Cosmetics

 

Uploaded March/April 2019.

See individual countries for updates.

 

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Belgium

A. Overview

Sector

SECTION A OVERVIEW

 

Updates:

JEP review March 2020

New DETIC code July 2020

UBA Unstereotype Charter Aug 2020

New CE Code Sept 2020

CE Compendium Dec 2021

Some links Dec 2021

Formatting, some links April 2022

 

CONTEXT AND SCOPE

 

These pages cover the rules for marketing communications in the Cosmetics sector. We don’t cover labelling or packaging. A cosmetic product is defined here Definition ‘Any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours.’ (Art.2.1.a. Regulation 1223/2009).. A source of difficulty or complexity in making claims in this category is whether a particular product falls under cosmetics legislation or should be considered to be a medicinal product. In that context: the European Commission pages on Cosmetics are here; their statements on borderline products here. This is a heavily regulated sector with requirements for e.g. the appointment of ‘responsible persons’ and the registering of PIFs (Product Information Files), which type of requirement is outside our scope.

 

 

RULES IN BELGIUM

 

There are two EU Regulations at the heart of the regulatory regime for the Cosmetics sector, so all member states have those Regulations as the ‘core’ of rules. In the case of Belgium, that core is surrounded by both specific additional or complementary legislation and Self-Regulation. The full picture is of four intertwined regulatory influences, as follows:

 

1. The CPR and common criteria

 

The Cosmetic Products Regulation (CPR) 1223/2009 deals largely with product formulation, the core marcoms-related provision being from article 20. 1: 'In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have'. In the same article, the EC is required to develop an 'action plan regarding claims used and fix priorities for determining common criteria justifying the use of a claim.' Full article here. The outcome was the ‘Regulation 655/2013 setting out those ‘'common criteria’ for the justification of claims for cosmetic products, i.e. the acceptability of a claim made on a cosmetic product is determined by its compliance with the common criteria. The six common criteria are:

 

Legal Compliance

Truthfulness

Evidential support

Honesty

Fairness

Informed decision-making

 

here with summary descriptions. These rules are directly applicable in member states. Official guidelines to Regulation 655/2013 are here; this shows each of the six criteria and examples of claims that are not permitted. Details in our following Content Section B.

 

2.National Self-Regulatory codes and legislation: Cosmetics

 

2.1. Self-Regulation. In Belgium’s case, JEP administer a Code of Advertising and Commercial Communication for Cosmetic Products (FR) with the country’s national Cosmetics association DETIC; translation here, provisions from which are set out in our following Content Section B.

2.2. In (national) legislation, the Royal Decree on Cosmetic Products of 17th July 2012 (FR) repeals and replaces the 1997 RD on Cosmetic Products, following the adoption of Regulation 1223/2009. The law does not cover marcoms, except requiring information at POS for non pre-packed products.

 

3. General marcoms rules and environmental claims

 

3.1. Consumer protection legislation in Belgium is provided by Book VI of the Economic Law Code (EN), which transposes the Unfair Commercial Practices Directive 2005/29/EC. The Code, which should be observed by all sectors in all media, covers all forms of misleading marketing and advertising practices. More in Content Section B. and under the General tab below.

3.2. JEP’s general advertising code is the ICC Advertising and Marketing Communications Code (EN), in French here. Sectors such as Cosmetics, which have their own specific codes, are also subject to ‘General’ rules (see tab below), which in the form of social responsibility/ taste and decency etc. are frequently applied in sector adjudications. Also particularly relevant in this context is the Code of Environmental Advertising FR-NL / EN, applied by JEP as a cross-sectoral code and supplementing the more recent ICC Code Chapter D Environmental claims.

 

4. European Self-Regulation

 

Cosmetics Europe (CE) is a particularly active and respected trade association, responsible for Guiding Principles on Responsible Advertising and Marketing Communication (2020 version). The Belgian association DETIC is a signatory, and much of their code shown above under 2.1 is a direct transposition of CE Guidelines. More in Content Section B. Cosmetics Europe also publish Cosmetic Product Claims and Advertising: Compendium of applicable legislation, self-regulation, best practices and guidance, which as the title implies puts together all the rules and guidance. To save a long link, it's here.

 

CHANNEL RULES

 

The Cosmetic sector does not attract any channel (i.e. placement) rules that are specific to the sector and to any individual channel. The general channel rules, applicable to all sectors Cosmetics included, are briefly referenced below and in the following Channel Section C, but principally available from the General tab beneath the sector-specific rules (as, essentially, there aren’t any of the latter)

 

Broadcast/ audiovisual 

 

Audiovisual media falls under the competence of the three Communities: Flemish, French and German-speaking. Rules on broadcasting in the form of Media Decrees all implement (slightly differently) the AVMS Directive 2010/13/EU (AVMSD), some with ‘nuance’ versus the Directive. The AVMSD was amended by Directive 2018/1808 so that scope is extended online and in particular to video-sharing platforms, now required to identify commercial communications where uploaded videos contain them. The Directive’s content rules are not significantly changed; summarised here. Rules by channel are set out in full in Section C under the General tab where applicable.

 

Privacy/ email

 

Provisions affecting (direct) electronic marketing communications are under Chapter 3 (Arts. 110-115) of Book VI Economic Law Code (ELC; EN) which part-implements Article 13 of the E-privacy Directive 2002/58/EC. The rest of Article 13 is transposed in Book XII ELC and Articles 1 and 2 of the Royal Decree of 4 April 2003 EN. Together, these articles set out the Consent and Information rules required in the opt-in/ soft opt-in regime that generally prevails across member states.  Processing of personal data is subject to lawful processing rules from the GDPR, directly applicable in all member states. Details and guidance under the General tab below. 

 

Influencers online

2018 Influencer marketing guidelines (EN)

 

As Cosmetics advertisers may be active in this space, they should be aware of these relatively recent rules, albeit they apply to all categories and are therefore spelt out below under the General tab. A recent high profile decision on influencer marketing was published mid-September 2018 here (NL), involving a popular Flemish YouTuber promoting his merchandise in one of his videos. The complaint, based upon direct exhortation to children, was upheld.

 

 

 

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General

SECTION A OVERVIEW

 

Updates:

JEP review Feb 2020

AVMSD amend May 2020

EDPB amends Aug 2020

UBA Unstereotype Charter Sept 2020

Directive 2019/2161 Section E Jan 2021

New AV Decree March 2021

Google environmental claims Oct 2021

ICC Environmental framework 2021 (Nov)

VRM Content creator protocol (NL) Dec 2021

UCPD guidance December 2021

IAB TCF Framework and GDPR Feb 2022

Article 6a Directive 98/6/EC re pricing

New JEP Influencer rules May 2022 (EN) !

Law of 8th May 2022 (FR) transposing 2019/2161

Google says cookie here to stay until 2024

July 27, 2022

 

 

SELF-REGULATION

 

The advertising SRO JEP applies and administers the ICC Advertising and Marketing Communications Code (EN). Applicable ICC Code in French here and Dutch here. The Code is structured in two sections: General Provisions and Chapters. General Provisions are fundamental principles and other broad concepts that apply to all marketing in all media. Chapters apply to specific marketing areas:

Sales Promotion (A)

Sponsorship (B)

Direct Marketing and Digital Marketing Communications (C) and

Environmental Claims (D)

 

JEP also deploy sectoral codes such as the Covenant on Advertising and Marketing of Alcoholic Beverages, the Advertising Code for Foods (Fevia), Motor Vehicles (Febiac), for Cosmetic and Hygiene products (Detic), all of which are referenced and translated in their respective sectors on the WikiRegs website. Other rules relevant to this General sector are:

 

Rules on the depiction of people* FR-NL / EN

Rules on humour in advertising FR-NL / EN

2022 Influencer marketing guidelines FR-NL / EN

2019 Native Advertising Code FR-NL / EN

 

*In this context, the UBA Unstereotype Communication Charter has some influence. The original version is here in French. An English translation of the key clauses is here.

 

LEGISLATION

 

Book VI of the Economic Law Code (ELC) delivers in Belgium consumer protection rules from two European directives - background note here and English translation of key provisions from the ELC here. The Belgian authorities have partly extended protection to B2B transactions. Provisions can be found in the ELC translation linked earlier, articles VI. 103.1 and following, or clauses in English in our Content Section B. See Belgium adopts law implementing the Omnibus Directive from DLA Piper May 31, 2022 regarding transposition of the 2019/2161 consumer protection modernisation 'Omnibus' Directive, which was via the Law of 8th May 2022 (FR) amending Books I, 6 and 15 of the ELC. Articles 10, 29 and 30 deliver the requirements most relevant for our purposes, on price reductions, international marketing and consumer reviews and search rankings respectively. The equivalent articles from the Directive, so that the original intention is clear, are 2 (price reductions) and 3 (international marketing, search rankings and consumer reviews). There are some significant implications in e-commerce, explained in the DLA Piper article linked above. 

 

Channel rules 

 

Privacy issues should be reviewed with specialist advisors

 

The General Data Protection Regulation 2016/679 (GDPR) applied across Member States from 25 May 2018. The European Commission page on GDPR is hereOn 10/01/2018 the national Law of 3rd Dec 2017 replaced the Privacy Commission with the Data Protection Authority (DPA). The Law of 30 July 2018 (FR), the ‘Framework Act’, on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data. More information in relevant Channels in Section C. IAB Europe Transparency and Consent Framework is here and from May 2020 their Guide to the Post Third-Party Cookie Era. February 2022:  EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR'. News story here. European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here.

 

Direct electronic communications

 

Provisions affecting (direct) electronic marcoms are under Chapter 3 (Arts. 110-115) of Book VI Economic Law Code (ELC, as above) which part-implements Article 13 of the E-Privacy Directive 2002/58/EC. The rest of Article 13 is transposed via Article 13 of Book XII ELC and Articles 1 and 2 of the Royal Decree of 4 April 2003 FR-NL / EN. Together, these set out the Consent and Information rules required in the opt-in/ soft opt-in regime that generally prevails across member states. The obligations for 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 the service providers are from Articles 6, 12 and 13 of Book XII ELC EN, which implements the E-commerce Directive 2000/31/EC, requiring that certain supplier and promotional information is made easily available (normally, via a link) to consumers. Rules are spelt out in our Channel Section C under Email/ SMS, or see the linked file.

 

AV

 

Audiovisual media falls under the competence of the three Communities: Flemish, French and German-speaking. Rules on broadcasting in the form of Media Decrees all implement (slightly differently) the AVMS Directive 2010/13/EU (AVMSD). Amendments to the AVMSD were established by Directive 2018/1808 and transposed in Belgium by the Decree on Audiovisual Media Services and Video Sharing Services of 4 February 2021 (FR) which extends scope online and specifically to Video sharing platforms where there are new rules requiring identification of commercial communications. Rules by channel are set out in full in Section C, and AV content rules for Belgium are in Section B. Content rules in the Directive amendments are not significantly changed, though there is some potential pressure on Food advertising to children in particular. The Directive's new rules are here.

The Flemish media regulator considers that the above Decree brings AV content from vloggers and influencers into scope; they have published in December 2021 the Content Creator Protocol (NL) which sets out three themes: Commercial communication on social media, commercial communication and content aimed at minors and prohibition of violent and hate speech. Helpful article on the issue (in English) from DLA Piper here and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media; we wait to see if others will follow suit.

 

USE OF LANGUAGE

 

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

 

SPECIFIC CLAIM AREAS
Environment

 

Self-Reg: the Code of Environmental Advertising FR-NL / EN from the Commission for Environmental Labelling and Advertising is administered and applied by JEP as a cross-sectoral code and supplements Chapter D Environmental claims of the ICC Code. Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (2021).

 

Legislation/ EU Guidance: the use of environmental claims in advertising may be assessed against Book VI ELC EN; for a complete picture, refer to the December 2021 Guidance on the interpretation and application of Directive 2005/29/EC, section 4.1. Sustainability. 

 

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a new 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.

 

As the whole territory of environmental claims is high profile for well documented reasons, we reference two late 2021 Self-Regulatory cases, one from the U.K. and one from Sweden. The UK case relates to Lipton Ice Tea: a complaint about a '100% recycled' claim was upheld despite the advertising including a qualification; an interesting commentary here from GALA/ Mondaq with reference to a similar case in the U.S. The Swedish case concerns a complaint against an Innocent Drinks 'greenwashing' claim ('fixing the planet'); the commercial has been withdrawn, but there's (not entirely objective) reference to it in this activist video.

 

Pricing

 

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

 

Legislation is from two sources: The Royal Decree of 30 June 1996 (as amended) on the Price Indication of Products & Services FR-NL, implementing the Product Price Directive (PPD) 98/6/EC, and  Book VI ELC, which delivers UCPD 2005/29/EC. The first Directive is referenced in the CJEU Citroën/ZLW case here, which ruled that prices must be ‘final’, and include the ‘unavoidable and foreseeable components of the price.’ Similarly, Article 99 of Book VI ELC requires that 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 should state ‘the price inclusive of taxes’ and any additional/ potential charges. Article 100 carries requirements for ‘promotional’ pricing. Guidance is from Commission Notice on the application of Article 6a of Directive 98/6/EC which relates to the amends made to the PPD in the form of new promotional pricing rules, extracted from the amending Directive 2019/2161 here and transposed by the Law of 8th May 2022 (FR) amending Books I, 6 and 15 of the ELC - article 10 delivers the requirements on price reduction announcements and 'faithfully reflects' the Directive.

 

Self-Regulation: General Provisions of the ICC Code include some requirements relating to price: article 5, which refers to the requirement for a ‘total’ price, and 18.4 in the context of children and teens. Full information from legislation and Self-Regulation is under 3.2 Pricing in the following Content Section B.

 

 

 

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Read more

International

SECTION A OVERVIEW

 

Updates since April 2021
 

WFA Planet Pledge April 2021 

Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021                               

WHO Alcohol consultation October 2021

CJEU judgement re Inbox November 2021

Trade Desk/ UID GDPR issues Nov 2021

UCPD guidance December 2021

ICAS Factbook and database Dec 2021

IAB Guide to Native Advertising Dec 2021

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. March 25, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

 

 

RECENT ISSUES

 

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

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

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

►  The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

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

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

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

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

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

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

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

► The new Strategy for a better Internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here

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

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

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

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

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

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

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

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

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

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

 

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

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019. This directive sets out some new information requirements related to search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

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

 

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). News story here (EN). The Dutch DPA have subsequently advised companies to to stop using TCF

 

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

 

IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' 

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

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

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

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

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

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

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

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

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

 

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

 

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

 

 

 

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B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

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

 

 

  1. THE CPR 1223/2009 AND CLAIMS REGULATION 655/2013

 

1.1. The CPR

1.2. The Claims Regulation Common Criteria and guidelines

1.3. Guidelines for ‘free from claims’

1.4. Guidelines for ‘hypoallergenic’ claims

1.5. Other claims: ‘natural’ and ‘organic’

1.6. Sunscreen products

1.7. Animal testing (absence of)

 

  1. THE JEP/ DETIC COSMETICS CODE

 

2.1. Image honesty

2.2. Testimonials/ specialist recommendations

2.3. Environmental aspects

2.4. Social responsibility

2.5. Health-related claims

Note: this is a long and detailed section. Health-related claims under 2.5 below are linked

2.6. Composition and manufacturing of products

Environmental claims 

2.7. Presentation of product performance

2.8. ‘Without’ / ‘free-from’ claims

2.9. Endorsements/ certifications

2.10. Use of disclaimers

2.11. Diversity

 

  1. GENERAL RULES with particular relevance to Cosmetics

 

3.1. ICC Code key clauses

3.2. JEP Sustainability code

3.3. JEP Portrayal of people

3.4. JEP Influencer Marketing guidelines

3.5. JEP Native advertising rules 

3.6. Legislation in marketing communications in Belgium

 

  1. COSMETICS EUROPE Guiding Principles

 

  1. ADJUDICATIONS

 

 

 

1. THE CPR 1223/2009 AND CLAIMS REGULATION 655/2013

 

1.1. The CPR 1223/2009

  • The CPR carries one key article specific to claims in marketing communications - Article 20. From that: 1. ‘In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have.’
  • 3. The responsible person may refer, on the product packaging or in any document, notice, label, ring or collar accompanying or referring to the cosmetic product, to the fact that no animal tests have been carried out only if the manufacturer and his suppliers have not carried out or commissioned any animal tests on the finished cosmetic product, or its prototype, or any of the ingredients contained in it, or used any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products
  • The article also requires: ‘the Commission shall adopt a list of common criteria for claims which may be used in respect of cosmetic products, in accordance with the regulatory procedure with scrutiny referred to in Article 32(3) of this Regulation, taking into account the provisions of Directive 2005/29/EC.’ (Note: that’s the Unfair Commercial Practices Directive which we cover later and below under the General tab. All that’s being said here is that the nature of the common criteria should be consistent with ‘horizontal’ provisions in the UCPD
 

 

1.2. The Claims Regulation 655/2013

The acceptability of a claim made on a cosmetic product is determined by its compliance with the common criteri

 

 

The ‘Common Criteria’

Official guidelines to all of the common criteria from Regulation 655/2013 are here; guidelines for each of the criteria have been extracted and are shown separately under each sub-head below

 

 

1. Legal compliance

Guidelines for this criterion here

 

  1. Claims that indicate that the product has been authorised or approved by a competent authority within the Union shall not be allowed
  2. The acceptability of a claim shall be based on the perception of the average end user of a cosmetic product, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors in the market in question
  3. Claims which convey the idea that a product has a specific benefit when this benefit is mere compliance with minimum legal requirements shall not be allowed

 

2. Truthfulness

Guidelines for this criterion here

 

  1. If it is claimed on the product that it contains a specific ingredient, the ingredient shall be deliberately present
  2. Ingredient claims referring to the properties of a specific ingredient shall not imply that the finished product has the same properties when it does not
  3. Marketing communications shall not imply that expressions of opinions are verified claims unless the opinion reflects verifiable evidence.

 

 

3. Evidential support

Guidelines for this criterion here

 

  1. Claims for cosmetic products, whether explicit or implicit, shall be supported by adequate and verifiable evidence regardless of the types of evidential support used to substantiate them, including where appropriate expert assessments
  2. Evidence for claim substantiation shall take into account state of the art practices
  3. Where studies are being used as evidence, they shall be relevant to the product and to the benefit claimed, shall follow well-designed, well-conducted methodologies (valid, reliable and reproducible) and shall respect ethical considerations
  4. The level of evidence or substantiation shall be consistent with the type of claim being made, in particular for claims where lack of efficacy may cause a safety problem
  5. Statements of clear exaggeration which are not to be taken literally by the average end user (hyperbole) or statements of an abstract nature shall not require substantiation
  6. A claim extrapolating (explicitly or implicitly) ingredient properties to the finished product shall be supported by adequate and verifiable evidence, such as by demonstrating the presence of the ingredient at an effective concentration
  7. Assessment of the acceptability of a claim shall be based on the weight of evidence of all studies, data and information available depending on the nature of the claim and the prevailing general knowledge the end users

 

4. Honesty

Guidelines for this criterion here

 

  1. Presentations of a product’s performance shall not go beyond the available supporting evidence
  2. Claims shall not attribute to the product concerned specific (i.e. unique) characteristics if similar products possess the same characteristics
  3. If the action of a product is linked to specific conditions, such as use in association with other products, this shall be clearly stated

 

 

5. Fairness

Guidelines for this criterion here

 

  1. Claims for cosmetic products shall be objective and shall not denigrate the competitors, nor shall they denigrate ingredients legally used
  2. Claims for cosmetic products shall not create confusion with the product of a competitor

 

 

6. Informed decision-making

Guidelines for this criterion here

 

  1. Claims shall be clear and understandable to the average end user
  2. Claims are an integral part of products and shall contain information allowing the average end user to make an informed choice
  3. Marketing communications shall take into account the capacity of the target audience (population of relevant Member States or segments of the population, e.g. end users of different age and gender) to comprehend the communication. Marketing communications shall be clear, precise, relevant and understandable by the target audience

 

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

 

 

1.3. Guidelines for ‘free from' claims

 

From the Technical document on cosmetic claims agreed by the Sub-Working Group on Claims (version of 3 July 2017). We have assembled the specific free-from' guidance related to common criteria in a table here. Note: the technical document is not an EC document. From it: “In the case of ‘free from’ claims, more guidance is needed for the application of the common criteria to provide an adequate and sufficient protection of consumers and professionals from misleading claims.”

 

 

1.4. Guidelines for hypoallergenic claims

From Annex IV Technical document on cosmetic claims  (version of 3 July 2017)

 

The claim "hypoallergenic" can only be used in cases, where the cosmetic product has been designed to minimize its allergenic potential. The responsible person should have evidence to support the claim by verifying and confirming a very low allergenic potential of the product through scientifically robust and statistically reliable data (for example reviewing postmarketing surveillance data, etc.). This assessment should be updated continuously in light of new data. If a cosmetic product claims to be hypoallergenic, the presence of known allergens or allergen precursors should be totally avoided, in particular of substances or mixtures:

 

  • Identified as sensitizers by the SCCS or former committees assessing the safety of cosmetic ingredients
  • Identified as skin sensitizers by other official risk assessment committees
  • Falling under the classification of skin sensitizers of category 1, sub-category 1A or sub-category 1B, on the basis of new criteria set by the CLP Regulation18
  • Identified by the company on the basis of the assessment of consumer complaints
  • Generally recognized as sensitizers in scientific literature
  • For which relevant data on their sensitizing potential are missing

 

The use of the claim "hypoallergenic" does not guarantee a complete absence of risk of an allergic reaction and the product should not give the impression that it does.

Regarding the use of human data in risk assessment of skin sensitisation, including ethical aspects, reference should be made to the SCCS “Memorandum on use of Human Data in risk assessment of skin sensitisation”, SCCS/1567/15, 15 December 2015.

The companies should consider whether consumers, in the respective country, understand the claim "hypoallergenic". If necessary, further information or clarification regarding its meaning should be made available.

 

 

1.5. Other claims: ‘natural’ and ‘organic’

 

  • As it stands, the terms ‘natural’ and ‘organic’ are not specifically regulated under Cosmetics rules, although Article 20 CPR and the Common Criteria still apply as they do to all types of cosmetic product claims, whether natural/ organic or otherwise; the claim must not mislead and must be capable of substantiation. Horizontal legislation will also apply, per UCPD 2005/29/EC as transposed into Belgian law in the form of the Economic Law Code; see 3.6 below
  • Non-mandatory source (soft law): Natural cosmetics guidelines approved by the Council of Europe expert committee on Cosmetics, which provides conditions of use of ‘natural’ claims. Despite dating back to September 2000, the guidelines continue to have some relevance in the absence of specific replacements in European law
  • That absence is part explained here: Clarification of the absence of European harmonised standard for natural and organic cosmetics from the DG Sanco (EC Health and Consumer Protection Department) pages 16/10/2015. The bottom line of that explanation is that an International Organization for Standardization (ISO) standard for natural and organic cosmetics was in the process of development. That process has now completed and been published, but findings/ conclusions do not include claims related to the terms ‘natural’ and ‘organic’.
  • There are two ‘private’ (non profit) associations who provide standards: Cosmos-Standard, and NaTrue. Further background to those organisations and their publications, and more on all of the above, has been assembled here
  • From the CTPA Guide to Cosmetic Advertising Claims: ‘Natural’ and ‘Organic’ Claims. Note here and ‘Natural’ or ‘organic’ cosmetic products must comply with the safety and product information requirements of the Cosmetic Products Regulation. In particular, ‘natural’ and ‘organic’ claims for cosmetic products have to comply with Article 20 of the Cosmetic Products Regulation and the Common Criteria for Cosmetic Claims. Companies should set defined criteria for their understanding of ‘natural’ and ‘organic’ based on the above mentioned ISO Standard and adhere to these criteria. Companies should also be transparent to consumers about these criteria and should not imply that this type of product is safer than other cosmetics just because they are making ‘natural’ or ‘organic’ claims

 

 

1.6. Sunscreen products

 

Definition here Definition Any preparation (such as creams, oils, gels, sprays) intended to be placed in contact with the human skin with a view exclusively or mainly to protecting it from UV radiation by absorbing, scattering or reflecting radiation (sect. 1 (2a) CR). Therefore it applies to 'primary' sun protection products such as beach, mountain or sports products. Daily protection products, such as moisturizers, with labelling of UV protection (even an SPF and/or UVA protection level) will not come under the scope of the Recommendation, as long as they do not claim 'sun protection'. (per Cosmetic Europe Q&A)The EC pages on sunscreen products documentation and legislation are here. From those:

 

Sunscreen products are cosmetics according to Regulation (EC) No 1223/2009. The efficacy of sunscreen products, and the basis on which this efficacy is claimed are important public health issues. In particular:

 

  • Products should contain protection against all dangerous UV radiation
  • An indication of the efficacy of sunscreen products should be simple, unambiguous, and meaningful; and it should be based on standardised, reproducible criteria
  • Labels and claims should provide sufficient information to help consumers choose the appropriate product and apply it correctly

 

The Recommendation on the efficacy of sunscreen products and the claims made relating to them, adopted in 2006, addresses these issues and sets out the:

 

  • Claims which should not be made in relation to sunscreen products
  • Precautions to be observed including application instructions
  • Minimum efficacy standard for sunscreen products in order to ensure a high level of protection of public health
  • Simple and understandable labelling to assist in choosing the appropriate product

 

 

Prohibited claims

No claim should be made that implies the following characteristics (point 5):

 

  • 100% protection from UV radiation (such as ‘sunblock’, ‘sunblocker’ or ‘total protection’);
  • No need to re-apply the product under any circumstances (such as ‘all day prevention’)

 

 

Efficacy claims

 

  • Claims indicating the efficacy of sunscreen products should be simple, unambiguous and meaningful and based on standardised, reproducible criteria (point 11)
  • Such claims need to be verified by the respective testing methods as outlined in Point 10 and subsequently standardised by ISO and published by European Standardisation Organisation (CEN)
  • Claims indicating UVB (Burn) and UVA (Aging) protection should be made only if the protection equals or exceeds the levels set out in Point 10, which provides for the minimum degrees of protection:

 

  • For UVB Protection Claims: SPF (Sun Protection Factor) rating must be at least 6
  • For UVA Protection Claims (including Broad Spectrum claims): a UVA protection factor should be at least 1/3 of the labelled SPF; second criterion a critical wavelength of 370 nm, as obtained in application of the critical wavelength testing method.
 

 

Cosmetics Europe Related Guidelines and Recommendations

 

 

 

1.7. Animal testing (absence of)

 

Article 20 (3) of the CPR and the accompanying guidelines from Commission Recommendation 2006/406/EC allows restricted use of claims on the absence of animal testing, relating to the development or safety evaluation of the product or its ingredients. Cosmetics Europe has argued that such a claim is obsolete, as it would transgress the Legal Compliance common criterion: that you have complied with a legal requirement can’t be the basis of a claim. As animal testing is prohibited (testing ban since 11/09/2004 and marketing ban since 11/03/2009) such a claim would be founded on a legal requirement

 

 

2. THE JEP/DETIC COSMETICS CODE

 

http://www.g-regs.com/downloads/BECosmeticCodeDeticEN2020.pdf (EN 2020)

https://www.jep.be/sites/default/files/rule_reccommendation/code_publicite_produits_cosmetiques_detic_2020.pdf (FR 2020)

 

Notes: this is a long and detailed code, which can be read in full per the linked document above in English. We have not reproduced in these pages those sections that mirror either the European legislation or the ICC Code (see section 3), or that are exceptionally lengthy/ complex (e.g. health claims). We have also not included footnotes from the linked document. The numeric references following clauses below relate to the clause numbers in the Code

 

 

2.1. Image honesty (3.2.2)

 

  •  Digital techniques may be used to enhance the beauty of images to convey brand personality and positioning or any specific product benefit
  • The use of pre and post production techniques such as styling, re-touching, lash inserts, hair extensions, etc., should abide by the following principles:

 

  1. The advertiser should ensure that the illustration of a performance of an advertised product is not misleading (see Product Claim Substantiation)
  2. Digital techniques should not alter images of models such that their body shapes or features become unrealistic and misleading regarding the performance achievable by the product
  3. Pre- and post-production techniques are acceptable provided they do not imply that the product has characteristics or functions that it does not have

 

For example, the following cases would not be considered misleading:

  • Using obvious exaggeration or stylized beauty images that are not intended to be taken literally
  • Using techniques to enhance the beauty of the images that are independent from the product or effect being advertised

 

 

2.2. Testimonials and specialist recommendations (3.2.3)

 

General provisions

 

Testimonials and specialist recommendations may be used to emphasise the characteristics of cosmetic products and create a brand image. Testimonials and specialist recommendations:

 

  1. May be used in the form of written or spoken statements
  2. Must be genuine, responsible and verifiable
  3. Cannot replace material substantiation of a claim (see Product Claim Substantiation)
  4. Shall avoid any misrepresentation and misinformation with regards to the nature of the product being advertised, its properties and the achievable results 

 

 

Testimonials

 

  • Testimonials from celebrities, private persons (bloggers, influencers...) or consumers, etc., may be used provided they are presented as a personal assessment or impression of a product and that they conform to the ethical rules that may bind testimonees
  • Testimonials should not be considered as proof of product efficacy that can only be established on the basis of adequate and appropriate evidence; see Products’ Claims Substantiation (3.2.3.2)

 

 

Specialist recommendations

 

  • Recommendations from medical, para-medical or scientific specialists (referred to as “specialist(s)”) on an ingredient, a product, or a general message on hygiene or beauty, is acceptable provided they are established on the basis of adequate and appropriate evidence (see Product Claims Substantiation)
  • Such specialists must be selected on the basis of their qualifications, expertise or experience in the particular area (3.2.3.3)

 

 

2.3. Environmental aspects in advertising (3.2.4)

 

  • When environmental claims are made, cosmetics companies shall respect the principles of truthfulness, clarity, accuracy, relevance and scientific substantiation (see Product Claims Substantiation – s. 3.2.1)
  • If the environmental claim being made is not literally true or is likely to be misinterpreted by consumers or is misleading through the omission of relevant facts, this environmental claim shall not be made

 

Specific attention should be brought to:

 

General presentation

 

The general presentation of a cosmetic product (colours, visuals, etc.) and individual claims shall not:

 

  1. Be based on false information
  2. Imply an environmental benefit that the product does not have
  3. Exaggerate the environmental aspect of the product to which the claim relate
  4. Emphasise any single environmental benefit while concealing the aspects which present a negative environmental influence (3.2.4.1)

 

 

Use of symbols / suggestion of third party certification

 

  1. Any supporting information, imagery or symbols shall be justified to and understandable by the average consumer
  2. Any use of symbol or logo must not imply that the product has achieved the required relevant third-party endorsement when it is not the case (3.2.4.2)

 

 

Accuracy and relevance of the environmental claim

 

  1. The environmental claim shall be presented in a manner that clearly indicates whether the claim applies to the complete product or only to a product component or to the packaging or to an element of a service
  2. The environmental claim shall be relevant to the particular product, and used only in an appropriate context or setting
  3. The claim shall be specific as to the environmental benefit or environmental improvement which is claimed; consequently, an environmental benefit may be claimed provided that an appropriate assessment of the environmental impact of the product has been carried out (3.2.4.3)

 

 

Substantiation (3.2.4.4)

 

  1. Environmental claims for cosmetic products, whether explicit or implicit, must be supported by adequate and appropriate scientific evidence
  2. Test methods and studies being used as evidence must be relevant to the product and to the environmental benefit claimed
  3. Environmental claims shall be reassessed and updated as necessary to reflect changes in technology, competitive products or other circumstances that could alter the accuracy of the claim
  4. In the context of “natural” and “organic” cosmetic products, the International Organisation for Standardisation (ISO) is currently developing a set of technical criteria and definitions regarding organic and natural cosmetic ingredients and products (ISO 16128-1/2). These technical criteria do not apply to claims but can be used as a reference for the substantiation of claims “natural” and “organic” for cosmetic ingredients and products (see specific provisions 4.2.1.4. and 4.2.1.5)

 

 

2.4. Social responsibility (3.3)

 

General principles. All cosmetic advertising and marketing communication shall comply with general provisions, concerning:

 

  1. Taste and decency: Cosmetics advertising and marketing communication “should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned”.
  2. Portrayal of gender: Cosmetics advertising and marketing communication should not contain any sexually offensive material and should avoid any textual material or verbal statements of a sexual nature that could be degrading to women or men. Furthermore, advertising and marketing communication should not be hostile toward a certain gender
  3. Offensiveness: Any statement or visual presentation likely to cause profound or widespread offence to those likely to be reached by it, irrespective of whether or not it is directly addressed to them, is not acceptable. This includes shocking images or shocking claims used merely to attract attention
  4. Violence: Cosmetics advertising and marketing communication “should not appear to condone or incite violent, unlawful or anti-social behaviour”
  5. Play on superstition: “Marketing communications should not play on superstition”
  6. Play on fear: Cosmetics advertising and marketing communication “should not without justifiable reason play on fear or exploit misfortune or suffering”
  7. Exploitation of credulity and inexperience: Cosmetics advertising and marketing communication should not be framed so as to abuse the trust of consumers or exploit their lack of experience or knowledge
  8. Discrimination: Cosmetics advertising and marketing communication “should respect human dignity and [diversity. It] should not incite or condone any form of discrimination, including that based upon [...] [ethnic group], national origin, religion, gender, age, disability or sexual orientation”
  9. Denigration: Cosmetics advertising and marketing communication “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”
  10. Safety and health: Cosmetics advertising and marketing communication “should not without reason, justifiable on educational or social grounds, contain any visual presentation or any description of dangerous practices or of situations which show a disregard for safety or health”. Models used in advertisements and post production techniques should not appear to promote a preferred body image of extreme thinness
  11. Humour may be used in advertising and marketing communication in such a manner that it does not stigmatize, humiliate or undermine any person or group of persons (3.3.1)

 

 

Specific principles

Respect for the human being

 

Given the possible impact that cosmetics advertising and marketing communication may have on consumers’ self-esteem, the following should be taken into consideration when using models in advertising:

 

  1. Do not focus on bodies and parts of bodies as objects when not relevant to the advertised product
  2. Do not stage nude models in a way that is demeaning, alienating or sexually offensive

 

When using nudity, the media used and the intended audience should be considered (3.3.2.1)

 

 

Vulnerable populations – children

 

The European cosmetics industry commits to provide responsible advertising and marketing communication towards children and young people. Cosmetic products especially designed for children may be advertised provided that:

 

  1. Advertising should foster the hygiene and sanitary benefits of cosmetic products to children in particular sun protection products, oral care products, and cleaning products (including soap, shampoos and teenage acne cover-ups)
  2. Advertising of decorative cosmetics and perfumes should not incite children to overuse of such products
  3. Advertising of cosmetic products, including images, should not promote early sexualisation of young people (3.3.2.2)

 

 

2.5. Claims relating to health

 

Rules for these claims can be found in the linked document here (EN 2020). The following topics are covered:

 

Principles

Slimming

Cellulite – Anti-cellulite

Products for the bust

Pimples/spots

Irritation, cracking, itching

Allergy, hypoallergenic 

Scientific terminology

Rejuvenate, regenerate, anti-wrinkle, anti-aging skin

Hydrate or Moisturize

Hair

Oral and dental hygiene

Sunscreen products and sunbeds

 

 

2.6. Composition and manufacturing of products (4.2)

 

Some claims on the composition of products which are likely, as such, to undermine public confidence cannot be used in an ambiguous way. Thus:

 

 

Environmental claims

 

  • Definition (4.2.1.1): The concept of environmental claim is not legally defined either in European law or in Belgian law. However, "environmental claim" or "ecological claim" is usually understood to mean any message or representation that relates to the environmental characteristics of a product or service that affirms, suggests or gives the impression:

 

  • that this good or service has a positive effect on the environment
  • that this good or service has no impact on the environment
  • that this good or service is less harmful to the environment than competing goods or services

 

  • The reason may be its composition, the way it was made or produced, the way it can be disposed of, or the reduction in energy consumption or pollution that can be expected from its use.

 

  • An environmental claim must be made in clear, exact, precise, explicit and unambiguous language (4.2.1.2)
  • Claims that are vague, imprecise, ambiguous, or that generally imply that a product is beneficial or harmless to the environment cannot be used. Therefore, avoid using terms: "environmentally friendly", "green", "friend of nature", "ecological", "sustainable", "ecologically correct", "preserves the environment" , "Respectful of the planet", "non-polluting", "non-toxic", "protects the ozone layer", ... An absolute claim presented in the form of a message or symbol, risks being misinterpreted by the consumer. It should be clarified by adding an explanatory statement or a nuance
  • A claim must make clear whether it applies to the whole product or only to one of its components, the manufacturing process or transport
  • A company that makes commitments to protect the environment or "green behavior" in a code of conduct to which it claims to be bound must comply with them (4.2.1.3)

 

 

The term 'natural' (naturel / natuurlijk) 4.2.1.4

 

May only be used in the following circumstances:

 

  • either for a finished product which does not contain any synthetic substance and/or product
  • or for specified ingredients, provided that the term 'natural' is limited to that (those) one component(s)
  • for a percentage of ingredients defined by standard ISO 16128-1 and calculated according to ISO 16128-2, or any other reference at least as demanding

 

 

The term 'organic' (4.2.1.5)

 

May be used in the following circumstances:

 

  • either for a finished product derived or obtained from an animal or plant organism
  • or for specified ingredients of these organisms and to the extent that the term "organic" is limited to that (those) one component (s)
  • for a percentage of ingredients defined by standard ISO 16128-1 and calculated according to ISO 16128-2, or any other reference at least as demanding

 

For reasons of length we have extracted clauses related to the wording ‘based on’, the term ‘new’ and the terms 'place of manufacture' or 'place of formulation'. These can be found under clauses 4.2.2 to 4.2.4 in the Code here (EN 2020)

 

 

2.7. Presentation of product performance (4.2.5)

 

Nature of tests

 

  1. When studies or tests are mentioned in advertising, their nature must be explicitly indicated: statistically valid scientific tests (evaluation by professional experts whether or not under medical supervision, instrumental tests, sensory studies under/ according to protocol, ex vivo/in vitro tests) or satisfaction tests (consumer usage tests  carried out on a sufficient number of subjects)
  2. In order not to mislead the consumer, measuring the effectiveness of a product can only be connected to scientific tests
  3. When the communication is based on satisfaction tests, it must only mention/report the percentage of satisfied individuals or percentage of those who have experienced the claimed effect
  4. The presentation of  scientific tests or satisfaction tests should be clearly distinguished from one another when used in the same advertising message 

 

Presentation of results

 

  1. Numerical Results /Figures. When advertising claims include quantified results (figures), in accordance with “Practical guidance on methodology for cosmetic claims substantiation” (Cosmetics Europe – version May 2008), advertising must refer to the average results obtained throughout the population tested (the total number of subjects must be indicated), and must be statistically valid
  2. Visual Representations. When advertising refers to diagrams or demonstrations, e.g. "before and after", the  visuals used should reflect the performance of the product in a proportionate and coherent way and be representative of the test sample
  3. Results in vitro

  • When the results in advertising, are derived from testing in vitro, this clarification should be included in advertising
  • In all cases, the presentation of the results of studies in vitro should not leave people to believe that the results are in vivo 

 

 

2.8. Claims "without...”  (sans … / zonde, i.e. “free-from” claims) 4.2.6

 

  1. Must be accurate and not misleading: it refers to a product which does not contain, presented as an ingredient, a specific ingredient, raw material/substance or generic group of ingredients, either directly as such or indirectly by the use of another raw material/substance
  2. Must be relevant: it must not involve/ apply to an ingredient prohibited by the regulations or whose use is not normally necessary for the formulation of the product
  3. Must be fair and not derogatory

 

  • It must be strictly informative, it cannot become the main/ central claim of the product but provide the consumer with additional information
  • Should not infer that the absence of the ingredient provides a safety benefit/ advantage for the consumer or the environment
  • Should not imply that the products that do not contain the specific ingredient are better than the ones that contain it 

 

 

2.9. Endorsements/ certifications - labels, graphic representations, symbols

 

See section 4.3 of the code here (EN 2020)

 

2.10. Use of disclaimers

See section 4.4. of the Code linked above

 

 

2.11. Diversity and its inclusion in advertising and marketing communications (4.5)

 

To encourage gender equality, diversity and inclusion, to avoid stereotypes and to treat all people equally, regardless of gender, origin, age, sexual orientation, of their disability or their beliefs, the Belgian cosmetics sector adheres to and respects the "Unstereotype Communication" charter of UBA (United Brand Association, formerly Belgian Union of Advertisers). This is in French here and key clauses in English here.

 

 

3. GENERAL RULES

 

With particular relevance to Cosmetics

 

3.1. The ICC Code

 

  • It's important that the rules for all product sectors are also understood; adjudications against Cosmetics advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the 2018 ICC Advertising and Marketing Communications Code (EN), which is directly applicable in Belgium; French version here. Rules from this code are set out in some detail below under the General tab
  • In this section we also reference some of the key codes that are most relevant to the Cosmetics sector. Again, these are spelt out under the General tab

 

 

3.2. JEP Environmental claims

 

https://www.jep.be/sites/default/files/rule_reccommendation/milieu_fr.pdf

 

The Code of Environmental Advertising FR-NL / EN is administered by JEP and supplements Chapter D Environmental claims of the ICC Code, as well as the General Provisions of the same. Additional guidance on use of specific environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications

 

 

 

3.3. JEP Portrayal of people

 

Rules on the depiction of people FR-NL / EN

Rules are set out in full under the General tab below as they apply to all sectors, Cosmetics included

 

 

3.4. JEP Influencer Marketing guidelines

 

https://www.jep.be/sites/default/files/rule_reccommendation/recommandations_du_conseil_de_la_publicite_influenceurs_en_ligne_fr.pdf (FR)

 

https://www.g-regs.com/downloads/BEGenInfluencerRecos.pdf (EN)

 

  • The document linked above, published October 2018 by the Advertising Council, sets out the rules/ guidance on the issue of Online Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required
  • The rules apply to all advertisers, Cosmetics included, and are therefore shown in more detail under the General tab below. The Cosmetics sector may be active in Influencer marketing, hence its reference here
  • JEP’s first case on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld

 

Section 4; application of the rules

 

  1. The online influencer makes clear, audibly or visibly, the commercial relationship with the brand, by mentioning one of the following words: Publicité, annonce, sponsoring, promotion, sponsorisé par, en collaboration avec... or other similar mentions, or one of the following hashtags: #spon, #pub, #prom, #adv, #sample, # ... or other kinds of similar hashtags. Such treatment guarantees transparent communication
  2. Social networks know no (language) boundaries. Adapt the words depending on the language of the message or of the target group (reclame, advertising, promoted, ad, paid...)
  3. Make sure these words are stated in a way and at a place such as the recipient directly understands immediately the precise nature of the message
  4. Do not hide these words. Make sure that the average consumer notices them during normal contact with the message

 

3.5. Native

 

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

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

 

And in English here:

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

 

JEP published January 2019 a Native Advertising Code FR-NL / EN

 

 

3.6. Legislation in marketing communications in Belgium (non-exhaustive)

 

While advertising regulation is largely managed by the industry, legislation plays a part in Channel especially, but also in advertising content. Commercial practices deemed unfair, and comparative advertising in particular, can end up in the courts, so it’s best to know what the law says, albeit rules are largely echoed in Self-Regulation

 

 

These are the core national laws for all marketing communications content in Belgium, Cosmetics included. Provisions are set out under the General tab below. These and others are also shown under our following Channel Section C where applicable, again largely under the General tab as they apply to all product categories

 

  • Book VI of the Economic Law Code FR-NL: ‘Market Practices and Consumer Protection.’ From the Unfair Commercial Practices Directive 2005/29/EC. English translation of key provisions of Book VI here. Covers e.g. comparative advertising under article 17 and the ‘Blacklist’ of commercial practices ‘considered in all circumstances unfair’ under article 100
  • Articles 5 and 6 from E-Commerce Directive 2000/31/EC found nationally in Articles 6 and 12 Book XII of Code of Economic Law EN. These are provisions that set out information requirements in an e-commerce context. Article 13 provides for the Consent and Information requirements in (direct) electronic communications, where an opt-in/ soft opt-in regime applies; see below
  • The Electronic Communications Act 13th June 2005 ‘ECA’ Article 129 FR / NL transposes the requirements of Article 5.3 of the E-Privacy Directive 2002/58/EC, as amended by Art. 2 (5) of the ‘Cookie’ Directive 2009/136/EC;
  • The Content rules specifically for audiovisual media in Belgium reflect in broad terms the requirements of AVMS Directive 2010/13/EU, though some communities have interpreted these more aggressively (the individual decrees are shown in LInks Section E under the General tab)
  • The 2018/1808/EU amends to the Directive are transposed in Belgium by the Decree of 4th February 2021 (FR). Content rules are not significantly changed versus former iterations – amends were largely to scope, i.e. where the rules apply. Key changes to Content rules in the Directive are shown here

 

 

4. COSMETICS EUROPE

 

Charter and guiding principles on responsible advertising and marketing communications (2020 version)

 

  • Cosmetics Europe is a particularly active and respected trade association. Its ‘Guiding Principles on Responsible Advertising and Marketing Communication’, linked above, recognises and reflects both Self-Regulatory (in the form of the iCC Code) and legislative influences such as the Directive 2005/29/EC on Unfair Commercial Practices and the Directive 2006/114/EC on Misleading and Comparative Advertising as well as the Cosmetics Product Regulation 1223/2009
  • The great majority of major advertisers will be members of the CE (membership here), so it’s appropriate at minimum to be aware of this code
  • These guidelines/ rules are closely reflected in the JEP/DETIC Code under Point 2 above

 

 

5. ADJUDICATIONS

 

The link to the Adjudications/ Decisions tab on the JEP website is here. The database includes a Search facility. We have selected three examples of Jury decisions below:

 

 

Miss Dior perfume

 

 

The advertiser and ad

Miss Dior perfume. A seated woman (Natalie Portman) who holds the perfume bottle against her chest. Her chest and the bottom of her bust are covered and she has a bare leg bent in front of her. We think this is the ad here.
Complaint/ issue The use of the woman in a sexual and suggestive position to sell a perfume
Decision

Not upheld. The jury took the view that this was fairly typical of the genre; the woman's attitude is not shocking and has a sensual versus sexual connotation; neither is it degrading to women, nor does it transgress ‘currently accepted norms’.

https://www.jep.be/fr/les-decisions-des-jep/parfums-christian-dior-19122017

 

 

Pantene shampoo and conditioner

 

 

Advertiser and ad  Procter and Gamble Pantene shampoo; commercial unavailable. At the end of the TV spot the voice-over says, "Recommended by 96% of Belgian women". 
Complaint/ issue According to the complainant, the commercial claims that 96% of Belgian women approve of or recommend the product. In a small note at the bottom of the screen, which scrolls very fast, it is then "clarified" that this percentage is of a small amount of women who were able to "test" the product, probably for free. Given the nature of advertising, it is in the complainant’s view misleading
Decision 

Upheld. The Jury decided a) that the group of respondents were not properly representative of the Belgian female population; therefore the claim was too ‘absolute’ b) that incentives provided (the opportunity to win a holiday) undermine objectivity c) it was not clear that the promoted product was exactly as researched and d) the scroll was indeed insufficiently legible. The jury concluded that the spot was likely to mislead and thus transgressed Articles VI. 97 and 99 of the Code of Economic Law, Articles 3 and 5 of the Code of the International Chamber of Commerce (ICC Code) and Article 3.2.1 of the Detic Cosmetics Code

https://www.jep.be/fr/les-decisions-des-jep/procter-gamble-14092016

 

 

Chanel Coco Rouge Gloss lipstick

 

  Chanel Gloss Rouge Coco featuring Lily Rose Depp. The shot used in the ad is here
Complaint/ issue The complainant said that the girl/ model is 10 years old and therefore the advertising of a lipstick is entirely inappropriate
Decision

Not upheld. The Jury’s first reaction is that the model does not appear to be as young as the complainant thinks. Following the advertiser's response, the Jury noted that the model is actress Lily Rose Depp who is 17 years old.

The Jury considered that the poster does not encourage an early or inappropriate use of the product and that it is not likely to exploit young women and therefore not contrary to JEP rules on the Representation of the Person nor does it reflect a lack of a proper sense of social responsibility from the advertiser.

https://www.jep.be/fr/les-decisions-des-jep/chanel-19042017

 

 

 

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

General

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

 

1.1. JEP General Code (from the ICC Code)

1.2. JEP Rules/ recommendations

1.2.1. Depiction of people

1.2.2. The use of humour in advertising

 

2.  LEGISLATION

 

2.1. Misleading Commercial Practices

2.2. Unfair B2B Commercial Practices

2.3. Content of audiovisual commercial communications 

 

3.  SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

3.2. Pricing

 

4. ADJUDICATIONS 

 

 

 

1.1. The JEP General Advertising Code, which is a direct transposition of the ICC Advertising and Marketing Communications Code, will apply; extracts below 

 

Basic principles (Art. 1)

 

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

 

 

Social responsibility (Art. 2)

 

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

 

Decency (Art. 3)

 

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

 

Honesty (Art. 4)

 

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

 

Truthfulness (Art. 5)

 

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

 

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

 

Substantiation (Art. 6)

 

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

 

Identification and transparency (Art. 7)

 

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

Identity of the marketer  (Art. 8)

 

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

 

 

Comparisons (Art. 11)

 

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

 

 

 

1.2.1. Rules on the depiction of people ENNL-FR

 

1. Every advertisement should be prepared with a due sense of social responsibility and cannot be such as to impair public confidence in advertising (Art. 1 ICC Code)

2. Advertisements should not contain statements or visual presentations which offend prevailing standards of decency (Art. 2 ICC Code)

 

  • Depending on the feeling/ sensitivity of society at a given time, the public audience exposed to the advertising, the social or cultural contexts, and its evolution as well as the validity (currency/ relevance), it is desirable that the advertising does not devalue or abuse the human being which, by spreading an image infringing their dignity and decency, is likely to shock or even offend the public. In this regard, it is appropriate to pay attention to the tone of the messages and their visual presentation
  • The representation of the human body in whole or in part cannot be of an indecent or obscene nature. Special care must be taken when the representation (depiction) of the human body is unrelated to the product and its objective and subjective characteristics. When advertising uses nudity, particular efforts shall be made to ensure that its representation cannot be regarded as demeaning and alienating

 

3. Advertisements should not condone any form of discrimination, including that based upon race, national origin, religion, sex or age, nor should they in any way undermine human dignity (Art. 4.1 ICC Code). Thus, the following should be avoided:

 

  • Generating contempt, disrepute or ridicule regardless of the ethnic, social, professional, economic or demographic group to which a person belongs
  • Exploiting, promoting or developing pejorative (disparaging / derogatory) comparisons based on the sex, age, race, nationality, social or professional status of individuals. Advertising cannot ignore the skills, aspirations and roles of various human and social categories.
  • Likewise, endorsing the idea of the inferiority or the superiority of a person because of their affiliation to a social group, or even promoting, directly or indirectly, feelings or behaviours of exclusion, intolerance or racism, should be avoided

 

4. Advertisers must be aware at all times to changing moral values and avoid contributing to the perpetuation (protraction/ continuance) of social prejudices or stereotypical images that run contrary to changing conditions in society (societal development) or ideas accepted by large segments of the population

 

  • This is why using stereotypes, referring to characters intended to be representative of a social, ethnic group etc. must make particular efforts to comply with the principles developed in these Guidelines
  • It is necessary to avoid inducing a sense of submission or dependence devaluing the individual/ human being or presenting in a complacent manner a situation of domination or exploitation of a person by another

 

5. Advertisements should not appear to condone or incite violence, nor to encourage unlawful or reprehensible behaviour (Art. 4.3 ICC Code)

 

  • Gratuitous use of violence, direct or implied and any incitement to violence whether physical or psychological should be avoided. The concept of violence covers at least all illegal, unlawful and reprehensible activities provided for in current legislation. Direct violence translates into (results in) the representation of the act of violence itself; implied violence means an atmosphere, indeed a context resulting in an act of violence; psychological violence includes, in particular, dominating behaviour patterns and harassment (psychological or sexual)
  • Advertising shall not under any circumstances trivialise violence through statements or presentations

 

 

1.2.2. Rules on humour in advertising (1992) ENNL-FR

 

  • As in any communication, humour is not in itself objectionable. However, since advertising is a communication with a commercial purpose, humour is subject to restrictions distinct from those found in other areas, such as editorial content in the media, or in the world of entertainment
  • Moreover, the use of humour (in written form, audio, visual, or graphic) never absolves the author or creator of the message from legal or ethical responsibility. Advertising cannot be made which is contrary to the law or rules of advertising ethics
  • So, humour must not lead to:

 

  • Deception/ misleadingness about measurable and verifiable facts
  • Denigrating or discrediting:
     
    • A product or service
    • A person or group of people
    • An institution or organisation
    • Moral, religious, philosophical or political convictions
       
  • Use of disparaging/ derogatory references or indications based on the gender, age, race, nationality, social or economic status of individuals
  • The incitement of reprehensible behaviour in terms of safety, health or social responsibility
  • The use of caricature or parody therefore requires caution and requires a case-by-case assessment. The use of prior copy advice from JEP in sufficient time before production and dissemination of the advertising is highly recommended

 

 

 

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation. In December 2021, the European Commission issued Guidance on the interpretation and application of Directive 2005/29/EC

 

2.1. Core rules

 

  • The key law is Book VI of the Economic Law Code FR-NL: ‘Market Practices and Consumer Protection.’ English translation of key provisions here
  • See Article 97 for misleading actions and misleading omissions, the latter of which includes rules relating to an 'invitation to purchase' Definition 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 
  • ​Article 100 represents the ‘Blacklist’. These are the provisions transposed from Annex I of the Directive 2005/29/EC that set out market practices that are ‘in all circumstances considered unfair’
  • Articles 5 and 6 from E-Commerce Directive 2000/31/E, found in Articles 6 and 12 Book XII of Code of Economic Law EN, set out information requirements in an E-commerce context

 

2.2. Comparative advertising

 

  • Under Article 17 (1), Comparative Advertising shall be permitted when it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI
  • ‘Comparative Advertising’ means any advertising that, explicitly or implicitly, identifies a competitor or goods or services offered by a competitor (Art. I.8 (14) from Chapter 4 of Book I Definitions of the ELC) 

 

 

Article 17 (Chapter V) of Book VI. Comparative advertising

 

1. Comparative advertising shall be permitted when the following conditions regarding the comparison are met:
 

  1. it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI; English translation of the relevant section here
  2. It compares goods and 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 businesses, between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor
  5. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
  6. For goods with designation of origin, it relates in each case to goods with the same designation
  7. It does not take unfair advantage of the reputation of a trade mark, 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 trademark or trade name


2. All comparative advertising which does not respect the conditions laid down in § 1 shall be prohibited

 


Unfair B2B commercial practices; see Chapter 2, Book VI Arts. 105-109

Belgium has extended the scope of its legislation to B2B transactions only for certain banned practices from Annex 1 of UCPD

http://www.g-regs.com/downloads/BEGenB2BUnfPractices.pdf

 

 

2.3. Content of audiovisual commercial communications

 

 

  • The Audiovisual Media Service Directive 2010/13/EU in its original form regulated European broadcast media; as the media landscape has developed and ‘digitised’, so has the directive, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platforms in particular
  • in this section we set out only the commercial communication content rules. The Directive continues to regulate e.g. AV media sponsorship, product placement, commercial communication minutage, programme sourcing etc. Where the rules affect commercial communications we show them in our following Channel Section C
  • Much of the regulation is aimed at broadcasters, social media platforms and VOD providers, versus advertisers/ agencies. Nevertheless, it is a significant influence in the European media landscape for all brands; the recent amends referenced above are important for the media platforms they cover and as a result the advertising that appears in that media
  • The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The translations we show below are unofficial and non-binding. These are not significantly changed versus former iterations – amends were largely to scope, i.e. where the rules apply. Key changes to Content rules in the Directive are here 
  • Belgium’s AV regulatory set-up is complex; media is a cultural matter and therefore under the supervision of individual French, Dutch or German-speaking regions. The media authorities in each region have in the past transposed directives somewhat differently. In this case, the law linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities’ (from a helpful blog on the subject from lawyers Baker McKenzie). We are not clear where the federal and regional rules ‘meet’; seek specialist advice if uncertain, albeit observing the Directive’s rules should keep you in good stead

 

 

Book II, Title III
(note: aimed at broadcasters/ providers)

 

Art. 2.3-1

 

Programmes and commercial communications may not be transmitted that:

 

  1. Transgress laws, decrees and regulations or are counter to the general interest
  2. Offend human dignity
  3. Contain public incitement to commit a terrorist offense as referenced in article 137 of the Criminal Code
  4. Promote a current of thought, belief or opinion that constitutes a threat to democracy, human rights and fundamental freedoms guaranteed by the Constitution or the European Convention on Human Rights or seek to undermine the good faith of the public
  5. Are inclined to deny, minimise, justify or approve of the genocide committed by the German National Socialist regime during World War II, as well as any other form of genocide
  6. Constitute offenses relating to racism and xenophobia referenced in the law of July 30, 1981 to repress certain acts inspired by racism and xenophobia
  7. Constitute offenses related to child pornography, within the meaning of article 383 bis of the Criminal Code

 

 

Art. 2.3-2

 

  • All providers of video sharing services must take appropriate measures to protect the user from user-generated programmes and videos encountering the situations referenced in article 2. 3-1
  • Other provisions related to video-sharing services are found in this section of the Decree but are not directly related to content of commercial communications; see Section C/3 Online Commercial Communications 

 

 

Book II, TITLE IV
Women's rights, equality and non-discrimination

 

Art. 2.4-1

 

Programmes and commercial communications may not be transmitted that:

 

  1. Undermine respect for equality between women and men or contain or promote discrimination or incitement to discrimination, hate, or violence based on sex or similar criteria which are in particular pregnancy, motherhood, sex change, gender expression, gender identity or including incitement to violence against women and domestic violence
  2. Comprise or promote discrimination or incite discrimination, hatred or violence, in particular on the grounds of nationality, assumed race, skin colour, ancestry or national origin or ethnicity, age, sexual orientation, religious or philosophical belief, disability, marital status, birth, wealth, political belief, language, current or future state of health, a physical or genetic characteristic, social background or membership of a union

 

 

BOOK V
Commercial communication

 

Title I general provisions includes definitions not shown here

 

Title II. Commercial communications in linear and non-linear services

 

  • Art. 5.2-1. Commercial communication must not transgress laws, decrees, regulations and European directives as well as the regulations of the advisory committee of the Audiovisual Council (CSA) referenced in Article 9.1.2-1, sections 1 and 2, and approved by the Government, which regulate advertising in general or advertising for certain products or services
  • Art. 5.2-2. In addition to compliance with the provisions of Book II, Titles 3 and 4 (see above), commercial communication may not:

 

  1. Encourage behaviour prejudicial to health or safety, in particular by promoting violent behavior
  2. Encourage behaviour prejudicial to the protection of the environment
  3. Contravene the rules on literary, artistic and industrial property and the right of personal portrayal
  4. Contain references to a specific person or institution, of statements or declarations from them, without their permission or that of their dependents
  5. Be about attachment to a religious or philosophical belief

 

  • Art. 5.2-3. Commercial communication must not cause physical, mental or moral detriment to minors and in particular in this context must meet the following criteria for their protection:

 

  1. It cannot encourage excessive consumption of food products and drinks containing trans fatty acids, salt, sodium or sugars, the regular intake of which is not recommended for health; the Advisory Board of the CSA drafts and updates one or more codes of conduct allowing the establishment of proven guidelines on the basis of best practice designed to ensure compliance with this point
  2.  It must not directly encourage minors to buy or hire a product or service by exploiting their inexperience or credulity
  3. It must not directly encourage minors to persuade their parents or third parties to buy the products or services concerned
  4. It must not exploit the special trust that minors have in their parents, teachers or other persons
  5. It must not unreasonably show minors in a dangerous situation

 

Art. 5.2-4

 

  1. Commercial communication must be easily identifiable as such. It must be clearly separated from programmes or programme sequences by clearly identifiable optical or acoustic means
  2. Any direct or indirect reference in the commercial communication of the programme or programme sequence likely to create confusion as to the commercial nature of the communication is prohibited
  3. Commercial communication must not use subliminal techniques
  4. The volume of commercial communication spots, as well as the announcements that precede and follow them, must not intentionally fluctuate, by whatever means, with respect to the rest of the programmes
  5. Surreptitious commercial communications are prohibited
  6. The second sentence of § 1 is not applicable to sponsorship, virtual advertising and product placement. The second paragraph is not applicable to sponsorship and self-promotion

 

 

 

3.1. Environmental claims

 

Self-Regulation

 

  • The Advertising Code in Belgium is a direct transposition of the ICC Code; in particular, Chapter D Environmental Claims in Marketing Communications
  • The Code of Environmental Advertising FR-NL / EN (CEA) mirrors the principles and provisions in the ICC Code 
  • ICC Framework for Responsible Environmental Marketing Communications 2021 provides 'added guidance on some established environmental claims and additional guidance on some emerging claims'. Appendix I carries an Environmental Claims Checklist

 

3.1.1. Key provisions

 

We set out below only the clauses from the most significant of several national self-regulatory influences, the Code of Environmental Advertising (CEA), which closely reflects the ICC Code’s Chapter D:

 

  • Advertising must be designed so as not to exploit the concerns of society as a whole on environmental issues, or exploit any lack of knowledge in this field
  • Advertising may not encourage, nor appear to endorse or promote, behaviour or actions that conflict with the protection of the environment, especially under the law or self-regulatory codes
  • Advertising may not contain a claim, designation (sign/ mark/label), illustration or representation that is likely to mislead directly or indirectly on the properties and characteristics of a product or service related to its environmental impact
  • When advertising refers to the contribution of a company or group of companies to environmental protection, the reference to products, services or particular actions/ practices cannot give the impression without justification (substantiation) that they are representative of the entire activity of a company or group of companies
  • When the qualities or benefits of a product or service in terms of environmental impact depend on conditions or special rules for consumption or use, advertising must specify them or failing that, the advertiser must be able to demonstrate/ provide evidence that the consumer information is provided
  • References to environmental impact cannot give the impression they apply to more stages of the life cycle of the product or service or to more properties of the product or service than is actually the case and must clearly indicate the stage of the product cycle or the property to which they apply
  • Expressions, claims/ statements or absolute slogans such as, for example, ‘good for the environment’ (FR: bon pour l'environnement NL: milieuvriendelijk) ‘environmentally/ ecologically safe’ (FR: écologiquement sûr NL: ecologisch veilig), ... implying that a product or service has no impact/ effect on the environment whatever the stage of its life cycle, are prohibited, without evidence established under Article 14 of this Code
  • If the advertisement refers to the absence or a reduced proportion of ingredients or elements having an effect on the environment compared with the same category of products or services previously placed on the market, it must be clearly stated what has been reduced. Possible replacement elements must bring a significant reduction in environmental damage, which will have to be proved/ substantiated in accordance with Article 14
  • Advertising can use scientific reasoning or findings on environmental impact only if they comply with the standard of proof as set out in Article 14
  • Scientific or environmental terminology is acceptable provided it is relevant and easily understood by consumers. Any confusion on this point must be avoided
  • Testimonials or certificates can only be used to support arguments referring to environmental impact if their content is in line with the state of development of science or technology in this area, given the composition of the product or service and market conditions at the time of their use
  • Advertising cannot suggest false superiority or disparage other products or services that are similar in terms of environmental impact. Environmental superiority over competitors can only be claimed if a significant advantage can be demonstrated
  • Signs or symbols on environmental impact cannot be misleading or cause confusion about their meaning. These signs or symbols must not falsely imply official approval
  • The advertiser must be able to justify/ substantiate with certainty and without delay any claim, designation (name/ mark/ label), illustration or representation referring to environmental impact. To be valid, the evidence must, in the case of a challenge, be approved by an organisation or person accepted by the parties concerned, provided it is deemed necessary by the supervisory body of the Code (i.e. JEP)

 

Legislation/ EU/ ISO

 

3.1.2. Channel-specific

 

The AVMS Directive 2010/13/EU carries an environmental claim provision under Article9/ iv: audiovisual commercial communications shall not: encourage behaviour grossly prejudicial to the protection of the environment. This provision is transposed in the February 2021 Decree on audiovisual media services and video sharing services under article 5.2.-2 in Book V, Title II, losing the word ‘grossly’ along the way

 

3.1.3. EU guidance

 

  • On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). Section 4.1. covers Sustainability, environmental claims at 4.1.1, from which: 'The coordinated screening of websites ('sweep') that the Commission and national consumer authorities carried out in 2020 confirmed the prevalence of vague, exaggerated, false or deceptive green claims', with some half of 'green claims' lacking evidence

 

 

 

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

 

3.2.1. Channel-specific

 

a) TV/ Radio

 

  • Price statements should not be such as not to cause children to minimise the real value of the product or service. No advertising aimed at children should imply that the product or service is within the reach of any family budget (Point 6 CSA’s Advice Note FR)
  • Commercial communications may not contain elements that are aimed at misleading the consumer as regards: the price or the way in which the price is calculated, as well as the conditions subject to which the goods are delivered or services are provided (Art. 60.1.2 FlMD EN)

 

b) Online/ e-commerce

 

  • Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included Art. 6 (2) Book XII of Code of Economic Law (EN)

 

3.2.2. Self-Regulation; from General Provisions of the ICC Code

 

  • Marcoms 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 (Art. 18.4 Children and Young People, ICC Code)
  • 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 (Art. 7: use of 'free', ICC Code)
       
  • Marcoms 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: the value of the product and the total price to be paid by the consumer (Art. 5: Truthfulness, ICC Code)

 

Legislation/ case law

 

  • Product Pricing Directive 98/6/EC (PPD) implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL; the PPD was amended by Directive 2019/2161, adding rules re promotional pricing extracted here. Guidance from the Commission on the application of this new article 6a is here. The rules were required to be in force in member states by 28 May, 2022
  • Belgium eventually transposed via the law of 8th May 2022 (FR) amending Books 1, 6 and 15 of the CEL (Code of economic Law), which faithfully transposed the directive's rules 
  • Case law CJEU Citroën/ZLW case C‑476/14
  • Book VI of the Economic Law Code (FR / NL) Market Practices and Consumer Protection; English translation of key provisions here (Arts. 99 and 100)

 

 

3.2.3. Key points

 

  • Where advertising states the price of a product, the selling price should be stated; selling price is defined in the PPD linked above as the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Art. 2a, PPD)
  • The Directive was referenced in the Citroën/ZLW case C‑476/14 where it was ruled: ‘As a final price, the selling price must necessarily include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the ‘pecuniary consideration for the acquisition of the product concerned’ (para. 37, Citroën case)
  • On promotional pricing, from article 6a of the directive, now transposed in Belgium in the law of 8th May 2022, which amends the CEL: '1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction. 2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction. 3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly. 4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2. 5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.’;

 

 

3.2.4. Misleading action

 

  • 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 in relation to: the price or the manner in which the price is calculated, or the existence of a specific price advantage (italics ours) even if the information is factually correct, and in either case it causes or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 97.4 Book VI CEL)

 

 

3.2.5. Misleading omission/ Invitation to Purchase

 

In the case of an invitation to purchase, Definition 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. I.8 (23) Book I CEL) it will be regarded as a misleading omission if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits:

 

  • 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
 

 

 

Adjudications from JEP are here. There's a search facility on these pages

A high profile decision on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

 

Truthfulness (Art. 5)

 

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

 

Substantiation (Art. 6)

 

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

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

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

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

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

 

 

 

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

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

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

 

 

18.4. Social values

 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

 

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

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product

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

(e) the need for a service, part, replacement or repair

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions

(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face

 

2.   A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

 

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
 

(i) the commitment is not aspirational but is firm and is capable of being verified, and

(ii) the trader indicates in a commercial practice that he is bound by the code

 

 

Article 7. Misleading omissions

 

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted

 

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

 

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

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

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

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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

 

 

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

 

 

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

C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C: TV & RADIO/ AV

 

 

  • The Content rules set out in our earlier Section B apply in this channel; principal Cosmetics rules are from the JEP/DETIC Cosmetics Code (EN 2020) and the European Regulations 1223/2009 and 655/2013 
  • The general content rules under the General tab in Content Section B, i.e. those rules that apply to all sectors, should also be observed. The principal set of rules is from the ICC Advertising and Marketing Communications Code (EN)
  • The Content rules specifically for Broadcast/ audiovisual media in Belgium reflect in broad terms the requirements of AVMS Directive 2010/13/EU (AVMSD), though some communities (Belgian AV is managed separately in German, Dutch and French-speaking communities) have interpreted these more aggressively. The AVMSD was amended by Directive 2018/1808, primarily extending scope online and to video-sharing platforms in particular. The Directive's content rule changes are summarised here; amends were transposed in Belgium by the Decree of 4th February 2021 (FR)
  • It is not too clear where the individual community decrees and the 4th February decree 'meet'; seek specialist advice if uncertain - the decrees are shown under Links Section E under the General tab
  • The Channel (i.e. placement) rules that apply to all product sectors, Cosmetics included, e.g. rules for Sponsorship and for Product Placement, are set out under the General tab below. The Cosmetics sector does not attract rules specific to audiovisual media

 

 

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

General

SECTION C: TV & RADIO/ AV

 

 

CONTEXT AND KEY SOURCES

 

  • The European media landscape is undergoing significant change and its regulation is changing with it; the Audiovisual Media Service Directive (AVMSD) 2010/13/EU in its original form regulated European broadcast media, as that’s where ‘audiovisual’ media was; as media has digitised, so has the scope of the AVMSD, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platform services (VSPS) in particular
  • For the purposes of this section – TV/Radio/VOD – not a great deal has changed as a result of the directive’s amends to the channel issues that the section covers, i.e. those for product placement, sponsorship etc. Amends are largely to do with scope and with new rules for VSPS, shown under our later Online Commercial Communications header
  • The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The content rules from the Decree are shown in our earlier Content Section B and, as above, do not change significantly, albeit more generally there are new pressures on Self-Regulatory systems. Key changes to Content rules in the Directive are shown here; see articles 4a and 9 for references to Self-Regulation in Food and in Alcohol
  • Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. The media authorities in each region have a record of transposing directives somewhat differently. In this case, the 2021 Decree linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish-, French- and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie)
  • We are getting confirmation of where the federal and regional rules ‘meet’ and which jurisdictions prevail; seek specialist advice if uncertain (and the authorities are below), albeit observing the Directive’s rules should keep you in good stead and they are anyway to a large extent ‘covered’ by Self-Regulatory measures, especially in matters of misleadingness, not addressed in AVMSD rules

 

 

MEDIA AUTHORITIES AND SOME RULES/ LAWS 

 

(We no longer check and translate the individual community decrees/ rules/ decisions)

 

Per above, there are four authorities in Belgium:

 

  1. Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles for the French-speaking community
  2. Vlaamse Regulator voor de Media (VRM) for the Flemish-speaking community and
  3. http://www.medienrat.be/ for the German speaking community
  4. Belgian Institute for Postal Services and Telecommunications – BIPT – for the bilingual Brussels-Capital Region. Background In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities, Flemish and French; in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services on the territory of the bilingual Brussels-Capital Region and from the link

 

 

Their rules are from:

 

  • Décret coordonne sur les services de médias audiovisuels (FR; CSA August 2018) applicable to the French-speaking community in Belgium
  • Fifth management contract RTBF 2019-2022 FR, applicable to RTBF, the public broadcasting service of Belgium's French-speaking community; the latest contract includes requirements for 'health messages' in commercial communications for'HFSS' foods; see our Food sector on the home page or Section E links of this database  
  • Flemish Media Decree of 27 March 2009 as amended April 2021 on radio and television broadcasting applicable to the Flemish region NL / EN (non official translation of the Act from VRM updated 04.03.2021; does not include April 2021 amends)
  • Applicable to the German-speaking community, the Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021 DE). Transposes the amends from the AVMS Directive 2018/1808. Art. 32 under Chapter 4 for new rules for video-sharing platforms. Art. 12 for the ‘standard’ rules re identification, the environment etc., art. 17 for the protection of minors and arts. 19 and 20 for product placement and sponsorship
  • Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region FR-NL (EN translation of relevant provisions); the act is a direct transposition of the AVMS Directive
  • The above is the latest region-specific act; it is our understanding that the applicable rules will now be from the Decree of 4 February 2021 (FR) referenced above
  • Some of the authorities publish separate advice notes on various subjects; the CSA (French-speaking authority) for example publish product placement and sponsorship rules 
  • The Content rules specifically for TV/ Radio and VOD in Belgium reflect in broad terms the requirements of article 9 of the AVMS Directive 2010/13/EU, though some communities have interpreted these more aggressively, especially with regard to children; the rules in the German/ Flemish/ French communities are shown together in a table here albeit these do not reflect the latest (minor) amends to content of commercial communications in the AVMS Directive from Directive 2018/1808, as shown in the Decree of 4th February linked above

 

 

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

International

SECTION C TV/AV AND RADIO

 

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

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
....................................................................................
Read more

2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA AND OUTDOOR

 

 

 

PRINT

 

As print examples can be a high-profile debating ground for cosmetics advertising, we draw attention to Section 3 of the JEP/DETIC Cosmetics Code (EN 2020) which directly incorporates Cosmetics Europe’s Guiding Principles on Responsible Advertising and Marketing Communication, especially Section 3.2.2 DETIC Code (or s. 2.1.2 Cosmetics Europe) relating to Image Honesty:

 

Image Honesty

 

  •  Digital techniques may be used to enhance the beauty of images to convey brand personality and positioning or any specific product benefit
  • The use of pre and post production techniques such as styling, re-touching, lash inserts, hair extensions, etc., should abide by the following principles:

 

  1. The advertiser should ensure that the illustration of a performance of an advertised product is not misleading (see Product Claim Substantiation)
  2. Digital techniques should not alter images of models such that their body shapes or features become unrealistic and misleading regarding the performance achievable by the product
  3. Pre- and post-production techniques are acceptable provided they do not imply that the product has characteristics or functions that it does not have.

 

For example, the following cases would not be considered misleading:

 

  • Using obvious exaggeration or stylized beauty images that are not intended to be taken literally
  • Using techniques to enhance the beauty of the images that are independent from the product or effect being advertised

 

 

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

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

The Content rules set out in our earlier Section B are applicable to all of the channels in this section, except those rules that are specific to broadcast and to online

 

 

CINEMA

 

  • There are no General channel rules that are specific to cinema in Belgium according to our research. There are targeting restrictions in some product categories such as Alcohol, and Food and Soft Drinks. See those categories for details. If the advertising content may be judged to be in some way inappropriate for children, check with JEP or the contractor for a view on potential restrictions
  • Brightfish Belgium is the SAWA (Screen Advertising World Association) representative in Belgium. Contact them directly for any further information on cinema advertising in Belgium: http://www.brightfish.be/

 

 

PRINT

 

  • There are no Self-Regulatory channel rules that are specific to print. As with Cinema, some targeting restrictions will apply in more sensitive sectors
  • General content rules will apply, in particular in this context (because of the prevalence and growth of ‘native’ advertising in print) Article 7 of the ICC Code Identification of advertising, a key principle running through the Journalistic Codes 
  • JEP’s 2019 Native Advertising Code (EN) applies when deploying the Native technique. The key rule is: where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used. Full information and guidelines in the linked code

 

 

OUTDOOR

 

  • Advertising/ marcoms content is subject to the rules set out in our earlier Section B, except for those rules that are specific to broadcast and online

 

 

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

 

 

 

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

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

 

 

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

3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow under later headers

 

STANDARD RULES 

 

  • While the Cosmetics sector does not attract specific separate online rules, as this is a channel in which the sector will be active, we set out below some of the key rules that apply to all sectors. See under the General tab below for more information
  • As JEP and other regulators cover online marcoms (including marketers’ own websites and other online space under their control, such as Social Network sites) the content rules for Cosmetics that are set out in Section B apply to digital channels; principal Cosmetics rules are from the JEP/DETIC Cosmetics Code (EN 2020) and the European Regulations 1223/2009 and 655/2013 
  • General rules, i.e. those for all sectors, also apply. Principal source is the ICC Advertising and Marketing Communications Code, directly applicable in Belgium
  • If the message online is a marketing communication, defined in the ICC Code as “...any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour”, it’s covered by the rules
 
APPLICABLE SELF-REGULATION 

 

 

LEGISLATION 

 

  • Book XII of the Code of Economic Law: ‘Law of the electronic economy’ FR-NL / EN; see articles 6, 12 and 13 for Consent and Information requirements in the context of electronic communications and e-commerce
  • Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ (Art. 99 sect. 5 inter alia. Book VI applies in large part) FR - NL / EN key provisions only. This is the core legislation in marketing/ commercial practices and transposes the Unfair Commercial Practices Directive 2005/29/EC. Covers e.g. misleadingness, some promotional pricing rules, and requirements in an ‘Invitation to Purchase’. Applicable in all channels
  • The General Data Protection Regulation if processing personal data may apply; check with specialist advisors
  • The content rules for Cosmetics brands in Section B above apply to marketing communications in all media, except the rules from the AV law shown in Point 3.6 of the Content section; following amends to the AVMS Directive by Directive 2018/1808, transposed in Belgium by the Decree of 4th Feb 2021 (FR), those rules now apply online and to Video-sharing platforms in particular 
  • As well as the content rules from the Decree coming into scope, Video-sharing platform services (VSPS) must also make available to those users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content. This rule applies to all sectors and is therefore set out below under the General tab; we have also posted it here because it seems relevant to this category, which will be active online in VSPS
 
ONLINE INFLUENCER MARKETING

 

https://www.jep.be/sites/default/files/rule_reccommendation/recommandations_du_conseil_de_la_publicite_influenceurs_en_ligne_fr.pdf (FR - brochure)

http://www.g-regs.com/downloads/BEGenInfluencerRecos.pdf (EN text)

 

The document linked above, published October 2018 by the Advertising Council, sets out the rules/ guidance on the issue of Online Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required

 

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section provides the 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, especially as there is so much content in a ‘blurred’ online environment. The definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’. 

 

SELF-REGULATION

 

  • Chapter C of the ICC Code: Direct Marketing and Digital Marketing Communications 
  • ICC Guide for Responsible Mobile Marketing Communications
  • 2022 Influencer Marketing Guidelines (EN)
  • JEP’s 2019 Native Advertising Code (EN) applies when using the Native technique. The key rule is: Where the commercial purpose of the communication is not immediately and clearly apparent from the content and/ or context, an explicit identifier must be used. Full information and guidelines in the linked Code
  • Commercial communications online, as defined under ‘Context’ above, are subject to the Content rules set out in our earlier Section B. Principal Self-Regulatory sources are the ICC Code (EN) deployed in Belgium as the ‘General’ code
  • It should be noted here that, while Self-Regulation is the principal force especially in the content of commercial communications, in this channel context the influence of legislation is significant for its consent and information requirements; see the legislation header later in this section

 

Below are a few of the key articles extracted from the first and most significant of the Codes linked above - Chapter C of the ICC Advertising and Marketing Communications Code. We have downloaded the full Chapter here. Other Codes referenced above are also placed/ set out under more directly relevant headers that follow

 

Article C1. Identification and transparency

 

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

 

Article C2. Identity of the marketer

 

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

 

Article 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
 

 

INFLUENCER MARKETING 

 

Communication Centre Recommendation for Influencers (EN)

 

The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them

 

The Flemish Media Regulator published in December 2021 the Content Creator Protocol (NL) which sets out new rules for vloggers/ influencers. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media

 

LEGISLATION

 

  • The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to Video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to Content rules in the Directive are shown here and the Decree’s content rules are set out under our Content Section B, point 2.3.
  • VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to those users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
  • Book XII of the Code of Economic Law: ‘Law of the electronic economy’ FR-NL / EN (extracts). Implements the E-commerce Directive 2000/31/EC, requiring that supplier and promotional information is made easily available (normally via a link) to consumers. See below for provisions 
  • Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ (Art. 99 sect. 5 inter alia; Book VI applies in large part) FR - NL / EN key provisions. The law transposes the UCPD and the MACAD. It applies across all channels and is here for the record
  • The General Data Protection Regulation, if processing personal data; privacy issues should be reviewed with specialist advisors 
  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; due in force 1 January 2024

 

Information requirements

 

Article 12 Book XII and Q.16 Spamming Q&A

 

These requirements apply to all commercial communications that are part of or that constitute information society services 

 

  • Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, and including its presentation.  If this is not the case, it shall contain the word: ‘advertising’ (reclame/ publicité) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
     
    • The word ‘advertising’ is only required if the advertising nature is not immediately clear. This assessment is made on a case-by-case basis according to the circumstances
    • For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain the word 'advertisement'
    • On the other hand, the more the advertising banner adopts a similar design to the non-advertising elements of the site, the less likely this banner will be considered 'identifiable' as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from just informative messages, if it wants to avoid having to mention the word 'advertising' (Q. 16, Point 1 in FPS Economy: Spamming Q&A)
       
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
  • Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions to take advantage of the offer/ participate should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
     
    • The explanatory memorandum states: "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)
 

Article 6 Book XII 

 

Note: this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’

 

  • § 1. In addition to other legal and regulatory information requirements, every service provider shall ensure that the recipients of the service and competent authorities have easy, direct and permanent access to at least the following information:

 

  1. the name or the trade name of the service provider
  2. geographic address at which the service provider is established
  3. contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
  4. where applicable, the business number (i.e. business registration number)
  5. in the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. regarding regulated professions:

 

  1. the trade association or professional body to which the service provider is registered
  2. the professional title and the state where has been granted
  3. a reference to the applicable professional rules and means to access them

 

  1. where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in Article 50 of the Code on VAT
  2. codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically

 

 

  • § 2. Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included

 

GDPR

 

Privacy issues should be reviewed with specialist advisors 

 

  • Processing personal data (that which can identify an individual) may occur across a number of online channels: as those channels may also be subject to specific privacy rules it's not always clear which rules to follow when the GDPR definition of 'data processing' Defined as any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Art.4 GDPR can 'cross' various marketing techniques/ channels
  • We show the specific channel rules in the media that follow (and some above), but point out that GDPR may also need to be observed if processing personal data. Advisors will determine which/ both to follow
  • In the event that Consent is the basis for lawful processing under GDPR then the definitive guidance is from the Article 29 Working Party (now the European Data Protection Board) Guidelines on consent under Regulation 2016/679 (May 2020)
  • The national DPA’s Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR) is the most recent and relevant national guidance. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
  • IAB Europe Transparency and Consent Framework is here. European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

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

  • Directive 2018/1808 amending AVMS Directive 2010/13/EU 

Also be aware of:

The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation

The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market

The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)

Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth

And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

 

Self-Regulatory clauses 

 

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

 

C1. Identification and transparency

 

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

 

C2. Identity of the marketer

 

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

C7. Marketing communications and children

 

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

 

C10. Respect for the potential sensitivities of a global audience

 

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

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

 

Directive 2018/1808 amending the AVMS Directive 

 

  • Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

  • For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications  

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

Privacy issues should be reviewed with specialist advisors

 

  • There are no cookie rules particular to Cosmetic Products. The general cookie rules, applicable to all sectors, Cosmetics included, are shown below under the General tab
  • Similarly, the cookies  - first or third party  - specifically deployed in OBA are addressed under the General tab; associated (personal) data processing may be subject to lawful processing rules from the GDPR
  • OBA is like any other advertising in the sense that it is subject to the Self-Regulatory and statutory rules set out in our earlier content Section B, except those rules that identify broadcast channels. Principal Cosmetics rules are from the JEP/DETIC Cosmetics Code (EN 2020) and the European Regulations 1223/2009 and 655/2013 
  • General rules, i.e. those for all sectors, also apply. Principal source is the ICC Advertising and Marketing Communications Code, directly applicable in Belgium

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Legislation and guidance

 

Privacy issues should be reviewed with specialist advisors

 

 

Key provisions (with a caveat)

  • Under Article 129 of the ECA, cookies may only be stored or accessed on an individual’s terminal equipment provided the individuals have consented after having been informed about the purposes of the data processing and their rights with regard to the processing of their data in accordance with the Data Protection/ Privacy Law, i.e. informed consent. Note: this law has been repealed and the application either of the law of 30 July 2018 or of GDPR in this context is unclear. Check with national specialist advisors, and see guidance from the January 2020 DPA Recommendation linked above
  • Users or subscribers must be given the option to withdraw their consent in a simple manner and free of charge
  • Consent within the meaning of point 2 (above) or the application of the consent exemption clauses (below), does not exempt the data controller from DPA (see above) obligations
  • Cookies are exempted from the requirement of informed consent where the cookie is used for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or
  • The cookie is 'strictly necessary' for the provision of a service explicitly requested by the user

 

ONLINE BEHAVIOURAL ADVERTISING (OBA)

 

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

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

Effective 19 January 2022

 

 

Self-Regulation of OBA/ IBA

 

  • Chapter C ICC Advertising and Marketing Communications Code: Direct Marketing and Digital Marketing Communications; Article C22 Provisions for Interest-Based Advertising (IBA). Note that the ICC have re-named OBA as IBA 
  • Full IBA/ OBA provisions from the Chapter have been placed in a back-up file here; alternatively, see the linked ICC Code above 

 

 

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).  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 on the icon 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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International

SECTION C: COOKIES AND OBA

 

 

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

From Reed Smith LLP/ Lex May 2022 

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

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

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

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

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

 

C22.1. Notice

 

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

 

C22.2. User control

 

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

 

C22.5. Data security

 

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

 

C22.6 Children

 

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

 

C22.7. Sensitive data segmentation

 

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

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European Self-Regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

  • The Content rules for Cosmetic products set out in our earlier Section B apply in this channel, except for those rules that identify broadcast channels. The JEP/DETIC Cosmetics Code (EN 2020) applies as do the European Regulations 1223/2009 and 655/2013
  • The general content rules under the General tab in Content Section B, i.e. those rules that apply to all sectors, should also be observed. The principal set of rules is from the ICC Advertising and Marketing Communications Code
  • The channel rules for all sectors, Cosmetics included, are shown below under the General tab. These include some significant statutory Consent and Information rules. In (very) brief, rules for direct electronic communications in Belgium do not depart significantly from the European ‘opt-in/ soft opt-in’ regime established by the E-Privacy Directive 2002/58/EC
  • If processing data that constitutes personal data, then lawful processing rules from the GDPR may apply; privacy issues should be reviewed with specialist advisors
  • The other notable influence in this context is the E-Commerce Directive 2000/31/EC transposed in Belgium into Book XII of the Code of Economic Law FR-NL / EN; see articles 6, 12 and 13 for Consent and Information requirements in the context of electronic communications and e-commerce. Details under the General tab below
  • If advertising constitutes an 'Invitation to Purchase', certain information must be included within the communication; details in the link or from the General tab below 

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

The Content rules set out in our earlier Section B apply, except those rules that are exclusive to broadcast channels, together with any sector-specific rules 

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

KEY SELF-REGULATORY CLAUSES 

 

The full chapter is extracted from the ICC Code here

 

Article C1. Identification and transparency

 

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

 

Article C2.  Identity of the marketer

 

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

 

Article C8.  Respecting consumer wishes

 

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

 

 

KEY CLAUSES FROM LEGISLATION 

 

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.’ (Art. 2.2 Book XII) 

 

B2C/ B2B: Opt-in system; unsolicited email commercial communications

 

  • Electronic mail may not be sent for marketing purposes without the free, prior, specific and informed consent of the recipient (Art. 13 (1) Book XII. Also inferred from Article 110 (2) Book VI Code of Economic Law)

 

Two exceptions to the opt-in principle (Art. 15 RD 2003)

 

The prior, free, specific and informed consent of the recipient is not required if the recipient is:

 

  1. An existing customer or client (natural or legal persons; so applicable to B2C / B2B), in which case the following conditions must be met:
     
  1. The sender has obtained the electronic contact details of its customers in the context of the sale of a product or the provision of a service, and in compliance with the privacy laws (Art. 1 (1a) RD2003)
  2. The electronic contact information is used exclusively in relation to similar products or services, which the sender itself provides (Art. 1 (1b) RD2003). See conditions in linked file
  3. The customers are given the opportunity to object, free of charge and in an easy way, to use of their electronic contact details for marketing purposes, upon collection of these details (Art. 1 (1c) RD2003). They will also need to be given the opportunity to opt out at each subsequent message (as per Art. 13 (2) Book XII)
     
  1. A legal person (i.e. B2B) and the e-mail address used for the mailing is of an impersonal nature (Art. 1 (2) RD2003); applicable to generic email addresses such as ‘info@, ‘contact@.... Where the email address is personal e.g. firstname.surname@company.be, it is regarded as an individual’s address, regardless of whether used for business or personal purposes, and requires consent (Commentary RD 2003)

 

INFORMATION REQUIREMENTS

 

Article 12 Book XII for commercial communications by email

 

  • The commercial communication must be clearly and immediately identifiable as such upon receipt. If this is not the case, it must contain the word: ‘advertising’ (‘reclama/ publicité’ in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable as such (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
  • Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
  • Article 6, Book XII (EN) shows information that must be made available in an Information Society Service (E-Commerce) context; this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’.

 

Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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

 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

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

 

 

Article 19 ICC Code: Data protection and privacy

 

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

 

19.1. Collection of data and notice

 

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

 

 

19.2. Use of data

 

Personal data should be:

 

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

 

 

19.3. Security of processing

 

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

 

 

19.4. Children’s personal data

 

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

19.5. Privacy policy

 

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

 

 

19.6. Rights of the consumer

 

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

 

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

 

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

 

 

19.7. Cross-border transactions

 

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

 

 

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

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

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

 

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

 

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

 
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EU guidance documents

 

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

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

 

  • These spaces are in remit in Belgium; that means that marketing communications, as defined in the ICC Advertising and Marketing Communications Code, definition extracted here Definition “Marketing communications” includes advertising as well as other techniques, such as promotions, sponsorships as well as direct marketing and digital marketing communications, and should be interpreted broadly to mean any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour are covered by the rules
  • Exemptions include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications; the best source for understanding exemptions in this context is the EASA’s Best Practice in Digital Marketing Communications; pps 10/11
  • So the rules set out in Content Section B apply to marketing communications, as defined, on marketers’ own websites, except those rules that identify broadcast/ audiovisual channels (see bullet point below); principal sources are the JEP/DETIC Cosmetics Code (EN 2020) in Self-Regulation and the European Regulations 1223/2009 and 655/2013.
  • For general rules, i.e. those that apply to all sectors Cosmetics included, the ICC Advertising and Marketing Communications Code (as linked above) is the key source
  • Following amends to the AVMS Directive by Directive 2018/1808, transposed in Belgium by the Decree of 4th Feb 2021 (FR), audiovisual rules from the AVMS Directive now apply online and to Video-sharing platforms in particular 
  • As well as the content rules from the Decree coming into scope, Video-sharing platform services (VSPS) must also make available to those users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content. This rule applies to all sectors and is therefore set out below under the General tab; we have also posted it here because it seems relevant to this category, which will be active online in VSPS
  • If commercial communication constitutes an ‘Invitation to Purchase,’ certain information is required to be included; details here 
  • Other significant rules from legislation for this channel are those to do with E-commerce, transposed from Directive 2000/31/EC and found nationally under Book XII of the Code of Economic Law: ‘Law of the electronic economy’ FR-NL / EN; see articles 6, 12 and 13 for Consent and Information requirements in the context of electronic communications and e-commerce
  • All of the references above apply to all sectors, Cosmetics included, and are therefore shown in full under the General tab below

 

 

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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. The ICC Code definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA DMC Best Practice linked below. 

 

 

APPLICABLE LEGISLATION AND GUIDANCE

 

  • The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to Video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to Content rules in the Directive are shown here and the Decree’s content rules are set out under our Content Section B, point 2.3.
  • The Flemish media regulator considers that the above Decree brings AV content from vloggers and influencers into scope and published in December 2021 the Content Creator Protocol (NL). Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media
  • VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
  • If  processing personal data, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors 
  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here
  • The national DPA Recommendation No. 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
  • Book XII of the Code of Economic Law; Articles 6, 12 EN; this section of the ELC transposes the E-Commerce Directive 200/31/EC and part of the E-Privacy Directive 2002/58/EC; provisions set out below 
  • Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ extracts EN; transposes UCPD 2005/29/ECOn 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’)
  • JEP's 2018 Influencer marketing guidelines; Section 4 - application of the rules - set out below 
  • EASA best practice recommendation on influencer marketing and DMC Best Practice; some help on exemptions to remit pps. 10/11

 

GENERAL INFORMATION REQUIREMENTS 

 

Article 6, Chapter 3: Information and transparency; Book XII CEL

 

Every service provider Definition Provider of an Information Society Service, in turn 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 must render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name or the trade name of the service provider
  2. Geographic address at which the service provider is established
  3. Contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where applicable, the business registration number
  5. In the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. Regarding regulated professions 
     
    1. The trade association or professional body to which the service provider is registered;
    2. The professional title and the state where has been granted
    3. A reference to the applicable professional rules and means to access them

 

  1. Where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in article 50 of the code on VAT
  2. Codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically  

 

INFORMATION IN ADVERTISING 
(Art. 12, Book XII)

 

  • Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: 'advertising' ('reclame / publicité') in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII)
  • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)

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Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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

 

  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 business, and, where applicable, the geographical address and the identity of the business on whose behalf it 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. Where appropriate, the existence of a right of withdrawal or cancellation

 

VIRAL

 

Defined by EASA in their DMC Best Practice as  ‘Any advertising that propagates itself. In a digital media context it can be defined as a marketing technique that seeks to use pre-existing social networks to produce increases in brand awareness.’

 

CASE LAW AND UGC

 

  • In a Commercial Court decision in Huy (30/06/2008) where an online dating site had a specific section on the site called "Make Some Noise" inviting users to enter email addresses of their friends in return for a higher popularity-rating, it was held that prior consent would have to be obtained (in accordance with Art. 13 (1) Book XII CEL) and that the collection of data for such purposes would have to comply with the Data Protection Act, i.e. fair processing information
  • Once created, sponsored or endorsed by the marketer (the original content may have been user-generated i.e. UGC), content is subject to the rules set out in our Content Section B, except those for broadcast, primarily from the ICC Advertising and Marketing Communications Code 

 

 

INFLUENCER MARKETING 

 

Communication Centre Recommendation for Influencers (EN)

 

The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them

 

 

 

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International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

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

Unsolicited communications

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

 

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

 

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

 

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

 

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

 
 
Directive 2018/1808 amending the AVMS Directive 

 

  • Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

  • For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications  

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

  • There are no Native rules particular to Cosmetic Products. The general Native rules, applicable to all sectors, Cosmetics included, are shown below under the General tab. The key rule in this context is that of identification of advertising and advertiser, from articles 7 and 8 of the ICC Advertising and Marketing Communications Code
  • Otherwise, Native is like any other advertising in the sense that it is subject to the Self-Regulatory and statutory rules set out in our earlier content Section B, except those rules that identify broadcast channels; principal sources are the European Regulations 1223/2009 and 655/2013 and in Self-Regulation the JEP/DETIC Cosmetics Code (EN 2020) and, for general rules, the ICC Code linked in the bullet point immediately above
  • JEP’s 2019 Native Advertising Code (EN) applies when using the Native technique. The key rule is: Where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used. Full information and guidelines in the linked Code or below under the General tab

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016  How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identification. If it’s advertising, defined in the ICC Code as ‘’any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’, then like any other advertising, it’s subject to the rules set out in our Content Section B, except those rules applying to broadcast

 

SELF-REGULATION

 

 

Key passages from the Native Advertising Code (link; EN)

 

A1) Context and use of Identifiers

 

  • The commercial nature of native advertising and related communications must, in accordance with article 7 of the ICC Code, be instantly and clearly identified by the target group. The question of whether this requirement is satisfied will have to be examined on a case-by-case basis, taking into account the specific circumstances, since the general impression given by the communication in question is key. In some cases, it already appears immediately from the content and / or from the context of the native advertising that it is a commercial communication. The criteria that can be considered in this regard include the following:

  1. (Audio) visual characteristics of the communication contributing to clear identification of its commercial nature. Example: A commercial communication on a web page of a medium uses the (audio) visual characteristics of the featured brand or clearly departs from the medium's usual layout
  2. Characteristics of the content of the communication contributing to clear identification of its commercial nature Example: A commercial communication with an obvious call to action. Where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used.

 

A2) Use of identifiers

 

  • There are different identifiers that help instantly to identify the commercial nature of a communication.
  • The terms that can be used as an identifier are, for example:

 

« Annonce »

« Publicité »

« Publireportage »

« Advertorial »

« Promotion »

« Proposé par (…)»

« Réalisé en étroite collaboration avec (…) »

« Powered by (…) »

 

  • This list is not exhaustive and the clarity of each identifier must be assessed on a case-by-case basis in combination with other factors likely to make a commercial communication identifiable. In particular, the following criteria may be taken into account:

 

  1. Use of the logo or the (audio) visual features of the brand. To allow a clear identification of commercial content, an identifier may be combined with the advertiser's logo and other characteristics of the brand
  2. The language of the identifier. An identifier in the target audience's language facilitates identification
  3. The positioning of the identifier. The identifier is preferably positioned where it is sufficiently visible such that the consumer can immediately identify that it is commercial content
  4. The (audio) visual characteristics of the identifier. The identifier must be sufficiently visible (if applicable, audible). A contrasting colour and sufficient size is recommended, taking into account the characteristics of the medium in which the content appears
  5. The duration of appearance of the identifier. The consumer must have enough time to absorb the identifier and recognise that this is commercial content
  6. The communication's target market. Particular attention should be paid to the comprehensibility of the identifier used when the target group is children or young people
  7. The accompanying text. An identifier can also be accompanied by brief text (for example via use of a "mouseover") in order to clarify the nature of the advertising and to explain that there is a commercial relationship between the medium and the advertiser

 

A3) Reference to native advertising

 

  • Not just the native ad content itself, but additionally the references to that content must also be identifiable as commercial communication. That can take the form of, for example, summaries of the content appearing on other pages of the website. The consumer must be clearly informed that this is commercial content before clicking on the advertising
 

 

LEGISLATION

 

  • Book VI of the Code of Economic Law: 'Market Practices and Consumer Protection'; key extracts EN  (Article 100 (11) and (22) Book VI CEL)

  • Book XII of the Code of Economic Law EN (Art. 12)

 

All media

 

  • The following misleading commercial practices shall in all circumstances be considered unfair (and thus prohibited under Art. 95) where they have as their object:

    • Using editorial content in the media to promote a product where a business has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (Art. 100(11) Book VI);

    • Falsely claiming or creating the impression that the business is not acting for purposes relating to its professional activity, or falsely representing itself as a consumer (Art. 100 (22) Book VI)

 

Online

 

  • Advertising which is part of or constitutes an information society service shall comply with the following conditions: immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: “advertising” (“reclame / publicité”) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)

    • The word "advertising" is only required if the advertising nature is not immediately clear at the first receipt and at the first sight; the advertisement must therefore contain the word "advertisement" only if it cannot be distinguished as such from its reception. In principle, therefore, it is not mandatory systematically to include "advertising"

    • Assessment should be made on a case-by-case basis according to the circumstances of the case (the text indicates "given its overall effect and including its presentation"). For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain "advertisement"

    • On the other hand, the more the advertising banner adopts a similar design to the non-advertising site, the less likely it will be considered identifiable as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from purely informative messages, if the inclusion of ‘advertising’ is to be avoided (Q. 16; Point 1: FPS Economy Q&A)

  • The natural or legal person on whose behalf the advertising is made shall be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.' 

 

Standard rules

 

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

 

Self-Regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

  • Opt-out applies to Direct Postal Mail in Belgium; companies are able to carry out marketing activities by postal mail unless the recipient objects and provided companies subscribe to the opt-out register and cleanse/ match their lists against the register. See the General tab below for details
  • The Content rules in our Section B above apply to Direct Postal Mail, as do the General content rules set out below the sector-specific rules. Principal sources are the JEP/DETIC Cosmetics Code (EN 2020) and the European Regulations 1223/2009 and 655/2013; the ICC Advertising and Marketing Communications Code, which applies directly in Belgium, for general provisions
  • If processing personal data, lawful processing rules from the GDPR may apply; privacy issues should be reviewed with specialist advisors
  • There are no rules specific to the Cosmetics sector and Direct Mail; the Channel rules that apply to all sectors, found under the General tab below, apply. These include, for example, rules on commercial communications that constitute an 'Invitation to Purchase', often the case in DPM

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

Privacy issues should be reviewed with specialist advisors

 

  • Direct Mail in most countries, Belgium included, is based on opt-out consent (Code of Economic Law Book VI (EN), art. 110), i.e. permissible unless the recipient objects 
  • Addressed mail cannot be sent to those registered to the Robinson list, Belgium’s version now managed by BAM, the Belgian Association of Marketing
  • The rules set out in our earlier Content Section B apply to commercial communications in direct postal mail, except those rules identifying broadcast or digital channels; the principal set of regulations is the ICC Advertising and Marketing Communications Code
  •  Other content rules include statutory information from the Code of Economic Law Book VI (EN), the large part of which applies. In this DM context, the commercial communication often constitutes an  'invitation to purchase' Definition Where goods or services are offered with reference to their characteristics and price in such manner appropriate to the communication medium used that an average consumer can conclude the transaction in which case other information, set out below, must be provided (ELC Book VI, art.99)
  • The data processing ‘behind’ DM, if it involves personal data Definition ‘Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person Art. 4 (1) GDPR may be subject to the GDPR
  • If applicable (check with advisors), the core GDPR articles on Information to be provided to data subjects and their right to object are assembled here. These provisions include a right to object ‘at any time’ and the information that must be provided to ‘data subjects’.

 

 

APPLICABLE LEGISLATION AND SELF-REGULATION

 

 

1. Self-Regulation

 

  • Chapter C Direct Marketing from the ICC Advertising and Marketing Communications Code; the rules shown below are applicable to direct postal mail
  • Opt-out Register: Robinson List / Mail Preference Service (MPS) applicable only to B2C; operated by BAM; not binding 

 

 

2. Legislation

 

  • Code of Economic Law Book VI; transposes the UCPD 2005/29/EC
  • The General Data Protection Regulation 2016/679 (GDPR) on personal data processing applies across Member States
  • The Law of 30 July 2018 (FR) on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data

 

 

1.1. KEY SELF-REGULATORY PROVISIONS

 

Chapter C Direct Marketing and Digital Marketing Communications ICC Code. The full Chapter is extracted from the ICC Code here

 

 

Article C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

 

Article C2. Identity of the marketer

 

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

Article C8.  Respecting consumer wishes

 

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

 

 

2.1. KEY PROVISIONS FROM LEGISLATION 

 

2.1.1. Invitation to purchase

 

Article 99, Book VI Code of Economic Law (EN)

 

§ 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 business, and, where applicable, the geographical address and the identity of the business on whose behalf it 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. where appropriate, the existence of a right of withdrawal or cancellation

 

 

2.1.2. B2C: Opt-out

 

  • Individual subscribers can opt-out from direct mail advertising using:

 

  • The Robinson List/ Mail Preference Service which allows all ‘natural persons’ i.e. individuals/ consumers, to register their details for free, for an indefinite period of time, to indicate that they do not wish to receive unsolicited addressed postal mail for direct marketing purposes referenced by Art. 110 Code of Economic Law
  • If applicable according to specialist advice, their right to object to processing for direct marketing purposes under the GDPR (Art. 21.3; key articles here)

 

 

Key points of Robinson list

 

  • It does NOT cover or apply to (CPP Recom):

 

  • Unaddressed mail such as that to 'The Occupier' or door-to-door advertising (mail drops); so applies only to addressed mail
  • Promotional mail sent to an individual in the context of and at the address of their professional role (i.e. B2B); only ‘natural persons’ can register, not companies
  • Addressed promotional mail to a party’s own customers or individuals who, after their inclusion in the Robinson list, expressed the desire to receive such mail

 

 

 

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International

 

Applicable Self-Regulation and legislation 

 

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

 

 

Standard rules

 

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

 

 

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

 

 

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Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

 

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

 
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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

  • Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the General Advertising Rules (EN) from the ICC/ JEP
  • The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from the Code linked above; clauses follow. For scope, definitions etc., see the linked Code, Chapter B
 
 

 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

SECTION C: SALES PROMOTIONS

 

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.

 

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.

 

  • We can trace no promotional rules specific to the Cosmetic sector; Cosmetics Europe, ‘acknowledges’ the ICC Code, Chapter A of which covers Sales Promotions for all sectors and channels
  • Associated promotional material should observe the rules set out in our Content Section B, together with the Content rules shown under the General tab in Section B. The principal sources of Cosmetics rules are the European Regulations 1223/2009 and 655/2013 and in Self-Regulation the JEP/DETIC Cosmetics Code (EN 2020)
  • The ICC Code linked above, which applies directly in Belgium, for general provisions, i.e. those for all product categories
  • The Channel (i.e. placement) rules that apply to all product categories and audiences also apply; see the General tab below. There are some important ‘price promotion‘ rules, for example, from Book VI of the Code of Economic Law (EN) article 100 (clauses 5-7 inc.) and information requirements in ‘advertising which is part of or constitutes an information society service’ from Book XII of the same CEL; see article 12 of the linked code re promotional information, or the General tab below, as these rules apply to all product categories

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

As this website was created to provide international rules on marketing communications, we do not claim authority on specific national Sales Promotions (SP) legislation, especially retail legislation. However, when we find relevant rules in the course of what is extensive research, we will include them in this section. We check, for example, the national Self-Regulatory Codes and Consumer Protection legislation for anything that impacts SP, and we include below the general (i.e. non sector-specific) rules from the International Chamber of Commerce (ICC) which provide at least a solid start for SP rules internationally. 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. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors

 

 

SELF-REGULATION

 

From the ICC Advertising and Marketing Communications Code, Chapter A

 

Extracts from the code:

 

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
 
 

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

 

 

LEGISLATION

 

  • Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players, referred to as 'Gaming Act' hereafter EN (translation from Gaming Commission)
  • Lotteries Act of 31 December 1851 FR - NL
  • Penal/ Criminal Code; Articles 301 to 304 of the Criminal Code determine the cases in which the organisation of lotteries and related activities are infringements FR - NL
  • Royal Decree of 9 February 2011 establishing the Code of Ethics for telecommunications FR - NL / EN key provisions. Chapter 10, S. 4 Articles 57–71 re premium rate services 
  • Book VI of Code of Economic Law FR - NL Extracts EN. Title IV Prohibited practices: Art 100 (19) and Art. 103 (8) for some competition requirements/ prohibitions. Key clauses shown below 
  • Book XII of Code of Economic Law FR - NL. Extracts EN. Art. 12 points 3 & 4 re promotional offers and conditions; clauses shown under the para below 
  • Product Pricing Directive 98/6/EC (PPD) implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL; the PPD was amended by Directive 2019/2161, adding rules re promotional pricing extracted here. Guidance from the Commission on the application of this new article 6a is here. The rules were required to be in force in member states by 28 May, 2022
  • Belgium eventually transposed via the law of 8th May 2022 (FR) amending Books 1, 6 and 15 of the CEL (Code of economic Law), which faithfully transposed the directive's rules 

 

Commercial practices regarded as unfair in all circumstances

 

Misleading commercial practices

 

  • Bait advertising: making an 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. 1.8 (23) Book I ELC) products at a specified price without disclosing the existence of any reasonable grounds the business may have for believing that it will not be able to offer for supply or to procure another business 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 (Art. 100 (5) Book VI ELC)
  • Bait and switch: making an invitation to purchase products at a specified price and then, with the intention of promoting a different product:

     
    • Either refusing to show the consumer the product proposed
    • Or refusing to take orders for it or deliver it within a reasonable time
    • Or demonstrating a defective sample of it (Art. 100 (6) Book VI CEL)

       
  • 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
  • Claiming that products are able to facilitate winning in games of chance 
  • 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 
  • Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
  • Describing a product as 'gratis' (gratuity / gratis), 'free' (à titre gracieux / voor niets), 'without charge' (sans frais / kosteloos) or similar if the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item 
    (All above from art. 100 CEL)

 

 

Aggressive commercial practices

 

  • Creating the false impression that the consumer has already won, or will win, whether or not by accomplishing a formality, a prize or other equivalent benefit
     
    • When in fact either there is no prize or other equivalent benefit
    • Or accomplishing any formality in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. 103 (8) Book VI CEL)
 
 

Online advertising for promotional offers and promotional competitions

 

  • Advertising which is part of or constitutes an information society service shall comply with the following conditions (Art. 12 Book XII):
     
    • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
    • The explanatory memorandum states "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)

 

 

Prize draws

 

Promotions in which the winner is chosen on the basis on an element of chance (promotional games of chance)

 

  • Such promotions are permitted unless they constitute a “game of chance”, which are only permitted subject to a licence, or a “lottery”, which is prohibited under Article 1 Lotteries Act, subject to exceptions shown below
  • This is a complicated area: both 'games of chance' and 'lotteries' are defined so broadly that promotional games of chance in Belgium are regarded as prohibited

 

 

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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

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

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

 

A5: Safety and suitability

 

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

 

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

 

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

 

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 
COPY ADVICE 

 

Copy advice is available in the early stages of advertising development, on the basis of a script and/ or storyboard, or for the finished advertisement. An online copy advice request form is available on JEP’s website.

 

 

Fee

 

  • Advice provided by the SRO Secretariat:
     
    • Members of the Belgian Advertising Council 150€ + VAT
    • Non-members of the Belgian Advertising Council 300€ + VAT
       
  • Advice provided by the SRO Jury:
     
    • Members of the Belgian Advertising Council 250€ + VAT
    • Non-members of the Belgian Advertising Council 500€ + VAT

 

 

COMPLAINTS HANDLING 

 

  • JEP handles complaints from the public i.e. consumers, consumer organisations, public authorities and professional associations
  • Competitor complaints are not within JEP's remit
  • Fee: No charge
  • Complaints must be submitted via an online form or in writing
  • File a complaint in Dutch/ in French
  • View decisions in Dutch/ in French

 

 

CLEARANCE 

 

Must be made direct to Broadcaster 

TV and VOD

Allow 3-5 days 

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

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

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

 

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

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION

 

Cosmetics legislation and guidelines

 

CPR

.

Regulation of the European Parliament and of the Council on cosmetic products No. 1223/2009. Effective 11 July 2013, the Cosmetics Directive 76/768/EEC was replaced by Regulation 1223/2009, the Cosmetic Products Regulation CPR. Provisions aim to ensure that consumers’ health is protected and that they are well informed by monitoring the composition and labelling of products. The Regulation also provides for the assessment of product safety and the prohibition of animal testing. Article 20 prohibits any misleading advertising of cosmetic products: claims in the form of texts, names, trademarks, pictures and figurative or other signs – used in the labelling, making available on the market and advertising of cosmetic products – must not imply that these products have characteristics or functions which they do not have.  Article 20 (2) required the Commission to establish common criteria for the acceptability of a claim which came in the form of Commission Regulation 655/2013 of 10 July 2013 – see below. Article 20 (3) allows use of the claim that no animal testing has been carried out.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32009R1223

 

Common Criteria

 

Regulation 655/2013 of 10 July 2013 laying down common criteria for the justification of claims used in relation to cosmetic products. Founded on Article 20 (2) of CPR 1233/2009, this Regulation established EU harmonised common criteria to which claims on cosmetic products must conform:

1. Legal compliance

2. Truthfulness

3. Evidential support

4. Honesty

5. Fairness and

6. Informed decision-making.

 

The criteria are a mandatory and legally binding EU text and supersede any diverging national requirements

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:190:0031:0034:EN:PDF

 

 

Guidelines common criteria

 

July 2013 - Guidelines to Commission Regulation (EU) No 655/2013 laying down common criteria for the justification of claims used in relation to cosmetic products. The purpose of this document is to provide guidance for the application of Commission Regulation EU No 655/2013 which lays down common criteria for the justification of claims used in relation to cosmetic products

http://www.g-regs.com/downloads/EUCosGuidelinesReg6552013.pdf

 

 

‘Free from’ guidelines

 

Guidelines for ‘free from’ claims. From the Technical document on cosmetic claims agreed by the Sub-Working Group on Claims (version of 3 July 2017). “In the case of ‘free from’ claims, more guidance is needed for the application of the common criteria to provide an adequate and sufficient protection of consumers and professionals from misleading claims.” Note: this is not an EC document

http://www.g-regs.com/downloads/EUCosTechDocJuly2017Freefrom.pdf

 

The ‘free-from' guidance related to common criteria is here

       

 

EC Cosmetics report

 

Report from the Commission to the European Parliament and the Council on product claims made based on common criteria in the field of cosmetics. 19/9/2016

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016DC0580

 

 

Sunscreen products

 

Commission recommendation 2006/647/EC of 22 September 2006 on the efficacy of sunscreen products and the claims made relating thereto. “Sunscreen product” means any preparation intended to be placed in contact with the human skin with a view exclusively or mainly to protecting it from UV radiation by absorbing, scattering or reflecting radiation (Sect. 1(2a)). From a legal point of view, these recommendations are not binding. However, because there was close collaboration between the authorities, consumer organisations and industry in drawing up the recommendations, this has become the principal document to take into account when developing or marketing sunscreen products. The Recommendation sets out examples of claims that should not be made in relation to sunscreen products (point 5), precautions that should be observed (Point 6), and usage instructions that should be recommended for some of the characteristics claimed (Points 7 and 8). Criteria for claims is outlined in Points 11-14; Claims concerning the efficacy of sunscreen products should be simple, meaningful and based on identical criteria (recital 18).

https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:265:0039:0043:en:PDF

 

 

European legislation applicable to all sectors

 

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

 

 

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.

Two more recent and significant documents:

 

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 of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ – UCPD). Reference Cosmetics, the ‘common criteria from Commission to The European Parliament and The Council on product claims made based on common criteria in the field of cosmetics - linked above.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF

 

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 and video-sharing platforms specifically. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 
https://eur-lex.europa.eu/eli/dir/2018/1808/oj

 

 

NATIONAL LEGISLATION

 

See General tab below for full list of entries that affect all product sectors, Cosmetics included. Below is a selection from mentions in preceding text

 

Royal Decree on Cosmetic Products of 17th July 2012. This act repeals and replaces Royal Decree of 15th October 1997 on Cosmetic Products, following the adoption of European Regulation 1223/2009. The only marcoms-related provisions are requirements for non pre-packaged cosmetics (Art. 5 where Cosmetics are not pre-packaged at POS, information from Article 19 (1) CPR must be made available to the consumer at POS). In French:

http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2012071711

 

 

Channel legislation

 

Broadcast/ audiovisual

 

The Decree on audiovisual media services and video sharing services of 4 February 2021 transposes amends made to the AVMS Directive by Directive 2018/1808.  The content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on Self-Regulatory systems; key changes to Content rules in the Directive are shown here - see article 4a and 9 for references to Self-Regulation in Food and in Alcohol. The 2021 Decree ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish-, French- and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie). Commercial communication content rules are shown under Book II, Titles III and IV and Book V, Title II. Book V also carries the rules for Video-sharing platform services (VSPS) which include the requirement that commercial communications, where these are known to exist, must be identified by the user who uploads and by the service to the end user. FR:

https://www.csa.be/wp-content/uploads/2021/03/Nouveau-decret-SMA-du-4-fevrier-2021-Publication-au-MB.pdf

 

The Media Decrees issued by the three Communities, along with the Federal Broadcasting Act, all implement the AVMS Directive 2010/13/EU, as amended. The Decrees set out under the General tab below contain specific regulations for advertising in audiovisual media; special rules for commercial communication directed at minors, for certain products such as alcohol and medicines, and for certain types of advertising such as teleshopping or virtual advertising in the case of the French Community. Product placement and sponsorship is also covered. 

 

 

Electronic communications: E-Commerce and Opt-in

 

Book XII of Code of Economic Law: ‘Law of the electronic economy’. Entry into force 31/05/2014. Book XII codifies the Law of 11 March 2003 on certain legal aspects of the information society, which implemented the E-Commerce Directive 2000/31/EC, and also part-implemented the E-Privacy Directive (Art. 13 (1) and (4) of Book XII. Provisions require ‘easy, permanent and direct’ access to some service provider information, and specifies identifiability of ‘Information Society Service’ advertising and e.g. conditions for promotional offers. It also establishes an opt-in regime where unsolicited emails may be sent only with prior, free, specific and informed consent of the recipient (Art. 13). The exception to this prohibition (Soft opt-in) is set out in Royal Decree of 4th April 2003 – see below. Relevant Section Chapter 4 Advertising; articles 12-15. The provisions apply to both natural & legal persons i.e. B2C and B2B. Book XII FR:

http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0410

NL:

http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel#LNK0409

EN:

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

 

 

Electronic communications: Soft opt-in

 

Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications. Entry into force 28/05/2003. The Decree complements the provisions on e-mail advertising in Chapter 4 (Articles 13 and 14) of Book VI Economic Law Code, implementing Article 13 (2) from the E-Privacy Directive, establishing two exceptions to the opt-in principle. Prior consent is not required from existing customers where certain conditions are met, nor from legal persons (businesses) where the electronic contact details are of an impersonal nature (e.g. info@...). The Decree also requires marketers to maintain and update opt-out lists/ registers. Translation of Articles 1 and 2, in addition to legal commentary is here:

http://www.gregsregs.com/downloads/BE_RD_4thApril2003_emailadvertising_commentary.pdf

Royal Decree:

FR: http://www.ejustice.just.fgov.be/eli/arrete/2003/04/04/2003011238/justel

NL: http://www.ejustice.just.fgov.be/eli/besluit/2003/04/04/2003011238/justel

 

 

Consumer Protection:  Unfair commercial practices 

 

Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’. Entry into force 31/05/2014. implements amongst others Directive 2006/114/EC on misleading and comparative advertising, Unfair Commercial Practices Directive 2005/29/EC (UCPD) and E-Privacy Directive 2002/58/EC. In the context of UCPD, Articles 104-109 regulate some practices between businesses, and Articles 92-103 regulate unfair consumer commercial practices including those that are regarded as misleading or aggressive in all circumstances, aka the Blacklist.Article 13 of the E-Privacy Directive is part-transposed in Chapter 3 (Arts. 110-115) of Book VI, which regulates the sending of unsolicited commercial communications, excluding those via e-mail, which are provided for in Book XII and the Royal Decree of 4th April 2003. Applies to B2C and B2B. Consolidated text:

FR: http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0092

NL: http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel

Extracts in English:

http://www.g-regs.com/downloads/BEEconomicCodeBookVIwithArt17.pdf

 

 

 

SELF-REGULATION

 

Industry codes and associations

 

JEP/DETIC Code of Advertising and Marketing Communications for Cosmetic Products Version 2020 (Code de la publicité et de la communication commerciale pour les produits cosmétiques / Code inzake reclame en marketingcommunicatie voor cosmetische producten) Entry into force  01/03/2020. DETIC is the Belgium Cosmetics Association; the code is applied by JEP, the SRO for the advertising sector in Belgium. The principal changes from the 2015 code are the addition of provisions on environment claims (art. 4.2.1) and diversity and inclusion (art. 4.5). In French:

https://www.jep.be/sites/default/files/rule_reccommendation/code_publicite_produits_cosmetiques_detic_2020.pdf

GRS translation:

http://www.g-regs.com/downloads/BECosmeticCodeDeticEN2020.pdf

  • An indicative list of claims/ indications that are not considered as a description of therapeutic or prophylactic (preventive) properties: GRS translation:
    BECosAFMPSListofclaims 
  • Guidelines for the borderline between Biocides – Cosmetic Products – Medicinal Products for human use BECosBorderlineAFMPS

 

 

Some other Codes administered by JEP

 

  • Rules on the depiction of people: FRNL / EN
  • Rules on humour in advertising: FRNL / EN

 

Native

 

Code on Native Advertising and Related Commercial Communications. Code en matière d’identification des publicités natives et communications commerciales connexes. Published in January 2019, this code sets out what constitutes native advertising, provides the context of the ICC rules, and lists acceptable 'Identifiers'

https://www.jep.be/sites/default/files/inline-media/code_native_advertising_2019_fr.pdf (FR)

https://www.g-regs.com/downloads/BEGenJEPNativeCodeB.pdf (EN)

 

 

Online Influencer Marketing

 

This code, published October 2018 by the Advertising Council, sets out the rules/ guidance on the issue of Online Influencer Marketing: when commercial communications qualify as such, and what kinds of identification are required.

https://www.jep.be/sites/default/files/rule_reccommendation/recommandations_du_conseil_de_la_publicite_influenceurs_en_ligne_fr.pdf (FR brochure)

http://www.g-regs.com/downloads/BEGenInfluencerRecos.pdf (EN text)

 

 

Sustainability

 

The Code of Environmental Advertising FR-NL / EN from the Commission for Environmental Labelling and Advertising is administered and applied by JEP as a cross-sector code

 

 

INTERNATIONAL SELF-REGULATION

 

 

ICC

 

ICC Advertising and Marketing Communications Code 2018. This code is directly applicable in Belgium

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

https://cdn.iccwbo.org/content/uploads/sites/3/2019/04/icc-advertising-marketing-code-dutch.pdf (NL)

https://cdn.iccwbo.org/content/uploads/sites/3/2018/12/icc-publicite-et-marketing-code-de-communications.pdf (FR)

 

‘The ICC Code is an integrated system of ethical rules. There are General Provisions and Definitions, which apply without exception to all marketing communications; these should be read in conjunction with the more detailed provisions and specific requirements set out in the relevant chapters’:

 

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 provides a general overview and guidance on 'green' claims, shows definitions of some common terms, and includes in Appendix I an Environmental Claims Checklist and in Appendix II a summary of the General Provisions of the ICC Code and those outlined in Chapter D on environmental claims, with guidance on use of environmental claims that often appear in marcoms:

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-environmental-marketing-communications-2019.pdf

 

 

European trade association

 

CE (Cosmetics Europe) European Charter and Guiding Principles on Responsible Advertising and Marketing Communication. From the CE website: 'What is new in this first revision? The initial version of Cosmetics Europe’s Charter and Guiding Principles for Responsible Marketing Communications was developed at the same time as the European Commission was drafting the Common Criteria Regulation2 (CCR). Many of the principles covered by the former – such as honesty, truthfulness, claim substantiation, informed choice - are now included in the CCR, having thus become legal requirements. Therefore, the Charter and Guiding Principles for Responsible Marketing Communications were thoroughly revised to focus on self-regulatory aspects rather than maintain aspects which are now mere compliance with the law. Areas which are updated and/or addressed in further detail in this revised version are: the evolution of the digital environment / influencer marketing, advertising to vulnerable populations / children and teens, promotion of environmental benefits of products.'

https://cosmeticseurope.eu/files/8716/0015/1562/Charter_and_Guiding_Principles_on_Responsible_Advertising_and_Marketing_Communications_-_1st_Revision.pdf

Cosmetics Europe also publishes Cosmetic Product Claims and Advertising: Compendium of applicable legislation, self-regulation, best practices and guidance:

http://cosmeticseurope.eu/files/9516/0015/5200/Compendium_of_applicable_legislation_self-regulation_best_practices_and_guidance.pdf

 

 

UBA
 
The United Brands Association, formerly the Union Belge des Annonceurs, the Association of Belgian Advertisers. The UBA Unstereotype Communication Charter has some influence and is supported by DETIC:

 

 

EASA

 

The European Advertising Standards Alliance published in December 2018 their Best Practice Recommendation on Influencer Marketing. Another helpful influence is their Best Practice Recommendation on Digital Marketing Communications, which carries e.g. guidance on website remit exemptions 

 

 

 

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General

SECTION E SOURCES/ LINKS

 

 

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. 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:

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

 

This is the FAQ from UBA, the advertiser organisation in Belgium:

https://www.ubabelgium.be/fr/news-insights/detail/2017/05/30/GDPR-Frequently-Asked-Questions

 

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance:  On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’)

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', does not require very significant changes as far as most commercial communication is concerned, it does set out some important new information requirements under the UCPD, pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes significant information requirements relating to e.g. search rankings and consumer reviews, which do not directly impact this database. Helpful explanatory piece from A&L Goodbody via Lexology hereProvisions 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 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

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

 

Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:

https://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

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

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS and video-sharing platforms in particular. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.

Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

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

 

E-privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

 

E-commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

 

NATIONAL LEGISLATION 

 

Channel legislation

 

The Decree on audiovisual media services and video sharing services of 4 February 2021 transposes amends made to the AVMS Directive by Directive 2018/1808.  The content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on Self-Regulatory systems; key changes to Content rules in the Directive are shown here - see article 4a and 9 for references to Self-Regulation in Food and in Alcohol. The 2021 Decree ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie). Commercial communication content rules are shown under Book II, Titles III and IV and Book V, Title II. Book V also carries the rules for Video-sharing platform services (VSPS) which include the requirement that commercial communications, where these are known to exist, must be identified by the user who uploads and by the service to the end user. FR:

https://www.csa.be/wp-content/uploads/2021/03/Nouveau-decret-SMA-du-4-fevrier-2021-Publication-au-MB.pdf

 

Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. Links to the authorities and some of their regulations below

 

 

Flemish community

Authority  Vlaamse Regulator voor de Media (VRM)

 

Decree of 27th March 2009 on radio and television broadcasting (Decreet betreffende radio-omroep en televisie); regulates commercial communications including advertising, teleshopping, sponsorship, and product placement in all Dutch-speaking radio and TV channels; applicable to those broadcasters established either in the Flemish speaking region or the bilingual Brussels-Capital region, where those activities are exclusively linked to the Flemish Community i.e. in Dutch. The Decree applies to commercial broadcasters and in part also to the Flemish public broadcaster VRT and to video-sharing platforms (article 176 +) following 2021 amends. Consolidated version updated to April 29, 2021 here (Dutch). Unofficial translation of the act from VRM updated 04.03.2021; does not include April 2021 amends transposing Directive 2018/1808:

https://www.vlaamseregulatormedia.be/sites/default/files/act_on_radio_and_television_broadcasting_040321.pdf

 

The Flemish media regulator considers that the Decree amends above bring AV content from vloggers and influencers into scope; they published in December 2021 the Content Creator Protocol (NL) which sets out three themes: Commercial communication on social media, commercial communication and content aimed at minors and prohibition of violent and hate speech. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish AV media.

 

 

French community

Authority: Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles

 

Coordinated Decree on audiovisual media services. Version of 21 August 2018. Regulates commercial communications for all French-speaking radio and TV channels: TV/ Radio advertising, interactive, split screen and virtual advertising, sponsorship, teleshopping and self-promotion, and product placement. The provisions apply to commercial and public (RTBF) broadcasters, although the RTBF management contract supplements this Decree with more aggressive rules (see below). Consolidated text: 

https://www.csa.be/document/decret-coordonne-sur-les-services-de-medias-audiovisuels-version-consolidee-par-le-csa-au-21-aout-2018/ 

English translation of key provisions (previous decree of July 2016):

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

 

CSA Recommendation on product placement (17/12/2009). Stipulates four explicit conditions on product placement and offers a mechanism for identifying programmes which contain product placement, i.e. PP logo and following phrase: “le programme qui suit contient des placements commerciaux de produits, marques ou servicesFR

CSA Code of ethics on audiovisual advertising directed at children FR (Art.11/12)

Alcohol advertising in the French community (2007) FR

 

Public Service Broadcaster: Radio Télévision Belge Francophone (RTBF)

https://www.rtbf.be/


RTBF management contract 2019-2022. The management contract with the Government of the Federation Wallonia-Brussels (French speaking Community) includes a chapter (IV) with measures on commercial communication, such as conditions for product placement, the prohibition of advertising and sponsorship of children's programmes on TV, Radio and VOD. This latest contract includes a requirement under article 73 that commercial communications for ‘drinks with added sugar, salt, or artificial sweeteners or processed food (boissons avec ajouts de sucres, de sel, ou d’édulcorants de synthèse ou de produits alimentaires manufacturés) must carry sequentially and equally ‘health messages’ as follows:

 

Pour votre santé, mangez au moins cinq fruits et légumes par jour
Pour votre santé, pratiquez une activité physique régulière
Pour votre santé, évitez de manger trop gras, trop sucré, trop salé
Pour votre santé, évitez de grignoter entre le repas

 

Consolidated version:

https://www.csa.be/wp-content/uploads/documents-csa/contrat_de_gestion_RTBF.pdf

 

 

German community

Authority: http://www.medienrat.be/

 

The Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021). Transposes the amends from the AVMS Directive 2018/1808. Article 32 under Chapter 4 for new rules for video-sharing platforms, article 12 for the ‘standard’ rules re identification, the environment etc., article 17 for the protection of minors and articles 19 and 20 for product placement and sponsorship. 

http://medienrat.be/files/Mediendekret 2021-BS-120421.pdf (DE)

 

 

Bilingual Brussels-Capital region

Authority: 

 

Belgian Institute for Postal Services and Telecommunications BIPT. In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities (the Flemish Community and the French Community): in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services in the territory of the bilingual Brussels-Capital Region. 

 

Federal Broadcasting Act: Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region. Regulates broadcasting activities in the bilingual Brussels region that cannot be linked exclusively to the French Community or the Flemish Community. At Federal level, BIPT (Belgian Institute for Postal Services and Telecommunications) is the national regulatory authority. Relevant Section Chapter 2 Section 1: Arts. 14-16 provisions applicable to all AVMS providers; Section 2: Arts. 22-25 specific provisions for TV broadcasters. This is the latest region-specific act as far as we are aware; it is our understanding that the applicable rules will now be from the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR) referenced above 

FR: http://www.ejustice.just.fgov.be/eli/loi/2017/05/05/2017040323/justel

NL: http://www.ejustice.just.fgov.be/eli/wet/2017/05/05/2017040323/justel

English translation of relevant provisions:

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

 

 

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Privacy and electronic communications: cookies

 

Law of 13 June 2005 on Electronic Communications, as amended by Law of 10th July 2012 (Wet betreffende de elektronische communicatie/ loi relative au communications électronique). Entry into force 30/06/2005. This Act implemented the EU 'Telecoms Package', the regulatory framework for electronic communications consisting of five Directives; see here. The law imposes privacy and data protection obligations in electronic communications; in particular article 129 regulates the use of cookies, implementing article 5 (3) of the E-Privacy Directive 2002/58/EC as amended by Directive 2009/136/EC, the ‘Cookie Directive’. Cookies can only be stored or accessed on individuals’ computers provided that the individuals have consented after having been informed about the purposes of the data processing and their respective rights.  Consent is not required for cookies that are used for the sole purpose of transmitting a communication over a network, or strictly necessary for the provision of a service requested by the user; the GDPR may (also) apply in the context of processing personal data. Consolidated act:

FR:  http://www.ejustice.just.fgov.be/eli/loi/2005/06/13/2005011238/justel

NL: http://www.ejustice.just.fgov.be/eli/wet/2005/06/13/2005011238/justel

 

Data Protection

 

Law of 8 December 1992 on the protection of privacy in relation to the processing of personal data. Known as the Data Protection Act (DPA) or ‘Privacy Act’, implemented the Data Protection Directive 95/46/EC (now repealed) following an amendment via the Act of 11 December 1998. The Act will apply to most marketing activities (including electronic) where there is likely to be processing and use of personal data. Whilst the Act does not prohibit the use of personal data for the purposes of direct marketing, it provides individuals with the right to object to the processing of their personal data for direct marketing purposes (Arts 9 (c) and 12(1) DPA). Consolidated Law:

FR:

http://www.ejustice.just.fgov.be/eli/loi/1992/12/08/1993009167/justel

NL:

http://www.ejustice.just.fgov.be/eli/wet/1992/12/08/1993009167/justel

Unofficial translation as of July 2013: 

http://www.gregsregs.com/downloads/BE_PrivacyAct_08.12.1992_EN.pdf

Summary:

http://www.gregsregs.com/downloads/BE_DataProcessingSummary.pdf

 

REPEALED JULY 2018

 

The arrival of GDPR

 

The Law of 3rd Dec 2017 replaced/ renamed the Privacy Commission with the Data Protection Authority (DPA); which will have the necessary powers to enforce the GDPR and be able to impose a wide range of sanctions (Article 100, Law of 03/12/2017)

https://www.gegevensbeschermingsautoriteit.be/sites/privacycommission/files/documents/Loi 3 DECEMBRE 2017.pdf

The Law of 30 July 2018 on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data:

www.ejustice.just.fgov.be/eli/loi/2018/07/30/2018040581/justel

 

Authority and guidance 

 

The Data Protection Authority.  Autorité de protection des données, Gegevensbeschermingsautoriteit. Established by the Law of 3rd December 2017

https://www.dataprotectionauthority.be/professional

Recommandation No 01/2020 du 17 janvier 2020 relative aux traitements de données à caractère personnel à des fins de marketing direct. Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent:

 

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq.'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR. News story here.

 

 

Electronic communications: E-commerce and opt-in

 

Book XII of Code of Economic Law: 'Law of the electronic economy'. Entry into force 31/05/2014. (Boek XII: Recht van de elektronische economie / Livre XII: Droit de l'économie électronique). Book XII codifies and in doing so repeals the Law of 11 March 2003 on certain legal aspects of the information society, which implemented the E-Commerce Directive 2000/31/EC, and also part-implemented the E-Privacy Directive 2002/58/EC (Art. 13 (1) and (4) of Book XII). Book XII requires ‘easy, permanent and direct’ access to some service provider information, and specifies identifiability of Information Society Service advertising and e.g. conditions for promotional offers. It also establishes an opt-in regime where unsolicited emails may be sent only with prior, free, specific and informed consent of the recipient (Art. 13, Book XII). The exception to this prohibition (soft opt-in) is set out in Royal Decree of 4th April 2003;  see below. Relevant section Chapter 4 Advertising; articles 12-15. The provisions apply to both natural and legal persons i.e. B2C and B2B. Book XII:

http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0410 (FR)

http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel#LNK0409 (NL)

http://www.g-regs.com/downloads/BEEconomicCodeBookXII_WRedit.pdf (EN)

 

 

Electronic communications: Soft opt-in

 

Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications. Entry into force 28/05/2003. (Koninklijk besluit tot reglementering van het verzenden van reclame per elektronische post/ Arrêté royal visant à réglementer l'envoi de publicités par courrier électronique). The decree complements the provisions on e-mail advertising in Chapter 4 (Articles 13 and 14) of Book VI Economic Law Code, implementing Article 13 (2) from the E-Privacy Directive. The decree establishes two exceptions to the opt-in principle established in Article 13 (1) of Book VI Economic Law Code. Prior consent is not required from existing customers where certain conditions are met nor from legal persons (businesses) where the electronic contact details are of an impersonal nature (e.g. info@...). The Decree also clarifies the way in which marketers must respect the right of the recipient to opt out, requiring them to maintain and update opt-out lists/ registers. A legal commentary on Articles 1 and 2 of the Decree is also provided. Translation of articles 1 and 2, in addition to legal commentary is here: 

http://www.g-regs.com/downloads/BE_RD_4thApril2003_emailadvertising_commentary.pdf

Royal Decree:

FR: http://www.ejustice.just.fgov.be/eli/arrete/2003/04/04/2003011238/justel

NL: http://www.ejustice.just.fgov.be/eli/besluit/2003/04/04/2003011238/justel

 

 

Guidance relevant to privacy/ direct marketing

 

Federal Public Service: Economy, SMEs, Self-employed and Energy (abbrev. FPS Economy – as above). Monitors goods and services market in Belgium; responsible for contributing to the development, competitiveness and sustainability of the goods and services market, ensuring the position of the Belgian economy at the international level, promoting trade by fair economic relations in a competitive market, collecting, processing and disseminating economic information. It is the supervisory authority for the Code on Economic Law.

http://economie.fgov.be/en

 

FPS Economy brochure

 

Spamming FAQ. Q&A brochure presenting the rules applicable to unsolicited commercial communications by e-mail:

https://economie.fgov.be/fr/themes/line/commerce-electronique/spam/questions-frequemment-posees

 

 

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Consumer protection: unfair commercial practices 

 

Book VI of the Economic Law Code: 'Market Practices and Consumer Protection' (Boek VI: Marktpraktijken en consumentenbescherming/ Livre VI: Pratiques du marché et protection du consommateur) Entry into force 31/05/2014. Implements amongst others Directive 2006/114/EC on misleading and comparative advertising, the Unfair Commercial Practices Directive 2005/29/EC (UCPD) and E-Privacy Directive 2002/58/EC. In the context of UCPD, Articles 104-109 regulate some practices between businesses and Articles 92-103 regulate unfair consumer commercial practices ​including those that are regarded as misleading or aggressive in all circumstances, aka the Blacklist. Article 13 of the E-Privacy Directive is part-transposed in Chapter 3 (Arts. 110-115) of Book VI, which regulates the sending of unsolicited commercial communications, excluding those via e-mail which are provided for in Book XII and the Royal Decree 4th April 2003. Applies to B2C and B2B. Book VI was amended by the Law of 8th May 2022 (FR) which introduced provisions from Directive 2019/2161 related principally (for our purposes) to promotional pricing, international marketing and e-commerce; explanatory piece here in English from CMS Law. Consolidated text of the ELC:

FR: http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0092

Extracts in English (does not include 2022 amends): 

http://www.g-regs.com/downloads/BEEconomicCodeBookVIwithArt17_WRedit.pdf

 

 

 

 

SELF-REGULATION

 

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 (EN)

https://cdn.iccwbo.org/content/uploads/sites/3/2019/04/icc-advertising-marketing-code-dutch.pdf (NL)

https://cdn.iccwbo.org/content/uploads/sites/3/2018/12/icc-publicite-et-marketing-code-de-communications.pdf (FR)

 

Chapter A.  Sales Promotion

Chapter B . Sponsorship

Chapter C.  Direct Marketing and Digital Marketing Communications

Chapter D.  Environmental Claims in Marketing Communications

 

Additional ICC guidance and frameworks

(non-exhaustive)

 

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

 

 

Other codes administered by JEP

 

The Code of Environmental Advertising 1998. Articles 1 to 14 (Code de la publicité écologique / Milieureclamecode). This code is from the Commission for Environmental Labelling and Advertising, which sat within the Consumer Affairs Council, the main advisory body on the issues of consumption and consumer protection. The Consumer Affairs Council delivers its advice to the Ministry of Consumer Protection and the Economy Ministry, and has legislative and executive powers on consumer issues. The code replaced an Environmental Code produced by JEP, the SRO for Belgium and is based on the ICC code applicable at the time. It now supplements the more recent Chapter E Environmental claims, of the ICC Code. The Code is administered by JEP.

FR - NL / EN

 

People and humour

 

  • Rules on the depiction of people: FR / NL / EN
  • Rules on humour in advertising: FR / NL / EN

 

JEP (Jury voor Ethische Praktijken inzake reclame (JEP)/ Jury d’Ethique Publicitaire). Jury of Advertising Standards – also translated as Jury for Ethical Practices in Advertising or Advertising Ethics Jury - JEP is the Self-Regulatory Organisation (SRO) for the advertising sector in Belgium and was created in 1974 by the Belgian Advertising Council (Raad voor de Reclame / Conseil de la Publicité, as of June 2020 Centre de la Communication). JEP’s mission is “to ensure fair, truthful, and socially responsible advertising.” The Jury composition is equally split between the advertising sector and civil society. JEP handles complaints from consumers, consumer organisations, public authorities and professional associations; competitor complaints are not within their remit, which is is determined by the Jury Regulations, and not by the legal and SR definitions of concepts such as ‘advertising’, ‘marcom’, ‘commercial communication’, etc. JEP’s areas of competence are translated here, see relevant case here.

http://www.jep.be/

 

Native

 

Code on Native Advertising and Related Commercial Communications. Code en matière d’identification des publicités natives et communications commerciales connexes. Published in January 2019, this code sets out what constitutes native advertising, provides the context of the ICC rules, and lists acceptable 'Identifiers'

 

 

Influencer marketing 

 

Published May 2022 by the Communication Centre, sets out the rules/ guidance on the issue of Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required:

https://www.jep.be/wp-content/uploads/2022/04/influencers_FR.pdf (FR)

https://www.jep.be/wp-content/uploads/2022/04/influencers_NL.pdf (NL)

http://www.g-regs.com/downloads/BEGenInfluencersMay2022EN.pdf (EN)

 

 

 

INDUSTRY ASSOCIATIONS

 

 

UBA

 

The United Brands Association, formerly the Union Belge des Annonceurs, the Association of Belgian Advertisers. The UBA Unstereotype Communication Charter has some influence:

www.mediaspecs.be/wp-content/uploads/2019/01/UBA-Charter-Unstereotype-Communication-FR-.pdf (FR)

www.g-regs.com/downloads/BEGenUBAStereotypeCharter.pdf (EN key clauses)

 

 

EASA

 

European Advertising Standards Alliance. ‘EASA has a network of 41 organisations representing 27 advertising standards bodies (aka Self-Regulatory Organisations) from Europe, and 14 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.’

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

Membership

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

 

Best Practice Recommendations

 

Digital Marketing Communications

Online Behavioural Advertising

Influencer Marketing

 

 

 BAM

 

The Belgian Association of Marketing; from their website: 'the largest marketing trade association in Belgium. BAM is an open community that brings the members, initiatives and expertise of STIMA, BDMA and IAB Belgium together into one place to provide a unique knowledge exchange platform.'

https://www.marketing.be/home

 

IAB Europe

 

How to Comply with EU Rules Applicable to Online Native Advertising
IAB Transparency and Consent Framework:

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq.'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR. News story here.

 

WFA

 

World Federation of Advertisers (WFA) Guide for Marketers: Five things every brand owner should know about the General Data Protection Regulation: 

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

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

ESA

 

European Sponsorship Association: from their website:ESA’s mission is to inspire, unite and grow the sponsorship industry for the benefit of its members. ESA does this through education, guidance, representation, the recognition of excellence and the sharing of best practice and performance.’

https://sponsorship.org/

 

 

 

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International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:

https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/

Downloaded:

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

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

 

ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility.  It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

ICC toolkits

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

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

IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' 

 

 

ICAS

 

From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

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

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

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

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016:

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

 

 

 

Key Directives in marketing communications

 

Privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

 

E-commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: 
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. 

 

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):

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

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

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

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

 

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