Food and Soft Drinks

 

Uploaded November 2018.

See individual countries for updates.

Netherlands

A. Overview

Sector

SECTION A OVERVIEW

 

Updates

SRC review placed March 2020

EU Pledge amends April 2020
Delegated Regs amends Sept 2020
Media Act review Dec 2020

New Code links Jan 2021

EU links refreshed June 2021

EU Pledge enhanced July 2021

Links checked December 2021

KOAG/KAG on-hold claims March 2022

Media Act updates March 2022 (NL)

CvdM Influencer rules May 2022 (NL)

EN summary of the above here

SRC decision (NL) on Albert Heijn/ Nutriscore

Social Media & influencer Marketing Code 

Above effective July 1, 2022. EN trans

 

 

CONTEXT AND STRUCTURE

Most visitors to these pages will probably be those who operate in the mainstream consumer markets and will need to be aware of really only two significant influences: the Self-Regulatory Advertising Code for Food Products (EN) and the European regime represented by The EU Register, which provides permitted nutrition claims and authorised health claims for ‘foodstuffs’ and supplements. Around this core is a considerable amount of quite complex regulation, some of which is relatively recent and in transition, for certain food types. These ‘secondary’ influences can make the whole picture look very complex and forbidding; for most, however, the two regulatory influences linked above will deliver the situation in the Netherlands. So the structure below, is A) Mainstream - probably best defined in this context as more heavily advertised - Food and Soft Drinks and B) Other foods, followed by C) Channel Rules and D) General rules, applying to both A) and B) Food groups. The Advertising Code for Food Products linked above applies to all Food and Soft Drink advertising in the Netherlands.

 

 

A. MAINSTREAM FOOD AND SOFT DRINKS

 

A1. NATIONAL SELF-REGULATION

 

The Advertising Code for Food Products (ACF; EN) was originally developed by the Dutch Food Industry Federation FNLI working with the advertising regulator SRC; the Code is now incorporated into the Dutch Advertising Code (DAC; EN). The applicable 2019 Dutch version of the Food Code is hereThe Code was amended in 2015 notably to raise the upper age limit on the advertising ban for foods intended for children from 7 years old to 12 years old, and in 2019:

 

- Overtly to clarify that the scope includes Influencer Marketing 

- To introduce a ban on the use of children’s idols on packaging and POS material

- And to update some of the terms 

 

So it is not permitted to advertise to children aged 12 and under, except when food products directed at children 7–12 meet the nutritional criteria in the table (NL / EN) with corresponding portion size list (NL / EN). It is prohibited to advertise (or sample) food in playgroups, day-care and after-school childcare centres, and at primary schools. Details are in our following Content Section B and Channel Section C. The ‘co-owner’ of the Food Code referenced above is the Dutch Food Industry Federation FNLI. Their ‘Top 15 Food Advertising Rules’ are here (EN), with the original Dutch version here. These do not depart from or add to the authorities’ rules, just provide a summary of the most important, based on the (2015) Food Code and the DAC. 

 

Confectionery

 

The demise of the Confectionery Code, largely a result of the prohibition of targeting of food advertising to under 12s, means that the ‘toothbrush’ logo no longer needs to be depicted in advertising for confectionery. The Advertising Code for Food Products (EN) meanwhile applies in full to Confectionery advertising. Food is defined under the Code's general provisions as 'any industrially prepared and, as a rule, packaged food products and drinks intended for consumer use.' 

 

European Self-Regulation

 

For a European Self-Regulatory framework, see the ICC’s Framework for Responsible Food and Beverage Marketing Communications 2019. The ICC’s Advertising and Marketing Communications Code, on which the framework is based, underpins much of Self-Regulation worldwide. More in our Content Section B below. The EU Code of Conduct on Responsible Food business and Marketing Practices of July 2021 is not focused on marcoms but you should probably be aware of its existence; its purpose is 'to unite behind a common aspirational path towards sustainable food systems.' Reference is made to 'responsible food marketing and advertising practices, e.g. by adhering to self- and co-regulatory initiatives and standards.' It is a voluntary code.

 

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.

 

A2. LEGISLATION

 

EU Regulations: Nutrition and health claims

 

Regulations are directly applicable. The ‘spine’ of food and drinks claims rules is in Regulation 432/2012, establishing permitted health claims. Regulation 1924/2006 on Nutrition and Health claims includes in its Annex a list of Nutritional claims and their conditions of use. The EU Register lists all permitted nutrition claims and all authorised and non-authorised health claims. Regulation 1169/2011 is more concerned with labelling but includes some important general food advertising rules; all of the rules from the above are set out in our following Content Section B.

 

B. OTHER FOODS

 

B1. SELF-REGULATION

 

Supplements and health claims 

 

For Food Supplements, the Code for Health Product Promotion NL / EN will apply. The KOAG/KAG Control Board, established by the relevant sector organisations in the healthcare and pharmaceutical industry, ‘supervises’ these forms of consumer advertising via pre-clearance, monitoring and complaint handling. The advertising Self-Regulatory Organisation, i.e. the SRC who administer the Dutch Advertising Code, ‘presume a valid approval number issued by the Control Board'. The Advertising Code for Food also applies, as does legislation (see B2 below). There are different conditions for botanicals or herbal supplements; see the Control Board’s explanation here (NL).

 

Infant and Follow-on Formulae 

 

The Infant and Follow-on Formulae Advertising Code has been part of the DAC (EN) since March 2018. The 'co-owner' in this case is the Association of Dutch Food and Dietary Food Manufacturers VNFKD. The Code is in Dutch here, in English here. In February 2020 VNFKD published New rules for infant formula as of February 2020 (NL) which announced the arrival of Delegated Regulation 2016/127, applicable from February 2020 for infant formula for 0-12 months Caveat With the exception of products produced with protein hydrolysates for which the effective date is February 22, 2021. The VNFKD summary of the advertising implications and the impact on their Code of Conduct is here in English.

 

B2. LEGISLATION

 

Supplements

 

Regulated in Europe by the Food Supplement Directive (FSD) 2002/46/EC, implemented in the Netherlands via the Commodities Act Decree on Food Supplements (NL; see Art. 6.3), prohibiting in labelling, presentation and advertising the property of preventing, treating or curing a human disease, or referring to such properties, nor may there be any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general (Art. 7). Regulation 1924/2006 on nutrition and health claims also applies, as does the Self-Regulatory Advertising Code for Food Products (EN). More in Content Section B.

 

Foods for Specific Groups

 

Regulation 609/2013 on Foods for Specific Groups (FSG Reg) sets general compositional and information requirements for four specific categories of food intended for 'vulnerable' groups of consumers. These food groups were formerly classified as 'Foodstuffs intended for particular nutritional uses' (so-called 'Parnuts') and regulated under Framework Directive 2009/39/EC, and a series of more specific Directives. The four groups and their specific Directives are:

 

Infant formulae and follow-on formulae: Directive 2006/141/EC 
Processed cereal-based foods and baby foods for infants and young children: Directive 2006/125/EC 
 Dietary foods for special medical purposes: Directive 1999/21/EC 
 Foods intended for use in energy-restricted diets for weight reduction: Directive 96/8/EC

 

The FSG Regulation repealed and replaced the Framework Directive, and in so doing abolished the 'Parnuts' concept. The rules from the Directives above remain (mostly) applicable until new rules in the form of 'Delegated Acts', have replaced them, which has happened in the case of Infant formulae and Follow-on formulae via Delegated Regulation 2016/127 which applied from 22 February 2020 (except in respect of Infant formulae and Follow-on formula manufactured from protein hydrolysates, to which it applied from 22 February 2021). The following Content Section B sets out the rules.

 

National implementation

 

  • Article 3 (2) of the Commodities Act for Special Food 2016 (NL) confirms that the national acts transposing the specific PARNUTs Directives will remain applicable until the delegated acts start to apply;
  • See also the Self-Regulatory Infant and Follow-on Formulae Advertising Code (NL / EN), referenced above, which entered into force in March 2018 and forms part of the Dutch Advertising Code;
  • The Self-Regulatory Advertising Code for Food Products (EN) will also apply, as it does to all Food advertising in the Netherlands.

 

C. CHANNEL RULES

 

All ‘media carriers’ who according to the generally accepted research of the reach (sic.) are specifically aimed at children of 12 years and younger shall not contain advertising for food products (Art. 8a ACF). Infant Formula advertising is confined to specialist press, and there is wider sensitivity around the marketing of some food types to children: a significant group of advertisers make it clear that they don’t and won’t market some of their products to children - see EU Pledge - so there are also some self-imposed restrictions that apply to all media. The Media Act (NL) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms under Chapter 3a. The amending Directive includes provisions related to Self-Regulation of HFSS food advertising; key extracts here (EN). There is some uncertainty in the market as to whether e.g. Influencer videos fall into the new scope (see below and the General section for more). In May 2022, the media authority CvdM issued Influencer rules (NL; EN summary here) Influencers/ 'video uploaders' now deemed to come into scope of the Media Act; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons. All of the sector rules/ Pledge requirements are shown by Channel in Section C below.

 

 

and Vloggers/ Influencers

 

The FNLI, in collaboration with the Union of Advertisers (BVA - De Bond van Adverteerders) provide guidance for advertisers working with vloggers/ Influencers: The Food Advertisers and Content Creators Guide (NL), unofficially translated hereThe Self-Regulatory Organisation SRC publish the Social Media and Influencer Marketing Code (EN 2022) NL applicable in this context, albeit to all sectors, Food and Soft Drinks included. Details under the General tab below.

 

D. GENERAL RULES

 

It's important that the rules for all product sectors, shown below under the General tab, are also understood; adjudications against Food and Soft Drink 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 Dutch Advertising Code (EN) also linked above in the introductory paragraph.

 

 

 

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General

SECTION A OVERVIEW

 

Updates

Media Act Dec 2020

New NRC links Dec 2020

Directive 2019/2161 Section E Jan 2021

New Postal Filter code April 2021

New Media Act link July 2021

Google's environmental claims policy Oct 2021

Commission Guidance UCPD December 2021

G-Star jeans ruling December 2021

IAB TCF Framework and GDPR. Feb 2022

Commission guidance promotional/ reduced pricing 

March 2022 version of the Media Act (NL)

KLM's 'carbon zero' claims April 2022 ruling (NL)

CvdM announcement re Influencers May 2022 (NL)

Revision of General section DAC May 2022

And Book 6 Civil Code, both re Directive 2019/2161

Update of Social Media and Influencer Marketing Code (NL)  EN

News/ background re above here (NL); effective July 1, 2022

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

ACM case H&M & Decathlon (EN) Sept 2022

 

ISSUES/ NEWS

 

Revision of the General section of the Dutch Advertising Code misleadingness clauses under article 8.3 (clauses d and e) to incorporate e-Commerce rules from the 2019/2161 Directive related to search results and consumer reviews. The full code is here in Dutch (same link as used throughout this database); not yet officially translated, non-binding unofficial English translation of the clauses here. Also transposed in Book 6, Dutch Civil Code (NL)

 

Update of Social Media and Influencer Marketing Code effective July 1, 2022; unofficial EN translation here 

 

Update of the Dutch Media Act: strengthened monitoring of 'popular' influencers

Osborne Clarke/ Lexology May 25, 2022

And New set of rules for influencer marketing in the Netherlands

Taylor Wessing/ Lexology July 19, 2022

 

SELF- REGULATION

 

Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN - except May 2022 clauses here), which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN; see note above); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General Section contains a body of rules with which all advertising should comply. The Special Codes apply to advertising for specific products and services, or using specific channels; see Channel section below.

There is also the:

Children/ Young People Advertising Code (EN) and the

Environmental Advertising Code (EN)

The General Recommendations Section C (EN) covers topics such as guarantees, superlatives, and product images.

 

CONSUMER AND BUSINESS PROTECTION LEGISLATION

 

Articles 193a-193j (EN; not up to date - see later entry in this para/ NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (NL / EN key clauses; amend to art. 194 here) of Section 4 regulate comparative advertising as derived from Directive 2006/114/EC. These rules are accurately reflected in the DAC referenced and linked above - see Table of Concordance under Annex 2. The Act of 30 March 2022 (NL) amending Book 6 of the Civil Code, the Consumer Protection Enforcement Act and the Prices Act in connection with the implementation of Directive 2019/2161 provides new clauses related to search rankings and consumer reviews, also expressed in the Dutch Advertising Code under article 8; see the Self-Regulation header above and the clauses in English here.

There is a particularly active competition authority in The Netherlands; the recent work of ACM (Authority for Consumers and Markets) is discussed here (NL) by Maverick Advocaten/ Lex September 13, 2022.  Also see environmental claims header below: 'greenwashing' is very much in the ACM's sights.

 

CHANNEL (I.E. PLACEMENT) RULES

 

The 7 Channel codes from the DAC are: 

Code for distribution of advertisements by e-mail EN

Social Media and Influencer Advertising Code 2022 NL EN (unofficial)

Letterbox advertising, door2door sampling and direct response advertising EN

Advertising Code for the use of the postal filter 2021 EN

Code for the distribution of unaddressed printed advertisements EN and

Field Marketing Advertising Code EN

 

Rules from these are set out under the relevant headers in our Channel Section C

 

AV LEGISLATION AND AUTHORITY

 

Statutory regulation of Dutch audiovisual media in the Netherlands is from the 2008 Media Act (NL, March 2022). The linked act includes amends brought about by the 2018/1808 Directive which amends the AVMS Directive 2010/13/EU, ‘in view of changing market realities’ meaning inter alia that video-sharing platforms are now in scope of the Media Act (Chapter 3a; NL). There is some debate about the application of the rules as they relate to an ‘on-demand audiovisual media service’ and whether this definition ‘catches’ vloggers. In May 2022, the Media regulator CVDM issued New rules for video uploaders (NL summary) effective July 1, 2022. These require that influencers who are active and have more than 500,000 followers/ subscribers must register with CVDM no later than July 15 and with the Dutch SRO and NICAM. An overview of the rules is here (NL, non-binding translation here). A registration check is on the CVDM website and can be found from the preceding link. 

 

CHANNEL - DIRECT ELECTRONIC COMMUNICATIONS 

 

The Telecommunications Act (link is to the July 2021 version incorporating amends that prohibit unsolicited calls and abolish the 'do not call me' register) NL / EN (key clauses only) Article 11.7 implements the E-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user. Tracking cookies are presumed to entail the processing of personal data under the DPA, meaning prior unambiguous consent of the user is required. There may also be implications from the introduction in May 2018 of the GDPR. See below. 

 

Requirements for information society services and sending of online commercial communications per Directive 2000/31/EC can be found in Articles 15d and15e Book 3 Dutch Civil Code EN / NL.

 

DATA PROCESSING/ PRIVACY

 

Privacy issues should be reviewed with specialist advisors 

 

From May 25 2018, the Dutch Personal Data Protection Act was repealed in the light of Regulation 679/2016, the General Data Protection Regulation (GDPR), which repeals Directive 95/46/EC which the Dutch act transposed. The European Commission page on GDPR is here. The GDPR 'implementing' act in the Netherlands is here (NL). The Authority Autoriteit Persoonsgegevens AP supervises processing of personal data; their advice on the introduction of the GDPR is here, albeit only in Dutch at this point. Purely commercial interest also a legitimate interest? courtesy of Stibbe/ Lex July 27, 2022 reports on a significant exchange between AP and the Council of State on the subject of legitimate interest and a 'wrongly imposed' €575,000 fine on VoetbalTV.

 

SPECIFIC CLAIM AREAS 
Pricing

 

Directive 2019/2161/EU inter alia brings new promotional pricing rules under article 2; see below

 

When a price is mentioned in advertising, the final/ total price should be indicated, including VAT and all other price components; see recent ‘Scooter’ case EN. The basis of this ruling was from the UCPD (per above, under consumer protection), as reflected in article 193 of the Dutch Civil Code EN. In the Netherlands, the Product Pricing Directive 98/6/EC is implemented in the Product Pricing Decree PPD NL / EN. Also known as the Price Labelling Regulations, they apply to advertising (Art. 5.1 PPD). With amendments from the Directive 2019/2161, the 98/6 Directive incorporated a new article 6a which sets out provisions for reduced/ promotional pricing, Commission guidance for the application of which is here. Rules were supposed to come into force in member states on May 28, 2022, though there have been some delays. In the Netherlands, the Prices Act (Prijzenwet, NL) establishes under article 2b 'the announcement of price reductions'. The ACM (Authority for Consumers and Markets) covers the issue of new rules on promotional pricing in their news item of 27/5/22 here (NL), which states that rules will come into force 'later this year'; Maverick Advocaten NV comment in a March 2022 Lex article Amendment to the Prices Act​ (NL). The ACM also has a note on price promotions EN and advertised prices of new cars EN and both the Dutch Advertising Code, supplemented by the SRC Check on Unfair Advertising, and the Civil Code Book 6, Section 3A, include further pricing provisions such as use of the term ‘free’ and ‘Bait and Switch’ advertising. See our following Content Section B for details, or the linked files.

 

Environmental claims

 

Competition authorities hold the key to avoid the drastic consequences of climate change, according to Chairman Dutch ACM. June 2022 article from Bird&Bird/Lex here 

 

Key legal and self-regulatory measures

 

The use of environmental claims in advertising may be assessed against general misleadingness legislation articles 193a-j from Book 6 of the Civil Code (EN; does not incorporate new clauses here) on unfair commercial practices (EN) and Section A of the Dutch Advertising Code (EN; see new clauses linked earlier), articles 7 and 8. See also Commission Guidance on application of the UCPD (December 2021) for such claims, section 4.1.1. From a specific Self-Regulatory perspective, the SRC’s Code for Environmental Advertising (NL / EN) applies. This is supplemented by the SRC Check: Environment and Sustainability (NL), as well as the SRC Checklist. Additional guidance on environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021), which includes an environmental claims checklist. Our following Content Section B for details of all of the above, or see the linked files.

 

ACM activity

 

The ACM (Authority for Consumers and Markets, per above) publish Guidelines Sustainability Claims (EN, NL here) on which CMS Netherlands comment in an article Sustainability, Advertising and Greenwashing. According to Maverick Advocaten NV June 2021, ACM has asked more than 170 companies in the energy, dairy and clothing sectors to check the accuracy of their product range against the Guidelines. In September 2022, clothing retailers H&M and Decathlon agreed to remove or adjust all environmental claims from their clothes and websites 'and make donations of 400,000 euros and 500,000 euros, respectively, to different sustainable causes to compensate for their use of unclear and insufficiently substantiated sustainability claims.' Case report from the ACM  in English here and commentary from GALA here.  

 

SRO rulings

 

This August 2021 ruling (NL) from SRC against Shell is instructive; context and commentary from Jones Day here (in English), and this April 2022 ruling (NL) versus KLM's 'carbon zero' claims, which was found to have lacked sufficiently strong evidence for an 'absolute' claim, is also significant and is separately followed up in the courts under UCPD. Commentary here from Clyde & Co LLP/ Lex July 2022.

 

Global measures

 

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. This latter has been diligently developed with SROs and other associations. On 7 October 2021, Google launched a new monetisation 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.

 

 

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International

SECTION A OVERVIEW

 

Updates since April 2021
 

WFA Planet Pledge April 2021 

Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021                               

WHO Alcohol consultation October 2021

CJEU judgement re Inbox November 2021

Trade Desk/ UID GDPR issues Nov 2021

UCPD guidance December 2021

ICAS Factbook and database Dec 2021

IAB Guide to Native Advertising Dec 2021

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. March 25, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

 

 

RECENT ISSUES

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

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

 

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

 

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

 

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

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

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

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

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

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

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

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

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

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

 

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

 

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

 

 

 

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Read more

B. Content Rules

Sector

SECTION B CONTENT RULES

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

1. SELF-REGULATORY FOOD CODES 

 
  1.1. Advertising Code for Food Products (ACF)
  1.2. ACF: Children 
  1.3. ACF: Commercial Communications at Schools
  1.5. Infant and Follow-on Formulae Advertising Code 

  1.6. Advertising Code for Health Product Promotion (CAG; includes Food Supplements)

  1.7. Adjudications 

 
 
 
  3.1 Food Information to Consumers
  3.2 Nutrition and Health Claims
  3.3 List of Health Claims
 
 
  4.1. Food Supplements
  4.2. Food Intended for Infants and Young Children
  4.3. Foods for Use in Energy-Restricted Diets for Weight Reduction
 
 

 

1.1 Rules from the Advertising Code for Food Products (NL / EN)

 

  • Scope and definitions are extracted here (EN)
  • In an advertising message for food, statements referring to taste, portion size and a possible contribution of the commended food to a healthy eating pattern shall be correct and complete (Art. 1)
  • In addition to the provisions of this code, the present laws and rules concerning labelling, nutritional value indications, and nutrition and health claims apply to an advertising message for food products (Art. 2)

 

Art. 3, para 1. Health claims

 

  1. Health claims are exclusively allowed if they:

 

  • are stated as an authorised claim in the annex to EU Regulation 432/2012 including subsequent amendments or
  • as an authorised claim in Commission Regulations which confirm the claims allowed under Article 13 (5) and Article 14 of the Claims Regulations or
  • fall under a transitional measure by reason of which the use is provisionally permitted, in accordance with the guidance document referenced in the explanatory note under b

 

  • It is prohibited to use health claims rejected by the European Commission or which do not fall under a transitional measure
  • All the authorised and rejected claims are stated in a Community register cited in Article 20 of the Claims Regulation, exclusively available in the English language here 

 

 

  1. Instead of the phrasing by which the claim is officially described as authorised claim in the regulations cited in a. it is also allowed to use other phrasing in commercial communications provided it meets the following two (cumulative) conditions:

 

  • The phrasing reflects the health relationship on which the authorised health claim is founded
  • The phrasing is understandable to the consumer


For the sake of the assessment of the question whether these two conditions have been met, the Stichting Bewoording Gezondheidsclaims (Dutch Foundation on Wording of Health Claims) developed a review basis consisting of a guideline document (NL) and an indicative list of phrasing examples (NL). GRS note: these links are normally only available from the Dutch version of the Food Code; we have simply imported them. Some translations can be found in our later Links Section E

 

  1. Under the conditions of Article 10 (3) of the Claims Regulation references to general, non-specific benefits of a nutrient or food for overall health or health-related well-being are allowed. The reference concerned must be accompanied in that case by a specific health claim which is authorised by a regulation as cited in a) of this paragraph
  2. It goes for health claims that all the relevant elements and data must be provided, including the conditions of use which show that the Claims Regulation is complied with. Furthermore the further labelling requirements as stated in Article 10 (2) of the Claims Regulation and the other requirements of this regulation must be met

 

  • Commendation of a food product by referring to a certain quality that does not have a distinctive capacity within the relevant group of products is not allowed if the referral is intended to distinguish the food product from other products in the same group in a misleading manner (Art. 4)
  • Explanation: it is permitted to refer to a GENERAL feature, e.g. “Product X is naturally fat free”, as this refers to a common feature of all products in the category. The addition ‘naturally’ is explicitly for this purpose included in the Regulation of Claims

 

  • If in an advertisement for a food product is shown as part of a meal, the entire meal shown shall comply with the Guidelines for Good Food/ Diet (Art. 5; here for the Guidelines in English; abridged version here, also in English. The full version in Dutch available here)
  • Advertisements shall neither show excessive consumption, nor explicitly encourage excessive consumption of any food product. Furthermore, such behaviour shall not be held up as an example and/ or be justified. Usual price or volume actions are not considered as explicit encouragement or excessive consumption (Art. 6)
  • An advertisement for food with a lower energy value than the original product may not encourage higher consumption of that product than of the food product with the original, higher energy value (Art. 7)
 
 
1.2. Children 

 

Article 8 Para 1

 

  • Advertising for food products intended for children of 12 years and younger is not permitted, unless it is:
     
  1. Advertising for food products developed in cooperation with the government and/ or other approved authorities Such as Govt. itself (e.g. VWS, EZ, SZW), the Netherlands Nutrition Centre, the National Institute for Sport and Exercise, NOCNSF, recognised organisations such as the Dutch Heart Foundation, the Dutch Diabetes Association and professional associations in care and exercise e.g. the Dutch GP Association, and international authorities such as the WHO & the European Commission in the field of nutrition, health and/ or physical exercise
  2. Packaging and point-of-sale material
  3. Advertising aimed at children from 7 to 12 years old for foods that meet the nutritional criteria (see below)

 

  • The nutritional criteria referred to in paragraph 1 under c. are included in the table (NL / EN) with corresponding portion size list (NL / EN). At the request of the Dutch Advertising Code Authority, an advertiser will submit the full label of the product to which a complaint relates

 

 

Article 8 Para 2. Children’s idols

 

  1. Children's idols aimed at children up to and including the age of 6 may not be used in advertising. This prohibition also applies to packaging and point-of-sale material
  2. Child idols aimed at children from 7 to 12 years of age may only be used in advertising, and also on packaging and in point of sale material, if the food meets the nutritional criteria (NL / EN) . If the product does not meet the nutritional criteria, these children's idols may not be used in advertising, nor on packaging and point of sale material
  3. The prohibitions under a and b do not apply in the situation where paragraph 1 sub a applies
  4. In advertising as referenced under b, a child's idol will not actively promote a food and / or related premiums and services

 

 

Explanation

 

  • For the definition of ‘children’s idol’ see sub e. in the Definitions of this Code (definitions here). In order to determine the age group at which a children’s idol is aimed, the specific circumstances of the case are taken into account. The burden of proof lies with the advertiser, who can thereby base himself on the age limit stated by the licenser or the program/ film maker and/ or other valid and appropriate evidence. “Active promotion” as mentioned under d means, among others, that a children’s idol directly encourages children to buy the food

 

Article 8 Para 3

 

Insofar as advertising for foods on the basis of the exceptions in paragraph 1 under a to c may be aimed at children up to and including 12 years old the following restrictions apply:

 

TV and / or radio programme

  1. Advertising for a food product that is associated with a specific television and / or radio programme intended for children may not be shown in commercial breaks during and immediately following the broadcast of that programme
  2. Status / popularity. The impression should not be given that the consumption of the advertised food renders a child a higher status or greater popularity among peers than the consumption of another food product

 

Aimed at children. Paragraph 4

 

Advertising for food products is in any case considered to be aimed at children:

 

  1. If this is expressed in media that, according to generally accepted market research, focus specifically on children up to and including 12 years of age
  2. If the advertising is expressed in media that do not specifically target children up to and including 12 years of age but the audience for which the advertisement is intended consists of at least 25% of children up to and including 12 years of age according to generally accepted market research


Unlike print or television, in the case of online media there are no generally accepted market figures available that can be used to establish that websites or parts thereof, or social media channels or other online platforms, are specifically aimed at children up to and including 12 years old, or that the public for which the advertisement is intended consists of 25% or more children up to and including 12 years. To be able to determine the user profile, a review can be made of the following criteria (non exhaustive):

 

  • Use of language: is a tone or choice of words used specifically for children?
  • Design and animation: is design, animation, cartoons, fantasy images or colouring pages specifically aimed at children used?
  • Games and playful activities: are games, toys, craft tips offered specifically for children?
  • Children's idols: are popular children's idols, such as licensed media characters used, and if so, at what age group are these children's idols targeted?

 

 

1.3. Schools

 

Article 9. Some specific forms of advertising at schools

 

  • It is not allowed to advertise foodstuff in playgroups, day-care centres, after-school childcare centres and at schools for primary education. The only exception is an informational advertising campaign realised in cooperation with the government and / or other approved authority in the field of nutrition, health and / or physical exercise. By way of illustration: sampling is considered as advertising. For clarification, sampling is considered as advertising
  • At schools for secondary education no promotional activities shall be held which are only intended to motivate the students to excessively consume the commended food product at that time (Art. 10) 
  • At schools for secondary education only the regular packages of a food product shall be commended and offered for sale, and not the maximum, king size etc. variants (Art. 11)
  • With respect to sponsoring, the most recent version of the ‘Schools for primary and secondary education and sponsoring’ Covenant applies (Art. 12). The Covenant can be found at (in Dutch):
    https://www.ccnv.nl/wp-content/uploads/2016/08/Convenant-scholen-voor-primair-en-voortgezet-onderwijs-en-sponsoring-2015-2018.pdf

 

This Code entered into force on 2 June 2005, was amended on 1 February 2010 and again on 1 January 2015 and on 1 February 2019. For the current advertisements regarding Article 8, a transition period of a maximum of 17 months will apply and/or until existing media annual contracts have expired. The Code will be evaluated after 2 years and adjusted if necessary

 

 

 

ICC Framework for Responsible Food and Beverage Marketing Communications 2019

 

There is some overlap between the ICC framework and the ACF. This ICC document is a framework rather than a set of rules per se; the ICC take the general provision on advertising and marketing communications and apply that principle to Food and Beverage marketing communications. By way of example:

 

 

General Principle on advertising and marketing communications Application to Food and Beverage marketing communications

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.

Food and beverage marketing communications should not encourage or condone excess consumption and portion sizes should be appropriate to the setting portrayed. Marketing communications should not undermine the importance of healthy lifestyles.

 

 
1.5. Infant and Follow-on Formulae Advertising Code (ACIF)

 

Co-owner the Association of Dutch Food and Dietary Food Manufacturers

ACIF in Dutch here, English here. Entry into force 15th March 2018

 

  • The KOAG/KAG Control Board provides a pre-clearance service for advertising for infant formulae/ follow-on formulae advertising that is taken into account by the RCC (Advertising Code Committee); advertising can include the approval number (Art. 3)
  • Infant formulae Foodstuffs intended for particular nutritional use by infants during the first six months of life, and which fully meet/ satisfy the nutritional requirements of these infants until the introduction of appropriate complementary feeding (Art. 2.1a): Advertising of infant formulae aimed at the consumer is prohibited (Art. 4.1)
  • Advertising of Follow on Formulae Foodstuffs intended for particular nutritional use by infants when appropriate complementary feeding is introduced and constituting the principal liquid element in a progressively diversified diet of such infants (Art. 2.1c): General conditions are  in articles 5.1 – 5.16

 

 

1.6. Code for Health Product Promotion (CAG) NL / EN

 

Health products: Food supplements and other products covered by the Dutch Commodities Act in a pharmaceutical form and a pharmaceutical presentation and/or for which a health-related primary function is claimed

 

1.7 Adjudications/ rulings

 

 

 

  • SRC decision (NL) on Albert Heijn/ Nutriscore June 2022; the decision was that the complaint was 'well founded' but that no recommendation would be made. 'It is not up to the Advertising Code Committee to prohibit a practice permitted by the central government with a view to introducing a food choice logo.'
  • A case brought by Foodwatch (a lobby group) against ‘AH knijpfruit Appel & Peer’ from Albert Heijn the retailer deals with ‘no added sugar’ claim in packaging and on the AH website. The issue was around the role of pear puree concentrate in the context of the claim and its legitimacy under Regulation 1924/2006. The complaint was not upheld
    https://www.reclamecode.nl/uitspraken/resultaten/voeding-en-drank-2018-00621/232632/
  • A commercial for Appelsientje, which claims '100% pure juice', is the subject of another complaint from Foodwatch, this time that the claim is extended to the full range of Appelsientje products, not just the orange juice. The advertiser stated the claim is permitted for Appelsientje orange juice on the basis of the European Directive 2001/112 and the Commodities Act Decree Fruit Juices 2012, and that was the only product shown. Complaint was not upheld
    https://www.reclamecode.nl/uitspraken/voeding/voeding-en-drank-2015-00908/141787/

 

 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative to change food and soft drink advertising to children under the age of thirteen in the European Union. There are 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.

 

 

3. EUROPEAN REGULATIONS
Regulations are directly applicable in member states

 

3.1. Food information to consumers


Regulation 1169/2011 on the provision of food information to consumers

 

Article 7 of the Regulation. Fair information practices:

 

  1. Food information shall not be misleading, particularly:
     
    1. As to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production
    2. By attributing to the food effects or properties that it does not possess
    3. By suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients
    4. By suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient
       
  2. Food information shall be accurate, clear and easy to understand for the consumer
  3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties
  4. Paragraphs 1, 2 and 3 shall also apply to:
     
    1. Advertising
    2. The presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in which they are displayed

 

 

3.2. Nutrition and health claims

 

Regulation 1924/2006 on nutrition and health claims made on food

 

We show only those clauses from the Regulation specific to marcoms. The clauses below are more general and specific conditions around the claims, and some prohibitions. Nutrition claims are also listed in the annex to Regulation 1924/2006 linked above 

 

Article 3 of the Regulation

 

Use of nutrition and health claims shall not:
 

  1. Be false, ambiguous or misleading
  2. Give rise to doubt about the safety and / or the nutritional adequacy of other foods
  3. Encourage or condone excessive consumption of a food
  4. State, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general  CAVEAT Derogations (exemptions or amends) in the case of nutrients for which sufficient quantities cannot be provided by a balanced and varied diet, including the conditions for their application, and designed to amend non-essential elements of this Regulation by supplementing it may be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3), taking into account the special conditions present in Member State 
  5. Refer to changes in bodily functions that could give rise to or exploit fear in the consumer, either textually or through pictorial, graphic or symbolic representations

 

General conditions; from article 5

 

  • The use of nutrition and health claims shall only be permitted if the average consumer can be expected to understand the beneficial effects as expressed in the claim (Art. 5.2)
  • Nutrition and health claims shall refer to the food ready for consumption in accordance with the manufacturer's instructions (Art. 5.3)

 

Specific substantiation for claims; article 6

 

  • Nutrition and health claims must be based on and substantiated by generally accepted scientific evidence
  • A food business operator making a nutrition or health claim must justify the use of the claim

 

Comparative Claims; article 9

 

  • Without prejudice to Directive 84/450/EEC (now codified under Misleading and Comparative Advertising Directive 2006/114/EC), a comparison may only be made between foods of the same category, taking into consideration a range of foods of that category. The difference in the quantity of a nutrient and/ or the energy value shall be stated and the comparison shall relate to the same quantity of food
  • Comparative nutrition claims shall compare the composition of the food in question with a range of foods of the same category, which do not have a composition which allows them to bear a claim, including foods of other brands

 

Health claims; article 10 specific conditions

Link back to the regulation is here, as there are several references below not covered in our preceding text

 

  • Health claims shall be prohibited unless they comply with the general requirements in Chapter II and the specific requirements in this Chapter and are authorised in accordance with this Regulation and included in the lists of authorised claims provided for in Articles 13 and 14
  • Health claims shall only be permitted if the following information is included in the labelling, or if no such labelling exists, in the presentation and advertising:

 

  1. A statement indicating the importance of a varied and balanced diet and a healthy lifestyle
  2. The quantity of the food and pattern of consumption required to obtain the claimed beneficial effect
  3. Where appropriate, a statement addressed to persons who should avoid using the food; and
  4. An appropriate warning for products that are likely to present a health risk if consumed to excess

 

  • Reference to general, non-specific benefits of the nutrient or food for overall good health or health-related well-being may only be made if accompanied by a specific health claim included in the lists provided for in Article 13 or 14
  • Where appropriate, guidelines on the implementation of this Article shall be adopted in accordance with the procedure referred to in Article 25 (2) and, if necessary, in consultation with interested parties, in particular food business operators and consumer groups.

 

Restrictions on the use of certain health claims; article 12

 

  • The following health claims are not allowed:
     
  1. Claims that suggest that health could be affected by not consuming the food
  2. Claims that refer to the rate or amount of weight loss
  3. Claims that refer to recommendations of single doctors or health professionals and other associations not referenced in article 11 (this is article 11: National associations of medical, nutrition or dietetic professionals and health-related charities In the absence of specific Community rules concerning recommendations of or endorsements by national associations of medical, nutrition or dietetic professionals and health-related charities, relevant national rules may apply in compliance with the provisions of the Treaty (and note Art. 44, Law 17/2011)

 

Reduction of disease risk; children's development and health. Article 14

 

  1. Notwithstanding Article 2 (1) (b) of Directive 2000/13/EC, the following claims may be made where they have been authorised in accordance with the procedure laid down in Articles 15, 16, 17 and 19 of this Regulation for inclusion in a Community list of such permitted claims together with all the necessary conditions for the use of these claims:
     
    1. Reduction of disease risk claims
    2. Claims referring to children's development and health
       
  2. In addition to the general requirements laid down in this Regulation and the specific requirements of paragraph 1, for reduction of disease risk claims the labelling or, if no such labelling exists, the presentation or advertising shall also bear a statement indicating that the disease to which the claim is referring has multiple risk factors and that altering one of these risk factors may or may not have a beneficial effect
 
3.3. List of health claims

 

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. The annex of the Regulation sets out the claims and the conditions under which they can be made. Health claims are also available from the EU Register of nutrition and health claims made on foods

 

 

 

4.1. Food Supplements

 

Applicable legislation 

 

  • Directive 2002/46/EC on Food Supplements (Articles 6 (2) and 7) provides harmonised labelling rules including health-related advertising provision, applicable to all Food Supplements regardless of composition 
  • National laws:
     
    • Commodities Act Decree on information on foodstuffs (NL) (Art. 2.6 / Art. 7.3 Reg. 1169/2011)
    • Re non-botanicals (vitamins and minerals): Commodities Act Decree on Food Supplements (NL, art. 6 (3))
    • Re Botanicals (herbs): Commodities Act Decree on Herbal Preparations (Warenwetbesluit KruidenpreparatenNL (Art. 5)

 

Self-Regulation
 

  • Code for Health Product Promotion (Code voor de Aanprijzing van Gezondheidsproducten - CAG)  NL / EN
  • Advertising Code for Food Products (Reclamecode Voor Voedingsmiddelen - RVV) NL / EN

 

Guidance and databases
 

  • Guideline document on the use of health claims linked in the Dutch version of the Code for Food Products. The guideline document from the code is here (NL) - August 2018 version in English here - the list of example words here. The latter is a large Excel database
  • For non-botanical Food Supplements i.e. vitamins/ minerals, consult the EU Register on Health and Nutrition Claims; for examples of alternative wordings of authorised health claims, refer to KOAG/ KAG Control Board Health Claims Database for permitted and prohibited variations
  • For botanical Food Supplements: for on-hold health claims, refer to KOAG Indicative List of health claims for alternative wording
  • Reference on-hold claims for the above, this March 2022 article from KOAG/KAG updates disclaimers to be stated with claims

 

Core rules 
 

Commodities Act Decree on Food Supplements implements the Food Supplements Directive 2002/46/EC (FSD). The Decree, as with the Directive, is largely concerned with labelling but includes some rules on health-related claims: 
 
  • Food Supplements: no statements can be used that claim or imply a balanced and varied diet cannot provide appropriate quantities of micronutrients in general (Art. 6.3 Decree) Art. 7 FSD: The labelling, presentation and advertising of food supplements shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general
  • All food: Article 2.6 of the Commodities Act Decree on information on foodstuffs (NL) states that it is prohibited to act contrary to the provisions of Art. 7 Regulation 1169/2011, which includes that food advertising shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties. The same provision is found in Article 6.2 FSD 

 

 

4.2. Infant formulae and Follow-on Formulae

 

Applicable legislation 

 

  • Regulation 609/2013: Foods for specific groups: 'FSG Regulation' (Arts. 9 (5) and 10)
  • Commission Delegated Regulation 2016/127 supplementing Regulation 609/2013; arts. 10 and 11
  • Directive 2006/141/EC shall continue to apply until 21 February 2021 to infant formulae and follow-on formulae manufactured from protein hydrolysates

 

Article 10 FSG Regulation 609/2013

Additional requirements for infant formulae and follow-on formulae

 

  • The labelling, presentation and advertising of infant formulae and follow-on formulae shall be designed so as not to discourage breast-feeding
  • The labelling, presentation and advertising of infant formulae, and the labelling of follow-on formulae shall not include pictures of infants, or other pictures or text which may idealise the use of such formulae
  • Without prejudice to the first subparagraph, graphic representations for easy identification of infant formulae and follow-on formulae and for illustrating methods of preparation shall be permitted

     

     

Article 10 Delegated Regulation 2016/127

 

Requirements for promotional and commercial practices for infant formulae

 

  • Advertising of infant formulae shall be restricted to publications specialising in baby care and scientific publications. Member States may further restrict or prohibit such advertising. Such advertising shall contain only information of a scientific and factual nature. Such information shall not imply or create a belief that bottle-feeding is equivalent or superior to breast feeding
  • There shall be no point-of-sale advertising, giving of samples or any other promotional device to induce sales of infant formulae directly to the consumer at the retail level, such as special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales
  • Manufacturers and distributors of infant formulae shall not provide, to the general public or to pregnant women, mothers or members of their families, free or low-priced products, samples or any other promotional gifts, either directly or indirectly via the health care system or health workers
  • Donations or low-price sales of supplies of infant formulae to institutions or organisations, whether for use in the institutions or for distribution outside them, shall only be used by or distributed for infants who have to be fed on infant formulae and only for as long as required by such infants
 

Self-Regulation

 

Advertising Code for Infant Formulae (ACIF) NL / EN, as enforced by the Advertising Code Committee RCC. The Code is based on Directive 2006/141 and Regulation 609/2013; advertising rules are from articles 4 and 5

 

 

4.3. Foods for Use in Energy-Restricted Diets for Weight Reduction 
 

Applicable legislation

 

  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control (Foods for specific groups 'FSG Regulation') Relevant article 9 (5) FSG)
  • Delegated Regulation 2017/1798 supplements Regulation 609/2013 on the specific compositional and information requirements for total diet replacement for weight control; does not apply until October 2022
  • Re: ‘Meal replacement products’, the compositional and information requirements are regulated by the EU food framework applicable to 'normal' food, particularly the Nutrition and Health Claims Regulation 1924/2006; see recital 43 FSG 

Key advertising-related clauses

 

Total diet replacement products

 

  • The ‘broader’ FSG rules are set out under FSG article 9, the most significant clause being 5: The labelling, presentation and advertising of food referred to in Article 1(1) (includes total diet replacement for weight control) shall provide information for the appropriate use of such food, and shall not mislead, or attribute to such food the property of preventing, treating or curing a human disease, or imply such properties
  • The delegated Regulation 2017/1798 linked above (does not apply until October 2022) carries the more specific requirements for these products. The key article is article 4. See the linked file for the full article; the key clause is 3: the labelling, presentation and advertising of total diet replacement for weight control products shall not make any reference to the rate or amount of weight reduction which may result from its use
  • The above prohibition is covered in the meantime under Restrictions on the Use of Certain Health Claims, Article 12 Regulation 1924/2006 on nutrition and health claims made on food
  • Additionally, Article 6 (of 2017/1798) re Nutrition and Health claims:

 

  1. Nutrition and health claims shall not be made on total diet replacement for weight control products
  2. By way of derogation from paragraph 1, the nutrition claim ‘added fibre’ may be used for total diet replacement for weight control products provided that the dietary fibre content of the product is not less than 10 g

 

Meal replacement products

 

  • Recital 43 FSG Reg establishes that rules on the use of statements on meal replacement products should be regulated solely under Regulation 1924/2006 on Nutrition and Health Claims. Article 20 (3) FSG Reg confirms that Directive 96/8/EC shall not apply from 20 July 2016 to foods presented as a replacement for one or more meals of the daily diet. This means that:

 

  • Claims which make reference to the rate or amount of weight loss will (continue) not (to) be allowed (Art. 12 (b) Reg. 1924/2006)
  • See article 13 Reg 1924/2006 linked above for the conditions under which health claims might be made
 

 

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

General

SECTION B CONTENT RULES

 


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

 

 

1. SELF-REGULATION

 

1.1. Section A General rules, Dutch Advertising Code

 

Good taste and decency

Unfairness and misleadingness

Invitation to purchase

Identifiability

Comparative advertising 

Aggressive advertising

Blacklist: annex 1 and 2

 

1.2. Section C of the Dutch Advertising Code

 

Use of ‘comparable retail value’

Superlatives, guarantees

The term ‘recommended price’

Advertising for branches

Pictures of the product 

 

1.3. Advertising Checker service from SRC

 

2. LEGISLATION

 

2.1. Comparative advertising

2.2. Misleading commercial practices

2.3. Invitation to purchase

2.4. The Blacklist

 

3. SPECIFIC CLAIM AREAS

 

3.1. Pricing

3.2. Environmental claims

 

 

1. SELF-REGULATION

 

Note: where the English version of the Dutch Advertising Code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full Code in English is linked here (does not include May 2022 clauses here)

 

 Section A. General rules

 

  • Definition of Advertising (Art. 1): any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising. Explanation of Art. 1 in full

 

 

Good taste and decency

 

  • Advertising must be in accordance with the law, the truth, good taste and decency (Art. 2. Explanation)
  • Advertising must not contravene the public interest, public order or good morals (Art. 3)
  • Advertising must not be gratuitously offensive or constitute a threat to mental and/or physical public health (Art. 4)
  • The form and content of advertising must not undermine confidence in advertising (Art. 5)
  • Without justifiable cause, advertising must not arouse feelings of fear or superstition (Art. 6)
  • This ruling, which did not uphold a complaint about a Zeeman underwear commercial, is good context
  • As is this December 2021 ruling for a G-Star jeans commercial, also not upheld 
 

 

 Unfairness and misleadingness

 

  • Advertising must not be unfair. Advertising is considered to be unfair if it contravenes the requirements of professional diligence, and if it materially distorts or is likely to materially distort the economic behaviour of the average consumer reached, or targeted, as regards the product. Misleading and/ or aggressive advertising is considered to be unfair in all cases (Art. 7. Explanation)
  • When assessing whether or not an advertisement is misleading, account must be taken of all its characteristics and circumstances, the factual context, the limitations of the communication medium, and the intended audience (Art. 8.1)
  • Any advertising which contains incorrect/ false information, or information that is unclear or ambiguous for the average consumer in respect of one or more of the elements as listed in points a - g hereunder, and causes or is likely to cause the average consumer to take a transactional decision that he would not have otherwise taken, is considered to be misleading (Art. 8.2):

 

  1. The existence or nature of the product
  2. The main features of the product, such as availability, benefits, risks, execution, composition, accessories, customer service and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose (suitability for use), usage, quantity, specification, geographical or commercial origin, expected results, or the results and essential characteristics of tests and controls performed on the product
  3. The extent of the obligations of the advertiser, the motives for advertising and the nature of the sales process, any statement or symbol related to direct or indirect sponsorship, or recognition/ approval of the advertiser or the product
  4. The price or the way in which the price is calculated, or the existence of a specific price advantage
  5. The need for a service, spare part (component), replacement or repair
  6. The nature, characteristics and rights of the advertiser or his agent, like for example his identity, his assets, qualifications, status, approval, affiliation, connections; ownership of industrial, commercial or intellectual property rights, or his prizes, awards and distinctions
  7. The legal rights of the consumer, including the right of replacement or refund, or the risks he might run/ face

 

  • Advertising is also regarded as misleading if 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 the following (Art. 8.3. Explanation Where the medium used for advertising involves limitations of space or time, these limitations as well as measures taken by the advertiser to make the information available to consumers by other means, shall be taken into account when deciding whether information has been omitted. Essential information consists, among other things, of all information the advertiser has to provide pursuant to the law)
     
    1. Marketing of a product in a way that could lead to confusion with a competitor’s products, trademarks, trade names and other distinguishing marks
    2. Non-compliance by the advertiser with a code of conduct by which he has undertaken to be bound, insofar as the commitment/ obligation is capable of being verified and the advertiser indicates (in advertising) that he is bound by the code of conduct
    3. Omitting, keeping hidden, or providing in an unclear, unintelligible, ambiguous or untimely manner, essential information that the average consumer needs in order to make an informed transactional decision
    4. When consumers are offered within a website the option to search for products offered by different suppliers, general information about the main parameters determining the ranking of products as a consequence of the search, and about the relative importance/ weighting of those parameters
    5. If an advertiser provides access to consumer reviews, it must be explained whether and how it is ensured that the published reviews are from consumers who have actually used or purchased the product

​Above clauses d and e added May 2022 in transposition of Directive 2019/2161

 

Invitation to purchase

 

(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)

 

  • In case an advertisement serves as an invitation to purchase, which does not relate to a distance contract or off-premises contract, the following information shall be supplied:

 

  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 advertiser, in particular, his trading/ business name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. The price including 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/ costs cannot reasonably be calculated in advance, the fact that such additional charges/ costs 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/ revocation or cancellation, the existence of such a right

 

Invitation to purchase in relation to a distance or off premises contract

http://www.g-regs.com/downloads/NLGenDACArt8I2Pexp.pdf

 

  • The methods of advertising which are considered misleading under all circumstances are set out in Annex 1 (EN) of the Dutch Advertising Code (Art. 8.5. Explanation The methods of advertising referenced in Annex 1 of the Dutch Advertising Code are misleading under all circumstances. Therefore, it is not necessary to consider whether they are misleading for the average consumer, or if the economic behaviour of the average consumer is materially distorted or is likely to be materially distorted)
  • Testimonials, commendations or expert statements that are used in advertising must be based on the truth and must be in line with the latest accepted scientific views (Art. 9)
  • In advertising intended for the general public, scientific terms, statistical data and quotations shall be used with the utmost care in order to prevent/ avoid confusion of ideas. If use is made of statistics that are valid only within certain limits, such limits shall be stated clearly (Note: e.g. where statistics are based on provisional figures or for a certain period of time, these qualifications should be mentioned, otherwise it could be misleading). No technical terms, descriptions, illustrations or pictures that are manifestly intended to suggest in a quasi-scientific or misleading manner the presence of non-existent properties of goods or services, shall be used (Art. 10)

 

 

 Identifiable advertising 

 

  • Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
  • Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2 Explanation The term audio-visual media particularly refers to programmes broadcast on radio and TV. Subliminal techniques refer to techniques that employ inserted images and/ or sounds of very brief duration in an attempt to influence viewers or listeners, possibly without their knowledge or ability to perceive them)

 

 

Comparative advertising EN (Art. 13)

 

Aggressive advertising (Art. 14. Explanation Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)

 

  • Aggressive advertising is prohibited. An advertisement is considered to be aggressive in the event that, taking into account all its features and circumstances, the factual context, the limitations of the communication medium and the intended audience, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product, by means of intimidation/ harassment, coercion, including the use of physical violence, or undue influence, which thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 14.1)
  • The methods of advertising which are considered aggressive under all circumstances are listed in Annex 2 of the Dutch Advertising Code
  • At the request of the Advertising Code Committee or the Board of Appeal the advertiser must demonstrate the accuracy or fairness of the advertisement, should this be disputed for good reasons (Art. 15)
  • The Dutch Advertising Code must not only be applied according to the letter of its provisions but according to its spirit as well (Art. 16)
  • In the case of Special Advertising Codes, the General Section of the Dutch Advertising Code shall remain fully in force (Art. 17)
  • Companies as well as consumers have the right to submit a complaint about violations of the Dutch Advertising Code with the Advertising Code Authority (SRC). This means that where in this part of the General Code reference is made to consumers, corporate bodies are also covered (Art. 18)

 

Blacklist: Annex 1 and 2

 

Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances. The following blacklist clauses are added in the NL version of the DAC, having been transposed May 2022 as a result of Directive 2019/2161 amends; EN version of the DAC not yet showing these clauses. Translation largely taken from the Directive 

 

  1. Providing search results in response to a consumer's online search query, without clearly disclosing tany paid advertisement or payment has been made specifically for the purpose of higher ranking of products within the search results
  2. Claiming that reviews of products have been submitted by consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to check that those reviews are from such consumers
  3. Posting or instructing another legal or natural person to post false consumer reviews or endorsements or misrepresenting consumer ratings or recommendations or social endorsements in order to promote products.

 

1.2. Section C of the DAC: General recommendations

 

The topics below are set out in full here (EN)

 

Use of words ‘comparable retail value’

Superlatives, guarantees

Use of the term ‘recommended price’

Advertising for branches

Pictures of the product 

 

1.3. Advertising Checker Service from the SRC

 

Context

 

This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc.  that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information, it may be best to check the Dutch version linked above

 

Taste and decency

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

Recognition of advertising

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

For guidance on identifiability across several issues/ channels, including example cases

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

Unfair advertising

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

A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair

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

 

Information requirements

Last updated by SRC 10/10/2017 NL

Key extracts in English here:

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

 

 

2. LEGISLATION

 

While advertising regulation is largely a Self-Regulatory system, legislation is influential in Channel especially, but also in Content. Issues of unfair commercial practices and comparative advertising can end up in the courts, so it’s best to know what the laws say, albeit they are largely echoed in Self-Regulation, in the Netherlands in particular

 

Applicable legislation

 

  • Articles 193a - 193j, Section 3A, Book 6 Civil Code: EN (trans does not include clauses from Directive 2019/2161, available here / May 2022 NL) Unfair commercial practices; includes the ‘Blacklist’; clauses extracted below
  • Articles 194 -196, Title 3, Section 4, Book 6 Civil Code (linked above; amend to art. 194 hereMisleading and comparative advertising; B2B and B2C with the exception of article 193a (2d)
  • Articles 15d, paras 1&2, and 15e para 1. Book 3 Dutch Civil Code: EN / NL covers material Information requirements  

 

 

2.1. Comparative advertising (Art. 194a Book 6 CC (EN))

 

1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor

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

 

a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g

b. It compares goods or services meeting the same needs or intended for the same purpose

c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price

d. it does not create confusion in the market place 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

e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor

f. For products with designation of origin, it relates in each case to products with the same designation

g. 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

h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name

 

3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply

 

2.2. Misleading commercial practices (Article 193c Book 6 CC)

 

  • A commercial practice is misleading if information is provided which is actually incorrect or which deceives or is likely to deceive the average consumer, whether or not by means of an overall presentation of the information, like with respect to (Art. 193c(1a-g):

 

  • The existence or the nature of the product
  • 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
  • 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
  • The price or the way in which the price is calculated, or the existence of a specific price advantage
  • The need for a service, part, replacement or repair
  • 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
  • The consumer's rights, including the right to repair or replace the supplied asset or the right to a price reduction, or the risks he may face

 

which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken

 

  • Paragraph 2 of the same article, found in the link to Book 6 above, provides a 'confusion with competition' clause and a code of conduct clause. Additionally, the English translation is not up-to-date with amendments from Directive 2019/2161 one of which is under this article 193c in the May 2022 version of Book 6 (NL): Also misleading is: 'marketing of a good in one Member State, whereby the good is presented as identical to a good marketed in other Member States, while the composition or characteristics of that good differ significantly, unless justified by legitimate and objective factors'

2.3. Misleading purchase invitation (Art. 193e Book 6 CC)

 

In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: 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  if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):

 

  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. If there is a right of withdrawal or cancellation, the existence of such a right

 

In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 

 

2.4. The commercial practices ‘Blacklist’ EN / NL

 

  • Article 193g lists commercial practices which are misleading in all circumstances (and therefore unfair under Article 193b (3a) Book 6 CC)
  • Art. 193i lists commercial practices which are aggressive under all circumstances (and therefore unfair under Article 193b (3b) Book 6 CC)
  • The EN version of Book 6 linked above is out of date regarding amendments from Directive 2019/2161, some shown elsewhere in this section 
  • Regarding the blacklist in particular, four clauses have been added:  

 

 

  1. providing search results in response to a consumer's online query without clearly identifying a paid advertisement or payment made specifically to rank products higher
  2. re-selling events tickets to consumers if the trader has obtained them by using automated means to circumvent any set limits on the number of tickets a person may purchase or other rules applicable to the purchase of tickets;
  3. stating that product reviews are submitted by consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that those reviews are actually from such consumers;
  4. posting or causing the posting of false consumer reviews or recommendations or misrepresenting consumer reviews or social media endorsements in order to promote products

 

 

3.  SPECIFIC CLAIM AREAS

 

3.1. Pricing


Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say

 

Applicable Self-Regulation

 

  • Dutch Advertising Code Section A (EN) General and Section C (EN) General Recommendations
  • SRC Check for Unfair Advertising and Information Obligations - Total Price
  • Advertising Code Committee Case Kia Picanto 2012/00088 EN
  • Chairman’s Decision ‘Scooter’ Case No. 2017/00281 EN

Applicable legislation and guidance

 

Note:  the Decree under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC relating to the requirement for total/ final prices to be stated. With amendments from the Directive 2019/2161, the PPD incorporated a new article 6a , which sets out provisions for reduced/ promotional pricing. These should have come into force in member states on May 28, 2022, though there have been delays. In the Netherlands, the Prices Act (NL) establishes under article 2b 'the announcement of price reductions'. The ACM - the Dutch consumer protection authority - has May 2022 news here (NL) and this March 2022 article from Maverick Avocaten is helpful

 

  • Commission guidance for the application of article 6a of the Directive referenced above (PPD) is here
  • Product Pricing Decree NL and EN
  • Book 6 Dutch Civil Code NL May 2022 / EN (the EN trans is out of date regarding amendments from Directive 2019/2161 shown above under 2.2. to 2.4 inc.); amend to art. 194 here. Promotional pricing amendments from the Directive are not (currently) transposed in the Civil Code
  • ACM Authority for Consumers and Markets Price Promotions note EN
  • Case Law: Court of Justice of the European Union (CJEU) C‑476/14 (Citroën/ZLW) Judgement and AG Opinion 

 

Self-Regulatory clauses

 

  • Art. 8.3 DAC: Advertising is also regarded as misleading if 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 the following:
  1. Omitting, keeping hidden, or providing in unclear, unintelligible, ambiguous or untimely manner essential information which the average consumer needs in order to make an informed transactional decision
  • Art. 8.4 DAC In the case of an invitation to purchase in advertising, which does not relate to a distance contract or off-premises contract, the following material information must be provided:
  1. The price including taxes, or where the nature of the product means that the price cannot reasonably be determined beforehand, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these costs cannot reasonably be calculated in advance, the fact that such additional costs may be payable
  • In case the medium used for advertising has its limitations in space or time, these limitations as well as the measures taken by the advertiser to supply the information in another way, will be taken into account when deciding whether information has been omitted. Essential information consists among other things of all information the advertiser has to provide pursuant to the law (explanation of article 8.3)

 

Example case: Kia Picanto EN. Extracts below

 

  • In May 2012, the Board of Appeal (CVB) of the Advertising Code Committee made an important ruling on the stated price of a Kia Picanto in a TV commercial and on the Kia website as “from” and “available from” €7,995. The complaint was that the car could not be bought for that price; there were mandatory additional costs amounting to c. €700
  • The Board ruled that this advertising constituted an invitation to purchase, which must always state the “total price” i.e. a price in which all costs are included in so far as these costs (1) can be determined in advance (2) are unavoidable and (3) are not apparent from the context of the advertisement
  • The entry-level price excluded “ready-for-use” (delivery) costs, as well as other admin charges and recycling fees. The Board ruled that these costs would have been known at the time of publication, and so should have been included in the advertised price. Because the delivery costs were considerable, and led to a "significantly higher purchase price" compared to the price quoted, the average consumer may have been enticed to make a purchase decision that he would not otherwise have taken
  • The total price not being shown was ruled to be a misleading omission under Article 8.3 (c) DAC in connection with Article 8.4 (c). The Appeal Board therefore considered the advertising to be unfair in the sense of article 7. The article Advertising shall not be dishonest. Advertising is considered to be dishonest if it contravenes the requirements of professional commitment, and if it substantially disrupts or may disrupt the economic behaviour of the average consumer reached, or targeted, as regards to the product. Misleading and/ or aggressive advertising is considered to be (by any means) dishonest

 

The Chairman’s scooter

 

The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of Art. 8.4c DAC in conjunction with Article 2b of the Prices Act and Article 3 paragraph 1 of the Product Pricing Decree.

 

 

Comparing prices

 

 

Other types of pricing deception within the DAC; Annex I

 

  • Bait Advertising/ Limited Supply Offer: Offering products for a specified price without disclosing the existence of any reasonable grounds the advertiser may have for suspecting that he might not be able to supply, nor have another advertiser/ trader supply, these products or similar products at that price, for a period that is, and in quantities that are, reasonable, taking into account the product itself, the range/ scale of the advertising campaign for this product and the price offered (Pt. 5, Annex I DAC). See SRC Check advice here
  • Bait and Switch: Offering a product for a specified price and subsequently:

 

  • Refusing to show the consumer the offered product; or
  • Refusing to accept an order or refusing to deliver the product within a reasonable term; or
  • Showing a defective example of the product

 

        With the intention to promote another product (Point 6 (a-c), Annex I DAC)

 

  • Free: Describing a product as “gratis” (gratis); “free” (voor niets); “without charge/ complimentary” (kosteloos) or similar if the consumer has to pay anything other than the inevitable cost of responding to the offer and collecting or paying for delivery of the product (Point 19, Annex I DAC). See SRC ‘Checker’ advice on ‘Free’ here:
    http://www.g-regs.com/downloads/NlGenSRCCheckFreeNote.pdf (EN)

 

 

Recommended price (adviesprijs) Point g, Section C (EN) Dutch Advertising Code

 

  • Advertisements can only use the term 'recommended price' if an official list of prices recommended by the producer of the advertised product exists and if the consumer is granted inspection of these lists, on request (final para, point g)

 

 

Case law and key clauses from legislation

 

Total price

 

Key points from case C‑476/14 Citroën/ZLW):

 

  • Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and 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). Other price components = integral parts of the final price (para. 23)

 

Key legislation (see note above re amends to PPD 98/6/EC)

 

  1. Product Pricing Decree: Dutch implementation of the PPD (see art. 3.1) NL / EN. Extracts below:

 

  1. Advertisements for products which mention the selling price or unit price must comply with Articles 2,3, and 4 (2) of the Product Pricing Decree (Art. 5.1 PPD)
  2. The unit price (e.g. price per kilogram, litre or metre) must be included along with the selling price (final price) unless it is identical to the selling price or it meets one of the other exceptions listed in Art. 3 (3) PPD 
  3. The indication of the selling price and the unit price must be comprehensible and unambiguous, and expressed in euros (Art. 4.2 (a/b) PPD)

 

  1. Dutch Civil Code Book 6; Title 3; Section 3A Unfair Commercial Practices articles 193b (3a); 193c (1d); 193d (1-4); and 193e (c) NL / EN
  2. The linked document below assembles some of the rules, commentary and guidance on pricing in advertising in the Netherlands, with particular reference to the Unfair Commercial Practices Directive and its transposition into Book 6 of the Dutch Civil Code. This includes rules such as information obligations and those from the ‘Blacklist’ of commercial practices. The rules are well covered, almost word for word, in the Self-Regulatory section, so they are included here in the legislation section only for the record
    http://www.g-regs.com/downloads/NLGenPriceCommentaryUCPDCCb.pdf

 

3.2. ENVIRONMENTAL CLAIMS

 

Self-Regulation

 

  • Code for Environmental Advertising; Special Advertising Code, Section B: Dutch Advertising Code NL / EN
  • SRC Check: Environment and Sustainability: NL

 

The Dutch Advertising Code: Environmental advertising

 

  • 1. Applicability. This Code applies to all environmental claims, in other words, to all advertising messages referring implicitly or explicitly to environmental factors connected with the production, distribution, consumption or waste processing of goods, or with related services, hereinafter known collectively as 'products'). Explanation of Article 1 
  • 2. No misrepresentation. Environmental claims shall contain no statements, pictures or suggestions that may mislead the consumer concerning environmental aspects of the products recommended or the contribution of the advertiser to maintaining and promoting a clean and safe environment in general. Explanation of Article 2 
  • 3. Demonstrability. All environmental claims shall be demonstrably correct. The burden of proof rests with the advertiser. The more absolute the formulation of the claim is the more stringent are the requirements with respect to evidential material Explanation of Article 3 
  • 4. Constituent parts and aspects. Should environmental claims relate exclusively or virtually exclusively to particular constituent parts or aspects of the products recommended, this limitation shall be stated clearly
  • 5. Absence or reduction of constituent parts An environmental claim that relates to the absence or reduction of constituent parts that are environmentally harmful is permissible only in the following cases:
     
    • If any replacement parts are less environmentally harmful and
    • if no wrongful assertion or suggestion is made that comparable products do possess these environmentally harmful constituent parts
       
  • 6. Comparisons. This article was withdrawn as of 1 October 2000
  • 7. Designations and symbols. Environmental designations and symbols shall not be used unless the origin of the designation or symbol is clear and no confusion can arise on the meaning of the designation or symbol. Explanation of Article 7 
  • 8. Scientific works Quotations from, and reference to scientific works shall be representative and verifiably correct. Should the scientific works not be generally accessible, the advertiser shall submit such works on request when a complaint is handled
  • 9. Testimonials. Testimonials used in environmental claims shall be based on the expertise of the person or body giving them. Explanation of Article 9 
  • 10. Waste processing, collection and recycling Environmental claims that relate to (separate) refuse collection and/or waste processing are permissible only if the recommended method of collection or processing is sufficiently available to the target group for which the environmental claim is intended. Environmental claims that relate to the recycling of products or parts of products are permissible only if a sufficient proportion of the recommended products or parts are actually recycled. Explanation of Article 10 
  • 11. Environmentally unfriendly behaviour Advertising messages shall not set as an example environmentally unfriendly behaviour that is avoidable, nor shall such behaviour be encouraged. Explanation of Article 11 
  • 12. Government rules. Notwithstanding the provisions of the paragraphs 1 through 11, environmental claims are permissible if they comply with specific advertising rules issued by government authorities in connection with environmental issues. Explanation of Article 12: this article is intended to prevent the accumulation of rules. The Code no longer applies if the government has introduced specific rules concerning advertising on environmental matters

 

 

SRC Check: Environment and sustainability

 

The SRC are the Self-Regulatory Organisation in The Netherlands. The ‘Check’ system has recently been introduced, and helps guide agencies and advertisers through the various Codes. It has not yet been formally translated. The extracts below have been translated by GRS, the owners of this website. As is always the case, the applicable rules are anyway those in the original Dutch. The file here is the full Check section on Environment and sustainability. Read it if you want further background and help on environmental claims:

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

The original:

http://www.checksrc.nl/check/milieu_en_duurzaamheid/

 

Adjudication: File No. 2017/00812; 20/12/2017

Link no longer active; summary below

 

  • Coca-Cola published an ad “Our packaging is 100% recyclable”
  • Greenpeace filed a complaint that the advertising was misleading, in violation of Arts 2,3, and 10 of the Environmental code, and overstating something that was not unique (PET bottles are always 100% recyclable)
  • Also that CC was inferring that its bottles were 100% recycled, and that the recyclability of the packaging was of little value in practice because much packaging isn't recycled
  • The complaint was dismissed. The strapline "Our packaging is 100% recyclable" was not a suggestion by Coca-Cola of any positive differentiation from its competitors. Coca-Cola was not suggesting that its packaging was made entirely from recycled materials, as consumers appreciate the difference between recyclable and recycled
  • The Committee ruled that there were sufficient facilities available for recycling Coca-Cola packaging, so this was not simply a theoretical possibility under Article 10
 

ACM Sustainability claims guidelines (January 2021)

 

ACM Is the Dutch consumer and markets authority, a stautory body. This is a significant document from an organsiation empowered to take action against companies they consider to be in breach. The linked document contains some explanations of the core 'rules of thumb' below, the legal context and some relevant cases

 

  • Rule of thumb 1: Make clear what sustainability benefit the product offers
  • Rule of thumb 2: Substantiate your sustainability claims with facts, and keep them up-todate
  • Rule of thumb 3: Comparisons with other products, services, or companies must be fair
  • Rule of thumb 4: Be honest and specific about your company’s efforts with regard to sustainability
  • Rule of thumb 5: Make sure that visual claims and labels are useful to consumers, not confusing

 

Commission guidance

 

  • Commission Guidance on the application of the UCPD December 2021; Section 4.1.1. Environmental claims. This is a significant document with definitive guidance on the application of the most important European legislation for this commercial communications context

 

Comparisons

 

Comparative environmental claims should be assessed under the criteria from the Directive on Misleading and Comparative Advertising MACAD Article 4 / Article 194a Book 6 Civil Code EN / Article 13 Dutch Advertising Code (EN). These criteria apply to advertising that compares the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things:

 

  • Not be misleading within the meaning of the UCPD
  • Compare goods or services meeting the same needs or intended for the same purpose (usually interpreted to mean that the comparison should refer to the same product category)
  • Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

 

Truthfulness (Art. 5)

 

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

 

Substantiation (Art. 6)

 

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

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

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

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

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

 

 

 

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

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

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

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

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

 

 

18.4. Social values

 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

 

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

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product

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

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

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

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

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

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

 

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

 

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

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

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

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

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

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C: TV & RADIO/ AV

 

 

KEY RULES

 

  • Content rules set out in our earlier Section B apply: the Advertising Code for Food Products (ACF; EN) as part of the Dutch Advertising Code (EN), applies to all advertising, as do EU Regulations
  • The Food and Soft Drink sector does not generally attract rules that are specific to individual channels, though there are some Self-Regulatory measures that are particular to television (see below), and the Netherlands regime applies a general prohibition on food advertising to children under 12, with some products/ campaigns exempted (see below)
  • Infant formulae advertising is confined to specialist press

 

Children/ minors 

 

  • Advertising for food products which are associated with a particular television and/ or radio programme which is targeted specifically at children aged 12 or younger may not be shown in commercial breaks during or immediately following the broadcast of that programme (Art. 8, Para 3 ACF)
  • All ‘media carriers’ who according to the generally accepted market research are specifically aimed at children up to and including 12 years of age shall not contain advertising for food products (Art. 8a, Para 4 ACF)
  • Those media not specifically aimed at those under 12 may carry advertising for food products provided that the ‘public for whom the advertising is intended’ consists of less than 25% of children of 12 and under (emphases ours; based on art.8, Para 4 ACF)
  • Exempted is advertising for food products directed at children of 7 to 12 years old which meets the nutritional criteria in the the table (NL / EN) with corresponding portion size list (NL / EN)
  • Also exempted is advertising intended for children of 12 years and younger in cooperation with the government and/ or other approved authorities in the field of nutrition, health and/ or physical exercise. This exemption applies to all media/ channels

 

General channel rules 

 

  • Channel rules set out above are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, Sponsorship and product placement rules
  • The core legislation in the ‘general’ context is the 2008 Media Act (NL, 2022), which carries some AVMS Directive provisions. The HFSS food-related requirements are ‘covered’ by the DAC, the official repository for content rules transposed from the AVMS Directive; the 2020 amends extend scope into e.g. video-sharing platforms. More information below under the General tab, as the rules apply to all sectors

 

EU PLEDGE 

 

From the Implementation Guidance Note see Pt. 3 Television and Radio and Pt. 9 Product Placement;

commitments enhanced July 2021

 

 

 

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General

SECTION C: TV & RADIO/ AV

 

 

KEY RULES AND SOURCES 

 

  • The Content rules shown in our earlier Section B apply to these channels; the principal source of rules is the Dutch Advertising Code (DAC; EN - does not include May 2022 clauses here)
  • The DAC is the official repository for content rules transposed from the AVMS Directive; under the terms of the Media Act 2008 (NL, March 2022) articles 3.6 and 2.92 for commercial and public broadcasters respectively, broadcasters are required to be affiliated with the DAC
  • The latest English version of the DAC does not reflect the amendments to content rules, albeit not really significant in this context, that Directive 2018/1808 provided to the AVMS Directive; content amends to the Directive are shown here
  • The principal channel  (i.e. placement) rules in this context are from the Media Act 2008 implementing aspects of the AVMS Directive and its amendment Directive 2018/1808, e.g. rules on sponsorship and product placement 
  • There is some uncertainty around the Act’s 2020 provisions transposed from the amending Directive, the purpose of which was to recognise and address a media landscape shaped by ‘the ongoing convergence of television and internet services’ (recital 1, 2018/1808 Directive). This uncertainty manifests itself especially with regard to Influencers/ vlogging, as they can fall under the definition of a ‘media service on demand’. See this helpful piece from Field Fisher Netherlands here and a significant article from the DDMA (Data Driven Marketing Association of the Netherlands) counsel here (NL)
  • An important view on the above issue is from the regulator group ERGA whose December 2021 paper Analysis and recommendations concerning the regulation of vloggers carries an Annex with national examples, which includes the Netherlands (5)
  • Meanwhile, the Dutch Media Authority (CVDM; link is to the page on the amended Media Act) supervises compliance with the Media Act 2008, issuing regulations/ guidelines related to the Act's requirements. These are linked below in their respective contexts and for our (advertising) purposes address principally product placement and sponsorship, essentially unchanged in the amended Media Act, in part because these elements are unchanged in the revised Directive
 

 

COMMERCIAL CHANNELS 

 

Incorporates TV and Radio and On-demand

 

  • Arts 3.6 - 3.14 Media Act 2008 (NL March 2022) sets out the base rules for advertising/ teleshopping, 3.15 - 3.19 for sponsorship and 3.19a-c for product placement 
  • Dutch Media Authority (CVDM) regulations (these look dated but remain on the CvDM website as at January 2022):

 

CVDM Policy on advertising, commercial media organisations 2012 (EN)

CVDM Policies sponsoring commercial media organisations 2012 (EN)

CVDM regulation on product placement by commercial media institutions 2014 (EN)

 

The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here and they anyway reflect the amends to the Media Act separately conveyed

https://www.cvdm.nl/uploader/meer-weten

 

 

PUBLIC CHANNELS 

 

Summary

 

STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Public Broadcasting's television, radio and online outlets. Advertising rules are applicable to all their media services including, for example, websites or media services on demand (Art. 2.98 Media Act). STER is affiliated to the SRC self-regulatory advertising authority and is legally obliged to observe the Dutch Advertising Code (Art. 2.92 Media Act)

 

  • Advertising is permitted, but with less frequency than on commercial channels
  • Product placement is prohibited for public broadcasting services (Art. 2.88b (3b))
  • Sponsorship is allowed in public broadcasting services under strict conditions, limited to, for example, arts and sports programmes (Arts 2.107-2.108)
  • As with commercial broadcasting, rules are a combination of requirements from the Media Act and the Media Authority’s (CVDM) regulations:

 

CVDM Policy rules on advertising for public media institutions 2019 (NL) (EN)

CVDM Policy rules for sponsorship, public media institutions 2018 (NL) (EN)

Checking for updates per above commercial amends 

 

 

 

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International

SECTION C TV/AV AND RADIO

 

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

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The Content rules in our Section B above apply to the Cinema channel, as do the General content rules set out below those, principally from the Dutch Advertising Code (EN)
  • Within the DAC linked above is the Advertising Code for Food Products (EN)
  • All ‘media carriers’ who according to generally accepted market research are specifically aimed at children up to and including 12 years of age shall not contain advertising for food products (Art. 8a, Para 4 ACF)
  • Those media not specifically aimed at those under 12 may carry advertising for food products provided that the ‘public for whom the advertising is intended’ consists of less than 25% of children of 12 and under (emphases ours; based on Art.8, Para 4 ACF)
  • In other words, if films are likely to have an audience of over 25% children, then no food advertising
  • Infant formulae advertising is confined to specialist press
  • EU Pledge Implementation Guidance pt. 6 for Cinema and movies on DVD/ CD-ROM; commitments enhanced July 2021, effective January 2022
 
PRINT

 

  • No rules from authorities for the Food and Soft Drink category that apply specifically to print advertising; sector-specific and general Content rules from our earlier Section B apply in press and magazines, and, for most foods, under 12’s must be avoided; see channel rules under article 8 of the Advertising Code for Food Products (EN) and above under Cinema
  • Infant formulae advertising is confined to specialist press
  • EU Pledge Implementation Guidance pt. 4 for Print (and third party Internet);  commitments enhanced July 2021, effective January 2022

 

OUTDOOR

 

  • No rules from authorities for the Food and Soft Drinks category that apply specifically to Outdoor advertising; Content rules set out in our earlier Section B apply, both sector-specific and General rules
  • The EU Pledge includes a commitment not to engage in Food or Soft Drink product marketing communications to children in primary schools. While there is no specific guidance on posters in close proximity to schools, some advertisers consider this aspect of placement
  • The Advertising Code for Food Products (EN) also includes some rules for commercial communications in schools under article 9

 

Advertising ban; Amsterdam metro system

 

  • Since 1st Jan 2018, advertisements promoting 'unhealthy' food aimed at children are prohibited throughout the Amsterdam metro system, covering 58 metro stations
  • This initiative stems from the municipality of Amsterdam’s partnership with the Stop Child Marketing Alliance (Alliantie Stop Kindermarketing), which aims to 'bring an end to the promotion of unhealthy food aimed at children'. In addition to metro station billboards, the ban on the promotion of 'unhealthy' food aimed at children also applies to events and activities subsidised by the municipality and at municipal sites. The new measures will affect around 200 bus stops, 30 large billboards and 52 digital signs in and around the Amsterdam metro
  • The conditions for the tender for the new advertising contract for all 58 metro stations (which started on 1st Jan 2018 and has a duration of 15 years) will now include the provision that child marketing for 'unhealthy' products is not permitted. So, it is an obligation for the advertising operator who deploys the advertising space in metro stations. Failure to comply will amount to breach of contract. How the distinction between unhealthy food advertising aimed at children or aimed at adults will be made is not yet entirely clear. As it stands, there is no general ban on advertising 'unhealthy' food
  • We have no news re enforcement of the initiative or whether the new ad operator is applying it

 

 

 

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General

SECTION C: CINEMA, PRINT, OUTDOOR

 

     

  CINEMA

 

  • Content rules set out in our earlier Section B apply in Cinema; the key set of rules is the Dutch Advertising Code (EN - does not include May 2022 clauses here)
  • Under this ‘General’ tab, the cinema medium does not attract specific channel (i.e. placement) rules. Some regulation-sensitive product categories, such as Alcohol, are subject to cinema-specific rules. See Sector tabs on the WikiRegs home page
  • SAWA is the Screen Advertising World Association: http://www.sawa.com/.

 

PRINT

 

  • See Direct Postal Mail entries later in this Channel section for mailshots/ print advertising in mail
  • Content rules set out in our earlier Section B will apply; the key set of rules is the Dutch Advertising Code (EN - does not include May 2022 clauses here)
  • Under this ‘General’ tab, the print medium does not attract specific channel rules. Some regulation-sensitive product categories, such as Cars and Alcohol, do have print-specific requirements. See Sector tabs on the WikiRegs home page

 

OUTDOOR

 

  • Content rules set out in our earlier Section B will apply
  • Under this ‘General’ tab, the Outdoor medium does not attract specific channel rules. Some regulation-sensitive product categories, such as Alcohol and Gambling, do carry Outdoor-specific requirements. See Sector tabs on the Home Page

 

 

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

 

 

 

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International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable Self-Regulation and legislation 

 

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

 

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

 

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

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

 

 

Article B12 Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, own websites, and a section on Privacy rules and their impact on e.g. OBA. 

 

CORE RULES

 

  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, including online. Both Sector-specific and General rules, i.e. those that apply to all sectors Food included, apply
  • The Dutch Advertising Code (EN) does not distinguish between paid and unpaid media. If it’s advertising, it’s in remit. See advertising definition extracted from the Code here
  • Within the DAC linked above is the Advertising Code for Food Products (EN)
  • All ‘media carriers’ who according to generally accepted market research are specifically aimed at children up to and including 12 years of age shall not contain advertising for food products (Art. 8a, Para 4 ACF)
  • Those media NOT specifically aimed at those under 12 may carry advertising for food products PROVIDED that the ‘public for whom the advertising is intended’ consists of less than 25% of children of 12 and under (emphases ours; based on Art.8, Para 4 ACF)
  • Exempted is advertising for food products directed at children of 7 to 12 years old which meets the nutritional criteria in the table (NL / EN) with corresponding portion size list (NL / EN)
  • The Media Act (NL) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications (and therefore the Advertising Code for Food Products)
  • Infant formulae advertising is confined to specialist press
 
EU PLEDGE
 

 

  • Channel rules set out above are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements in some media

 

Vlogging guidance/ rules

 

  • The Union of Advertisers (BVA - De Bond van Adverteerders) and the Trade Association for the Food industry (Federatie Nederlandse Levensmiddelen Industrie FNLI) provide guidance for advertisers working with vloggers: the Food Advertisers and Content Creators Guide. The Guide is based on round-table discussions between PepsiCo, Coca-Cola, Nestlé, Unilever and McDonald's, some of their agencies, and MCNs (Multi Channel Networks). 2019 version in Dutch here; translated here
  • In May 2022, the media authority CvdM issued Influencer rules (NL; EN summary hereInfluencers/ 'video uploaders' now deemed to come into scope of the Media Act; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons

 

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT 

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA 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 DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ 

 

The impact of GDPR is shown under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors

 

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  • Per the introduction above, online advertising is subject to the rules set out in Content Section B. The key set of rules is from the Dutch Advertising Code (EN - does not include May 2022 clauses here). A significant issue in online’s less structured environment is the identification of advertising, hence in this case opening with recognisability rules, but if it’s advertising, it’s in remit and therefore subject to all the rules

 

RECOGNISABILITY: SELF-REGULATION

 

  • Article 11.1 DAC: An advertisement shall be recognisable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended
  • SRC Check Recognisability NL: on the Internet, an advertisement must be easily identifiable as such. When content on websites is specifically associated with a particular product, advertising will usually be involved. Under no circumstances may the consumer be misled, for example by giving the impression that it is an ‘official‘ newsflash/ message. See case 2011/00311 

 

RECOGNISABILITY: LEGISLATION

 

  • Article 15e (1) Book 3 Civil Code (EN) from the E-Commerce Directive 2000/31/EC: Where commercial communications form part of, or constitute, an information society service Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the service without parties having been simultaneously present at the same placethe one who has instructed to use this way of communication must ensure that: 

 

  1. The commercial communication is clearly recognisable as such
  2. That his identity can be deduced from the commercial communication
  3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them
  4. That unrequested commercial communication, sent electronically, is clearly and unambiguously recognisable as such as soon as it is received by the recipient

 

  • The Dutch Civil Code Book 6 (EN; not up-to-date with May 2022 clauses; see Section A Overview and Section B Content), home of some commercial communication rules from the Unfair Commercial Practices Directive 2005/29/EC, includes misleading omission rules under article 193d; under article 193g - Commercial practices which are misleading in all circumstances - point v: 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; and k: 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’)
  • The Media Act (NL; March 2022), since its amendment as a result of Directive 2018/1808 bringing video sharing platforms into remit, is interpreted to include Influencers/ 'video uploaders' in its scope. The media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022 which require Influencers with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protetction measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022

 

 

 INFORMATION REQUIREMENTS 

 

  • Dutch Advertising Code Arts 8.2, 8.3c and 8.4 for specific '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 requirements 
  • The above linked code in English does not include May 2022 rules set out in the NL version under article 8.3. and transposed from the 2019/2161 Directive requiring consumer reviews to be verified and search results to be transparent. The clauses in English are shown here  
  • SRC Check Information Obligations NL. The link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. We have also translated requirements by Group or ‘Column’, as below:

 

  1. General advertising, without price/ product
    http://www.g-regs.com/downloads/NLGenSRCCheckCol1.pdf
  2. Non digital offers (not specific to this context but to show how the versions differ)
    http://www.g-regs.com/downloads/NLGenSRCCheckCol2.pdf
  3. Digital offer (webshop)
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pdf
  4. Medium/ product
    http://www.g-regs.com/downloads/NLGenSRCCheckCol4b.pdf

 

 

OTHER SELF-REGULATORY RULES BY CHANNEL AND RE CONTENT CREATORS

 

  • Social Media and Influencer Advertising Code EN / NL. This code, amended July 2022 for more specific Influencer Marketing provisions in light of new rules from the media authority (CvDM; see above) sets out terms so that advertising via bloggers, vloggers and content creators generally, is clearly recognisable as such. Some clauses are set out under the Marketers’ Own Websites header following in this Channel Section C, or see the linked files
  • SRC Checklist: Social Media NL; EN. Social Media information obligations SRC Check NL; Social Media recognisability SRC Check NL
  • Social Code: YouTube NL / EN The Code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority CvdM
  • The SRC published in January 2021 What are the rules for fair and transparent advertising on TikTok? (NL)

 

Regulatory authorities

 

 

 

 INFORMATION REQUIREMENTS FROM LEGISLATION

 

  • Art. 15d Book 3 Civil Code (EN) from the E-Commerce Directive 2000/31/EC: Accessibility of data and information. See the linked file for requirements or under the Marketers’ Own Websites header later in this Channel Section C. Note: the information must be made ‘directly, easily and permanently accessible.’

  • The Telecommunications Act NL / EN Article 11.7 implements the E-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent. See provisions from the linked files or under the email header later in this Channel Section C. If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors

  • Article 193e from Book 6 of the Dutch Civil Code (EN) on 'Invitation to Purchase' covers information requirements for this type of advertising. Provisions are almost word-for-word per the DAC article 8.4 referenced above,  as both sources derive from the UCPD 2005/29/ECIn May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 

  • The Media Act (NL March 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider
  • Reference the above, in May 2022 the media authority CvdM published rules (NL) for 'video uploaders' as they are now considered to be in scope of the Media Act. Influencers with more than 500k followers/ subscribers and who post more than 24 videos in a calendar year must register with CvdM and with the SRC
  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

 

 

 

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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

 

 

COOKIES

 

  • While the various sectoral Codes do not address the issue of Cookies and Data processing per se, it’s obviously the case that any commercial activity of this type aimed at under 12’s should be 'carefully considered'
  • In the case of food products that meet the required nutritional criteria, commercial activity to 7-12 year olds technically may be permissible, though parental permission should be sought in the event of dealing with children’s personal data; see the General tab below for privacy rules, especially GDPR requirements 

 

OBA

 

  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media. In that sense, OBA is like any other Food and Soft Drink advertising – it’s subject to the Content rules, both Sector-specific and the General rules applying to all product sectors; those are principally from the Dutch Advertising Code (EN)
  • It is a General channel rule (see General tab below) of the European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance EDAA http://www.edaa.eu that OBA segments are not created for children (under 13)
  • If not observing that programme, then the channel rules, as well as the Content rules, from the (EN) Advertising Code for Food Products apply (see article 8, para 4 in particular), together with statutory rules for e.g. consent to third party cookies. These are shown under the General tab below 

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • Key Statutory Provision: Article 11.7a Telecommunications Act (TA) NL / EN implements article 5.3 of the e-Privacy Directive 2002/58/EC, amended by Directive 2009/136/EU, aka the cookie clause
  • Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: some interpretation is that when cookies identify individuals, then GDPR lawful processing rules may apply (the above linked Telecoms Act clauses have been amended to reflect/ recognise GDPR). Privacy issues should be reviewed with specialist advisors
 

Guidance

 

 

OBA

 

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

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

Effective 19 January 2022

 

 

Self-Regulation

 

  • OBA, as with any other advertising, is ‘in remit’, i.e. subject to the DAC (EN - does not include May 2022 clauses hereand the other rules set out in Content Section B
  • Refer to the International tab for details of the Self-Regulatory initiative for OBA, which is underpinned by the IAB Europe OBA Framework and the EASA Best Practice Recommendation. The European Interactive Digital Advertising Alliance (EDAA) is the non-profit organisation responsible for enacting key aspects of the self-regulatory initiative for Online Behavioural Advertising (OBA) across Europe
  • EDAA’s principal purpose is to licence the ‘OBA Icon’ to companies involved in Online Behavioural Advertising across Europe; the OBA Icon is a consumer-facing, interactive symbol that links consumers to an online portal, www.youronlinechoices.eu, where they can find easy-to-understand information on the practice of OBA as well as a mechanism for exercising informed choice; if they wish, consumers may ‘turn off’ OBA from some or all companies

 

 

 

 

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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

 
DIRECT ELECTRONIC COMMUNICATIONS 
e.g. Email, SMS, MMS

 

  • The Content rules for Food and Soft Drinks in our earlier Section B above apply to marketing communications in all media, as do the General content rules set out below those, principally from the Dutch Advertising Code (EN)
  • See channel rules under article 8 of the Advertising Code for Food Products (EN); in short, no advertising to kids under 12, unless the food concerned meets nutritional criteria as set out in the table (NL / EN) with corresponding portion size list (NL / EN) (NL)
  • Processing of any personal data may be subject to lawful processing requirements from the GDPR; see the General tab below for rules that apply to all sectors, Food and Soft Drinks included 
  • Infant formulae advertising is confined to specialist press

 

EU PLEDGE

 

GENERAL RULES 

 

  • The Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, Food and Soft Drinks included, under the General tab below, also apply. These include, for example, statutory Consent and Information requirements  

 

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

KEY RULES AND THEIR SOURCE 

 

  • Marketing communications via email/ SMS/ MMS are subject to the Content rules set out in Section B; the principal rules are from the Dutch Advertising Code (EN - does not include May 2022 clauses here)
  • In this Channel rules context, the main regulatory issues are from Self-Regulation and legislation that deals with Consent and Information requirements. The Code linked above is comprehensive and reflects legislation closely, so the provisions below are largely Self-Regulatory, though there is a collection of statutory requirements at the base of this page
  • If data processing involves personal data (that which identifies individuals), then lawful processing rules from the GDPR may apply
  • 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 

 

 

SELF-REGULATION

 

Email Code from Section B of the Dutch Advertising Code EN / NL. Key points from the code (below as EC):

 

  • Opt-in consent: e-mail advertising is in principle permitted if the recipient of the e-mail advertising has actively granted permission in advance to the database owner (1.3a EC)
  • Soft opt-in: E-mail advertising is also in principle permitted if the database owner has obtained the e-mail address within the scope of a sale to or donation by the recipient and is used for offering similar products or services (including asking for donations by idealistic or charitable institutions), as long as no use is made of the possibility to unsubscribe in the same way as meant in article 5 of this Code (the Right to Object). The obligation will not be met solely by including either a provision in the General Terms and Conditions or a privacy statement (1.1a EC)

 

 

Identification 

 

  • Advertising by e-mail must be clearly identifiable as such by layout, presentation, content or otherwise (Art. 2.1 EC)
  • The advertiser shall take care that the database owner identifies himself in each email in such a way that he is easily and actually accessible to the recipient of the e-mail by means of the contact data of the database owner. At least his name, postal address and contact data shall be specified or an active link shall refer to these data(Art. 2.2 EC) Note: Contact details also means phone number, from case 2017/00361 in which a name, address and email address was not considered sufficient
  • The database owner must include his label in the 'From' field. At the same time, his e-mail must contain an active reply-address in the Reply to- field, where a response will be received (Art. 2.3 EC)

 

 

The right to object

 

  • The advertiser must ensure that the recipient is given the opportunity, in each message, to object (to the database owner), free of charge and in a simple electronic way, to the use of his e-mail address for the distribution of advertising messages. (Art. 5.1 EC)
  • This right of objection must be made possible in a simple, clear and preferably uniform manner. The database owner must ensure that the request is actioned immediately (Art. 5.1 EC)
  • The recipient must be given the opportunity in every instance to opt-out - as per Art. 5.1 - of receiving advertising messages for the label, product, or service for which the e-mail address was compiled. The opt-out may cover several or all labels, products or services (Art. 5.2 EC)

 

Note: In the old B2B Email Code, opt-in was not required for Emails sent to generic addresses (i.e. info@ or sales@). No mention of this exemption in the new Email code. SRC (the Self-Regulatory Organisation for the Netherlands) state it no longer applies, meaning opt-in required for these addresses

 

LEGISLATION

 

As the Self-Regulatory Email Code is comprehensive, clauses from legislation are not spelt out in this section

 

  • The Telecommunications Act (NL; July 2021) article 11.7, which deals with Cookie regulation and establishes the opt-in principle from the E-Privacy Directive 2002/58/EC; key clauses EN
  • Book 6 of the Civil Code (EN; amend to art. 194 here) carries the rules from the UCPD 2005/29/EC including misleadingness provisions and e.g. ‘invitation to purchase’ informational requirements (article 193e); this translation does not carry the May 2022 rules transposed from the 2019/2161 Directive relating to the veracity of consumer surveys and the transparency of search results; the May 2022 Book 6, Section 3A is here in Dutch and the relevant clauses are in English here 
  • Articles 15d and 15e of Book 3 of the Civil Code (EN) also carry identification and informational requirements, in this case in the context of e-commerce, transposed from Directive 2000/31/EC 
  • If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors if uncertain
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

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

 

 

Article 19 ICC Code: Data protection and privacy

 

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

 

19.1. Collection of data and notice

 

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

 

 

19.2. Use of data

 

Personal data should be:

 

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

 

 

19.3. Security of processing

 

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

 

 

19.4. Children’s personal data

 

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

19.5. Privacy policy

 

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

 

 

19.6. Rights of the consumer

 

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

 

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

 

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

 

 

19.7. Cross-border transactions

 

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

 

 

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

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

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

 

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

 

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

 
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EU guidance documents

 

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

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered by the rules. The definition of advertising from the Dutch Advertising Code (EN) is 'any form of public and/or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising'. 

 

KEY RULES 

 

  • The Content rules for Food and Soft Drinks in our Section B above apply to marketing communications in all media, including marketers’ own websites, as do the General content rules set out below those, principally from the Dutch Advertising Code (EN)
  • Within the DAC linked above is the Advertising Code for Food Products (EN)
  • All ‘media carriers’ who according to generally accepted market research are specifically aimed at children up to and including 12 years of age shall not contain advertising for food products (Art. 8a, Para 4 ACF)
  • Those media not specifically aimed at those under 12 may carry advertising for food products provided that the ‘public for whom the advertising is intended’ consists of less than 25% of children of 12 and under (emphases ours; based on Art.8, Para 4 ACF)
  • Exempted is advertising for food products directed at children of 7 to 12 years old which meets the nutritional criteria in the the table (NL / EN) with corresponding portion size list (NL / EN
  • The Media Act (NL, 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications (and therefore the Advertising Code for Food Products). If user-generated audiovisual communications are known by the service provider to contain commercial communications, then the service provider must make that clear to the (end) user. See vlogging guidance/ rules below 
  • Infant formulae advertising is confined to specialist press

 

 

See the Implementation Guidance under point 5 for Guidance for company-owned websites and company-owned social media profiles, and point 10 for Influencer marketing;

commitments enhanced July 2021, effective January 2022

 

VLOGGING GUIDANCE/ RULES

 

  • The Union of Advertisers (BVA - De Bond van Adverteerders) and the trade association for the food industry (Federatie Nederlandse Levensmiddelen Industrie – FNLI) publish the 'Food Advertisers and Content Creators Guide' for their members. The purpose of the guide is to provide advertisers and their agencies with direction on how they can responsibly develop content creation, especially in relation to Infuencers. The guide is based on prevailing self-regulatory rules and legislation together with round-table discussions with PepsiCo, Coca-Cola, Nestlé, Unilever and McDonald's, some of their agencies and MCNs (Multi-Channel Networks). 2019 version in Dutch here, translated here
  • In May 2022, the media authority CvdM issued Influencer rules (NL; EN summary hereInfluencers/ 'video uploaders' now deemed to come into scope of the Media Act; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons

 

GENERAL CHANNEL RULES

  • The Channel rules set out here are largely specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements which may apply when advertisers/ agencies communicate with website visitors

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in Paid space also applies in Owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.

 

In the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 

 SELF-REGULATION

 

  • The Dutch Advertising Code (EN - does not include May 2022 clauses here) applies; in particular in this context Articles 8.2, 8.3c; Invitation to Purchase in relation to a distance contract, Article 8.4 (f-s). Article 11, Recognisable advertising
  • In May 2022, new clauses were introduced under article 8.3 of the DAC that transpose requirements from Directive 2019/2161 that address the transparency of search results and the veracity of consumer reviews. These provisions were also placed in legislation - in Book 6 of the Civil Code. Translations from the SRC are not yet completed; the relevant clauses have been translated here (same link as above)
  • ‘SRC Check’ for Information Obligations NL. The preceding link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. The specific ‘column’ requirements for digital offers/ webshops are more formally translated here:
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pd
  • EASA’s Best Practice Recommendation Digital Marketing Communications establishes some exemptions in this context, such as User-Generated Content (unless endorsed by the marketer), under Section 2 of the linked document
  • ACM, the Authority for Consumers and Markets, and the Dutch Data Protection Authority AP, have combined to produce a Joint ruling on ‘Tell-a-friend’ systems on websites here (EN)
  • E-Mail Code 2012 EN; from Section B of the Dutch Advertising Code S.1.5; clauses set out in the earlier Email header or from the linked Code 
  • Social Media and Influencer Advertising Code 2019 (SMAC) EN / NL; set out below. Explains disclosures on 'relevant relationship' with content creators. Influencer Marketing: Active Monitoring Mandatory! from GALA/ Lexology October 2021 reports that advertisers can't rely on a contractual arrangement with influencers to protect themselves, but that they must 'make an active effort to ensure that the influencer complies with the rules'
  • Social Code YouTubers NL / EN. This is a Code written by YouTubers for YouTubers 

 

 

LEGISLATION

 

See linked documents for clauses. These are not set out below 

 

  • Article15d Book 3 Civil Code EN requires ‘Providers of Information Society Services’ Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the serviceto make available to users certain information about the operator and its services; transposed from the E-Commerce Directive 2000/31/EC; clauses shown below 
  • Article 193e from Book 6 of the Dutch Civil Code (EN) on 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
  • In May 2022, Paragraphs 2 and 3 have been added to the above article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 
  • If communicating with users, then personal data may be processed, which may require observation of the GDPR; equally, consent to marketing communications from the Telecommunications Act Article 11.7 (EN), which deals with Cookie regulation and establishes the opt-in principle, may apply; check with advisors
  • The Media Act (NL, March 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider
  • Building on the above, the media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022

 

1.1.  Social Media and InfluencerAdvertising Code 2022 EN

 

Explanation

https://www.reclamecode.nl/social-toelichting/ (NL)

Advice tool

https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)

Guidance document

https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf (NL)

FAQs

https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)

 

Note July 2022: we are not sure whether the above have been amended in light of the update to the Code itself; checking with SRC

 

Key clauses article 3: disclosure and identifiability of ‘Relevant relationship’

 

  1. Advertising via social media must, in line with Article 11 NRC, be clearly recognisable as such 
  2. If a Distributor has a Relevant Relationship with the Advertiser, this must be explicitly stated in the advertisement
  3. The requirements referred to in points a and b can be met in any event if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/ or presentation. The content and nature of the Relevant Relationship is in any event clearly recognisable if it is formulated in accordance with the suggestions in the explanation to this article (see file linked above for explanation; it's a bit lengthy to place here)

 

Manipulation ban

 

  • Modifying posts or other communications on social media in such a manner that the average consumer may be misled is prohibited (Art. 4a SMAC)
  • b. If the Advertiser modifies, or has another party modify, posts or other communications on social media in order to recommend a product, service or activity, either from the Advertiser or from a third party, the Advertiser must disclose this in a clear and accessible manner (Art. 4b SMAC)
  • c. If posts or other communications on social media are modified, selected or compared within the context of recommending a product, either from the Advertiser or from a third party, the Advertiser must do everything necessary to clearly disclose the nature of the Relevant Relationship (Art. 4c SMAC)
  • The Advertiser is furthermore prohibited from systematically creating and/ or using false or non-existent identities in bulk to communicate about a product and/ or service through social media. The use of fake likes and fake followers is also not allowed (Art. 4d SMAC)

 

Teasers

 

Teasers are permitted except when the teaser causes or is likely to cause the average consumer to make a decision about a transaction that he would not otherwise have made

 

Children

 

If there is advertising via social media aimed at children, the Children's and Youth Advertising Code applies in full in addition to this Code and the DAC (Art. 5 SMAC)

 

Duty of care

 

1.  The Advertiser must:
 
a. Make the Distributor aware of the contents of this Code;
b. Require the Distributor working on his instructions to comply with the relevant law and regulations, including the Dutch Advertising Code as well as this Code
c. If the Distributor is permitted to use third parties: to draw the Distributor’s attention to the fact that such third parties must also comply with the obligations referred to in b
d. Actively endeavour to hold the Distributor to the obligations cited in b. and c. and actively to take measures against transgressions referenced in b. and c
 
2. The Advertiser cannot excuse himself/ herself from the obligations referenced in 1 based simply on the fact that the Distributor does not respect the instruction
3. If the Advertiser has complied with the obligations above, the Advertiser has made the best efforts that can reasonably be expected to ensure that Distributors comply with the rules
4. The Advertiser and Distributor each bear their own responsibility for compliance with Articles 3, 4 and 5 of this Code. When a complaint is accepted, the Advertising Code Committee and, on appeal, the Board of Appeal, can designate the party to which non-compliance with this Code can be attributed

 

Example case (Identification)

 

https://www.reclamecode.nl/cases-uit-de-praktijk-van-de-nederlandse-reclame-code/chips-maken-bij-de-boer/

 

YouTubers Code NL / EN website:

 

www.desocialcode.nl

 

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The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)

 

 

 

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International

 

CONTEXT

 

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

 

 

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. Sector-specific rules are immediately below  

 

KEY RULES

 

  • The ‘Native’ form of advertising is like any other Food and Soft Drinks advertising or any sector’s advertising – it’s subject to the rules; the key general rule, spelt out under the General tab below, is that of identifiability/ disclosure
  • The Content rules for Food and Soft Drinks in our earlier Section B will apply, as will the General content rules that apply to all product sectors; the principal source of those rules is the Dutch Advertising Code (DAC; EN)
  • Within the DAC linked above is the Advertising Code for Food Products (EN)
  • Infant formulae advertising is permitted only in specialist publications

 

 

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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 identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier Content Section B, primarily those from the Dutch Advertising Code (EN - translation does not include May 2022 clauses here)

 

SELF-REGULATION 

 

  • Article 11 Recognisability of advertising. Dutch Advertising Code (DAC) Section A (EN)
  • Art. 8.5 DAC; Annex 1 Points 10 and 21
  • SRC Check: Unfair Advertising
  • Case Example: File Number 2014/00327 NL, re an article on www.voetbalzone.nl about football matches and winning chances, which turned out to be advertising for Unibet, while it was presented as editorial content

 

Identifiable/ recognisable as advertising (Art. 11)

 
  • Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
  • Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2)

 

SRC Check: Unfair advertising - always unfair: Blacklist NL

 

  • Advertising in editorial articles (Native). An advertorial should also be easily recognisable as advertising. If advertising is paid for and not recognisable as advertising, that is by definition a violation of number 10 of the blacklist of Annex 1 of the DAC (see below). If the word 'advertorial' (advertorial) or 'advertisement' (advertentie) is sufficiently clear with the piece, or the consumer is otherwise sufficiently clearly informed that the piece contains advertising, then it is permitted
 
 

Blacklist: Misleading under all circumstances and thus unfair advertising under Article 7 DAC

 

  • Annex 1: Advertising is considered misleading under all circumstances in the event of:
     
    • 10. Using editorial content in the media to promote a product, where the advertiser has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)
    • 21. Falsely claiming or creating the impression that the advertiser is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

LEGISLATION

 

As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause

 

  • Article 15 (e) (1) Book 3 Civil Code; requirements for online commercial communications EN
  • Article 193g (k) and (v) Book 6 Civil Code. Blacklist, i.e. circumstances in which a commercial practice is misleading and therefore an unfair commercial practice, under Article 193b (3a) Book 6 CC) EN / NL (May 2022). The EN translation of Book 6 does not include new clauses in the blacklist and some other articles related to commercial practices. As these are not directly related to native advertising we don't show them here but they can be found under Content Section B, point 2
  • Article 193d misleading omission; Book 6 Civil Code per links immediately above; see note also above 

 

 

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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 the Telemarketing channel

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

KEY RULES

 

  • The Sector Content rules set out in Section B apply to marketing communications in this channel, as do the General content rules set out below those, principally from the Dutch Advertising Code (EN)
  • Channel rules are included under article 8 in the Advertising Code for Food Products (EN). In short, avoid directing Food and Soft Drink marketing communications to children under 12 unless the product meets nutritional standards; other general rules (see General tab below) will require parental permission for contact anyway
  • The Channel rules set out here are generally specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements which will be relevant to DPM and the data processing involved  
  • Infant formulae advertising is permitted only in specialist press

 

EU PLEDGE

 

The EU Pledge Implementation Guidance Direct Marketing under pt. 8;

commitments enhanced July 2021, effective January 2022

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

Includes unaddressed door-to-door

 

  • Content of commercial communications via Direct Postal Mail and other form of distribution shown below is subject to the rules of the Dutch Advertising Code (EN - translation does not include May 2022 clauses here) and other statutory Content rules set out in our earlier Content Section B 
 
 

SELF-REGULATION

 

  • Letterbox advertising, door-to-door sampling and direct response advertising code Abbrev. LDDR. Most relevant in this context is letterbox advertising, defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
  • Advertising code for the use of the postal filter 2021 EN / NL
  • Flowchart for sending Direct Mail (addressed advertising via postal mail) here
  • Code for the distribution of unaddressed printed advertisements 'Sticker Code' SC  EN / NL

 

 

Addressed Direct Postal Mail - definitions and terms 

 

  • Checklist for sending direct mail (addressed advertising mail): Post Filter Code Flowchart (as above)
  • Letterbox advertising: all advertising material which is distributed via the mail box or post box and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) Note: applies to direct mail (addressed) or door-to-door (unaddressed); unaddressed door-to-door is covered separately below
  • Direct response advertising: all advertising in which the goods, services or information offered can be obtained directly from the provider by means of a written, electronic or telephone response (Art. 1c LDDR)

 

  • Advertising is addressed if the address of the recipient (post office box or home address) and city is stated. It is not important whether a name is included in an address; printed advertising that is addressed to “the occupant of” a specific address is therefore still considered to be 'addressed' (Taken from explanation of Art. 1.1.d. SC)
  • Identification: The advertiser must be identified in such a way that he/ she is easily recognisable to the recipient and effectively contactable/ accessible by the recipient. The name and address of the advertiser/ client must be stated in the offer, for which it is not sufficient to state the PO Box number (Art. 2 LDDR)

 

 

Content of the offer

 

  • The goods and/ or services that are offered shall be depicted and/ or described clearly and truthfully (Art. 3 LDDR)
  • Every offer must contain a brief, simply worded summary of the rights and obligations attached to acceptance of the offer, in particular: the cash price, the costs and conditions for paying in instalments, any postal charges/ shipping costs and other conditions such as whether or not the offer is on approval without obligation, so that the recipient knows exactly what is being offered and what his rights and obligations are should he accept the offer (Art. 4 LDDR)
  • For vouchers/ coupons, discount vouchers, and savings/ currency stamps, the advantage or reduction for the recipient must be easily identifiable and verifiable by him, and the offer's term of validity must be indicated, as well as any other restrictions (Art. 5 LDDR)
  • Right to object: Should the recipient state in writing that he does not want addressed advertising, the advertiser shall ensure that this wish is honoured unconditionally, as soon as possible and in any case within a period of three months of receipt of the request (Art. 14 LDDR)

 

 

Advertising code for the use of the Postal Filter (PFC)

 

  • Businesses that send unsolicited addressed advertising material by post must comply with this Code, which forms part of the Dutch Advertising Code; unsolicited advertising material, with the exception of market research, which is addressed (whether or not with name/ surname, so will apply to material addressed as “resident of”) and physically sent by post to a person with whom the advertiser does not have an existing relationship - is permitted (without the need for obtaining prior consent from the individual) provided that:

 

  • The recipient has not opted-out of receiving advertising material by registering on the Postal Register or via an heir/ directly concerned person on the National Register of Deceased Persons via www.postfilter.nl (Art 2/3 PFC)
  • Prior to making use of addresses from prospects Definition A person with whom an Advertiser does not have an existing customer relationship and whose contact data has been used by an Advertiser, either directly or via a third party (Art. 1.8 PFC) in order to send direct mail, the advertiser must always check the Postal Register and National Register of Deceased Persons. It is prohibited to contact a prospect whose personal data has been recorded in either register (Art. 5.1 and 5.2 PFC)
  • Consultation of such registers must take place no longer than a maximum of 6 weeks before the direct mail is sent (Art. 5.3 PFC)

 

  • If the recipient is an existing customer and has not previously opted-out, direct mail can be sent without having to consult the National Postal Register; if the existing customer is registered, direct mail (addressed advertising mail) can still be sent. The National Register of Deceased Persons should still be consulted; if a deceased person is registered, it is not permitted to send direct mail (addressed advertising mail). See Flowchart
  • The recipient of any commercial communication should be notified of his right to object. This may include a reference to the National Register of Deceased Persons or the Postal Filter (see Flowchart/ Art. 7 PFC)

 

Unaddressed advertising and free local papers

 

  • Letter box/ mailbox advertising, door-to-door sampling and direct response advertising code (abbrev. LDDR); most relevant in this case is letterbox advertising Definition Defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
  • Code for the distribution of unaddressed printed advertisements; Sticker Code ‘SC’ EN / NL

 

 

LEGISLATION

 

As Self-Regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause

 

  • Art. 193i (c) Book 6 Civil Code EN / NL (May 2022) which prohibits making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media (italics ours) except in circumstances and to the extent justified under national law to enforce a contractual obligation. The English translation linked here is not up-to-date; see note below
  • The same legislation provides rules in the event of communications that constitute an ‘Invitation to Purchase’ (often the case in postal mail). See article 193e. In May 2022, Paragraphs 2 and 3 have been added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 
  • In the event that data processing identifies individuals, then lawful processing rules from the GDPR apply. GDPR/ privacy issues should be reviewed with specialist advisors

 

 

 

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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

 

 

KEY RULES

 

  • There are no channel rules from authorities specifically for sponsorship of Events/ Field Marketing by the Food and Soft Drinks sector
  • Promotional material associated with sponsorship may be subject to the Content rules for Food and Soft Drinks set out in Section B; the scope set out in the The Advertising Code for Food Products (EN) reads: 'This Code applies to all advertising for food products specifically intended for the Dutch market, regardless of the medium used, and therefore includes online advertising and social media (such as influencer marketing).'
  • The rules for all product sectors from the Dutch Advertising Code (DAC; EN) apply; the definition of advertising in the DAC article 1 is: 'any form of public and/or systematic direct or indirect commendation of goods, services and/or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising.'
  • The Advertising Code for Food Products (EN) includes some specific guidance on commercial activity in schools:

 

  • It is not allowed to advertise foodstuff in playgroups, day-care centres, after-school childcare centres and at schools for primary education. The only exception is an informational advertising campaign realized in cooperation with the government and/ or other approved authority in the field of nutrition, health and/ or physical exercise (Art. 9). For clarification, sampling is considered as advertising
  • At schools for secondary education no promotional activities shall be held which are only intended to motivate the students to excessively consume the commended food product at that time (Art. 10)
  • At schools for secondary education only the regular packages of a food product shall be commended and offered for sale, and not the maximum, king size etc. versions (Art. 11)
  • With respect to sponsoring the most recent version of the ‘Schools for primary and secondary education and sponsoring’ Covenant applies (Art. 12). The Covenant can be found at:
    https://www.rijksoverheid.nl/documenten/rapporten/2020/02/11/bijlage-sponsorconvenant-2020-2022

 

EU PLEDGE

 

 

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  • The rules for this channel that apply to all product sectors, Food and Soft Drinks included, are set out below under the General tab. The Self-Regulatory Organisation SRC publish a Field Marketing Code (EN); details under General
  • The ICC publish sponsorship rules under Chapter B of the ICC Advertising and Marketing Communications Code; extracts under the General tab below, or see the linked file 

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

SELF-REGULATION 

 

The DAC Field Marketing code is linked below (EN)

https://www.reclamecode.nl/nrc/advertising-code-for-field-marketing/?lang=en

And in the original Dutch here:

https://www.reclamecode.nl/nrc/reclame-code-voor-fieldmarketing-rfm/

This Code applies to advertising relating to sale and promotion off-premise

 

 

Chapter II General
A. Advertising recognition

 

  • Article 2, Paragraph 1. When starting a Field Marketing pitch the Field Marketer shall clearly communicate the commercial, idealistic or charitable objective of the pitch to the Consumer
  • Paragraph 2. If this does not appear from the commercial, idealistic or charitable objective the Field Marketer shall specify to the Consumer who the Advertiser is and what the objective is of the pitch
  • Article 3, Paragraph 1. Field Marketers shall carry a valid Dutch ID upon them and a. a clearly visible badge or pass stating the name of the Advertiser and/or the Field Marketing Agency and his or her name, or b. Field Marketers shall wear recognizable clothing which clearly shows by order of what Advertiser they work. This can be done for instance by affixing the logo of the Advertiser on the clothing
  • Paragraph 2. In the event of recruitment for charitable institutions the Field Marketer shall meet the conditions in a. and b.
  • Paragraph 3. Upon being asked by the Consumer, the Field Marketer shall communicate what Field Marketing Agency he works for

 

 

B. Performance
Article 4

 

  1. Unfair and misleading approachment is not allowed. That laid down in Articles 7 and 8 of the Dutch Advertising Code applies in full
  2. The special advertising codes of the Dutch Advertising Code fully apply, to the extent that they are relevant to Field Marketing by reason of the product/service to be advertised and/or by reason of the target group, in particular the provisions regarding promotions in the Advertising Code for Alcoholic Beverages (RVA) and the Advertising Code for Games of Chance (RVK)
  3. During the performance of Field Marketing activities, the Field Marketer shall:

 

  • not mislead the consumer
  • not approach the consumer in an aggressive manner
  • approach the consumer for a pitch with two Field Marketers maximum
  • only address the consumer once upon passing
  • cease the approach as soon as the Consumer unambiguously indicates not to be interested
  • not block or obstruct the passers-by flow or the pavement

 

Other topics covered in the Code linked above are:

 

Vulnerability (article 5)

Age restrictions

Recruiting times

Supplementary Provisions for Direct Sales

Supplementary Provisions for Door2Door Recruiting

Complaints Handling
 

This Code effective from 1 January 2016

 

 

EVENT SPONSORSHIP

 

  • There is no Sponsorship code per se in the Netherlands, though some elements of sponsorship activities are covered above
  • Sponsorship material should observe the Content rules set out in Section B
  • Some product categories, such as Alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs Home page
  • The ICC Sponsorship Code is a solid ‘catch-all' for sponsorship activity nationally and internationally. This is set out in Chapter B of the ICC Advertising and Marketing Communications Code; articles are under the following headers 
 

 B1. Principles Governing Sponsorship

B2. Autonomy and Self-Determination​

B3. Imitation and Confusion

B4.  'Ambushing of Sponsored Properties

B5.  Respect for the Sponsorship Property and the Sponsor​

B6. The Sponsorship Audience

B7.  Data Capture/ Data Sharing

 B8.  Artistic and Historical Objects

B9.  Social and Environmental Sponsorship​

 B10.  Charities and Humanitarian Sponsorship

B11. Multiple Sponsorship

B12.  Media Sponsorship

B13. Responsibility

 

 

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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

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) legislation, 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 

 

CORE RULES 

 

  • Sales promotional marketing material must observe the Content rules for Food and Soft Drinks in Section B, and those for all product sectors shown under General (Content) rules. Principal source of rules is the Dutch Advertising Code (EN)
  • Channel rules re Children are included under article 8 in the Advertising Code for Food Products (ACF; EN). Briefly, advertising may not be directed to children under 12 unless the product meets nutritional standards as set out in the table (NL / EN) with corresponding portion size list (NL / EN)) and
  • Article 6 of the ACF states: Advertisements shall neither show excessive consumption, nor explicitly encourage excessive consumption of any food product. Furthermore, such behaviour shall not be held up as an example and / or be justified. Usual price or volume actions are not considered as explicit encouragement or excessive consumption (emphasis ours)
  • Under article 8, Para 2 (Children), child idols appealing to 7-12 year olds may be used only for ‘qualifying’ food products that meet nutritional criteria, but ‘will not actively promote a Food and / or related premiums and services'. According to the explanation of the article, ’active promotion' means, among other things, that a child's idol directly encourages children to buy the food’
  • The Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, some important requirements when running promotions or competitions, or when communicating price in a promotional context

 

SCHOOLS

 

  • The Advertising Code for Food linked above includes some specific forms of commercial communications at schools; these are also shown in the Events Sponsorship section above
  • The EU Pledgecommitments enhanced July 2021 effective January 2022, includes:
     
    • Only advertise products to children under 13 that meet the common EU Pledge Nutrition Criteria or
    • No food or soft drink marketing communications to children in primary schools, unless requested by administrations for educational purposes

 

INFANT FORMULAE
 
Article 10 Delegated Regulation 2016/127
Requirements for promotional and commercial practices for infant formula
 
  1. Advertising of infant formulae shall be restricted to publications specialising in baby care and scientific publications. Member States may further restrict or prohibit such advertising. Such advertising shall contain only information of a scientific and factual nature. Such information shall not imply or create a belief that bottle-feeding is equivalent or superior to breast feeding
  2. There shall be no point-of-sale advertising, giving of samples or any other promotional device to induce sales of infant formulae directly to the consumer at the retail level, such as special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales
  3. Manufacturers and distributors of infant formulae shall not provide, to the general public or to pregnant women, mothers or members of their families, free or low-priced products, samples or any other promotional gifts, either directly or indirectly via the health care system or health workers
  4. Donations or low-price sales of supplies of infant formulae to institutions or organisations, whether for use in the institutions or for distribution outside them, shall only be used by or distributed for infants who have to be fed on infant formulae and only for as long as required by such infants

 

Self- Regulation

 

Advertising Code for Infant and Follow-on Formulae (ACIF) NL / EN 

 

  • It is not permitted to offer/ provide any free or low-priced products, samples or other promotional gifts of infant formulae, directly or indirectly via the health care system or persons working in it (i.e. health workers), to the general public or to pregnant women, mothers or members of their families (Art. 4.2 ACIF)
  • Point-of-sale advertising and any other initiative to induce sales of infant formulae directly to the consumer at retail level, such as special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales is prohibited (Art. 4.3 ACIF) Explanation: Retail sales also refer to online sales. Merely presenting packs of infant formulae on the retail shelf or on the online shop/ web shop does not fall under the advertising ban in Art. 4.1: Advertising of infant formulae aimed at the consumer is prohibited. Any other exhibition of products for infant formulae, e.g. in a display, shop-window, on a counter or at a consumer fair is prohibited

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT 

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail and SP administration legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and Self-Regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.

 

SOME STANDARD RULES 

 

  • Sales promotional material should observe the rules set out in our earlier Content Section B; principal source of rules is the Dutch Advertising Code (EN - May 2022 clauses not yet translated, unofficial version here)
  • Price Promotions ACM note: promotions must be genuine promotions EN

 

LEGISLATION 

 

  1. Code of Conduct for Promotional Games of Chance (Gedragscode Promotionele Kansspelen) NL / EN 
  2. Information obligations: Article 15e Book 3 Dutch Civil Code EN / NL; sets out rules in e-Commerce re recognisability and the provision of e.g. promotional conditions
  3. Blacklist: Article 193i (h) Book 6 Civil Code: commercial practices which are aggressive in all circumstances EN / NL (May 2022). Covers some other promotional aspects in e.g. pricing and (separately) the abuse of the promise of prizes. The English translation of Book 6 does not include some clauses transposed May 2022 from the Directive 2019/2161. See our Content Section B under point 2

1. Promotional Games of Chance 
Includes prize promotions such as prize draws/ sweepstakes

 

  • Under Article 1 Betting and Gaming Act (BGA), games of chance are defined as those that ‘provide an opportunity to compete for prizes or premiums if the winners are designated by means of any calculation of probability over which the participants are generally unable to exercise a dominant influence, (italics ours) unless a licence has been granted therefore, under this law’. The player does not have to place a stake; the law does not differentiate between games of chance with or without monetary stakes
  • So the BGA takes a ‘prohibited unless licensed’ approach (Art. 1); a licence must be granted for all types of games of chance unless they comply with the Code of Conduct for Promotional Games of Chance. If the Code is not observed, then the games are unlawful under the BGA. See Preamble of Code of Conduct; points 1 and 2

 

A promotional game of chance must:

 

  • Promote a product, service or organisation and must not form a standalone service (preamble; Point 4)
  • Be free to enter, with the exception of communication costs of up to €0.45 per participant (Arts 3.1, 3.2)
  • Be temporary with up to 20 draws being permitted annually, per good, service or organisation (Art. 2) More than one winner may be designated in any one draw (Explanation of Art. 1)
  • Involve prizes or premiums with a total value not exceeding EUR100,000 per promotional game per year (Art. 4.1)
  • Require minors to get permission from a parent or legal guardian to participate (Art. 6.4)
  • Not gather any personal details of minors, nor permit these to be gathered, without verifiable permission from a parent of the minor, unless that is necessary to request the minor to provide contact details of his/her parent for the purpose of gaining permission for distributing prizes or premiums (Art. 6.3)
  • Make sure the general conditions (T&Cs) for games (see Art. 7.2) are made available to participants and potential participants free of charge and easily available (Art. 7)
  • Not have as its sole purpose the collection of personal data of the participants.  It has to be for product, service, or brand promotion; the collection of the personal data of participants can only be an additional benefit (Notes accompanying Art. 1)
  • Ensure the marketing (invitation to participate) as well as the terms and conditions are not misleading, incomplete or give rise to false expectations in the participants (Art. 5.1)
  • Contain the name of the product, service or organisation to be promoted (Art. 5.1)
  • Take care not to encourage excessive participation in the promotional games of chance organised by the supplier (Art. 5.2)

 

Notes accompanying Article 5: Promotion Definition Every form of promotion, whether direct or indirect, of the public profile of an organisation or the sales of goods or services (Art. 1.6)

Promotion may not be misleading in any way. Some examples of what may be misleading include the following:

 

  1. The suggestion that the recipient is already the winner of a prize, for example by means of reporting the name of the recipient in an excerpt from the list of winners
  2. The use of imitations of cheques or other valuable papers, without inclusion of the printed word ‘specimen’ or other indication that its use involved an example of no value whatsoever
  3. The suggestion that the recipient had a greater chance of receiving a prize than other participants, for example by providing another name together with the printed word ‘loser’
  4. Stating in large print that the recipient is already a prize winner, while it appears from the general conditions that the recipient only has a chance at winning a prize
  5. Not depicting the chance of the recipient winning in a sufficiently fair light by giving the impression that the recipient has already won a prize, while this is not refuted in the mailing itself, but only in the appendix or appendices or the regulations; and
  6. By designating every recipient of a sweepstake as ‘winner’ (‘everybody wins’ method), whereby only one prize of minimal value will be awarded
 

2. Information obligations when using commercial communications (Art. 15e Book III DCC)

 

1. Where commercial communication forms a part of a service of the information society or makes out such a service itself, the one who has instructed to use this way of communication has to ensure:
 

  1. That the commercial communication is clearly recognisable as such
  2. That his identity can be deduced from the commercial communication
  3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them (italics ours)

 

 

3. Blacklist/ Commercial practices considered unfair in all circumstances (Art. 193g Book 6 Civil Code):

 

  • Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (‘bait advertising’)
  • f. Making an invitation to purchase products at a specified price and then: 1. Refusing to show the advertised item to consumers, or; 2. Refusing to take orders for it or supply it within a reasonable time, or 3. Demonstrating a defective sample of it, with the intention of promoting a different product (‘bait and switch’)
  • g. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
    Art. 193g Book 6 Civil Code (EN)
  • The English translation of Book 6 does not include some clauses transposed May 2022 from Directive 2019/2161. See our Content Section B under point 2
 

 

SELF-REGULATION 
Advertising contests and promotions 

 

Under the Dutch Advertising Code, Section B (Special Codes): c. Contests: advertisements for prize promotions and contests in print and electronic media must contain at least the following information:

 

  • The name and address of the organiser of the promotion or contest
  • The number of prizes available with a description from which their monetary value is known or can be easily derived
  • The submission deadline
  • Any exclusions or disqualifications from participation
  • The date and manner in which the results will be announced; and
  • In the event special conditions apply to be able to participate in the contest, a short description of those conditions

 

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​Annex II Dutch Advertising Code EN; SRC Check Unfair advertising NL echoes the Blacklist rules shown above under point 3. Rule are shown under the linked Annex 2 document

 

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From the ICC Advertising and Marketing Communications Code, Chapter A. Key headers are 

 

Article A2. Terms of the offer
Article A4. Administration of promotions
Article A5. Safety and suitability
Article A6. Presentation to consumers​
 
 

 

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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

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

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

 

A5: Safety and suitability

 

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

 

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

 

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

 

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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Read more

D. Advice & Clearance

General

SECTION D

 

ADVICE 

 

 

The Self-Regulatory Organisation SRC Stichting Reclame Code provides copy advice for a standard fee to advertisers, for example to those who have to adapt or withdraw an advertisement, to ensure that the amended advertisement complies with the decision of the Advertising Code Committee and/ or Board of Appeal. This advice is available only to advertisers who pay their annual financial contribution to the SRC. Advertisement copy advice is informal and non-binding; access is provided at: http://www.checksrc.nl/copy_advies. SRC also offers training on the rules of the DAC; you can check their website for the current offer or if you want a tailor-made training, you can contact the Compliance department of the SRC.

 

Besides Copy Advice and Training, SRC offers advertisers two websites (in Dutch) with explanations of the advertising rules: (1) www.checkdereclamecode.nl and (2) www.checksrc.nl. The first site offers a practical tool that makes it possible to check an advertisement or a campaign on the basis of a few simple questions. The second site offers advertisers the opportunity to go into a little more depth on specific subjects, such as misleading advertising, rules for children, and identification of advertising.

 

 

CLEARANCE 

 

Pre-clearance is mandatory for Alcohol advertising on radio and television and in cinemas. Requests should be e-mailed to STIVA (the alcohol industry body) advies@stiva.nl and consist of a script, storyboard or video. Cost is €350 ex VAT; advice within 5 working days. Otherwise: 

 

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

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

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

 

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

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E: LINKS/ SOURCES

 

 

LEGISLATION

 

European food legislation

See: https://ec.europa.eu/food/safety/labelling_nutrition_en

 

Nutrition and health claims

 

EU Regulation No. 1924/2006 Without prejudice to Directives 2000/13/EC and 84/450/EEC, the use of nutrition and health claims shall not: (a) be false, ambiguous or misleading; (b) give rise to doubt about the safety and / or the nutritional adequacy of other foods; (c) encourage or condone excess consumption of a food; (d) state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. (e) refer to changes in bodily functions which could give rise to or exploit fear in the consumer, either textually or through pictorial, graphic or symbolic representations. The preceding clauses are extracts from general requirements. 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 it is found in full from the link below:

https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32006R1924

 

Health claims

 

Commission Regulation No. 432/2012 of 16 May 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 annexe 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/TXT/?uri=celex%3A32012R0432

 

EU Register of nutrition and health claims made on foods; the EU Register is for information only, showing:

 

  • Permitted nutrition claims and their conditions of use
  • Authorised health claims, their conditions of use and applicable restrictions, if any
  • Non-authorised health claims and the reasons for their non-authorisation
  • EU legal acts for the specific health claims
  • National measures mentioned in Art. 23 (3) of Regulation EC 1924/2006 

https://ec.europa.eu/food/safety/labelling_nutrition/claims/register/public/?event=search

 

 

Food information

 

Regulation No. 1169/2011 of The European Parliament and of the Council of 25th October 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 on: 1. a) the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production; (b) by attributing to the food effects or properties which it does not possess; (c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/ or nutrients; (d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient. 2. Food information shall be accurate, clear and easy to understand for the consumer. 3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32011R1169

 

Food supplements

 

Directive 2002/46/EC of the European Parliament and of the Council of 10th June 2002 on the approximation of the laws of the Member States relating to food supplements. The Food Supplements Directive (FSD) defines these foods as concentrated sources of nutrients or other substances with a nutritional or physiological effect, alone or in combination, whose purpose is to supplement the normal diet. They are marketed in dose form, i.e., as pills, tablets, capsules, sachets, and liquids, among others (Art. 2). They are also defined as 'foodstuffs', so regulated as foods within the meaning of Article 2 Regulation 178/2002, which will apply along with Claims Regulation 1924/2006. The Directive encompasses all Food Supplements; however, only the rules applicable to the use of vitamins and minerals in their manufacture are set down in the text; the use of natural ingredients in food supplements, fibre and various plants and herbal extracts, are not covered, so will remain subject to national laws. In terms of provisions for marcoms, articles 6 and 7 respectively require that labelling, presentation and advertising must not attribute to food supplements the property of preventing, treating or curing a human disease, or refer to such properties, and must not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. 

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32002L0046

 

General food 

 

Regulation No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. Article 16 Presentation: Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32002R0178

 

Addition of vitamins and minerals

 

Regulation (EC) No. 1925/2006 of The European Parliament and of The Council of 20 December 2006 (as amended) on the addition of vitamins and minerals and of certain other substances to foods. See article 7 on labelling, presentation and advertising.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02006R1925-20190515

 

 

Regulation (EU) 609/2013 on food for specific groups (FSG)

 

Regulation 609/2013 is intended to simplify and harmonise the rules governing the compositional and information requirements of four categories of food intended for 'vulnerable' groups of people. These food groups were formerly classified as 'Foodstuffs intended for particular nutritional uses' (so-called 'Parnuts') and regulated under 'Framework' Directive 2009/39/EC, and a series of more specific Directives. The four groups and their specific Directives are: 

 

 Infant formulae and follow-on formulae: Directive 2006/141/EC 
 Processed cereal-based foods and baby foods for infants and young children: Directive 2006/125/EC
 Dietary foods for special medical purposes: Directive 1999/21/EC
 Foods intended for use in energy-restricted diets for weight reduction: Directive 96/8/EC

 

From 20 July 2016, the FSG Regulation repealed and replaced the Framework Directive, abolishing the concept of foods for particular nutritional use. Replacing the Directives above are 'delegated acts', which provide specific compositional and information requirements for each of the food categories. Until the dates of application of these delegated acts (see below), the criteria set out in the Directives above will continue to apply. The FSG Regulation also excludes some food groups, originally qualified as 'Parnuts', from its scope on the basis that they can be regulated under the EU framework applicable to normal food. The foods concerned are here.

 

Advertising

 

  • Advertising of foods for specific groups shall provide information for the appropriate use of such food, and shall not mislead, or attribute to such food the property of preventing, treating or curing a human disease, or imply such properties (Art. 9 (5) FSG Reg). Article 10 contains advertising requirements for infant formulae and follow-on formulae; see below
  • Specific advertising rules from Delegated Acts adopted by the EU Commission under Article 11(1) FSG:

 

  • For Foods for infants and young children: infant formulae and follow-on formulae: Delegated Regulation (EU) 2016/127; see Arts 6.6, 8, 9, 10 for advertising related provisions extracted here. Notably, the FSG Regulation extends the existing restriction (see Art. 13(5) Dir. 2006/141/EC below) on the use of pictures or text which may idealise the use of formulae to the labelling of follow-on formulae (previously only applicable to infant formulae), and prohibits nutrition and health claims for infant formulae. Adopted on 25 September 2015 and applicable as of 22 February 2020, or 22 Feb 2021 for protein hydrolysate based formulae. Until the application dates, the requirements established in Directive 2006/141/EC will remain in force; see later entry
  • For food for special medical purposes (FSMP): Delegated Regulation 2016/128; Article 7 prohibits the use of nutrition and health claims for FSMP. It was adopted on 25 September 2015 and applied from 22 February 2019
  • FoFoods intended for total diet replacement for weight control: Delegated Regulation 2017/1798 applies from October 2022. Regulation 609/2013 covers claims for this product group under article 9 and Regulation 1924/2006 on nutrition and health claims made on foods also applies (see s. 12 (b) and Art. 13 (1c)). Until the introduction of the Delegated Act, the rules of Directive 96/8/EC remain applicable
  • For Foods for infants and young children: processed cereal-based foods and other baby foods: Delegated Act still awaited. Until its finalisation, the rules of Directive ​2006/125/EC remain applicable (no provisions specific to advertising; the directive includes labelling requirements)

 

The Regulation 609/2013 is here:

https://eur-lex.europa.eu/eli/reg/2013/609/oj

 

 

infant formulae and follow-on formulae

See also entry under Regulation 609/2013 above

 

Commission Directive 2006/141/EC of 22 December 2006 on infant formulae and follow-on formulae.  Applicable for formulae manufactured from protein hydrolysates until 22 February 2021. Lays down the compositional and information requirements of infant formulae and follow-on formulae, adopted under Framework Directive 2009/39/EC. Article 13 (clauses abbreviated): advertising of infant formulae and follow-on formulae should provide necessary information about the appropriate use of the products so as not to discourage breast feeding. The use of the terms ‘humanised’, ‘maternalised’, ‘adapted’, or similar terms is prohibited; advertising of infant formulae must include, preceded by the words ‘Important Notice’ or their equivalent: (a) a statement concerning the superiority of breast feeding (b) a statement recommending that the product be used only on the advice of independent persons having qualifications in medicine, nutrition or pharmacy, or other professionals; advertising of infant formulae shall not include pictures of infants, nor other pictures or text which may idealise the use of the product. It may, however, have graphic representations for easy identification of the product and methods of preparation (Art. 13.5); advertising of infant formulae may include nutrition and health claims only in the cases and conditions set out in Annex IV; Infant formulae and follow-on formulae shall be advertised so that it enables consumers to make a clear distinction between the products. Under Article 14, advertising of infant formulae is restricted to publications specialising in baby care and scientific publications, is subject to the conditions laid down in Article 13, and may contain only information of a scientific and factual nature. Point-of-sale advertising, sampling or any other promotional device to induce sales of infant formula directly to the consumer at the retail level is prohibited.

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006L0141

 

 

Foods intended for energy-restricted diets for weight reduction

See also entry under Regulation 609/2013 above

 

Directive 96/8/EC of 26 February 1996 on foods intended for use in energy-restricted diets for weight reduction. Adopted under the old legislative framework of Directive 2009/39/EC, the Directive lays down compositional and labelling requirements for foods intended to be used in energy restricted diets for weight reduction. These foods are divided into two categories: total diet replacement products for weight control (between 3,360 kJ (800 kcal) and 5,040 kJ (1,200 kcal)) and meal replacement products for weight control (between 840 kJ (200 kcal) and 1,680 kJ (400 kcal)). The labelling, advertising and presentation of the products concerned shall not make any reference to the rate or amount of weight loss which may result from their use (Art. 5 (3)). This restriction is repeated in Article 12 (b) of the Nutrition and Health Claims Regulation 1924/2006/EC. Under Recitals 1- 5, Directive 2007/29/EC, which amended Directive  96/8/EC, Regulation 1924/2006/EC will apply to foods intended for use in energy-restricted diets for weight reduction.  For such foods, it is permitted to make health claims describing or referring to slimming or weight-control or a reduction in the sense of hunger or an increase in the sense of satiety or to the reduction of the available energy from the diet, provided the claims comply with the conditions laid down in Article 13 (1) of Regulation 1924/2006/EC. For meal replacement products for weight control, Directive 96/8/EC has not applied since 20 July 2016; these products are now regulated by the EU food framework applicable to 'normal' food, such as Regulation 1924/2006 on Nutrition and Health Claims; see Art. 20.3 FSG Reg. Directive 96/8/EC is here:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31996L0008

 

 

NATIONAL FOOD LEGISLATION 

 

Commodities Act Decree on Foodstuffs (Warenwetbesluit informatie levensmiddelen). Decree of 3 April 2013, containing rules concerning the provision of food information to consumers. This is the core ‘general’ Food legislation in the Netherlands, recognising and applying EU Food legislation such as Regulations 1924/2006 and 1169/2011. For the latter, Article 2/6 of the Decree prohibits contravention of, inter alia, Article 7. The Decree also refers to a ‘Food Choice logo’ and the conditions under which it may be used. This is a logo that ‘makes it easier for consumers to choose foods than those of comparable foods in a product category’. 
https://wetten.overheid.nl/BWBR0033323/2019-12-14

 

Food supplements

 

Decree of March 15th, 2003; Commodities Act on Food Supplements. The decree transposes Directive 20002/46/EC on Food Supplements. The decree, as with the Directive, is largely concerned with composition and labelling. Article 6/3 of the Decree establishes that the labelling, presentation and advertising of food supplements shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general: 

https://wetten.overheid.nl/BWBR0014814/2014-12-13

 

Foods for specific groups

 

Commodities Act Decree on special foods 31st March 2016. Essentially a vehicle to reflect Regulation 609/ 2013.

https://wetten.overheid.nl/BWBR0037883/2021-07-01

 

Commodities Act Decree on infant formulae 2007. Article 2: The preparation and marketing of infant formulae and follow-on formulae shall take place in compliance with Articles 2, 3 and 5 to 14 of Directive 2006/141/EC

wetten.overheid.nl/BWBR0021907/2014-04-25 Repealed 

 

Commodities Act Energy Restricted Diets (Warenwetregeling Energiebeperkte diëten). Article 5 prohibits any statement referencing the rate or amount of weight loss as a result of consuming these foods or drinks (in line with Art. 12b Regulation 1924/2006):

http://wetten.overheid.nl/BWBR0008584/ Repealed 

 

Botanicals

 

The Commodities Act Decree of January 2001 on herbal preparations. Provides rules on the use of botanicals in foodstuffs, including food supplements, and prohibits the use of herbal preparations containing high amounts of pyrrolizidine alkaloids or aristolochic acid. It further includes a negative list of plants/ fungi regarded as having medicinal properties. Relevant provision article 5. 

https://wetten.overheid.nl/BWBR0012174/2020-07-01

 

 

NATIONAL INDUSTRY ASSOCIATIONS AND CODES

 

 

Advertising Code Foundation (Stichting Reclame Code - SRC), which manages the Dutch Advertising Code (Nederlandse Reclame Code NRC, also known in these pages as DAC). The SRC website is here (Dutch):

https://www.reclamecode.nl/

https://www.reclamecode.nl/english/ (EN)

The latest version of the Dutch Advertising Code (in English) is here: 

https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en

https://www.reclamecode.nl/nrc/ (NL)

 

Advertising Code for Food Products 2019

 

The Code was amended in 2015 and 2019; the most significant development in 2015 was the prohibition of Food advertising aimed at children up to 12. There are three exemptions: First, advertising for food products directed at children of 7 to 12 years old which meets the nutritional criteria as set out in the table (NL / EN) with corresponding portion size list (NL / EN). Second, advertising for food products developed in cooperation with the government and/ or other approved authorities in the field of nutrition, health and/ or physical exercise and third, packaging and point-of-sale material (though children’s idols, as separately defined, are not permitted in those channels if the food product does not meet the required nutritional standards). The 2019 amends overtly extended scope to Influencer Marketing and updated some of the terms, especially with regard to the use of licensed characters. Children’s Channel rules are addressed under article 8. Health claim requirements from EU Regulations and associated guidance are a significant element of the Food Code, together with provisions for commercial communications at schools:

https://www.reclamecode.nl/nrc/rvv2019/ (NL) 

https://www.reclamecode.nl/nrc/advertising-code-for-food-products-2019/?lang=en (EN) 

 

 

Infant and FO Formulae 

 

Infant and Follow-on Formulae Advertising Code (ACIF). Since 15 March 2018, this Code has been part of the Dutch Advertising Code. It is an initiative of the Association of Dutch Food and Dietary Food Manufacturers (VNFKD Vereniging van Nederlandse Fabrikanten van Kinder- en Dieetvoedingsmiddelen http://www.vnfkd.nl/) and is derived from their Code of Conduct (NL) on the advertising of infant formulae. The NRC Code, updated July 2020, reflects the severe restrictions on advertising and labelling of infant formulae and follow-on formulae that are established by Directive 2006/141 and Regulation 609/2013:

https://www.reclamecode.nl/nrc/reclamecode-zuigelingenvoeding/ (NL)

https://www.reclamecode.nl/nrc/infant-and-follow-on-formulae-advertising-code/?lang=en (EN)

 

 

Health claims guideline 

 

Guideline on the use of health claims made on food. This is a significant document issued by the Keuringsraad (the KOAG / KAG Control Board) established by the relevant sector organisations in the health care (KAG) and pharmaceutical (KOAG) industry. Based on Regulation 1924/2006, the Guideline covers the use of health claims in the advertising of 'foodstuffs' and food supplements. It offers practical guidance but does not replace regulations. Part 1 includes a general explanation of Regulation 1924/2006 and its application, whilst part 2 includes guidance for the use of the Health Claims Database and its examples of permitted and prohibited alternative wording of authorised claims:

 

 

KOAG/KAG

 

The Control Board for the Public Promotion of Medicines and Health Products (KOAG/KAG). The Board is a Self-Regulatory approval authority, supervising compliance with rules surrounding OTC/ Self-Care medicines. The Board assesses and approves advertising for food supplements and infant formulae, and actively monitors compliance with the rules, including those ads not submitted for assessment. KOAG/KAG also applies the Advertising Code for Health Products; see below. The CAG list here (NL), which determines the interface between health claims and medical claims, distinguishes between medical claims (in the ‘no’ column) and health claims (in the ‘yes’ column). This list will apply to health products which are not consumed (such as creams/ nasal sprays); nutrients for which no decision has yet been taken by EFSA or for nutrients that have been put ‘on hold’, for example all herbal preparations/ botanicals in the form of food supplements

 

Health products

 

Code for Health Product promotion (Code Aanprijzing van Gezondheidsproducten - CAG)The principal significance of this Code for our purposes is that it regulates the advertising of Food Supplements, reflecting the Commodities Act and the health claims Regulation 1924/2006. The scope from article 1 of the Code defines Health Products as ‘Food supplements and other products covered by the Dutch Commodities Act in a pharmaceutical form and a pharmaceutical presentation and/or for which a health-related primary function is claimed.’ The code sets out the terms under which nutrition and health claims can be made (art. 5) and the importance of distinction between a health product and a medicine (art. 11). The Advertising Code Committee presumes a valid approval number issued by the Dutch Advertising Control Board of Health Product Advertising (Keuringsraad Aanprijzing Gezondheidsproducten (KAG)

https://www.reclamecode.nl/nrc/code-for-health-product-promotion-cag/?lang=en (EN)
https://www.reclamecode.nl/nrc/cag/ (NL)

 

 

DUTCH FOOD INDUSTRY

 

 

The Dutch Food Industry Federation (FNLI) Federatie Nederlandse Levensmiddelen Industrie is the most significant and active food trade association. Its viewpoints on industry issues and various aspects of food advertising can be found here:

http://www.fnli.nl/publicaties/

This is their paper ‘Top 15 Food Advertising Rules’: 

http://www.fnli.nl/wp-content/uploads/2015/01/2015-05-Top-15-reclameregels-voor-voedingsmiddelen.pdf

English translation here:

http://www.g-regs.com/downloads/NLF_DFNLITop15adrulesEN.pdf

These do not depart from or add to the authorities’ rules, and are here as a useful summary of the core rules. FNLI reference the DAC Advertising Code for Food Products as the core regulations for advertising foods, and also point to the DAC Children’s Code and online rules.

FNLI Infographic. Advertising rules for food products aimed at children: 

http://www.fnli.nl/wp-content/uploads/2015/01/FNLI-infographic-kidsmarketing.pdf (NL)

FNLI Factsheet Nutrition and Health Claims 2014: 

http://www.fnli.nl/wp-content/uploads/2015/01/2014-01-Factsheet-Voedings-en-gezondheidsclaims.pdf (NL)

FNLI and BVA guidance for advertisers working with vloggers. The FNLI and the Union of Advertisers (BVA - De Bond van Adverteerders) publish the 'Food Advertisers and Content Creators Guide' for their members. The purpose of the guide is to provide advertisers and their agencies with direction on how they can responsibly dvelop content creation, especially with regard to Influencers. The guide's core takes the form of a checklist and is based on prevailing self-regulation and legislation and round-table discussions and presentations with PepsiCo, Coca-Cola, Nestlé, Unilever and McDonald's, some of their agencies and Multi Channel Networks. Non-members can request the guide through info@bva.nl. 2019 version In Dutch here. English translation here

 

VNFKD

 

De Vereniging van Nederlandse Fabrikanten van Kinder- en Dieetvoedingsmiddelen (VNFKD), the Association of Dutch Manufacturers of Children's and Dietetic Foods (VNFKD), 'founded in 1961, represents the common interests of its members in the field of children's and dietetic foods'. For our purposes, the principal activity of the VNFKD is the publication of the Code of Conduct for the Advertising of Child Nutrition, incorporated into the DAC from March 2018, and revised February 2020 and July 2020 respectively to take into account the introduction of Delegated Regulation 2016/127. An explanatory note in English here. The VNFKD Code is linked below in Dutch, this code being reflected in the NRC database in Dutch and English versions and referenced above:

http://vnfkd.nl/wp-content/uploads/2020/06/Gedragscode-Reclame-Zuigelingenvoeding_versie-februari-2020.pdf

 

 

Confectionery

 

The Confectionery industry is largely represented by the Dutch Bakery and Sweets Association DBSA. Confectionery advertising is regulated under the Advertising Code for Food products.

http://www.vbz.nl/

 

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

 

 

GOVERNMENT ADVISORY BODIES

 

The Netherlands Nutrition Centre Foundation is an independent organisation that 'seeks to explain the relevance of scientific knowledge and translate it into easily understandable, balanced practical guidelines and advice.' Their 'pyramid' is the fulcrum of their work: 

http://www.voedingscentrum.nl/nl.asp'

 

The Health Council. Independent scientific advisory body for Government and Parliament. Article 5 of the Advertising Code for Food Products 2019 states ‘If in an advertisement for a food product is shown as part of a meal, the entire meal shown shall comply with the Guidelines for Good Nutrition.’ The link provided is:

https://www.gezondheidsraad.nl/documenten/adviezen/2015/11/04/richtlijnen-goede-voeding-2015

https://www.gezondheidsraad.nl/documenten/adviezen/2015/11/04/richtlijnen-goede-voeding-2015

https://www.gezondheidsraad.nl/

https://www.healthcouncil.nl/

 

The Health Council’s Dietary Guidelines 2015. The paper does not carry marcoms regulations. Summary here (in English):

https://www.gezondheidsraad.nl/en/task-and-procedure/areas-of-activity/healthy-nutrition/dutch-dietary-guidelines-2015

 

 

 

INTERNATIONAL CODES AND ORGANISATIONS

 

ICC

 

International Chamber of Commerce: 

http://www.iccwbo.org/

ICC Advertising and Marketing Communications Code 2018:

Framework for Responsible Food and Beverage Marketing Communications:

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

 

 

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

 

UNESDA
http://www.unesda.eu/

 

Soft Drink trade association for Europe; Unesda’s commitments include:

  • No advertising to children under 12 in print, cinema or broadcast
  • No online advertising to U12s including social media and company-owned websites
  • Responsible behaviour in schools, including no sales in primary schools

 

 

FOODDRINKEUROPE

 

From their website: “FoodDrinkEurope's mission is to facilitate the development of an environment in which all European food and drink companies, whatever their size, can meet the needs of consumers and society, while competing effectively for sustainable growth. This is their Guidance on the Provision of Food Information to Consumers: 

http://www.fooddrinkeurope.eu/uploads/publications_documents/FDE_Guidance_WEB.pdf

Here are their company members: 

http://www.fooddrinkeurope.eu/about-us/members/ - tab3

 

 

 

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SEE THE GENERAL TAB BELOW FOR THE LEGISLATION AND CODES THAT AFFECT ALL PRODUCT SECTORS, FOOD AND SOFT DRINKS INCLUDED

 

 

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Read more

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 on May 25 2018

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

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB

 

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

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

 

Four recent and significant papers in the GDPR context:

 

 

 

Commercial practices: UCPD


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

 

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

 

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

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

 

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and 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

 

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. 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

 

 

Consumer protection

 

Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Unlawful acts; Section 3A Unfair Commercial Practices inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Section 4 Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other Acts into line with Directive 2005/29/EC. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets ACM. Book 6 was further amended in May 2022 as a result of transposition of commercial practices provisions set out in Directive 2019/2161, which inter alia amended the UCPD Directive 2005/29/EC to introduce new rules related to transparency of parameters for search results and the integrity of consumer reviews. Articles 193c and 193e are amended together with additions to the 'blacklist' set out under article 193g.

NL:https://wetten.overheid.nl/BWBR0005289/2022-05-28#Boek6_Titeldeel3_Afdeling3A

English translation below does not include amends via Act of March 29, 2016 consisting of three new paras under article 194; amend shown below the first link; neither does the translation include new clauses as outlined above as a result of amends from Directive 2019/2161. The key clauses are shown in English in a separate file here.

http://www.dutchcivillaw.com/civilcodebook066.htm

http://www.g-regs.com/downloads/NLGenDCCBk6Art194AmendsEN.pdf

 

Authority

 

ACM: Autoriteit Consument & Markt; Authority for Consumers and Markets. The Consumer Authority, Competition Authority, and the Independent Post and Telecommunications Authority joined forces appropriately on April 1st 2013, creating a new regulator: the Netherlands Authority for Consumers and Markets. This merger has been authorised in the Establishment Act of the Netherlands Authority for Consumers and Markets (NL). ACM is an independent regulator that champions the rights of consumers and businesses, is charged with competition oversight, sector-specific regulation, and enforcement of consumer protection laws. Importantly in this context, the ACM publish Guidelines Sustainability Claims (EN) which provides their 5 'rules of thumb' related to sustainability claims, included within which document is the legal context and relevant cases. This is a significant addition to the regulatory line-up for environmental claims. The ACM announcement of ‘Stricter Rules for Online Sellers’ (NL) May 27, 2022 includes reference to the new search and review rules from Directive 2019/2161 as well as plans for promotional pricing rules (see below).
https://www.acm.nl/en

 

Pricing

 

Product Pricing Decree.(Besluit prijsaanduiding producten). Decree of 21 May 2003 containing rules relating to the price indication of products to replace the Decree on the price indication of goods 1980 in connection with the adaptation to the system and terminology of the EC Directive on the stating of the price of products offered to consumers. Transposes the Product Pricing Directive (above under EU legislation):

https://wetten.overheid.nl/BWBR0015104/2021-03-05

Unofficial non-binding translation:

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

 

Prices Act (Prijzenwet) Act of March 24, 1961, laying down rules on the prices of goods and services. This law provides intervention powers for the minister of Finance in the form of price-capping during extreme economic circumstances. It is also the vehicle, under article 2b, for further regulation of price reduction announcements, which is drawn from new promotional pricing provisions from Directive 2019/2161. Explanatory note March 2022 from Maverick Avocaten/ Lexology here.

https://wetten.overheid.nl/BWBR0002353/2022-05-28

 

Channel legislation

 

Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping, as well as online 'audiovisual media services', the implications of which are in debate. Chapter 3a (NL) brings video-sharing platforms into scope: article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)).

https://wetten.overheid.nl/BWBR0025028/2022-03-02#Hoofdstuk1 (NL)

 

Media Decree (Mediaregeling) 2008 NL. December 18, 2008, a ministerial regulation implementing rules of the Media Act 2008. Chapter II, Title 2.2.2 Advertising and Teleshopping Messages, Articles 10 and 11. The Media Regulation 2008 contains implementing rules related to articles in the Media Act 2008.

 

 

Regulatory authority

 

The Dutch Media Authority: Commissariaat voor de Media (CvdM). This body upholds the rules formulated in the Media Act and Media Decree. The CvdM is an independent administrative body responsible for audiovisual content and distribution matters. It grants licences to broadcasters, registers VOD services, and systematically monitors compliance with the rules on quotas, advertising and protection of minors. The CvdM can also develop policy rules for public and commercial media, and publishes brochures in relation to those (see below): https://www.cvdm.nl/english/   

 

  1. Regulation of Media Authority of 10 July 2012 on policy regarding the permissibility, recognition and delineation of advertising and teleshopping messages in the media offer commercial media institutions EN / NL Leg. website NL 
  2. Regulation of the Media Authority of 10 July 2012 concerning policy on commercial sponsorship, media institutions EN / NL Leg. website NL
  3. Regulation of the Media Authority of 18 November 2014 containing rules concerning product placement of commercial media institutions 2014 NL / EN Leg. website NL

 

The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here

https://www.cvdm.nl/uploader/meer-weten

 

 

Influencers/ 'video uploaders'

 

CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022.

 

Public broadcasting

 

  1. Regulation of the Media Authority of 17 May 2016 containing policy rules regarding sponsorship of public media institutions and rules regarding title/ heading sponsorship 2018 NL 
  2. Regulation of Media Authority concerning policies relating to the eligibility, recognition and delineation of advertising and teleshopping messages in the media provision of public media institutions 2019 NL 

 

CvdM re linked advertising 

 

Public Media Broadcasting: ‘Aanhakende’ (Tie-in/ Linked) Advertising Brochure Dutch Media Authority Version 1.1 June 2011 NL. Tie-in / linked advertising is when there is a deliberate reference to a commercial entity close to editorial that covers the same subject. The brochure provides examples of such advertising, which violates the Media Act Article 2.89, which prohibits avoidable expressions (advertising/ teleshopping excluded) that clearly lead to the purchase of products or services being promoted.

 

E-commerce

 

Book 3 Dutch Civil Code, Articles 15d and 15e. The act of 13th May 2004 implemented the E-commerce Directive 2000/31/EC; Article 1C of Act of 13/05/2004 inserted Article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly) NL:

https://wetten.overheid.nl/BWBR0005291/2021-07-01

English version Book 3:

http://www.dutchcivillaw.com/civilcodebook033.htm

 

E- privacy

 

Telecommunications Act (Telecommunicatiewet). Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7 (2/3). Article 11.7a implements article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies (Art. 11.7a (5) TA). The amendment in May 2018 took account of the arrival of the GDPR, recognised in this legislation, and there was a further amendment in July 2021 that prohibits unsolicited calls to consumers and abolishes the Do Not Call Register.

https://wetten.overheid.nl/BWBR0009950/2021-07-01 (NL)

http://www.g-regs.com/downloads/NLTelecomsActJuly2021versionNoteEN.pdf (EN key clauses)

 

 

Data protection

 

National GDPR implementation and authority

 

Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming 'UAVG'). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC:

http://wetten.overheid.nl/BWBR0040940/2018-05-25

 

The Data Protection Authority (Autoriteit Persoonsgegevens - AP)

AP website (EN):

https://autoriteitpersoonsgegevens.nl/en

Guidance on advertising and direct marketing:
https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/internet-telefoon-tv-en-post/direct-marketing (NL)

 

 

 

SELF-REGULATION

 

 

Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.

 

 

Industry codes

 

The Dutch Advertising Code (Nederlandse Reclame Code - NRC) 

Section A: General EN; Blacklist in Annexes 1 and 2 EN

May 2022 clauses resulting from the transposition of Directive 2019/2161 in English here 

Section B: Special Advertising Codes (EN). A selection of these is below. See the linked ‘Section B’ for the full complement

Section C: General Recommendations:
https://www.reclamecode.nl/nrc_taxonomy/algemene-aanbevelingen/ (NL)
https://www.reclamecode.nl/nrc/general-recomendations/?lang=en (EN)

 

Social Media and Influencer Advertising Code 2022. This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved. The Code was amended in July 2022 in light of new rules from the media authority CvDM (see above). English translation from SRC is not available at the time of writing (July 2022); the translation below is unofficial and non-binding.

https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/ (NL)

http://www.g-regs.com/downloads/NLGenSMInfluencerCode2022EN.pdf (EN)

Explanation:

https://www.reclamecode.nl/social-toelichting/ (NL)

Advice tool:

https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)

Guidance document:

https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf (NL)

FAQs:

https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)

 

 

Full Dutch Advertising Code in English:

https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en

And in Dutch:

https://www.reclamecode.nl/nrc/

 

 

Social media

 

Social Code: YouTube. The Code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority (Commissariaat voor de Media CvdM) following an investigation by CvdM, which concluded that 75% of popular vlogs on YouTube contained surreptitious advertising. The code was also discussed with other parties, including the Advertising Code Foundation (SRC - Stichting Reclame Code), Multi-Channel Networks (MCNs) and interest groups/ agencies.  Social Code: YouTube NL / EN. CvdM commentary:

https://www.cvdm.nl/nieuws/youtubers-ontwikkelen-hulp-commissariaat-media-code-om-transparanter-reclame/#

 

 

DDMA

 

Data Driven Marketing Association (DDMA). The DDMA is the trade organisation for data driven marketing & advertising in the Netherlands. DDMA represents the interests of users, service providers and media/ carriers of data driven marketing, both in the Netherlands and at a European level. The DDMA has 300 member organisations. http://www.ddma.nl/

Full list of DDMA Codes can be found here:

https://ddma.nl/juridisch/

 

DDMA codes are incorporated within the Dutch Advertising Code Section B

 

Opt-out registers 

 

Telemarketing: Dutch regulator ACM and Stichting Infofilter run the don’t-call-me register, from 1/10/2009. Article 11.7 (6-12) of the Telecommunications Act contains provisions related to opt-out registers. The Telemarketing Code within the Dutch Advertising Code also refers to the opt-out register and places the onus on the advertiser to inform the consumer in every conversation of the existence of the Do-not-call-registry. Companies cannot register i.e. no ‘legal persons’ https://www.bel-me-niet.nl/. The ACM enforces legislation on telemarketing.

 

Direct Mail:  Since 1st October 2009, Stichting Postfilter has been responsible for The National Post Register, which allows consumers to opt out of receiving unsolicited advertising mail. The Stichting Reclame Code oversees the enforcement of the rules. The Advertising Code for the Use of The Postal Filter also contains relevant provisions:

http://www.g-regs.com/downloads/DACPostalFilterCode2015.pdf

https://www.postfilter.nl/

 

 

 

INTERNATIONAL 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

 
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

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

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

 

 

EASA

 

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

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

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

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

And on Digital Marketing Communications here:

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

And on Influencer Marketing here:

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

 

 

IAB NL/ Europe

 

From the national website (GT): ‘IAB is the trade association for digital advertising and marketing innovation. IAB accelerates digital growth and makes a structural contribution to the qualitative development of the market.’

https://www.iab.nl/

How to Comply with EU Rules Applicable to Online Native Advertising December 2016:

https://www.iabeurope.eu/wp-content/uploads/2016/12/IAB-Europe-Online-Native-Advertising-Guidance.pdf

IAB Transparency and Consent Framework:

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

 

IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)

 

WFA

 

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

https://www.wfanet.org/

This is the ‘GDPR Guide for Marketers’:

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

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

ESA

 

The European Sponsorship Association can be found at:

www.sponsorship.org

 

 

FEDMA

 

Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:

http://www.fedma.org/index.php?id=30

 

 

 

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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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