Food and Soft Drinks

 

Uploaded November 2018.

See individual countries for updates.

Poland

A. Overview

Sector

SECTION A

 

Recent updates

RR review March 2020

All RR links replaced May 2020

Delegated regs amends Sept 2020

EU links refreshed March 2021

EU Pledge enhanced July 2021

 

 

SCOPE AND CONTEXT

 

‘Food’ is not defined in the Self-Regulatory Codes in Poland; the definition from EU Regulation 178/2002 is ‘any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans. ‘Food’ includes Soft Drinks, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment.’ The Self-Regulatory Organisation (SRO) Rada Reklamy (EN) defines advertising as: ‘the message containing in particular information or a statement, especially made for a fee or remunerated otherwise, accompanying anybody’s activity which aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect, desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.’ More in the Code linked below. Poland is a member of the EU, making it subject to European Food Regulations, of which there are plenty.

 

 

SELF-REGULATION: FOOD ADVERTISING AND CHILDREN

 

The Self-Regulatory rules in Poland are in the form of the Code of Ethics in Advertising (EN) and the attendant Standards of Food Advertising Aimed at Children Under 12 in Appendix 2. These rules prohibit food advertising to children unless  products meet specified nutritional criteria defined in Appendix 2a of the Code. The Polish Food Industry Federation PFPZ worked with Rada Reklamy in developing this Code, which essentially replicates the EU Pledge (see below) and its nutritional specifications. Details in the following Content Section B below.

 

 

ICC

 

The ICC (the International Chamber of Commerce, whose Advertising and Marketing Communications Code underpins much of Self-Regulation worldwide), publishes a Framework for Responsible Food and Beverage Marketing Communications. This is a sound ‘first base’ framework for international campaigns in this sector.

 

 

THE EU/ POLISH 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

 

 

EU REGULATIONS

 

As an EU member state, Poland is subject to the regulatory forces from Brussels, significant in Food and Drink and in some cases (Regulations, versus Directives) directly applicable:

 

  • Regulation 1924/2006 on nutrition and health claims made on foods. The rules apply to nutrition claims (such as ‘low fat’, ‘high fibre’) and to health claims. The appendix carries a list of approved nutrition claims and conditions applying to them
  • Regulation 1169/2011 on the provision of food information to consumers; this is largely about labelling, but includes a number of broad marcoms provisions relating to misleadingness; detail in the Content Section below
  • 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 EU Register is a single source of all permitted Health and Nutrition Claims

 

 

Foods for Specific Groups

 

Regulation 609/2013 on Foods for Specific Groups (FSG Reg), which applied uniformly across the EU from 20 July 2016, 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. This 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 formula and follow-on formula manufactured from protein hydrolysates, to which it applied from 22 February 2021). This whole complex territory is expressed as simply as we can manage here. Key provisions from all of the above Regulations and Directives are set out in the Content Section B below.

 

 

Food Supplements

 

Directive 2002/46/EC on Food Supplements prohibits in labelling, presentation and advertising the property of preventing, treating or curing a human disease, or referring to such properties (Art. 6/2), 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). This element of the Directive is transposed by Article 27/5 of the Polish Act on Food Safety and Nutrition (PO).

 

 

CHANNEL RULES FOR FOOD AND SOFT DRINKS

 

The Broadcasting Act (EN) of 1992, as amended, requires in article 16b (para. 3a) that ‘Children’s programmes shall not be accompanied by commercial communications for foods or soft drinks containing ingredients excessive intakes of which in the everyday diet are not recommended’. That rule applies to Broadcast media (TV, Radio, VOD) only – compliance of which is monitored by the National Broadcasting Council (KRRiTKrajowa Rada Radiofonii i Telewizji. Eight of the largest broadcasters of TV programmes in Poland have signed a voluntary agreement (EN / PO) in which they have pledged not to accompany children’s programmes with commercials for so-called "unhealthy foods". The aim of the agreement is to ensure the protection of minors, under article 16b. paragraphs 3a and 3b of the Broadcasting Act. In addition, Appendix 2 of the Code of Ethics in Advertising (EN) - which applies to all media - prohibits advertising to children under 12 unless the products in question meet the nutritional criteria shown in Appendix 2a, which also sets out some of the 'unhealthy foods' in question. If that’s not enough, the EU Pledge referenced earlier requires the avoidance of child audiences (U12) unless Foods meet the Pledge nutrition criteria. See Channel Section C below for detailed rules by medium.

 

 

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 RR Code of Ethics in Advertising (EN), also linked above. Principal legislation is the Unfair Commercial Practices Act UCPA EN, which implements the UCP Directive 2005/29/EC and applies to B2C practices. Full information is below, under the General tab.

 

 

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General

SECTION A OVERVIEW

 

Updates

RR review March 2020

New RR links April 2020

AVMSD amends May 2020

EDPB updates Aug 2020

Directive 2019/2161 Section E Jan 2021

Directive 2018/1808 transposition

Broadcasting Act amends August 2021

Google's environmental claims policy Oct 2021

UOKIK investigation added November 2021

 

 

INFLUENCER IDENTIFICATION INVESTIGATION

 

UOKIK, the Office of Competition and Consumer Protection, announced October 2021 an investigation into the activities of Influencers on social media platforms. Their research 'shows that a lot of commercial content on influencer profiles on Instagram, YouTube, Facebook or other social media sites is not labelled as advertising at all. Other is marked insufficiently, e.g. only by the hashtag #ad, which may be incomprehensible to Polish internet users.' New guidelines are threatened and fines for those transgressing. ‘We want to introduce order to the market of sponsored content in social media.’

 

 

SELF-REGULATION

 

The Polish Self-Regulatory Organisation Rada Reklamy (RR) Code of Ethics in Advertising (PO; RR EN) is based on the ICC Advertising and Marketing Communications Code (ICC Code) and covers all advertising except for social (non-profit) and political campaigns. The Polish Direct Marketing Association SMB also administer a Code of Ethics (PO) and manage the Robinson List. The Code of Good Practice in Mobile Advertising PO / EN, assembled by mobile operators in conjunction with IAB Poland, sets out rules for SMS/MMS/wap-push, as well as e.g. banner ads on mobile pages. 

 

 

LEGISLATION ON MARCOMS CONTENT 

 

The Unfair Commercial Practices Act UCPA POEN implements the UCP Directive 2005/29/EC and applies only to B2C practices. The Unfair Competition Act UCA PO / EN (note on translation here) protects businesses or ‘entrepreneurs’ from acts of unfair competition (Art. 3.1), implementing the Misleading and Comparative Advertising Directive MACAD 2006/114/EC. In Broadcast, the core Broadcasting Act is shown below under Channel legislation. This act includes some Content as well as Placement rules, the former of which are spelt out in our following Section B and also found here. Article 16b reflects the Content rules established in the AVMS Directive related to the protection of minors, discrimination, and e.g. the 'encouragement of behaviour prejudicial to health, safety or environmental protection.'

 

 

Channel legislation

 

Electronic communications and privacy

 

The Telecommunications Act 2004 PO / EN implements the ‘Cookie Directive’ 2009/136/EC; the new Personal Data Protection Act of May 10th 2018 PO / EN implements/ recognises the GDPR and its accompanying Directive 2016/680. The Data Protection Authority is UODO;  their  Ten Tips on GDPR are here (EN). The Law on Providing Services by Electronic Means 2002 (LPSEM) PO / EN implements the E-commerce Directive 2000/31/EC and elements of the E-Privacy Directive 2002/58/EC. These three national Acts, with the GDPR, form the core legislation in the processing of personal data and the protection of privacy. The rules impose information obligations on data controllers, confer the right to opt out of direct marketing, and regulate unsolicited marcoms via different media channels: the opt-in rule generally applies, with the exception of direct postal mail. The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN). Rules by channel in Section C.

 

Broadcasting/ AV

 

The Broadcasting Act of 29 December 1992 PO / EN (GRS EN), incorporating rules from the AVMS Directive 2010/13/EU, regulates advertising, teleshopping, PP, and sponsorship on TV, Radio, and VOD. The Amend to the Broadcasting Act of 11th August 2021 (PO) transposing Directive 2018/1808 comes into force primarily on November 1st 2021. The most signifcant aspects of the amend which, broadly, extends the scope of the AVMSD online, are requirements for video-sharing platforms, set out here by Hogan Lovells/ Lexology. This Liability Of Video-Sharing Platform Providers Under The New Rules November 2021 from GALA/ Mondaq lifts the bonnet on this legislation. The regulatory authority is The National Broadcasting Council KKRiT

 

 

SPECIFIC CLAIM AREAS

Environmental claims

 

 

The RR Code of Ethics in Advertising (EN) includes Chapter V Advertisements Containing Ecological Information, closely aligned with Chapter D Environmental Claims from the ICC’s Advertising and Marketing Communications Code. Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021). Claims may be assessed against the Unfair Commercial Practices Act UCPA (referenced above); refer to EU Commission Guidance on application of the UCPD Section 5.1 on environmental claims; also helpful in this context  is the  EU Compliance Criteria on Environmental Claims (2016) from MDEC ENThe WFA launched their Planet Pledge in April 2021. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change; more hereSee also Rada Reklamy's Green Project.

 

 

Pricing

 

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

 

There are some significant new legal requirements on the transposition due November 2021 of Directive 2019/2161/EU, known as the Omnibus Directive, which makes a number of amends to Directives 98/6/EC, 2005/29/EC and 2011/83/EU. This legislation, whose highlights for our purposes are the ‘promotional pricing’ rules and the integrity of consumer reviews, does not appear directly to affect marcoms, though commercial communication related to those aspects would presumably be implicated. Article 2 of the Directive, introducing article 6a into Directive 98/6/EC (the Product Pricing Directive) refers, for example, to price reduction ‘announcements’. This very helpful September 2021 article from GALA/ Mondaq sets out the implications for Polish law. 

 

The CJEU judgement in the 2016 Citroën/ZLW case ruled that the final price including VAT and all other price components must be stated, applying Product Price Directive 98/6/EC, implemented by national Law 9th May 2014 PO, which confirms that the selling price should include VAT and Excise Tax. The Unfair Commercial Practices Act (UCPA) includes a number of references to pricing in B2C communications, e.g. in relation to ‘bait and switch' advertising; see Arts 7.5 and 7.6 UCPA. The information obligations under Article 6.4 UCPA when advertising constitutes an ‘invitation to purchase’ are also relevant. Rada Reklamy’s Code of Ethics in Advertising also contains provisions relating to price: Articles 45 Direct Marketing; 51 Sales promotions; 11.4 Comparative advertising; 10.1.b Misleading advertising. Details in the following Section B.

 

 

Children

 

See our home page for the sector in full, and point 1.3 in the following Content Section B

 

In September 2019 the Children’s Protection Charter was established under the auspices of Rada Reklamy, the Self-Regulatory Organisation. The charter, applicable to signatories, includes rules on e.g. children in the making of commercials. It's set out under Appendix 3 of the Code of Ethics in Advertising (EN), which also carries rules for marcoms to children and young people under Chapter IV.

 

 

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International

SECTION A OVERVIEW

 

Updates
Uploaded Oct 2018
AVMS amends March 2020
EDPB amends Oct 2020
WFA Planet Pledge April 2021
Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021

WHO Alcohol consultation October 2021

CJEU judgement November 2021

 
 

SOME INTERNATIONAL NEWS

 

 

 

Alcohol. October 2021

 

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

 

Cookies September 27, 2021

 

EDPB establishes cookie banner taskforce

 

X-border complaints. September 2021

 

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

 
EC developments  

 

The Digital Services Act package

EASA's September 2021 update on the DSA here 

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

And on environmental claims and the new consumer agenda here

 EU pages on the Farm to Fork strategy here

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

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

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

 

Not from the EC

 

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

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

WFA launched 'Planet Pledge' in April 2021, 'a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN sustainable development goals.'

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

 

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

 
1.4 Sector and channel rules 

 

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

 

 
2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

 

 

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

 

 

 

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B. Content Rules

Sector

SECTION B

 

 

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

 

 

1. POLISH SELF-REGULATION IN FOOD AND SOFT DRINKS


   1.1. Food/ Children
   1.2. The EU/ Polish Pledge
   1.3. European Self-Regulation (ICC)


2. PRINCIPAL EUROPEAN LEGISLATION FOR ALL FOOD AND SOFT DRINKS


   2.1. Food Information to Consumers
   2.2. Nutrition and Health Claims
   2.3. List of Health Claims


3. NATIONAL AND EUROPEAN LEGISLATION FOR CERTAIN FOOD TYPES


   3.1. Food Supplements
   3.2. Infant and Follow-On Formula

   3.3. Foods for use in energy-restricted Diets  

4. ADVERTISING TO CHILDREN AND YOUNG PEOPLE


   4.1. General rules
   4.2. Broadcasting rules

 

 

 

1.1 Children and Food

 

Below is taken verbatim from Appendix 2 to the Code of Ethics in Advertising (EN), Standards of Food Advertising Aimed at Children Under 12

 

  • Advertisements of food products may not be directly aimed at children under 12 (art. 1)
  • Restraints in advertising of food products do not apply to products that meet specified nutritional criteria, based on accepted scientific bases and/ or national and international dietary recommendations, particularly those described in Appendix 2a to the Code of Ethics in Advertising ‘Nutritional criteria for self-regulation on advertising food to children under the age of 12' (art.2)
  • Every advertisement is considered aimed at children if in planned targeted media audience share of children under 12 is minimum 35 percent (art. 3)
  • Advertising of food products may not be conducted in any form in elementary schools (art. 4)
  • Advertising of food products may not (art. 5):

 

  1. Encourage or condone unhealthy dietary habits or unhealthy lifestyle i.e. immoderate, excessive or forced consumption or promote sedentary lifestyle
  2. Discredit healthy dietary habits, diversified and balanced diet or physical activity
  3. Contain direct call to purchase advertised products by using phrases such as “buy now”, “must have it”
  4. Contain direct appeal to children to persuade parents to buy advertised products
  5. Mislead regarding characteristic of advertised product and benefits from using the product
  6. Suggest that advertised product has special nutritional characteristic if other similar products have similar characteristic
  7. Arouse fear by portraying acts of violence or exaggerated aggressive elements
  8. Encourage to use product in inappropriate or dangerous way

 

  • Advertising within the meaning of Code is not using name, logo or product in educational campaigns, aimed at propagation of healthy dietary habits and physical activity amongst children and young people. Such campaigns have to be in line with national and / or international dietary recommendations regarding diet and physical activity. If such campaigns are being carried out in schools, they have to be agreed with school authorities (art. 6)

 

From Appendix 2a Nutritional Criteria:
The following categories of food will not be advertised to children under 12:

 

  1. Sugar and sugar-based products, comprising:

 

  • Chocolate and chocolate products
  • Jam or marmalade
  • Non-chocolate candy and other sugar products

 

  1. Non-alcoholic beverages
  2. Potato chips and potato-based snacks, including products made from dough

 

 

1.2. The EU/ Polish Pledge

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies to change food and soft drink advertising to children under the age of thirteen in the EU and consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here

 

 

 

1.3 ICC: European Self-Regulation

 

For a European self-regulatory position, see the iCC’s Framework for Responsible Food and Beverage Marketing Communications, as linked above for the EU Pledge

 

 

 

2.1 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

 

 

2.2 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. All the claims are available from the EU Register on Nutrition and Health Claims. 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 

 

 

General principles for all claims
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, relevant to marcoms

 

  • 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, 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 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) 

 

 

Reduction of disease risk claims and claims referring to 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.

 

 

2.3. List of health claims

 

Regulation 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. 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

 

 

 

 

3.1 Food Supplements

 

  • The relevant European Directive is 2002/46/EC on Food Supplements, defined as ‘foodstuffs the purpose of which is to supplement the normal diet and which are concentrated sources of nutrients or other substances with a nutritional or physiological effect, alone or in combination, marketed in dose form, namely forms such as capsules, pastilles, tablets, pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of liquids and powders designed to be taken in measured small unit quantities’.
  • The Directive prohibits claims related to 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.' The second of those provisions is found in Article 27 of the Polish Act on Food Safety and Nutrition (PO); medical claims are anyway probited for all foods
  • Consult the EU Register to see whether a health claim is permitted; the Register shows authorised health claims (for the nutrient or other substance, or food or category of food), and their conditions of use and applicable restrictions, if any

 

 

3.2. Infant formulae and follow-on formulae

 

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' (Arts. 9 (5) and 10)
  • Commission Delegated Regulation 2016/127 supplementing Regulation 609/2013; arts. 10 and 11
  • Directive 2006/141/EC applied until 21 February 2021 to infant formula and follow-on formula manufactured from protein hydrolysates
  • National implementation: the Act on Food Safety and Nutrition 2006 (PO); article 25 

 

 

Article 10 FSG Regulation 609/2013

Additional requirements for infant formula and follow-on formula

 

  1. The labelling, presentation and advertising of infant formula and follow-on formula shall be designed so as not to discourage breast-feeding
  2. The labelling, presentation and advertising of infant formula, and the labelling of follow-on formula 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 formula and follow-on formula and for illustrating methods of preparation shall be permitted

 

 

Article 10 Delegated Regulation 2016/127

Requirements for promotional and commercial practices for infant formula

 

  1. Advertising of infant formula 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 formula 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 formula 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 formula 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 formula and only for as long as required by such infant

 

 

National law 

 

  • The national Act on Food Safety and Nutrition 2006 (PO) implements the above in its article 25 and that infant formulae can be provided free of charge or at a reduced price to institutions whose statutory objectives include helping children or the family; it may be used or provided for use only in the feeding of these infants, which must be fed artificially, for a period of legitimate nutritional needs of these infants ​

 

 

3.3. 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)
  • Commission Directive 96/8/EC on foods intended for use in energy-restricted diets for weight reduction, amended by Directive 2007/29/EC art. 5.3; remains applicable for total diet replacement products until finalisation of the Delegated Act foreseen under Art. 11(1) FSG
  • Per above, 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 
  • Nationally, the Act on Food Safety and Nutrition (PO) Chapter 6

 

 

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

 

 

 

4.1 General rules


From the Self-Regulatory Code of Ethics in Advertising; not sector-specific - we have set out the Children-related food rules earlier. These rules will apply, for example, to advertising for foods that meet the required nutritional criteria (all other food advertising to children under 12 is prohibited). Clauses are taken from Chapter IV of the Code of Ethics in Advertising: Advertising addressed to children and young people. Note: clauses are verbatim; where the English might be ‘helped’ we have shown a bracketed alternative translation with the agreement of RR

 

 

  • The value of the products offered in advertisements addressed to children or young people cannot be indicated in the manner which will make children or young people incorrectly perceive their actual value, e.g. by using in an inappropriate context such expressions and words as “only” (tylko), “little” (niewiele). The advertisements cannot also suggest that the product is available for any household budget (Art. 22)
  • Advertisement addressed to children or young people cannot contain any statements which may constitute a health or safety hazard (Art. 23)
  • According to Article 8 (Advertisements should not abuse the trust of the recipient or exploit his lack of experience or knowledge) and Article 10, advertisements addressed to children or young people cannot exploit their natural credulity and lack of experience (Art. 24)
  • Advertisement addressed to children or young people must take into account the degree of their development and cannot be a hazard to their further physical, mental or moral development (Art. 25)
  • Advertisement addressed to children or young people cannot suggest that the possession or use of the product will ensure to them social or psychological advantage over others and the failure to possess such product will have the opposite effect (Art. 26)
  • Advertisement addressed to children or young people cannot undermine the authority of parents or of other persons with legal custody, question their responsibility, opinion, tastes, or favourites (preferences). The above limitation (restriction) shall not be applicable to the cases of counteracting social pathologies (when combating social problems)  (Art. 27)

 

 

Article 28

 

1. In the case of advertisements addressed to children special care should be taken to ensure that it does not mislead the recipients as to the true size, value, nature, durability, appearance, and technical potential of the advertised item, e.g.:

 

  1. If accessories (e.g. batteries) are necessary for using the product or an additional material (e.g. paint) is necessary for achieving the result shown or described, this should be made clear
  2. If the advertisement is applicable to separately sold products, this should be unequivocally stated
  3. Advertisements cannot diminish the physical skills (skills and abilities) required to use the product; where the results and the method of use of the advertised item are presented without any clear reservation (restriction), then the presented result should be attainable for an average child at the age range for which the product is intended

 

 

Articles 29-32

 

  • Advertisements cannot contain (i) orders to persuade adult persons to purchase the advertised items or, (ii) the instruction of how to persuade adult persons to purchase the advertised items, directly addressed to children or young people (Art. 29) 
  • If necessary due to security reasons, both advertisements as well as products addressed to children or young people must contain express information for which age group the product is intended (Art. 30)
  • Sales promotion, direct marketing, or sponsored events addressed to children or young people must be consistent with the respective principles stipulated in the Code, and in particular with the provisions of this Chapter (Art. 31)
  • Articles 22-31 apply accordingly also to advertisements, which are not directly targeted at children, but children are their recipients due to the form, place and method of presentation. This applies particularly to advertisements broadcast close to children’s programming, advertisements shown in cinemas before children’s movies and to outdoor advertising (Art. 32)

 

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4.2. Rules from The Broadcasting Act 1992 (applicable to TV and Radio)

Article 16b:

 

  • 2. It shall be prohibited to broadcast commercial communications that:
  1. Directly exhort minors to purchase products or services
  2. Encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised
  3. Exploit the trust minors place in parents, teachers or other persons
  4. Unreasonably show minors in dangerous situations
  5. Are of a subliminal nature (and article 16c prohibits 'surreptitious' commercial communications)
  • 3a. Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients excessive intakes of which in the everyday diet are not recommended

 

 

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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. General provisions

1.2. Basic principles of advertising

1.3. Advertising addressed to children and young people

1.4. Advertising with ecological information

1.5. Direct marketing

 

  1. LEGISLATION

 

2.1. Unfair Commercial Practices Act - UCPA

2.1.1. Misleading actions

2.1.2. Misleading omissions

2.2. Unfair Competition Act

2.3. Broadcasting Act

 

  1. SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

3.1.1. Self-Regulation (national)

3.1.2. International Self-Regulation

3.1.3. Horizontal legislation

3.1.4. EU guidance

3.1.5. Comparative claims

3.1.6. ISO Environmental labels and declarations
 

3.2. Pricing

3.2.1. Self-Regulation (RR Code of Ethics)

3.2.2. Applicable legislation

3.2.3. Key points from Citroën/ ZLW case

 

 

I. SELF-REGULATION

 

Rada Reklamy Code of Ethics in Advertising PO / EN 

 

1.1.  General provisions 

 

Articles 1 and 2 Scope and article 3 Definitions  (link)

 

1.2. Basic principles of advertising 

 

  1. Discrimination. Advertising must not contain any form of discrimination, in particular that based upon race, religion, sex or national origin
  2. Violence. Advertising should not contain any elements encouraging to acts of violence
  3. Anxiety. Without justifiable reasons based, for example, on social grounds and prophylaxis (treatment of disease), advertisements should not motivate for purchase of a product by taking advantage of misfortunes or by causing anxiety or fear
  4. Historical objects. Advertising should not be operated in such a way as to endanger artistic or historical objects
  5. Exploitation. Advertising cannot abuse the trust of the recipient or exploit his lack of experience or knowledge
  6. Identification. Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that particular message is an advertisement
 

 10. Misleadingness

 
  1. Advertisements should not mislead their recipients, in particular with regard to:
 
  1. important characteristics such as nature, composition, method and date of manufacture, range of use, quantity, origin (also geographical) of the advertised item
  2. value of the product and the total price actually to be paid for the product as well as other payment conditions like instalment sales, leasing, credit sales, bargain sales
  3. terms of delivery, exchange, return, repair and maintenance
  4. guarantee terms
  5. intellectual and industrial property rights such in particular patents, names, trademarks, and industrial designs and models
  6. official permits or approvals, awards, prizes, medals, and diplomas
  7. the extent of the entrepreneur’s benefits for charitable causes
 
  1. Data as well as scientific terms, quotations from technical or scientific publications not considered data within the meaning of the Code, used in advertisements, must indicate their source and cannot be used in a misleading manner. The data must be presented correctly from the methodological point of view. Presentation of statistical data must in particular take into account the rules of statistical inference, including the phenomenon of statistical error
 
 

11. Comparative advertising

 
  1. Comparative advertisements are acceptable if they serve the purpose of intensifying competition and public information. Nevertheless, they should not mislead the advertising recipients
  2. All references in comparative advertisements must be presented methodologically correctly, including but not limited to information on products, commercial offers, and data
  3. Comparative advertisements should be used to compare goods satisfying the same demands or manufactured for the same purpose
  4. Comparative advertisements may compare one or more characteristics if such characteristics are verifiable. Price may be one of such characteristics
  5. Comparative advertisements should not be likely to mislead the consumers as to the goods offered, trademarks, trade names or other distinguishing elements
  6. Advertisements cannot in an unjustified manner inconsistent with the provisions of the Code, and in particular with the content of Article 11 paragraphs 1, 2 and 5 hereof use the full or abbreviated corporate name, name, graphic symbol name or other individualising marks legally belonging to another entity, and use the good name of such an entity. Comparative advertisements, by means of expression used in them, can not discredit or humiliate the competitor and competitor-related circumstances, by presenting him or his product in an unfavourable way
 
 

 12. Consent to portrayal

 
  1. Advertisements should not portray or refer to any natural person, including a person generally known in connection, for example, with performing by such person public functions, without obtaining such person’s prior consent, and should not describe or refer to a property of a specific person without such person’s consent, in a way likely to convey the impression of the personal endorsement by such person
  2. The provisions of paragraph 1 above shall apply per analogy to entities other than natural persons
 
 
  1.  Warranties. If the advertisement contains information on a guarantee in extent and within the meaning contained in legally binding terms of sale, it must be available at a point of sale or enclosed with the product and will be transferred to the beneficiary
  2. Credit. Presentation of instalment sale, the credit terms or other forms of consumers’ credit must be so framed as not to raise doubts concerning the actual final price of the advertised item, including the amount of cash payment, the amount of advance payment, the interest rate, the credit instalment repayment dates, and other conditions related to that kind of sale
  3. Loans. Advertisements informing on money loan offers should not contain any statements likely to mislead the recipients, in particular as to their kind, indispensable security, repayment dates, actual interest costs, and any other possible fees
  4. Investments. Advertisements referring to savings or investing methods cannot contain any statements likely to mislead the recipients in particular with respect to the estimated future income, factors affecting the level of such income, and the possible tax reductions
  5. Free. Advertisements which may make the recipient believe it is not necessary to pay for the product if such product is not actually available free of charge cannot be used
  6. Franchises. 1. Advertisements of franchisers searching for franchisees should not, directly or by implication, mislead as to the scope of help provided, potential payment, work contribution and essential financial assets. The franchiser’s full name and permanent address should be stated
    2. The provisions of paragraph 1 above shall be applicable to advertisements aimed at entering into legal or factual relations with the nature similar in effects to franchise
  7. Risk of harm. Advertisements of products which used in a proper way may cause real danger should clearly point out the potential danger related to their use
  8. Documentation. The data, recommendations, commercial offers, information, or clarifications concerning the product should be appropriately documented. The documents should be made available on the beneficiary’s demand
  9. Animal rights. Advertisements should not promote attitudes that question the rights of animals. Advertisements containing image of animals should be self-restrained, so animals are not portrayed in a way that suggests non-humanitarian treatment of them

 

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1.3. Advertising Addressed to Children and Young People; Chapter IV, articles 22-32 from the Code of Ethics in Advertising (EN)

 

 

In September 2019 the Children’s Protection Charter, applicable to its signatories, was established and is set out under Appendix 3 to the Code of Ethics. It includes e.g. some rules for producing commercials with child actors. Rules for Children’s marcoms can also be found on the home page of this website

 

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1.4.  Advertising with Ecological Information; Chapter V, articles 33-39 of the Code of Ethics linked above; articles shown below under specific claim areas, Environmental claims

 

 

1.5. Direct marketing articles 45-48 of the Code of Ethics in Advertising 

See also the DM header under our following Channel Section C

 

 

2. LEGISLATION

 

  • While advertising regulation is largely a self-regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation
  • There are three principal legislative influences on marcoms content in Poland; key clauses from each are shown as downloadable files in order to avoid this section becoming too long, and because Self-Regulation largely covers the bases

 

2.1. The Unfair Commercial Practices Act UCPA  PO / EN  Note re linked EN translation here

 

Misleading actions and misleading omissions from the UCPA:

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

Information requirements – invitation to purchase

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

Misleading and aggressive commercial practices regarded as unfair commercial practices in all circumstances

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

 

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

 

 

2.2. The Unfair Competition Act - UCA PO / EN

 

​Key clauses here:
http://www.g-regs.com/downloads/POGenUCAUnfairCompBL.pdf

 

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

 

 

2.3. The Broadcasting Act (BA; Arts 16.1; 16b; 16c)

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

 

 

TV/ Radio; covering advertising, teleshopping, PP, sponsorship

 

  • Commercial communications must be readily recognisable (Art. 16.1)
  • It is prohibited to broadcast commercial communications that (Art. 16b (2) BA):
     
  1. Directly exhort minors to purchase products or services
  2. Encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised
  3. Exploit the trust minors place in parents, teachers or other persons
  4. Unreasonably show minors in dangerous situations
  5. Are of a subliminal nature

 

  • Commercial communications must not (Art. 16b (3) BA):
     
  1. Offend against/ violate human dignity
  2. Include any discrimination on grounds of race, sex, nationality, ethnic origin, religion or belief, disability, age or sexual orientation
  3. Be offensive to religious or political beliefs
  4. Prejudice/ jeopardise the physical, mental or moral development of minors
  5. Encourage behaviour prejudicial to health, safety or environmental protection

 

  • Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients, excessive intakes of which in the everyday diet are not recommended (Art. 16b (3a) BA)

 

The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online. Content rules are essentially unchanged and shown for the Directive here

 

 

3. SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

 

3.1.1. Self-Regulation (national)

Rada Reklamy Code of Ethics in Advertising: Chapter V - Advertising containing ecological information 

 

  • Advertisements cannot undermine public trust in correctly performed activities undertaken within the framework of natural environment protection (Art. 33)
  • Advertisements cannot exploit the lack of knowledge of their recipients in the area of natural environment protection (Art. 34)
  • Advertisements cannot contain a message which might mislead the consumers as to environmental protection, including but not limited to through misleading information on characteristics of products or on activities undertaken by the advertiser for environmental protection. Advertisements of entrepreneurs related to specific products or actions cannot without justified grounds extend the advertising effect in the area of natural environment protection to the whole business of the advertiser (Art. 35)
  • An environmental claim must relate to the characteristics of the advertised product and must refer to such characteristics of such product that exist throughout the product life or periodically, but in the latter case the advertisement must inform the recipient thereof (Art. 36)
  • Advertisements containing general phrases such as “environmentally friendly” or “ecologically safe” cannot be misleading. The information indicating the precise effect of the product in this area must be available at the point of sale, enclosed to the product or shall be presented to the beneficiary in a publicly accessible way (Art. 37)
  • Article 38: 1. When advertisements refer to the reduction the quantity (number) of components or elements having an environmental impact, such information cannot be misleading. The information indicating the precise positive effect of the product in this area must be true and available at the point of sale or enclosed to the product and shall be presented to the beneficiary. 2. Advertising claims cannot refer to the absence of components, features or impacts that are not applicable to the given product category. 3. An advertising claim of “…free”, or of the same effect, should only be made when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level. 4. Environmental signs or symbols should only be used when the source of origin (granting or appointing) these signs or symbols is clearly indicated in advertisement, and there is no confusion over their meaning. Such signs and symbols should not falsely suggest that their presence is related to a decision of a government administration authority, local government authority, or other institutions the activity of which is connected with natural environment protection
  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is available for a significant part of the beneficiaries. Otherwise, the extent and method of obtaining access to the above-described methods should be indicated (Art. 39)

 

 

3.1.2. International Self-Regulation

 

  • There are some international Self-Regulatory rules, shown in full under the International tab, that are relevant in this context. While the national codes and laws are the rules that drive requirements, and against which adjudications will be made, the ICC Advertising and Marketing Communications Code (ICC Code) provides an important international framework, and in some countries plays the role of the national advertising code. In particular in this context, Chapter D of the Code
  • The ICC Framework for Responsible Environmental Marketing Communications (November 2021) includes under Appendix I an environmental claims checklist, and updated guidance on the use of environmental claims often appearing in marketing communications

 

 

3.1.3. Horizontal legislation

 

The Unfair Commercial Practices Directive UCPD 2005/29/EC is transposed into Polish Law by the Unfair Commercial Practices Act UCPA PO / EN 

 

  • The UCPD applies to all claims made in B2C commercial practices, including those related to the environment
  • Competitors may challenge environmental claims as unfair commercial practices before national courts where claims are assessed against the UCPA/ D 

 

3.1.4. EU guidance

 

  • EU Compliance Criteria on Environmental Claims (2016) EN. The advice reflects common understanding on the application of the UCPD in this area. This advice is not legally binding, but has fed into the revision of the updated Commission Guidance on the application of the UCPD EN  (section 5.1 Environmental Claims pages 105-120)

 

 

3.1.5. Comparative claims

 

Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising MACAD Article4. in Poland, article 16.3 of the Act on Combating Unfair Competition UCA) PO / EN  sets out the criteria under which comparative advertising is allowed. These criteria apply to advertisements which compare the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 16.3 Polish UCA): 
 

  • Not be misleading, within the meaning of the UCPD
  • Compare goods or services meeting the same needs or intended for the same purpose
  • Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

 

 

3.1.6. ISO Environmental labels and declarations

 

The ISO 14020 series of environmental standards establishes general and specific requirements for environmental claims and the criteria for the evaluation and verification of claims. Full information here: http://www.g-regs.com/downloads/NLGenEnvISOstandards.pdf

 

 

 

 

Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers

 

 

3.2.1. Self-Regulation

 

From the Rada Reklamy Code of Ethics in Advertising

 

  • Advertising must not mislead its recipients, particularly with regard to: the value of the product and the total price actually to be paid for the product as well as other payment conditions like instalment sales, leasing, credit sales, bargain sales (Art. 10.1b)
  • Comparative advertising may compare one or more characteristics if such characteristics are verifiable. Price may be one of such characteristics (Art. 11.4)
  • Direct marketing activities, including the offers related to direct marketing, should be carried out so as to be understandable for the beneficiary. In particular, the beneficiary should always be able to identify the advertised product and the terms of the offer, including the price (Art. 45 (1))
  • Sales promotions should be so devised as to make it easy for the beneficiary to identify clearly the terms of the offer. Care should be taken not to exaggerate the value of the additional benefit and the price of the main product should not be concealed by the promotional activity (Art. 51)

 

 

3.2.2. Applicable legislation

 

  • Law 9th May 2014 on informing about prices of goods and services PO article 3; the law implements the Product Price Directive 98/6/EC
  • The Unfair Commercial Practices Act UCPA PO / EN. See articles 5 and 6
  • Key Case: Court of Justice of the European Union (CJEU): C‑476/14 (Citroën/ZLW) Judgement and AG Opinion
  • Decisions of the President of UOKIK, Office of Competition and Consumer Protection: see two cases here

 

 

Other UCPA prohibitions that apply to marcoms that include prices

 

  • ‘Bait’ advertising, which involves 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/ she 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 (Art. 7.5)
  • ‘Bait and switch’ advertising, which involves making an invitation to purchase products at a specified price, and then refusing to show the advertised item to consumers or refusing to take orders for the product or to deliver it within a reasonable time, or demonstrating a defective sample, with the intention of promoting a different product (Art. 7.6)
  • Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the direct costs of responding to the commercial practice and collecting or paying for delivery of the item (Art. 7.20)

 

 

3.2.3. Key points from C‑476/14 Citroën/ ZLW case

 

  • 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)

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

Truthfulness (Art. 5)

 

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

 

Substantiation (Art. 6)

 

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

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

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

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

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

 

 

 

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

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

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

 

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

 

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

 

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

 

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

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

 

 

18.4. Social values

 

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

 

 

 

 

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

 

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

 

Applicable Self-Regulation and legislation 

 

 

 

Legislation 

 

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

 

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

 

 

 

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

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product

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

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

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

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

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

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

 

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

 

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

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

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

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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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

 

STANDARD RULES 

 

  • The Content rules set out in our earlier Section B apply, as do the General content rules set out below those, and principally from the RR Code of Ethics in Advertising linked below 
  • The Channel (i.e. placement) rules that apply to all product sectors, Food and Soft Drinks included, e.g. rules for Sponsorship and for Product Placement, are set out under the General tab below 
  • All Food and Soft Drink advertising to children under 12 is prohibited according to Appendix 2 (Arts 1 & 2) of the Code of Ethics in Advertising (EN) unless the products in question meet nutritional criteria shown in Appendix 2a
  • Infant formula advertising is permitted only in specialist press, and may contain only information of a scientific and factual nature

 

 

 

  • Article 16b, para. 3a: Children’s programmes shall not be accompanied by commercial communications for foods or soft drinks containing ingredients excessive intakes of which in the everyday diet are not recommended
  • The National Broadcasting Council (KRRiT) monitors compliance with the requirements of article 16b para. 3a of the Broadcasting Act, which result from a statutory obligation

 

 

BROADCASTING AGREEMENT (EN / PO)

 

Television broadcasters’ agreement on the rules for the dissemination of advertising and sponsorship regarding foods or beverages containing ingredients whose presence in excessive amounts in a daily diet is not recommended (voluntary agreement; entry into force 01/01/2015)

 

  • Since 1 January 2015, programmes for children aged up to 12 years, broadcast by the eight largest television broadcasters in Poland, will not be accompanied by advertisements for 'unhealthy food'. The agreement was signed by: ITI Neovision Poland, Polsat TV, TVP, TV Puls, TVN, VIMN Poland, The Walt Disney Company (Polska) and Stavka company
  • According to the broadcasters' declaration, the criteria for exclusion is those foods and soft drinks that do not meet 'Nutritional Criteria to the self-regulation on food advertising aimed at children under 12 years' incorporated within Appendix 2a of the Rada Reklamy Code of Ethics in Advertising (EN). This document was drafted by the Polish Federation of Food Industry and approved by the Ministry of Health. it's attached to the Broadcasters’ Agreement as Appendix 9
  • This Appendix also includes a list of product categories which are not specified in the Nutritional Criteria. These include sugar and sugar-based products such as chocolate and chocolate products, jam or marmalade, non-chocolate sweets and other sugar products, soft drinks, potato chips and potato-based snacks, as well as products made of dough
  • Signatory broadcasters require advertisers to submit a written statement on the compliance of the advertised product. Templates can be found in Appendix No 11a/b (pps 12/13) of the Polish version of the Agreement
  • Useful information in English from National Broadcasting Council website here

 

 

EU PLEDGE

 

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

commitments enhanced July 2021, effective January 2022 

 

 

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General

SECTION C: TV & RADIO/ AV

 

 

APPLICABLE REGULATIONS 

 

 

 

KEY CLAUSES

 

  • Commercial communications must be readily recognisable (Art. 16.1). Also applicable to VOD, as per art. 47 BA
  • The Content rules set out in Section B apply to all channels; content rules specific to broadcast are immediately below

 

Article 16b, also applicable to VOD
 

  • It is prohibited to broadcast commercial communications that (Art. 16b (2) BA):

 

  1. Directly exhort minors to purchase products or services
  2. Encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised
  3. Exploit the trust minors place in parents, teachers or other persons
  4. Unreasonably show minors in dangerous situations
  5. Are of a subliminal nature

 

  • Commercial communications must not (Art. 16b (3) BA):

 

  1. Offend against/ violate human dignity
  2. Include any discrimination on grounds of race, sex, nationality, ethnic origin, religion or belief, disability, age or sexual orientation
  3. Be offensive to religious or political beliefs
  4. Prejudice/ jeopardise the physical, mental or moral development of minors
  5. Encourage behaviour prejudicial to health, safety or environmental protection

 

  • Article 16b (3a) Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients, excessive intakes of which in the everyday diet are not recommended

 

 

 Product placement 

 

Radio and Television art. 17a Broadcasting Act; all applicable to VOD except Article 17a (4) BA

 

  • Product placement is only permitted (Art. 17a (1) BA):
     
  • In cinematographic works (feature films), films or series made for audiovisual media services (TV and radio), sports programmes and light entertainment programmes, or
  • Where there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme, with the exception of children’s programmes
     
  • Product placement must not prejudice the autonomy and editorial independence of the broadcaster through its impact on contents or scheduling and must not release the broadcaster of the liability for contents of the programme (Art. 17a (4) BA)
  • Programmes that contain product placement must not (Art. 17a (5) BA):
     
  • Give undue prominence to the product in question
  • Directly encourage the purchase or rental of goods or services, in particular by making promotional references to those goods or services

 

 

Sponsorship 

 

 TV and Radio: Art. 17 Broadcasting Act (BA); National Broadcasting Council Regulations concerning sponsorship of programmes and other broadcasts; all provisions applicable to VOD, except Article 17 (paras 3 and 6) BA
 

  • Viewers/ listeners must be clearly informed about sponsoring. Sponsored programmes or other broadcasts must be identified as such by sponsor credits at the start and the end of the programme, and when a programme resumes after an advertising or teleshopping break. Such credits may specify only the sponsor’s name, business name, trademark or contain some other identification of the business operator or its business activities, a reference to its products, services or their trademark (Art. 17 (1) BA)
  • The identification of the sponsor or any component part thereof must not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services (Art. 17 (1a) BA)
  • Sponsor credits may not contain the name, business name, trademark or other individual identification of the business operator or its business operations, the image of a product or service, the advertising of which is prohibited by virtue of Article 16b Para. 1 (Art. 17 (2) BA)
  • The sponsor must not influence the content of the programme or any other broadcast and their scheduling in a manner that would prejudice the autonomy and editorial independence of the broadcaster. Sponsorship must not release the broadcaster from liability for the content of the programme (Art. 17 (3) BA)
  • Sponsored programmes or other broadcasts may not encourage the purchase or other use of the products or services of the sponsor or a third party (Art. 17 (4) BA)
  • Subject to para. 6, programmes or other broadcasts may not be sponsored by (Art. 17(5) BA):
     
  1. Political parties
  2. Trade unions
  3. Employers’ organisations
  4. Natural or legal persons whose principal operations consist in the production or sale of products or the provision of services referred to in Article 16b para. 1

 

 

SELF-REGULATION

 

 

Rada Reklamy Code of Ethics in Advertising EN includes Chapter VI on Sponsorship, incorporating reference to TV and Radio broadcasting:
 

  • Sponsorship-related activities must not be misleading as to the sponsored entity, brand or other identification markings/ designations of the sponsored entity/ party/ event, in particular when the sponsored event is presented on TV or Radio (Art. 43)

 

 

 

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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; provisions shown below 

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

 

  • The General channel (i.e. placement) rules for all the channels shown here, i.e. those rules that apply to all product categories Food and Soft drinks included, are shown below under the General tab

 

 

CINEMA

 

  • The Content rules for Food and Soft Drinks in Section B above, and the General rules for all sectors that are found below the Sector rules, apply to the Cinema channel, except those rules that are specific to Broadcast 
  • Infant formula advertising is permitted only in specialist press
  • All Food and Soft Drinks advertising to children under 12 is prohibited according to Appendix 2 of the Code of Ethics in Advertising (EN) unless the products in question meet nutritional criteria shown in Appendix 2a 
  • Food and Soft Drink products that do not qualify would therefore need to avoid child-oriented films, defined according to article 2, annex 2 of the Code of Ethics: 'Every advertisement is considered aimed at children if in planned targeted media the audience share of children under 12 is minimum 35 percent.'

 

EU PLEDGE

 

EU Pledge Implementation Guidance pt. 6 for Cinema and movies on DVD/ CD-ROM;

commitments enhanced July 2021, effective January 2022 

 

 

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

 

  • No rules from authorities for the Food and Soft Drinks category that apply specifically to print advertising; rules set out in Content Section B apply in press and magazines, as do the General content rules, except those rules specific to Broadcast media
  • Infant formula advertising is permitted only in specialist press, and may contain only information of a scientific and factual nature
  • All Food and Soft Drinks advertising to children under 12 is prohibited according to Appendix 2 of the Code of Ethics in Advertising unless the products in question meet nutritional criteria shown in Appendix 2a 
  • Food and Soft Drink products that do not qualify would therefore need to avoid child-oriented titles, defined according to article 2, annex 2 of the Code of Ethics: 'Every advertisement is considered aimed at children if in planned targeted media the audience share of children under 12 is minimum 35 percent.'

 

 

EU PLEDGE

 

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 in Section B apply, as do the General content rules, except those rules specific to Broadcast media
  • Infant formula advertising is permitted only in specialist press
  • All Food and Soft Drinks advertising to children under 12 is prohibited according to Appendix 2 of the Code of Ethics in Advertising unless the products in question meet nutritional criteria shown in Appendix 2a 

 

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General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

All of the content rules set out in our earlier Section B apply in these channels, except those specific to broadcast media; the principal code is the Rada Reklamy Code of Ethics in Advertising. for Print, see also Native heading later in this Channel Section C

 

 

PRINT

 

  • Code of Good Practice of Press Publishers PO / EN from the Polish Chamber of Press Publishers Izba Wydawców Prasy (IWP)
 

 

General guidelines

 

  • In advertising or promoting campaigns, the publisher shall ensure that the name, face or voice of a journalist is not used to advertise for a product or service (4.1.5)
  • Hidden advertisements, including product placement, shall be forbidden (4.1.10)

 

 

Forms of publication

vis. native/ advertorials

 

  • The boundary between advertising material and editorial content shall not be blurred. The form of advertising materials and publications must be such as to make their nature of advertisement or announcement obvious to the reader. Advertising materials and announcements must be clearly set apart from editorial content by graphic elements or a different typeset and labelled as ‘advertisement’ (reklama), ‘promotion’ (promocja), ‘announcement’ (ogłoszenie), ‘sponsored text’ (tekst sponsorowany) or the like, making the nature and origin of such materials obvious to the reader. In particular, any advertisements and announcements that are intended to imitate or use editorial content or the publication’s graphic layout must be rejected (Rule 4.2.2)
  • Neither the name nor the logo of an advertiser or announcer may be used on any of the pages devoted to editorial content unless they are labelled as an advertisement (reklama) or announcement (ogłoszeniem). An advertiser or announcer whose logo has been placed on a page with editorial content may not have any influence on editorial content.
  • Moreover, an advertiser or announcer’s name or logo may be placed on a page with editorial content in connection with the preparation of events under the publication’s patronage or the financing of prizes in a competition organised by an editorial office or a publisher; the advertiser or announcer must be identified as the sponsor (Rule 4.2.3)
  • An advertisement, announcement or promotion may be announced on the front page or in the table of contents of a given issue provided that it is labelled as advertisement, announcement or promotion or that it is the editorial office’s or publisher’s self-promotion (Rule 4.2.3)

 

 
Advertising supplements

 

  • Advertising or promotional supplements attached to a press title under contract from advertisers, including inserts, should clearly differ from editorial content and regular or occasional feature supplements by their shape, graphic layout or typeface, so that the readers may not confuse the pages with editorial content with those of such supplements. Moreover, the title or logo of the publication may not appear in such supplements. The above restrictions shall not apply to the editorial office’s or the publisher’s own promotion measures; the provisions of Rule 4.3.2., last sentence, shall apply mutatis mutandis in such cases. (Rule 4.3.1)
  • To ensure clear and unambiguous identification of the advertising supplements referred to in Rule 4.3.1., they should bear a printed caption saying ‘advertisement’, ‘promotional supplement’ or ‘advertising supplement’, or be otherwise marked in a way adopted by the publisher and allowing for clear and unambiguous identification of such supplements. The above shall not apply to inserts whose shape and content clearly indicate their character and origin (e.g., supermarket offers). In the in-house feature supplements (both regular and occasional), any advertisements, announcements, sponsoring or promotions should be clearly marked in accordance with the provisions of Rule 4.2.2. (Rule 4.3.2)

 

 

Competitions

 

  • Whenever prizes in any competitions, lotteries or promotional gift distributions organised by the editorial office or the publisher are provided by an advertiser, an announcer or external persons, those competitions, lotteries or promotions being advertised on pages devoted to editorial content, editorial texts may not suggest that the editorial office endorses or recommends in whatever way the products or services of such advertisers, announcers or other persons (Rule 4.4.1)
  • The course of a competition organised by an editorial office or a publisher should remain under the organiser’s exclusive control; an advertiser, announcer or sponsor may not have the decisive influence upon the selection of the winner. In presenting the competition, the editorial office must take care not to imply that it favours the products or services provided by the advertisers, announcers or sponsors as prizes (Rule 4.4.2)

 

 

CINEMA

 

  • The Content rules set out in our earlier Section B apply to marketing communications in Cinema, except those specific to broadcast

 

Associations 

 

SAWA is the Global Cinema Advertising Association, the global trade body of Cinema Advertising Companies and Associated Companies that supply services to the Cinema Advertising Industry.  Multikino (owned by Vue Entertainment Ltd) is the SAWA member in Poland; Multikino Media will handle cinema advertising sales nationwide.

Cinema City is the largest cinema operator in Poland (40% of multiplex market) followed by Multikino and Helios Cinemas; New Age Media, a subsidiary of Cinema City, provide and implement advertising campaigns of all Cinema City multiplexes

 

 

OUTDOOR

 

  • The Content rules set out in our earlier Section B apply to outdoor marketing communications, except those specific to broadcast
  • 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

 

CONTEXT

 

This section sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, marketers’ own websites, and OBA. As the boundaries online can be less clear, and as space online is often advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) in Owned and Earned space as well as Paid

 

 

STANDARD RULES

 

  • The Content rules for Food and Soft Drinks in Section B above, and the General rules for all sectors that are found below the Sector rules, apply Online, except those rules that are specific to Broadcast 
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising (EN); see Appendix 2 in particular 
  • The ban on advertising Food and Soft Drink products to children under 12, unless those products meet nutritional criteria, applies in the digital space
  • Infant formula advertising is permitted only in specialist press
  • The General channel rules, i.e. those that apply to all product categories Food and Soft Drinks included, are shown below under the General tab. These include, for example, statutory Consent and Information requirements, applicable especially in digital channels 

 

 
EU PLEDGE

  • The EU Pledge states: No advertising of food and soft drink products to children under 12, except for products which fulfil specific nutrition criteria; commitments enhanced July 2021, effective January 2022
  • Implementation Guidance from the EU Pledge on (print and) third party Internet advertising under pt. 4, Influencer marketing pt. 10

 

 

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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 Definition The Rada Reklamy definition is ‘aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' important, especially as there is so much content in a ‘blurred’ online environment .

In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, rules from the GDPR now apply in all member states. Privacy issues should be reviewed with specialist advisors

 

 

  • Per intro above, online advertising is subject to the rules set out in Content Section B, except those specific to Broadcasting. if it’s advertising, it’s in remit. The key set of rules is from the Rada Reklamy Code of Ethics in Advertising. Exemptions are under Article 3

 

 

APPLICABLE SELF-REGULATION 

 

  • As above, the Rada Reklamy Code of Ethics in Advertising applies to advertising as defined under article 3 and incorporates Chapter VII Direct Marketing 
  • Code of Ethics Polish Direct Marketing Association (SMB) PO / EN Chapter VI E-Commerce; Section 37 Commercial Communication
  • Code of Good Practice in Mobile Advertising PO / EN from mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4 in conjunction with IAB Poland
  • The EASA Best Practice Recommendation on Influencer Marketing is not binding, but it is helpful guidance on how European regulators should approach this marketing technique

 

 

APPLICABLE LEGISLATION 

 

  • If processing personal data, lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • The Act on the Provision of Services by Electronic Means (PSEM) PO / EN (Arts. 9.1/ 9.2) implements elements of the E-Commerce 2000/31/EC and E-Privacy 2002/58/EC Directives
  • The Unfair Commercial Practices Act (Arts. 6.1/ 6.3 (2)/ 6.5) PO / EN applies to B2C commercial practices. Includes e.g. misleadingness rules and 'Invitation to purchase' requirements as well as an 'intrusion' clause under article 9. Transposes UCPD 2005/29/EC
  • The Unfair Competition Act UCA PO / EN; note on translation here, applies in B2B and in this context mainly relates to comparative advertising. Transposes the Misleading and Comparative Advertising Directive MACAD 2006/114/EC
  • The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online and in particular to video-sharing platforms: platforms must identify to users commercial communications in posts where known, and require the same of contributors. Content rules are essentially unchanged and shown for the Directive here

 

 

KEY CLAUSES SELF-REGULATION 
(some translation enhanced)

 

  • The Content rules from the RR Code of Ethics in Advertising (EN) are set out in our earlier Section B and apply to advertising online. The Code also includes some channel rules under e.g. Chapter VII Direct Marketing and Chapter VI Sponsorship. Clauses are shown under the relevant specific headers that follow 

 

 

Sect. 38 SMB Code of Ethics: Commercial communication (Chapter VI E-Commerce)

 

  • All commercial communications should be easily recognisable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable. This rule also applies without exception to unsolicited commercial communications which are carried out by electronic mail (s. 38 (1) SMB Code)
  • All promotional offers and contests will be easily recognisable as such. The terms and conditions of participation shall be described in a clear, unambiguous and precise manner (s. 38 (2) SMB Code)
  • Internet technology should not be used to mislead customers as to the nature of a product or service in a promotion or offer. In addition, traders should not deceitfully restrict/ hamper the customer’s ability to leave the website and should make every effort to ensure that the search criteria accurately reflect the content of the site (s. 38 (3) SMB Code)
  • Comparisons of prices shall not mislead the customer. All the comparisons referring to special offers should indicate the start and end dates of such offers and any other special terms and conditions (s. 38 (3) SMB Code)

 

 

KEY CLAUSES LEGISLATION

 

Labelling requirement and Information obligations from the Act on the Provision of Services by Electronic Means:

 

  • Commercial communications must be clearly identified and marked in such a way that there is no doubt that it is a commercial communication (Art. 9.1 PSEM)
  • Commercial communications must include (Art. 9.2 (1-3) PSEM):
     
    • The name of the entity, on behalf of whom the communication is made, and its email addresses
    • Clear description of the form of promotional activities, in particular: price reductions (discounts), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the clear identification of the conditions necessary to take advantage of these benefits, if they are a component of the offer
    • Any other information, which may have an impact on the extent of the responsibility of the parties, in particular warnings and restrictions

 

 
Unfair Commercial Practices Act UCPA

 

  • The following practice may be regarded as a misleading omission: failing to disclose the commercial purpose of the practice if this is not clearly apparent from the circumstances and if this causes or may cause the average consumer to take a contractual decision which he/ she otherwise would not have taken (s. 6.3 (2) UCPA)
  • When assessing whether a commercial practice is misleading by omission all its features and circumstances related to the product launch, including its overall presentation, should be taken into account (Art. 6.5 UCPA)
  • As electronic communications will frequently include offers, information requirements from the UCPA when making an ‘Invitation to purchase' are extracted here
  • All marketing communications/ advertising content in electronic communications is subject to the UCPA rules on unfair commercial practices, especially in this context misleading or unfair actions or omissions shown under articles 5, 6 and 7 of the Act linked again here
  • The Unfair Competition Act (EN) is most relevant in this context to rules on comparative advertising; see article 16 of the UCA

 

 

SOME EDPB GUIDANCE

 

 

 

 

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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

 

Legislation

 

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

  • Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Which channels are effected depends on how the directive is transposed in individual countries. Content rules, shown here, are not signifcantly changed anyway; changes are more to do with where those rules apply. The prudent view is probably that AVMS rules apply or will apply to audiovisual commercial communications online 

 

 

Self-Regulatory clauses 

 

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

 

C1. Identification and transparency

 

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

 

 

C2. Identity of the marketer

 

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

 

C7. Marketing communications and children

 

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

 

 

C10. Respect for the potential sensitivities of a global audience

 

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

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

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4. Cookies & OBA

Sector

 

COOKIES

 

  • There are no authority rules specific to the Food and Soft Drinks category on the placement and use of Cookies; the prohibition of sector advertising to U12s, and the general (see general rules tab below) requirement to obtain parental/ guardian permission when dealing with children’s personal data, obviously make this sensitive territory
  • See the General cookies rules below; these apply to all sectors, Food and Soft Drinks included, and set out some important privacy/ data processing rules 

 

 

OBA

 

  • OBA, like any other advertising, will of course be subject to the Food and Soft Drinks rules set out in our earlier Content Section B, as well as the General content rules for all sectors that are found below the Sector rules, except those rules that are specific to Broadcast
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising; see Appendix 2 in particular 
  • Food and Soft Drink advertising to children under 12 is prohibited unless the products concerned meet nutritional criteria; Children’s Behavioural segments are anyway prohibited under the general OBA Self-Regulatory programme (see below under the General tab)
  • Infant formula advertising is permitted only in specialist press

 

 

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General

SECTION C: COOKIES AND OBA

 

 

Since the arrival of GDPR, we no longer set out the cookie rules for all countries/ sectors. Links to applicable legislation and Self-Regulation are shown below
 

 

APPLICABLE SELF-REGULATION COOKIES 

 

  • Code of Ethics Polish Direct Marketing Association (SMB) PO / EN (Chapter VI: E-Commerce; s. 37.4). Section 37 Online transaction security. Point 4: Traders should provide customers with information which does not contain any complicated technical jargon, referring to all the technologies of collecting and searching data, not allowing the identification of specific individuals, e.g. use of cookies. Traders using technology of cookie type will notify the customers about the purpose of its use

 

 

APPLICABLE LEGISLATION

 

  • Telecommunications Act PO / EN (Art. 173 paras 1-3 implements Cookie Directive 2009/136/EC via amendment Article 1 (122) of the Act of 16 November 2012 
  • Regulatory Authority: Office of Electronic Communications UKE (Art. 209 (1.25) and 210 (1) TA) and General Inspector for Personal Data Protection GIODO re. violations of personal data; see here

 

 

OBA

 

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

Effective 19 January 2022

  • In as much as data will be processed prior to the development of OBA, then GDPR lawful processing rules may apply if that data identifies individuals. Privacy issues should be reviewed with specialist advisors
  • Key profiling guidance is from the Article 29 Working Party, now the European Data Protection Board, in February 2018:
    Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
  • See the International tab for details of the Self-Regulatory initiative for Online Behavioural Advertising, which is underpinned by IAB Europe’s OBA Framework. The European Interactive Digital Advertising Alliance EDAA licences the ‘OBA Icon’, a consumer-facing, interactive symbol that links consumers to an online portal, www.youronlinechoices.eu, where they can find information on OBA as well as a mechanism for exercising informed choice
  • OBA content will be subject to the Rada Reklamy Code of Ethics in Advertising here
  • IAB Poland replicate the IAB Europe OBA Framework - PO, which will apply to all 3rd parties involved in OBA,  and manage the Polish version of the ‘Your Online Choices Consumer Choice platform’:
    http://www.youronlinechoices.com/pl/

 

 

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International

 

 

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

 

Legislation

 

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

 

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

 

 

GDPR

 

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

 

 

2. OBA 

 

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

 

Applicable regulation

 

 

 

Application of notice and choice provisions

 

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

 

 

C22.1. Notice

 

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

 

 

C22.2. User control

 

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

 

 

C22.5. Data security

 

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

 

 

C22.6 Children

 

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

 

 

C22.7. Sensitive data segmentation

 

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

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

 

 

European Self-Regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

 

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

 

 

Standard Rules 

 

  • The Content rules for Food and Soft Drinks in Section B above, and the General rules for all sectors that are found below the Sector rules, apply online, except those rules that are specific to Broadcast 
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising; see Appendix 2 in particular 
  • The ban on advertising Food and Soft Drink products to children under 12, unless those products meet nutritional criteria, applies in the digital space
  • Infant formula advertising is permitted only in specialist press
  • The General channel rules, i.e. those that apply to all product categories Food and Soft Drinks included, are shown below under the General tab. These include, for example, statutory Consent and Information requirements

 

 

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 ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION 

 

  • Rada Reklamy Code of Ethics in Advertising PO / EN applies to advertising as defined under article 3 and incorporates Chapter VII Direct Marketing 
  • Code of Ethics Polish Direct Marketing Association SMB PO / EN (Chapter VI: E-Commerce; s. 37.1 in Polish version, 38.1 in English version; new email section 33 here)
  • Code of Good Practice in Mobile Advertising PO / EN from mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4, in conjunction with IAB Poland
 

 

APPLICABLE LEGISLATION 

 

  • The Act on the Provision of Services by Electronic Means (PSEM) PO / EN (Articles 4-10) transposes implements elements of the E-Commerce 2000/31/EC and E-Privacy 2002/58/EC Directives
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • The Unfair Commercial Practices Act UCPA PO / EN;  applies to B2C commercial practices. Includes e.g. misleadingness rules and 'Invitation to purchase' requirements as well as an 'intrusion' clause under article 9. Transposes UCPD 2005/29/EC
  • GDPR 2016/679: if data processing identifies individuals, then GDPR lawful processing rules may apply. Privacy issues should be reviewed with specialist advisors
  • The Personal Data Protection Act of May 10th 2018 PO / EN implements/ recognises the GDPR and its accompanying Directive 2016/680. GDPR applies directly in all member states

 

 

SOME EDPB GUIDANCE

 

 

 

KEY CLAUSES LEGISLATION 

 

B2C: Opt-in regime

 

  • Direct marketing by email is permitted if the recipient has given his/ her prior consent to receiving such emails, in particular, by disclosing his/ her email address for that purpose (Art. 10 (1)/(2) PSEM)
  • Consent cannot be presumed or implied and can be revoked at any time. The sender must also be able to provide proof of consent (Art. 4 PSEM)
  • Making persistent and unwanted solicitations by email is considered an aggressive thus unfair commercial practice under article 9 (3) UCPA, confirmed by article 10.3 PSEM

 

 

Information requirements

 

  • As Direct email will frequently include offers, information requirements from the UCPA when making an ‘Invitation to purchase' are extracted here
  • All marketing communications/ advertising content in direct electronic media  is subject to the UCPA rules on unfair commercial practices, especially in this context misleading or unfair actions or omissions shown under articles 5, 6 and 7 of the Act linked again here 

 

 

The sender must provide the recipient with (Art. 5.2 PSEM):

 

  • His/ her electronic email addresses
  • His/ her name, surname, a place of residence and an address, or its name or a firm, headquarters and address

 

 

The sender must also clearly identify (Art. 9.1 & 9.2(1-3) PSEM)

 

  • The commercial communication as such; it must be clearly defined and marked in a manner that doesn’t leave any doubt that it is a commercial communication
  • The entity on behalf of whom the commercial communication is made, providing name and email addresses
  • Promotional offers and activities (in particular price reductions), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the conditions for participation
  • Any other information which may have an impact on the extent of liability of the parties, in particular, warnings and restrictions

 

B2B: Provisions from PSEM above on direct marketing by e-mail are not applicable to corporate subscribers. Article 10 only applies to 'natural persons'. Opt-in applies for email addresses which clearly identify an individual (e.g. tim.burton@wikiregs.com). However, for generic email addresses (info@wikiregs.com), opt-out principle will apply (source: FEDMA)

 

 
 

KEY CLAUSES SELF-REGULATION

 

  • SMB Code: All commercial communications should be easily recognisable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable. This rule also applies without exception to unsolicited commercial communications which are carried out by electronic mail (s. 37 (1) SMB Code) 
  • New email section (33) of the SMB Code here (EN)
  • Rada Reklamy Code of Ethics in Advertising (EN): Chapter VII Direct Marketing, articles 45-48 , applicable to B2C and B2B:
 
  • 1. Direct marketing activities, including the offers related to direct marketing, should be carried out so as to be understandable for the beneficiary. In particular, the beneficiary should always be able to identify the advertised product and the terms of the offer, including the price. 2. The beneficiary of an offer delivered within the framework of direct marketing should always be able to identify such offer as an advertisement. An offer may easily be mistaken for a bill or an invoice should not be made. 3. An offer delivered within the framework of direct marketing must clearly indicate what liabilities will be imposed on the beneficiary upon offer acceptance. 4. The information transferred within the framework of direct marketing, which has an effect on the beneficiary’s decision (e.g. payment terms, making returns, and waivers of the agreement), must be transferred in such a manner and within such time to make it possible for the beneficiary to take such information into account before accepting the offer. 5. No products for which a payment is requested without prior ordering of such products can be offered within the framework of direct marketing (Art. 45)
  • 1. An offer delivered within the framework of direct marketing cannot be misleading in particular with respect to the true sizes, value, nature, durability, appearance, and technical potential of the product advertised, and if: a) additional accessories are necessary for: (i) using the product or (ii) obtaining the described or demonstrated effect, this must be clearly stated, b) the offer is applicable to separately sold products, this should be unequivocally stated. 2. If an offer delivered within the framework of direct marketing contains a proposal of, for example, “free examination” or “free trial” of a product, then the offer must contain the terms of such use, including but not limited to the information on who bears the costs of product return and time limitations in its use. 3. An offer delivered within the framework of direct marketing must contain information on when the seller and the advertiser may be contacted so as to enable the beneficiary to directly and effectively contact them. At the moment of delivery of the product the beneficiary must be informed on complete names, addresses, and telephone numbers of the seller and the advertiser (Art. 46)
  • 1. Within the framework of direct marketing, offers must be made so as to respect the privacy of the beneficiary. 2. If personal data are collected within the framework of direct marketing, the beneficiary must be clearly informed thereof, with indication of the scope of processing of such data. The collection, storage, and use of data must be compliant with the Personal Data Protection Act. 3. The beneficiary of offers received within the framework of direct marketing, including but not limited to offers received with the use of addressed mails, non-addressed prints, telephones, telephone text and multimedia messages (e.g. SMSs, MMSs, etc.), faxes, e-mail or other methods of addressed online communications must be able to verify the sender of such an offer, and where applicable also the source from which the beneficiary’s data originate. 4. The promoter must comply with beneficiaries’ demands if they wish not to receive offers delivered within the framework of direct marketing, including but not limited to addressed mails, non-addressed prints, telephones, telephone text and multimedia messages (e.g. SMSs, MMSs, etc.), faxes, e-mail or other methods of addressed online communications, by cessation of delivery of such offers. The beneficiary may express his will not to receive the mails from the specific promoter by transferring to such promoter the respective request. The beneficiary may also express his wish not to receive the mails of the specific type by registering himself on the appropriate preference list or by displaying at the place of delivery of mails the information on such request (Art. 47)

 

 

  • Code of Good Practice in Mobile Advertising PO / EN; applicable to push ads SMS/ MMS. Point 8: SMS Spam Policy: Five Principles of Anti-Spam Policy in Mobile Advertising

 

 

 

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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

 

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. The self-regulatory definition of advertising from Rada Reklamy is “the message containing in particular information or a statement, especially made for a fee or remunerated otherwise, accompanying anybody’s activity which aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect, desired by the advertiser. Advertisement shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.”

 

 

Standard Rules 

 

  • The Content rules for Food and Soft Drinks in Section B above, and the General content rules for all sectors that are found below the Sector rules, apply to advertising on Marketers' own websites, except those rules that are specific to Broadcast 
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising; see Appendix 2 in particular 
  • The ban on advertising Food and Soft Drink products to children under 12, unless those products meet nutritional criteria, applies in the digital space
  • Infant formula advertising is permitted only in specialist press
  • The Channel rules shown under the General tab below apply to all sectors, Food and Soft Drinks included. These rules include, for example, statutory Consent and Information requirements when advertisers are in (some) exchanges with website visitors

 

 

EU Pledge

 

  • The EU Pledge members commit either to: 
     
    • Only advertise products to children under the age of 12 years (now 13; see enhanced commitments below) that meet the common Nutrition Criteria; or
    • Not to advertise their products at all to children under the age of 13 years 
    • Commitments enhanced July 2021, effective January 2022

 

 

 

 

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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 RR Code of Ethics in Advertising (EN) as a ‘message …. which aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect, desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below. Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 

 

APPLICABLE LEGISLATION

 

  • If processing personal data, lawful processing rules from the GDPR may apply 
  • Cookies: Telecommunications Act POEN Art. 173 paras 1-3 implements the Cookie Directive 2009/136/EC
  • E-commerce: the Act on the Provision of Services by Electronic Means (PSEM) PO / EN (Arts. 9.1/ 9.2)
  • As with all media, that which qualifies as advertising on Marketers' Own Websites will also be subject to the Unfair Commercial Practices Act (EN) and the Unfair Competition Act (EN)
  • The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online and in particular to video-sharing platforms: platforms must identify to users commercial communications in posts where known, and require the same of contributors. Content rules are essentially unchanged and shown for the Directive here
 

 

APPLICABLE SELF-REGULATION 

 

  • Content rules, principally from the Rada Reklamy Code of Ethics in Advertising, will apply when messaging qualifies as advertising; see definition above in the introduction. Other Content rules from Section B will also apply 
  • Code of Ethics of the Polish Direct Marketing Association (SMB) PO / EN (Chapter VI: E-Commerce; s. 35 in Polish version: Information about the Trader; s. 37 in Polish version: Commercial Communication. Website down May 2020
  • 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
  • The EASA Best Practice Recommendation on Influencer Marketing is not binding, but it is helpful guidance on how European regulators should approach this marketing technique

 

 

EDPB GUIDANCE 

 

 

 

KEY CLAUSES SELF-REGULATION

 

A significant issue in online’s less structured environment is the identification of advertising, especially in the context of Influencer marketing hence in this case extracting recognisability rules as well as the core misleadingness provision

 

  • Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that particular message is an advertisement (Art. 9)
  • 1. Advertisements should not mislead their recipients, in particular with regard to: a) important characteristics such as nature, composition, method and date of manufacture, range of use, quantity, origin (also geographical) of the advertised item; b) value of the product and the total price actually to be paid for the product as well as other payment conditions like instalment sales, leasing, credit sales, bargain sales; c) terms of delivery, exchange, return, repair and maintenance; d) guarantee terms; e) intellectual and industrial property rights such in particular patents, names, trademarks, and industrial designs and models f) official permits or approvals, awards, prizes, medals, and diplomas; g) the extent of the entrepreneur’s benefits for charitable causes. 2. Data as well as scientific terms, quotations from technical or scientific publications not considered data within the meaning of the Code, used in advertisements, must indicate their source and cannot be used in a misleading manner. The data must be presented correctly from the methodological point of view. Presentation of statistical data must in particular take into account the rules of statistical inference, including the phenomenon of statistical error

 

 

Sect. 37.1 SMB Code: Commercial Communication:

 

  • All commercial communications should be easily recognizable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable. This rule also applies without exception to unsolicited commercial communications which are carried out by electronic mail (s. 37 (1) SMB Code)
  • Internet technology should not be used to mislead customers as to the nature of a product or service in a promotion or offer. In addition, traders should not deceitfully restrict/ hamper the customer’s ability to leave the website and should make every effort to ensure that the search criteria accurately reflect the content of the site (s. 37 (3) SMB Code)

 

 

KEY CLAUSES LEGISLATION


Obligations for Service Providers who provide services by electronic means:

 

  • Commercial communications must be clearly identified and marked in such a way that there is no doubt that it is a commercial communication (Art. 9.1 PSEM)
  • Commercial communications must include (Art. 9.2(1-3) PSEM):

 

  • The name of the entity on behalf of whom the communication is made, and its email addresses
  • Clear description of the form of promotional activities, in particular: price reductions (discounts), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the clear identification of the conditions necessary to take advantage of these benefits, if they are a component of the offer,
  • Any other information, which may have an impact on the extent of the responsibility of the parties, in particular warnings and restrictions

 

 

Extracts from the Unfair Commercial Practices Act UCPA re Identification 

 

  • Article 6 (1). A commercial practice shall be regarded as tacitly misleading if it fails to provide material information that the average consumer needs to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that (s)he would not have taken otherwise
  • 3. In particular, the following practices may be misleading:​ 1) withholding material information on the product or failing to provide such information in a clear, unambiguous or timely manner;​  2) failing to disclose the commercial purpose of the practice if this is not clearly apparent from the circumstances and if this causes or may cause the average consumer to take a contractual decision which (s)he otherwise would not have taken
  • Article 7. The following misleading commercial practices constitute unfair commercial practices in all circumstances:​ 11) advertorial, which involves 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;​ 22) claiming or creating the impression that the trader is not acting for purposes relating to his/her business or profession, or representing oneself as a consumer when this is not the case

 

 
Invitation to purchase 

 

  • 4. In the case of an offer to purchase a product, material information within the meaning of Article 6 (1) shall be constituted by the following in particular:
 
  •  1) the main characteristics of the product, to an extent appropriate to the medium used to communicate with consumers and the product;​  2) forename, surname (corporate name) and address of the trader (registered office) and of the trader on whose behalf it is acting;  3) the price inclusive of taxes, or, where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, information to the effect that such additional charges may be payable;​ 4) the arrangements for payment, delivery, performance and the complaint handling policy;​ 5) information on the right to withdraw from or annul the contract, if such a right is enshrined in the Act or in the contract
 
  • 5. When assessing whether a commercial practice is tacitly misleading, all of its elements and the circumstances of the product launch, including the way in which it was presented, should be taken into account
  • 6. Where the medium used to communicate with consumers for 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 when deciding whether information has been omitted
  •  

 

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International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. It can be equally important to know what isn't advertising; the single most helpful source of remit issues in this context (that we are aware of) is the EASA Best Practice Recommendation on Digital Marketing Communications, which covers remit under pages 10/11, some of which is set out below. The other aspect of this environment that can be subject to regulatory issues is in 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

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

Unsolicited communications

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

 

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

 

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

 

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

 

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

 
 
GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules. Category-specific rules are immediately below; the key rule is that of identifiability/ disclosure and that's spelt out under the General rules tab below

 

 

RULES

 

  • The Content rules for Food and Soft Drinks in Section B above, and the General content rules for all sectors that are found below the Sector rules, apply to Native advertising
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising; see Appendix 2 in particular 
  • The ban on advertising Food and Soft Drinks products to children under 12, unless those products meet nutritional criteria, applies to all channels/ techniques
  • Infant formula advertising is permitted only in specialist press

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules. The key issue for this technique, obviously, is that of advertising identifiability. Native advertising, like any other advertising, is also subject to the rules set out in our Content Section B

 

 

APPLICABLE SELF-REGULATION 

 

  • The Rada Reklamy Code of Ethics in Advertising (EN) applies to advertising content as defined and incorporates an identification rule set out below  
  • The ICC’s Guidance on Native Advertising (EN). The guidance is based on the ICC Code article 9 Identification
  • Code of Good Practice of Press Publishers PO / EN (Section 4) from the Polish Chamber of Press Publishers Izba Wydawców Prasy (IWP). Extracts below

 

 

APPLICABLE LEGISLATION 

 

  • The Unfair Commercial Practices Act UCPA PO / EN. The UCPA carries a number of rules on  advertising identification; see below
  • The Unfair Competition Act UCA PO / EN; note on translation here. See relevant article 16 below 
  • If 'Native' advertising stretches to video-sharing platforms, which it may, the Broadcasting Act amends of 11th August 2021, transposing Dirtective 2018/1808, require identification of commercial communications by the platform and by the contributor

 

 

KEY CLAUSES SELF-REGULATION

 

  • Advertiser, promoter, operator and media, each of them only within the scope of its advertising-related activities, will obey the rule, that every recipient of advertising made or distributed with his participation should be able to identify, that a particular message is an advertisement (Art. 9 RR Code)
  • Article 9 Identification from the ICC Code: ‘Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and the identity of the advertiser should be apparent (see also article 10). Marketing communications should not misrepresent their true commercial purpose. Hence a marketing communication promoting the sale of a product should not be disguised by the marketer or sponsor as, for example, market research, consumer surveys, user-generated content, private blogs or independent reviews.' 
  • Hidden advertisements, including product placement, shall be forbidden (4.1.10 IWP)
  • The boundary between advertising material and editorial content shall not be blurred. The form of advertising materials and publications must be such as to make their nature of advertisement or announcement obvious to the reader. Advertising materials and announcements must be clearly set apart from editorial content by graphic elements or a different typeset and labelled as ‘advertisement’ (reklama), ‘promotion’ (promocja), ‘announcement’ (ogłoszenie), ‘sponsored text’ (tekst sponsorowany) or the like, making the nature and origin of such materials obvious to the reader. In particular, any advertisements and announcements that are intended to imitate or use editorial content or the publication’s graphic layout must be rejected (Rule 4.2.2 IWP)
  • Neither the name nor the logo of an advertiser or announcer may be used on any of the pages devoted to editorial content unless they are labelled as an advertisement (reklamą) or announcement (ogłoszeniem). An advertiser or announcer whose logo has been placed on a page with editorial content may not have any influence on editorial content. Moreover, an advertiser or announcer’s name or logo may be placed on a page with editorial content in connection with the preparation of events under the publication’s patronage or the financing of prizes in a competition organised by an editorial office or a publisher; the advertiser or announcer must be identified as the sponsor (Rule 4.2.3)
  • See rules 4.3.1/2 for Advertising Supplements conditions

 

 

KEY CLAUSES LEGISLATION

 

  • A commercial practice will be regarded as misleading by omission if it omits material information that the average consumer needs 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 (Art. 6.1 UCPA)
  • In particular, the following practice may be regarded as a misleading omission: Failing to disclose the commercial purpose of the practice (italics ours) if this is not clearly apparent from the circumstances and if this causes or may cause the average consumer to take a contractual decision which he/ she otherwise would not have taken (Art. 6.3 (2) UCPA)
  • When assessing whether a market practice is misleading by omission all its features and circumstances related to the product launch, including its overall presentation, should be taken into account (Art. 6.5 UCPA)
  • The following misleading commercial practice constitutes an unfair commercial practice in all circumstances: Advertorial, which involves 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 (Art. 7.11 UCPA)
  • Applicable B2B: In the field of advertising an act of unfair competition shall be, in particular, the following: Statement encouraging the purchase of products or services by creating the impression of being impartial/ neutral information (Art. 16.1.4 UCA)

 

 

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International

 

 

NATIVE

 

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

 

 
APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

 

 

Standard rules

 

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

 

 

Self-Regulation: key rules from the ICC Code

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

 

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

 

KEY RULES 

 

  • The Content rules for Food and Soft Drinks in Section B above, and the General content rules for all sectors that are found below the Sector rules, apply to Direct Postal Mail
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising; see Appendix 2 in particular 
  • Infant formula advertising is permitted only in specialist press
  • The ban on advertising Food and Soft Drinks products to children under 12, unless those products meet nutritional criteria, applies to all channels
  • Processing the data of children anyway requires parental/ guardian permission in the event that your product qualifies under nutritional criteria. See the general rules tab below
  • The rules shown under the General tab apply to all sectors, Food and Soft Drinks included; these include, for example, statutory Consent and Information requirements
 
EU PLEDGE

 

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

commitments enhanced July 2021

 

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

Consumer protection before mail is sent is from two main sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications, and 2) the ‘Robinson list’ or equivalent, i.e. an opt-out list of people who do not wish to receive marcoms; see below. Privacy issues should be reviewed with specialist advisors

 

 

APPLICABLE LEGISLATION

 

  • The new Personal Data Protection Act of May 10th 2018 PO / EN transposes elements of GDPR and its accompanying Directive 2016/680 
  • The Unfair Commercial Practices Act UCPA PO / EN applies to B2C commercial practices and includes e.g. misleadingness rules and 'Invitation to purchase' requirements. Transposes the Unfair Commercial Practices Directive 2005/29/EC
  • The Unfair Competition Act UCA PO / EN; note on translation here, applies in B2B and in this context mainly relates to comparative advertising. Transposes the Misleading and Comparative Advertising Directive MACAD 2006/114/EC

 

 

APPLICABLE SELF-REGULATION 

 

  • Rada Reklamy Code of Ethics in Advertising PO / EN applies to advertising content as defined and incorporates specific Direct Marketing rules; relevant article 47, applicable to B2C and B2B
  • Content of Direct Postal Mail commercial communications must observe the rules set out in our earlier Content Section B, except those specific to Broadcast media. The principal source of rules is the RR Code linked above
  • SMB (Polish Marketing Association) Code of Conduct POThe Robinson List (opt-out register) includes postal mail. Members of SMB must consult this list prior to sending direct mail marketing

 

 

KEY CLAUSES SELF-REGULATION

 

  • All marketing communications/ advertising content in Direct Postal Mail is subject to the Rada Reklamy Code of Ethics in Advertising. The core rules are shown under Chapter III Basic Principles of Advertising; Direct Marketing under Chapter VII
  • Direct marketing communications must respect the privacy of the recipient (Art. 47.1 RR Code)
  • If personal data is collected for the purposes of direct marketing, the recipient must be clearly informed of this fact and provided with an indication of the scope of processing of such data. The collection, storage, and use of data must be compliant with the Personal Data Protection Act/ GDPR (Art. 47.2 RR Code)
  • However Direct Marketing communications are sent (i.e. by email, SMS/ MMS, addressed/ non addressed postal mail, fax, telephone, other means of addressed online communications), the recipient must be able to verify the sender of such a marcom and where applicable, the source by which the sender obtained the recipient’s data (Art. 47.3 RR Code)
  • The marketer must comply with the recipient’s demands if they do not wish to receive DM communications, however sent. The recipient may send their request for DM communications to cease directly to the marketer or by registering on an appropriate preference list (Art. 47.4 RR Code) or by displaying information about such a request at the place of delivery of mail (i.e. on a postbox)
  • SMB Code: All commercial communications should be easily recognisable as such. The person initiating such communication, whether a natural or legal person, should be easily identifiable (s. 37 (1) SMB Code)
  • The Robinson List is only binding on members of the Direct Marketing Association (SMB); it is a condition of membership to observe the Robinson List Regulations (s. 1 (2) SMB Code). SMB makes its Robinson List available to other entities interested in joining the system on a voluntary basis

 

 

KEY CLAUSES LEGISLATION 

 

  • Applicable B2C: making persistent and unwanted solicitations by telephone, fax, email or other remote media to persuade consumers to purchase goods is considered an aggressive commercial practice under Art. 9 (3) UCPA
  • As Direct mail will frequently include offers, information requirements from the UCPA when making an ‘Invitation to purchase' are extracted here
  • All marketing communications/ advertising content in Direct Postal Mail is subject to the UCPA rules on unfair commercial practices, especially in this context misleading or unfair actions or omissions shown under articles 5, 6 and 7 of the Act linked again here 
  • The Unfair Competition Act (EN) is most relevant in this context to rules on comparative advertising; see article 16 of the UCA

 

 

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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

 

KEY RULES

 

  • There are no channel rules from authorities specifically for sponsorship of events/ field marketing by the Food and Soft Drinks sector
  • Infant formula advertising is permitted only in specialist press; any form of promotion is prohibited under Directive 2006/141/EC and the national act on Nutrition and Food Safety (art. 25)
  • Marketing communications in promotional material (leaflets, brochures etc.) associated with sponsorship will be subject to the sector-specific Content rules set out in Section B, together with the General content rules, except those for Broadcast media
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising (EN); see Appendix 2 in particular 
  • The rules for this channel that apply to all product sectors, Food and Soft Drinks included, e.g. ICC Sponsorship rules, are set out under the General tab below

 

EU PLEDGE

 

  • The EU Pledge states that members agree not to engage in food or soft drink product marketing communications to children in primary schools. See point 11 of the implementation Guidance; commitments were enhanced in July 2021, effective January 2022 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

APPLICABLE SELF-REGULATION 

 

  • Rada Reklamy Code of Ethics in Advertising: PO / EN; Sponsorship Chapter VI articles 40-44
  • Sponsorship material is within the scope of the RR Code linked above; material would therefore need to observe the full code, as well as the specifics in the sponsorship section set out below

 

 

Rada Reklamy Code of Ethics Chapter VI Sponsorship

 

  • Sponsorship and sponsorship-related agreements must be performed in the manner which is easy to be read and understood by unrelated persons as to their nature, and in particular they should indicate all the interested parties and the content of their liabilities to the sponsor (Art. 40)
  • Information on sponsorship originating from the sponsor or the sponsored of the given event must be clearly formulated and cannot violate the prevailing standards of decency (Art. 41)
  • Sponsorship should never be operated in such a way as to endanger artistic or historical objects (Art. 42)
  • Sponsorship-related operations cannot be misleading as to the sponsored entity, brand or other identification of the sponsored, in particular where the sponsored event is presented on the radio or television (Art. 43)
  • The sponsored event cannot have a negative impact on natural environment. Therefore, any message coming from the sponsored person or the sponsor, and related to environmental protection should be truthful (Art. 44)

 

 

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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

 

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

 

 

KEY RULES

 

  • Sales promotional marketing material must observe the Content rules for Food and Soft Drinks in Section B, together with the Content rules that apply to all product sectors which are found under the General tab in Section B
  • The principal source of Self-Regulatory rules is the Code of Ethics in Advertising; see in this Food and Soft Drinks context Appendix 2 in particular 
  • 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 (Directive 2006/141/EC, implemented under article 25 of the national Act on Food Safety and Nutrition) 
  • It’s forbidden to advertise in elementary schools as part of Rada Reklamy’s Standards of Food Advertising Aimed at Children Under 12 in Appendix 2 of their Code of Ethics in Advertising linked above (art. 4). Caveat follows:
  • Article 6 'Advertising within the meaning of Code is not using name, logo or product in educational campaigns, aimed at propagation of healthy dietary habits and physical activity amongst children and young people. Such campaigns have to be in line with national and/ or international dietary recommendations regarding diet and physical activity. If such campaigns are being carried out in schools, they have to be agreed with school authorities.'
  • Note that 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, statutory requirements for pricing claims and conditions for competitions etc.

 

 

EU PLEDGE

 

 

  • Implementation guidance is here 

 

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Read more

General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION

 

  • Rada Reklamy Code of Ethics in Advertising PO / EN Chapter VIII Sales Promotion (Arts 49-61)
  • SMB (Polish Direct Marketing Association) Code of Ethics PO / EN (s. 14) promotion and advertising, Chap. III Mail Order and Catalogue Selling

 

 

APPLICABLE LEGISLATION

 

  • The Unfair Commercial Practices Act UCPA PO / EN  applies to B2C; covers forms of promotional marcoms under arts 7.19; 7.20, and 9.8. The UCPA transposes the Unfair Commercial Practices Directive 2005/29/EC
  • The Unfair Competition Act UCA PO / EN (Art. 17a (1&2) UCA) similarly, the UCA addresses some promotional techniques under article 17a. This act transposes the Misleading and Comparative Advertising Directive 2006/114/EC
  • Act on the Provision of Services by Electronic Means PO / EN (Art. 9.2.2  promotional conditions in e-commerce context; see below)
  • The Gambling Act of 19 November 2009 PO / EN relevant to a prize draw (promotional lottery) where participation in the promotion is conditional on the purchase of goods, services or another game ticket

 

 

KEY CLAUSES SELF-REGULATION

 

Rada Reklamy Code Chapter VIII: Sales Promotions

 

  • 1. Sales promotions cannot be developed and conducted so as to mislead the recipients. 2. Neither the design nor the implementation of a promotion should be such as to provoke, or to appear to condone, aggressive or illegal behaviour, and cannot otherwise be inconsistent with the social coexistence principles. Moreover, they cannot encourage practices contrary to the public interest (Art. 49)
  • Sales promotions should be so framed as not to abuse the trust of the recipients and not to exploit their possible lack of experience or knowledge (Art. 50)
  • Sales promotions should be so devised as to make it easy for the beneficiary to identify clearly the terms of the offer. Care should be taken not to exaggerate the value of the additional benefit and the price of the main product should not be concealed by the promotional activity (Art. 51)
  • Sales promotions should be administered with adequate resources and supervision methods. In particular, the sales promoter should make sure that the availability of the additional benefits is adequate to allow demand to be honoured within a reasonable time. If delay is inevitable, the beneficiaries should be so advised, and if necessary actions should be undertaken which shall result in adjustment of the advertising concerning the offer (Art. 52)
  • 1. When organising sales promotions, the right of privacy of each entity should be respected. No additional liabilities not arising from the sales promotions rules can be imposed on such entities 2. If as a result of the sales promotion organised personal data of natural persons are collected, then the beneficiary should be clearly informed thereof, with indication of the scope of processing of such data. The collection, storage, and use of data must be compliant with the Personal Data Protection Act (Art. 53)
  • Sales promotions should be designed and conducted with proper regard to appropriate standards of safety to the extent necessary for protection of the beneficiaries participating in such promotions against health damage (Art. 54)
  • The presentation of sales promotions should allow participants, before making any required purchase, to be informed of the rules of such promotion if they can affect their decision to purchase the relevant product. In particular, the presentation should include, where applicable: a) clear instructions on the method of making use of, or obtaining, the promotional offer, e.g. conditions for obtaining free gifts or premiums; b) general characteristics of the additional benefits offered; c) time limitations for using the promotional offer; d) any limitation as to the geographical area, age, quantity (number) of promoted items or other additional benefits available, or any other limitations on quantity. e) the value of any voucher or stamp offered where a monetary alternative is available; f) expenditure involved, including costs of shipping, handling and the terms of payment; g) 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 (Art. 55)
  • 1. Where the sales promotion includes a competition, in addition to the information required by Article 55 above, the following information should be given or at least be made available on request and unconditional on purchase of the main product, prior to participation: a) rules governing eligibility to participate in the competition; b) all costs associated with participation known to the promoter, and where applicable also information on the rates used (e.g. for special calls); c) number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize; d) in the case of a skill contest, the nature of the contest and the criteria for judging the entries; e) method of selecting the winners and the prize; f) closing date of the competition; g) when and how the results will be announced; h) whether the beneficiary may be liable to pay tax as a result of winning a prize; i) time period during which prizes may be collected; j) how the jury is selected; k) the composition of the jury, on announcement of the results at the latest; l) any intention to use winners or winning contribution in post-event activities. 2. If the sales promotion includes a lottery, the provisions of paragraph 1 above shall be applicable to the lottery, respectively, where applicable (Art. 56) 
  • 1. The promoter should always obtain the prior agreement of the operator if the promoter inter alia intends to: a) invite the employees of the operator to assist in any sales promotion; b) propose (offer) to such employees any benefits of value or obtaining any benefits of value for such employees’ assistance or for any sales achievements in connection with any sales promotion. 2. If the offer referred to in paragraph 1 above is addressed to a wide circle of recipients it must contain clear instruction that employees must obtain their employer’s permission before they accept such offer (Art. 57)
  • Sales promotions which require active co-operation by the operator and its employees cannot adversely affect the performance of any existing contractual obligations of such operator (Art. 58)
  • Sales promotions which have been accepted by the operator should be fairly and honestly handled, and properly administered by the operator (operator’s employees) (Art. 59)
  • 1. Sales promotions involving any specific responsibility on the part of the intermediary should be so handled by him/her that no misinterpretation is likely to arise in particular as to the terms, value, limitations or availability of the offer subject to the sales promotion. 2. In particular, the operator should adhere to the plan and conditions of the promotion as laid down by the promoter. No changes of the agreed arrangements, e.g. alteration to the time-limit, should be made by the operator without the prior agreement of the promoter (Art. 60)
  • 1. Sales promotions containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with other principles of fair competition. 2. Points of comparison should be based on verifiable facts and should not be unfairly selected. Article Art 11 of the Code shall be applicable per analogy (Art. 61)

 

 

SMB Polish Marketing Association Code of Ethics
(some translation enhanced)

 

Section 14 Promotion and Advertising, in context of mail order and catalogue selling

 

  1. Trader’s (i.e. businesses/ companies), which as part of a promotional offer, carry out bonus sales (contests, draws/ lotteries etc.) undertake to observe all legal regulations governing this type of activity. It is the trader’s responsibility to set out clearly and precisely all the terms and conditions upon which the sales are carried out (14.1)
  2. If the sending of the reply is tied to participation in a contest, the offer should specify the exact deadline/ cut-off date for sending replies, which will enable participation in the contest (14.2)
  3. The deadline for sending applications should be set at least one month from the date of sending the offer (14.3)
  4.  Each ticket in a lottery must have an equal chance of winning (14.4)
  5. Winners must receive the prize within six weeks of the end of the promotion unless they have been informed in advance about another date. Companies should strive to ensure that the prize or the information about the prize is sent within three weeks of the contest or lottery closing date (14.5)
  6. All restrictions on the availability of the prizes should be truthful and justified (14.6)
  7. Traders undertake not to use the type of promotion referred to as “Everybody wins/ Win-Win/ Everybody is a winner” ("Wygrywa każdy"). This slogan is understood to mean any free lotteries or prize draws in which the consumer is informed about the supposedly random drawing of the prize (14.7)
  8. The determining factor is chance/ luck. Where the trader has decided to give away the same or similar goods to all or most of the consumers, it is prohibited to use such terms as “prize” (nagroda), “you have won” (wygrałeśś), “you have most likely won” (najprawdopodobniej wygrałeś), or “see if you have won” (sprawdź, czy wygrałeś) and others. Such given goods shall be referred to as “gifts for everybody” (prezentami dla każdego), and not “prizes” (nagrodami) (14.8)

 

 

KEY CLAUSES LEGISLATION

 

Unfair Commercial Practices Act PO / EN 

 

Aggressive Commercial Practices which are unfair in all circumstances:

 

  • Creating the impression that the consumer has already won, will win unconditionally, or will win on taking a particular course of action, a prize or other equivalent benefit, when in fact claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring other costs (Art. 9.8)

 

Misleading Commercial Practices which are unfair in all circumstances:

 

  • Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent (Art. 7.19 UCPA)
  • Presenting a product as ‘gratis’ (gratis), ‘free’ (darmowy), ‘without charge’ (bezpłatny) 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 (Art. 7.20 UCPA)

 

Act on Providing Services by Electronic Means PO / EN (Art. 9.2.2)

 

  • (Electronic) Commercial communications must include: a clear description of the form of promotional activities, in particular price reductions (discounts), free benefits in cash or in kind and other benefits related to the promoted goods, service or image, as well as the clear identification of the conditions necessary to take advantage of these benefits, if they are a component of the offer

 

The Unfair Competition Act UCA PO / EN translation note here

 

  • The following is an act of unfair competition: the sale to consumers of goods or services with the award to all or some purchasers of the products or services with a free bonus in the form of products or services different from those representing the subject of the sale, notwithstanding the point below (Art. 17a.1)
  • The above-mentioned sale is not an act of unfair competition if the bonuses are goods or services (Art. 17a.2(1-2):
     
  • of low value or a sample of the product
  • won in promotional lotteries organised under the rules on gambling or contests/ competitions the result of which does not depend on chance 

 

 

Gambling Act

 

The Gambling Act of 19 November 2009 PO: relevant to a prize draw (promotional lottery) where participation in the promotion is conditional on the purchase of goods, services or another game ticket. Note: If the purchasing of goods, services or another game ticket is optional (i.e. participation in the promotion is not conditional on the purchase of goods, services or another game ticket), the game should be generally treated as a prize promotion, not as a lottery. Scope: The Gambling Act applies to gambling games (gry hazardowe) which includes 3 main categories (games of chance, betting, slot machines). Promotional lotteries come under the games of chance category

 

 

Definitions and conditions

 

  • Games of chance: "games for cash or in-kind prizes, the result of which depends in particular on chance, and the rules of which are specified in the terms and conditions of a given game” (Art. 2.1 Gambling Act)
  • Games of chance includes: Promotional lotteries, where participation in a free-of-charge lottery occurs by purchasing a product, a service or other game ticket and the entity organising the game/ lottery offers cash or in-kind/ material prizes (Art. 2.1.10 Gambling Act) 
  • Organising promotional lotteries requires a prior permit (Art. 7.1 GA); online promotional lotteries are now permitted, following amendment to the Act (Art. 5 (1b) GA): Art. 7.1 Gambling Act: promotional lotteries can be organised by natural persons, legal entities and non-legal entities under the permit granted
  • Gambling on the Internet, with the exception of pool betting and promotional lotteries, is governed by the state monopoly. Up until amendment to the Gambling Act via Act of 15 December 2016 (via Art. 1 (5)), online betting was the only form of online gambling permitted in Poland

 

 

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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

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

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

 

A5: Safety and suitability

 

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

 

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

 

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

 

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

ADVICE

 

 

Związek Stowarzyszeń Rada Reklamy, known as Rada Reklamy, translated as the Advertising Council, is the Self-Regulatory Organisation in Poland, founded in 2006. Rada Reklamy handles complaints from both consumers and competitors via its Complaints Jury or Advertising Standards/ Ethics Committee (Komisja Etyki Reklamy). Further information is available via its website http://www.radareklamy.pl/

 

Rada Reklamy offers copy advice, usually within three working days. This service is provided free of charge for members, while non-members pay a 1.000 PLN fee + VAT (approximately 250 euro) per copy advice request. Rada Reklamy does not pre-clear advertising.

 

 

CLEARANCE

 

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

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

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

 

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

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E

 

 

LEGISLATION


European Food Legislation
See: https://ec.europa.eu/food/safety/labelling_nutrition_en

 

Nutrition and Health Claims

 

Regulation No. 1924/2006. Without prejudice to DirectivesEU 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 (EU) 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 (EU) 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 in artticle 7, 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.

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

 

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 FSD). They are also defined as 'foodstuffs', so regulated as foods within the meaning of Article 2 Regulation 178/2002 (General Food Regulation), 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/TXT/?uri=CELEX:32002L0046

 

 

General Food

 

Regulation (EC) 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

 

 

The 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 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 Art. 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 formula. Adopted on 25 September 2015 and applicable as of 22 February 2020, or 22 February 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/legal-content/EN/ALL/?uri=CELEX:32013R0609

 

 

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 until 22 February 2020; 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.The Directive is here:

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 Art. 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 the Fortified Foods Regulation and 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

 

 

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National food legislation

 

Act on Food Safety and Nutrition of 25th August 2006 (as amended)This act is the vehicle for transposition of a number of EU Directives such as that for Food Supplements 2002/46/EC which forbids in marcoms any statement that suggests that a balanced and varied diet cannot provide appropriate quantities of nutrients (article 27/ 5 of the national law), and Directive 2006/141/EC of 22 December 2006 on infant formulae and follow-on formulae (article 25). The Act permits that infant formulae is provided free of charge or at a reduced price to institutions whose statutory objectives include helping children or the family. The Act also recognises Regulation 1169/2011 on the provision of food information to consumers. Polish text is here:

http://www.g-regs.com/downloads/POFoodSafetyNutrition2006_PO_consolidated.pdf

 

 

Channel legislation

 

Broadcasting Act of 29th December 1992; entry into force 01/03/1993This Act as amended (particularly by the Act of 25th March, 2011 and the Act of 12th October 2012), implements the Audio Visual Media Services Directive 2010/13/EU. The most recent amendment added provisions for on-demand services. The Act regulates the whole broadcasting sector in Poland including the responsibilities of the National Broadcasting Council KRRiT, and, of course, the rules for commercial communicationsThose include the prohibition of ‘foods or soft drinks containing ingredients excessive intakes of which in the everyday diet are not recommended’ from advertising in Children’s programmes (article 16b, 3a). Consolidated text (Polish):
http://isap.sejm.gov.pl/DetailsServlet?id=WDU19930070034

In English (unofficial translation from National Broadcasting Council): 

http://www.krrit.gov.pl/Data/Files/_public/Portals/0/angielska/ustawa-o-radiofonii-i-telewizji-2016-eng.pdf

 

TV Broadcasters’ Agreement (Entry into force 01/01/2015). 'Television broadcasters’ agreement on the rules for the dissemination of advertising and sponsorship regarding foods or beverages containing ingredients whose presence in excessive amounts in a daily diet is not recommended'. Since 1 January 2015, broadcasters have pledged not to accompany programmes for children aged up to 12 with food and soft drink commercials that do not meet 'Nutritional Criteria to the self-regulation on food advertising aimed at children under 12 years'. The document also sets out prohibited product categories. Signatory broadcasters require advertisers to submit a statement on the compliance of the advertised product with the Nutrition Criteria. Templates are available in Appendices 11a/b of the Agreement (only in Polish version):

http://www.g-regs.com/downloads/PO_TVbroadcastersAgreement_Food_Drink_EN.pdf
English version: 

http://www.g-regs.com/downloads/PO_TVbroadcastersAgreement_Food_Drink_EN.pdf
Information in English available from National Broadcast Council website: 

www.krrit.gov.pl/en/for-journalists/press-releases/news,1727,limiting-the-unhealthy-food-advertisements-to-children.html

 

 

SELF-REGULATION

 

Industry Codes 

 

Advertising Code of Ethics; Rada Reklamy (Advertising Council). The Union of Associations Advertising Council is the Self-Regulatory Organisation in Poland, founded in 2006. RR handles complaints from both consumers and competitors via its Complaints Jury or Advertising Standards / Ethics Committee (Komisja Etyki Reklamy). Further information is available from its website: 

https://radareklamy.pl/

and here In English: 

https://radareklamy.pl/en/home-en/

 

The Code of Ethics in Advertising ‘ensures that advertising is not misleading, and protects against unethical and unfair advertising’. Based on the ICC Advertising and Marketing Communications Code, it applies to all forms of marketing communications, except ‘social’ (non-profit) and political advertising. Polish text: 

https://radareklamy.pl/kodeks-etyki/

English version:  
https://radareklamy.pl/en/code-of-ethics-in-advertising/

 

The Polish pledge is not available specifically (or rather it can’t be located on the PFPZ website), but comprises Appendix 2 and 2a in the Code of Ethics in Advertising linked above. Appendix 2 includes the Food Advertising Standards for Children under 12, whilst Appendix 2a comprises nutritional criteria for self-regulation on advertising food to children under the age of 12

 

 

ICC

 

The ICC Framework for Responsible Food and Beverage Communication is here: 

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

 

 

Associations/ regulatory authorities 

 

The Polish Federation of Food Industry (PFPZ):

 http://www.pfpz.pl/index/?lang_id=2
'The Polish Federation of Food Industry Union of Employers (PFFI UE) was established to secure effective participation of business entities in laying down legal, organisational and economic conditions for the development of the food sector, one of the largest and most powerful branches of the Polish economy. The members of PFFI UE include the leading companies and organisations of the Food market in Poland. The PFFI UE drafted the "Nutritional criteria for self-regulation regarding food advertising directed to children under 12 years of age" of December 2013, which has been incorporated into Appendix 2a of the Rada Reklamy Code of Ethics in Advertising. The PFFI UE was also involved with the Television broadcasters’ agreement on the rules for the dissemination of advertising and sponsorship regarding 'foods or beverages containing ingredients whose presence in excessive amounts in a daily diet is not recommended'; agreement entered into force 01/01/2015.

 

Institute of Food and Nutrition (Instytut Żywności I Żywienia) 

http://www.izz.waw.pl/en/

 

 

INTERNATIONAL ASSOCIATIONS

 

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

 

Soft Drink Trade Association For Europe: http://www.unesda.eu/

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.

FoodDrinkEurope’s contribution is based on sound scientific research, robust data management and effective communication, working within the regulatory framework to ensure that all food and drink issues are dealt with in a holistic manner. The organisation promotes its members’ interests in areas such as food safety and sciencenutrition and health, consumer trust and choice, competitiveness, and environmental sustainability.

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

 

 

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

 

 

LEGISLATION

 

European legislation

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018.

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

 

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016: 

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

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


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

 

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

 

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

https://eur-lex.europa.eu/eli/dir/2005/29/oj
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

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

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

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

 

E-privacy

 

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

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

 

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

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

 

 

E-privacy Regulation draft (4 November 2020)

 

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

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

 

 

E-commerce

 

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

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

 

 

National legislation 

 

Unfair competition (B2B primarily)

 

Act on Combating Unfair Competition (Ustawa o zwalczaniu nieuczciwej konkurencji) of 16 April 1993. ‘Unfair Competition Act’. The Act is based on a general clause in Article 3 (1), according to which an act of unfair competition means any act contrary to the law or good practice, which impairs or infringes the interests of another trader or of the customers. The general clause is followed by prohibitions on acts of unfair competition, e.g. false or misleading designation of an undertaking or products (Articles 5–10), unfair advertising (Article 16). This Act incorporated the Misleading and Comparative Advertising Directive 2006/114/EC MACAD:

isap.sejm.gov.pl/DetailsServlet?id=WDU19930470211 (PO)

https://www.g-regs.com/downloads/POActCombatingUnfairComp1993EN.pdf (EN)

Translation note here.

 

 

Unfair commercial practices

 

The Act on Combating of Unfair Commercial Practices (Ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) of 23 August 2007. ‘Unfair Commercial Practices Act’. This Act, which implemented Directive 2005/29/EC, deals with B2C unfairness. It is based on a general clause, which in Article 4.1 prohibits unfair commercial practices that are contrary to good customs/ practice (dobrymi obyczajami) and which materially distort or are likely to materially distort the economic behaviour of the average consumer before, during or after a transaction. This general clause is followed by specific provisions on misleading actions and omissions - Articles 5 and 6 - and aggressive practices (Article 8). Article 7 prohibits 23 misleading market practices that are unfair in all circumstances. Article 9 blacklists eight aggressive market practices. The information obligations under Art. 6.4 UCPA when a price is mentioned in advertising/ the advertising constitutes an ‘invitation to purchase’, are also relevant:

isip.sejm.gov.pl/DetailsServlet?id=WDU20071711206 (PO)

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

Translation note here

 

Distance selling

 

The Act of 30th May on Consumer Rights (OJ 2014, item. 827) Entry into force 25/12/2014. This Act implements the Consumer Rights Directive 2011/83/EC. The Polish Consumer Rights Act applies to all B2C contracts in particular, distance contracts. It also lays down pre-contractual information requirements for distance contracts, see Article12.1 and Article 17 for contracts concluded by electronic means, which may be regarded as material information in the context of misleading omissions in Art. 6.2 UCPA.  It also amends Article 172 of the Telecommunications Act (via Art. 48) extending the prior consent requirement to also cover the use of telecommunication terminal equipment (e.g. phones and fax machines) for the purposes of direct marketing. Consolidated text (Polish):

http://isap.sejm.gov.pl/DetailsServlet?id=WDU20140000827

English Translation (from UOKiK):
http://www.gregsregs.com/downloads/POActConsumerRightsEN.pdf

Regulatory Authority: the Office of Competition and Consumer Protection (UOKIK)

 

 

Channel legislation

 

Broadcast / AV

 

Broadcasting Act of 29 December 1992 (Ustawa z dnia 29 grudnia 1992 r. o radiofonii i telewizji) (Journal of Laws 1993, no 7, item 34). Entry into force 01/03/1993. This Broadcasting Act, as amended, implemented the provisions of the Audio Visual Media Services Directive 2010/13/EU. The most recent amendment added provisions concerning on-demand services, marking the final step in the transposition of the AVMS Directive. The Act regulates the whole broadcasting sector in Poland and includes regulations on public service broadcasting and commercial broadcasting. It regulates commercial communications (in particular advertising, sponsorship, teleshopping and product placement, as per Art. 4 (16) Broadcasting Act) on TV, Radio, and VOD. The Regulatory authority is the National Broadcasting Council KRRiT (see below):

http://isap.sejm.gov.pl/DetailsServlet?id=WDU19930070034 (PO)

In English (unofficial translation from National Broadcasting Council):

http://www.krrit.gov.pl/Data/Files/_public/Portals/0/angielska/ustawa-o-radiofonii-i-telewizji-2016-eng.pdf

GRS translation of key provisions:

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

 

Amend to the Broadcasting Act of 11th August 2021 transposing Directive 2018/1808. This Directive essentially extends AVMSD scope online and to video-sharing platforms especially. The commercial content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on Self-Regulatory systems; key changes to Content rules in the Directive are shown here - see article 4a and 9 for references to Self-Regulation in Food and in Alcohol. Chapter 6b of the national act covers video-sharing platforms. Helpful summary: New regulations on video-sharing platforms and other media service providers from Hogan Lovells. The Act entered into force November 1, 2021, with the exception of Art. 1 points 10, 31, point 32 in the scope of article 47g and point 33 lit. b, article 2 and article 4, which enters into force on 1 January 2022.

http://orka.sejm.gov.pl/proc9.nsf/ustawy/1340_u.htm (PO)

 

Regulatory authority

 

National Broadcasting Council (Krajowa Rada Radiofonii I Telewizji KRRiT). KRRiT regulates the content of public and commercial broadcasting related to protection of minors, harmful content, advertising restrictions, etc. 

Regulation of the National Broadcasting Council of 30 June 2011 on principles of advertising and teleshopping in radio and television programme services (ref. art. 16 (7) Broadcasting Act):

http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20111500895 (PO)

Regulation of the National Broadcasting Council of 30 June 2011 on conditions of product placement (ref. Art. 17(9) Broadcasting Act):

http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20111610977 (PO)

Regulation of the National Broadcasting Council of 27 July 2011 amending the Regulation concerning sponsorship of programmes and other broadcasts (ref. art 17(8) Broadcasting Act):

http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20000650785 (PO)

 

 

Privacy/ cookies

 

Telecommunications Act 16 July 2004 (as amended) (OJ 2004 No. 171, item. 1800) Entry into force 03/09/2004. This Act specifies conditions for the protection of services users, in particular with regard to privacy and confidentiality and conditions for data processing. The act implemented the ‘Telecommunications Package’, which includes the E-Privacy Directive 2002/58/EC. Cookies are regulated within this Act (Art. 173); an amendment in 2012 implemented the provisions of the Cookie Directive Article 2 (5) 2009/136/EC. Article 172 allows telephone, fax and automated calling systems to be used for the purposes of direct marketing only after obtaining the end user’s prior consent. Consolidated text (PO):

http://isap.sejm.gov.pl/DetailsServlet?id=WDU20041711800 (PO)

Unofficial English translation:

https://www.g-regs.com/downloads/POActCombatingUnfairComp1993EN.pdf (EN)

 

 

Regulatory authority

 

Office of Electronic Communications.  Non-compliance with the rules on storing and accessing cookies, as well failing to obtain consent prior to carrying out direct marketing by telephone, fax or automated calling systems may result in a fine imposed by the President of UKE for anyone who does not fulfil the obligations to obtain consent as laid out in Articles 172-174 of the Telecommunications Act (Art 209 (1) (25 TA:

https://en.uke.gov.pl/.

 

Data protection

 

The Personal Data Protection Act (DPA) of 10 May 2018. The purpose of this Act is to ensure the application of the Regulation 2016/679 (GDPR) 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. The Act also implements the Directive (EU) 2016/680 and establishes the Office for the Protection of Personal Data. See entry under Regulatory authorities later in this section. The DPA In Polish:

http://prawo.sejm.gov.pl/isap.nsf/download.xsp/WDU20180001000/T/D20181000L.pdf

Unofficial translation:

https://www.uodo.gov.pl/en/514/886

Uploaded here in case of access difficulties:

http://www.g-regs.com/downloads/POPersonalDataProtection2018.pdf

 

E-commerce

 

Act of 18th July 2002 on the Provision of Services by Electronic Means. Law Gazette/ Dz. U of 9th Sept 2002, No. 144, item 1204. Came into force 10/03/2003 (Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną). This Act is the principal legal influence in the field of business operation via the Internet, setting out the obligations of a service provider in relation to the provision of electronic services (Chapter 2; Articles 5-11). It implements elements of the E-Commerce 2000/31/EC and E-Privacy 2002/58/EC Directives, and establishes an opt-in regime for marketing by electronic media, including email and SMS, with no provision for soft-opt in. Consolidated text (PO):

http://isap.sejm.gov.pl/DetailsServlet?id=WDU20021441204

Unofficial English translation (not up to date):

 http://www.giodo.gov.pl/data/filemanager_en/51.pdf

GRS translation of key provisions:

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

 

 

 

SELF-REGULATION

 

Advertising Code of Ethics (Kodeks Etyki Reklamy) June 25th, 2019; Rada Reklamy. The Code of Ethics in Advertising is based on the ICC Advertising and Marketing Communications Code and applies to all forms of marcoms, except social and political advertising. The Code includes rules on environmental claims in advertising, and covers the direct marketing, sales promotions and sponsorship channels. In September 2019 the Children’s Protection Charter was established and  is set out under Appendix 3 of the Code. Rada Reklamy handles complaints from consumers, competitors and other interested parties via its Advertising Ethics Committee Komisja Etyki Reklamy (KER). All adjudications are published on their website. Polish:

https://radareklamy.pl/kodeks-etyki/

Rada Reklamy English translation:

https://radareklamy.pl/en/code-of-ethics-in-advertising/

 

SMB

 

The Code of Conduct from the Polish Direct Marketing Association SMB. The SMB also manage the Robinson List. Polish:
https://smb.pl/news/projekt_kodo

 

Robinson List 

 

Also known as the Telephone Preference Service or Mailing Preference Service (MPS); maintained by Polskie Stowarzyszenie Marketing SMB, the Polish Direct Marketing Association. Those who not want to receive marcoms by voice phone, SMS, email and postal mail can register their contact details on the database and will not receive unsolicited marcoms from SMB member companies; compliance with Robinson List rules is a condition of membership (s.1(2) SMB Code). Robinson List website:

http://www.listarobinsonow.pl/

Regulations for consumers:

https://listarobinsonow.pl/page/regulaminy

 

Code of Good Practice in Mobile Advertising PO / EN

 

Mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4 in conjunction with IAB Poland publish good practices for mobile marketing. Mobile advertising is via Push ads (SMS/ MMS/ wap-push) and Pull ads – where the ad is displayed after a specific action by the user – e.g. entrance to a WAP site, sending SMS notifications 

 

 

IAB Poland/ Europe

 

Interactive Advertising Bureau Poland: Polish industry organisation that ‘unites and represents entities of the interactive industry. IAB Poland members include more than 200 companies, including the biggest web portals, global media groups, interactive agencies, media houses and technology providers.’

https://iab.org.pl/

 

How to Comply with EU Rules Applicable to Online Native Advertising

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

IAB Europe Transparency and Consent Framework: 
https://iabeurope.eu/transparency-consent-framework/

 

 

Associations/ Regulatory authorities

 

 

The Personal Data Protection Office. UODO (Urząd Ochrony Danych Osobowych):

https://www.uodo.gov.pl/en

The Authority publishes ’10 tips on how to exercise the rights guaranteed by the GDPR’:

https://www.uodo.gov.pl/en/553/1000

 

 

Office of Electronic Communications 

 

The Office for Electronic Communication (UKE) regulates the Polish telecommunications market. Its main tasks include: regulation and supervision of telecommunications services’ markets; intervening in matters related to the market functioning and the settlement of disputes between telecommunications undertakings; co-operation with domestic and international telecommunications organisations; co-operation with the president of the Office for Competition and Consumers Protection (UOKiK) in matters related to users’ rights, and with the KRRiT. Provides links to the Telecommunications and Postal Laws.

https://uke.gov.pl/

 

 

The Office of Competition and Consumer Protection 

 

The President of the Office of Competition and Consumer Protection (UOKiK) is a central authority of the state administration. The President of the Office is responsible for shaping the antitrust policy and consumer protection policy. The primary antitrust instrument used by the President of the Office are proceedings concerning competition restricting practices, i.e. abuses of a dominant position. The President of the Office also has the power to carry out proceedings concerning practices infringing collective consumer interests.

http://uokik.gov.pl/home.php

 

 

 

INTERNATIONAL CODES AND GUIDANCE

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

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

Environmental claims (Chapter D of the above)
http://www.g-regs.com/downloads/ICCChapterDEnvironmentalClaims2018.pdf

The ICC Framework for Responsible Environmental Marketing Communications 2021 includes an Environmental Claims checklist under Appendix I and updated guidance on the use of environmental claims often appearing in marketing communications:

http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

The ICC’s Guidance on Native Advertising Is here:

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

 

EASA

 

The European Advertising Standards Alliance is a non-profit based in Brussels; EASA brings together national advertising Self-Regulatory Organisations (SROs, such as Rada Reklamy) 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

 

 

WFA

World Federation of Advertisers

 

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

https://www.wfanet.org/

This is their ‘GDPR Guide for Marketers’:

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

The WFA launched their Planet Pledge in April 2021

 

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

 

 

ESA

 

The European Sponsorship Association can be found at:

www.sponsorship.org

 

 

 

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International

SECTION E SOURCES

 

 

SELF-REGULATION 
 

ICC

 

 ICC Advertising and Marketing Communication Practice Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communication Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:

https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/

Downloaded:

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

 

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

 

ICC guidance documents

 

 

ICC Guidance on Native Advertising (May 2015). 

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

 

ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility.  It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.

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

 

 

ICC toolkits

 

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

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

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

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

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

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

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

 

 

 

 

Key Directives in marketing communications

 

Privacy

 

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

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

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (4 November 2020)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications)
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

 

E-commerce

 

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

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

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):

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

 

 

Audiovisual media

 

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

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

 

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

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

 

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

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