Updates:
ARPP Review March 2020
Links refreshed Sept 2020
Reviewed Feb 2021
Some tweaks July 2021
ANJ consultation Sept 2021
Winamax ruling October 2021 FR
ARPP Digital Code in force Jan 2022 FR / EN
ANJ Guidelines and Recommendations (EN) Feb 2022
ANJ ban Winamax 'Tout pour la Daronne' (FR)
ANJ on operators' sports partnerships June 2022 (FR)
Arcom draft decision; consultation closes Sept 5, 2022
ARPP Gambling Code V2 (EN) effective Sept 1, 2022
DLA Piper World Gambling Laws Sept 2022; inc FR
ANJ guidelines on offers and bonuses (FR) 27/10/22
Announcement linked above, guidelines here (FR)
Commitment charters signed (FR) 7/11/22
Related Arcom decision (FR) published 7/11/22
Warning message extended to online July 2023 (FR)
Year in review: gambling law in France (EN)
Bird & Bird/ Lex May 10, 2024
Spain Supreme Court overturns gambling ad restrictions
igaming business April 10, 2024. Placed here for European context
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ANJ guidelines on offers and bonuses (FR) 27/10/22
Announcement linked above, guidelines here (FR)
Unofficial translation here
Gambling is defined by article L320-1 of France's Internal Security Code as 'any operation made available to the public, regardless of its designation, for the purpose of causing the hope of a gain whose realisation depends, even partially, on chance and in consideration for which the operator requires a financial contribution from participants.' This from the May 2024 A general introduction to gambling law in France courtesy of Bird and Bird LLP/ Lex. While the term ‘gaming’ is sometimes used by regulators in place of gambling, this text does not cover gaming per se where gaming is the act of playing (especially) video games, in some cases online. According to French legislation, three types of online gambling activities are permitted – sports betting, horse race betting and poker games. However, casino-style games, spread betting and betting exchange remain outside the scope of authorised online gambling activities, because policy makers consider that they encourage addictive behaviour.
As is often the case in France (and in gambling), the regulatory environment is pretty strict from both the legal and self-regulatory perspective. Marcoms self-regulatory rules are in the form of the ARPP’s September 2022 Gambling Code, set out below in Section B in English and available here in French and here in ARPP English; video here (FR; based on former code). The thrust of provisions, which have been developed as part of the ANJ consultation commitments, is about the protection of minors, responsible gambling statements, social responsibility, and ‘fair information’.
The role of legislation in this sector is perhaps more significant than in others due to the high profile and sensitivity of gambling and the presence of the statutorily authorised ANJ. While the ARPP Code will reflect legislation and a relationship with the ANJ, it's best also to be aware of statutory requirements, only the most relevant (to advertising) of which are below
Relevant provisions from the above are set out in our following content section B and channel section C, as applicable
Commission Recommendation 2014/478/EU on ‘common principles for the protection of consumers and players of online (italics ours) gambling services and for the prevention of minors from gambling online’ was published in July 2014. As a Recommendation, it is non-binding, but important. While much of the communications ground it covers is present in national legislation or self-regulation, it includes a provision that operators should include in their commercial communications “a clear ‘no underage gambling’ message indicating the minimum age below which gambling is not permissible.” This November 2021 report from City/ University of London, sponsored by EGBA, reviews implementation across member states.
Ordinance2019-1015 of 2 October 2019 (FR), established in Article L320-12 of the Internal Security Code, prohibits commercial communications to minors, specifying print, online, audiovisual (as defined) cinema and sponsorship in those programmes /publications/services/events aimed at minors. The Decision of 19 October 2022 (FR) from the AV authority Arcom updates the 2013 version, extends scope into on-demand AV and sets out the ban on childrens programmes and any kind of appeal to minors in an 'on-demand audiovisual media services' space. Gambling operators have signed related 'commitment charters' for AV and radio, display and digital media that restricts activity to '3 screens a day'; ANJ press release here. Haas Avocats September 2022 Influencers and gambling: what legal obligations? spells out the issues in what is obviously sensitive territory. There are specific requirements for the way in which warning messages must appear in different channels; these are spelt out under the relevant header in our Channel Section C, or from articles D320-2 to D320-8 in the Internal Security Code (FR) or, better yet, the Order of July 29, 2022 (FR) from the Ministry of Health as linked above. See our following channel section C for full information.
Influencers and gambling: what legal obligations? (FR)
Haas Avocats September 2022
Online
The principal self-regulatory influence in online channels is ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR). The code covers various techniques/ formats online such as native advertising, OBA, brand content and some rules for Influencer marketing. This is Version 5; key changes from Version 4 are shown in the ARPP press release of December 2021 here. There's more under the General tab below as the rules, per above, apply to all sectors.
Data protection and privacy
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. A table here sets out how GDPR relates to some marketing techniques and channels, and to other legislation that applies in marketing, though it is a somewhat broad and selective picture and subject to national differences in application. Member states, France included, tend to retain their legislation and add to it to ‘recognise’ GDPR, which anyway applies directly. France’s key developments in this context are via Law 2018-493 on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (FR) and transposing Directive 2016/680, which accompanies GDPR. (Direct) electronic marketing communications ‘beyond’ data processing are regulated primarily by the 2013 Mail and Electronic Communications Code (FR); English translation of the key article L34-5 here. Again, details under the General tab below.
Self-regulation
It’s important that the rules for all product sectors, gambling included, shown below under the General tab, are also observed; adjudications against gambling advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the ICC Advertising and Marketing Communications Code (EN), which is administered by ARPP as the 'base' code in France. The ARPP introduced in July 2016 'Portrayal and Respect of Human Beings', which does what it says on the tin (link is to an ARPP English translation). There are a number of other ARPP codes or 'Recommendations' that extend the base ICC code and that apply to all advertising, such as those covering identification, digital communications, food behaviours et al. See the ARPP English versions of their Codes, or the General tab of this database.
Legislation
Legislation for consumer protection in marketing is provided by the Consumer Code (FR), English translation of relevant articles here, which transposes the Unfair Commercial Practices Directive 2005/29/EC and covers misleading and aggressive marketing and advertising practices. Also transposed into the Consumer Code (CC) are provisions driven by the 'Omnibus' Directive 2019/2161 which require, in an e-Commerce context, information on search rankings and consumer reviews; promotional pricing also has some new rules under article L112-1-1 of the CC. Rules are spelt out under the General tab below or see the linked files.
Updates since June 2022 (slimmed)
Lululemon Hit with Complaint Over Greenwashing
Hausfeld LLP/ Lex July 25, 2024. Ad here
A new path for Privacy Sandbox on the web July 22, 2024
LOI n° 2024-449 du 21 mai 2024 visant à sécuriser et à réguler l'espace numérique (FR)
Orrick June 4, 2024 on the above 'SREN' law (EN) inter alia enacts DSA, DMA
And helpful overview from Bird&Bird/ Lex August 29, 2024 here (EN)
Set out below are the rules that affect all product sectors in France. While some sectors are subject to specific rules, they must also observe the ‘general rules’ that deal with e.g. misleadingness, social responsibility, decency, offence, etc. Some countries write their own codes that address those issues, others will deploy the established ICC Advertising and Marketing Communications Code (EN), which applies directly in France. The French version of the code, obviously applicable in this context, is here. Details are in English in our content section B, or see the linked code. The articles frequently referenced in adjudications are 2, Social responsibility and 5, Truthfulness. There's a helpful March 2023 round-up here of 'Prohibited and controlled advertising in France' from lawyers Bernard-Hertz-Béjot via Lex and another piece from them on misleading advertising in France, March 2021.
SRO AND CODES
The Self-Regulatory Organisation in France is the ARPP (Autorité de Régulation Professionnelle De La Publicité). As you might expect, there are a number of codes that are unique to France; they are all collected here in FR and in EN; the overall regulatory position is relatively intricate and certainly not short on rules. Supplementing the ‘base’ ICC Code are a number of sectoral codes such as those for cars, children, gambling etc. Those codes are shown in detail in the sectors we cover elsewhere, or they can be found on the ARPP website linked above. Trans-sector codes from ARPP are also significant influences in both content and channel rules; a selection is:
Portrayal of people
Code for the Portrayal and Respect of People (EN):
In the original French (Recommandation Image et Respect de la Personne):
The code, introduced in 2016, covers aspects such as dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in content section B, or click above.
Children
A separate Children database is available from the home page of this website. Meanwhile, here is the core Article !8 Children and Young People (EN) from the ICC Code and the ARPP 'Recommandation Enfant' FR / EN. There are some provisions on child protection in the ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here); see clause 3. There are also references under point 1.6 (Safety) in the content section B that follows. K&L Gates LLP/ Lex bring to your attention 'French framework for “kidfluencers” - Yet another undertaking for online platforms', which describes the arrival and implications of Act No. 2020-1266 (FR) of 19 October 2020 on the commercial use of the image of children under 16 on online platforms. Under this act, which amends the French Labour Code, anyone (including parents) recording videos featuring children under 16 with the aim of making money on video sharing platforms must request the relevant public authority’s prior authorisation. More here from Klemchuk LLP/ Lex April 14, 2023.
Identification
Identification of advertising and marketing communications. Identification of the advertiser
In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-de-la-publicite-et-des-communications-commerciales/ (FR)
The code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below, and the ARPP Guidance on Influencer Marketing (Video EN sub-titled)
Native
The ICC’s Guidance on native advertising Is in French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
The Digital Advertising and Marketing Communications Code (EN; V5) also carries native advertising provisions
Influencer marketing
Influencer legislation & EU harmonisation
re DADDUE law. K&L Gates June 17, 2024
Le Guide de bonne conduite pour Influenceurs et créateurs de contenu (FR)
Above from Ministre de l'Économie July 2023. Haas summary here (FR)
Parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023. Law here (FR)
Commentary here (FR) from Grant Thornton May 26, 2024. Code of Good Conduct here (FR)
ARPP
ARPP recommendations for influencer marketing
https://www.youtube.com/watch?v=8Jx4gr5bvH0 (EN sub-titles)
Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR). #ad, for example, is not permitted
The Digital Advertising and Marketing Communications Code (EN; V5) also carries Influencer provisions
The Media Institute in collaboration with ARPP launched the Responsible Influencing Certificate in September 2021. More here (FR)
ARPP and Instagram launch “C’est Carré” to promote good practice in Influencer Marketing. December 2022
Safety
Safety Code: Dangerous behaviours and situations:
In the original French (Recommandation Sécurité: Situations et Comportements Dangereux):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/securite/ (FR)
The code is particularly protective of children but helpful in describing situations that are permitted
Details in content section B or from the links above
Price
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/publicite-de-prix/ (FR)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/ (EN)
This recommendation sets out the principles, qualifications and formatting by channel when including price in advertising. Details in content section B & channel section C
Sustainability (inc. beyond SRO)
News/ developments
20 compagnies aériennes épinglées pour greenwashing. Apr 30, 2024
The government presents its “digital decarbonization” roadmap (FR)
Haas Avocats September 25, 2023
Fossil fuels ad ban; carbon and other claims
From 22nd August 2022, the 'advertising and promotion' (la publicité relative à la commercialisation ou faisant la promotion) of specified fossil fuels is prohibited; see section 8 of the Environmental Code, art. L229-61 (FR) from the 'Climate and Resilience Law'. Some acerbic August 2022 commentary from GALA here. The same law introduced a new section 9 in the Environmental Code on requirements and conditions for carbon claims such as 'carbon neutral', 'zero carbon', 'zero-carbon footprint', 'climate neutral', 'fully offset', '100% offset' or equivalent, applicable as of January 1, 2023. Key clauses are in English here, courtesy of Soulier Avocats. There are other significant environmental information measures aimed at 'waste-generating' products, which include a ban on terms such as 'environmentally friendly' or 'biodegradable' on products and packaging; details to be developed via decree in the coming months; see Better consumer information on the environmental qualities of products from Bird&Bird June 2022, Decree 2022-748 here (FR).
As further emphasis that environmental claims are high on the regulatory agenda, the Consumer Code - principal legislation in advertising content and incorporating transposition of the Unfair Commercial Practices Directive 2005/29/EC - was amended by the same 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) to include specific reference to environmental impact under CC article L121-2, which sets out how a product or service's 'essential characteristics' must not mislead. The full article can be found here in English and the Consumer Code is here in French.
ARPP announce March 2022 that advertisers/ agencies must consult pre national campaigns with environmental claims.
More here (FR) and key extracts unofficially translated here. See also additional opening entry above re Consumer Code changes & new rules re carbon offsetting and neutrality
National and international codes and guidance
Practical guide to environmental claims (FR) published by DGCCRF and the Consumer Council May 25, 2023
Helpful commentary on the above here from Hogan Lovells/ Lex June 2, 2023
http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR; V3)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN; V3)
The code covers topics such as truthfulness, vocabulary, signs, labels and logos, clarity and qualifications, and complex systems
Video here: https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN sub-titles)
Ademe, the French Agency for Ecological Transition, publish the Anti-greenwashing Guide (FR) with ARPP
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
Chapter D of the ICC Advertising and Marketing Communications Code (EN) is devoted exclusively to environmental claims
ICC Environmental framework 2021 (Nov) 'provides added guidance on some established environmental claims and additional guidance on some emerging claims.'
DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including France
Commentary
Quelles Sont Les Nouvelles Obligations Environnementales Pour Les Sites E-Commerce? Haas Avocats April 4, 2023
The French regulatory arsenal against greenwashing. Taylor Wessing/Lex April 3, 2023
The above includes some rulings from ARPP
Communication on the environmental qualities of products: dos and don'ts. Dentons/ Lex
LEGISLATION IN ADVERTISING CONTENT
Consumer protection (in the marketing context) legislation is provided by the Consumer Code (EN; includes clauses effective May 28, 2022 from Directive 2019/2161), which transposes the Unfair Commercial Practices Directive 2005/29/EC, in December 2021 subject to new Guidance from the Commission. The code covers misleading marketing and advertising practices and e.g. sets out the rules for commercial communications constituting ‘an invitation to purchase’ and the comparative advertising rules; some promotional activities are covered in articles L121-35 to 41. Details in the following content section B. This legislation can apply in Influencer cases: see Influencers and the Consumer Code: the DGCCRF at attention (FR) from Haas/ Mondaq on a recent case brought under article LI21(3), covering failure to indicate 'true commercial intention,' albeit there is now (June 2023) specific Influencer legislation (see above under Issues/ News). Amends from the Climate and Resilience Law (FR) of August 2021 to article L121-2 of the CC incorporate specific reference to 'environmental impact' under 'essential characteristics' which must not mislead. Clauses in English are here. See above in the introductory paragraph reference to rules from the same Climate and Resilience Law on carbon offsetting and carbon neutrality claims in advertising, key clauses in English here and 'Communication on the environmental qualities of products: dos and don'ts' here from Dentons/ Lex Jan 2023 is very helpful in setting out the statutory coverage of various forms of environmental claims. Q&A: misleading advertising practices in France from Bernard-Hertz-Béjot March 28, 2023 has good coverage of these aspects and others more general. Les conditions juridiques de la mise en place d’une publicité comparative from Novagraaf July 25, 2024 sets out the issues for comparative advertising, referencing case law and the relevant clauses from the Consumer Code.
Omnibus Directive transposition
The Consumer Code (FR) now also carries the marketing-related clauses from the 'Omnibus' Directive 2019/2161, which have been transposed via Ordinance No. 2021-1734 (FR) of December 22, 2021. Article L.112-1-1 (of the CC) for promotional pricing (see Haas blog June 2023 on reference vs. comparative pricing (FR)), article L.121-2 for a new misleading practice in international 'dual marketing' rules The Directive's article 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.’and L.121-3 for the information now required in an e-commerce context re search rankings and consumer reviews, all effective May 28, 2022. Unofficial and non-binding translation of all the key clauses here. State department FOD Economie October 2023 guidelines on reviews here (FR).
Models in advertising
Legislation in the Public Health Code (PHC) is from article L2133-2 (EN) addressing retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.
CHANNEL (I.E. PLACEMENT) RULES
Self-regulation
The ICC content rules referenced above apply both offline and online; the online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here). The press release setting out the changes is here in English; scope of the code is here. Scope These rules apply to all advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The code includes a useful walk through the various techniques online such as In-game, apps, vlogs/ influencers, native advertising, brand content, OBA and retargeting. Full information in our channel section C as applicable, or see the linked code.
Legislation in channel
LOI n° 2024-449 du 21 mai 2024 visant à sécuriser et à réguler l'espace numérique (FR)
Orrick June 4, 2024 on the above 'SREN' law (EN) which inter alia enacts DSA, DMA
The influence of legislation in the placement of commercial communications across Europe is significant and covered by a series of Directives assembled here for background. The following paragraphs address their transposition into national legislation and application by channel, albeit details are in section C, so this is a 'snapshot.' Note that as of January 2023 any B2C advertising flyers or catalogues must be printed on recycled paper or paper produced from sustainably managed forests, courtesy of art. 48 LOI No. 2020-105 (FR)
Audiovisual
New sectorial rules for TV advertising in France (EN)
Bird & Bird LLP/ Lex April 15, 2024. Decree here (FR)
Decree 92-280 (FR, key clauses translated here) transposed the AVMS Directive and provides the core rules in spot advertising, programme sponsorship, and teleshopping. Two 2017 developments are the lifting of the prohibition (FR) on showing product etc. in TV programme sponsorship, and the introduction of a ban (FR) in and around children’s (U12) programmes for anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’. Amendments brought about by Directive 2018/1808 extending the scope of the AVMSD into e.g. video-sharing platforms are provided nationally in the Léotard Law (FR) via Ordinance 2020-1642 (FR). Details in channel section C, or see the linked files.
Direct electronic communications
Data processing under CNIL is regulated by the French Data Protection and Freedoms Act or FDPFA Act No. 78 -17 of 6 January 1978 (FR) as amended (see below), and electronic communications primarily by the 2013 Mail and Electronic Communications Code (FR), unofficial translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France.
e-Commerce
Rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN) (FR) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws are important in this context, setting out what must be included or made available in e-commerce communications (articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the Consumer Code). See above under the Legislation in Advertising Content header re amends to the Consumer Code brought about by the Ominibus Directive. There's a helpful June 2022 piece on the implications from Haas Avocats here (FR) and another (FR) from the same company June 2023.
Data processing/ protection
Privacy issues should be reviewed with specialist advisors
A new path for Privacy Sandbox on the web July 22, 2024
EDPB data protection guide for small businesses in FR & DE
EDPB May 17, 2024
Privacy Sandbox news and updates (EN)
CNIL's Guide to personal data security: new 2024 edition. CNIL March 26, 2024
The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, France included, tend to retain their legislation and add to it to ‘recognise’ GDPR. France’s key development in this context is via Ordinance No. 2018-1125 of December 12, 2018 (FR) on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (or the French Data Protection and Freedoms Act - FDPFA), and transposing Directive 2016/680, which accompanies GDPR. Helpful overview and commentary here (EN) from Data Guidance. The Data Protection Authority is CNIL, who publish some text in English. Their GDPR 'toolkit' is here in English; specific rules and guidelines are set out by channel in section C. The CNIL gives its position on the “cookieless” alternatives to third-party cookies from Nomos via Lexology October 2021 is a helpful look at how the CNIL is likely to handle alternative tracking and other technologies. The original paper from CNIL is here (FR). This 30 June 2022 announcement from CNIL regarding commercial prospecting and personal rights breaches that led to a fine of 1 million euros against Total Energies is instructive, as it explains the specifics of the case and the rules concerned (in English). The February 2022 'référentiel' on personal data processing from CNIL is here (FR); much of this courtesy of Haas Avocats.
* Recommended read
Commission's call for evidence on DSA minors protection guidelines; closes 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
A US judge ruled that Google built an illegal monopoly. What happens next?
UK Guardian. August 6th, 2024
A new path for Privacy Sandbox on the web July 22, 2024
Google re new third party cookie plans for Chrome
EASA Policy Newsletter July 2024
Issues Post EU elections developments, Regulation of digital services and online advertising – Season 2, Data protection – GDPR application report. AI Act: Code drafting and consultation, Sectoral news: HFSS, health and energy labelling
AI
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
ICC Statement on the Use of AI in Advertising
and Marketing Communications March 27, 2024
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
The Green Claims Directive on its way to adoption
Freshfields Bruckhaus Deringer June 18, 2024
Directive Empowering Consumers for Green Transition in force
Taylor Wessing Mar 21, 2024 and Womble Bond Apr 11, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The ICC Code is in the process of update June 2024. Expected 'second half 2024'
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets 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
Key rules are set out in the following content section B and channel section C, as applicable
Legal commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
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.
Issue or channel | Key European legislation and clauses |
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 |
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://data.europa.eu/eli/dir/2000/31/oj
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. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some legal firms' commentaries on this topic
Platforms & Markets Updates: latest news from the EC #7
RPLT July 15, 2024
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
Data Protection update - May 2024. Stephenson Harwood/ Lex
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) 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 sets out new information requirements for 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 October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set 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.
As this is reference work rather than current, we have made it available in back-up here
1. ARPP GAMBLING CODE
(V2 effective September 2022)
1.2. 2015/2016 ARPP Review; adjudications
3. STATUTORY GAMBLING CONTENT RULES
4. ANJ GUIDELINES AND RECOMMENDATIONS
5. EUROPEAN RECOMMENDATION ONLINE GAMBLING
..........................................
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/gambling-code-v2/ (EN)
The clauses below are taken directly from the ARPP English version of the Gambling Code or ‘Recommandation’ effective September 1, 2022. We have noted where the translation seems unclear. The current French version on which translations are based is the applicable code and that is here
Scope of the code
The scope of this Code covers (cumulative criteria):
Only operators authorised to operate in France can broadcast advertising, or run advertising broadcast by someone else, that targets the French public, insofar as it concerns games allowed (permitted games). In addition to the provisions of the applicable laws and all ARPP Codes, gambling advertising, in no matter what form, whether it is hyperbolic or not, must follow these ethical rules
1. Identification, truthfulness, loyalty
The ICC Advertising and Marketing Communications Code states: 'the Marketing communication should be framed as not to abuse the trust of consumers’ or exploit their lack of experience or knowledge' article 4 of the 2018 code Clause 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.Singularly:
2. Protection of minors
In addition to complying with the ARPP Children’s Code, (link is to the current French version, ARPP translation here), Gambling advertising should not target minors, given the legal prohibitions to which they are subject. To this end, the advertising of Gambling should not, in any way whatsoever:
In this sense, operators undertake to ensure that the persons appearing in the advertisements are over 25 years of age.
However, the following are excluded from this rule:
High-level sportsmen and women of legal age. These are members of a team, club or sports federation whose activity is professional, jockeys and drivers who take part in horse races.
Operators who use influencers or content creators, within the framework of commercial collaborations, referred to in the practical sheet 'Communication by influencers and brands' of the ARPP’s 'Digital Advertising Communication' Code, undertake to respect the provisions contained in this sheet.
3. Social values
"All marketing communication should be made with a due sense of social and professional responsibility" (Art. 1 Basic principles of the ICC’s Advertising and Marketing Communications Code). Thus, gambling ads should not, in any way whatsoever:
4. Responsible gambling
Gambling advertising should not promote, trivialize or encourage a practice of excessive play, immoderate or likely to put the player in financial, social or psychological peril. To this end, Gambling advertising should not, in any way whatsoever:
Highlighting promotional offers must be done responsibly, for the sake of moderation, transparency and good consumer information, especially in terms of counterparty and/ or commitment expected from him (La mise en avant d’offres promotionnelles doit se faire de façon responsable, dans un souci de modération, de transparence et de bonne information du consommateur, notamment en matière de contrepartie et/ ou engagement attendu de sa part.)
The CPP (Conseil Paritaire de la Publicité), mission here, is the ‘think-tank’ within, but independent from, ARPP. Its ‘brief’ to ARPP for the most recent Code for Gambling advertising envisaged three objectives for the regulatory framework:
Their advice/ brief is linked below. These are not rules per se, but can be helpful in understanding the context in which rules are developed, and therefore the ‘atmosphere’ around regulation of gambling advertising
https://www.cpp-pub.org/avis/avis-publicite-des-jeux-de-hasard/ (FR)
http://www.g-regs.com/downloads/FRGamCPPAdvicenote.pdf (EN)
From the 2015/2016 ARPP Review of Gambling Advertising (FR)
Top line findings are that out of a total of 3,857 messages analysed, fifteen do not comply with the ARPP Gambling Recommendation, i.e. 0.4%. Of those fifteen:
The advertising that transgressed minors’ rules included a reference to a quasi-superhero, and characters from ‘My Little Pony’:
http://www.g-regs.com/downloads/FRGamRulingMLP.png
And from the same review as linked above are two not particularly subtle examples of ‘responsible gambling’ transgressions:
http://www.g-regs.com/downloads/FRGamRespGamruling.png
https://www.g-regs.com/downloads/FRGamRespGamRuling2.png
Extended by The Decree of July 11, 2023 (FR) on the warning message against excessive or addictive gambling that must appear on online commercial communications - in force 10 August 2023;
- d'une taille au minimum de 39 % de la hauteur du cartouche pour les mots: 'LES JEUX D'ARGENT ET DE HASARD PEUVENT ÊTRE DANGEREUX : PERTES D'ARGENT, CONFLITS FAMILIAUX, ADDICTION…'
- a size of at least 39% of the height of the title block for the words: 'GAMBLING AND BETTING CAN BE DANGEROUS: LOSS OF MONEY, FAMILY CONFLICTS, ADDICTION...'
- d'une taille d'au minimum 37 % de la hauteur du cartouche pour les mots: 'RETROUVEZ NOS CONSEILS SUR JOUEURS-INFO-SERVICE.FR (09 74 75 13 13 - APPEL NON SURTAXÉ)'
- a size of at least 37% of the height of the title block for the words: 'FIND OUR ADVICE ON PLAYERS-INFO-SERVICE.FR (09 74 75 13 13 - non premium rate)'
Radio
When advertising, sponsorship or promotional messages are broadcast, the message is transmitted immediately after the advertising, adapted as follows: 'Gambling and betting can be dangerous: loss of money, family conflicts, addiction… Find our advice on players-info-service.fr and on 09 74 75 13 13, non-surcharged call.'
According to this article (FR), radio operators will not sign the associated charter as this requirement discriminates against radio when the message can take up 50% of a commercial
The Internal Security Code incorporates under Book III, Title II several provisions from article 45 of Decree 2020-1349 of 4 November 2020 relating to the methods of regulation of the National Authority (FR). The key content rules are (translations are unofficial and non-binding; only the original French determines):
Article D320-9
Article D320-10
Article D320-2
Articles D320-3 to D320-8 cover layout requirements by channel and are shown by medium in our following Channel Section C
The decision from the French audiovisual regulation authority (CSA) No. 2013-3 of January 22, 2013 on broadcasting conditions of authorised gambling advertising here (FR; our translation of key clauses below. Where there may be room for interpretation we have shown the original French, or see link) includes some content rules, as follows:
Above repealed and updated by Arcom Délibération du 19 octobre 2022 (FR)
EU Commission Recommendation 2014/478/EU on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online: this is a recommendation (and therefore non-binding) on responsible gambling advertising, with particular focus on minors (Chapter IV) and covering inter alia commercial communications (Chapter VIII) and sponsorship (Chapter IX)
6.1. All Sectors
As referenced earlier, the general advertising rules that apply to all sectors, Gambling included, are from the ICC’s Advertising and Marketing Communications Code. The applicable Code in this context is that in French. The English version is here. Chapters are:
A. Sales Promotion
B. Sponsorship
C. Direct Marketing and Digital Marketing Communications
D. Environmental Claims in Marketing Communications
The full Code is in English here:
http://www.arpp.org/wp-content/uploads/2016/09/Notes_and_overlays.pdf
And in French here:
http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Mentions-et-renvois-ARPP.pdf
Identification of advertising and marketing communications and the advertiser
http://www.arpp.org/wp-content/uploads/2016/09/Identification_Code.pdf (EN)
In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):
The code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ARPP Guidance on Influencer Marketing (Video sub-titled)
http://www.arpp.org/wp-content/uploads/2016/09/Portrayal-and-respect-of-the-human-beings-Code.pdf
In the original French (Recommandation Image et Respect de la Personne):
The Code, introduced in 2016, covers such aspects as Dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B under the General tab, or click above
Notes
1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES
1.1. The ICC Code: key extracts
1.3. Identification of advertising
1.4. Native
1.5.1. Environmental claims - the ICC rules
1.7.1. ICC Code – Pricing rules
1.8. Notes and overlays/ titles
1.9. Online channel/ Digital (see also Channel rules)
2. LEGISLATION IN FRENCH ADVERTISING
2.1. Invitation to purchase
2.3. Pricing regulations
2.4. Carbon claims
2.5. General content rules in broadcast
1. SELF-REGULATION - GENERAL AND SPECIFIC ADVERTISING RULES
1.1. The ICC Advertising and Marketing Communications Code
Some key extracts from the ICC Code in English are set out below; évidemment the French translation, which forms the 'general' advertising rules in France, applies
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Comparisons (Art. 11)
The full code is here in English:
And here in French:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/
Advertising must respect, no matter its form, the following principles:
1. Dignity and decency
2. Stereotypes
Advertising must not reduce human beings, and especially women, to the role of an object (Art. 2.1)
3. Ethnic or religious references
4. Submission, dependence, violence
5. Image and other human characteristics
1.3. Identification of advertising
The full ARPP code is here in English:
And here in French:
Note: the French version of this Code has not been updated to reflect the changes introduced by the 2018 ICC Advertising and Marketing Communications Code. The clauses below are in line with the new Code
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Specific provisions of the ICC Advertising and Marketing Communications Code. From Chapter C, Direct Marketing and Digital Marketing Communications:
Article C1: Identification and transparency
Article C2: Identity of the marketer
The identity of the marketer and/or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return. At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
Advertising, no matter the form, must comply with the rules contained in the ICC Advertising and Marketing Communications Code, as well as the following rules:
1. Principles
2. Digital advertising or marketing communication
3. Press
1.4. Native
The ICC guidance is in French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/
From the document: As online advertising has expanded, ad formats that allow the user to experience ads (organically as part of the content) have evolved. This type of paid-for content marketing is known as “native advertising.” While native advertising is not new, it is rapidly growing as web properties seek new ways to monetize and enhance the user experience. While the mere appearance of a brand or product does not necessarily mean that the content is advertising, there are some principles that are vital to ensure transparency and consumer trust, each of which is addressed in the ICC Advertising and Marketing Communications Code (the ICC Code)
1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 7, B1, and C1 as follows:
2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 8 and B12, as follows:
3. Disclosures should be prominent and understandable to consumers. This principle is covered in Article 4 as follows:
See also the 2021 legislation under point 2 below
The full code is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/ (FR)
1. Eco-citizen impacts
2. Truthfulness of actions
The three pillars
For businesses, sustainable development means in this sense to balance the following three pillars:
3. Proportionality of messages
a. The advertisement should not be presented in such a way as to imply that it relates to more pillars of sustainable development, more stages of a product's life-cycle or more impacts than can be justified by the evidence;
b. The message should not unduly suggest a total lack of negative impact;
c. The presentation of action(s), product(s) at an experimental or project stage (prototype, R & D, investment ...) must be clearly presented as such and their scope should not be exaggerated
4. Clarity/ qualifications of messages
5. Loyalty
a. An environmental claim should not emphasise the absence of a component, ingredient, characteristic, or impact (typified by formulations such as "without ...“, or "no …", or "…-free") that never affected the family of products or activities presented by the advertisement;
b. A claim that a product does not contain an ingredient or a specific component (typified by formulations such as "without …“, or "no …", or "…-free") should be used only in line with the rules of the competent authorities that define the maximum thresholds, or, failing that, under the conditions laid down in ISO 14021
c. A reduction of a negative impact should not be presented as a direct “recovery” of natural ecosystems
6. Signs, labels, logos, symbols, self-statements
7. Vocabulary
8. Visual or audible elements in an ad
9. Complex systems
Some recognised systems may be based on highly technical argumentations or complex schemes, whose benefits in terms of sustainable development are indirect (e.g., systems known as “green electricity”, “carbon offset”, “socially responsible investments”, etc.). When an advertisement refers to these types of systems:
1.5.1. Environmental claims - the ICC rules
Additional ICC guidance
1.6. Safety
Context
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…. Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk. ICC Code, Article 17
(…) 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. ICC Code, Article 18.3 Avoidance of harm
The following rules must be respected in all commercial communications, in addition to law and regulation applicable to dangerous objects, products or behaviours:
1. General principles
Commercial communications must not show dangerous or potentially dangerous behaviours or situations and must not encourage engagement in such behaviours and/ or situations:
The different cases must be assessed regarding the context of the advertisement, the persons presented, the graphic design used, the artistic world reproduced and the public targeted
Specific context
Certain dangerous behaviours can nevertheless be accepted, for example:
2. Particular cases: children
Particular attention must be given to scenes portraying children or advertisements targeting children. The presence of a supervising adult can reduce the potentially dangerous nature of a presented situation.
Promotion of safety or health: If one of the assertive goals of the advertisement is to promote safety or health, it can be legitimate to show a dangerous situation or behaviour in order to condemn it. The denunciation of a dangerous behaviour or situation must be unambiguous, in order not to lead to the opposite result
The ARPP Code is in French here:
ARPP Price Advertising Recommendations (FR)
An ARPP English translation is linked below; key clauses below the link and in individual channels in the following Section C
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/
1.7.1. ICC Code - Pricing rules
The linked document below extracts key clauses related to Pricing from the ICC Advertising and Marketing Communications Code, on which the ARPP Code above is based:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
1.8. Notes and overlays/ titles
The full code is in English here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/
And in French here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/
The ARPP’S 2021/22 Digital Advertising and Marketing Communications Code (V5) is in French here:
And in English here:
The code was announced in December 2021 and is in force January 1, 2022; key changes are shown in the press release here in English. The Code covers inter alia Identification, Protection of children and teenagers, Compliance with good societal practice, User-generated content and 'Comfort of use.' It includes a list of applications which provides guidelines by channel/ techniques such as Promotional blogs/ Influencers, Native advertising, Behavioural advertising and retargeting, In-game advertising and Apps. As the Code largely relates to Channel issues, it is spelt out in the relevant sections in that Section (C) below
1.9.1. ICC Code Digital interactive media
https://www.g-regs.com/downloads/ICCChapC2018DMC.pdf
The above linked document provides Chapter C Direct Marketing and Digital Marketing Communications of the 2018 ICC Advertising and Marketing Communications Code, on whose principles the ARPP code above is based
2. LEGISLATION IN FRENCH ADVERTISING
The Consumer Code (CC; FR)
Key clauses in English:
http://www.g-regs.com/downloads/FRConsumerCodeENG.pdf
The Consumer Code (CC), English translation of key clauses linked above, is the core legislation in business-to-consumer commercial communications, and the home of transposition of the Unfair Commercial Practices Directive 2005/29/EC. While many of the CC’s communication requirements will be reflected in Self-Regulation, it’s as well to be aware of the legal context. There are three relevant components below, but meanwhile the 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) incorporated specific reference to environmental impact under article L121-2 of the CC. Clauses in English from the linked document above
2.1. Invitation to purchase
If your ad or ‘commercial communication’ constitutes an ‘invitation to purchase’ - defined as “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” - article L121-3 of the Consumer Code requires that the following must be included:
Guidance from the EC here (December 2021)
Les conditions juridiques de la mise en place d’une publicité comparative from Novagraaf July 25, 2024 sets out the issues for comparative advertising, referencing case law and the relevant clauses from the Consumer Code, shown below
Article L122-1
Any advertising that makes a comparison between goods or services by identifying, implicitly or explicitly, a competitor or goods and services offered by a competitor is only legal if:
1. It is not false or likely to mislead
2. It relates to goods or services fulfilling the same requirements or having the same objective
3. It objectively compares one or more essential, pertinent, verifiable and representative characteristics of these goods or services, one of which may be the price
Article L122-2 Comparative advertising may not:
1. Take unfair advantage of the reputation attached to a trademark, manufacturer’s brand or service mark, to a trade name or to other distinctive marks of a competitor or to the designation of origin as well as the protected geographical reference of a competing product
2. Lead to the discrediting or denigration of marks, trade names, other distinctive signs, goods, services, activity or situation of a competitor
3. Cause confusion between the advertiser and a competitor or between the advertiser’s marks, trade names, other distinctive signs, goods or services and those of a competitor
4. Present goods or services as an imitation or reproduction of goods or services with a protected mark or trade name
The advertiser on whose behalf the comparative advertising is being circulated must be in a position to prove, within a short time, the factual accuracy of the statements, references and presentations contained in the advertising (Art. L122-5)
The publication in the press of advertising as defined in articles L. 122-1 and L 122-2 does not give rise to the application of article 13 of the law of 29 July 1881 in the freedom of the press and article 6 of law no. 82-652 du 29 July 1982 on audiovisual communication (Art. L122-6)
2.3. Pricing regulations
Pricing regulation is from a number of sources in law; below are the most relevant:
See also pricing from self-regulatory measures shown in full under point 1 above
ARPP Price Advertising Recommendations (FR)
An English translation is linked below; key clauses above under Pt. 1.7 and in individual channels
http://www.g-regs.com/downloads/FRARPPPriceClausesC.pdf
The Climate and Resilience Law (FR) introduced via Decree 2022-539 of April 13, 2022 (FR) on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code. The clauses concerned are in English here. These require substantial evidence to be made available in the event of a 'carbon neutral' or equivalent statement being made
2.5. General content rules in broadcast
From the consolidated version of Decree 92-280 of 27 March 1992 (EN) transposing Directive 2010/13/EU (the AVMS Directive, AVMSD)
Directive 2018/1808 amended the AVMSD to extend scope into e.g. video-sharing platforms. Provisions are applied in Law 86-1067 of September 30 1986 (the Léotard law) in French here. The commercial communications content elements of the directive’s changes, which are not significant, are shown here (EN). What is significant, however, is the pressure placed on self-regulatory systems with the addition of article 4a (shown in the linked file), which appears to require a more aggressive stance in HFSS and alcohol marcoms regulation in particular
1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity
2. Directly encourage minors to persuade their parents or others to purchase the goods or services
3. Exploit or alter the special trust minors place in parents, teachers or other persons
4. Without justification show minors in dangerous situations (Art. 7)
Public Health Code article L2133-2 (EN) on retouched model shots: these must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.
SELF-REGULATION; the ICC Code
1.1. General provisions
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
2.2.5. The Empco Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of technical/ scientific data and terminology (Art. 9)
Use of 'free' and 'guarantee' (Art. 10)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art. 13)
Portrayal or imitation of persons and references to personal property (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Safety and health (Art. 17)
D1. Honest and truthful presentation
D2. Scientific research
D3. Superiority and comparative claims
D4. Product life-cycle, components and elements
D5. Signs and symbols
D6. Waste handling
D7. Responsibility
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
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
18.3. Avoidance of harm
18.4. Social values
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
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:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
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 that 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.
(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.
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;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
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.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
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).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
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
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
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:
2.2.1. 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:
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.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
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
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
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
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
When advertising, sponsorship or promotional messages are broadcast, the message is transmitted immediately after the advertising, adapted as follows: 'Les jeux d'argent et de hasard peuvent être dangereux: pertes d'argent, conflits familiaux, addiction … Retrouvez nos conseils sur joueurs-info-service.fr et au 09 74 75 13 13, appel non surtaxé.' (Gambling and betting can be dangerous: loss of money, family conflicts, addiction… Find our advice on players-info-service.fr and on 09 74 75 13 13, non premium rate call.)
According to this article (FR), radio operators will not sign the associated charter as 'this requirement discriminates against radio when the message can take up 50% of a commercial.'
New sectorial rules for TV advertising in France (EN)
Bird & Bird LLP/ Lex April 15, 2024. Decree here (FR)
KEY RULES AND SOURCES
RULES FROM DECREE 92-280 (EN)
These rules are directed at the broadcaster rather than the advertiser, who is nevertheless impacted; product placement is from the CSA Decision of February 2010, amended in July 2012 (FR). The CSA is the French broadcasting authority, though it merged with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022
PRODUCT PLACEMENT
PRICING IN AV (ARPP Price Recommendation)
SPONSORSHIP (Decree 92-280)
1) The mention of the sponsor during the course of a programme, except during an interruption of/ break in the programme, must remain brief and discreet, simply recalling the contribution made by the sponsor, and cannot become an advertising slogan or the presentation of the product itself or its pack
2) When the sponsorship is supporting a gameshow/ contest programme, the awarding of the sponsor's goods or services to individuals as prizes cannot be in the context of an advertising claim (Art. 18/III)
The last three bullet points above as amended by Decree No. 2017-193 of February 15, 2017 (FR)
RADIO SPONSORSHIP
Consolidated version of Decree 87-239 (EN key clauses) article 9
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
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
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
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
APPLICABLE TO ALL 3 CHANNELS
CINEMA
Price
Re-touching
OUTDOOR
The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
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
Privacy issues should be reviewed with specialist advisors
We show in this section the rules for gambling marcoms in digital channels in France followed by some of the general rules - statutory and self-regulatory - for key online channels that apply to all product categories. The influence of legislation on digital commercial communications is significant, especially relating to issues of privacy
CNIL unveils its first answers for innovative and privacy-friendly AI (EN) October 16, 2023
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;
Q&A: online advertising in France from UGGC Avocats/ Lex October 2022 is a helpful walk through the prevailing regulations in different forms of online advertising;
Q&A: online advertising in France from UGGC Avocats September 29, 2023 is an update on the above.
CONTEXT
This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as 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 subject to the rules online in owned and (some) earned space as well as paid. The definition of advertising is therefore important: the ARPP/ ICC definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. See Marketers’ Own Websites header below for specifics on owned space. In this channel context, the influence of legislation is significant, particularly in the use of personal data. The impact of GDPR, and national 'stand-alone' legislation, or that which applies EU Directives, is also shown under individual channel sections below
SOURCE OF RULES
Content rules are from the General Advertising Rules (EN ICC Code) from ARPP, which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses inc. 2022 amends) also apply; see content section B
The key channel rules are from the ARPP’s December 2021 V5 Digital Advertising and Marketing Communications Code (EN; FR here); scope of the code is here. Scope All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The code deals with various techniques online such as in-game, native and OBA. Rules for each of these are shown in the relevant sections below
Other significant channel rules in the online environment are from legislation; we reference GDPR lawful processing rules above in the introduction. The data protection authority is CNIL (EN home page); their GDPR 'toolkit' is here (EN) and their February 2022 reference text on personal data processing is here (FR)
The rules relating to consent and information requirements in electronic communications are from the 2013 Mail and Electronic Communications Code (FR) - English translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France
European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021 here (EN);
Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Amends were transposed into the law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the directive's amends to commercial communication content requirements is here and notes on the scope changes here (both EN);
In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (CC; EN key clauses inc. 2022 amends) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws set out what must be included or made available in e-Commerce communications (articles L122-8 and L122-9 of the CC, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the CC). Amends to the CC effective May 28, 2022 from the 'Omnibus' Directive 2019/2161 introduced further requirements for information in an e-Commerce context related to search rankings and consumer reviews under article L121-3 and promotional pricing rules under article L112-1-1;
The CC also carries the core statutory misleadingness rules, transposed from the Unfair Commercial Practices Directive 2005/29/EC. Unfair and misleading commercial practices are regulated under Articles L. 121-2 to L121-4, and aggressive commercial practices in Articles L121-6 and L121- 7. Comparative advertising is under articles L122-1 to L122-5;
PRICING
INFLUENCER MARKETING
Video from ARPP (EN sub-titles)
ARPP recommendations for influencer marketing:
https://www.youtube.com/watch?v=8Jx4gr5bvH0
Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR); #ad, for example, is not permitted
The Digital Code referenced above also carries some Influencer rules, GRS (unofficial, non-binding) translation as follows:
Definition
Qualification & application
Identification
...............................................................
Other guidance/ best practice
The European Advertising Standards Alliance (EASA) published in May 2023 Best Practice Recommendation on Influencer Marketing (EN)
and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope
Le cadre juridique applicable au marketing d'influence (FR) published by Haas Avocats September 2022 is a valuable overview of the regulatory framework around Influencer marketing
Commission's call for evidence on DSA minors protection guidelines; closes 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
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
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
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
And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
C1. Identification and transparency
C2. Identity of the marketer
C7. Marketing communications and children
C10. Respect for the potential sensitivities of a global audience
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(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)
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:
Article 7
Unsolicited commercial communication
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
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Privacy issues should be reviewed with specialist advisors
OBA
A new path for Privacy Sandbox on the web July 22, 2024
Google re new third party cookie plans for Chrome
Privacy Sandbox news and updates
Practice guide for the security of personal data: 2024 edition (EN)
CNIL March 26, 2024 French version here. Haas here (FR)
French data agency fines Yahoo! €10 million over cookies policy
DAC Beachcroft February 7, 2024
A new path for Privacy Sandbox on the web July 22, 2024
INFORMATION REQUIREMENTS
from the FDPFA, art. 82
EXEMPTIONS
CONSENT REQUIREMENTS AND GUIDANCE
Commentary
1 year after the DSA came into force, where are we? (FR)
From Haas July 24, 2024. Includes ref to LI targeting
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023. Connected with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
CNIL Fines Apple 8 Million Euros Over Personalized Ads. Hunton Andrews Kurth LLP January 6, 2023
The above is obviously a significant case; GDPR application 'versus' national law discussed
Meta’s Ad Practices Ruled Illegal Under E.U. Law
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
Effective 19 January 2022
9. Behavioural advertising and retargeting
1) Identification of the commercial nature of behavioral advertising
OTHER SELF-REGULATION
EASA’s Best Practice Recommendation on OBA 2021
...........................................
A number of companies and organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by 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. OBA segments may not be created for children (under 13)
OTHER SIGNIFICANT INFLUENCES
A new path for Privacy Sandbox on the web July 22, 2024
Google re new third party cookie plans for Chrome
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
A world beyond cookies Bristows May 16, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Consent Rules Apply to Broader Range of Tracking Technologies
McDermott Will &Emery January 18, 2024
Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*
Covers interplay between the AI act, the DSA and GDPR
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
A new path for Privacy Sandbox on the web July 22, 2024
Google re new third party cookie plans for Chrome
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
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
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
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
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
Applicable regulation and opinion
Application of notice and choice provisions
C22.1. Notice
C22.2. User control
C22.5. Data security
C22.6 Children
C22.7. Sensitive data segmentation
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
MARCOMS CONTENT RULES
STATUTORY CONSENT AND INFORMATION REQUIREMENTS
From Article L34-5
Consent requirements
Key extracts from the Consumer Code (CC; EN)
Offers and promotions, 'Invitation to Purchase'
Key extracts from the LECN
Article 19; information required to be available
(e-Commerce is defined here as: the economic activity by which a person proposes or provides remotely and electronically the supply of goods or services; also included in the scope of e-commerce are services such as providing online information, commercial communications, and tools for searching, accessing and retrieving data, accessing a communication network or hosting of information, including when they are not paid for by those who receive them – art. 14 LECN)
Any person who undertakes the activity defined in Article 14 must ensure to recipients of the supply of goods or services the easy, direct and permanent access, using an open standard, the following information:
Article 20; Transparency
SELF-REGULATORY REQUIREMENTS
5a) Identification of advertising
5b) Fair, truthful and honest advertising
Pricing
2024 GDMA International email benchmark
Posted June 2024
General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:
19.1. Collection of data and notice
19.2. Use of data
Personal data should be:
19.3. Security of processing
19.4. Children’s personal data
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.:
19.7. Cross-border transactions
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
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an e-Commerce context
- 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
Section 2: Commercial communications
Article 6
Article 7
Unsolicited commercial communication
EU guidance documents
The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’. The ARPP state in their Communication Publicitaire Digitale (EN) that the rules apply to ‘advertising communications, whatever their format, on advertisers’ own websites.’ Advertising is defined in the applicable ICC Code (EN) as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’
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 ‘in remit’, i.e. subject to the rules. The ARPP state in their Digital Advertising and Marketing Communications Code (EN; in force Jan 2022) that the rules apply to ‘advertising communications, whatever their format, on advertisers’ own websites.’ Advertising is defined in the applicable ICC Code as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’
GENERAL RULES
CONSENT AND INFORMATION REQUIREMENTS AND AVMSD RULES
The core e-Commerce rules are shown in the preceding section for Emails/SMS, or see the linked documents below
SELF-REGULATION
Apps
Digital audio
Influencers and brands
Brand content
INFLUENCER MARKETING
Video from ARPP (EN sub-titles)
ARPP recommendations for influencer marketing:
https://www.youtube.com/watch?v=8Jx4gr5bvH0
The Digital code referenced above also carries some Influencer rules, GRS unofficial non-binding translation as follows:
Definition
Qualification & application
Identification
OTHER GUIDANCE
The European Advertising Standards Alliance (EASA) published in May 2023 Best Practice Recommendation on Influencer Marketing.
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
ICC Advertising and Marketing Communications Code (EN); 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 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
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
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
EU Guidance/ opinion documents
A reminder of the Identification rules from the ARPP Gambling Code (EN) set out in our content section B (the italicised text is an alternative translation where we judge the original to be unclear)
See also General tab below
The Consumer Code (EN key clauses 2022) article L121.4 transposing the ‘blacklist’ of practices in all circumstances considered unfair from the Unfair Commercial Practices Directive 2005/29/EC includes: 11. ‘To use written content in the media to promote a product or service when this content has been financed by the professional himself, without clearly indicating this origin in the content or by the use of images or sounds clearly identifiable by the consumer.’
CONTEXT
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
7. Identification and transparency
8. Identity of the marketer
The ICC’s Guidance on Native Advertising (EN) 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
From the ARPP's Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022)
8. Native advertising
Definition: Native advertising covers all advertising formats that adopt - or closely approximate - the design and usage features of the website on which they are placed and adapt themselves to the user experience
LEGISLATION
The Consumer Code (EN key clauses inc. 2022 amends), which in this context is the principal consumer protection legislation in France, and includes transpositions from the Unfair Commercial Practices Directive 2005/29/EC and e-Commerce Directive 2000/31/EC, carries the following clauses in relation to Identity. Deemed misleading is:
Law No. 2004-575 (FR) on Confidence in the Digital Economy carries the e-Commerce 'Identification' rule under its article 20:
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
ICC Advertising and Marketing Communications Code (EN) 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.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
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
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
CONTEXT
Invitation to purchase and promotional pricing
1. The main characteristics of the property or service
2. The address and identity of the trader
3. The price, including tax and delivery costs that will be charged to the consumer, or, if this cannot be calculated in advance, the method of calculation used
4. The methods used for payment, delivery, and execution and processing of consumer claims insofar as they differ from customary practice in the professional sector concerned
5. The existence of a right of withdrawal, should this be provided for by law.
From Art. L 121-3 CC.
SELF-REGULATION IN DM
PRICING
Applicable Self-regulation and legislation
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
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:
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
Guidelines on consent under Regulation 2016/679 (May 2020)
46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party
47. Sponsorship should not adversely affect or influence minors. Member States are encouraged to ensure that:
(a) No sponsorship is allowed of events designated for or mainly aimed at minors
(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
Sponsors of athletes in the Paris games (FR)
Attention à la communication autour des jeux de Paris (FR)
Both above Grant Thornton May 3 and 19 February, 2024 respectively
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
Organisation and commercialisation of sports events in France (EN). Joffe & Associés September 2021
B1. Principles governing sponsorship
B2. Autonomy and self-determination
B3. Imitation and confusion
B4. Ambushing of sponsored properties
B5. Respect for the sponsorship property and the sponsor
B6. The sponsorship audience
B7. Data capture/ data sharing
B8. Artistic and historical objects
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
.........................................................
The European Sponsorship Association (ESA) may also be able to help
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
This website was created to set out the rules for international marketing communications and as such does not claim authority on the presentation of Sales Promotion (SP) rules. Nevertheless, when we find relevant provisions in the course of what is extensive research, we will include them in this section
A reminder from Section B of some promotional-specific rules (non-exhaustive) from the Gambling code:
CONTEXT
This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal. See Loterie publicitaire et jeu-concours: les pièges à éviter from Haas Avocats Jan 2023.
Some general rules for sales promotions in France, i.e. those that apply to all sectors, can be found below. These are sourced from the Consumer Code law (key extracts below), and the General Advertising Rules (EN) from ARPP/ ICC that apply in France. The specific ICC sales promotion rules are Chapter A of the code. Key extracts below under self-regulation. Finally, SP material should also observe the content rules set out in section B
LEGISLATION
Article L.121-4 of the Consumer Code (EN) is supplemented by clause 23 explained here (EN) by Osborne Clarke.
Re above, see under 'Definition of a new misleading practice.'
Loterie publicitaire et jeu-concours: les pièges à éviter (FR; Haas Avocats Feb 2023)
See Guide to sales operations with bonuses/ premiums (FR) from Haas Avocats August 2022
And Haas blog June 2023 on reference vs. comparative pricing (FR)
Extracts from the Consumer Code (EN key clauses inc. 2022 amends):
From Article L121-4. Considered a misleading commercial practice is:
a) Refuse to present the advertised item to consumers;
b) Or refuse to take orders concerning these products or services or deliver or supply them within a reasonable time frame
c) Or present a flawed sample of a product or service with a view to promoting an alternative product or service
Offers made by electronic means
Also from the Consumer Code (EN key clauses; FR)
Article L112-1-1 effective May 28, 2022 represents the transposition of promotional pricing rules from Directive 2019/2161, itself amending the Product Price Directive 98/6/EC. Clauses in English, applicable to 'any announcement' are:
See Haas blog June 2023 on reference vs. comparative pricing (FR)
SELF-REGULATION
From the ICC Advertising and Marketing Communications Code (EN), Chapter A
Article A2. Terms of the offer
Article A4. Administration of promotions
In particular:
Article A5. Safety and suitability
Article A6. Presentation to consumers
Information requirements
Information should include, where relevant:
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:
PRICING
The ARPP’s Price Recommendation may be relevant in a sales promotional context. In English (ARPP translation):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/
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.
ICC Advertising and Marketing Communications Code (EN), 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
ICC Code Chapter A Sales Promotion
A1: Principles governing sales promotions
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:
A5: Safety and suitability
A6: Presentation to consumers
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:
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:
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
3 relevant clauses extracted
C3: The offer
C4 : Presentation
C17: Substitution of products
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
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
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
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
All television advertising needs to be pre-cleared by the ARPP. The procedure is as follows:
A preferential rate of 38 euros* per advertisement is available to ARPP members, whereas non-members pay 207 euros. The pre-clearance process takes a maximum of 48 hours. Copy advice requests and the enclosures must be sent through the new online submission system ARPP.PRO. More information can be found here (FR) or here (EN). * These fees are probably out of date
5-10 clear working days for TV/VOD/Online/Sponsorship (incurs fees)
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global Factbook of Self-Regulatory Organizations 2019
EASA (European Advertising Standards Alliance)
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)
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
EASA Best Practice Recommendation on Online Behavioural Advertising
EASA Best Practice Recommendation on Influencer Marketing
GDPR
Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
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. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
Three more recent and significant documents:
UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ – UCPD):
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance (2021):
https://ec.europa.eu/info/sites/default/files/c_2021_9320_1_ucpd-guidance_en.pdf
European Communication and Recommendation
In March 2011 the European Commission launched a consultation on online gambling services. In particular, the Commission asked for views on online commercial communication, sales promotions, direct marketing and sponsorship. Following its consultation, the Commission adopted the Communication Towards a comprehensive European framework on online gambling in October 2012, which set out the commission’s action plan for the next two years. Key objectives of the action plan included ensuring protection of minors and enhancing responsible advertising. The Commission Recommendation on ‘principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online’ was published in July 2014. This is a Recommendation (not legally binding) on responsible gambling advertising, which aims to ensure that operators advertise in a socially responsible manner and provide key information to consumers. It also requires strict protection for minors.
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014H0478
On 27 November 2015, gambling regulatory authorities of EEA Member States signed a cooperation arrangement to enhance administrative cooperation.
More EU legislation is shown under the General tab below
French Gambling Act No. 2010-476 of 12 May 2010 on the opening to competition and regulation of the gambling and games of chance online sector. (LOI No. 2010-476 du 12 mai 2010 relative à l'ouverture à la concurrence et à la régulation du secteur des jeux d'argent et de hasard en ligne). This act represents the establishment of the legal regime for online gambling in France; it remains in force but heavily amended under the regime below:
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000022206487&dateTexte=20190711
Loi PACTE
Plan d'Action pour la Croissance et la Transformation des Entreprises PACTE (Action Plan for Business Growth and Transformation) in May 2019, which was the foundation for the government to put in hand some reforms of gambling regulation, which first came in the form of:
Ordinance 2019-1015 of 2 October 2019 reforming the regulation of gambling; entered into force 1st January 2020. This ordinance established the national Gambling Authority ANJ, (Autorité Nationale des Jeux) replacing Arjel, privatised the operator of the national lottery Française des Jeux, and confirms marcoms provisions that are now consolidated in the Internal Security Code (see below) under the Legislative part Book III, Title II
https://www.legifrance.gouv.fr/loda/id/JORFTEXT000039167499/2021-02-01/ (FR)
Decree 2020-1349 of 4 November 2020 on the regulation methods of the National Gambling Authority (Décret 2020-1349 du 4 novembre 2020 relatif aux modalités de régulation de l'Autorité nationale des jeux). This decree also ‘implanted’ article 45 provisions into the Internal Security Code, for our purposes consolidated under Book III, Title II of the regulatory part of the code and largely concerned with the layout of warning messages by medium and some specific content measures under articles D320-9 and D320-10, the latter focused on protection of minors
https://www.legifrance.gouv.fr/loda/id/LEGIARTI000042500943/2020-11-07/
Internal Security Code
Code de la sécurité intérieure
This is obviously a significant piece of legislation covering a wide variety of national life and business and now also the home of gambling regulatory measures. The core is from the legislative part of the act, articles L320-1 to L320-18 under Book III, Title II, created by the 2019-1015 ordinance above. State policy is spelt out under article L320-3. Article L320-12 provides for warning messages and the protection of minors. The regulatory part of the act delivers the warning messages rules/ application and some specific content and child protection measures from Decree 2020-1349 under articles D320-1 to D320-10
https://www.legifrance.gouv.fr/codes/id/LEGISCTA000039182522/2020-01-01
Regulatory authority ANJ
Autorité National des Jeux (The National Gambling Authority). From their website: 'With Article 137 of the Pacte Act on the privatisation of La Française des Jeux and the Order of October 2, 2019 reforming gambling regulation, the legislator broadened the scope of intervention of the new Gambling Authority (ANJ) by giving it the status of an independent administrative authority'. Since the reform of the regulation of gambling in 2020, all operators must submit their promotional strategy annually for approval to the National Gaming Authority. The latter examines it with regard to the objectives of the State policy on gambling and more particularly, the prevention of excessive or addictive gambling and the protection of minors.'
In February 2022, the ANJ published Lignes directrices et recommandations sur la publicité des jeux d’argent et de hasard (Guidelines and recommendations for the advertising of games of chance and risk). Related press release is here (EN). Brought about as a result of public and stakeholder consultation following what appeared to be excessive operator activity during the Euro 2020 tournament (played in 2021), this is a significant document with implications for both content and presence of advertising. From the press release: 'The guidelines cover the content of communications that are prohibited because they may encourage excessive gambling: communications banalizing (trivialising) gambling, those containing unsubstantial claims about the chances of winning or equating gambling with a change in social status or an alternative to paid work, etc.; content prohibited because it could encourage minors to gamble: prohibition of advertisements featuring a minor, which would encourage minors to consider gambling as a natural part of their leisure time, or those depicting personalities from the world of minors, etc. The recommendations aim to limit the pressure of advertising messages on each media channel, to encourage responsible practices by influencers and ambassadors, to reinforce the protection of minors and excessive gamblers and, finally, to improve prevention messages.' These 'rules' (albeit provisions are technically non-binding) extend the requirements set out in the Decree of 4th November 2020 relating to the prevention of addictive/ problem gambling and the protection of minors. Warning messages (under Recommendation 5) are required to be more prominent via the deployment of a yellow 'cartridge' to carry the messages and its increased presence in advertising. 'Implementation mechanisms' include an updating of ARPP's Gambling code and 'the complete system should be operational on September 1, 2022, before the FIFA World Cup in November-December 2022.' The 'synthesised' document, i.e. that which carries both guidelines and recomendations, is immediately below in French, followed by a link to an unofficial, non-binding GRS translation.
http://www.g-regs.com/downloads/FRGAMANJcom2022C003bonusesENb.pdf (EN)
In October 2022, the ANJ published Communication No. 2022-C-003 du 20 Octobre 2022 Portant Adoption De Lignes Directrices et de Recommandations Relatives aux Offres Commerciales des Operateurs de Jeux D’argent et de Hasard Comportant une Gratification Financiere (Guidelines and Recommendations Relating to Commercial Offers from Gambling and Betting Operators that include a Financial Incentive). The document sets out the legal framework relating to commercial communications that contain 'financial reward' and applies that to the industry activity together with some guidelines on transparency and recommendations on the volume, frequency and amount of bonusing/ financial incentive and how and to whom those are conveyed.
https://anj.fr/sites/default/files/2022-10/Communication%202022-C-003%20Gratifications.pdf (FR)
Unofficial and non-binding English translation:
http://www.g-regs.com/downloads/FRGamANJGuidesRecsFeb2022ANJENb.pdf
Channel legislation (Gambling)
Resolutions from the French audiovisual regulation authority (CSA, as of January 2022 Arcom) on broadcasting conditions of authorised gambling advertising provide recommendations and directions for advertising gambling on TV:
Resolution No. 2013-3 of January 22, 2013 on broadcasting conditions of authorised gambling advertising:
This confirms and clarifies the Resolution immediately above and also confirms that gambling rules apply to advertising, sponsorship and product placement.
The above is repealed and replaced by the Decision of 19 October 2022 (FR) from the AV authority Arcom and sets out the conditions for the dissemination of commercial communications in defined media (on-demand audiovisual media services, radio, television), paying particular attention to the protection of minors. The (statutory) document defines prohibited AV media and sets out content rules on e.g. characters with a strong appeal to minors; there are no big surprises in those rules, which reflect the ANJ’s February 2022 guidelines and recommendations and also incorporate warning message requirements in AV media.
Warning messages
Arrêté du 29 juillet 2022 relatif au message de mise en garde contre le jeu excessif ou pathologique. From the Ministry of Health, this order sets out the content and placement rules for the warning message that is separately required by law (The Internal Security Code, article D320-2). The 'unchangeable' message must read 'Les jeux d'argent et de hasard peuvent être dangereux : pertes d'argent, conflits familiaux, addiction… Retrouvez nos conseils sur joueurs-info-service.fr (09 74 75 13 13 - appel non surtaxé)'. The annex sets out requirements by medium, font to be used, space to be opccupied etc.
ELI: https://www.legifrance.gouv.fr/eli/arrete/2022/7/29/SPRP2222141A/jo/texte
Charter
The charters of good conduct signed between TV advertisers in January 2011 can be found in French in the Appendix of the CSA report on the consequences of gambling advertising, from October 2011. The charter covers volume and frequency of Gambling advertising, rather than content. The downloaded report is here (in French):
http://www.g-regs.com/downloads/FRGamblingCSAReportandBPCharters.pdf
Four charters have been signed by gambling operators in October 2022 for AV and radio, display and digital media; ANJ press release here. The charters restrict advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire'). The display charter requires that operators avoid placement of posters near schools and addiction treatment centres, that sites are made available to the authority for addiction prevention postings and that metro and rail station activity is limited.
Consumer protection legislation (all sectors)
Consumer Code (Code de la Consommation). This is the cornerstone of consumer protection marketing legislation in France, transposing the Unfair Commercial Practices Directive 2005/29/EC of 11th May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy. Key articles relating to misleadingness are L.121-2 to L.121-4, and aggressive commercial practices are defined in articles L.121-6 and L.121-7; translated into English here, or shown in our Content Section B. The comparative advertising elements in articles L122-1 to L122-5 are taken from the Misleading and Comparative Advertising Directive (MCAD) 2006/114/EC, itself codified from the original Misleading Advertising Directive 84/450/EEC. Some promotional activities are covered in L122-8 to 10. Amends to the Consumer Code effective May 28, 2022 were driven by the 'Omnibus' Directive 2019/2161 which introduced requirements for information in an e-Commerce context related to search rankings and consumer reviews (article L121-3) and promotional pricing rules under article L112-1-1. Transposition was via Ordinance 2021-1734 (FR).
http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006069565
English translation inc. 2022 key clauses:
http://www.g-regs.com/downloads/FRConsumerCodeENG.pdf
Other national channel legislation applicable to all sectors, Gambling included, is shown below under the General tab. Statutory rules include those for consent and information requirements in electronic communications
Industry codes
ARPP is the French advertising Self-Regulatory Organisation (SRO) - Autorité de Régulation Professionnelle de la Publicité. Their General Advertising Code (FR) is taken directly from the ICC Advertising and Marketing Communications Code, which underpins much of advertising Self-Regulation worldwide. The code is in English here. The ARPP Gambling Code in French, revised effective September 1, 2022:
www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-jeux-argent-v2/
And in English:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/gambling-code-v2/
This is a 'reminder' from the ARPP website about ethical standards and provisions for the sector
http://www.arpp-pub.org/IMG/pdf/intro.pdf
The ARPP also publish a number of specific Codes or ‘Recommendations’ on various topics. Links to some of the most relevant to Gambling are shown below (in English); others are shown under the General tab below
Children:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/ (EN)
Notes and overlays:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/ (EN)
Identification of advertising and marketing communications:
Digital Advertising: Applies to all advertising communicated electronically other than broadcast, including advertising, whatever the format, on the advertiser’s own websites. This is Version 5, in force January 1, 2022:
Image and Respect for the Person:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/
ICC
ICC Advertising and Marketing Communications Code 2018:
The ICC’s Guidance on Native Advertising Is In French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
GDPR
Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 2018.
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
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.
Five more recent, significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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:
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, 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. Transposition in France is primarily, for our purposes, by Ordinance No. 2021-1734 of December 22, 2021, shown below under national legislation.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN
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
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
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
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
Toubon
1994 Toubon Law on the use of French language (Loi Toubon); articles 1 and 2. This law imposes the use of the French language in work, public administration, instructions for use of products, commercial offers and guarantees, and in advertising. Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product:
http://www.dglf.culture.gouv.fr/droit/loi-gb.htm (in English!)
Consumer protection
Consumer Code (Code de la Consommation). The Consumer Code carries the Unfair Commercial Practices Directive 2005/29/EC of 11 May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy. Articles L121-1 to L121-5 of the Code cover misleading commercial practices; L121-3 sets out the specific rules for commercial communications making ‘an invitation to purchase.’ Articles L122-1 to L122-6 set out comparative advertising rules. Requirements for promotions in electronic communications are found under L122-8 to L122-10. Some pricing rules are under L112-1 to L112-4. Act No. 2014-344 of 17 March 2014 transposed EU Directive 2011/83/EU into the Consumer Code; the Directive largely addresses distance selling and off-premise contracts, rights of redress etc. Ordinance 2021-1734 (FR; see below) is the vehicle that transposes various marketing-related rules from Directive 2019/2161 which itself inter alia amends Directives 98/6/EC, the Product Pricing Directive and the UCPD 2005/29/EC. Clauses affect e-Commerce information requirements related to consumer reviews and search rankings (article L121-3) and, separately, promotional pricing rules which are shown under article L112-1-1. The version of the Consumer Code applicable from May 28, 2022 is here:
An unofficial and non-binding translation of most of the articles relevant to this database, including those effective May 28, 2022, is here:
http://www.g-regs.com/downloads/FRConsumerCodeENG.pdf
Ordinance No. 2021-1734 of December 22, 2021 transposing Directive 2019/2161 of the European Parliament and of the Council of November 27, 2019 as regards to better enforcement and modernisation of EU consumer protection rules. Ordonnance n° 2021-1734 du 22 décembre 2021 transposant la directive 2019/2161 du Parlement européen et du Conseil du 27 novembre 2019 et relative à une meilleure application et une modernisation des règles de l'Union en matière de protection des consommateurs. In this context, amends the Consumer Code; the product pricing amends are under Section 2 of the ordinance and Section 3 carries consumer review and search ranking information requirements as well as the addition under misleading actions: 'When an item is presented as being identical to an item marketed in one or more other Member States, even though it has a different composition or characteristics”. The latter amends are to article L121-2 of the Consumer Code. Provisions are in force May 28, 2022.
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044546235 (FR)
The 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021; art 10) established specific reference to environmental impact under article L121-2 of the Consumer Code, which covers how a product or service's 'essential characteristics' must not mislead.
https://www.legifrance.gouv.fr/eli/loi/2021/8/22/TREX2100379L/jo/texte
Consumer authority
The Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) is the public body that enforces the Consumer Code:
https://www.economie.gouv.fr/dgccrf
The Environmental Code
The Climate and Resilience Law (Loi 2021-1104 FR) introduced via Decree 2022-539 of April 13, 2022 on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code which requires that claims such as 'carbon neutral' and equivalent are permitted only if 'the advertiser makes readily available to the public the following: 1. A greenhouse gas emissions assessment report that incorporates the direct and indirect emissions of the relevant product or service; 2. The process by which the greenhouse gas emissions of the relevant product or service are first avoided, then reduced and finally offset. The greenhouse gas emissions reduction trajectory is described using quantified annual progress targets; 3. The methods for offsetting residual greenhouse gas emissions that comply with minimum standards defined by decree.' LOI No. 2020-105 (FR) du 10 février 2020 relative à la lutte contre le gaspillage et à l'économie circulaire (the fight against waste and the circular economy, though the fight is against only the first of those) also places marketing-related clauses into the Environmental Code including, for example, that as from 1 January 2023 B2C advertising flyers or catalogues must be printed on recycled paper or on paper produced from sustainably managed forests. Helpful May 2020 summary in English here from Osborne Clarke.
Decree No. 2022-539 of April 13, 2022 on carbon offsetting and claims of carbon neutrality in advertising
https://www.legifrance.gouv.fr/eli/decret/2022/4/13/TRER2209794D/jo/texte
Section 9 Environmental Code:
The clauses concerned are in English here (translation borrowed from Soulier Avocats/ Mondaq May 2022)
https://www.g-regs.com/downloads/FREnvCodeMay2022EN.pdf
Data processing
Act No. 78-17 of 6 January 1978. Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés. Formally, the 1978 Information Technology, Data Files and Civil Liberties Act, known as the French Data Protection and Freedoms Act (FDPFA). The 1978 act is the core and principal national data protection statute (pace GDPR) in France and established the CNIL (Commission Nationale de l’Informatique et des Libertés, the Data Protection Authority; see below). An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here:
http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf
The consolidated version of the Act, including the amends from Law 2018-493 on Personal Data Protection (FR) and Ordinance 2108-1125 of December 12, 2018, which is the ‘vehicle’ that recognises GDPR, is in French here:
https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee
There have been many amendments to the DPA over the years; significant in this context is Ordinance No. 2011-1012 of 24 August 2011 on electronic communications, which set out cookie provisions from Directive 2009/136/EC. See below. The Ordinance is in French here:
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id
Cookies/ data protection
France implemented the EU Cookies Directive 2009/136/EC, which amended the E-Privacy Directive 2002/58/EC, by Order/decree No. 2011-1012, of 24 August 2011 on electronic communications (see above). This amends the Consumer Code, and the Postal and Electronic Communications Code as well as the Data Protection Act. Relevant specific provisions re Cookies: article 37 of the Ordinance found in Chapter III Changes to Law No. 78-17 of 6th January 1978; amends Article 32II of the FDPFA to provide the rules for information and consent, together with some exemptions:
http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id
An English translation of the DPA (including the Ordinance update) is here:
http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf
The version of the DPA that includes amends from Law 2018-493 on Personal Data Protection, which is the ‘vehicle’ that recognises GDPR, is here (in French):
https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee
Electronic communications
Mail & Electronic Communications Code, Article L34-5 (Code des postes et des communications électroniques): This Code is a cornerstone for the regulation of commercial electronic communications; the specific article L34-5 implements the E-Privacy Directive 2002/58/EC and concerns unsolicited commercial communications by fax, telephone or e-mail, which are subject to ‘freely given, specific and informed’ consent, unless direct marketing concerns related goods/ services to an existing customer whose data has been correctly obtained at the time of the sale, and who is given a simple and no-cost opportunity to opt out to the use of his/ her personal data. Consolidated version in force Feb 2019:
https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070987&dateTexte=20190213
Translation of article L34-5:
http://www.g-regs.com/downloads/FRMail_E-CommsL34-5.pdf
e-Commerce and privacy
Act No. 2004-575; the Law of 21 June 2004 on Confidence in the digital economy, ‘LECN’ (Loi pour la Confiance dans l'économie numérique). The law inter alia implemented article 13 (unsolicited communications) of the E-Privacy Directive 2002/58/EC, now codified under Article L.34-5 of the Mail and Electronic Communications Code (see above). LECN also part-implemented the E-Commerce Directive 2000/31/EC on certain legal aspects of information society services. LECN articles 19 and 20 address the information and Identification requirements in e-commerce communications. Provisions from this Directive are also found in the Consumer Code (EN) which covers promotional offers/ games and their conditions, from Article 6 of the Directive, under articles L122-8 and L122-9. Consolidated version of the LECN is here:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801164
Personal Data Authority
The CNIL (Commission Nationale de l’Informatique et des Libertés) National Commission for Data Protection: from its website is ‘an independent administrative body that operates in accordance with the data protection legislation of 6th January 1978 as amended on 6th August 2004’. Its role is to ‘protect privacy and freedoms in the digital world, to inform, advise & sanction, having the power to impose significant fines on data controllers who breach the law’:
‘Cookies and Other Trackers’ (EN) ‘The purpose of this document is to describe the practical modalities for obtaining consent in accordance with the applicable rules, to propose concrete examples of user interface, and to present best practices that go beyond the legal requirements.’ See also Cookies and other tracking devices: the Council of State issues its decision on the CNIL guidelines 29 June 2020
The CNIL GDPR: September 2017 Guide for processors is here:
https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)
And their 2018 Guide ‘Security of Personal Data’ is here, also in English:
https://www.cnil.fr/sites/default/files/atoms/files/cnil_guide_securite_personnelle_gb_web.pdf
2021 Annual Report:
https://www.cnil.fr/sites/default/files/atoms/files/cnil_-_42e_rapport_annuel_-_2021.pdf
Decree No. 92-280 on advertising, sponsorship and tele shopping (amended 2011). Articles 18-20 for Sponsorship, 21+ for tele-shopping. This decree contains a number of general advertising content provisions and implements the rules from the AVMS Directive 2010/13/EU updating the Television Without Frontiers Directive on advertising, sponsorship and tele-shopping. A 2017 amendment from Decree No. 2017-193 of February 15, 2017 (FR) amended article 18 on the programme sponsorship regime to be more in line with the AVMS Directive; amendment effective January 2018. Decree 92-280 is here:
An English translation of the relevant clauses is here:
http://www.g-regs.com/downloads/FRDec92-280AdvSponsC.pdf
Product placement
Decision No. 2012-35 of 24 July 2012, by the French Audiovisual Authority CSA on product placement. Implements Directive 2007/65/EC of the European Parliament and of the Council of 11th December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions concerning the pursuit of broadcasting activities; article 3g of the Directive addresses product placement. The CSA decision is here:
https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021920619
Radio sponsorship
Consolidated version of Decree 87-239 of 6th April 1987, updated 1989, on rules for private radio stations on advertising and sponsorship (Décret 87-239 du 6 avril 1987, mis à jour en 1989, sur les règles dans les radios privées sur la publicité et le parrainage) Article 9 of this Decree allows sponsorship on private radio stations:
http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000882734
English translation of the key clauses is here:
http://g-regs.com/downloads/FRPrivateRadioSponsB.pdf
Advertising to children/ young people
LAW No. 2016-1771 of December 20, 2016 (FR) LOI No. 2016-1771 du 20 décembre 2016 relative à la suppression de la publicité commerciale dans les programmes jeunesse de la télévision publique introduced an amend to the Léotard Law; the amend prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12 and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV: The Léotard law, version from January 2018, article 53:
AVMS Directive amends implemented
The same Léotard law as linked above was amended by Ordinance 2020-1642 (FR) to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive. Chapter II articles 59 to 61 of the Léotard law carry the special provisions applicable to video-sharing platforms, inter alia bringing these platforms into the scope of rules for audiovisual commercial communications and requiring that users are informed of commercial communications within posts. Additionally and significantly, article 14 transposes the requirements of article 4a of the AVMS Directive (shown here) relating to HFSS food advertising and requiring that the CSA ‘develop recommendations for improving the self-regulation of the advertising sector.’
https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000512205/2021-03-11/
‘Addressable’ TV advertising
Decree 2020-983 of 5th August 2020 with amends to the television advertising regime (Décret n° 2020-983 du 5 août 2020 portant modification du régime de publicité télévisée). Entered into force 7th August. This decree addresses the audiovisual advertising framework and its relationship with online competition by allowing ‘conventional’ broadcast advertising, subject to conditions, to deliver targeted advertising messages according to geographical or behavioural profile. The decree also relaxes the prohibition of cinema advertising. Helpful blog on the act from Taylor Wesssing here
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042211231
Regulatory authority
The CSA is the Conseil Supérieur de l’Audiovisuel. Established under article 4 of Loi No. 86-1067 du 30 septembre 1986 relative à la liberté de communication (Loi Léotard), their 'three essential missions' are to inform, protect, and regulate. From their website: Many texts relating to audiovisual law are regulatory in nature and constitute implementing decrees in particular for the law of September 30,1986. Whole sections of radio, television and SMAD (on demand) services and, consequently, of CSA monitoring are governed by regulatory provisions. This is the case, for example, with most of the advertising and sponsorship requirements or those relating to the distribution and production of audiovisual and cinematographic works.' The CSA merges with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022 via Law no. 2021-1382 of 25 October 2021 relating to regulation and protection of access to cultural works in the digital age. CSA Advertising-related texts can be found at this link:
Model shots
Article L2133-2 of the PHC addresses retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. Consolidated version of the PHC as at March 2019:
Decree No. 2017-738 of May 4, 2017 relating to commercial photographs of models whose body appearance has been modified. Per above reference under the PHC, the Decree identifies the types of communication covered by this requirement and defines the terms and conditions for the presentation of the term ‘retouched photograph’ (photographie retouchée) and specifies responsibilities.
https://www.legifrance.gouv.fr/eli/decret/2017/5/4/AFSP1703011D/jo/texte
ARPP/ Industry codes
ARPP is the advertising Self-Regulatory Organisation (SRO) Autorité de Régulation Professionnelle de la Publicité. From their website: ‘The ARPP recommendations constitute the ethical framework for advertising in France. They are based on the ICC Advertising and Marketing Communications Code (ICC Code), and reinforced, according to their themes, by charters of commitments signed by representatives of the business community, ARPP and public authorities. Their development brings together, through the associated bodies of the ARPP, all the representatives of both society and business.’ The ARPP General Advertising Code (FR) is taken directly from the ICC Code, which underpins much of advertising self-regulation worldwide. The English version of the Code is here. All the ARPP Codes are shown in French in the ARPP Guidance document here:
https://www.arpp.org/code-arpp/
The Jury de Déontologie Publicitaire JDP is attached to the ARPP but acts as an independent authority, handling complaints concerning advertising: Opinions/ rulings of the JDP here:
The ARPP publish a number of specific codes or 'Recommendations' (see first para) on various topics. Some of the most significant are shown below:
Price
ARPP Recommendation on Price Advertising 2017 (Recommandation publicité de prix). Based on the principles of the ICC Advertising and Marketing Communications Code, this Recommendation sets out by channel the rules for communicating prices and their qualifications/ limitations:
https://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Publicit%C3%A9-de-prix-ARPP.pdf
An ARPP English translation is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/
Sustainability
ARPP Recommendations on Sustainable Development (ARPP Recommandation Développement Durable, en vigueur depuis 1er août 2020) :
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/
The ARPP English version, only slightly easier to understand, is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/
Video here (EN sub-titles):
Portrayal of people
The ARPP introduced in July 2016 an update of ‘Portrayal and Respect of Human Beings’:
The Code or ‘Recommendation’, introduced in 2016 and based on the ICC Code, covers such aspects as Dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B, or click above. In the original French (Recommandation Image et Respect de la Personne):
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/
Children
2004 ARPP Children Recommendation (Recommandation Enfant Juin 2004). This Code applies to all marcoms disseminated in France, whatever their form, and involves marcoms that portray children and that are aimed at them. Rules are under Transparency, Social Responsibility, Decency, Violence, Safety, Integrity, The Young Consumer, Games and Videos, and Interactive Media. The original ARPP Code is here in French:
http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/
The ARPP English version is here:
http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/
Our translation is here:
http://www.g-regs.com/downloads/FRARPPEnfantFR-ENb.pdf
Identification
Identification of advertising and marketing communications. Identification of the advertiser. The Code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below this entry:
http://www.arpp.org/wp-content/uploads/2016/09/Identification_Code.pdf (EN)
In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):
Native
This guidance is also largely based on the iCC Code articles 7 and 8 and B1 and C1 (Sponsorship and Digital respectively). In French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
http://www.g-regs.com/downloads/ICCGuidanceonNativeEn.pdf
Online channels
The ICC content rules above apply online; the online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code. The link is to the ARPP translation of the code of December 2021; in French this is the Communication Publicitaire Numerique, version 5 in force January 1, 2022. The press release which sets out the changes is here in English. These rules apply to ‘All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and ‘All targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.’ The code includes a useful walk through the various techniques online such as in-game, sponsored links, native, OBA and brand content.
Influencers
ARPP recommendations for 'influencer marketing’ (in FR, EN sub-titles):
https://www.youtube.com/watch?v=8Jx4gr5bvH0
The ARPP Digital Advertising and Marketing Communications Code also carries rules on Influencer marketing
http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf
See also:
https://www.arpp.org/actualite/observatoire-marketing-influence-2019/ (FR)
Safety
Safety Code: Dangerous Behaviours and Situations:
http://www.arpp.org/wp-content/uploads/2017/01/Safety-Code-dangerous-behaviours-and-situations.pdf (EN)
In the original French (Recommandation Sécurité: Situations et Comportements Dangereux) :
The Code is particularly protective of children but helpful in describing situations that are permitted.
Qualifications/ notes
Notes and Overlays Code:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/
In the original French: (Recommandation Mentions et Renvois)
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/
The Code sets out in some detail and by channel the formatting/ readability required of notes relating to pricing in particular, and some other claims. Details in Content Section B.
Crypto
ARPP's Crypto-Assets code (EN) in force October 2023. FR version of four financial codes
ICC
ICC Advertising and Marketing Communications Code 2018
From the introduction to the code: ‘Significant changes include:
Chapter A: Sales Promotion
Chapter B : Sponsorship
Chapter C : Direct Marketing and Digital Marketing Communications
Chapter D : Environmental Claims in Marketing Communications
ICC guidance and frameworks
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
The ICC’s Guidance on Native Advertising Is in French here:
http://www.g-regs.com/downloads/FRICCGuidetoNativeFR.pdf
And in English here:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/
IAB France/ Europe
IAB France. From their website: 'An association created in 1998 whose mission is threefold: to build the online communications market, to promote its use, and to optimise its efficiency.'
Members are here:
https://www.iabfrance.com/article/les-membres
WFA
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
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is 'the European voice for advertising self-regulation.' The following link provides members:
http://www.easa-alliance.org/members
Best Practice Recommendations
Digital Marketing Communications (2023)
Online Behavioural Advertising (2021)
Influencer Marketing (2023)
FEDMA
Federation of European Direct and Interactive Marketing (FEDMA). FEDMA is the principal source of knowledge of the DM channel across Europe:
http://www.fedma.org/index.php?id=30
ESA
The European Sponsorship Association can be found at:
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.'
Translation of the code into several languages can be found here
Additional guides and frameworks (all EN)
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 on Native Advertising
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.
'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.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 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:
EASA Best Practice Recommendation on OBA (Revised Oct. 2021): 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:
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing 2023. 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 networks 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.
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.
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
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:
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.
More recent documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Privacy/ cookies
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
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
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
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.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
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: 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
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
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
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
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925