulations from municipalities will also be relevant

 

 

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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

 

CONTEXT

 

This section covers the online environment in general terms; more specific digital channels such as email, OBA, own websites etc. follow under later headers. The most important point is that the content rules set out in Section B apply to online advertising, defined in the applicable IAP Code here Definition  ‘Marketing communication’ shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless of the modalities used, as well as forms of communication regulated by Title VI (social marketing) 

 

 

KEY RULES 

 

  • There are no rules specific to Comparative advertising in digital channels
  • The Content rules set out in our earlier Section B apply; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT)  and Sections 21-26 of the Consumer Code (EN / IT) in legislation
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative included, should also be observed. The principal source is the IAP Code linked above. All the ‘general’ content rules can be found under the General tab, in the Content Section B
  • The general channel rules also apply and can be found under the General tab below. These include, for example, significant statutory requirements relating to Consent and Information requirements in all online channels
  • IAP’s ‘Digital Chart’ (IT / EN scroll down to ‘Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet’) regulates the most commonly used forms of online marcoms, including influencer marketing, native, in-app, SNS, advergames and establishes criteria for recognisability in line with article 7 of the IAP Code of Marketing Communication
 
 
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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT AND SCOPE  

 

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important. The IAP version is ‘advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used’.

 
 

GDPR 

 

In the context of these channels, the influence of legislation is significant, particularly on the use of personal data. GDPR’s impact is shown under particular channel sections where relevant; in broad, if processing personal data, lawful processing rules from the GDPR now apply. For guidance, we show below the most relevant Data Protection Authority - Garante - statements, together with EU documentation

 

Privacy issues should be reviewed with specialist advisors

 

 

1. SELF- REGULATION 

 

  • IAP Code EN / IT for Content rules 
  • IAP Digital Chart IT / EN establishes criteria for the recognition of common forms of online marketing communications
  • Marketing communications online are generally subject to the rules set out in our earlier Content Section B, with the exception of rules specific to broadcast advertising

 

 

2. LEGISLATION

 

  • Data Protection Code (DPC) Legislative Decree No. 196 of 30 June 2003 IT; article 130 unsolicited commercial communications EN 
  • In the context of electronic commerce/ an Information Society Service Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of servicesLegislative Decree 70/2003 E-Commerce Law EN Information requirements Articles 7, 8 & 9
  • Consumer Code (CC) LD 206/2005 EN applies to ‘business-to-consumer commercial practices’ i.e. 'any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers.' (Section 18d CC)

 

 

GUIDANCE 

 

The Italian Data Protection Authority Garante per la protezione dei dati personali is the independent authority established by the Personal Data Protection Code as responsible for monitoring application of the GDPR

 

  • Garante Guidelines relating to promotional activity and the fight against spam, July 4 2013 Doc. No. 2542348 IT Garante trans EN Doc. No. 4304228
  • Summary of these guidelines is also provided by Garante in “No to Spam, yes to consumer friendly marketing” 23/07/2013. Doc. No: 2554512 in English; Doc No. 2549317 in Italian
  • Note: both of the above documents remain on the Garante website as at May 2021; the documents pre-date GDPR
  • Guarantor guidelines various; this link takes you to the guidelines home page (IT)
  • Guide to the new European regulation on data protection (IT)
  • Guidelines on the processing of personal data for online profiling; March 2015 (IT)
  • Guide to the application of the European Regulation in the matter of personal data protection February 2018 (IT)

 

 

Article 29 Working Party/ EDPB

 

Established by Article 29 of Directive 95/46/EC, hence the name. As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB).  Nevertheless, WP29 papers/ guidelines remain valid. The 1997-2016 archive is here. Three key papers in this context are: 

 

 

 

 

1.1. Key clauses Self-Regulation

 

Ad labelling/ Identification

 

  • IAP Code Article 7 (Identification): Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures
  • Digital Chart IT / EN covering Endorsements (e.g. Celebrity/ Influencer/  Blogging, Vlogging) UGC, SNS; In-App; Advergame. This is the key document in this marcoms area. Scroll down in the IAP Digital Chart link to the sub-head that reads 'Digital Chart Regulations on the Recognisability of Marketing Communications Distributed over the Internet'. 

 

Endorsements/ Influencers (extract from Section 2 IAP Digital Chart)

 

  • When a celebrity, influencer, blogger, or similar user of the Internet, whose actions might potentially influence the commercial choices of the public (hereinafter, collectively, “influencers”) accredits a product or a brand within their own content, as a form of marketing communication, one of the following labels must be clearly inserted at the beginning of the post, or in another message posted online:
 

“Pubblicità/Advertising”, or

“Promosso da … brand/Promoted by … brand” or

“Sponsorizzato da … brand/Sponsored by … brand”, or

“in collaborazione con … brand/In partnership with … brand”;

 
  • And/ or within the first three hashtags of a post, provided it is clear and prominent, one of the following labels should be inserted:
 
“#Pubblicità/#Advertising”, or
“#Sponsorizzato da … brand/#Sponsored by … brand”, or
“#ad” together with “#brand”
 
  • For contents available for “a limited time”, for instance the stories, one of the above labels should be superimposed in a clear and legible manner for any promotional content
  • Conversely, should the relationship between the influencer and advertiser not be underpinned by an existing agreement, but consist merely in the advertiser occasionally sending the influencer its products free of charge or for a modest consideration, rather than the notifications stated above, posts or other messages distributed online in which the influencer mentions or represents these products must feature a disclaimer of the following type:
 
  • “Product sent by… brand”, or equivalent
  • As per the previous subsection, the advertiser must clearly and unequivocally inform the influencer when sending the product of the obligation to insert this disclaimer
  • In such cases, the advertiser’s liability is circumscribed to informing the influencer of the obligation’s existence
 

 

2.1 Key Clauses legislation and authority guidance

 

   Invitation to purchase and advertising identification

 

  • If the communication constitutes an ‘Invitation to Purchase' Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase certain information must be provided, especially that related to price. Article 22 of the Consumer Code LD 206/2005 applies. This is a transposition of UCPD 2005/29/EC article 7 here
  • 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 (Art. 22.3 LD 206/2005)

 

 

Article 23 Consumer Code; Commercial practices which in all circumstances are misleading

 

  • m)...........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)
  • aa) Falsely claiming or creating the false impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely passing oneself off as a consumer
 
 

Information requirements; from E-commerce law LD 70/2003 (EN), Article 8

 

1. In addition to the information obligations stipulated for specific goods and services, marketing communications that constitute an information society service (Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services) or form an integral part thereof must contain specific information, from first dispatch, clearly and unequivocally, aimed at indicating:

 

  1. That this is a marketing communication
  2. The individual or corporation on behalf of which the marketing communication is effected
  3. That this is a promotional offer with discounts, prizes or gifts and the relative conditions of access and
  4. That this concerns promotional contests or games, if permitted, and their terms of participation

 

Additionally, the service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information

 

 

Influencer Marketing: review by competition authority

 

The Italian Competition Authority AGCM investigated Influencer Marketing practices on social media; press release 24th July 2017 here 

 

  • Influencer marketing is defined by the AGCM as the posting on blogs, vlogs and social networks (such as Facebook, Instagram, Twitter, YouTube, Snapchat, Myspace) of photos, videos, and comments by bloggers and influencers, showing support or approval of specific brands without making clear to consumers the commercial intent of the communication
  • In July 2017 the AGCM sent ‘moral persuasion’ letters in relation to specific posts on Instagram to some of the  main influencers and major brand companies, reminding them that advertising must always be clearly recognizable as such by consumers
  • The AGCM requires the influencers/ brands concerned to make the advertising nature of the content apparent through the use of warnings, such as:  #sponsored (#sponsorizzato); #advertising (#pubblicità); #paidad (#inserzionepagamento); or, in the case of products given for free to the celebrity, #productsuppliedby (#prodottofornitoda), to be followed by the name of the advertised brand
  • All those involved in Influencer Marketing were urged to comply with the provisions of the Consumer Code, providing adequate indications to reveal the true nature of the message, where it results from a commissioning relationship and has a commercial purpose, and even when it is based on the free supply of branded goods to the Influencer

 

 

Following brands in social media 

 

Garante Guidelines on promotional activity/ marketing and the fight against spam, July 4 2013 Doc. No. 2542348 IT, GRS trans EN; Garante trans EN Doc No. 4304228. Clause 6.1 ‘Social Spam' 

Note: the Consent rules referenced in this documentation and below may now be impacted by lawful processing rules from the GDPR. Garante have not, however, withdrawn documentation from their website, or adapted it accordingly. As this (communication by brands in social media) is highly sensitive territory, it’s best to review the position with specialist advisors

 

  • Privacy regulations will apply to communications sent through social media, for instance through private messages on Facebook or through Skype, WhatsApp or Messenger
  • However, DPA Decision No. 2542348 on Direct Marketing and Prevention of Spam states that if a person is a fan or a follower of a brand name, product or service on a social network such as a Facebook page or a Twitter account, it may be implied that the person consented to the delivery of marketing communications concerning that brand, product or company. The consent can be inferred from the context of the subscription. Such marcoms must cease when the person unregisters/ unsubscribes from the page or unfollows the account/ page
  • In any other case, the use of personal data taken from users’ profiles on social networks in order to send promotional messages constitutes unlawful processing of personal data, if carried out without the prior consent of the persons concerned
  • This August 2021 piece Q&A: online advertising in Italy (EN) from ICT Legal Consulting via Lexology sets out the rules governing advertising on the Internet and includes some case law related to ISP liability

 
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International

 

 

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

  • 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. Which channels are effected depends on how the directive is transposed in individual countries. Content rules, shown here, are not signifcantly changed anyway; changes are more to do with where those rules apply. The prudent view is probably that AVMS rules apply or will apply to audiovisual commercial communications online 

 

 

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

 

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

 

  • There are no cookie rules applicable specifically to this sector and this channel. The general cookie rules that apply to commercial communications are shown below under the General tab; these include some specific rules on third party cookie consent
  • OBA is like any other advertising in as much as it is subject to the rules set out in our earlier Content Section B, which apply online and offline; both the Comparative-specific rules and the general rules apply, the latter shown under the General tab
  • Principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT)  and Sections 21-26 of the Consumer Code (EN / IT) in legislation

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Privacy issues should be reviewed with specialist advisors

 

 

Legislation and guidance 

 

 

 

Key clause

 

  • Under Article 122 (1) of the DPC linked above: the use of cookies is only permitted if the ‘contracting party’ (user) has been properly informed and has given his/ her consent, unless the cookie is strictly necessary to provide the service explicitly requested by the users i.e. technical, session, analytics, functional; these cookies must still be disclosed in the privacy notice. See the linked DPC above for the full clause 
 

 

OBA

 

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

Effective 19 January 2022

 

 

Profiling/ Behavioural cookies

 

  • Prior consent of the data subject is required along with disclosure in an information/ privacy notice, i.e. opt-in consent; see Google case
  • Under Doc. 3118884 (IT), separate consent must be obtained for third party cookies/ profiling. The third party cookie information must also be kept separate from the website owner’s first party cookie information (to prevent confusion)
  • In order to maintain the distinction of the responsibility of website managers and third parties, the website operators should provide links to the web pages which contain the information and third-party cookie consent. Refer to foot of Cookie Guidance document 3118884
  • Garante confirms that profiling cookies that are ‘persistent in nature’ should be notified (to Garante) - Sect. 5 Guidelines as per Art. 37 (g) DPC
  • Profiling and Electronic Communications (EN). Decision by Garante dated 25 June 2009. Profiling performed on identifiable personal data is only allowed if – under Section 23 of the Code* – the data controller can provide written proof that the data subject had given his/ her informed, free, and specific consent thereto. The consent in question obviously also applies to the processing of aggregate personal data. * Note: GDPR lawful processing rules may now apply; see below
  • From Article 29 WP (now the European Data Protection Board):
    Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 
  • Garante guidelines on the processing of personal data for online profiling; March 2015 (IT)

 

 

Self-Regulation

 

  • OBA, as with any other advertising, is ‘in remit’, i.e. subject to the IAP Code, and all the rules set out in Content Section B with the exception of the broadcast rules
  • From the Digital Marcoms section of the IAP Digital Chart (EN): “On the basis of another key EASA document, the ‘Best Practice Recommendation on Online Behavioural Advertising’, and the ‘IAB Europe EU Framework for Online Behavioural Advertising’, since November 2015 the IAP has also intervened/ taken action against so-called online behavioural advertising (or OBA for short). The link is to the IAP’s description (in Italian) of its role on OBA

 

First 2 paras of this link:

 

  • The IAP can intervene to protect consumers/ public, as well as to ensure compliance with the IAP Code, and even applied against so-called OBA, in compliance with the Self-Regulatory principles and rules by operators who adhere to the IAB Europe EU Framework
  • Many web operators have in fact committed themselves to the IAB Europe Framework to identify the OBA through a special icon, placed within the ad, which refers to precise information and allows users to disable the receipt of OBA ads
  • The above refers to the European Self-Regulatory programme for OBA, administered by EDAA. 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)

 

 

ICC

 

 

 

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International

 

 

 

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

 

 

2. OBA 

 

EDAA has published their latest 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

 

 

 

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

 

  • There are no rules specific to Comparative advertising in direct electronic communications (e.g. emails, SMS)
  • The Content rules set out in our earlier Section B apply; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT) and Sections 21-26 of the Consumer Code (EN / IT) in legislation;
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative included, should also be observed. The principal source is the IAP Code linked above. All the ‘general’ content rules can be found under the General tab in the Content Section B
  • The general channel rules also apply and can be found under the General tab below. These include, for example, statutory requirements for Consent and information for the opt-in regime that applies in Italy. If processing personal data, lawful processing rules from the GDPR may apply; privacy issues should be reviewed with specialist advisors

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

(DIRECT) ELECTRONIC COMMUNICATIONS INC SMS/MMS

 

  • Marketing communications via email/ SMS/ MMS are subject to the Content rules set out in Section B, except those that are specific to broadcast; the principal content rules are from the IAP Code IEN)
  • In legislation, the core Content regulations are from the Consumer Code LD 206/2005 EN, which covers misleading and aggressive commercial practices, including advertising (see below)
  • If associated data processing involves personal data (that which identifies individuals), lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • In this Channel rules context, the main regulatory issues are from legislation that deals with Consent, Identification and Information requirements. Details below

 

 

LEGISLATION MOST RELEVANT TO THIS CHANNEL 

 

  • The General Data Protection Regulation 2016/679 applied directly in EU member states from 25 May 2018
  • Nationally, the Personal Data Protection Code (DPC) article 130 EN; the DPC was amended in August 2018 to ‘recognise’ GDPR
  • E-Commerce Law LD 70/2003; Information requirements articles 7, 8 and 9 EN
  • Consumer Code (CC, EN) LD 206/2005 applicable to ‘business-to-consumer commercial practices’ i.e. ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (Section 18d CC). The Consumer Code has a broad remit, therefore. In this context, most relevant clauses Section 26 (e.g. harassment clause shown below at the base of this section) and sections 22 and 23 re misleadingness 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

 

GARANTE GUIDANCE 

 

  • Garante guidelines relating to promotional activity and the fight against spam, July 4 2013 Doc. No. 2542348 IT, Garante EN Doc. No. 4304228
  • Summary of above guidelines: ‘No to Spam, yes to consumer friendly marketing’ 23/07/2013 Doc. No. 2554512 EN; Doc. No. 2549317 IT
  • Resolution on consent in the use of personal data for 'direct marketing' purposes, by conventional and automated means May 15, 2013; DPA Decision 2543820 EN / IT 
  • How to lawfully Email advertising messages (IT)
  • Note: the above are relatively old documents and may not be fully consistent with GDPR lawful processing rules, but remain on the Garante website as at May 2021
  • Garante guidelines various; this link takes you to the guidelines home page (IT)

 

 

CONSENT/ EDPB GUIDANCE 

 

  • If Consent is the basis for lawful processing, the optimum source for Guidance for Consent under GDPR is from the Article 29 Working Party (now the European Data Protection Board)
    Guidelines on consent under Regulation 2016/679 (May 2020)
  • EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)

 

 

KEY CLAUSES

 

Section 121 (m) of the DPC: Electronic Mail is defined as any text, voice, sound or image message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient

 

  • Opt-in: use of email, MMS or SMS-type messages, addressed to both individuals and companies for the purposes of direct marketing or sending advertising materials, are only allowed subject to obtaining the prior consent of the consumer or business (based on Section 130 (2) DPC)
  • If the marketing communication is in an E-commerce context, i.e. relating to an Information Society Service Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services, information requirements from Articles 7, 8 and 9 of the E-Commerce Act LD 70/2003 (EN) apply
  • From the above, the marcom must clearly identify the sender and must be clearly identifiable as such. The recipient must also be informed that he/ she may object to the receipt of such communications in future
  • In the case of a promotional offer, with discounts, prizes or gifts, or promotional contests or games, 'conditions of access' and 'terms of participation' must be made available (Art. 8 of LD 70/2003, transposing Art. 6 of Directive 2000/31/EC)
  • The service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information
  • It is prohibited to send direct marketing emails which disguise or conceal the identity of the sender and do not provide a suitable address to enable the user to opt-out (Art. 130 (5) DPC)
  • If the communication constitutes an ‘Invitation to Purchase' Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase certain information must be provided, especially that related to price. Article 22 of the Consumer Code LD 206/2005 applies. This is a transposition of UCPD 2005/29/EC Article 7 here

 

 

SOFT OPT-IN 

 

  • Under Section 130 (4) DPC, where a data controller collects a customer’s email details in connection with a sale of a product or service and uses these details for direct marketing of its own products and services, consent of the user is not required provided that:
     
  • The products or services promoted by email are similar to those previously sold to the data subject
  • The data subject was previously informed that his/ her email address would be used for marketing purposes, and does not object to said use either initially or in the course of subsequent communications
  • At the time that the data was initially collected and on the occasion of each subsequent communication, the data subject must be informed of the possibility to object to the processing of his/ her data for marketing purposes, through simple means and without incurring any costs
 

 

GUIDELINES 

 

Garante document Guidelines on Marketing and against Spam - 4 July 2013 [4304228]

From the Garante summary document ‘NO to Spam, YES to Consumer-Friendly Marketing’

 

 

PROMOTIONAL OFFERS AND SPAM 

 

  • Promotional offers require prior consent. To send promotional messages and advertising via automated systems (pre-recorded calls, emails, faxes, SMS or MMS) the recipients´ prior consent must be obtained (opt-in requirement). This consent must be specific, free, informed and recorded in writing
  • Tighter controls must be in place on marketing companies. Clients commissioning marketing campaigns must be vigilant as appropriate to prevent spamming from contractors, sub-contractors or other entities they have entrusted with contacting prospective customers
  • Consent is necessary to use data on the Internet or social networks. The recipients´ specific consent is required before sending promotional messages to users of Facebook, Twitter and other SNS e.g. by posting such messages on the users´ virtual billboards – or to users of other messaging and VoIP services that are increasingly widespread such as Skype, WhatsApp, Viber, Messenger, etc. The fact that a data happens to be available on the Net does not mean that it may be used freely to send automated promotional messages or for any other 'viral' or 'targeted" marketing purposes
  • 'Grapevine' marketing does not require consent. Consent is unnecessary for emailing or texting promotional offers to friends in a personal capacity (i.e. for the so-called 'grapevine' marketing)

 

 

SIMPLIFIED RULES FOR COMPLIANT COMPANIES 

 

  • Promotional emails to own customers. It is OK to email promotional messages to one´s own customers regarding goods or services that are similar to those they have already purchased (this is the so-called "soft spam")
  • Brand/Company "Fan" Promotions. Companies and firms may send promotional messages to their 'followers' on SNS if these followers have clearly stated when signing in to the company´s page that they are interested in or give their consent to receiving such promotional messages on  a given brand, product or service
  • Obtaining consent once for multiple activities. It is enough to obtain consent once for all marketing activities, such as sending ads or performing market surveys. The consent provided to receive automated promotional messages (emails, SMS-texting) also applies to such messages when sent via paper mail or through operator-assisted phone calls. Where a company plans to collect users´ personal data to then disclose or transfer such data to other companies for promotional purposes, it may obtain the users´ consent once and such consent will apply to all the third parties that are referred to in the specific information notices to be provided to users'

 

 

AGGRESSIVE COMMERCIAL PRACTICE 

 

  • 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, without prejudice to Art. 130 of Legislative Decree No. 196 of 30 June (Art. 26 (1c) Consumer Code)​

 

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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

 

MARKETERS' OWN WEBSITES
Including Social Network spaces under their control

 

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. Advertising is defined in the applicable IAP Code here Definition  ‘Marketing communication’ shall refer to advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless of the modalities used, as well as forms of communication regulated by Title VI (social marketing)

 

  • There are no rules specific to Comparative advertising in Marketers’ own websites; as competitive claims may well be made in this environment, note that if such messages qualify as advertising (definition above), then they are within the remit of the IAP Code and the law set out in Content Section B
  • The Content rules set out in our earlier Section B apply to advertising/ marketing communications on own websites; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT)  and Sections 21-26 of the Consumer Code (EN / IT) in legislation
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative included, should also be observed. The principal source is the IAP Code linked above. All the general content rules can be found under the General tab, in the Content Section B
  • The general channel rules also apply and can be found under the General tab below. These include, for example, significant statutory requirements relating to Consent and Information requirements in all online channels
  • IAP’s ‘Digital Chart’ (IT / EN scroll down to ‘Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet’) regulates the most commonly used forms of online marcoms, including influencer marketing, native, in-app, SNS, advergames and establishes criteria for recognisability in line with article 7 of the IAP Code of Marketing Communication

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in Paid space also applies in Owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the IAP Code here Definition ‘Advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used, as well as forms of communication regulated by Title VI.’ (Charity appeals). Clearly, much content on owned websites won’t be advertising; for exemptions, e.g. UGC, see the EASA Recommendation linked below. The IAP’s Digital Chart is also important in this context, as it explains disclosure/ recognisability requirements for various forms of website marcoms. Issues arise from the introduction of the GDPR: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors

 

 

SELF-REGULATION 

 

  • IAP Code EN / IT Title I; in particular in this context, article 7 Identification; and Title II, article 18 Distance Selling, albeit the Code applies to advertising online generally and as identified above in owned websites 
  • IAP Digital Chart IT / EN covering Endorsements e.g. Celebrity/ Influencer/ Blogging, Vlogging, UGC, SNS, In-app, Advergames etc.
  • EASA’s Best Practice Recommendation Digital Marketing Communications establishes some exemptions such as User-Generated Content (unless endorsed by the marketer), under Section 2 of the linked document

 

 

KEY CLAUSES SELF-REGULATION

 

  • IAP Code Article 7 Identification: Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations 
  • IAP Digital Chart: for clauses, see the earlier Online Commercial Communications header in this Section C, or the linked Code (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’). Two relevant articles extracted below:

 

 
3) VIDEO
 
  • If a video produced and disseminated online are of a marketing communication nature, a prominent written disclosure must be inserted in the description of the video and in its opening scenes, that makes the promotional end-purpose of the video evident (by way of example: “brand presents…”, or “in partnership with… brand”)
  • In a live stream these warnings, even verbal, should be repeated periodically. In particular, the public must be informed about the inclusion of an advertiser or the videomaker’s products/brands for promotional purposes through ad hoc disclaimers in the video’s opening and closing shot, or when the products/brand feature in shots
  • Should on the other hand the relationship between the videomaker and advertiser not be underpinned by an existing agreement, but consist merely in the advertiser occasionally sending its products free of charge or for a modest consideration, and these products are mentioned, used or framed in the video, the videomaker must feature a written or verbal disclaimer of the following type: “this product was sent to me by…”, “product sent by…”.
  • As per the previous subsection, the advertiser must clearly and unequivocally inform the influencer when sending the product of the obligation to insert this disclaimer. In such cases, the advertiser’s liability is circumscribed to informing the influencer of this obligation’s existence
 

 

10) ADVERGAME

 

  • The promotional nature of an advergame must clearly be stated through the use of specific descriptors: “Promoted by … brand/ Promosso da … brand”, or “Sponsored by … brand/ Sponsorizzato da … brand”.
  • These descriptors must be placed within boxes at both the beginning and end of the game

 

 

LEGISLATION AND GUIDELINES 

 

  • Mandatory information that Information Society Service Providers (ISSPs) Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services must ensure is easily, directly and permanently accessible by recipients of its services Art. 7 LD 70/2003 (EN)
  • Information requirements prior to concluding a distance contract: Consumer Code LD 206/2005 article 49 (EN)
  • Provisions from Article130 of the Data Protection Code here (EN) will apply
  • The definitive guidance on Consent under GDPR is this WP29 Explanation Article 29 Working Party is or was the board of Data Protection Authorities around the EU; now replaced by the European Data Protection Board (EDPB) document: Guidelines on consent under Regulation 2016/679
  • EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)
 

 

VIRAL

 

Clause 6.2 Garante Guidelines on Marketing and against Spam, July 4 2013 EN:

 

  • "Viral" marketing is a marketing mechanism exploiting the communication potential of a bunch of direct recipients to convey a message to a substantial number of end-users. It evolved from the "grapevine" approach, from which it differs because the marketers´ intention to initiate a promotional campaign is unquestionable from the start. Like a virus, the message containing the concept, product or service that may prove interesting to a user is conveyed by that user to other contacts, who in turn pass it on to yet other contacts, and so on
  • "Viral marketing" is usually referred to Internet users that suggest or recommend certain products or services to other users. Of late, this marketing technique is being used increasingly for products that are not directly related to the Internet; however, the channel used for conveying messages remains the web community where communication is fast, free and friendly
  • To facilitate dissemination, marketers offer incentives, bonuses or other benefits to the recipients, who accept in exchange to forward (sometimes to email or text) the marketing message to other recipients
  • Where the above activity is performed via automated tools for marketing purposes, it may be a type of spam if the principles and rules set out above fail to be complied with as part of the legislation in force – with particular regard to Sections 3, 11, 13, 23 and 130 of the Code
  • At all events (Note: In any event?), the Code does not apply if a user, having received a marketing message, forwards such message on a purely personal basis - to recommend a given product or service to own friends - via automated tools. Conversely, the Code does apply to the processing of data performed by a user that forwards or discloses such a marketing message to multiple recipients after obtaining their personal data (phone numbers, email accounts) from either public directories or the Web
 
 

SOCIAL MEDIA 

 

Garante Guidelines on Marketing and against Spam, July 4 2013 Doc. No. 2542348 IT; Garante trans EN Doc. No. 4304228. Clause 6.1: Social Spam' 

EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)

 

 

 

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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’. It can be equally important to know what isn't advertising; the single most helpful source of remit issues in this context (that we are aware of) is the EASA Best Practice Recommendation on Digital Marketing Communications, which covers remit under pages 10/11, some of which is set out below. The other aspect of this environment that can be subject to regulatory issues is in '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)

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

 
 
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

 

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

 

 

  • Native is like any other advertising in as much as it is subject to the rules set out in our earlier Content Section B, which apply online and offline; both the Comparative-specific rules and the general rules apply, the latter shown under the General tab
  • Principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT)  and Sections 21-26 of the Consumer Code (EN / IT) in legislation
  • IAP’s ‘Digital Chart’ (IT / EN scroll down to ‘Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet’) regulates the most commonly used forms of online marcoms, including influencer marketing, native, in-app, SNS, advergames and establishes criteria for recognisability in line with article 7 of the IAP Code of Marketing Communication 
  • Article 7 sets out:  Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations (see above)

 

 

 

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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 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

 

 

SELF-REGULATION

 

IAP Code of Marketing Communication Self-Regulation EN / IT 

IAP Digital Chart IT / EN Native: in-feed units, paid search units, recommendation widgets

 

  • Key is Article 7 IAP Code: Marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures. With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations (linked above as IAP Digital Chart)
  • Rules for some native forms are shown below from the IAP Digital Chart. Or see the linked document (scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’)

 

 

6) In-feed units

 

  • In-feed units that have the nature of a marketing communication must make this evident through the insertion of labels in such a position and form as is suited to ensuring they are clearly visible. Here are some examples:

 

“Pubblicità/Advertising”, “Promosso da … brand/Promoted by … brand”

“Sponsorizzato da … brand/Sponsored by … brand”

“Contenuto Sponsorizzato/Sponsored content”

 “Post Sponsorizzato/Sponsored post”

“Presentato da … brand/Presented by … brand”

 

  • Including in combination with specific graphic effects, such as for example the insertion of frames and/or drop-shadows and/or highlighting of the text or shading

 

 

7) Paid search units

 

  • Paid search units must clearly show their marketing nature through a graphic separation of content from so-called organic search-related content, along with a descriptor that explicitly informs users that the content is of a promotional nature (such as, for example, “Pubblicità/Advertising”), placed close to the sponsored search result, and in such a manner as to be visible and evident
 
 

8) Recommendation widgets

 

  • Promotional content disseminated as recommendation widgets must make its nature as marketing communication evident through the adoption of one of the following methods:
 
  • An indication that the box contains sponsored content
  • An indication alongside individual items of content featuring the name or the logo of the advertiser and an indication of the content being sponsored
 
  • If the content is developed by a “technology provider” (the party that developed the widget), as well as stating the above information, it is also necessary to state its origin and mention the supplier’s name
 

 

LEGISLATION

 

 

'Blacklist': Article 23 (1) (m) and (aa) Consumer Code LD 206/2005 EN Blacklist EN

Misleading omission: Article 22(1), (2) and 22 (5) Consumer Code (LD 206/2005)

 

 

The Blacklist

 

Relevant extracts from the list of commercial practices which in all circumstances are misleading 

 

  • Without prejudice to the provisions of the AVMS Code EN (LD 177/ 2005, requires that broadcast commercial communications are readily recognisable) 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) (Art. 23 (1) (m))
  • Falsely claiming or creating the false impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely passing oneself off as a consumer (Art. 23 (1) (aa))

 

 

Misleading omission

 

  • Article 22 (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, thereby causing or being likely to cause the average consumer to take a transactional decision that they would not have taken otherwise
  • Article 22 (2): it shall also be regarded as a misleading omission when… a trader… 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 they would not have taken otherwise
  • Under Article 22 (5): information requirements under E-Commerce Law (LD 70/2003) will be regarded as material; Article 8 (1) of LD 70/2003 states: marketing communications that constitute an information society service or form an integral part thereof must contain specific information, from first dispatch, clearly and unequivocally, aimed at indicating a) that this is a marketing communication. This will apply to online communications

 

 

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International

 

 

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

 

 

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

 

  • There are no rules specific to the Direct Postal Mail channel for Comparative advertising in Italy
  • The Content rules set out in our earlier Section B apply; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT) and Sections 21-26 of the Consumer Code (EN / IT) in legislation;
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative advertising included, should also be observed. The principal source is the IAP Code linked above. All the ‘general’ content rules can be found under the General tab in the Content Section B
  • The direct postal mail consent regime in Italy is less clear than in most European markets, where opt-out applies. The DPA (Data Protection Authority Garante) Decision Doc. No. 1526724 shown below under the General tab applies the ‘soft opt-in’ system from the Data Protection Code to paper mail.
  • If processing personal data, lawful processing rules from the GDPR may apply; privacy issues should be reviewed with specialist advisors
  • As Direct Postal Mail will often include offers, be aware of the informational requirements when making an ‘invitation to purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase. These requirements are set out under Section 22 (4) of the Consumer Code linked above

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

REGULATIONS MOST RELEVANT TO THIS CHANNEL 

 
  • The rules set out in Content Section B apply to commercial communications in Direct Postal Mail, except those specific to online and to broadcast. Principal source of rules is the IAP Code of Marketing Communication (EN)
  • In legislation, the Consumer Code is applicable to ‘business-to-consumer commercial practices’ i.e. ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (Section 18d CC). See below for e.g. rules re ‘Invitation to Purchase’ (often deployed in direct mail)
  • The introduction of the GDPR 2016/679 from May 2018 may impact on processing operations: if the mailing database involves the processing of personal data (i.e. data that can identify an individual), then it may be subject to GDPR lawful processing rules. Privacy issues should be reviewed with specialist advisors
  • The Data Protection Code (DPC; EN), amended in August 2018 to incorporate elements of the GDPR, applies
  • DPA Decision Doc. No. 1526724 (IT) extends the 'Soft Opt-in' principle established in Section130 (4) of the DPC to Direct Mail
  • As Direct Postal Mail frequently includes ‘offers’, rules from the Consumer Code (EN) relating to an ‘Invitation to Purchase’, apply if the marketing communication meets the definition (see below)

 

 

KEY CLAUSES

 

  • The opt-out system established in Article 130 (3) for telemarketing has been extended (Decree Law 70/2011) to incorporate Direct Mail advertising. This means that when data (i.e. postal addresses) are processed from printed and electronic telephone directories for the purposes of marketing by direct mail, it will not be necessary to obtain prior consent from the user/ contracting party provided that their address is not on the opt-out register
  • As with telemarketers, companies will be able to carry out marketing activities by postal mail provided they subscribe to the opt-out register and cleanse/ match their lists against the register to ensure that they do not contact those users/ contracting parties who have registered an objection
  • Soft Opt-in: Definition The law allows the data controller to use the address already provided by the party concerned (company/ individual) for direct marketing of the own products or services, provided the products are similar to those previously soldDPA Decision 19/06/2008 (IT) allows the use of ‘soft spam’ in the context of direct mail as per provisions from Section 130 (4) DPC in the context of email marketing. It is permitted to send direct marketing mail if a commercial relationship already exists 
  • Where a data controller collects a customer’s postal address in the context of a sale of a product or service and uses that address for direct marketing of its own products and services, consent of the user/ contracting party is not required provided that:
     
  • The products or services are similar to those previously sold
  • The interested party (individual/ company) has been adequately informed of the possibility not to receive further commercial communications either at the point of initial contact or via subsequent communications
     
  • This same principle has been re-iterated in the Guide 'Privacy: working with business' issued on 28 May, 2013 (see 2nd column, p. 14) here (IT)
  • Counsel have concluded that whilst the Garante has not (expressly) excluded the extension of the soft-spam exception to postal marketing, a cautious approach would still be recommended in this regard; check with advisors

 

 

INVITATION TO PURCHASE

 

Article 22 of the Consumer Code (EN)

 

In the case of an invitation to purchase Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase the following information shall be regarded as material, within the meaning of paragraph (1), if not already apparent from the context:

 

  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 by the consumer
  4. The arrangements for payment, delivery, performance and the complaints 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

 

 

 

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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

 

  • If comparative advertising claims are made in material at sponsored events or in field marketing, that material will be subject to the rules set out in our earlier content Section B
  • Principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT) and Sections 21-26 of the Consumer Code (EN / IT) in legislation;
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative advertising included, should also be observed. The principal source is the IAP Code linked above. All the ‘general’ content rules can be found under the General tab in the Content Section B
  • The general sponsorship rules, i.e. those that apply to all forms of advertising Comparative include, are shown below under the General tab.  ICC Sponsorship rules are a solid ‘catch-all' for sponsorship activity nationally and internationally; see Chapter B of the ICC Advertising and Marketing Communications Code; clauses under the General tab below

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

  • There is no Sponsorship Code per se in Italy
  • Sponsorship material should observe the Content rules set out in Section B; principal source of rules is the IAP Code of Marketing Communication (EN)
  • Some product categories, such as Alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs main website/ HP
  • ICC Sponsorship rules are a solid ‘catch-all' for sponsorship activity nationally and internationally; see Chapter B of the ICC Advertising and Marketing Communications Code; extracts 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/ inform

 

 

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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

 

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.

 

 

  • Sales Promotional material should observe the content rules set out in our earlier Content Section B; principal sources of rules are the IAP Code of Marketing Communication in Self–Regulation (article 15 for Comparative advertising rules), and Section 4 of Legislative Decree No. 145/2007 (EN / IT) and Sections 21-26 of the Consumer Code (EN / IT) in legislation
  • In a promotional context, Section 4 (3) of Legislative Decree 145/2007 states: any comparison referring to a special offer must clearly and unequivocally indicate the deadline date for the offer or, if the special offer has not yet started, the starting date of the period in which the special price or other particular conditions shall apply or, if relevant, the fact that the special offer depends on the availability of the goods and service
  • The general Content rules, i.e. those that apply to all forms of advertising, Comparative included, should also be observed. The principal source is the IAP Code linked above. All the general content rules can be found under the General tab in the Content Section B
  • The general channel rules also apply and can be found under the General tab below. These include, for example, some significant statutory requirements from the Consumer Code relating to promotional pricing and to ‘invitation to purchase’, for which there are informational requirements set out under Section 22 (4) of the Consumer Code linked above

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT 

 

This website was created to provide international rules on marketing communications; we do not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation, or law on the mechanics and administration of promotions. Italy in particular has some intricate legislation that we show below, but which we recommend be managed/ interpreted by specialist advisors. Self-Regulatory codes and Consumer Protection legislation relating to promotional pricing is also shown below.

 

Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal;

Sales Promotional material should observe the Content rules set out under the earlier Content Section B 

 

 

LEGISLATION 

 

  • Article 8 E-Commerce Law EN (LD 70/2003) applies to promotions advertised online, which must:

 

  • Be clearly identifiable as a commercial communication
  • Clearly identify the person or legal entity on whose behalf the commercial communication is sent
  • Provide details of any promotional offers such as discounts, prizes and gifts and their terms and conditions
  • Provide details of any promotional competitions and games, where permitted and their conditions of participation

 

  • Consumer Code EN LD 206/2005; Legislative Decrees No. 145/2007 and 146/2007, implementing Directives 2006/114/EC and 2005/29/EC on misleading and comparative advertising and unfair commercial practices respectively. The Code sets out those commercial practices that will be considered unfair in all circumstances (Art. 23), and aggressive commercial practices in articles 24-26 inclusive

 

 

Promotional pricing


See also Pricing requirements under Point 3.2 in our Content Section B

 

  • From Article 23 of the Consumer Code; commercial practices which in all circumstances are misleading (relevant extracts only):

 

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

f) Making an invitation to purchase products at a specified price and then:

 

1. Refusing to show the advertised item to consumers, or

2. Refusing to take orders for it or deliver it within a reasonable time, or

3. Demonstrating a defective sample of it with the intention of promoting a different product (bait and switch)

 

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

 

  • In the context of prize promotions, the following is an aggressive commercial practice: 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 (Art. 26 (h) Consumer Code)

 

 

Additional prize promotions legislation 

 

  • Decree of the President of the Republic of 26 October 2001 No. 430 (DPR); Ministry Decree 2010/19313/Games/LTT of July 5th 2010; see also Links Section E for complete list of regulations relevant to Sales Promotions
  • DPR 430/2001 regulates both Prize Contests/ Competitions (Concorsi a premio) and Prize Operations (Operazioni a premio). Prize contests/ competitions operate by means of chance or skill, whilst prize operations award a prize to all those who purchase or sell a particular product or a certain quantity of products

 

 

Key Points/ obligations for promoters

 

  • Scope: Any activity related to the promotion must be carried out in Italy (Art. 1 DPR); in the case of online prize promotions, the server on which the competition is run/ which collects the entries must be located on Italian territory
  • Prize competitions and operations can only be carried out by industries that manufacture or commercialise the products or services being promoted, or by a consortium of such industries (Art. 5 (1) DPR)
  •  Non Italian companies (whose headquarters are not based in Italy) will be obliged to appoint a specifically designated fiscal representative, resident in Italy, to conduct/ organise the prize contest or operation (Art. 5(2) DPR)
  • The Promoter can appoint a promotional agency to fulfil the relevant requirements, e.g. completing the documents and issuing the insurance/ security policy for the promotion (Art. 5 (3) DPR)
  • The winner must be selected either in the presence of an Italian Notary or an Officer of the Chamber of Commerce (so as to guarantee public faith in accordance with Art. 20 LD 112/1998). If the method used for the awarding of the prizes requires technical knowledge (i.e. where winners are selected electronically), the notary must be supported by an appropriate expert (Art. 9 (1) DPR)
  • Money cannot be offered as a prize (Art. 4 DPR)
  • Be aware that there are tax implications for sales and promotions, and specialist advice should be sought
  • Prior notification of the prize contest and operation is required to the Ministry of Economic Development (Exec. Decree 2010/19313)

 

 

Prize contest/ competition

 

  • Cannot last for more than one year from commencement date (Art. 1 (3) DPR)
  • The prior notice, in addition to the competition rules (terms and conditions) and a bank guarantee/ security equal to the aggregate value of the prizes must be filed with the Ministry of the Economic Development at least 15 days prior to the start of the contest/ competition via an online facility at www.impresa.gov.it  (Exec. Decree 2010/19313 and Art. 7 (1a) DPR)
  • In addition to providing a guarantee equal to 100% of the prizes offered, promoters cannot deduct VAT on the prizes of promotions and must pay  tax equal to 25% of the value of the prizes awarded (Art. 30 DPR 600/1973)
  • Prize winners should receive their prizes within 180 days of the closure of the promotion (Art. 7 (3) DPR)
  • In case of Online Prize Promotions, the server collecting the entries must be located in Italy. If the server is abroad, the registrations must be reflected real time from the external server to the Italian server
  • Further information here

 

 

Prize operation

 

  • Cannot last for longer than five years from their commencement date (Art. 1 (3) DPR)
  • Prior notice to the Ministry of Economic Development just has to be given prior to the start of the operation (no time limit) along with a bank security equal to 20% of the general value of the prizes (Art. 71b DPR)
  • Notification should be made via the Prema online service at www.impresa.gov.it
  • A notarised declaration of the terms and conditions (including details of promoters, duration, territorial scope, methods of implementation, nature, approximate value of prizes, term of delivery) should be held in the company’s registered office for a period of 12 months following the conclusion of the operation (Art. 10 (3) DPR)
  • The prizes must be issued within 6 months from the conclusion of the prize operation or the date of their request (Art. 1(3) DPR)
  • Further details here
 
 

SELF-REGULATION 

 

From the IAP Self-Regulation Code of Marketing Communication

 

 

Article 20. Special sales

 
  • Marketing communication relating to special sales of any kind, in particular promotional sales, should clearly specify the additional benefit deriving from the purchase, as well as the duration of the offer. The duration of the offer does not need to appear on the packaging
 
 

Article 21. Prize promotions

 
  • Marketing communication relating to prize promotions involving competitions or premium operations, should provide consumers with clear and simple information on eligibility to participate, closing dates and prizes; for competitions the information should include the number and total value of prizes, the procedure for awarding prizes and the media to be used for publicising the results

 

 

From the ICC Advertising and Marketing Communications Code, Chapter A

 

 

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
 

 

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

 

 

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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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Read more

D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

COPY ADVICE

 

IAP (the self-regulatory body Istituto dell’Autodisciplina Pubblicitaria) provides copy advice on request and subject to a fee of 900€ + VAT for IAP members and 1.000€ + VAT for non-members. The whole list of tariffs can be found here on the IAP website.

 

The validity and completeness of the information, supplied with the approval of the advertisement, binds the IAP Review Board not to intervene against the approved communication. Copy advice is given within five working days, but particularly complex cases may require up to eight working days. In practice, however, the process usually takes less time. IAP can also offer an “express copy advice” within 24 hours.

 

The IAP website home page is http://www.iap.it

 

 

COMPLAINTS HANDLING 

 

 

  • IAP handles complaints from consumers, competitors and other interested parties
  • Fee: 
     
    • Consumers: Free
    • Competitors: 3,500€ (IAP members) and 4,000€ (non-members)
       
  • Complaints must be submitted via an online form or in writing
  • File a complaint here
  • View decisions - here

 

 

CLEARANCE

 

 

Direct to broadcaster

Allow 3-5 days TV/VOD

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

 

LEGISLATION

 

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

 

Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising:

 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31984L0450:EN:HTML

 

MACAD

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version). This is the core directive that establishes the platform for rules for comparative advertising in European member states. Key article is No. 4, which sets out that the underlying principle is that comparative advertising may not be misleading under the terms of the definition provided in the Directive article 2 (b) or those in Articles 6 and 7 of Directive 2005/29/EC (see below). The key clause under article 4 is that which states comparative advertising must compare 'goods or services meeting the same needs or intended for the same purpose':

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Unfair 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 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’): This is the European legislation that most impacts marketing and advertising in Europe. The Directive inter alia sets out provisions relating to misleading and aggressive commercial practices, incorporating marcoms rules for e.g. an invitation to purchase, and a 'blacklist' - commercial practices which are in all circumstances considered unfair' - under Annex I:

https://eur-lex.europa.eu/eli/dir/2005/29/oj

 

 

National legislation

 

Comparative advertising

 

Legislative Decree of 2nd August 2007, No. 145 (GU 207 of 09/06/2007). Implementing Article 14 of Directive 2005/29/EC, amending Directive 84/450/EEC on misleading advertising (now codified as Directive 2006/114/EC concerning misleading and comparative advertising). Entry into force 21/09/2007. The Decree is exclusive to the protection of businesses, in line with Directive 2006/114/EC, protecting businesses from misleading advertising (used by other businesses) and its consequences (Art. 3). It also sets out the conditions under which comparative advertising in any medium is considered lawful (Art. 4). The legislative decree now covers advertising between businesses only where such advertising may harm a competitor, but does not cause direct consumer detriment. Where a consumer is affected, then the provisions of the Consumer Code apply:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2007-08-02;145!vig=

AGCM translation:

https://en.agcm.it/en/scope-of-activity/consumer-protection/detail?id=4eed4de2-6465-40a0-9524-c9dccc7135f7&parent=Legislation&parentUrl=/en/scope-of-activity/consumer-protection/legislation

 

Civil Code 

 

Italian Civil Code; Royal Decree of 16th March 1942 No. 262 Approval of the text of the Civil Code. (GU 79 of 04.04.1942); entry into force: 19.4.1942.

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:regio.decreto:1942-03-16;262!vig=  

Relevant articles Section 2598: outlines the basic principles of unfair competition that does not include any direct reference to advertising. However, case law appears to have had the effect of incorporating misleading, confusing or denigrating advertising within the meaning of acts of unfair competition. For example, in the L’Oréal v Johnson & Johnson case, comparative advertising was deemed to constitute unfair competition. Article 2598 (3) describes the basis used to identify unfair competition not laid down in the other paragraphs of the article. The article states: “anyone commits an act of unfair competition who directly or indirectly uses any other means which do not comply with the principles of professional fairness, and are likely/ able to damage another’s company/ business”. The Code also covers the protection of distinctive signs and the appropriation of the qualities of a competitor’s products or business. English translation of key articles:

http://www.g-regs.com/downloads/ITCivilCode2250_2598.pdf

 

Consumer Code

 

Legislative Decree September 6, 2005, No. 206 Consumer Code, in accordance with Article 7 of the Law of 29 July 2003 No. 229. (Codice del Consume; GU 235 of 10.08.2005 Ord. Sup. No. 162. Entry into force 23/10/2005). All relevant EU consumer legislation has been assembled into a consolidated Act. The Consumer Code is the single Act which covers and consolidates all the different stages in the consumer dealings, from advertising to correct information, from consumer contracts in general to product safety, access to justice and consumer organisations. The Code applies to all forms of advertising regardless of the specific means used. Its relevance to Comparative advertising is its connection to misleading advertising, identified under article 4 LD 145/2007

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=

AGCM translation:

https://en.agcm.it/en/scope-of-activity/consumer-protection/detail?id=19e078de-f7e6-4f67-8ed0-eb1d3a768573&parent=Legislation&parentUrl=/en/scope-of-activity/consumer-protection/legislation

 

 

SELF-REGULATION

 

Industry codes - IAP

 

The IAP Code of Marketing Communication Self-Regulation. 68th edition effective February 9th, 2021. (Codice Di Autodisciplina Della Comunicazione Commerciale). The IAP (Istituto dell’Autodisciplina Pubblicitaria) is Italy’s advertising standards authority, regulating advertising since 1966. Rules within the Code are enforced by the Review Board (Comitato di Control) and Jury (Giurì). The Code is binding “for advertisers, agencies, advertising and marketing consultants, media of any kind, and for anyone who has accepted the Code directly or by membership of an association, or through an agreement to execute marketing communication as described under para. d)”. The Code is applicable to all media and includes general rules and behaviours as well as some special rules such as alcohol communications and advertising to children and young people. Key articles in the context of comparative advertising issues are Article 13 Imitation, Confusion and Exploitation, Article 14 Denigration and Article15 Comparative Advertising:

https://www.iap.it/about/the-code/?lang=en

 

The IAP’s Digital Chart regulates the most commonly used forms of online marcoms, including influencer marketing (blogging/ vlogging/ celebrity), native, in-app, SNS, advergames, and establishes criteria for recognisability in line with article 7 of the IAP Code of Marketing Communication:

https://www.iap.it/codice-e-altre-fonti/regolamenti-autodisciplinari/regolamento-digital-chart/

https://www.iap.it/regulations/?lang=en

The second link above is to the IAP English translation. Scroll down to ‘Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet’).

 

Jury rulings can be found here (in Italian):

http://www.iap.it/il-diritto/decisioni/pronunce-del-giuri/

 

 

 

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General

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 May 25 2018

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

The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

 

European Data Protection Authority

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

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
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

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. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. 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

 

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.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

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. 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 (4 November 2020)

 

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

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

 

Consumer protection

 

Consumer Code. Legislative Decree No. 206 of 6 September 2005. Entry into force 23/10/2005. The Code applies to all forms of advertising regardless of the means used. Key amendments are from Legislative Decree August 2, 2007, No. 146 implementing Directive 2005/29/EC (see arts. 18-27 Consumer Code), and Legislative Decree February 21, 2014 No. 21 implementing the Consumer Rights Directive 2011/83/EC (arts. 45-67 Consumer Code):

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=

AGCM translation here

 

Business protection 

 

Legislative Decree of 2nd August 2007, No. 145. Implementing Article 14 of Directive 2005/29/EC, amending Directive 84/450/EEC on misleading advertising, now codified as Directive 2006/114/EC concerning misleading and comparative advertising. Entry into force 21/09/2007. The Decree is exclusive to the protection of businesses, as Directive 2006/114/EC applies to B2B relations. Article 4 sets out the conditions under which comparative advertising is considered lawful. The Decree covers advertising only where such advertising may harm a competitor, but does not cause direct consumer detriment. Where a consumer is affected, the Consumer Code is applicable.

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2007-08-02;145!vig=

AGCM translation is here

 

Italian Civil Code

 

Royal Decree of 16 March 1942 No. 262. Approval of the text of the Civil Code. (GU 79 of 04.04.1942) Entry into force 19.4.1942:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:regio.decreto:1942-03-16;262!vig=  

- Section 2250 provides the information that must be shown on websites/ emails; mirrors the provisions set out in Article 7 LD 70/2003

- Section 2598 outlines the basic principles of unfair competition and does not include any direct reference to advertising. However, practice in some case law has taken advantage of the broad definition provided in article 2598 (3) to incorporate misleading, confusing or denigrating advertising within the meaning of acts of unfair competition. In the case L’Oreal v Johnson & Johnson, comparative advertising was deemed to constitute unfair competition. Article 2598 (3) states that: “anyone commits an act of unfair competition who directly or indirectly uses any other means not in conformity with the principles of professional correctness, and able to damage another’s company”. English translation of key articles:

http://www.g-regs.com/downloads/ITCivilCode2250_2598.pdf 

 

E-commerce

 

Legislative Decree of 9th April 2003, No. 70. Entry into force 14/05/2003. Implementing Directive 2000/31/EC on certain legal aspects of information society services; known as the E-Commerce Directive. This decree applies to Information Society Service Providers (ISSP’s), defined as “any service normally provided for remuneration, at a distance, by electronic means, and at the individual request of a recipient of the service” (Art. 2 LD 70/2003). The requirement for an ISS to be “normally provided for remuneration” does not restrict scope to services giving rise to buying and selling online; the Decree also covers services that are not directly remunerated by those who receive them, such as those services offering online information. The Decree establishes information requirements for commercial communications, i.e. any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity, or exercising a regulated profession (Art. 8). Article 12 sets out information required to conclude a contract electronically.

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-04-09;70!vig=

English translation of relevant articles:

http://www.g-regs.com/downloads/ITLDApr03Ecommerce.pdf

 

 

Privacy/ GDPR implications

 

Law 20 November 2017, No. 167 Provisions for the fulfilment of the obligations deriving from Italy's membership of the European Union - European Law 2017: Entry into force 12/12/2017. (LEGGE 20 novembre 2017, No. 167 Disposizioni per l'adempimento degli obblighi derivanti dall'appartenenza dell'Italia all'Unione europea - Legge europea 2017). This ‘enabling’ law prepared for Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data:

http://www.gazzettaufficiale.it/eli/id/2017/11/27/17G00180/sg

 

Guidelines from the national authority

 

From the Italian Data Protection Authority Garante per la Protezione dei data Personali Guide on the application of EU Regulation in the matter of protection of personal data updated edition February 2018 (IT)

http://www.g-regs.com/downloads/ITGenGuidaallapplicazionedelRegolamentoUE2016_679.pdf

 

 

Personal data

 

Legislative Decree of 30th June 2003, No. 196. Personal Data Protection Code (containing provisions for the adaptation of national law to Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals concerning the processing of personal data and the free movement of such data and repealing Directive 95/46 / EC). Entry into force 01/01/2004. The Decree originally implemented Data Protection Directive 95/46/EC and Directive 2002/58/EC, the E-Privacy Directive. The Legislative Decree of 10 August 2018, No. 10 re-named the Code and applied amendments resulting from the introduction of GDPR, essentially repealing and re-structuring large sections; see link below. The core Consent rules from articles 23 and 24 are now assigned to the GDPR regime. Title X, Chapter I covers privacy in electronic communications, providing opt-in/ opt-out requirements for marketing across various channels, implementing Directive 2002/58/EC. The key Section 130 is amended in some data processing aspects, but its opt-in provision remains. There is comment in Italian regulatory circles that the legitimate interest aspect of the GDPR does not seem to be addressed. See DLA Piper blog here. The regulatory authority is the Data Protection authority garante per la protezione dei dati personali; see entries below

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-06-30;196!vig= (IT)

English translation from Garante:

https://garanteprivacy.it/documents/10160/0/Data+Protection+Code.pdf/7f4dc718-98e4-1af5-fb44-16a313f4e70f?version=1.3

 

 

The DPA

 

Note: the arrival of the GDPR created a new regime in the lawfulness of the processing of personal data. Most of the entries/ DPA decisions below were established pre GDPR. While decisions may well remain applicable (some are not impacted by GDPR, and some may anyway be consistent with GDPR), interpretation of the different aspects of decisions to different aspects of marketing communications may vary. In short, especially while this territory is somewhat uncertain, the opinion of specialist advisors should be obtained

 

Data Protection Authority (Garante per la protezione dei dati personali). The DPA or ‘Garante’ was established in 1997 when the former Data Protection Act came into force (675/1996). It is an independent authority set up to protect fundamental rights and freedoms in connection with the processing of personal data.

www.garanteprivacy.it

The application of EU Regulation in the matter of protection of personal data; updated edition February 2018:

http://www.g-regs.com/downloads/ITGenGuidaallapplicazionedelRegolamentoUE2016_679.pdf (IT)

Relevant DPA decisions: All the below in one file:

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

Guidelines on the processing of personal data for online profiling; March 19, 2015

https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3881513 (IT)
FAQ on Cookies
https://garanteprivacy.it/web/guest/faq/cookie
Guidelines on promotional activities and the fight against spam; 4 July 2013 
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/254234 (IT)

How to lawfully email advertising messages 
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1589969 (IT)
European Regulation: Guidelines for DPOs; May 24 2021
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9589388 (IT)

Guidelines for cookies and other tracking tools; June 10 2021

www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9677876 (IT)

 

See also under the header Direct Marketing below 

 

B2B unsolicited communications

 

DPA Decision 13 November 2012. This decision is on the applicability of Section 130 (Data Protection Code – LD 193/2003)) relating to protection from unsolicited marketing. It confirms that the provisions on marketing obligations are still applicable to legal entities and not only to natural persons. The decision came in response to legislative amendments (Decree Law 201/2011), which excluded legal entities from the definition of ‘data subject’ and consequently protection from unsolicited communications. Decree No. 69/2012, subsequently amended the Code to replace 'data subjects' with 'contracting parties', extending the protection to legal entities once again. Garante confirmed that while legal entities now benefit from the protection under section 130 as 'contracting parties', they remain excluded from other sections, which still refer to 'data subjects' or 'personal data'.

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2094796 IT)

 

 

Privacy/ Opt-out register

 

Presidential Decree 7 September 2010, No. 178. Regulation establishing and managing the public register of subscribers who are opposed to the use of their phone number for sales or sales promotions. Entry into force 17/11/2010The Presidential Decree created the public opt-out register or Register of Opposition (registro pubblico delle opposizioni as referenced in Article 130 (3-bis) of the Data Protection Code in relation to telemarketing activities, which now allows companies to make unsolicited telemarketing calls to any individual whose number is listed in a public telephone directory (electronic/ printed) provided that they have not objected by registering their telephone number on the Register. In July 2011, the opt-out system was extended to include direct mail (Decree Law 13 May 2011, No. 70).  In English (Garante translation):

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1788873 

Law of January 11, 2018, No. 5. New provisions on the registration and functioning of the register of oppositions and establishment of national prefixes for telephone calls for statistical, promotional and market research purposes:

www.gazzettaufficiale.it/eli/id/2018/02/03/18G00021/sg (IT)

Opt-out Register registro pubblico delle opposizioni. The Register is a 'do not call' list of telephone numbers; legal entities as well as individuals are entitled to register (see definition of subscriber in DPR). The Data Protection Authority La Garante supervises the operation of the Register as per Article 130 (3-quart) DPC, 3c in the amended version of the Code.

 

 

Cookies

 

Legislative Decree 28 May 2012, No. 69. Amending Legislative Decree 30 June 2003, No. 196, establishing the law relating to the protection of personal data in the implementation of the Directive 2009/136/EC, which amended Article 5 (3) of Directive 2002/58/EC (E-Privacy Directive). Article 122 introduces new provisions on the use of cookies by website operators: that storing information on users’ equipment or access to information stored therein is allowed only on condition that users are informed on the use of cookies on the relevant website and that users provide their consent. 

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2012-05-28;69!vig=

English translation of Article 122:

http://www.g-regs.com/downloads/ITLD196-2003Sect122Cookiesb.pdf

 

Guidance on cookies

 

FAQ’s on Cookies: 18/12/2012 Doc-Web No: 2146935 (in English). Ruled that consent could be given by browser settings as long as the process was user- friendly and easy to understand:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2146935 (English version; Italian version 2142939)

Simplified Arrangements to Provide Information and Obtain Consent Regarding Cookies 8th May 2014 Doc. No. Web: 3167654 (in English). The decision advocates the use of a two-layer privacy notice consisting of a web banner containing specific information notifying the user of cookie use, followed by a link to more detailed privacy notice. Continued browsing following the display of the privacy notice can constitute consent. This can be implied from a positive action on the part of the user, such as removing the banner via a click or selecting another item on the website.
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3167654 

(English version; Italian version: 3118884)

Clarification on the implementation of the legislation on cookies 05/06/2015which elucidates some points from the decision 08/05/2014 above. In Italian:

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/4006878​

FAQ regarding the Notice and Consent to the use of cookies. In Italian: 
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3585077

Guidelines for cookies and other tracking tools; June 10 2021

www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9677876 (IT)

 

 

Direct mail

 

Italian DPA via its decision dated 19 June 2008 (published in Italy's Official Journal no. 152 dated 1st July 2008 as well as on www.garanteprivacy.it under web document No.  1526724, link below). Re Soft Opt-in principle outlined in Art. 130 (4) of the DPC for email marketing extended to Direct mail marketing:

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1526724

 

 

Direct marketing (General)

 

Guidelines relating to promotional activity and combating spam: July 4th 2013: Doc. No web. 2542348The Guidelines lay down the first consolidated set of measures and precautions helping companies plan marketing campaigns with special focus on unsolicited marketing using social networking services (SNS), viral and targeted marketing. Doc. No. 2542348 (IT) GRS trans EN; Garante trans EN Doc No. 4304228

Section 2: Consent to processing of personal data for purposes of direct marketing. Section 6.1: Social Media and 6.2: Viral Marketing. IT:

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2542348

English translation of key provisions:

http://www.g-regs.com/downloads/ITGaranteDoc2542348B.pdf

DPA Guidelines 23/07/2013 No. 2554512. 'No to spam, yes to consumer friendly marketing' (EN). Guidelines by the Garante on unsolicited commercial communications. Provides a summary of the guidelines from Doc. No 2542348. EN:

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2554512

IT:

http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2549317

General decision: Consent to data processing for direct marketing purposes by means of traditional and automated systems. May 15, 2013 Doc. No. Web 2543820. This Decision aims further to simplify the requirements applying to direct marketing. It complements Doc No. 2542348 and clarifies that consent obtained for the purposes of direct marketing by means of emails, sms, fax etc…(as per Art. 130(1&2) DPC) also covers marketing carried out by more traditional methods such as telemarketing, direct mail:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2543820 (IT)
English translation of key provisions:

http://www.g-regs.com/downloads/ITDPADocNo2543820B.pdf

 

 

Sales promotions

 

D.P.R. (Presidential Decree) No. 430 of 26 October 2001 on ‘Regulations concerning the comprehensive revision of standards governing contests, reward-based loyalty programmes and local draws pursuant to article 19 (4) of Law 449/1997 of 27 December’. The Decree regulates both prize competitions and prize operations, the two types of sales promotions with prizes that are permitted in Italy. Prize Contests (concorsi a premio) are awarded on the basis of chance (raffle) or special skill; Prize Operations (Operazioni a premio) concern the provision of prizes to each and every purchaser of a product. Prior notification to the Ministry of Economic Development (via Prima online at www.impresa.gov.it) is required. 

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.del.presidente.della.repubblica:2001-10-26;430!vig=2014-10-10

Consumer Code LD 206/2005 (shown above under Legislation) implements the Unfair Commercial Practices Directive 2005/29/EC. Sales promotions fall within the scope of the Directive: commercial practices such as combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers are regulated by its provisions, transposed into the Consumer Code.

Note: The above selections are only two important regulations within Sales Promotions, which is a heavily regulated activity in Italy. The full list of decrees can be found here:

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

 

Channel legislation

 

The Consolidated Text on Radio and Audiovisual Media Services (Testo unico dei servizi di media audiovisivi e radiofonici), known as the AVMS Code; Legislative Decree No. 177 31st July 2005. The AVMS Directive 2007/65/EC, codified 2010/13/EC, was implemented by Legislative Decree No. 44/2010, the ‘Romani Decree’, which amended the original Broadcasting Code so as to align it to the AVMS Directive. The AVMS Code regulates TV and Radio and incorporates all audiovisual media services (linear: analogue and digital TV, live streaming, webcasting and near VOD; non-linear: VOD). The Act is enforced by the Italian Communications Authority AGCOM who adopted two regulations in 2010 which confirmed that the scope of the regulations will extend to those service providers that have editorial responsibility and an annual income in excess of €100,000; it will not include UGC portals such as Youtube, Vimeo. Consolidated text:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-07-31;177!vig

English translation of key provisions:

http://www.g-regs.com/downloads/ITLDSingle177-2005AVMSCode.pdf

 

Law No. 112 of 3 May 2004 (‘Gasparri Law’). Regulations establishing principles for the organisation of the radio and television system and Rai-Radiotelevisione Italiana SpA, as well as granting authority to the Government to issue a consolidated radio and television lawRAI is Italy’s national public broadcasting company; article 10 Protection of Minors in TV programmes mirrors the AVMS Code and Framework Law (125/2001), stating broadcasters must observe the Self-Regulatory Code on Media and Minors. Broadcasters are also required to apply specific measures in programming from 16.00 to 19.00 and within programmes aimed at minors. Consolidated text:

http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2004-05-03;112!vig=

The Self-Regulatory Code on Media and Minors (EN):

http://www.g-regs.com/downloads/IT_MinorsSelf-RegCodeTV.pdf

 

 

SELF-REGULATION

 

 

The IAP Self-Regulation Code of Marketing Communication, 68th edition effective February 9th, 2021 (Codice Di Autodisciplina Della Comunicazione Commerciale). The IAP (Istituto dell’Autodisciplina Pubblicitaria) is Italy’s advertising standards authority since 1966. Rules are enforced by the Review Board (Comitato di Controllo) and Jury (Giurì). The Code is binding only on IAP members or those advertisers otherwise contracted. Scope: The term 'marketing communication' is defined as any type of communication, either private or public, including advertising, used to promote the sale of goods or services irrespective of the means used. The Code includes general rules and behaviours to which marcoms must comply in Title I. Special Rules of the Code in Title II covers A. marcoms rules applicable to sales systems and B. specific product categories. The Code also incorporates a number of Regulations (EN), which 'form an integral part of the Code'. These include e.g. the 'Digital Chart' (see below) and in February 2021 the Regulation governing marketing communication for food products and beverages to protect children and ensure healthy eating, added in the context of amends to the AVMS Directive.

EN: http://www.iap.it/about/the-code/?lang=en

 IT: http://www.iap.it/codice-e-altre-fonti/il-codice/

 

IAP Digital Chart

 

The objective of the Chart is to review the most common forms of marketing communication on the web and in the digital world in general, and to establish criteria for the recognisability of marketing communication in compliance with Article 7 of the IAP Code. The forms of online communication covered in the Digital Chart include:

 

Endorsements via celebrities/ influencers/ bloggers, vloggers, and UGC

Native advertising in the form of in-feed units, paid search units, and recommendations widgets

SNS

In-app advertising and

Advergames

 

In Italian:

https://www.iap.it/codice-e-altre-fonti/regolamenti-autodisciplinari/digital-chart/

IAP translation: scroll down to the entry ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet':

https://www.iap.it/regulations/?lang=en

 

International Chamber of Commerce: 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

 

Chapter A: Sales Promotion

Chapter B : Sponsorship

Chapter C : Direct Marketing and Digital Marketing Communications

Chapter D : Environmental Claims in Marketing Communications

 

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here

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:

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

 

 

Minors

 

Self-Regulatory Code On Media and Minors (Codice di autoregolamentazione media e minori). The Code was signed by major public and private broadcasting companies and approved on 29 Nov 2002. The agreement was recognised by law No. 112/04 Article 10 (1) (the Gasparri Law – see earlier entry), and referenced in the AVMS Code Article 34 (6). The enactment of these statutes has made the Agreement binding on all TV broadcasters regardless of the type of platform employed (analogue, satellite, digital terrestrial, IPTV online TV). Section 4 provides rules on advertising with three levels of protection: General, Enhanced 7am-4pm and 7pm-10.30pm, and Specific 4pm-7pm

IT / EN

Section 4 GRS translation:

http://www.g-regs.com/downloads/IT_MinorsSelf-RegCodeTV.pdf

 

The Internet

 

Self-Regulatory Code on Internet Services (Codice di Autoregolamentazione per i Servizi Internet; ISC). Put together by AIIP, the Association of Italian Internet Providers, and Assinform, the Italian Association of Information and Communication Technology. Section 9e of the Internet Services Code specifically refers to the IAP Self-Regulatory Code of Marketing Communication. Therefore, the IAP Code will be binding on the companies that adhere to the ISC.

http://www.privacy.it/codeonprovideraiip.html

 

Telecoms

 

Asstel Telemarketing Code. Asstel is the official Employers’ Association of the telecommunication operators (fixed, mobile, internet etc.). Their Code lays out consumer protection rules in Telemarketing:

http://www.asstel.it/wp-content/uploads/2011/05/Codice-di-Condotta.pdf

English Translation:

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

 

 

National authorities and associations 

 

The Italian Competition Authority (AGCM). The Competition Authority, also known as the Antitrust Authority, was established in Italy in 1990 by Law 287/1990. As of 2007, the Authority has been responsible for the protection of consumers from unfair commercial practices, as well as from all misleading advertising. In order to ensure fair market competition, it may also intervene in comparative advertising:

http://www.agcm.it/en/index.php

 

Italian Communications Authority (Autorità per le garanzie nelle comunicazioni) AGCOM. An independent body set up in accordance with Law No. 249 of 31 July 1997, an ‘umbrella’ authority for both the audio-visual and the telecommunications sectors. Agcom is empowered to issue regulations and guidelines for advertising in this area, usually in the form of deliberations.

http://www.agcom.it/

 

DMA Italy. Association for Data Driven Marketing. The mission of DMA Italy, a member of FEDMA (see below), is to facilitate the practice of direct communication in all media channels available today (off-line, on-line, mobile, social). DMAItalia do not, as far as we can establish, publish a Code:

www.dmaitalia.it

 

 

INTERNATIONAL

 

IAB/ Europe

 

IAB Italy. From their website (GT) ‘... is the Italian charter of the Interactive Advertising Bureau, the most important association in the field of digital advertising worldwide and represents the entire chain of the interactive communication market in Italy. ‘

https://www.iab.it/

How to Comply with EU Rules Applicable to Online Native Advertising:

https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/

IAB Transparency and Consent Framework:

https://iabeurope.eu/transparency-consent-framework/

 

 

 

World Federation of Advertisers: WFA

 

From the website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':

https://www.wfanet.org/

This is their ‘GDPR Guide for Marketers’:

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

 

EASA

 

The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:

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

 

EASA’s Best Practice Recommendation on Online Behavioural Advertising is here:

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

And on Digital Marketing Communications here:

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

And on Influencer Marketing here:

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

 

 

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

 

 

SELF-REGULATION 
 

ICC

 

 ICC Advertising and Marketing Communication Practice Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communication 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

 

 

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

IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising 

 

 

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 (4 November 2020)

 

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://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

 

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
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

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. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. 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. 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

 

 

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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