Sweden

On December 14, 2020, the formal investigation of the Gambling market in Sweden Increased protection and strengthened regulation in the re-regulated gambling market was completed and submitted to the Government under SOU 2020: 77 Explanation SOU Statens Offentliga Utredningar = Swedish Government Official Reports or The government’s official investigations The full version is in Swedish here and contains a summary in English, marketing elements of which have been extracted here (EN). These recommend/ report inter alia that:

in view of the way the existing moderation requirement was described in the government bill and has been interpreted by the courts and the Swedish Consumer Agency, the Inquiry considers it too early at present to conclude that that requirement is not sufficient to protect vulnerable groups when it comes to the content of gambling advertising.
With a view to limiting the amount of advertising for the games involving the highest risk, the Inquiry proposes that advertising for such games via television broadcasts, on-demand television, searchable teletext, audio radio broadcasts, on-demand radio (podcasts) and video sharing platforms should be prohibited between 6 a.m. and 9 p.m.

The government's own perspective is expressed in About the Government’s work for a re-regulated gambling market (EN), published 27 January 2021; this includes the statement: 'Despite the new Act and the requirement concerning moderation, consumers are still exposed to aggressive gambling advertising. The Gambling Market Inquiry was therefore tasked with proposing rules to further limit gambling advertising.'
A consultation announced in June by Sweden’s Ministry of Finance proposed that gambling advertising be treated similarly to alcohol advertising in terms of restrictions. The amendments to the gambling act call for “special moderation” in ads, with the intention of classing gambling similarly to alcohol due to addiction risks. Currently, law simply calls for “moderation”. The amendments have been put out for consultation; responses were due by 14 October. Courtesy of Igamingbusiness.com
It was reported in September 2021 that the Swedish Gambling Inspectorate Spelinspektionen has updated its response to the Swedish government’s consultation to state inter alia that it is ‘generally positive’ about the Finance Ministry’s proposal to introduce a special moderation clause with regard to marketing games to consumers. Courtesy of SBC
The government proposes measures for a safer gambling market (SW). From the Gambling authority, Spelinspektionen, May 2022. 'A strengthened gambling regulation 2021/22:242 - The bill proposes several different measures, including the exclusion of unlicensed gambling from the by introducing licensing requirements for gambling software, a ban on promoting and advertising illegal gambling. Measures are also proposed to reduce gambling's harmful effects, including new requirements for the marketing of games.' The proposal is at regeringen.se
Consultation: Proposal for new gambling responsibility regulations (SW). The Gambling authority 'has reviewed regulations and its general advice (LIFS 2018:2) on responsible gambling.' The plan is 'to announce new regulations on responsible gambling and repeal the existing. versions. However, large parts of the current regulations will remain unchanged.'

Medium term

Sweden is one of a number of markets recently to have taken cautious steps into the re-regulation of gambling in light of the problems of the previous state-run monopoly regime. The difficulties of preventing the use of international services, the subsequent development of grey/ illegal markets, and the context of the European single market combined to force the authorities’ hand. Accordingly, the Gambling Act 2018:1138 (EN 2023 amends / SW) came into force January 1, 2019. ‘Moderation’ is the regulator watchword in this market, per Chapter 15, 1 § in the Gambling Act. As with a number of countries, there is considerable sensitivity towards gambling advertising: a recent case (EN) brought to the courts by the Swedish Consumer Agency ruled ‘pop-ups’ and claims within them to be intrusive and immoderate (PMT 17459-18 - SW). There have been press reports that the government is considering an outright gambling advertising ban; in December 2019, state-owned Svenska Spel withdrew all online casino advertising in Sweden (the company continues to advertise the company’s other products, such as lotteries and sports betting) and a state inquiry on the need for further legislation of gambling marketing was instituted February 2020. See above under short term.

GAMBLING MARKETING/ ADVERTISING RULES

There are five principal sources of rules and supervision:

The Gambling Act itself (linked above), under Chapter 15 ‘Marketing’;
The Self-Regulatory Organisation Ro base its decisions on the ICC Advertising & Marketing Communications Code, which is linked here and here (SW), the latter of which is obviously the applicable code in Sweden. Ro adjudications (the adjudications are in Swedish but there’s a translation facility on the site that will give you the gist) are based on the ICC rules; most decisions are to do with misleadingness or social responsibility;
SPER, the Swedish Gambling Association, publish comprehensive marketing guidelines (EN, SW), effective April 2019; the guidelines are authored by both SPER and the Swedish trade association for online gambling (BOS) and are set out in full under content section B;
The Swedish Consumer Agency Konsumentverket (KO) shares supervisory responsibility together with the Gambling Authority Spelinspektionen for the rules regarding marketing of games. Key page here (SW). KO seemingly interprets the rules conservatively: Gaming Intelligence statement here (EN) re an investigation by KO into Gambling advertising (SW) which found that operators are ‘failing to comply with market regulations.’
The Marketing Act 2008:486 (EN), which provides rules from inter alia the Unfair Commercial Practices Directive 2005/29/EC, and which is extensively deployed in the Swedish regulatory system. Relevant extracts in content section B, and also set out under the General tab below as the rules apply to all sectors, gambling included.

KEY EXTRACTS

The Gambling Act Chapter 14, § 9; Bonus offers: A licence holder may not offer or provide bonus offers beyond the first occasion on which the player participates in a game
Chapter 15 of the Gambling Act is extracted in full here (EN) highlights are:

§ 1 The marketing of gambling to consumers shall employ a degree of moderation. Such marketing may not be aimed specifically at people under 18 years of age;
§ 3 Commercial communications concerning gambling shall include clear information regarding the minimum age to gamble. At venues where gambling takes place, and in the context of commercial communications concerning gambling – with the exception of such communications via radio – license holders shall ensure that contact information is also stated for an organisation that provides information on, and support for, problem gambling;
§ 5 When a licence holder concludes sponsorship agreements, it shall ensure that its logos and the names of gambling products or gambling services are not to be found on products that are intended to be used or worn by persons under 18.

INFORMATION ON GAMING-RELATED PROBLEMS
From Chapter 6, SPER/BOS Guidelines

‘Reference to where a consumer or relative can seek help for gaming-related problems shall be easily accessible wherever gaming is offered. This shall be achieved by ensuring:

That gaming companies provide information about the national helpline for gamblers and relatives (Stödlinjen – see also note below re spelinstitutet) on relevant gaming products and marketing units, including gaming companies’ websites;
That gaming companies provide – or link to – fact-based information on problem gambling and its health impacts and that this takes place in a manner appropriate for the game's distribution channel; and
That information on responsible gaming is clearly stated in marketing, having sufficient space, being readable and clearly perceivable.’

Note re http://www.spelinstitutet.se/

The above provides a connection with a self-help website, the Gaming Institute. The Stödlinjen equivalent is mentioned under 6.1 in the above SPER/BOS Guidelines, but at the time of writing (March 2020) they report problems with their website. The Consumer Agency state that there should be contact information with the support organisation name, such as a phone number, web or email address. The Consumer Agency has written in their investigation of gambling advertising (SW) that some advertising included contact information to an overseas support organisation, which does not meet the requirement in the law’. The support organisation should be one that is independent from the gambling business and can offer cost-free help based on Swedish conditions.

MINIMUM AGE STATEMENTS

Chapter 15, § 3 of The Gambling Act requires ‘Commercial communications concerning gambling shall include clear information regarding the minimum age to gamble.’ The established format appears to be:

Aldersgrans 18+ år (age limit 18+)

EU RECOMMENDATION

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. The Recommendation was referenced by the court in the case mentioned above (PMT 17459-18). Provisions are set out in our following content section B.

CHANNEL (I.E. PLACEMENT) RULES

The single overwhelming and pan-channel requirement is, obviously, the avoidance of under 18s. (GA Ch. 15 § 1 gambling marketing may not be aimed specifically at people under 18 years of age);
Chapter 15, 6 §) of the Gambling Act states ”Gambling that is provided by a party that lacks the requisite license under this Act may not be advertised via television broadcasts, on-demand television, searchable teletext or audio radio broadcasts that are subject to the Radio and Television Act (2010:696);
Otherwise, there are no channel-specific rules for the gambling sector, except in direct marketing, which ‘may not be aimed directly at players who have opted for self-exclusion from gambling. If a player has closed their player account with a licence holder, marketing may only be aimed directly to the player if the player actively approved this in conjunction with the account closure.’ (§ 2, Ch.15, Gambling Act);
General channel rules, i.e. those for all sectors, will apply. These are shown under section C of the General tab below and include, for example, statutory consent and information requirements applicable in most electronic non-broadcast channels.

GENERAL RULES AND REGULATORY PROCESS IN SWEDEN

It is important that the rules for all product sectors, shown below under the General tab, are also understood; adjudications against gambling advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules in Sweden in the self-regulatory context is the ICC Code. In Sweden, there is an additional procedure whereby the Consumer Agency can and (frequently) do bring cases to the Patent and Market Court when they believe there’s an infringement. A case is referenced above under the second paragraph. While the Gambling Act ‘s ‘moderation’ clause provided the court’s direction in that case, the Marketing Act 2008:486 (EN) ‘catch-all’ Section 5 ‘Marketing shall be consistent with good marketing practice’ may also be deployed in this sector.

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SECTION A OVERVIEW

Updates since July 2022 (slimmed)

BMW iX environmental claim ruled misleading

Ad re above is here (SW) July 2022 ruling

Environmental claims: the use of ‘Ecolabels’
Above from lawyers Vinge/ Lex October 2022

Lufthansa case (SW) November 2022

Proposed fossil fuel ad ban March 2023 (SW)

Motion linked above; Ro commentary here (SW)

Controlled advertising in Sweden. Wistrand/ Lex

Use of superlatives. Vinge/ Lex July 10, 2023

Influencer fined 1mil k by P&M court (SW)

Above from Dagens Opinion October 27, 2023

Above for 'home baking', vego and soft cheese

Marketing And Pricing Information In The Spotlight

Lindahl Dec 29, 2023 re influencers & sales

Greenwashing review. Berggren Oy Jan 24, 2024

Latest RO decisions; thin models (SW) Feb 2, 2024

Ro newsletter Mar 27, 2024. Misleading prices (SW)

Latest Ro decisions; more thin models. April 26, 2024

Ro newsletter June 17, 2024. 'Stupid' Norwegians (SW)

New ICC Code September 19, 2024 (EN)

RO on the C-word Nov 13, 2024. Ad here

2024 ICC Code Swedish translation Nov 13, 2024

SNAPSHOT

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

NEWS/ ISSUES

New ICC Code September 19, 2024 (EN)

Above translated Nov 2024, applicable January 2025

RO seminar March 7 re ad identification in influencer marketing (SW)

New rulings on discrimination in advertising (SW) Nov 1, 2023

Includes some new criteria for gender-discriminatory advertising

Advertising & Marketing 2023 Sweden October 17 Chambers

THE SRO’S GENERAL RULES

The Swedish Self-Regulatory Organisation (SRO) is Reklamombudsmannen (RO), more formally the Advertising Ombudsman. RO assess complaints according to rules from the International Chamber of Commerce (ICC) Advertising and Marketing Communications Code, which is linked here (EN 2018, updated September 2024 here) and translated here (SW 2024). Rules are available from the linked document above; the most important are spelt out in our content section B below.

THE MARKETING ACT

The other significant influence on advertising rules in Sweden is statutory: the Marketing Act 2008:486 (EN), which in Sweden provides the cornerstone of communications legislation, provides rules from the Unfair Commercial Practices Directive 2005/29/EC. The Act also transposes other European marketing/ privacy legislation such as Directive 2000/31/EC on information society services (e-Commerce), and Directive 2002/58/EC on the protection of privacy in electronic communications, meaning that a number of European marketing eggs are in a single Swedish basket. There's a helpful Q&A on misleading advertising practices in Sweden from Wistrand via Lexology here (EN; March 2023) and Prohibited and controlled advertising in Sweden from Wistrand here (EN; also March, 2023). Relevant rules are shown in our content section B and channel section C below, as applicable. The transposition of Directive 2019/2161 (the 'Omnibus Directive') introduces new rules into the Marketing Act and the Price Information Act, amongst others less relevant to this database. The government's bill here (SW) amends the Price Information act under Article 2.2 for promotional pricing rules and the Marketing Act under 2.4 for criteria in search rankings and the legitimacy of consumer reviews (sections 12b and 12c respectively). Transposition is faithful to the Directive.

APPLYING THE RULES

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

NATIVE AND INFLUENCER

The ICC’s Guidance on Native Advertising (EN) is based on the ICC Code (EN 2018, updated September 2024 here) itself, drawing on articles 7 and 8 (Identification and Identity), B1 and C1 (Sponsorship and Digital communications respectively). Clauses from the guidance are set out in full in channel section C. The Marketing Act’s (EN) Section 9 similarly requires clarity that advertising is advertising: ‘All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing’. In May 2016, the Nordic Consumer Ombudsmen jointly published their ‘Position on Hidden Marketing’ (SW / EN), and the Swedish representative also publishes Guidance on Marketing in Social Media (SW / EN) video here (SW), which covers influencers primarily, requiring that influencer posts are very clear that they are paid for - the likes of 'in collaboration with' don't cut it. See below and our channel section C for more.

Three key cases

The first case in Swedish courts about ad identification in social media - the ‘Kissie case’ re a well-known Swedish blogger and influencer Alexandra Nilsson - is linked here in Swedish; English commentary here from Lexology. According to RO, the court set a high standard, in line with RO's decisions. Among the rulings are that it must be clear when a post has been paid for and the identification itself must also be clear - i.e. its position within the post/ blog must be prominent. See pps 42 and 43 of the linked case, unofficially translated here. This case is likely to result in new rules being issued, probably by the Consumer Agency. A second significant case regarding Influencer posts on behalf of an eyewear company, and whether all posts versus contracted posts qualify as marketing communications, is here (EN) courtesy of AWA/ Lex. The third case, reported by Lindahl/ Mondaq December 29, 2023 here, is re Clean Eating AB and the influencer Katrin Zytomierska, recently judged to have contravened the Marketing Act.

ENVIRONMENTAL CLAIMS

Vinge on EU green claims and Swedish law June 18, 2024 (EN)

Greenwashing review. Berggren Oy Jan 24, 2024

Proposed fossil fuel ad ban March 2023 (SW). Parliamentary motion from Social Democrats referred Dec 2022

Swedish Court forbids “net-zero” claims based on climate compensation. Bird&Bird LLP/ Lex Feb 21, 2023

Lufthansa case (SW) November 2022 re carbon offsetting

This is, as you might imagine, a high profile issue in Sweden. Guidance on environmental claims in advertising is from the Swedish Consumer Agency (link is to the relevant section in Google English; translated properly in our content section B under point 2.3); the guidance draws on the principles within Chapter D - Environmental claims in marcoms - of the ICC Code (EN 2018, updated September 2024 here). Also providing guidance is The ICC framework for responsible environmental marcoms (November 2021, in Swedish here and commentary from Ro newsletter here), which includes an environmental claims checklist under Appendix I. The Nordic Consumer Ombudsmen 'Use of Ethical and Environmental-related Claims in marketing' is here in Swedish and translated here. The definitive guidance at the EU level is the December 2021 Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive; section 4.1.1 for environmental claims. The Ro newsletter of October 2021 included this brief review of 'greenwashing' (SW) together with some recent cases and in December 2021 an Innocent juice case (SW) was published: complaint upheld because of insufficient evidence of the environmental benefits shown in the commercial, an English version of which is here (the commercial is now removed; this pressure group video includes what appears to be a large part of it). There is a detailed segment on environmental claims in our following content section B. The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here. DLA Piper's August 2024 Environmental Advertising Claims Guide includes Sweden in its comprehensive coverage.

PRICING

This piece Dec 29, 2023 from Lindahl/ Mondaq reports that the Swedish Consumer Agency is "carrying out a comprehensive examination of companies' price reduction campaigns during the autumn in order to investigate retailers' compliance with the new rule on price information." This relates to the new rules shown below regarding amends to the PPD

ECJ '30 day' judgement Aldi promotional pricing Sept 24, 2024

The case is here; Pinsent Oct 4 commentary here

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

CHILDREN

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

STEREOTYPING

Gender portrayal in Sweden is highly sensitive and subject to special criteria. The ICC Code (2018) article 2 (part): ‘Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation’ is supplemented by RO with further criteria under three topics (original Swedish here; see above under News/ Issues):

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

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

See also the Sambla loans case re 'older craftsmen' here; ad taken down

CHANNEL RULES

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

As above under the Children sub-head, the Radio and TV Act 2010:696 (EN) prohibits appeal to children ('Advertising ……may not aim to capture the attention of children under the age of twelve’), and sets out other rules on advertising, sponsorship and product placement in broadcasting, in line with the AVMS Directive 2010/13/EU. Directive 2018/1808 extends the scope of the AVMSD to e.g. video-sharing platforms; the Swedish transposition 2020:875 of this is here. Consent and information rules in the use of cookies and electronic communications is regulated by Sections 19-21 of the Marketing Act (EN) and the Electronic Communications Act ECA - law No. 2003:389 (EN), implementing the e-Privacy Directive 2002/58/EC. See How to be Cookie-compliant in Sweden from Bird&Bird November 17, 2023. The Act on Electronic Commerce 2002:562 (SW) implemented the e-Commerce Directive 2000/31/EC, which requires that ‘Information Society services’ provide certain information - details in our channel section C, or see the linked document. The Swedish Consumer Agency publish a number of advertising guidelines, the most significant of which in this context is their Guidance on Marketing In Social Media (SW / EN), also linked earlier. Details in channel section C with other rules on, for example, native advertising and marketers' own websites.

GDPR

Privacy issues should be reviewed with specialist advisors

Q&A: protecting privacy and confidentiality in Sweden (EN)
Advokatfirman Delphi. June 10, 2024 (exc data protection legislation)

Privacy Sandbox news and updates

1.1 Million Euro fine for Profiling. Härting Rechtsanwälte/ Lex July 4, 2023

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

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SECTION A OVERVIEW

Updates since Nov 2022 (slimmed)

DLA Piper Global Influencer guide

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

Self-regulation globally. FKK&S April 27, 2023

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

CJEU rules on IAB's TCF. Hunton March 8, 2024

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

EASA Policy Newsletter May 21 2024 Topics Influencers, airlines greenwashing, ADR, EU elections

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific

GALA September 24, 2024 (Aus, India, Japan, NZ)

Quarterly report from Global Advocate Nov 22, 2024 Markets UK, France, Neths, China, EU

EASA Policy Newsletter November 22, 2024 Topics Health/alcohol/ WHO, Digital agenda, AVMSD & minors, Online harm, AI

* Recommended read

New ICC Code September 19, 2024

Press release here and key changes here

French trans November 7, 2024, SW here

ISSUES/ NEWS/ COMMENTARY

EU to re-open, merge CSRD, CS3D & Taxonomy

REP November 20, 2024

TEMU challenged by CPC network (FR)

EC Digital Fitness Check published Oct 3, 2024

Lewis Silkin on above here (scroll down)

Recycling claims mislead consumers:

legal analysis for EU & UK markets Client Earth Oct 2, 2024

The AI Convention CSC Sept 12, 2024 here

EASA newsletter update AI legislation Aug 2024

AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)

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

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS

Greenwashing in the EU, France and the UK

Addleshaw Goddard/ Lex November 11, 2024

Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)

Stichting Milieudefensie v. Shell. Freshfields November 6, 2024

The Hague becomes world’s first city to pass law banning fossil fuel-related ads

The UK Guardian September 13, 2024

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.

More lawyer commentary

Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio

Standards for Claims of “Carbon Neutral” and “Climate Friendly”

Formosan Brothers October 4, 2024

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

Corporate & financial reporting and due diligence

CSDDD FAQs Proskauer October 4, 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

INFLUENCER MARKETING

Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 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.

The USA

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.

India

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.

1. SELF-REGULATION: GENERAL RULES
1.1 The ICC Code

The 2024 ICC Code is here:

https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf

This International sector provides largely self-regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2024, underpins much of self-regulation worldwide.

Most countries feature national advertising self-regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide several translations of their code (2024 to follow); ICAS, the International Council for Advertising Self-Regulation, list most if not all of the providers of self-regulation around the world.

1.2 Guidance and EASA

Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of advice and good practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between paid and unpaid communications. These documents are placed and linked in relevant channels within the text in each country or can be found via the earlir llnk.

1.3 Structure and scope of the ICC Code

The latest ICC Code was published September 18, 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 & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':

ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

Key rules are set out in the following content section B and channel section C, as applicable

Children

Article 18 of the General Provisions of the ICC Code (2018) covers children and teens at some length. The new (Sept 2024) code adds a whole new chapter E on Children and Teens as well as articles 20 and 22 under General Provisions and articles C5 and 17.8 under Chapter C, Data-driven Marketing, Direct Marketing, and Digital Marketing Communications
Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020)
On the home page of this website, you'll find a complete children's sector with the rules spelt out country by country

Lawyer 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

1.4 Sector and channel rules

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

2. THE LAW
European Regulations and Directives

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

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

European Directives in marketing
Issue or channel	Key European legislation and clauses
Cookies	The EU ‘Cookies Directive’ 2009/136/EC http://data.europa.eu/eli/dir/2009/136/oj articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC http://data.europa.eu/eli/dir/2002/58/oj
Electronic coms. Consent and Information	Directive 2002/58/EC on privacy and electronic communications Articles 5 (3) and 13
E-commerce; related electronic communications	Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://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 http://data.europa.eu/eli/dir/2005/29/2022-05-28 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) http://data.europa.eu/eli/dir/2010/13/oj Directive 2018/1808 extended some rules into especially video-sharing platforms https://eur-lex.europa.eu/eli/dir/2018/1808/oj
Data Processing	Regulation 2016/679/EU on the processing of personal data (GDPR) https://eur-lex.europa.eu/eli/reg/2016/679/oj

THE DMA AND DSA IN EUROPE

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.

Shaping The Future Of Tech: Latest Updates On The Digital Markets Act

Quinn Emanuel/ Lex October 10, 2024

DATA/ PRIVACY

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 key legal commentaries on this topic

Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*

Data Protection update - August 2024. Stephenson Harwood/ Lex

Above covers Australia, China, EU, UK, USA

Consent or pay: one rule for some (large online platforms),

another rule for everyone else? Weil Gotshal & Manges 30/8/24

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8

EDAA launches new solution to DSA ad transparency requirements

THE OMNIBUS DIRECTIVE

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.

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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.

COMPENDIA, FORECASTS, VADE MECUMS

As this is reference work rather than current, we have made it available in back-up here

Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024

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SECTION B CONTENT RULES

1. The Gambling Act 2018:1138

2. The SPER/BOS Guidelines

3. European Recommendation

4. The ICC Code

5. The Marketing Act 2008:486

1. The Gambling Act 2018:1138 (EN 2023)

Chapter 15. Marketing

Moderate marketing

§ 1 The marketing of gambling to consumers shall employ a degree of moderation. Such marketing may not be aimed specifically at people under 18 years of age

Direct marketing

§ 2 Marketing may not be aimed directly at players who have opted for self-exclusion from gambling. If a player has closed their player account with a licence holder, marketing may only be aimed directly to the player if the player actively approved this in conjunction with the account closure

Information obligation

§ 3 Commercial communications concerning gambling shall include clear information regarding the minimum age to gamble. At venues where gambling takes place, and in the context of commercial communications concerning gambling – with the exception of such communications via radio – licence holders shall ensure that contact information is also stated for an organisation that provides information on, and support for, problem gambling

Unfair marketing

§ 4 Marketing that violates §§ 1 or 2 shall be regarded, in the application of §§ 5, 23 and 26 of the Marketing Act (2008:486), as unfair to consumers. If the information specified in § 3 is not provided, the Marketing Act shall apply, with the exception of the provisions of §§ 29-36 on market disruption charges. Such information shall be regarded as material in accordance with the third paragraph of § 10 of the Marketing Act

Sponsorship

§ 5 When a licence holder concludes sponsorship agreements, it shall ensure that its logos and the names of gambling products or gambling services are not to be found on products that are intended to be used or worn by persons under 18 years of age

Advertising on radio and television

§ 6 Gambling that is provided by a party that lacks the requisite licence under this Act may not be advertised via television broadcasts, on-demand television, searchable teletext or audio radio broadcasts that are subject to the Radio and Television Act (2010:696)

2. SPER/BOS Marketing Guidelines of the Swedish Gaming Industry (EN)

1. Marketing shall be reliable and not misleading

Marketing shall be designed in such a way as not to compromise consumer confidence in gaming as a form of entertainment. Marketing claims shall be factually correct