Food and Soft Drinks

 

Uploaded November 2018.

See individual countries for updates.

Sweden

A. Overview

Sector

SECTION A OVERVIEW

 

Updates

Ro review March 2020

EU Pledge revised April 2020

Delegated Regs amends Sept 2020

EU links refreshed May 2021

EU Pledge enhanced July 2021

Innocent Drinks adjudication Nov 2021

LInks reviewed/ refreshed Feb 2021

 

 

SCOPE AND CONTEXT

 

As an EU member state, Sweden’s commercial food communications are subject to the many and various rules from European Directives and Regulations set out in our Content Section below, but surrounding national provisions are not so plentiful as in some other European countries. There is no national Self-Regulatory ‘Food Code’, for example, so ‘Food’ is not defined in that context; it’s a reasonable assumption that any manufactured food would qualify - the definition from EC Regulation 178/2002 might help. Scope will also include that from the 'General' rules, i.e. those that affect all product sectors, Food and Soft Drinks included. In that context, what qualifies as advertising is important, especially online; definitions from the prevailing ICC Code and the Marketing Act (MA) - highly influential in Sweden - are here ICC and MA The ICC definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.' The Swedish Marketing Act defines as 'including all statements regardless of medium that have a commercial purpose and which are subject to purely commercial circumstances.' 

 

NATIONAL SELF-REGULATION

 

The Swedish advertising Self-Regulatory Organisation is Reklamombudsmannen (RO), also known as the Swedish Advertising Ombudsman. RO, or its jury RON, assess complaints according to rules from the ICC Code (EN/SW). Provisions are set out in our following Content Section B.

 

EUROPEAN REGULATIONS

 

As an EU member state, Sweden 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 (such as ‘Vitamin D is needed for the normal growth and development of bone in children’). 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 Regulation is largely about labelling, but includes a number of broad marcoms provisions relating to misleadingness; detail in Content Section B
  • 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 lists all permitted nutrition claims and all authorised and non-authorised health claims

 

  • Regulation 609/2013, in force from July 2016, ‘establishes compositional and information requirements for the following categories of food: (a) infant formula and follow-on formula; (b) processed cereal-based food and baby food; (c) food for special medical purposes; (d) total diet replacement for weight control.’ These are known collectively as ‘Foods for Specific Groups (FSG). Further explanation immediately below, and provisions from all Regulations are set out in our following Content Section B.

While it's not a Regulation and indeed it's voluntary, another European influence is the June 2021 EU Code of Conduct on Responsible Food Business and Marketing Practices. ‘A common aspirational path towards sustainable food systems.’ It's not marcoms focused, but very relevant in a European context.

 

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). The following Content Section B sets out the rules for these groups.

 

NATIONAL FOOD LAW

 

We cover in these pages Food Supplements (a group unaffected by FSG Reg), Infant and follow-on formulae, and Dietary Foods. Transposition in Sweden of the infant formulae rules is from Act 2013: 1054 (link is to the act in Swedish; rules in English in the Content Section). The Food Supplement rules are reported by the National Food Agency of Sweden as required to be ‘in compliance with the rules in Directive 2002/46/EC. The Directive is implemented into Swedish legislation without national amendments.’ The relevant articles are 6 and 7 of the Directive and the national legislation is LIVSFS 2003:9. Regulation 609/2013 extracts Meal Replacement weight control products Definition Products presented as a replacement for one or more meals of the daily diet from the FSG group and allocates their regulation to the general food framework (e.g. Regulation 1924/2006); Diet Replacement weight control products, i.e. those replacing the whole of the daily diet, is subject to a delegated act that's still awaited, and meanwhile continue to be regulated in Europe by Directive 96/8/EC, and in Sweden by LIVSFS 2016:11 (SW). The Swedish Food Administration's regulations on food information is here for the record (and in Swedish) as it essentially reflects Regulation 1169/2011. Rules from the above are set out in our following Content Section B.

 

OTHER NATIONAL LEGISLATION/ GENERAL RULES 

 

The Marketing Act 2008:486 (EN), which in Sweden represents the cornerstone of communications legislation, provides rules from the Unfair Commercial Practices Directive 2005/29/EC. While the Act is broad in scope, Section 5 ‘Marketing shall be consistent with good marketing practice’ is deployed in this sector, on occasions by the Consumer Ombudsman, in the event of food advertising they consider to be at odds with the clause. It is 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 in Sweden in the Self-Regulatory context is the ICC Code.

 

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.

 

CHANNEL RULES OVERVIEW

 

Generally speaking, and unlike some other sectors such as Cars or Alcohol, the Food and Beverages category does not attract rules that apply to specific channels; Infant Formula may not be advertised except in specialist press, and children’s media is obviously sensitive territory for some manufactured foods. The prohibition on TV (and VOD) advertising to children under 12 applies to all sectors. EU Pledge guidance is set out by channel where available; these commitments apply to Pledge members only and do not replace those of the authorities. Details by medium in our Channel Section C.

 

 

 

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Read more

General

SECTION A OVERVIEW

 

Updates

Ro review May 2020, from which

New case law re Influencer marketing 

AVMSD amends May 2020

EDPB amends Aug 2020

Directive 2019/2161 Section E Jan 2021

Directive 2018/1808 transposed Jan 2021

Stereotyping adjudication June 2021

Influencer judgement Market Court 28/6/21

Ro 'Greenwashing' review (SW) October 2021

Google's environmental claims policy Oct 2021

ICC Environmental framework 2021 (November)

Innocent juice case (SW) December 2021 

Commission Guidance UCPD December 2021

IAB TCF Framework and GDPR. Feb 2022

Commission guidance reduced prices 

ICC Environmental Framework in Swedish 

Sambla loans ruled discriminatory June 2022 

Commercial re above here (link may expire) 

BMW iX environmental claim ruled misleading 

Ad re above is here (SW) July 2022 ruling

Google says cookie here to stay until 2024

July 27, 2022

Directive 2019/2161 transposed here (SW)

 

 

SNAPSHOT
  • A market restricted more than most, especially regarding minors 
  • Relatively unusual system; marketing cases often in the courts
  • Market sensitive to gender/ stereotyping, environmental issues 
  • Influencer marketing identification also high profile; recent case
  • The SRO Reklamombudsmannen base decisions on ICC Code 

 

 

THE SRO’S GENERAL RULES

 

The Swedish Self-Regulatory Organisation (SRO) is Reklamombudsmannen (RO), more formally the Advertising Ombudsman. RO assess complaints according to rules from the International Chamber of Commerce (ICC) Advertising and Marketing Communications Code, which is linked here and here (SW), the latter of which is obviously the applicable code in Sweden. Rules are available from the linked document above; the most important are spelt out in our Content Section B below.

 

THE MARKETING ACT

 

The other significant influence on advertising rules in Sweden is statutory: the Marketing Act 2008:486 (EN), which in Sweden provides the cornerstone of communications legislation, provides rules from the Unfair Commercial Practices Directive 2005/29/EC. The Act also transposes other European marketing/ privacy legislation such as Directive 2000/31/EC on information society services (E-Commerce), and Directive 2002/58/EC on the protection of privacy in electronic communications, meaning that a number of European marketing eggs are in a single Swedish basket. There's a helpful Q&A on misleading advertising practices in Sweden from Wistrand via Lexology here (EN; March 2022) and Prohibited and controlled advertising in Sweden from Wistrand here (EN; also March, 2022). Relevant rules are shown in our Content Section B and Channel Section C below, as applicable. The transposition of Directive 2019/2161 (the 'Omnibus Directive') introduces new rules into the Marketing Act and the Price Information Act, amongst others less relevant to this database. The government's bill here (SW) amends the Price Information act under Article 2.2 for promotional pricing rules and the Marketing Act under 2.4 for criteria in search rankings and the legitimacy of consumer reviews (sections 12b and 12c respectively). Transposition is faithful to the Directive. 

 

APPLYING THE RULES

 

Day-to-day application of the rules is by RO, per the normal Self-Regulatory process. However, there is an additional procedure in Sweden: if the case arouses the interest of the Swedish Consumer Agency, a significant influence in marketing regulation, adjudication is via the Patent and Market Courts. A complaint can be taken to court by the Consumer Agency as well as by competitors or a group of consumers/ traders/ workers. For some perspective, here are The Market Court's decisions from 2000 to 31 August 2016; these are in Swedish, but there's a translation facility on the site which provides the gist. The Consumer Agency publishes a number of guidance papers in marketing and advertising; some of these are shown in our Content and Channel sections below. The general advertising and promotional environment in Sweden is somewhat restrictive and conservative.

 

NATIVE AND INFLUENCER 

 

The ICC’s Guidance on Native Advertising (EN) is based on the ICC Code itself, drawing on Articles 7 and 8 (Identification and Identity), B1 and C1 (Sponsorship and Digital communications respectively). Clauses from the Guidance are set out in full in Channel Section C. The Marketing Act’s (EN) Section 9 similarly requires clarity that advertising is advertising: ‘All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing’. In May 2016, the Nordic Consumer Ombudsmen jointly published their ‘Position on Hidden Marketing’ (SW / EN), and the Swedish representative also publishes Guidance on Marketing in Social Media (SW / EN) video here (SW), which covers Influencers primarily, requiring that influencer posts are very clear that they are paid for - the likes of 'in collaboration with' don't cut it. See below and our Channel Section C for more. 

 

Two key cases

 

The first case in Swedish courts about ad identification in social media - the ‘Kissie case’ re a well-known Swedish blogger and influencer Alexandra Nilsson - is linked here in Swedish; English commentary here from Lexology. According to RO, the court set a high standard, in line with RO's decisions. Among the rulings are that it must be clear when a post has been paid for and the identification itself must also be clear - i.e. its position within the post/ blog must be prominent. See pps 42 and 43 of the linked case, unofficially translated here. This case is likely to result in new rules being issued, probably by the Consumer Agency. A second significant case regarding Influencer posts on behalf of an eyewear company, and whether all posts versus contracted posts qualify as marketing communications, is here courtesy of AWA/ Lexology. 

 

ENVIRONMENT

 

This is, as you might imagine, a high profile issue in Sweden. Guidance on environmental claims in advertising is from the Swedish Consumer Agency (link is to the relevant section in Google English; translated properly in our Content Section B under point 2.3); the  guidance draws on the principles within Chapter D - Environmental claims in marcoms - of the ICC Code. Also providing guidance is The ICC framework for responsible environmental marcoms (November 2021, in Swedish here and commentary from Ro newsletter here), which includes an environmental claims checklist under Appendix I. The Nordic Consumer Ombudsmen 'Use of Ethical and Environmental-related Claims in marketing' is here in Swedish and translated here. The definitive guidance at the EU level is the December 2021 Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive; section 4.1.1. for Environmental claims. The Ro newsletter of October 2021 included this brief review of 'greenwashing' (SW) together with some recent cases and in December 2021 an Innocent juice case (SW) was published: complaint upheld because of insufficient evidence of the environmental benefits shown in the commercial, an English version of which is here (the commercial is now removed; this pressure group video includes what appears to be a large part of it). There is a detailed segment on Environmental claims in our following Content Section B. The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.

 

PRICING

 

Generic pricing rules applicable to all advertising are from the Marketing Act (EN) in Sections 10 and 12 and the Price Information Act - English translation here - which requires the trader to provide accurate and clear pricing information on products; in particular Sections 7-10 must be observed when marketing a product with a stated price, also as per Section 2, the Swedish Consumer Agency’s regulations on price information KOVFS 2012:1, guidance here (links are to the Swedish originals; details and translations where required are in our later Content Section B). The Marketing Act Section 12, which transposes the pricing elements of the Unfair Commercial Practices Directive 2005/29/EC, deals with the rules when communicating an ‘Invitation to Purchase’. Again, details in Content Section B. The European position provides amendments from the Directive 2019/2161, which established in the Product Pricing Directive 98/6/EC a new article 6a which sets out provisions for reduced/ promotional pricing. Transposition in Sweden is via the government bill here (SW) under article 2.2. Commission guidance for the application of the article is here.

 

CHILDREN

 

There’s a common perception that advertising to children is entirely prohibited in Sweden. Not the case, though it is a particularly sensitive issue that should be treated with some care. Clearly, children are protected from sectors that they are not permitted to use, such as Alcohol (advertising is prohibited to those under the age of 25), or Gambling which may not be aimed at Under 18s. Meanwhile, the rules for all product sectors are that advertising on television may not appeal to children under 12, according to The Radio and TV Act 2010:696 (EN unamended version, SW amended version here). A separate rule from the Marketing Act Section 7, applicable in all media, requires that advertising may not exhort those under the age of 18 to buy advertised products or persuade their parents or other adults to buy advertised products for them. The Swedish Consumer Agency’s Guidance on marketing aimed at children and young people is an important influence in this context. A document that shows the original Swedish with a translation is here. The rules on communicating to Children are covered in depth in a separate sector available from the home page of this website.

 

STEREOTYPING

 

Gender portrayal in Sweden is highly sensitive and subject to special criteria. The ICC Code Article 2 (part): ‘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’ is supplemented by RO with further criteria under three topics (original Swedish here):

 

  1. Advertising that objectifies: advertising that portrays people as sex objects, for example via clothing, pose and context, in a way that can be considered to be degrading. What is considered to be degrading is influenced, among other things, by whether the person has a connection to the product and how and where the advertising has been shown;
  2. Stereotyping in advertising: advertising that portrays people in stereotypical gender roles and which can be considered to describe or convey a degrading presentation of women or men;
  3. Advertising that is degrading in any other way and therefore is obviously gender discriminatory.

 

There’s an example case here (SW) re the Suit Supply company. The ad is here.

See also the Sambla loans case re 'older craftsmen' here; commercial here

 

CHANNEL RULES

 

As well as what you can say, there are rules for where you can say it, to whom, and when, and the information that must by law be included in, for example, some electronic communications. These rules apply to all products. Our Channel  Section B sets them out by medium; this para is a brief summary with links to the regulations and guidance documents.

 

As above under the Children sub-head, the Radio and TV Act 2010:696 (EN) prohibits appeal to children ('Advertising ……may not aim to capture the attention of children under the age of twelve’), and sets out other rules on advertising, sponsorship and product placement in broadcasting, in line with the AVMS Directive 2010/13/EU. Directive 2018/1808 extends the scope of the AVMSD to e.g. video-sharing platforms; the Swedish transposition 2020:875 of this is here. Consent and Information rules in the use of cookies and electronic communications is regulated by Sections 19-21 of the Marketing Act (EN) and the Electronic Communications Act ECA - law No. 2003:389 (EN), implementing the E-Privacy Directive 2002/58/EC. The Act on Electronic Commerce 2002:562 (SW) implemented the E-commerce Directive 2000/31/EC, which requires that ‘Information Society services’ provide certain information - details in our Channel Section C, or see the linked document. The Swedish Consumer Agency publish a number of advertising guidelines, the most significant of which in this context is their Guidance on Marketing In Social Media (SW / EN), also linked earlier. Details in Channel Section C with other rules on, for example, Native advertising and Marketers' own websites.

 

GDPR

 

Privacy issues should be reviewed with specialist advisors 


The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and should have been transposed into member states’ legislation by 6 May 2018. Nationally, the former Personal Data Act 1998:204 is repealed, and replaced by Law 2018:218 (SW), which ’complements’ the GDPR with some supplementary provisions. Personal data processing issues occur across multiple channels, and in each case lawful processing rules from the GDPR may apply. See our Section C for more information by channel. 

 

 

 

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International

SECTION A OVERVIEW

 

Updates since April 2021
 

WFA Planet Pledge April 2021 

Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021                               

WHO Alcohol consultation October 2021

CJEU judgement re Inbox November 2021

Trade Desk/ UID GDPR issues Nov 2021

UCPD guidance December 2021

ICAS Factbook and database Dec 2021

IAB Guide to Native Advertising Dec 2021

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. March 25, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

 

 

RECENT ISSUES

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

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

 

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

 

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

 

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

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

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

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

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

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

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

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

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

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

 

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

 

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

 

 

 

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Read more

B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

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

 

 

1. SWEDISH SELF-REGULATION IN FOOD AND SOFT DRINKS


    1.1 ICC Code and Framework
    1.2 Consumer Agency Guidance on marketing aimed at children and young people
    1.3 The EU Pledge


2. PRINCIPAL EUROPEAN LEGISLATION FOR 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 Food Intended for Use in Energy-Restricted Diets for Weight Reduction


4. ADJUDICATIONS

 

 

 

1.1. ICC Code and Framework

 

The Swedish advertising Self-Regulatory Organisation is Reklamombudsmannen (RO), also known as the Swedish Advertising Ombudsman. Ro assess complaints according to rules from the ICC Advertising and Marketing Communications Code, which is here in English, and spelt out under the General tab below. The Swedish version, which is obviously the applicable code, is here. The  ICC Framework for Responsible Food and Beverage Marketing Communications may be helpful (though Ro advise it is not 'actualised'): in this framework, the ICC take a general provision and apply the principle to Food and Beverage marketing communications. There are a couple of examples shown below:

 

 

Article 4. Honesty

Food and Beverage application below

 

  • Where claims or terminology used in marketing communications might reasonably be interpreted by a consumer as health or nutrition claims, they should be supportable with appropriate scientific evidence

Article 5. Truthfulness

Food and Beverage application below

 

  • Copy, sound and visual presentations in marketing communications for food and beverage products should accurately represent the material characteristics of the product featured, such as taste, size, content nutrition or health benefits, and should not mislead consumers concerning any of those characteristics
  • Food products not intended to be substitutes for meals should not be represented as such

 

 

Article 6. Use of technical/ scientific data

Food and Beverage application below

 

  • All nutritional and health-benefit information and claims for food and beverage products should have a sound scientific basis
  • Consumer taste or preference tests should not be used in a way that might imply statistical validity if there is none.
  • Testimonials should be based on well accepted and recognized opinion from experts

 

 

1.2 Consumer Agency Guidance on marketing aimed at children and young people
http://reklamvarlden.se/dokument/Konsumentverket/vagledning-om-marknadsforing-riktad-till-barn-och-unga-konsumentverket.pdf (SW)

 

The guidance reflects ICC guidelines

 

  • Food marketing directed at children should not undermine the importance of a healthy lifestyle
  • Claims of nutritional and health effects should have a scientific basis. Claims are assessed based on how they are perceived by a child
  • Fantasy elements and animations should be used with caution as they can exploit children's imagination and mislead about the product; for example, its nutritional content 
  • Marketing may not give the impression that the product leads to status or popularity with other children or success in sports, for example
  • It is not allowed to make use of nutrition and health claims that are not approved in the European Parliament and Council Regulation (EC) No 1924/2006.(Article 4.6 Consumer Agency Guidelines Children and Young People)

 

1.3 The EU Pledge

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

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

 

 

 

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, marcoms-relevant

 

  • 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 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.

 

 

List of health claims

 

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. 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

 

 

 

As well as the ‘broader’ European legislation that is set out above, applying largely to more general/ everyday food, various Directives provided for some of the more specialist food types, such as a group including Food Intended for Use in Energy-Restricted Diets for Weight Reduction, Infant Formula, and Dietary Foods for Special Medical Purposes. This group was regulated under the term ‘Foods for Particular Nutritional Use’. For various reasons set out under the recitals of Regulation 609/2013, known as FSG - Food for Specific Groups - this concept has been abolished, and a different regime/ structure is introduced by the Regulation, which also sets general compositional and labelling rules for:

 

Infant Formula and Follow-On Formula;
Processed Cereal-Based Food and Baby Food;
Food for Special Medical Purposes;
Total Diet Replacement for Weight Control.

 

and requires the Commission to adopt, through delegated acts, specific compositional and labelling rules for the same foods. All of this (and more if you can take it) is explained here in the EC Food Safety site, and in the recitals of the Regulation itself. Of these foods, and others unaffected by the above, we cover the following three more familiar forms:

 

Food Supplements
Infant and Follow-On Formula
Food Intended for Use in Energy-Restricted Diets for Weight Reduction

 

Marcoms rules are shown below; these are taken both from the Regulation and from the national laws which continue to apply.

 

 

3.1 Food Supplements

 

Applicable legislation

 

  • The relevant European Directive is 2002/46/EC relating to Food Supplements
  • Nationally, the Swedish Food Agency requires regulation to be ‘in compliance with the rules in Directive 2002/46/EC. The Directive is implemented into Swedish legislation without national amendments.’ The relevant articles are 6 and 7 (below) of the Directive and the national legislation is LIVSFS 2003:9 (SW)
     

Key clauses​

  • The 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 (Art. 6.2.)
  • The labelling, presentation and advertising of food supplements shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general (Art. 7)

 

3.2. Infant formula and Follow-On Formula

 

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
  • Law 2013: 1054 (SW), key clauses from which are set out below

 

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

 

 

3.3 Food Intended 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, as 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 

 

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

 

 

National Law

 

Section 8 of LIVSFS 2016:11(SW) on total diet replacement for weight control requires that there is no reference to the rate or amount of weight loss that could result from use of the product 

 

 

 

Authorities

 

  • The Market Court (Marknadsdomstolen) and Patent Appeals Court ceased to exist from 1st September 2016. Cases involving IP law, marketing law and competition law are adjudicated by the new Patent and Market Court under supervision of the Stockholm District Court, while the new Patent and Market Appeal Court, under supervision of the Svea Court of Appeal, is the ‘Court of second instance”. More information here:
    http://www.domstol.se/Funktioner/English/The-Swedish-courts/Patent-and-Market-Courts/
  • The link below provides Market Court adjudications from 2000 to 31 August 2006, i.e. before the advent of the Patent and Market Court. A search facility is included; the site is in Swedish: http://avgoranden.domstol.se/marknadsdomstolen/
  • The Patent and Market Court of Appeal publishes its judgments and decisions on an ongoing basis at their website:
    http://www.patentochmarknadsoverdomstolen.se/
  • A search facility for the adjudications database from the self-regulatory organisation RO is linked below. Decisions are in Swedish, but the incorporated Google Translate facility provides the gist: http://reklamombudsmannen.org/eng/search-decisions
  • A key late 2021 adjudication from RO in this sector is that against Innocent Drinks; complaint upheld because of insufficient evidence of the environmental benefits shown in the commercial. Case here (SW). The commercial has subsequently been removed, but sufficient of it can be seen on this activist video. Story covered here in English 

 

 

Some decisions from the Patent and Market Court

 

Complainant Consumer Ombudsman
Defendant Vitaelab AB
Issue Marketing of nutritional supplements 
Brief summary In the communication, customers described the physiological effects they had experienced from using VitaePro. The Consumer Ombudsman consequently filed a suit against Vitaelab, holding that the marketing was not allowed under Regulation 1924/2006, which permits only certain types of health claims. The Market Court concluded that customer testimonies had contained impermissible claims in relation to the effects of consuming VitaePro, describing increased energy and preservation of strength and mobility. As the Market Court considered that the marketing would affect the recipient's ability to make well-founded commercial decisions, it was found to be unfair and thus forbidden. MD 2016:5
Link to case

http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2016-5.pdf (SW)

Reference in English here:

https://www.roschier.com/sites/default/files/newsletters/3ca79678f86c7724f7b11ffe4f551e64.html#

 

 

 

Complainant Consumer Ombudsman 
Defendant Quaker Oats Europe
Issue Marketing of cereals 
Brief summary

MD 2000:14. The product Varm Oat Krunch (Hot Oat Krunch) was alleged to have contravened the Radio and Television law (1996: 844)

In appealing to Under 12s, especially with the use of animated figures. The defendant showed via the agency’s work plans and scheduling, and by reference to the demanding nature of the product itself, that the marketing targeted adults. The Court found in favour of Quaker Oats and awarded costs. 

Link to case http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom00.14.pdf

 

 

 

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

 

 

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General

SECTION B CONTENT RULES

 

 

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

 

 

  1. GENERAL RULES

 

1.1. The ICC Code of Advertising and Marketing Communication Practice (ICC Code) 

1.2. The Marketing Act

 

  1. ENVIRONMENTAL RULES

 

2.1. Chapter D, ICC Code of Advertising and Marketing Communication Practice

2.2. ICC framework for responsible environmental marketing communications

2.3. Guidance from the Swedish Consumer Agency

2.4. Nordic Ombudsmen Guidance 

2.5. European Commission Guidance 

 

  1. PRICING

 

3.1. Marketing Act 2008:486 Sections 10 and 12

3.2. The Price Information Act

3.3. Section 2, Swedish Consumer Agency’s regulations on price information

3.4. The Competition Act (2008:579)

3.5. The ICC Code of Advertising and Marketing Communication Practice​
 

  1. STEREOTYPING

 

  1. ADJUDICATIONS

 
 

1. GENERAL RULES

 

Key extracts from the ICC Code (EN) that applies in Sweden to all product categories are below

 

Basic Principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

 

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

 

Decency (Art. 3)

 

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

 

Honesty (Art. 4)

 

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

 

Truthfulness (Art. 5)

 

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

 

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

 

Substantiation (Art. 6)

 

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

 

Identification and transparency (Art. 7)

 

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

Identity of the Marketer  (Art. 8)

 

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

 

Comparisons (Art. 11)

 

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

 

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
 

Other main articles from the General Provisions of the Code are:

 

9. Use of technical/ scientific data and terminology

 10. Use of free and guarantee

17. Safety and Health

 18. Children and young people

19. Data protection and privacy

20. Transparency on cost of communication

21. Unsolicited products and undisclosed costs

 22. Environmental behaviour

 

Chapters from the Code are: 

 

Chapter A: Sales Promotion

Chapter B: Sponsorship

Chapter C: Direct Marketing and Digital Marketing Communications 

Chapter D: Environmental Claims in Marketing Communications

 

 

Where the rules are channel-related, they are shown in our following Channel Section C

 

 

 

The translation above does not include amends to the Marketing Act brought about by the transposition of Directive 2019/2161, delivered in a government bill here under article 2.4. The key clauses, which relate to the integrity of consumer reviews and the criteria for search rankings, do not directly impact ad content, except for new pricing provisions (2.2. in the bill) which are shown below under point 3, or in this article extracted from the Directive

 

Misleadingness

 

Section 10 of the act, which is the seminal piece of marketing/ advertising legislation in Sweden, transposing the Unfair Commercial Practices Directive 2005/29/EC, covers misleading marketing as follows:

 

  • In the course of marketing a trader may not make any incorrect statement or other representation that is misleading with respect to the trader’s own or another person's business activity
  • The first paragraph applies in particular to representations that concern:

 

  1. The product’s existence, nature, quantity, quality and other distinguishing characteristics
  2. The product’s origin, uses and risks such as impact on health or environment
  3. Customer service, processing of complaints and method and date of manufacture or supply
  4. The product’s price, basis for calculating the price, special price advantages and payment terms
  5. The qualifications, position on the market, commitments, trademarks, trade names, distinctive symbols or other rights of the trader or of another trader
  6. Awards or distinctions awarded to the trader
  7. Terms of delivery for the product
  8. Service needs, spare parts, exchange or repairs
  9. The trader’s commitment to comply with codes of conduct, and
  10. The consumer’s rights under law or other regulation

 

  • A trader may not omit material information when marketing his own or another person's business activity. Misleading omission also refers to cases where the material information is provided in an unclear, incomprehensible, ambiguous or other inappropriate manner
 

Invitation to purchase

 

Finally in this coverage of general rules, if your advertising or ‘commercial communication’ constitutes an ‘invitation to purchase’ Definition ‘Indicating characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase’ Art. 2 (1) UCP Directive certain material information must be included, as transposed in the Marketing Act Section 12:

 

  • Marketing is misleading if in a representation the trader offers consumers a specific product with a stated price without clear presentation of the following material information:

 

  1. The product’s distinguishing characteristics to the extent appropriate to the media and product
  2. Price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)
  3. The identity and geographical address of the trader
  4. Terms and conditions of payment, delivery, performance and processing of complaints if these deviate from normal practice in the industry or for the product in question
  5. Information concerning the right of withdrawal or the right to cancel a purchase which must be supplied to the consumer by law.

 

  • Marketing is also misleading if the trader in a representation offers consumers several specific products at a common price, without the offer containing material information under points 1-5 of the first paragraph

 

 

2. ENVIRONMENTAL RULES

 

The environment is a particularly sensitive issue in Sweden, and there are a good number of guidances and frameworks that are influential. The key rules in this context, however, are those from Chapter D  of the ICC Code applicable in Sweden, and its connected ‘Framework’ (November 2021; EN). Extracts from Chapter D are below; the revised framework is a significant addition to the regulatory line-up. Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' It's in Swedish here.

 

2.1. Chapter D, ICC Advertising and Marketing Communications Code 

 

Scope

 

This chapter applies to all marketing communications containing environmental claims, i.e. any claim in which explicit or implicit reference is made to environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature as well as via telephone or digital or electronic media such as e-mail and the internet. All are covered by this chapter. The chapter draws from national and international guidance, including, but not limited to, certain provisions of the International Standard ISO 14021 on ‘Self-declared environmental claims,’ relevant to the marketing communication context, rather than technical prescriptions. Definitions of terms are not included here but are available from the link below

http://www.g-regs.com/downloads/ICCChapterDEnvironmentalClaims2018.pdf

 

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 re-assessed 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 6 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 (See example)  or background level. 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 falsely to 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 (or such other standard as may be defined by applicable local law). 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

 

 

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

 

2.2. ICC Framework for Responsible Environmental Marketing Communications

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

https://icc.se/wp-content/uploads/2022/04/ICC-Riktlinjer-Ansvarsfull-Marknadskommunikation-om-miljo-och-klimat_2022.pdf

 

 

 

 

  • Marketing must be responsible
  • The average consumer cannot be expected to have deep technical and environmental knowledge
  • The accuracy of statements must be capable of verification, especially for products that are environmentally harmful. Judgments 2004:4, 2004:12 and 2011:12, which can be found in the linked document below (borrowed from our Cars database), provide relevant rulings from the Market Court:
    http://www.g-regs.com/downloads/SWBilGuidanceEnvironmentb.pdf (EN)
  • Only those environmental claims may be used which can be substantiated with current, evidence-based documentation
  • General claims must be shown to be valid after an overall assessment of the environmental effects
  • Vague and non-specific claims, such as ‘environmentally friendly’ should be avoided
  • There should not be any doubt about whether the environmental claim relates to the product itself or the packaging
  • Free from "irrelevant" substances claims should not be made, namely that the product lacks substances that in general have nothing to do with the product area/ field. For example, claiming that a product is 'chlorine free' must not be made where the chlorine in the product has been replaced by another equally problematic substance
  • Environmental signs and symbols should only be used in marcoms where the source of those signs is clearly indicated and there is no likelihood of confusion over their meaning

 

2.4. Nordic Ombudsmen guidance 

 

Guidance of the Nordic Consumer Ombudsmen; use of ethical and environmental-related claims in marketing in Swedish here:

http://www.konsumentverket.se/contentassets/dcac36a19d2a4f5c8c6b451ce8dfc4dd/nordisk-standpunkt-miljo-konsumentverket.pdf

And translated here:

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

This is a fairly lengthy document so it has not been set out below. It provides some useful guidance and references if you are uncertain about what you can and can’t do when making environmental claims or statements, though the territory it covers is based on the ICC Code and the Marketing Act. The Guidance makes the point as follows:

 

  • 2.1. Special requirements regarding marketing or product characteristics, labeling or the like may be determined by special legislation. This may concern, for example, environmental legislation, legislation on chemical products, ecologically produced products, foodstuffs etc. If so, special legislation applies. This guidance applies only to the assessment that may be made in accordance with the Marketing Act

 

2.5. European Commission/ MDEC guidance 

 

 

 

3. PRICING

 

Developments at a European level are that Directive 2019/2161 amends to the Product Pricing Directive 98/6/EC are in the form of a new article 6a that provides rules for price reduction announcements, including those in advertising. Transpositions in Sweden are in the March 2022 government bill here (SW) under article 2.2, entry into force July 1. Commission guidance (from 2021) on the application of article 6a is here  

 

Generic pricing rules applicable to all advertising:

 

3.1 Marketing Act 2008:486 Sections 10 and 12 of the Act

 

  • Section 10: In the course of marketing a trader may not make any incorrect statement or other representation that is misleading with respect to the trader’s own or another person's business activity - applies in particular to representations which concern 4) the product’s price, basis for calculating the price, special price advantages and payment terms
  • Section 12: Marketing is misleading if in a representation the trader offers consumers a specific product with a stated price without clear presentation of the following material information: 2. price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)
  • The Marketing Act also transposes under Section 8: ‘Misleading marketing as specified in points 1-23 of Annex I to Directive 2005/29/EC are always to be regarded as unfair.’ Points 5 and 6 of the Annex referenced are as follows:

 

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')

 

3. 2. The Price Information Act

 

English translation here; provisions require the trader to provide accurate and clear pricing information on products; in particular sections 7-10 must be observed when marketing a product with a stated price, as referenced in Section 12 (2) Marketing Act

 

  • Section 7: Price information for goods shall be provided by details of the price and unit price of the goods. For products other than goods, the price information (indication) shall be provided by details of the price of the product. The Government or the authority appointed by the Government may also prescribe that unit prices shall be indicated for such products. If the price of a product cannot be indicated, the trader shall instead provide a price indication by stating the basis on which the price is determined
  • Section 8: A unit price need not be indicated if, owing to the nature or purpose of the product, it may be assumed that the indication of a unit price would not be relevant or if such an indication would possibly cause confusion
  • Section 9: Only a unit price needs to be indicated for goods that are not pre-packed and which are measured in the presence of the customer
  • Section 10: The price information shall be correct and clear. If charges and other costs may be added, this shall be indicated specially. The price information shall be provided in writing if the consumer cannot obtain the information in some other equivalent way. Price information shall be provided in such a way that it clearly indicates to the consumer the product to which the (price) information relates

 

 

3. 3 Section 2, Swedish Consumer Agency’s regulations on price information KOVFS 2012:1(SW). Guidance here (SW)

When a given product is marketed with a quoted price, the price information should be provided pursuant to §§ 7-10 Price Information Act 2004:347

 

 

3.4. The Competition Act (2008:579)

in the context of Anti-competitive cooperation between companies; agreements between undertakings shall be prohibited that directly or indirectly fix purchase or selling prices or any other trading conditions (Art. 1). Unofficial English translation of the act here

 

 

 

Article 10 (Sect. I of the Code) Use of ‘Free’ and ‘Guarantee: 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

 

 

Sales Promotions article A2

 

  • 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
 

Direct marketing article C14. Prices and credit terms

 

  • Any information needed by the consumer to understand the cost, interest and terms of any other form of credit should be provided, either in the offer or when the credit is offered

  • Whether payment for the offer is on an immediate sale or instalment basis, the price and terms of payment should be clearly stated in the offer, together with the nature of any additional charges (such as postage, handling, taxes, etc.) and, whenever possible, the amount of such charges

  • In the case of sales by instalment, the credit terms, including the amount of any deposit or payment on account, the number, amount and periodicity of such instalments and the total price compared with the immediate selling price, if any, should be clearly shown in the offer

  • Unless the duration of the offer and the price are clearly stated in the offer, prices should be maintained for a reasonable period of time

 

 

4. STEREOTYPING.

 

Gender portrayal in Sweden is subject to special criteria. The ICC Code article 4 (‘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’) is supplemented by Ro with further criteria on three topics (original Swedish here):

 

  1. Advertising that objectifies: advertising that portrays people as sex objects, for example via clothing, pose and context, in a way that can be considered to be degrading. What is considered to be degrading is influenced, among other things, by whether the person has a connection to the product and how and where the advertising has been shown
  2. Stereotyping in advertising: advertising that portrays people in stereotypical gender roles and which can be considered to describe or convey a degrading presentation of women or men
  3. Advertising that is degrading in any other way and therefore is obviously gender discriminatory

 

 

5. ADJUDICATIONS

 

 

Day-to-day application of the rules, in this case reviewing complaints, is by RO, per the normal self-regulatory process. Ro adjudicate in two ways:

 

  1. More regular or conventional cases are reviewed by experienced executives at RO
  2. Via the RO Jury (RON). Cases that are complicated or deal with a subject that has never been reviewed before are referred to the RO Jury (RON)

 

As this data is concerned with General versus sector rules, we do not set out individual cases, as there is too much ground to cover. Note, however, that there is particular sensitivity towards, and a strong lobby presence around, gender portrayal in Swedish advertising. The link below shows an example adjudication (in this case not upheld; the link is to a Swedish language website, there's a translation facility on the website which will provide the gist):

http://reklamombudsmannen.org/eng/uttalande/dominos-pizza 

But in this ‘Suit Supply’ case upheld; ad here

 

 

The Patent and Market court

 

There is an additional procedure in Sweden: if the case arouses the interest of the Swedish Consumer Agency, adjudication is via the Patent and Market Courts. For some perspective, here are The Market Court's decisions from 2000 to 31 August 2016; these are in Swedish, but there is a translation facility on the site, which should provide the gist of the decisions

 

 

 

………………………………………………........................

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

 

Truthfulness (Art. 5)

 

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

 

Substantiation (Art. 6)

 

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

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

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

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

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

 

 

 

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

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

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

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

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

 

 

18.4. Social values

 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

 

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

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product

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

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

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

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

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

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

 

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

 

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

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

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

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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

 

 

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

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

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

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

C. Channel Rules

1. TV/Radio/VOD

Sector

 

TELEVISION (INC. VOD) AND RADIO

 

  • The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media
  • The General content rules that apply to all product sectors should also be observed
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature

  • 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, Product Placement and Programme Sponsorship rules 

  • From the Radio and TV Act 2010:696 (EN):

 

  • Commercial advertising in TV broadcasts, Teletext, and on-demand TV must not be designed to attract the attention of children under the age of 12 (Chap. 8, s. 7)
  • Programmes (TV or On-demand TV) primarily aimed at children under 12 years of age must not be surrounded or interrupted by advertising (Chap. 8, ss 3 & 7). Nor may these programmes contain product placement (Chap. 6, sect. 2)

 

 

See the Implementation Guidance for requirements by channel;

commitments enhanced July 2021, effective January 2022

 

 

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

General

SECTION C: TV & RADIO/ AV

 

 

STANDARD RULES 

 

  • The Content rules set out in Section B apply; the Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Content rules from the Marketing Act (MA; EN) pertain in all channels; any channel rules from the MA are shown in the relevant sections below
  • Commercial advertising in TV broadcasts, Teletext, and on-demand TV must not be designed to attract the attention of children under the age of 12 (Radio & TV Act RTVA; EN. Chap. 8, s. 7)
  • Programmes (TV or On-demand TV) primarily aimed at children under 12 years of age must not be surrounded or interrupted by advertising (Chap. 8, ss 3 & 7). Nor may these programmes contain product placement (RTVA Chap. 6, s. 2)
  • Must not feature individuals or characters who play a prominent role in children’s programmes (s.8) or people who play a prominent role in programmes that primarily involve news or news commentaries (s.9 RTVA)

 

The Radio and TV Act linked above is the GRS translation of the unamended act. Directive 2018/1808, which amends the AVMS Directive to extend its scope into e.g. video-sharing platforms; extract from recital 3:  'Channels or any other audiovisual services under the editorial responsibility of a provider can constitute audiovisual media services in themselves, even if they are offered on a video-sharing platform which is characterised by the absence of editorial responsibility. In such cases, it will fall to the providers with editorial responsibility to comply with Directive 2010/13/EU'The Radio and TV Act has been duly amended and is in Swedish here. Commercial content rules are essentially unchanged; what's changed is where they are applied

 

 

PRODUCT PLACEMENT (Ch. 6 RTVA)

 

  • Permitted only in films, TV series, sports and light entertainment programmes
  • Prohibited in programmes directed at children under 12 years of age
  • Must not directly encourage purchase or rental of goods or services 
  • Product placement must be indicated at the beginning and at the end of the programme, as well when the programme resumes after an interruption for advertising
  • This indication must be a neutral notification that there is product placement and of the goods/ services which have been placed in the programme

 

 

SPONSORSHIP (Ch. 7 RTVA)

 

  • Prohibited in news or news commentary programmes
  • Must not influence editorial independence
  • Must not directly encourage purchase or rental of goods or services 
  • The sponsored programme must show a message communicated at the beginning or end of the programme (or both) which indicates who has contributed to the financing
  • The message should contain the name, logotype or other mark of the sponsor. The message may not contain sales promotion features
  • If only part of a programme is sponsored, the sponsorship message should be communicated at the beginning or at the end of that part
  • In every case, sponsorship messages require that the integrity and value of the programme, or the rights of the holders of rights have not been violated
  • In the case of TV broadcasts, sponsorship messages can also be communicated in sports events with extended breaks
  • The sponsorship identification may be communicated on a split screen (in cases referenced in ss 4-6)

 

 

RADIO (Ch. 15)

 

  • Individuals who play a prominent role in radio broadcasts that primarily involve news or news commentaries may not appear in advertising (s.4)

 

 

Sponsorship on Radio

 

  • Radio programmes that mainly concern the news or contain news commentary may not be sponsored (s.8)
  • The media services provider of a sponsored radio programme is required to indicate who has contributed to the financing. Such a message should be communicated in an appropriate manner at the beginning and at the end of the programme or at one of these times
  • The sponsorship message should not contain sales promoting features (s.10)

 

 

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International

SECTION C TV/AV AND RADIO

 

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

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

 

CINEMA

 

  • The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media
  • The General content rules that apply to all product sectors should also be observed
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
  • 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
  • While there is no specific prohibition of Food advertising in children’s films in cinema, clearly it would be appropriate to be cautious/ check with media owners if placing advertising for food high in fat, salt, or sugar in such films; see also EU Pledge below
 

 

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 print
  • The General content rules that apply to all product sectors should also be observed
  • 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
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature

 

 

OUTDOOR

 

  • No rules from authorities for the Food and Soft Drinks category that apply specifically to Outdoor advertising; Content rules in Section B apply, together with the rules that apply to all product sectors

 

 

See the Implementation Guidance for requirements by channel; 

commitments enhanced July 2021, effective January 2022

 

 

 

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Read more

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The Content rules in Section B above apply to the Cinema channel, except those specifific to Broadcast. While the prohibition of advertising to children applies technically to television only, according to the Self-Regulatory Organisation RO “The prohibition on advertising to children specified for TV may possibly affect the design of cinema commercials to children.”
  • The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Rules from the Marketing Act (EN) also apply

 

 

PRINT

 

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

 

 

 

OUTDOOR

 

  • The Content rules in Section B above apply to Outdoor media, except those specific to Broadcast 
  • The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Rules from the Marketing Act (EN) also apply
  • This story appeared in the UK trade press June 2018: Stockholm to ban sexist ads from city streets. It is not clear whether the threat to remove 'offending' posters is carried out; what is clear is that there is an aggressive attitude from the authorities towards what might be considered to be ‘sexist’ advertising

 

 

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

 

 

KEY RULES 

 

  • The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, including online
  • The General content rules that apply to all product sectors should also be observed
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
  • 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 can include, for some channels/ techniques, statutory Information and Consent requirements 

 

 

 

See the Implementation Guidance for requirements by channel; 

commitments enhanced July 2021, effective January 2022 

 

 

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Read more

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section sets out the rules for the commercial online environment. Below this, specific channels such as email, marketers’ own websites, and OBA are covered. As the boundaries online can be less clear, and as space online is often advertiser-owned, the identification of what is advertising is significant, as advertising is subject to the rules in Owned and (some) Earned space as well as Paid. The definition of advertising is therefore important: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’ Is from the applicable ICC Advertising and Marketing Communications Code

 

KEY RULES 

 

  • All of the Content rules set out in Section B apply online, except those specific to Broadcast 
  • The Self-Regulatory code on which RO bases its decisions is the ICC Advertising and Marketing Communications Code, which applies to commercial communications online.  Rules from the Marketing Act (EN) also apply 
  • Non paid-for channels in Sweden, such as marketers’ own websites and SNS spaces, are also ‘in remit’ i.e. covered by the rules. Specifics are covered later in this section, but the principle applied in paid space also applies in unpaid or owned space: if it’s a marketing communication, it’s covered
  • The key Self-Regulatory document that guides Digital Marketing Communications (DMCs) in Europe is the European Advertising Standards Alliance's (EASA) DMC Best Practice. While it is not per se binding in Sweden, it’s based on the ICC code and includes some helpful guidance on what techniques are in remit in, for example, marketers’ own websites. The guidance is also referenced in that section below; in brief, both Viral and UGC are considered to be in remit only when endorsed by the marketer
  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

 

SOCIAL MEDIA  

 

 

E-COMMERCE 

 

  • ‘The E-commerce Act and the Distance and Off-Premise Contracts (DAL) are important laws that you should know when selling goods and services over the Internet’ (Swedish Consumer Agency; link is to relevant section)
  • E-commerce guidance is also shown under Marketer’s Own Websites, and Electronic Communications; the Swedish Consumer Agency summary of requirements is here (SW); the E-commerce and Distance Contract acts are shown in our Links Section E 

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

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

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

Also be aware of:

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

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

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

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

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

 

Self-Regulatory clauses 

 

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

 

C1. Identification and transparency

 

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

 

C2. Identity of the marketer

 

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

C7. Marketing communications and children

 

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

 

C10. Respect for the potential sensitivities of a global audience

 

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

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

 

Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • There are no authority rules specific to the Food and Soft Drinks category on the placement and use of Cookies; the prohibition of advertising ‘designed to appeal to’ U12s in broadcast, 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
  • The general cookie rules, i.e. those that apply to all product sectors, include statutory Consent and Information requirements. Specifics below under the General tab

 

 

OBA 

 

  • OBA, like any other advertising, will of course be subject to the Food and Soft Drinks rules set out in the Content Section B
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed 
  • Children’s Behavioural segments are anyway prohibited under the general Self-Regulatory programme (below, under the General tab) and the EU Pledge, while not identifying OBA specifically, is to avoid advertising to children <13 unless products meet specific nutritional criteria

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • The Electronic Communications Act (SW) implemented the 'Cookie Directive' 2009/136/EC in Sweden
  • Data Protection in Sweden pre GDPR was primarily the domain of the Personal Data Act 1998:204, which was repealed and replaced by the new Data Protection Act 2018:218 (SW)
  • The key EU guidance in this context is Guidelines on consent under Regulation 2016/679 (May 2020). From pt. 7: 'The EDPB notes that the requirements for consent under GDPR are not considered to be an ‘additional obligation’, but rather as preconditions for lawful processing. Therefore, the GDPR conditions for obtaining valid consent are applicable in situations falling within the scope of the e-Privacy Directive.'
  • IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising
  • From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here

 

Privacy issues should be reviewed with specialist advisors

 

ONLINE BEHAVIOURAL ADVERTISING (OBA)

 

  • EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
  • GDPR lawful processing rules may apply if data processing identifies individuals (see above). Definitive profiling guidance is from the Article 29 Working Party, now the European Data Protection Board here
  • Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation; effective 19 January 2022
  • OBA, like any other advertising, is subject to the general rules set out in our earlier Content Section B, and any sector-specific rules 
  • We make the assumption that the great majority of behavioural advertising is via ad networks, that they will deploy cookies of various types, the relevant versions of which in this context are therefore third-party cookies; (see IAB Europe's Guide to the Post Third-Party Cookie Era)
  • The key guidance in Sweden was from the PTS (Post and Telecom Authority; Post- och telestyrelsen, PTS), which ‘removed its guidance on consent’ and referenced the EU guidance that we show in the introduction to this section, in Swedish here

International Self-Regulation

 

From the ICC Code Chapter C, Direct Marketing and Digital Marketing Communications, article C22 provisions for OBA; extracts only

https://www.g-regs.com/downloads/ICCCode2018OBAbrefFN9.pdf

 

Application of notice and choice provisions

 

  • Any party participating in IBA 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 IBA purposes is vital. The following guidance provides further clarification for how these principles apply to IBA

 

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 information on how consumers may exercise choice with regard to the collection and use of the data for IBA 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.Examples of how third parties, and where applicable website operators can provide notice of the collection of data for IBA purposes include mechanisms like an icon that links to a disclosure either in or around the advertisement delivered on the web page where data for IBA purposes is collected or somewhere else on the web page; or through a web link to an industry-developed website(s) where third parties are individually listed

 

 

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 IBA. Such choice should be available via a link from the notice mechanisms described in footnote 9. (Footnote 9 reads: "The term ’minor’ refers to those below the legal purchase age, i.e. the age at which national legislation permits the purchase or consumption of such restricted products. In countries where purchase age and consumption age are not the same, the higher age applies. For the purpose of this Article, in countries where there is no legal purchase or consumption age minors are defined as those below the age of 18. The meaning of this term has been derived from the definition provided in the ICC Framework for Responsible Marketing Communications of Alcohol." This is clearly an error. We have been in touch with the ICC)

 

 

C22.6 Children

 

Segments specifically designed to target children for IBA purposes should not be created

 

 
EASA BPR and EDAA

 

  • From EASA’s Best Practice Recommendation on OBA: “In addition to the privacy notice on their own websites, third parties are required to provide an ‘enhanced notice’ to consumers whenever they are collecting or using data for OBA purposes on a website that is not operated by them. The purpose of the enhanced notice is to provide the web user with information about the identity of the company that is delivering the ad and about the fact that the ad is targeted based on previous web viewing behaviour.”
  • A good number of companies and organisations in Europe are supporters of and engaged in the European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance EDAA http://www.edaa.eu. The OBA Icon 

 

 

  • which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

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

From Reed Smith LLP/ Lex May 2022 

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

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

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

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

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

 

C22.1. Notice

 

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

 

C22.2. User control

 

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

 

C22.5. Data security

 

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

 

C22.6 Children

 

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

 

C22.7. Sensitive data segmentation

 

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

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European Self-Regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

 

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

 

  • The content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed 
  • 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 Consent and Information requirements in email communications 

 

 

See the Implementation Guidance for requirements by channel;

commitments enhanced July 2021, effective January 2022

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

STANDARD RULES 

 

  • All of the Content rules set out in Section B apply online, including any sector-specific rules, except those rules for Broadcast channels
  • The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code, which applies to commercial communications online

  • Content and channel rules from the Marketing Act (EN) also apply online. See our Content Section B above

 

 

LEGISLATION

  •  In the case of data processing that identifies individuals, lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • The arrival of GDPR into the regulatory framework might cause some uncertainty regarding consent issues in the context of direct electronic communications and the E-Privacy Directive. The key EU guidance in this context is 'Guidelines on consent under Regulation 2016/679' (May 2020). From pt. 7: 'The EDPB notes that the requirements for consent under GDPR are not considered to be an ‘additional obligation’, but rather as preconditions for lawful processing. Therefore, the GDPR conditions for obtaining valid consent are applicable in situations falling within the scope of the e-Privacy Directive.'
  • The Marketing Act 2008:486 (EN) implements, among others, the marcoms elements of Directive 2002/58/EC on Privacy and Electronic Communications, from which:

 

  • Unsolicited advertising, Section 19 of the Marketing Act. ‘A trader may, in the course of marketing to a natural person use electronic mail, a telefax or automatic calling device or any other similar automatic system for individual communication that is not operated by an individual, only if the natural person has consented to this in advance. Where a trader has obtained details of a natural person’s electronic address for electronic mail in the context of a sale of a product to that person, the consent requirement stipulated in the first paragraph shall not apply, provided that:
     

1. The natural person has not objected to the use of the electronic address for the purpose of marketing via electronic mail

2. The marketing relates to the trader’s own similar products and

3. The natural person is clearly and explicitly given the opportunity to object, simply and without charge, to the use of such details for marketing purposes, when they are collected and in conjunction with each subsequent marketing communication.’

The above ‘soft opt-in’ does not apply to SMS/MMS

 

  • Section 20. In marketing via electronic mail the communication shall at all times contain a valid address to which the recipient can send a request that the marketing cease. This also applies to marketing to a legal person (B2B)
 

 

The 'Blacklist'

 

  • Section 4 of the Marketing Act applies Annex I of the Directive 2005/29/EC in Swedish law. The Government has published the relevant annex in the Swedish Code of Statutes. Annex I is the ‘Blacklist’ - 31 commercial practices in all circumstances considered unfair. No. 26 of the list is 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 (1) and 2002/58/EC.’

 

 

Invitation to Purchase

 

Defined in UCPD 2005/29/EC as ‘a commercial communication that indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase.’ From Section 12 of the Marketing Act (Implementing UCPD):

 

  • in a representation where the trader offers consumers a specific product with a stated price the following material information must be provided:
     

1. The product’s distinguishing characteristics to the extent appropriate to the media and product

2. Price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)

3. The identity and geographical address of the trader

4. Terms and conditions of payment, delivery, performance and processing of complaints if these deviate from normal practice in the industry or for the product in question

5. Information concerning the right of withdrawal or the right to cancel a purchase, which must be supplied to the consumer by law

 

  • Failure to clearly present the information listed under Section 12 will be regarded as misleading marketing. Marketing will also be deemed misleading if the trader in a representation offers consumers several specific products at a common price, without the offer containing material information under points 1-5 in the bullet point above
  • When assessing whether a representation is misleading under Section 10, third paragraph (omitting material information), ‘the limitations in time and space of the means of communication used may be taken into account, as well as the measures taken by the trader to provide the information in some other way’ (Section 11, Marketing Act)

 

 

SELF-REGULATION: ICC Code

 

From Chapter C, Direct Marketing and Digital Marketing Communications, key extracts only; the full set of articles from the Chapter is here

 

 

 Article C1. Identification and transparency

 

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

 

 

Article 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

 

 

Article C8. Respecting consumer wishes

 

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

 

 

National 

 

 

The Self-Regulatory Organisation RO apply the ICC Advertising and Marketing Communication Code in Sweden, as above. From a more local source, The Swedish Direct Marketing Association (SWEDMA) publishes a series of Codes for different aspects of Direct Marketing

 

 

 

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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 the ICC Code, which is applicable in Sweden, is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’.  The General tab below has more on the distinction between 'editorial' and advertising in owned spaces

 

 

KEY RULES
  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, including marketers’ own websites
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
  • 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 Consent and Information requirements  in some cases applicable when website owners are in dialogue with consumers/ users

 

 

See the Implementation Guidance for requirements by channel;

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 non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. Advertising is defined by the ICC Code, which is applicable as the general advertising code in Sweden, as  ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ This section also includes commentary/ guidance on social media and blogging/ influencers specifically, as well as some E-commerce rules. See our earlier Section A Overview for recent case law relating to Influencers and identification

 

STANDARD RULES

 

  • All of the Content rules set out in Section B apply to marketers’ own marcoms on their own website(s), except those specific to Broadcast. The definition of a marketing communication is therefore important – see above
  • Exemptions, i.e. those communications that do not qualify, are set out in the EASA Digital Marketing Communications Best Practice document: while the document is not binding, it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications
  • The Self-Regulatory code on which RO base their decisions is the ICC Advertising and Marketing Communications Code (the ICC Code, as linked above under Context) which applies to commercial communications online
  • Content and channel rules from the Marketing Act (EN) also apply online. See our Content Section B for key extracts. The translation of the Marketing Act linked here does not incorporate revisions introduced as a result of the transposition effective July 1, 2022 of the 2019/2161 Directive (the Omnibus Directive). Provisions, transposed by the government bill here (SW), include that platforms must make available the criteria deployed for search rankings and also confirm the integrity of consumer reviews
  • Re above, the Price Information Act is also affected by the 2019/2161 Directive; see Content Section B for new rules on price promotions - extracted Directive article here (EN)
  • Websites devoted to products or services that are subject to age restrictions such as Alcoholic Beverages, Gambling and Tobacco products should undertake measures to restrict access by minors (Art. C7, ICC Code)

 

 

E-COMMERCE

 

From the Law 2002: 562 (SW) on electronic commerce and other information society services which implemented Directive 2000/31/EC, the E-Commerce Directive. Key requirements in an E-commerce context here (EN)

 

We have been unable to trace where the additional clauses from the Directive in the linked document (under 'here' above) are specifically implemented in Swedish law. RO advise us that they are ‘covered’ under Sections 12 Material information and 10 Misleading omission respectively of the Marketing Act. The linked MA document is a translation, within which the links to the original MA in Swedish are volatile. This worked at the time of writing

 

 

 SOCIAL MEDIA/ BLOGS

 

 

 

Nordic Consumer Ombudsmen guidance 

 

The Nordic Consumer Ombudsmen's position on marketing through social media; in Swedish:

https://www.konsumentverket.se/globalassets/publikationer/produkter-och-tjanster/reklam-och-marknadsforing/vagledning-standpunkt-marknadsforing-sociala-medier-121205-konsumentverket.pdf

 

Translated here

 

The Nordic Consumer agency’s position on covert marketing; in Swedish

http://www.konsumentverket.se/globalassets/publikationer/produkter-och-tjanster/reklam-och-marknadsforing/vagledning-nordisk-standpunkt-om-dold-marknadsforing-konsumentverket.pdf

 

Translated here

 

LEGISLATION AND SELF-REGULATION: IDENTIFICATION

 

Section 9 of The Marketing Act:

  • All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing. The party responsible for the marketing shall also be clearly indicated. However, this does not apply to representations whose sole purpose is to attract attention ahead of follow-up representations (note: this latter sentence exempts teaser advertising)

 

Article 7 of the ICC Code. Identification and transparency 

 

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

 

Article 8. Identity of the marketer

 

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

 

Swedish Advertisers' Guide to Successful Influencer Marketing; January 2019

 

The document sets out a checklist of how to work with Influencers. It includes some guidance on the regulatory issues; key clause in this context is the first bullet point:

 

  • That the influencer commits to follow the Consumer Agency's social media guide (SW) and the ICC Advertising and Marketing Communication rules
  • While the link above takes you to a legitimate document, the most recent Consumer Agency Guidelines on Marketing in Social Media is here 
  • The most recent review of this text (March 2020) indicates that the Swedish Advertisers document is now behind a pay/ membership wall

 

 

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International

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

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

Unsolicited communications

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

 

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

 

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

 

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

 

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

 
 
Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

 

CONTEXT

 

Native advertising is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s Online Native Advertising Guidance provides some categories of native ads, some good practice recommendations, and a summary of EU rules. The ICC’s Guidance on Native Advertising is linked and also shown under the General tab below. Category-specific rules are immediately below

 

 

RULES

 

  • ‘Native’ advertising is like any other Food and Soft Drink advertising or any sector’s advertising – it’s subject to the Content rules; the key general rule, spelt out under the General tab, is that of identifiability/ disclosure
  • So the Content rules for Food and Soft Drinks in Section B above apply - to marketing communications in all media
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed 
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Native advertising is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experienceThe key issue is obviously that of advertising Identifiability, covered extensively in Self-Regulation and Legislation set out below 

 

 

KEY RULES

 

  • The ‘Native’ form of advertising is like any other advertising - it’s subject to the Content rules, in this context the ICC Advertising and Marketing Communications Code, applied in its Swedish version by Ro, the Self-Regulatory Organisation 
  • The Marketing Act (linked below) also applies  
  • The key general rule is that of identifiability/ disclosure. From the linked Code above:

 

 

Article 7 of the ICC Code. Identification and transparency 

 

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

 

 

Article 8. Identity of the Marketer

 

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

 

 

The ICC’s Guidance on Native Advertising includes:

 

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

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

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

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

 

 

LEGISLATION

 

  • The Marketing Act (EN) covers the same identification issue under Section 9: ‘All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing. The party responsible for the marketing shall also be clearly indicated. However, this does not apply to representations whose sole purpose is to attract attention ahead of follow-up representations’ (note - i.e. teaser advertising)
  • Annex I of the UCPD 2005/29/EC - the 'Blacklist' of Commercial Practices considered 'unfair in all circumstances' - is passed into Swedish law under the Swedish Code of Statutes. The two relevant articles are:

 

  • 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

 

 

OTHER GUIDANCE

 

 

RULING

 

One of Sweden’s major newspapers teamed up with a telecom operator who finances a particular section of the newspaper under the title ‘The Digital Life’. This section and all of its material, including promotions of products which the telecom operator was about to launch, appear as the newspaper’s editorial content; the only disclosure of the commercial nature of the presented material is the discrete appearance of the text ‘in collaboration with’ followed by the telecom operator's trademark. The Swedish Consumer Agency assessed that the practice was in breach of Point 11 of Annex I UCPD. Case reference: Ärenden 2016/53 and 2015/1000:

http://diabasweb.kov.se/arenlist.asp

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

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

 

Standard rules

 

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

 

Self-Regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

 

 

 

Following feedback, we no longer cover Telemarketing

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

KEY RULES

 

  • The Content rules for Food and Soft Drinks in Section B above apply in this channel
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed 
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
  • 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 Consent (related to data processing) and Information requirements for Direct Mail
 

 

See the Implementation Guidance for requirements by channel;

commitments enhanced July 2021, effective January 2022

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

  • All of the Content rules set out in Section B apply to DM marcoms (marcoms are ‘any form of communication produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour'), except those rules prohibiting appeal to children in broadcast advertising
  • This section does not address ‘mail drops’ as in the delivery of unaddressed leaflets, flyers etc., though those may remain subject to advertising content rules. These paragraphs cover addressed mail (including those addressed to ‘the occupier’ etc.) in ‘hard’ form
  • The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code.  Content and channel rules from the Marketing Act also apply in DM. See our Content Section B
  • The Data Processing legislation that applies before transmission is not shown here; be aware that if Data Processing includes personal data (that which identifies an individual) then it may be subject to the GDPR, directly applicable in all member states. Swedish legislation complements the GDPR with the new Data Protection Act 2018:218 (SW), which repeals and replaces the former Personal Data Act 1998:204
  • The following rules address the required information in the communication, the opt-out process, and consumer consent in order to send it

 

 

LEGISLATION

 

  • Section 21 of the Marketing Act provides for Opt-out consent: ‘A trader may use methods for individual distance communication other than those referred to in Section 19 (electronic systems), unless the natural person has clearly objected to the use of such methods’
  • Direct mail marketing is therefore allowed to individual subscribers unless they have clearly objected to receiving advertising; applicable to B2C and not to B2B. The opt-out principle should apply to B2B in absence of regulation, but legal advice should be sought in the event of uncertainty
  • Section 4 of the Marketing Act applies Annex I of the Directive 2005/29/EC in Swedish law. The Government has published the relevant annex in the Swedish Code of Statutes. Annex I is the ‘Blacklist’ – 31 commercial practices in all circumstances considered unfair. No. 26 of the list is ‘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.’

 

 

Invitation to purchase

 

Defined in EU legislation UCPD 2005/29/EC as ‘a commercial communication that indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase.’ DM can include this kind of advertising, hence the rules below. From Section 12 of the Marketing Act, which implements the UCPD, among others:

 

  • In a representation where the trader offers consumers a specific product with a stated price the following material information must be provided:
     

1. The product’s distinguishing characteristics to the extent appropriate to the media and product

2. Price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)

3. The identity and geographical address of the trader

4. Terms and conditions of payment, delivery, performance and processing of complaints if these deviate from normal practice in the industry or for the product in question

5. Information concerning the right of withdrawal or the right to cancel a purchase, which must be supplied to the consumer by law
 

  • Failure to clearly present the information listed under Section 12 will be regarded as misleading marketing. Marketing will also be deemed misleading if the trader in a representation offers consumers several specific products at a common price, without the offer containing material information under points 1-5 in the bullet point above

 

 

SELF-REGULATION

 

The ICC code

 

Rules applicable to 'Direct Marketing and Digital Marketing Communications' (scope includes non-digital) from Chaper C of the ICC Advertising and Marketing Communications Code are here. Key extracts (there are 22 articles in Chapter C) are:

 

 

Article C1. Identification and transparency

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

Article 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

 

 

Article C8. Respecting consumer wishes

 

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

 

 

SWEDMA

 

 

The Swedish Direct Marketing Association is a well-established and respected trade association, publishing a number of codes that reflect accurately relevant legislation. Some of those codes can be found here (SW)

 

 

 

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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
  • Marketing communications in promotional material (leaflets, brochures etc.) associated with sponsorship are subject to the Content rules set out in Section B
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed 
  • Infant Formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature; all forms of promotional activity are prohibited for Infant Formula
  • The General channel rules applicable to all product sectors are set out below; these include Sponsorship rules from Chapter B of the ICC Advertising and Marketing Communications Code
 

 

 

See the Implementation Guidance for requirements by channel;

commitments enhanced July 2021, effective January 2022

 

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

STANDARD RULES 

 

  • Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc., is subject to the rules set out in our Content Section B, except those rules specific to Broadcast media; the applicable Self-Regulatory Code in Sweden is the ICC Advertising and Marketing Communications Code (EN)
  • The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from Chapter B of the ICC Code linked above; clauses follow. For scope, definitions etc., see the linked Code

 

 
 B1.  Principles governing sponsorship
 
  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
 
 
B2. Autonomy and self-determination

 

  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement
 
 
B3. Imitation and confusion
 
  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
 
 
B4.  Ambushing of sponsored properties
 
  • No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public
 
 
B5.  Respect for the sponsorship property and the sponsor
 
  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
  • The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
 
 
B6.  The sponsorship audience
 
  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
 
 
 B7.  Data capture/data sharing
 
  • If personal data is used in connection with sponsorship, the provisions of article 19 are applicable
 
 
B8.  Artistic and historical objects 
 
  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
 
 
 B9.  Social and environmental sponsorship
 
  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications
 
 
B10.  Charities and humanitarian sponsorship
 
  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
 
 
 B11. Multiple sponsorship
 
  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship
  • The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
 
 
B12.  Media sponsorship
 
  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
 
B13.  Responsibility
 
  • As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
  • Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

 

 

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

 

 

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International

 

 

 

Self-Regulation

 

 

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

B3: Imitation and confusion

 

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

 

 

 B4: 'Ambushing' of sponsored properties

 

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

 

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

 

B6: The sponsorship audience

 

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

 

 

B7: Data capture/ data sharing

 

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

 

 

B8: Artistic and historical objects

 

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

 

 

B9: Social and environmental sponsorship

 

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

 

 

B10: Charities and humanitarian sponsorship

 

 

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

 

 

B11: Multiple sponsorship

 

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

 

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11. Sales Promotion

Sector

 

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.

 

 

STANDARD RULES

 

  • Sales promotional marketing communications material must observe the Content rules for Food and Soft Drinks in Section B
  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed 
  • Infant formula advertising is permitted only in specialist press and may contain only information of a scientific and factual nature
  • It is prohibited to use or to distribute infant formulae that are donated/ sampled, or sold at preferential prices, other than within the health and social services for children who need it, and only for as long as those children need it (Art. 10, Law 2013/1054); see also the rules below from the European Directive 
  • Marketing communications directed towards children for food and soft drink products should not create a sense of urgency, or inappropriate price minimisation (Art. 18. ICC Code/ Framework)
  • According to Swedish counsel, combination offers that invite ‘loading’ of foods deemed nutritionally inappropriate could be seen as violating good marketing practice Definition good marketing practice: generally accepted business practices or other established norms aimed at protecting consumers and traders in the marketing of products (Section 3 Marketing Act) in Section 5 Section 5 Marketing Act Marketing shall be consistent with good marketing practiceof the Marketing Act. The Consumer Ombudsman would be the plaintiff. HFSS is a high priority subject at the Swedish Consumer Agency, especially marcoms in children’s magazines or websites etc.
  • 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, some important requirements when running promotions or competitions, or when communicating price in a promotional context

 

 

INFANT FORMULA


From Article 14, Directive 2006/141/EC, remaining in force until February 2020

 

  • 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 formulae shall not provide, to the general public or to pregnant women, mothers or members of their families, free or low-priced products, samples or any other promotional gifts, either directly or indirectly via the health care system or health workers

 

 

See the Implementation Guidance for requirements by channel;

commitments enhanced July 2021, effective January 2022 

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

  • Sales promotional material is required to observe the Content rules set out in our Section B, including broadcast rules (that prohibit appeal to children) in the event that a promotion is in that channel
  • This piece from Wistrand via Lexology ‘Prohibited and controlled advertising in Sweden’ includes guidance/ regulatory background for e.g. lotteries and promotional contests 
 

LEGISLATION

 

Pricing is obviously relevant to Sales Promotions. In March 2022, in force July 1,the Swedish government published a bill here (SW) transposing the 'Omnibus Directive' 2019/2161, which inter alia amended the Product Price Directive. Provisions from that include new promotional pricing rules, set out in the article extracted from the Directive here and transposed under article 2.2 of the Swedish bill 

 

  •  Annex I of the Unfair Commercial Practices Directive 2005/29/EC, transposed in Section 4 of Sweden’s Marketing Act (EN; does not include 2019/2161 amends), sets out the commercial practices ‘in all circumstances considered unfair’. Shown below are only the most relevant practices for this SP context:
     
    • 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
    • 14. Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products
    • 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

 

MORE LEGISLATION

 

The E-Commerce Directive 2000/31/EC is part-implemented in Sweden by the Law 2002: 562 (SW) on electronic commerce and other information society services

 

The Directive carries two additional requirements, not shown in the Swedish law linked above and not explicit in the Marketing Act, under Article 6 of the Directive:
 

C) 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
D) 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

 

We have been unable to trace where these clauses are specifically implemented in Swedish law. RO advise us that they are ‘covered’ under sections 12 (Material information) and 10 (Misleading omission) respectively of the Marketing Act (EN). The Information requirements under the Self-Regulatory ICC Code Chapter A below are more specific:

 

 

SELF-REGULATION

 

From Chapter A, Sales Promotion, of the  ICC Advertising and Marketing Communications Code. Extracts:

 
A2. Terms of the offer

 

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

 

A4. Administration of promotions

 

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

 

In particular:

 

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

 

A5. Safety and suitability

 

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

 

 A6. Presentation to consumers

 

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

 

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

 

Information should include, where relevant:

 

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

 

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

 

 

Information in prize promotions

 

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

 

  • Any rules governing eligibility to participate in the prize promotion
  • Any costs associated with participation, other than for communication at or below standard rate (mail, telephone and other devices)
  • 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 are

 

A7.  Presentation to Intermediaries
A8 . Particular Obligations of Promoters
A9.  Particular Obligations of Intermediaries
 A10 . Responsibility
 
These are spelt out here:
 
 
 
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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

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

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

 

A5: Safety and suitability

 

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

 

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

 

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

 

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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Read more

D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

The Advertising Ombudsman can be reached via e-mail ro@reklamombudsmannen.org; their website in English can be found at http://www.reklamombudsmannen.org/eng/

 

Specific copy advice is recently available in Sweden. RO does not pre-clear 

 

 

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 SOURCES

 

 

LEGISLATION

 

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

 

Nutrition and Health Claims

 

EU Regulation No. 1924/2006. Without prejudice to Directives 2000/13/EC & 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 nutrition 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

 

Guidance On the Implementation of Regulation 1924/2006 On Nutrition and Health Claims Made On Foods; (article 9 especially):

https://ec.europa.eu/food/sites/food/files/safety/docs/labelling_nutrition_claim_reg-2006-124_guidance_en.pdf

 

 

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 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/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

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 25 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 under article 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.

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

 

Commission Implementing Regulation (EU) No 1337/2013 of 13 December 2013 laying down rules for the application of Regulation (EU) No 1169/2011 of the European Parliament and of the Council as regards the indication of the country of origin or place of provenance for fresh, chilled and frozen meat of swine, sheep, goats and poultry

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:335:0019:0022:EN:PDF

 

 

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 20th December 2006 on the addition of vitamins and minerals and of certain other substances to foods. Scope: Provisions of this Regulation do not apply to food supplements covered by Directive 2002/46/EC, but apply without prejudice to specific provisions for a) foods for particular nutritional uses and, in the absence of specific provisions, compositional requirements of such products rendered necessary by the particular nutritional requirements of the persons for whom they are intended; (b) novel foods and novel food ingredients; (c) genetically modified food; (d) food additives and flavourings; (e) authorised oenological (winemaking) practices and processes. Article 7. 1. The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients. Where appropriate, a derogation (exemption or amendment) concerning a specific nutrient may be adopted in accordance with the procedure referred to in Article 14 (2). 2. The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not mislead or deceive the consumer as to the nutritional merit of a food that may result from the addition of these nutrients.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006R1925

 

 

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 Feb 2021 for protein hydrolysate based formulae. Until the application dates, the requirements established in Directive 2006/141/EC will remain in force; see later entry
  • For food for special medical purposes (FSMP): Delegated Regulation 2016/128; Article 7 prohibits the use of nutrition and health claims for FSMP. It was adopted on 25 September 2015 and applies from 22 February 2019. Until that date, the rules of Directive 1999/21/EC remain applicable
  • FoFoods intended for total diet replacement for weight control: Delegated Act still awaited. Until the finalisation of the Delegated Act, the rules of Directive 96/8/EC remain applicable, i.e. Article 5 (3): Labelling, advertising and presentation shall not make any reference to the rate or amount of weight loss; Due to Recitals 1- 6 in Directive 2007/29/EC, which amended Directive 96/8/EC, Regulation 1924/2006 on nutrition and health claims made on foods will also apply (see s. 12 (b) and Art. 13(1c)). 
  • 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

 

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.

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

 

 

Foods intended for energy-restricted diets for weight reduction

 

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:

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:01996L0008-20070620

 

 

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. Regarding 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

Consolidated version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:02002L0046-20150402

Summary:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al21102

 

 

NATIONAL LEGISLATION AND GUIDELINES 

 

Food Information

 

LIVSFS 2014:4 Regulations on Food Information in force December 13, 2014, repeals former labeling regulations (SLVFS 1993: 21, LIVSFS 2002: 47 and 2004: 27), and primarily contains the labeling and presentation rules supplementing European Parliament and Council Regulation (EU) No 1169/2011 on the provision of food information to consumers: 

https://www.livsmedelsverket.se/globalassets/om-oss/lagstiftning/livsmedelsinfo-till-konsum---markning/livsfs-2014-4-tryckvers.pdf or
https://www.livsmedelsverket.se/om-oss/lagstiftning1/gallande-lagstiftning/livsfs-20144

 

 

Food Supplements

 

The Swedish Food Agency Regulations on Food Supplements requires rules to be ‘in compliance with the rules in Directive 2002/46/EC. The Directive is implemented into Swedish legislation without national amendments.’ The relevant articles are 6 and 7 of the Directive (the 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 (Art. 6.2.); the labelling, presentation and advertising of food supplements shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general (Art. 7)). The national regulation LIVSFS 2003:9 is here:

https://www.livsmedelsverket.se/globalassets/om-oss/lagstiftning/berikn---kosttillsk---livsm-spec-gr-fsmp/livsfs-2003-9.pdf

 

 

Diet Replacement

 

LIVSFS 2016:11 on total diet replacement for weight control. These regulations entered into force on 20 July 2016. They are Recognition of Regulation 609/2013 on, inter alia, total diet replacement for weight control (products deliver less than 800kcal); this Act also therefore repeals (SLVFS 1997:30) on certain foods intended for use in an energy-restricted diet for weight loss. Section 8 requires that there is no reference to the rate or amount of weight loss that could result from use of the product (a requirement covered under EU Regulation 1924/2006, article 2.8): 
https://www.livsmedelsverket.se/globalassets/om-oss/lagstiftning/berikn---kosttillsk---livsm-spec-gr-fsmp/livsfs-2016-11-tryckfil_web.pdf

 

 

 

Infant Formula and Follow-on Formula 

 

Law 2013: 1054 on the marketing of infant formula and 'supplementary' food. (Lag 2013:1054 om marknadsföring av modersmjölksersättning och tillskottsnäring). Implements Directive 2006/141/EC on infant formula and follow-on formula. Key articles are 3, 7, 8, 9, 10. These prohibit any form of promotional activity (unless related to welfare), require positive statements about breast-feeding, prohibit pictures of infants or related text, and confine advertising to specialist publications and to reference only factual/ scientific information:

http://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-20131054-om-marknadsforing-av_sfs-2013-1054

 

 

Foods intended for particular nutritional use

 

LIVSFS 2016:7 Repeal of the regulations (SLVFS 2000:14) on foods intended for particular nutritional uses, from 20 July 2016. This is recognition of Regulation (EU) No. 609/2013, which abolishes the concept of ‘foodstuffs for particular nutritional uses’:
https://www.livsmedelsverket.se/globalassets/om-oss/lagstiftning/berikn---kosttillsk---livsm-spec-gr-fsmp/livsfs-2016-7-tryckfil_web.pdf

 

 

Consumer Protection 

 

The Marketing Act (Marknadsföringslagen) SFS 2008:486. Transposition in Sweden of the Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices. Section 5 (‘Marketing shall be consistent with good marketing practice’) is deployed by the Consumer Ombudsman (see under ‘Authorities’) in the event that some food advertising e.g. to children is regarded as inappropriate. English translation:
http://www.government.se/4abc0a/contentassets/747603b3d1a04351b1773524c7de3c84/2008486-marketing-act
Up to date translation: 

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

 

 

NATIONAL AUTHORITIES AND ASSOCIATIONS

 

 

The National Food Agency (NFA) works towards the following goals: healthy dietary habits, safe foods and fair practices in the food trade. Tools are regulations, recommendations and communication. Food legislation is essentially harmonized within the EU. The NFA takes a part in the development of new legislation in co-operation with other EU member states, and deals with the food safety and responsibility of companies that produce or sell food. The NFA is an autonomous government agency reporting to the Ministry of Rural Affairs. The link below is to the NFA’s legislation pages: http://www.livsmedelsverket.se/sok/?categoryid=2

The link below is to the Regulations in date order: 
https://www.livsmedelsverket.se/om-oss/lagstiftning1/lagar-om-livsmedel/

 

 

The Swedish Consumer Agency is a state agency whose task is to safeguard consumer interests in different types of consumer issues. Safety with regard to goods and services, company advertising and contract conditions, domestic finances and consumer-related disabled and environmental issues are a few of the agency’s work areas.  The Agency is headed by a Director General who is also the Consumer Ombudsman (Konsumentombudsmannen, KO). KO can represent consumer interests in relation to businesses, and pursue legal action in the courts.

The Agency has for a number of years expressed that sugar and fat stands under the authority’s ‘special control’, which means that they follow the development of HFSS marcoms in Sweden very closely and have a dialogue with sister organisations in the EU and worldwide. The ‘about’ page is in English here:
http://www.konsumentverket.se/languages/english-engelska/

 

 

Swedish Nutrition Foundation. ‘SNF is a not-for-profit organisation with the overall purpose of promoting nutrition research and its practical application. SNF is a forum for collaboration between academia and industry and constitutes a ‘knowledge bridge’ between nutrition research and society in general. SNF's network includes leading researchers in the nutrition field at Swedish universities. The member companies represent all parts of and all stages of the food chain. An important part of our business is to convey scientifically based information on food and health, which is done through, among other things, the web portal nutritionsfakta.se, the journals Nordisk Nutrition and Food & Nutrition Research, conference activities and advice to companies. SNF has long experience of scientific and nutritional issues related to nutrition and health claims.’ 

http://www.halsopastaenden.se/


Handbook on nutrition and health claims (this has not been translated as much of it is to do with labelling versus marcoms and it is anyway based on the Regulation 1924/2006)
http://www.halsopastaenden.se/wp-content/uploads/2012/10/Handbok-v.2-2014.pdf

 

Their checklist for nutrition and health claims
Before deciding to use a nutrition or health claim, it is important to discuss internally whether the claim will be used in a clear, responsible and balanced way. Please use this checklist, designed by the Industry Support for Nutrition and Health Claims - see also the Manual (page 8, second edition, linked above). If you cannot answer YES in all respects, there is a risk that the statement will not be used correctly and may be perceived as misleading by consumers.

  1. Is the claim approved?
  2. Does the product comply with the specific terms and conditions for the claim?
  3. Does the product have such a composition that it helps the consumer to maintain a healthy diet?
  4. Can consumers understand the statement; is it straightforward, without risk of misinterpretation?
  5. Is a normal portion of the food sufficient for the amount of nutrient/ other substance that is associated with the claim or is it necessary to consume unrealistic quantities?
  6. Is the amount of food (required to absorb the amount of nutrient/ other substance associated with the claim) a help to eat in a more balanced way, or can it contribute to unhealthy eating habits?

 

 

The Swedish Food Federation

 

The Swedish Food Federation of food companies has approximately nine hundred member companies, representing all types of companies in the food industry and the food chain, from small, local companies to large, international organisations. Livsmedelsföretagen  is a member of the Confederation of Swedish Enterprise (Swedish Industry) and Food Drink Europe:
http://www.li.se/ or the following link is to their Food and Legislation pages: 

https://www.livsmedelsforetagen.se/vara-fokusomraden/livsmedelslagstiftning/

 

 

INDUSTRY GUIDANCE AND CODES

 

 

The Self-Regulatory Organisation in Sweden is Reklamombudsmannen (RO). Aka the Swedish Advertising Ombudsman, it was founded in January 2009 by the Association of Swedish Advertisers together with the Confederation of Swedish Enterprise (NDM), the Swedish Advertising Association, ICC, the Swedish Direct Marketing Association and Swedish Newspaper Publisher Association. RO receives complaints and assesses against the ICC Code. Cases that are complicated or deal with a subject that has not previously been heard are referred to the RO Jury (RON - Reklamombudsmannens opinionsnämnd). The Jury consists of a chairman who is a judge or a lawyer, other lawyers and representatives from the advertising industry, universities, and consumer interests. RO also provide information, guidance and training in the field of ethical marketing:

http://reklamombudsmannen.org/eng/

The Swedish version of the iCC Code is here:

https://cms.iccwbo.org/content/uploads/sites/3/2019/07/icc-2019-marketing-code-swe.pdf

And the Englih version here:

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

 

 

INTERNATIONAL ASSOCIATIONS AND CODES

 

ICC

 

ICC Framework for Responsible Food and Beverage Marketing Communications; The International Chamber of Commerce publishes the Advertising and Marketing Communications Code (linked above), which underpins much of advertising Self-Regulation worldwide. The Framework is based on that Code, and applies the Code's principles to the Food and Beverages situation. Full contents are expressed in Section B of these pages, and can be found in the link below:

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

 

 

EU PLEDGE

 

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

 

 

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

 

 

UNESDA
http://www.unesda.eu/

 

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

 

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

 

 

FOODDRINKEUROPE

 

From their website (role and mission): “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/ LINKS

 

 

EUROPEAN LEGISLATION

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018.

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


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

 

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

 

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

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

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

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

 

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

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

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

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

 

E-privacy

 

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

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

 

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

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

 

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

E-commerce

 

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

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

 

 

NATIONAL LEGISLATION

 

The Marketing Act

 

The Marketing Act SFS 2008:486 (Marknadsföringslagen - MFL); entry into force 01/07/2008. This act, highly influential in marketing/ advertising in Sweden, implements the Unfair Commercial Practices Directive 2005/29/EC and some provisions of the ePrivacy Directive, and aims to prevent marketing that is unfair to consumers and traders (Section 1). It incorporates rules from Misleading and Comparative Advertising Directive (MCAD) 84/450/EEC now codified in the form of 2006/114/EC, sets out general rules on commercial communications and ‘invitations to purchase’ and covers B2C and B2B relationships. Relevant sections are 9, 19, 20, 20a, 21 which incorporate provisions of Article 13 E-Privacy Directive (as amended by 2009/136/EC) concerning the use of unsolicited advertising via email. Consolidated text, including the amends referenced in the italicised para below introduced by 2022:656 and effective September 1, 2022:

http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Marknadsforingslag-2008486_sfs-2008-486/

https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/marknadsforingslag-2008486_sfs-2008-486

English version of 2008:486 (not up to date; last updated 03/01/2011)

http://www.government.se/content/1/c6/05/03/14/6c7aa374.pdf

Updated, but not including amends related to the 2019/2161 Directive:

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

 

In March 2022, the Swedish government published a bill 2021/22:174 linked here (SW) Ett moderniserat konsumentskydd (Modernised consumer protection) which established the transposition of the 'Omnibus' Directive 2019/2161. The Marketing Act is the recipient for the amends the Directive made to the UCPD which for our purposes were three, essentially: the requirement to make available search ranking criteria, that traders ensure that consumer reviews originate from consumers who have actually used or purchased the product and the prohibition of 'any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.’ (from the Directive). The government bill sets out these amends under article 2.4. with detail thereafter.

 

Price

 

The Price Information Act (SFS 2004:347 Prisinformationslag). This act requires that consumers be given accurate and clear pricing information on products. The Marketing Act states in Section 12 (2) that where a product is marketed with a stated price, the price and unit price must be expressed as stipulated in Articles 7-10 of the Price Information Act. This provision has been confirmed by the regulatory authority – the Swedish Consumer Agency – whose guidance on price information is in the form of Regulation KOVFS 2012:1 (Section 2). In March 2022, the Swedish government published a bill 2021/22:174 linked here (SW) Ett moderniserat konsumentskydd (Modernised consumer protection) which established the transposition of the 'Omnibus' Directive 2019/2161. That Directive amended the Product Price Directive 98/6/EC to introduce new promotional pricing rules in article 6a here which require that 'Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.' (from the Directive; extract only). The Price Information Act is amended accordingly, under article 2.2. of the government bill. The link below includes the amends under section 7a, in force September 1, 2022.​

http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Prisinformationslag-2004347_sfs-2004-347/

Unofficial, non-binding English translation here; does not include 2022 amends

 

 

Channel legislation

 

TV and radio

 

Radio and Television Act (SFS 2010:696). This Act implements the Audiovisual Media Service (AVMS) Directive 2010/13/EU. It applies to Broadcasters established in Sweden (Sect. 3 (1)). Specific provisions are for product placement (Ch. 6), sponsorship (Ch. 7) and commercial communications (Ch. 8). Provisions for radio advertising are covered in Chapter 15; the Act also covers on-demand TV. Provisions exceed the AVMS Directive in as much as advertising ‘may not aim to appeal to children under the age of twelve’; programmes primarily aimed at children U12 may not be surrounded or interrupted by advertising (Ch. 7, 8 (3) & Ch. 6 (2)). Consolidated text (Swedish):

http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Radio--och-tv-lag-2010696_sfs-2010-696/

GRS translation of key provisions:

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

This act was amended effective November 2020 by SFS 2020:875 in order to address the amends to the AVMSD by Directive 2018/1808 (see above, or the linked file). Amended act here in Swedish:

 

Broadcast authority

 

The Swedish Broadcasting Authority (Myndigheten för Radio och TV). Formed 1 Aug 2010 by merging the previous agencies the Broadcasting Commission and the Swedish Radio and TV Authority. The Authority make decisions regarding licenses, fees and registration for radio and television, as well as supervising radio and television broadcasts, on-demand services and teletext.

http://www.radioochtv.se/en/

http://www.radioochtv.se/Tillstand-och-registrering/Regler-om-tillstand/

 

 

Privacy

 

Data processing

 

Data Protection pre-GDPR (see above) was primarily the domain of the Personal Data Act 1998:204, which was repealed and replaced by the new Data Protection Act 2018:218 (SW). In force 25 May 2018. Lag (2018:218) med kompletterande bestämmelser till EU:s dataskyddsförordning. The Data Protection Authority Datainspektionen makes it clear that the new law complements GDPR but does not replace any of its aspects. The new law has not been translated; original Swedish here:

https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-2018218-med-kompletterande-bestammelser_sfs-2018-218

 

 

Data authority

 

National regulatory authority: Datainspektionen. The Data Protection Authority (DPA) is a public authority, a central government agency which reports to the Ministry of Justice. Its principal task is to protect the individual's privacy in the information society.

http://www.datainspektionen.se/  and in English:

http://www.datainspektionen.se/in-english/  

 

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

 

 

Electronic communications

 

The Electronic Communications Act 2003:389 (Lag om elektronisk kommunikation - LEK) Issue 12/06/2003. Entry into force 25/07/2003. The ECA applies to electronic communication services and networks, including internet and telecommunication services and networks. The Act implements the E-Privacy Directive 2002/58/EC; an amendment in the form of Act 2011:590, implemented the Citizens Rights Directive 2009/136/EC, also known as the Cookie Directive. Entry into force 01/07/2011 (transitional provisions). Section 18 transposes Article 5 (3) E-Privacy Directive, courtesy of 2009/136/EC amendment. Consolidated text:

http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2003389-om-elektronisk-_sfs-2003-389/#overgang

 

E-commerce

 

Act on electronic commerce and other information society services SFS 2002:562 (E-handelslagen) Issued 06/06/2002. Entry into force 01/07/2002. The law implements the Electronic Commerce Directive 2000/31/EC, laying down a minimum level of information required from Information Service providers. Relevant articles 8 and 9:

http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2002562-om-elektronisk-_sfs-2002-562/

There’s a summary of requirements of the E-commerce act from the Swedish Consumer Agency here:

https://www.konsumentverket.se/for-foretag/olika-saljkanaler/regler-nar-du-saljer-pa-internet/e-handelslagen/

The Nordic Consumer Ombudsmen position on trade and marketing on the internet; October 2015 (SW):

https://www.forbrugerombudsmanden.dk/media/46620/standpunkt-vedroerende-markedsfoering-og-ehandel-2010-rev-2015.pdf

 

 

Distance selling

 

Act 2005:59 on Distance and Off-Premises Contracts (Lag (2005:59) om distansavtal och avtal utanför affärslokaler). This law implements Directive 2002/65/EC concerning the distance marketing of consumer financial services. Amendment 2014:14 in part implements the Consumer Rights Directive 2011/83/EC by changing the name of the Act (Distance and Doorstep Sales Act) to its current title and replacing Chapter 2 (Distance contracts for goods and non-financial services) as well as repealing Chapters 4 (Doorstep Contracts) and 5 (Common Provisions).

https://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Distans--och-hemforsaljningsla_sfs-2005-59/

Translation of relevant sections in Chapter 3 here:

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

The Swedish Consumer Agency provides E-commerce guidance here:

https://www.konsumentverket.se/for-foretag/olika-saljkanaler/regler-nar-du-saljer-pa-internet/

 

 

Swedish Consumer Agency (Konsumentverket)

 

A Government Agency which answers to the Ministry of Finance. Its Director-General is also the Consumer Ombudsman (Konsumentombudsmannen, KO). The Agency, along with others, is tasked with implementing the Government's consumer policy. It is responsible for reviewing marketing and advertising for whether it is misleading or unfair. Consumer law is from the Consumer Agency’s Statute Book Konsumentverkets författningssamling KOVFS. The KOVFS consists of regulations and general guidelines; the regulations are binding whilst the guidelines only guide. The Agency can take those to court who do not meet requirements, and can take measures against misleading advertising and other forms of marketing; unfair contract terms; incorrect price information; dangerous products and services etc.:

http://www.konsumentverket.se/

 

Children

 

The Swedish Consumer Agency’s Guidance on marketing aimed at children and young people. A document with the original Swedish together with an English translation is here:

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

The original Swedish document is here:

http://www.konsumentverket.se/globalassets/publikationer/produkter-och-tjanster/reklam-och-marknadsforing/vagledning-om-marknadsforing-riktad-till-barn-och-unga-konsumentverket.pdf

 

Social Media/ Infuencers

 

 

The Swedish Consumer Agency Guidelines on marketing in social media:

https://www.konsumentverket.se/globalassets/publikationer/produkter-och-tjanster/reklam-och-marknadsforing/vagledning-marknadsforing-sociala-medier-konsumentverket.pdf (SW)

http://www.g-regs.com/downloads/SWConsAgencySocMediaGuidelines2020.pdf

 

 

 

Nordic Ombudsmen guidance 

 

Environmental claims

 

Guidance of the Nordic Consumer Ombudsmen, of which the Swedish Consumer Agency is a member; use of ethical and environmental-related claims in marketing. In Swedish here:

http://www.konsumentverket.se/contentassets/dcac36a19d2a4f5c8c6b451ce8dfc4dd/nordisk-standpunkt-miljo-konsumentverket.pdf

And translated here:

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

 

Covert marketing

 

From the introduction: ‘It is important that consumers are not exposed to hidden marketing. Therefore, this is an area that is strongly prioritised by the Nordic Consumer Ombudsmen. Over the next few years, the Nordic Consumer Ombudsmen will share experiences and discuss developments in this area at Consumer Ombudsmen meetings that take place every six months. This position, which expresses the Nordic Consumer Ombudsmen's opinion of advertising identification rules, has been developed to inform companies about how to act in order not to contravene the ban on hidden advertising’. Translation from the Finnish website here:

https://www.kkv.fi/en/decisions-and-publications/publications/consumer-ombudsmans-guidelines/international/nordic-position-on-covert-marketing

Translation showing the original Swedish document together with an English translation:

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

 

Social media

 

The Nordic Consumer Ombudsmen's position on marketing through social media. From the Introduction: ‘The position is technology neutral and applies regardless of how the social media is made available. When business people are marketing through social media, the general marketing rules should be followed. The following sections deal with the rules that traders should be especially aware of when marketing through social media.’in Swedish:

https://www.konsumentverket.se/globalassets/publikationer/produkter-och-tjanster/reklam-och-marknadsforing/vagledning-standpunkt-marknadsforing-sociala-medier-121205-konsumentverket.pdf

Translated here:

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

 

Environment

 

From the introduction: ‘In recent years, focus has been directed towards additional societal considerations and values, as well as those environmental impacts associated with production, sales and marketing. Environmental issues can take in child labour, working environment, the relationship between rich and poor countries, support for charity purposes etc. The Nordic Consumer Ombudsmen have therefore considered that there is a need for new guidance about environmental issues in marketing, which includes ethical claims or statements such as those used in the marketing of companies or products.’ Translation including the original Swedish:

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

 

 

E-commerce

 

The position of the Nordic Consumer Ombudsmen on trading and marketing on the Internet; October 2015. This document has not yet been translated:

https://www.forbrugerombudsmanden.dk/media/46620/standpunkt-vedroerende-markedsfoering-og-ehandel-2010-rev-2015.pdf (SW)

 

 

SELF- REGULATION

 

Industry guidance and codes: RO

 

The Self-Regulatory Organisation in Sweden is Reklamombudsmannen (RO). From RO: ‘The main task of RO is to review commercial advertising and make sure advertising standards are kept high by Self-Regulating the industry. RO also inform and educate the public, the industry and the authorities about marketing ethics. RO uses the guidance of the Advertising and Marketing Communications Code from the International Chamber of Commerce (ICC Code) when assessing advertising'. Specific copy advice is available; RO does not pre-clear advertising. Individuals, companies and other organisations may file a complaint against commercial advertising that might be in breach. RO and their Jury/ Opinion Board (RON) review the advertising against the Code. Only commercial advertising aimed at the Swedish market can be assessed and not older than six months. Decisions are published on the RO website (English translation facility), as well as in newsletters and press releases, many of which receive significant attention. The ICC Code in Swedish is here:

https://cms.iccwbo.org/content/uploads/sites/3/2019/07/icc-2019-marketing-code-swe.pdf

 

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

 

General Principles

Chapter A.  Sales Promotion

Chapter B. Sponsorship

Chapter C. Direct Marketing and Digital Marketing Communications

Chapter D. Environmental Claims in Marketing Communications

 

Additional ICC guidance and frameworks

(non-exhaustive)

 

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

In Swedish:

https://icc.se/wp-content/uploads/2022/04/ICC-Riktlinjer-Ansvarsfull-Marknadskommunikation-om-miljo-och-klimat_2022.pdf

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

https://cdn.iccwbo.org/content/uploads/sites/3/2012/11/ICC-Resource-Guide-for-Self-Regulation-of-Online-Behavioural-Advertising-1.pdf

Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising

https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf

ICC Guide for Responsible Mobile Marketing Communications

https://cdn.iccwbo.org/content/uploads/sites/3/2018/08/icc-guide-for-responsible-mobile-marketing-communications.pdf

The ICC’s Guidance on Native Advertising

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

 

 

EASA

 

European Advertising Standards Alliance. ‘EASA has a network of forty-one organisations representing twenty-seven advertising standards bodies (aka Self-Regulatory Organisations) from Europe and 14 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter.’

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

Membership

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

 

Best Practice Recommendations

 

Digital Marketing Communications:

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

Online Behavioural Advertising:

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

Influencer Marketing

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

 

 

Other Codes and Guidance 

 

 

Swedish Advertisers’ Association

https://www.annons.se/swedish-association-for-marketing-and-advertising

This advertiser trade body is a member of the WFA (see below). It appears to have placed guidelines etc. behind a membership wall

 

Environmental claims: ISO

 

ISO 14021: 1999 Environmental labels and declarations. Self-declared environmental claims. Published in 1999 to provide guidelines for the use of self-declared claims. ISO 14021 covers environmental claims about products made under the sole responsibility of the businesses concerned, i.e. self-declared environmental claims.  It establishes general requirements for any environmental claims and seeks to ensure the relevance and sincerity of such claims. It also defines the requirements for the 12 most common self-declared environmental claims In addition to the twelve selected claims, the standard provides general requirements for all self-declared environmental claims (18 in total such as - a self-declared environmental claim shall be accurate and not misleading, be substantiated and verifiable, be relevant to that particular product etc.). A specific symbol selected in the standard is the Mobius Loop which applies to the product or packaging and is used with claims of recyclable and recycled content. The ISO Standard 14021 document can be purchased on the www.iso.org site:

http://www.iso.org/iso/catalogue_detail?csnumber=23146

 

SWEDMA

 

Swedish Direct Marketing Association (in Swedish): SWEDMA is the trade association for companies engaged in direct or interactive marketing in Sweden. Swedma also manages the Opt-out registers NIX-Adresserat and NIX-Telefon, in addition to the Ethics Board for Direct Marketing

https://www.swedma.se/ 

 

Direct postal mail

 

Addressed Direct Mail rules; updated August 2012:

http://media.swedma.se/etiska_regler_adr_rev201208.pdf (SW)

Translation of the above:

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

Unaddressed Direct Mail rules (not translated):

http://media.swedma.se/etiska_regler_odr_rev201208.pdf (SW)

An agreement between the National Consumer Agency and Swedma establishes that the distribution of unaddressed direct commercial mail does not include households that have made it clear that they do not wish to receive advertising, by the sign on the door or otherwise; material must be clearly identifiable as advertising, as must its source.

 

 

Email

 

Consumer email rules; updated August 2013

http://media.swedma.se/etiska_regler_epost_b2c_2013.pdf (SW)

English translation:

http://www.g-regs.com/downloads/SWEDMAemailb2cEN.pdf

Marketing to businesses by email (B2B) rules; updated April 2013

 http://media.swedma.se/etiska_regler_epost_b2b_2013.pdf (SW)

English translation:

http://www.g-regs.com/downloads/SWEDMAEmailb2bEN.pdf

 

 

IAB Sweden

 

IAB Sweden is ‘the networking and knowledge platform for interactive advertising and digital marketing in Sweden’:

http://iabsverige.se/

Mina cookies website (administered by IAB Sweden):

http://www.minacookies.se/

 

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

 

WFA

 

This is the GDPR Guide for Marketers from the WFA (World Federation of Advertisers):

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

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

ESA

 

The European Sponsorship Association is at: 

www.sponsorship.org

 

 

 

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International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

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

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

Downloaded:

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

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

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

 

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

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

 

ICC toolkits

 

 

IAB Europe

 

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

http://www.iabeurope.eu/

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

https://www.iabuk.com/goldstandard

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

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

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

 

 

ICAS

 

From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

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

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

 

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

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

 

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

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

 

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

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

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

 

 

FEDMA

 

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

 

 

THE EU PLEDGE 

 

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

 

 

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

 

WFA

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

 

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

 

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

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

 

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

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

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

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

 

Article 29 Working Party/ EDPB

 

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

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

 

 

 

Key Directives in marketing communications

 

Privacy

 

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

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

 

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

 

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

E-commerce

 

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

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

 

Pricing

 

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

 

Commercial practices 

 

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

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: 
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. 

 

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

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

 

Food Regulations

 

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

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

 

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

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

 

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

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

 

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

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

 

Audiovisual media 

 

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

 

 

 

 

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