Select Sector

A. Overview

Sector

General

SECTION A OVERVIEW

 

This database uploaded late December 2022

 

ISSUES/ NEWS

 

ACCC social media sweep targets influencers. 27 January 2023

Urgent Privacy Reforms Introduced In The Parliament
IAB Australia October 27, 2022 (see channel rules header below)

Environmental Claims Code review. November 2022

Discussion paper from the Australian Association of National Advertisers (AANA)

 

IN SUM

 

The advertising regulatory framework in Australia will have a familiar look to it for those whose experience is largely European, in as much as there's a strong self-regulatory authority Ad Standards in place, albeit with a slightly different structure to most in Europe as the founding body is the advertiser's trade association and consumer and competitor complaints are handled separately. From the Adstandards website: 'Ad Standards functions as secretariat for the Ad Standards Community Panel and the Ad Standards Industry Jury, the two independent bodies established to determine consumer and competitor complaints against the advertising self-regulatory codes.' Scope: Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages  in press releases and other media statements, annual reports, statements on matters of public policySee the self-regulation header immediately below for more. The legislative backdrop is also reasonably familiar from consumer protection provisions under a federal act - the Competition and Consumer Act 2010 - expressed under Schedule 2 as the Australian Consumer Law or ACL and enforced by the Australian Competition and Consumer Commission. The regulatory 'wrinkles', however, are not insignificant and it's as well to look out e.g. for a variety of sources for some sector advertising codes and state laws that may differ somewhat in their approaches to product categories such as alcohol.

 

SELF-REGULATION

 

AANA (Australian Association of National Advertisers) Code of Ethics February 2021

The code of Ethics is to be read with the Practice Note,  also February 2021, provided as a guide to interpretation

 

'The Code of Ethics is the overarching code setting out standards that apply to Advertising or Marketing Communication across any medium. Depending on the nature of the product or service, these other AANA codes may also apply:'
 

Food & Beverages Advertising Code November 2021; Practice Note here

See also Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018
Environmental Claims Code May 2018; 
Practice Note here
Wagering Advertising Code July 2016; Practice Note here

See also Keeping wagering ads in check September 2022

Children’s Advertising Code March 2021

Children's Advertising Code Practice Note March 2021

See also AANA has launched a review of the Children’s Advertising Code June 2022

 

FCAI Motor Vehicle Code and Practice Note Undated; reviewed every 5 years

From the Federal Chamber of Automotive Industries

 

Other related codes

 

The ABAC Responsible Alcohol Marketing Code 

Signatories here 
Therapeutic Goods Advertising Code
Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement
ASTRA Codes of Practice (including Television and Radio)
Commercial Radio Code of Practice
Commercial TV Code of Practice

 

Influencer marketing 

 

ACCC social media sweep targets influencers. 27 January 2023

 

This is a 'busy' issue in Australia as with most markets. The key self-regulatory rule, established relatively recently, is from the AANA Code of Ethics 2.7 'Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.' The related Best Practice Guideline and this short piece July 2022 is essential reading, together with the Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021. The Australian Consumer law is also relevant under article 29 false or misleading representations. The ACCC - the statutory authority in this context - state: 'The same rules that apply to all advertising and promotions apply to social media, including: a business’s posts on its own social media accounts, advertising on other social media platforms, social media posts that a business pays for, social media posts that a business offers incentives to influencers to make.' See the codes of practice and guidelines from the AANA and AIMCO especially for recommendations on when a post constitutes an ad and how to declare/ identify it. Specifics in our channel section C under online commercial communications or see the linked files.

 

LEGISLATION

 

Competition and Consumer Act 2010 (CCA); as amended and in force November 10, 2022

Schedule 2 - the Australian Consumer Law (ACL) covers inter alia misleading or deceptive conduct, unconscionable conduct, unfair practices, country of origin representations. Relevant clauses are in our following content section B or see the linked file; explanatory memorandum here

NSW Fair Trading Act 1987 No 68; other State Fair Trading laws can be found here 

Australia New Zealand Food Standards Code
The standards in the Australia New Zealand Food Standards Code are legislative instruments under the Legislation Act 2003

Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021

 

Authority

 

Australian Competition and Consumer Commission 

The ACCC is an independent statutory authority that enforces the Competition and Consumer Act 2010 and other legislation. State and territory consumer protection agencies have powers to enforce the ACL (Australian Consumer Law, schedule 2 of the Act above) in their applicable state or territory. The ACCC is a 'very active' authority (from legal commentary). Their Advertising and Promotions page is here

 

LEGAL/ INDUSTRY COMMENTARY

 

Quick guide to advertising content regulatory framework

IAB Australia April 2022

Advertising & Marketing in Australia

Baker McKenzie/ Lex May 2019

 

CHANNEL (PLACEMENT) RULES

 

Data Processing/ privacy

Privacy issues should be reviewed with specialist advisors 

 

  • The Privacy Act 1988 (compilation including act no. 83) is the principal piece of Australian legislation protecting the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information in the federal public sector and in the private sector. The Act was amended in December 2022 by the Online Privacy Bill, more formally The Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, which significantly increases penalties under the Privacy Act and also increases the powers of the Australian Information Commissioner (OAIC);
  • The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collection, use and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);
  • Also relevant in this context is The Do Not Call Register Act 2006 (compilation to 2021) and the Spam Act 2003 (compilation to 2016). All states also provide privacy laws at the state and territory level; this database is not intended to be an exhaustive exploration of the state and federal provisions in privacy law and we therefore don't set out clauses here or in our following channel section C, but simply point to the principal rules and some key legal commentary:

 

Australian Data Protection Laws and Regulations 2022 from ICLG 

Comparing privacy laws: GDPR v. Australian Privacy Act from Onetrust data guidance and Mills Oakley

 

Broadcast

 

  • The Commercial Television Industry Code of Practice (2018). Section 6 covers scheduling restrictions for alcoholic drinks, intimate products and services, films and computer games and betting and gambling. Television advertisers are expected to ensure that advertisements (or other marketing communications) comply with the AANA Codes and the ABAC Responsible Alcohol Marketing Code. Section 4 covers disclosure of commercial arrangements, e.g. product placement;
  • Broadcasting Services Act 1992 (compilation to 18 February 2022) does not appear to have a major impact on in terms of advertising restrictions, though there are some provisions for online content providers and promotional gambling material under schedule 8;
  • The Children’s Television Standards 2009 ('made under subsection 122 (1) of the Broadcasting Services Act 1992'; compilation December 2014) refers to ad scheduling and content restrictions under CTS 26 through 36.

 

SPECIFIC CLAIM AREAS
Environmental

AANA Environmental Claims Code May 2018. Provisions are set out in our following content section B or see the linked file; 

Practice Note here; the Code of Ethics also includes provisions under 1.4. 

See also from AANA Going green? Ask yourself these questions before making any environmental claims November 2021

Businesses told to be prepared to back up their environmental claims from the ACCC September 2022

Green marketing and the Australian Consumer Law is also from the ACCC, published 2011 

And from Hall & Wilcox/ Lex December 2022 Regulators step up enforcement action over greenwashing claims

 

Pricing

 

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

 

  • The unfair practices rules from the Australian Consumer Law, part 4, Div. 1 article 151 include the offense (i) 'makes a false or misleading representation with respect to the price of goods or services'; Chapter 3, Div 4 carries rules on pricing. The ACCC under their advertising and promotions page cover e.g. cashback offers
  • In self-regulation, inaccurate or incomplete pricing would likely fall under provisions under section 1.2. (competitor complaints) of the AANA Code of Ethics 'Advertising shall not be misleading or deceptive or be likely to mislead or deceive.'

 

 

 

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International

SECTION A OVERVIEW

 

Updates since Jan 2022
 

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. Mar, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

DLA Piper Global Influencer guide 

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

New global network for online harm November 2022

Coke's aspirational claims are not actionable

Frankfurt Kurnit Klein & Selz PC November 20, 2022

ICAS publishes Factbook and Global SRO Database

Tesla fined $ millions for false advertising. Jan 2023

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023

 

 

RECENT ISSUES

 

General

 

Top 10 Advertising and Marketing Issues for 2023

Global, USA. Davis & Gilbert/ Lex January 24, 2023

Marketing & advertising tips, traps and trends for 2023

Canada and EU. Smart & Biggar/ Lex Jan 2023. 

USA: What Advertising Law Issues Should You Keep an Eye on in 2023?
Frankfurt Kurnit Klein & Selz PC/ Lex. December 29, 2022

December 2022: ICAS publishes 2021 Factbook and Global SRO Database 

Chambers Global Practice Guide Advertising & Marketing 2022

Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland

GALA Releases Videos from "Global Advertising in an Age of Crisis and Change" Conference  28 Oct, 2022

The 7 legislative developments that will disrupt the global advertising ecosystemThe Drum U.K. October 2022

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

 

Environmental

 

Upcoming EU Rules on Green Claims. Covingtgon and Burling LLP/ Lex January 23, 2023

Extract from EASA's January 2023 policy newsletter related to the EC's approach to rules on substantiating green claims 

2022 Wrap-Up on ESG Reporting Beveridge & Diamond PC/ Lex December 2022. Covers a number of markets, especially the EU and the U.S. 

EU finalises landmark sustainability reporting directive. Herbert Smith Freehills LLP. December 2022

EASA's December 2022 review of EU progress towards green claims regulation 

Coke's aspirational claims are not actionable. Frankfurt Kurnit Klein & Selz PC November 20, 2022 (U.S.)

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

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

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

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

April 2022. WFA issues Global Guidance on Environmental Claims

 

Digital/ data privacy

 

Google Analytics, Cookies and GDPR. Outside GC LLC/ Lex January 2023. U.S. EU & France. RR* 

2023 Top Privacy Issues: New Laws & Expanded Enforcement. GALA/ Lex Jan 2023. U.S. & EU

Meta’s Ad Practices Ruled Illegal Under E.U. Law. NYT Jan 2023 RR* 

Dark Patterns: The ‘Sinisterville’ of Digital Advertising and Marketing

Above from SS Rana Dec 2022 describes DPs and covers the key issues in India, the EU and the U.S. 

Countdown to 2023: Privacy Compliance Checklist for The End of The Year. Kilpatrick Townsend & Stockton LLP. Dec 2022

Above covers new state privacy rules in the US, GPC signals and EU/US data transfers

Data privacy in 2023: new technologies, more data and more regulation. Handy forward-looking round-up USA, EU, UK. Taylor Wessing/ Lex Dec 20222 

 New Digital Regulators on the 2023 Horizon from RPC/ Lex shows some distinctions between the EU and UK regulatory approaches. December 2022

Data protection update Stephenson Harwood LLP/ Lex. EU, France, Global, Ireland, Netherlands, South Korea, UK, USA. December 2022

The Digital Markets & Digital Services double Act take the stage. GALA/ Lex. October 28, 2022. Simple and broad explanation with a nod to the U.K.

More in-depth view of the DSA from the same firm here and this November 2022 piece from Osborne Clarke/ Lex includes a summary of the advertising impact of the DSA

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

 

Children

 

From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
 The new strategy for a better Internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here

 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

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

 

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

 

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

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

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

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

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

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

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

 

* Recommended read

 

THE OMNIBUS DIRECTIVE

 

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

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

 

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

 

 

 

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Read more

B. Content Rules

Sector

General

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate, some headers are 'anchored' and linked to the respective text

 

 

1. SELF-REGULATION

 

1.1. AANA Code of Ethics and Practice Note 

1.2. Food and Beverages Code and Practice Note 

1.3. Alcohol: ABAC Responsible Marketing Code 

1.4. AANA Environmental Claims Code 

1.5. Advertising to children

 

2. LEGISLATION

 

2.1. ACL False or misleading representations 

2.2. ACL Pricing provisions

2.3. Environmental claims 

2.4. Other legislation in advertising 

 

 

 

Definitions

 

In this code, unless the context otherwise requires, advertising means:

  1. any advertising, marketing communication or material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable  degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct;
  2. but does not include:

  • labels or packaging for products;
  • corporate reports including corporate public affairs messages in press releases and other media statements, annual reports,  statements on matters of public policy;
  • in the case of broadcast media, any material which promotes  a program or programs to be broadcast on that same  channel, station or network.

 

  • Medium means any medium whatsoever including without limitation cinema, internet, outdoor media, print, radio, telecommunications, television or other direct-to-consumer media including new and emerging technologies;
  • Minor means a person under 18 years of age;
  • Prevailing Community Standards means the community standards determined by the Ad Standards Community Panel as those prevailing at the relevant time in relation to Advertising or Marketing Communication. Prevailing Community Standards apply to clauses 2.1 - 2.7 below on the following pages.

 

 

Section 1. Competitor complaints 

 

  • Advertising shall comply with Commonwealth law and the law of the relevant State or Territory (1.1)
  • Advertising shall not be misleading or deceptive or be likely to mislead or deceive (1.2)
  • Advertising shall not contain a misrepresentation, which is likely to cause damage to the business or goodwill of a competitor (1.3)
  • Advertising shall not exploit community concerns in relation to protecting the environment by presenting or portraying distinctions in products or services advertised in a misleading way or in a way which implies a benefit to the environment which the product or services do not have (1.4)
  • Advertising shall not make claims about the Australian origin or content of products advertised in a manner which is misleading (1.5)

 

 

Section 2. Consumer complaints

 

  • Advertising shall not portray people or depict material in a way which discriminates against or vilifies a person or section of the community on account of race, ethnicity, nationality, gender, age, sexual orientation, religion, disability, mental illness or political belief (2.1)
  • Advertising shall not employ sexual appeal (2.2):

  1. where images of Minors, or people who appear to be Minors, are used; or
  2. in a manner which is exploitative or degrading of any individual or group of people

 

  • Advertising shall not present or portray violence unless it is justifiable in the context of the product or service advertised (2.3)
  • Advertising shall treat sex, sexuality and nudity with sensitivity to the relevant audience (2.4)
  • Advertising shall only use language which is appropriate in the circumstances (including appropriate for the relevant audience and medium). Strong or obscene language shall be avoided (2.5)
  • Advertising shall not depict material contrary to Prevailing Community Standards on health and safety (2.6)
  • Advertising shall be clearly distinguishable as such (2.7)

 

 

  • Advertising for Food or Beverage Products must not be misleading or deceptive or likely to mislead or deceive (2.1)
  • Advertising for Food or Beverage Products must not undermine the importance of healthy or active lifestyles nor the promotion of healthy balanced diets or encourage what would reasonably be considered to be excess consumption through the representation of product/s or portion sizes disproportionate to the setting/s portrayed or by means otherwise regarded as contrary to the Australian Dietary Guidelines (2.2)
  • Advertising for Food or Beverage Products that include what an Average Consumer might interpret as a Health Claim or Nutrition Content Claim must be supportable by appropriate scientific evidence meeting the requirements of the Australian Food Standards Code (2.3)
  • Advertising for Food or Beverage Products including claims relating to material characteristics such as taste, size, content, nutrition and health benefits, must be specific to the promoted product/s (2.4)
  • Advertising for Food or Beverage Products not intended or suitable as substitutes for meals must not portray them as such (2.5)

 

Advertising and children
For definitions and scope see the linked files above

 

  • Advertising (including sponsorship advertising) of Occasional Food or Beverage Products must not target Children (3.1)
  • Sponsorship advertising that targets children must not show an Occasional Food or Beverage Product, or such product packaging, or depict the consumption of an Occasional Food or Beverage Product (3.2)
  • Advertising of Food or Beverage Products featuring a promotional offer of interest to Children must not create a sense of urgency or encourage the purchase or consumption of an excessive quantity (3.3)
  • Advertisers must not give to Children as awards or prizes Occasional Food or Beverage Products or vouchers that can be used for Occasional Food or Beverage Products (3.4)

 

​​Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018

 

S1.1.Advertising and Marketing Messaging Communications to Children for food and/ or beverages must:

 

  1. Represent healthier dietary choices, consistent with established scientific or Australian government standards, as detailed in Signatories' Company Action Plan; and
  2. Reference, or be in the context of, a healthy lifestyle, designed to appeal to Children through messaging that encourages: i) Good dietary habits, consistent with establishedscientificorgovernment standards; and ii) Physical activity.

 

Product Placement S1.2.

 

  • Signatories must not pay for the placement of, or actively seek to place, food and/or beverage products in the program or editorial content of any medium directed primarily to Children unless such food and/or beverage products are consistent with S1.1.

 

Use of Products in Interactive Games S1.3.

 

  • Signatories must ensure that any interactive game directed primarily to Children which includes the Signatory's food and/or beverage products is consistent with S1.1.

 

Advertising in Schools, Pre-Schools and Day Care Centres S1.4.

 

  • Signatories must not engage in any Advertising and Marketing Communication to Children in Australian primary schools, pre schools and day care centres, except where specifically requested by, or agreed with, the school administration for educational or informational purposes,or relatedto healthy lifestyle activities under the supervision of the school administration or appropriate adults.

 

See also the Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children March 2018 which adds to the above as follows: 

 

Children's Sporting Events

 

  • S1.5. Signatories must not give away food and/ or beverage products or vouchers to Children as awards or prizes at Children's sporting events unless those products meet the Nutrition Criteria.

 

Availability of Nutrition Information
 

  • S1.6. Nutrition profile information must be available on company websites and upon request in respect of all food and beverage products.
     

On-Pack Nutrition Labelling
 

  • S1.7. Nutrition profile information must be provided on packaging wherever possible in respect of those food products usually contained in such packaging to assist parents and guardians to make informed food choices for their Children.

 

1.3. ALCOHOL
The ABAC Responsible Marketing  Code February 2021

 

3.  Standards to be applied 

 

(a) Responsible and moderate portrayal of Alcohol Beverages Definition Alcohol Beverage means a beverage containing at least 0.5% alcohol by volume. A marketing communication must NOT:

 

  1. show (visibly, audibly or by direct implication) or encourage the excessive or rapid consumption of an Alcohol Beverage, misuse or abuse of alcohol or consumption inconsistent with the Australian Alcohol Guidelines;
  2. show (visibly, audibly or by direct implication) or encourage irresponsible or offensive behaviour that is related to the consumption or presence of an Alcohol Beverage;
  3. challenge or dare people to consume an Alcohol Beverage; or
  4. encourage the choice of a particular Alcohol Beverage by emphasising its alcohol strength (unless emphasis is placed on the Alcohol Beverage’s low alcohol strength relative to the typical strength for similar beverages) or the intoxicating effect of alcohol.

 

b) Responsibility toward Minors Definition Minor means a person who is under 18 years of age and therefore not legally permitted to
purchase an Alcohol Beverage in Australia
.
 A marketing communication must NOT:

 

  1. have Strong or Evident Appeal (definition here) to Minors;
  2. depict a person who is or appears to be a Minor unless they are shown in an incidental role in a natural situation (for example, a family socialising responsibly) and where there is no implication they will consume or serve alcohol;
  3. depict an Adult who is under 25 years of age and appears to be an Adult unless: • they are not visually prominent; or • they are not a paid model or actor and are shown in a Marketing Communication that has been placed within an Age Restricted Environment; or
  4. be directed at Minors through a breach of any of the Placement Rules.

 

(c) Responsible depiction of the effects of alcohol. A marketing communication must NOT:

 

  1. suggest that the consumption or presence of an Alcohol Beverage may create or contribute to a significant change in mood or environment;
  2. show (visibly, audibly or by direct implication) the consumption or presence of an Alcohol Beverage as a cause of or contributing to the achievement of personal, business, social, sporting, sexual or other success;
  3. if an Alcohol Beverage is shown (visibly, audibly or by direct implication) as part of a celebration, imply or suggest that the Alcohol Beverage was a cause of or contributed to success or achievement; or
  4. suggest that the consumption of an Alcohol Beverage offers any therapeutic benefit or is a necessary aid to relaxation.

 

(d) Alcohol and Safety:

 

A marketing communication must NOT show (visibly, audibly or by direct implication) the consumption of an Alcohol Beverage before or during any activity that, for safety reasons, requires a high degree of alertness or physical co-ordination, such as the control of a motor vehicle, boat or machinery or swimming.

 

4 No fault breach

 

A breach of this Code that is reasonably unforeseeable by or outside the reasonable control of the marketer or their agency will be classified as a no fault breach​.

 

 

https://aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code.pdf

1. Truthful and factual presentation. Environmental claims in advertising or marketing communication:

 

  1. shall not be misleading or deceptive or be likely to mislead or deceive;
  2. shall display any disclaimers or important limitations and qualifications prominently, in clear, plain and specific language;
  3. shall represent the attributes or extent of the environmental benefits or limitations as they relate to a particular aspect of a product or service in a manner that can be clearly understood by the consumer.

 

2. A genuine benefit to the environment. Environmental claims must:

 

  1. be relevant, specific and clearly explain the significance of the claim;
  2. not overstate the claim expressly or by implication;
  3. not imply that a product or service is more socially acceptable on the whole.

 

3. Substantiation. Environmental Claims in Advertising or Marketing Communication:

 

  1. shall be able to be substantiated and verifiable. Supporting information shall include sufficient detail to allow evaluation of a claim;
  2. shall meet any applicable standards that apply to the benefit or advantage claimed;
  3. containing testimonials shall reflect the genuine, informed and current opinion of the person giving the testimonial.

1.5. Advertising to children

 

The key rules are found in the AANA Children's Advertising Code March 2021

  • Scope: Advertising or Marketing Communications to Children means Advertising or Marketing Communications which, having regard to the theme, visuals and language used, are directed primarily to Children and are for Product. The Board shall have regard to the Practice Note to this Code in determining whether Advertising or Marketing Communications are to children under this definition. 
  • The code addresses: Prevailing community standards, placement, factual presentation, sexualisation, safety, social values, parental authority, qualifying statements and competitions. It's a  comprehensive set of rules and too lengthy for inclusion of individual clauses here; see the linked code and practice note.

 

2. LEGISLATION IN ADVERTISING
Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010)

 

The ACL contains a broad prohibition of misleading and deceptive conduct. Businesses have an obligation not to engage in any conduct that is likely to mislead or deceive consumers. Note that the conduct only needs to be likely to mislead or deceive; it does not matter whether the conduct actually misled anyone, or whether the business intended to mislead - if the conduct was likely to mislead or deceive, the ACL is contravened. In addition to the general rule against misleading or deceptive conduct, the ACL prohibits a variety of false or misleading representations about specific aspects of goods and services. False and misleading representations are more serious than general misleading and deceptive conduct and, where criminal proceedings are taken, can carry serious penalties under the ACL (from the Australian Competition and Consumer Commission; see their pages on false or misleading claims here)

 

Chapter 2. General Protections

Part 2.1. Misleading or deceptive conduct (key extracts only)

 

  • 18  Misleading or deceptive conduct

             

  1. A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
  2. Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

 

Chapter 3. Specific Protections

Part 3.1 Unfair practices. False or misleading representations etc. (key extracts only)

 

  • 29  False or misleading representations about goods or services:

  1. A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation that :

 

  1. goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
  2. services are of a particular standard, quality, value or grade; or
  3. goods are new; or
  4. a particular person has agreed to acquire goods or services; or
  5. purports to be a testimonial by any person relating to goods or services; or
  6. make a false or misleading representation concerning:

                             

  1. a testimonial by any person; or
  2. a representation that purports to be such a testimonial relating to goods or services; or make a false or misleading representation

 

  1. that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or
  2. that the person making the representation has a sponsorship, approval or affiliation; or
  3. with respect to the price of goods or services; or concerning the
  4. availability of facilities for the repair of goods or of spare parts for goods; or 
  5. place of origin of goods; or
  6. need for any goods or services; or
  7. existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3 2); or
  8.  make a false or misleading representation concerning a requirement to pay for a contractual right that:
                                 

 

  1. is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3 2); and
  2. a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

2.2. Pricing provisions 

 

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

 

  • The following provisions are taken from the Australian Consumer Law, Divisions 1 and 4 of Schedule 2 of the Competition and Consumer Act 2010. We do not regard these as representing an exhaustive review of consumer pricing provisions in Australian regulation, just the most high profile. It is often the case that transgression of pricing rules will also be assessed under misrepresentation rules (shown above);
  • Specifically, chapter 3, part 3.1 misleading representation section 29 1. 'A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: (i) make a false or misleading representation with respect to the price of goods or services;'
  • Pricing provisions are largely under Division 4; multiple pricing (e.g. a catalogueunder section 47 rules apply to the term 'displayed price', which includes 'any representation that may reasonably be inferred to be a representation of a price for the goods'; 
  • 'Single price to be specified in certain circumstances' is covered under Section 48 (7). Extract is: The single price is the minimum quantifiable consideration for the supply of the goods or services at the time of the representation, including each of the following amounts (if any) that is quantifiable at that time: (a)  a charge of any description payable to the person making the representation by another person unless: (i) the charge is payable at the option of the other person; and (ii) at or before the time of the representation, the other person has either deselected the charge or not expressly requested that the charge be applied; and (b) the amount which reflects any tax, duty, fee, levy or charge imposed on the person making the representation in relation to the supply; (c) any amount paid or payable by the person making the representation in relation to the supply with respect to any tax, duty, fee, levy or charge if: (i)  the amount is paid or payable under an agreement or arrangement made under a law of the Commonwealth, a State or a Territory; and (ii) the tax, duty, fee, levy or charge would have otherwise been payable by another person in relation to the supply.
  • There are also provisions under the same act, Part 3, Division 1 Section 35 'bait advertising' and 32 'Offering rebates, gifts, prizes etc.'
  • The Australian Competition and Consumer Commission (ACCC) is an independent Commonwealth statutory authority whose role is to enforce the Competition and Consumer Act 2010'. Their pricing page is here and from their fair trading pages the ACCC states: 'If you display or advertise prices, always include the total price. The total price must include all charges, taxes, duties, levies or fees (such as goods and services tax or airport tax). It doesn’t need to include optional charges such as delivery fees. If you display or advertise a price that is only part of the total price (for example, a price which doesn't include additional charges such as delivery or booking fees), the total price (as a single figure) must be as noticeable as the 'part price'. Comparison/ sale pricing guidance is shown on the same page;
  • In self-regulation, inaccurate or incomplete pricing would likely fall under provisions under section 1.2. (competitor complaints) of the AANA Code of Ethics 'Advertising shall not be misleading or deceptive or be likely to mislead or deceive.'

​Pricing in children's advertising (from self-regulation)

 

From the AANA Children's Advertising Code March 2021

From section 2.2 Factual presentation

 

  • (i) Prices, if mentioned in Advertising or Marketing Communications to Children, must be  accurately presented in a way which can be clearly understood by Children and must  not be minimised by words such as “only” or “just”;
  • (ii) Advertising or Marketing Communications to Children must not imply that the  Product being promoted is immediately within the reach of every family budget.

 

2.3. Environmental claims 

 

  • The self-regulatory AANA Environmental Caims Code is set out above under 1.4. and is probably the first port-of-call when checking the rules for what is highly sensitive regulatory territory worldwide;
  • Because of that sensitivity, and because activist groups bring actions under the law, advertisers and agencies should also review the applicable legislation, in this context the Australian Consumer Law, key provisions from which are set out under 2.1 above; 
  • Accompanying that law and providing specific guidelines is the Australian Competition and Consumer Commission's 'Green Marketing and the Australian Consumer Law'. It's from 2011, reportedly due for an update, but it's a very solid and clear explanation of the law and how it applies when making environmental claims, showing examples and cases and do's and don'ts. Extracted, though the full guide should be read, is:
  • 'If you wish to make environmental claims about your business or your product, they should be clearly and accurately explained. Generally, a claim should: 

 

  • ​be honest and truthful;
  • detail the specifi c part of the product or process it is referring to;
  • use language which the average member of the public can understand;
  • explain the signifi cance of the benefit;
  • be able to be substantiated.'

 

https://www.legislation.gov.au/Search/advertising

 

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

 

Truthfulness (Art. 5)

 

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

 

Substantiation (Art. 6)

 

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

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

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

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

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

 

 

 

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

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

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

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

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

 

 

18.4. Social values

 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

 

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

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product

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

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

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

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

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

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

 

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

 

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

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

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

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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

 

 

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

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

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

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

C. Channel Rules

1. TV/Radio/VOD

Sector

General

SECTION C: TV & RADIO/ AV

 

 

ISSUES / NEWS

 

Seven and Nine breach gambling advertising rules. ACMA October 2022

 

KEY RULES 

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable. The Australian Consumer Law also applies;
  • The Commercial Television Industry Code of Practic (2018). Television advertisers are expected to ensure that advertisements (or other marketing communications) comply with the AANA codes and the ABAC Responsible Alcohol Marketing Code (5.7);
  • Section 4 covers disclosure of commercial arrangements, e.g. products in 'factual programs'; section 6 covers scheduling restrictions for alcoholic drinks (6.2), intimate products and services (6.3), films and computer games (6.4) and betting and gambling (6.5); these are all restricted according to 'Classification zones' set out under section 2, e.g. material that has been classified M may only be broadcast at the following times

 

a) School days 

7.30 pm to 6.00 am

12 noon to 3.00 pm

b) Weekends and school holidays  7.30 pm to 6.00 am
c) Public holidays  7.30 pm to 6.00 am

 

 

OTHER CODES AND THE AUTHORITY

 

 

 

 

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

International

SECTION C TV/AV AND RADIO

 

 
APPLICABLE SELF-REGULATION AND LEGISLATION
 
  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
....................................................................................
Read more

2. Cinema/Press/Outdoor

Sector

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
  • In Outdoor media, the association requires in its alcohol advertising policy that 'advertising that is captured by this policy is not placed on fixed signs located within a 150 metre sightline from the boundary of a school.' Access to the rules here and pdf hereThe association also publish a 'general' Code of Ethics;
  • The Cinema trade association is the National Association of Cinerma Operators (NACO); we couldn't trace any codes/ rules related to commercial communications on their website. 

 

 

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

International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable Self-Regulation and legislation 

 

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

 

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

 

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

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

 

 

Article B12 Media sponsorship

 

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

 

 

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

3. Online Commercial Communications

Sector

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section carries the rules for marketing communications in the broader online space.

More specific channels such as direct electronic communications, advertisers' own websites, native etc. follow.

 

KEY RULES

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
  • With regard to data processing, The Privacy Act 1988 (compilation including act no. 83) is the principal piece of Australian legislation protecting the handling of personal and sensitive information about individuals;
  • The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collectionuse and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);
  • Marketing in the Digital Space, the AANA Practice Note March 2018, states: 'The AANA Codes are platform and media neutral and apply to existing digital media. It is envisaged that the Codes will apply to any future form of digital marketing that may be developed and that the Codes will evolve, if necessary, to remain relevant and applicable.' We've read this document with some care; in our view it's a very valuable helping hand for staying the right side of the rules in digital marketing in Australia.

 

INFLUENCERS ONLINE 

 

  • The key self-regulatory rule, established relatively recently, is from the AANA Code of Ethics 2.7 'Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.' The related Best Practice Guideline is essential reading, together with the Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021;
  • The Australian Consumer Law is also relevant to Influencer Marketing under article 29 false or misleading representations. The ACCC - statutory authority in this context - state: 'The same rules that apply to all advertising and promotions apply to social media, including: a business’s posts on its own social media accounts, advertising on other social media platforms, social media posts that a business pays for, social media posts that a business offers incentives to influencers to make.' 
  • The codes of practice and guidelines from the AANA and AIMCO carry recommendations on when a post constitutes an ad and how to declare/ identify it. From the latter under section 2.1:

 

  • 'The AANA current recommended advertising disclosure is in line with the UK and US to declare advertising, with words or hashtags #Ad or #Sponsored in relevant platforms or identified verbally in video formats.' That may be the case but may also be a slightly 'tighter' interpretation of the AANA's Code of Ethics Practice Note, which reads under section 2.7:
  • 'Influencer and affiliate marketing often appears alongside organic/genuine user generated content and is often less obvious to the audience. Where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g. #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion). Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising.'

 

 

 

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

International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

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

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

Also be aware of:

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

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

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

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

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

And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 

 

Self-Regulatory clauses 

 

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

 

C1. Identification and transparency

 

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

 

C2. Identity of the marketer

 

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

C7. Marketing communications and children

 

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

 

C10. Respect for the potential sensitivities of a global audience

 

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

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

 

Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • There is some uncertainty in the Australian legal community about the definition of personal information and the means of its permitted collection, and in some ways the consent regime is more 'relaxed' than in other jurisdictions: see Comparing privacy laws: GDPR v. Australian Privacy Act from Onetrust data guidance and Mills Oakley;
  • The applicable legislation is The Privacy Act 1988 (link is to compilation including act no. 83 December 2022) and under Schedule 1 of the act the Australian Privacy Principles (APPs; full principles linked, quick reference here). In this cookies and OBA context, the key APPs are 3-5 for Collection and APP 7 Direct Marketing, guidelines to that chapter here. Extracted from APP 7.2: 'an organisation may use or disclose personal information (other than sensitive information, terms defined here) about an individual for the purpose of direct marketing if:

 

  • the organisation collected the information from the individual;
  • and the individual would reasonably expect the organisation to use or disclose the information for that purpose;
  • and the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation;
  • and the individual has not made such a request to the organisation.'

 

  • The Bird&Bird Global Cookie Review of Winter 2022 includes Australia and very helpful content around consent/ personal information; the review precedes 2022 amends to the Privacy Act. From that review: 'There are no specific cookie-related laws in force in Australia. However, entities subject to the Australian Privacy Act must handle personal information in accordance with the Australian Privacy Principles (APPs). “Personal information” is defined under the Australian Privacy Act as information or an opinion about an identified individual or an individual who is reasonably identifiable.'
  • The relevant authority is the Office of the Australian Information Commissioner (OAIC), 'the independent national regulator for privacy and freedom of information.'

OBA

 

  • See above for data collection/ processing (or 'use') issues related to targeted advertising. The OAIC publish a page on Targeted advertising, written for the consumer, which provides a link to Youronlinechoices, the EU-based system supported by a number of organisations;
  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B, except where offline-specific; OBA/ targeted advertising is the same as any other advertising in that sense; principal source of content rules is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies. 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

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

From Reed Smith LLP/ Lex May 2022 

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

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

Data protection update Stephenson Harwood LLP/ Lex. European Union, France, United Kingdom, USA November 2, 2022

End of Meta’s targeted ads model? DLA Piper December 9, 2022. Reports on some critical EDPB decisions

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

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

 

C22.1. Notice

 

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

 

C22.2. User control

 

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

 

C22.5. Data security

 

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

 

C22.6 Children

 

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

 

C22.7. Sensitive data segmentation

 

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

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European Self-Regulatory programme for OBA

 

  • A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
  • EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

 
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Read more

5. Emails & SMS

Sector

General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

CONTEXT AND DEFINITION

 

This section covers rules for 'direct electronic communications', per the header. By this we mean that we are addressing a particular form of 'direct marketing' and because that term can cover a wide variety of techniques, we define and qualify it. From the OAIC guidelines 7.9 'Direct marketing involves the use and/ or disclosure of personal information to communicate directly with an individual to promote goods and services. A direct marketer may communicate with an individual through a variety of channels, including telephone, SMS, mail, email and online advertising.' The 'electronic' descriptor in this section is intended to separate from e.g. postal mail and the direct marketing element relates to the targeting of individuals and therefore - in some cases - personal information processing. So when setting out the applicable rules, the two core principles that determine their relevance and inclusion are a) whether targeting is 'individual' and personal information may be processed and b) whether delivery to the consumer is electronically. To make those principles perhaps more meaningful, we have in mind email and SMS delivery, for example, though we realise that 'direct electronic communications' may encompass e.g. OBA and even 'broader' channels, which are anyway addressed in separate sections. We also appreciate that much 'direct marketing' may not include processing of personal data. 

 

Privacy issues should be reviewed with specialist advisors 

 

KEY RULES 

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies; 
  • So the content of commercial communication will be subject to the rules from the above (exemptions such as press releases are set out in the linked documents); whether data processing rules apply obviously depends on the type of data and how it's being used. The Australian privacy regime in this context is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.' 
  • There are thirteen APPS, of which the most important in this direct marketing context is APP 7. The terms and rules differ slightly from e.g. the European regime in as much as the term 'personal information' is used (vs personal data) and there is a further distinction between personal information Definition Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not and 'sensitive information', which includes information on e.g. racial origin, sexual orientation, political affiliations, religious beliefs etc. Full definitions of these terms are extracted here
  • The rules taken from APP 7 permit 'use or disclosure of personal information (other than sensitive information) about an individual for the purpose of direct marketing if: the organisation collected the information from the individual; and the individual would reasonably expect the organisation to use or disclose the information for that purpose; and the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and the individual has not made such a request to the organisation.'
  • Further exemptions (i.e. permissions to use or disclose personal information) are under section 7.3. These clauses are quite intricate and should be read in full, probably with a specialist advisor to hand, but boil down to: if there is not a 'reasonable expectation' of use or the information is from a third party, use/ disclosure is permitted when consent has been obtained, or if that is impracticable and the organisation provides a simple and 'prominent' means in each communication to opt out;
  • The Spam Act 2003 requires that i) Unsolicited commercial electronic messages must not be sent, ii) Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message and iii) Commercial electronic messages must contain a functional unsubscribe facility (Part 2).

'Sensitive information,' consent and guidance 

 

  • Use/ disclosure of sensitive information, as defined above, is subject to the individual's consent: 'an organisation may use or disclose sensitive information about an individual for the purpose of direct marketing if the individual has consented to the use or disclosure of the information for that purpose.' (7.4)
  • See also AIOC Guidance on Direct Marketing May 2019, essential reading which provides guidance on e.g. 'reasonable expectation' and opting out. Additionally and importantly, 'consent' is discussed:  '7.23 Consent is defined in s 6 (1) as ‘express consent or implied consent’ and is discussed generally in Chapter B (Key concepts). The four key elements of consent are: the individual is adequately informed before giving consent, the individual gives consent voluntarily, the consent is current and specific, and the individual has the capacity to understand and communicate their consent';

 

Trade association

 

  • https://www.adma.com.au/about: 'The Association for Data-driven Marketing and Advertising (ADMA) is the principal industry body for data-driven marketing and advertising.  The largest marketing and advertising association in Australia, ADMA represents over 600 brands.' Their regulatory pages are here

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

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

 

 

Article 19 ICC Code: Data protection and privacy

 

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

 

19.1. Collection of data and notice

 

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

 

 

19.2. Use of data

 

Personal data should be:

 

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

 

 

19.3. Security of processing

 

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

 

 

19.4. Children’s personal data

 

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

19.5. Privacy policy

 

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

 

 

19.6. Rights of the consumer

 

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

 

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

 

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

 

 

19.7. Cross-border transactions

 

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

 

 

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

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

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

 

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

 

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

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

 

 

EU guidance documents

 

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

Sector

General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it's in remit. The AANA Practice Note March 2018 Marketing in the Digital Space states: 'Examples of digital marketing include all forms of commercial communication on Brand-owned websites or brand-managed social media pages (including mobile and tablet versions), including 3rd party user-generated comment (UGC)’ Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages  in press releases and other media statements, annual reports, statements on matters of public policy Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, see the Practice Note linked above. Notable exceptions include Material, includinmg UGC, over which the brand owner does not have reasonable control, even if brands or products of the brand owner are featured. Corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy and the like are also excluded 

 

Privacy issues should be reviewed with specialist advisors 

 

KEY RULES 

 

  • Advertising in all media, including owned (see above context) must observe the rules and interpretations set out in our preceding content section B except where identified as offline-specific; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies; 
  • The AANA Practice Note March 2018 Marketing in the Digital Space linked above is very helpful for marketers and agencies navigating regulation in the digital space generally and the various forms of, and content in, owned websites specifically; 
  • Data processing issues obviously arise in this owned website context.The Australian privacy regime is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.'
  • Direct marketing/ privacy rules, taken from APP 7 and related guidelines, are set out under the preceding header 'Direct Electronic Communications.' The rules are primarily about the use of personal and sensitive information. Collection of solicited and unsolicited personal information is covered by APPs 3, 4 and 5 and the OAIC guidelines. Very broadly (privacy issues should be reviewed with specialist advisors), collection of personal information is permitted when that is reasonably necessary for one or more of its functions or activities (APP 3.2); collection of sensitive information (terms are defined here) requires consent;
  • See  also the cookies and OBA section of this database, earlier in this channel section C. Bird&Bird's Global Cookies Review Winter 2022 is also very valuable; Australia p.56.

International

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

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

Unsolicited communications

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

 

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

 

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

 

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

 

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

 
 
Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

General

SECTION C: NATIVE ADVERTISING

 

 

KEY RULES 

 

  • Section 2.7 of the AANA Code of Ethics requires that advertising must be clearly distinguishable as such. The related Practice Note (link is to the relevant page) sets out interpretation in some detail. The most relevant paragraphs, though the full interpretation should be read, are:
  • 'There is no absolute requirement that advertising or marketing communication must have a label however it must be clear to the audience. If it is clear to the audience that the content is commercial in nature (for example by the nature of the content, where the content is placed, how consumers are directed to the content, the theme, visuals and language used, or the use of brand names or logos), then no further disclosure or distinguishing element is needed. And:
  • 'Advertisers have flexibility as to how to ensure that material is distinguishable as advertising or marketing communication. Advertisers may use logos or brand names combined with other visual or audio cues where appropriate, such as background shading, outlines, borders, graphics, video or audio messages depending on the medium.'
  • Native advertising is the same as any other advertising in as much as its content must observe the rules and interpretations in the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies.

 

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

International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

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

 

Standard rules

 

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

 

Self-Regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

General

 

 

FOLLOWING FEEDBACK, WE NO LONGER COVER TELEMARKETING 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

General

SECTION C: DIRECT POSTAL MAIL

 

 

CONTEXT

 

There are two aspects to the way in which we address this section: 1) the collection and use of personal and sensitive information (these terms defined here) when processing data and 2) the content of commercial communications in direct postal mail. Rules, or access to them, are set out below

 

KEY RULES

 

  • Whether data processing rules apply obviously depends on the type of data and how it's being collected and used. The Australian privacy regime in this context is founded on The Privacy Act 1988 (compilation including act no. 83), the principal legislation protecting the handling of individuals' information and The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988.' 
  • There are thirteen APPS, of which the most important in a direct marketing context is APP 7. The terms and rules differ slightly from e.g. the European regime in as much as the term 'personal information' is used (vs personal data) and there is a further distinction between personal information Definition Personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not and 'sensitive information', which includes information on e.g. racial origin, sexual orientation, political affiliations, religious beliefs etc. Full definitions of these terms are extracted here
  • 'Marketing is not direct, and therefore APP 7.1 does not apply, if personal information is not used or disclosed to identify or target particular recipients, for example, where: an organisation sends catalogues by mail to all mailing addresses in a particular location, addressed ‘To the householder’ (that is, where recipients are not selected on the basis of personal information) an organisation hand delivers promotional flyers to the mailboxes of local residents' (Guidelines 7.12);

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable; the Australian Consumer Law also applies;
  • The latter especially carries some rules related to pricing and e.g 'bait advertising' which may be particularly relevant to direct postal mail; see content section B for details or the linked law

 

 

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

International

 

Applicable Self-Regulation and legislation 

 

  • National 'Robinson lists' or opt-out lists
  • The General Data Protection Regulation 2016/679 for the processing of personal data
  • Directive 2005/29/EC on unfair commercial practices (UCPD) 

 

 

Standard rules

 

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

 

 

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

 

 

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

 

 

Legislation

 

As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:

 

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

 

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

 

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

 

  • In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors

 

 

Guidance

 

Guidelines on consent under Regulation 2016/679 (May 2020)

 
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10. Event Sponsorship/ Field Marketing

Sector

General

SECTION C: EVENTS/ SPONSORSHIP

 

 

This section covers rules related to sponsorship of events (versus media) 

 

SCOPE, KEY RULES 

 

  • The scope of the AANA Code of Ethics (February 2021) is stated as: 'In this Code, unless the context otherwise requires: Advertising means: (a) any advertising, marketing communication or material which is published or broadcast using any Medium or any activity (italics ours) which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct, (b) but does not include: labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy, in the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network. And:
  • Medium means any medium whatsoever including without limitation cinema, internet, outdoor media, print, radio, telecommunications, television or other direct-to-consumer media including new and emerging technologies.
  • We take the above to mean that sponsorship is in the code's remit; accordingly, collateral material, i.e. support material around a sponsorship event, should observe the code and any related sector-specific codes (see section A - Overview - of this database) and it is likely to be the case that the Australian Consumer Law will also apply, albeit there won't be a great deal of legal activity in the sponsorship material business;
  • The best source of 'general' international rules are those from the ICC Advertising and Marketing Communications Code Chapter B, which covers e.g. ambushing, data capture etc. The clauses are spelt out under the International section, or see the linked code
  • It would obviously be the case that sector-sensitive sectors such as alcohol or gambling would need to avoid events where there is a relatively high proportion of minors in attendance (most guidance suggests > 25%); there is some sensitivity around sponsorship of events by gambling operators in particular;
  • From the Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018 S1.5. Signatories must not give away food and/ or beverage products or vouchers to children as awards or prizes at children's sporting events unless those products meet the nutrition criteria;
  • The Exhibition and Event Association of Australasia (EEAA) is 'the peak association for the exhibition and event industry in Australia and New Zealand, representing all aspects of the exhibition and event industry.' http://www.eeaa.com.au/

 

SOME READING 

 

  • There's a Sponsorship Q&A: Australia blog/ post from Practical Law which looks like it requires subscribed downloads. Sponsorhip News is helpful generally, albeit also requiring subscription for some services.

 

 

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

International

 

 

 

Self-Regulation

 

 

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

B3: Imitation and confusion

 

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

 

 

 B4: 'Ambushing' of sponsored properties

 

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

 

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

 

B6: The sponsorship audience

 

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

 

 

B7: Data capture/ data sharing

 

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

 

 

B8: Artistic and historical objects

 

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

 

 

B9: Social and environmental sponsorship

 

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

 

 

B10: Charities and humanitarian sponsorship

 

 

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

 

 

B11: Multiple sponsorship

 

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

 

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11. Sales Promotion

Sector

General

SECTION C: SALES PROMOTIONS

 

  • Advertising in all media must observe the rules and interpretations set out in our preceding content section B; principal source is the AANA Code of Ethics and Practice Note as well as sector-specific codes where applicable. Sales promotions - when expressed in advertising -  will remain subject to the codes of practice as well as additional rules (some promotions, for example, transgress because they are misleading)
  • The Australian Consumer Law also applies and that legislation is an important source of promotional rules: Bait advertising and special offers are under ACL section 35 and Offering rebates, gifts or redemptions under section 32;
  • The ACCC (Australian Competition and Consumer Commission) carries some helpful Advertising, selling and promotional techniques pages which set out a summary of the rules, link the relevant legislation and show examples and some case law. For example on Bait advertising and special offers: 'Bait advertising is the practice of offering items for sale at low prices to attract consumers to a business. Bait advertising can be a legitimate form of advertising. However, it is illegal to engage in this conduct where goods or services are advertised for sale at a discounted price, and they are not available in reasonable quantities and for a reasonable period at that price. Legislation: Australian Consumer Law section 35 .You must state clearly if the good is in short supply or on sale for a limited time. For example, if your advertisement makes it very clear that goods are available at the discount price for ‘today only’, this will limit your obligations to that day. If there is not a reasonable chance the offer will be available at the advertised price, you may be in breach of the ACL unless you promptly offer a 'rain check', an acceptable substitute product or take other corrective action;
  • The ACCC's Cash back offers and gifts and prizes rules are here.

 

Legal commentary

 

What Permit Do I Need To Run A Promotion In Australia?

 

Sales promotions Q&A: Australia (needs sub)

 

 

 

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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

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

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

 

A5: Safety and suitability

 

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

 

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

 

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

 

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

https://adstandards.com.au/

 

Copy advice

 

https://adstandards.com.au/education-and-advice/copy-advice

 

Information and resources about the responsibilities of advertisers and media buyers in relation to the advertising self-regulation system complaints process can be accessed below.

 

Information for advertisers
 

Information for media buyers

 

 

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International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

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

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

 

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

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

General

SECTION E SOURCES/ LINKS

 

 

NATIONAL LEGISLATION

 

Competition and Consumer Act 2010 (CCA); as amended and in force November 10, 2022. 'The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. 'The Competition and Consumer Act 2010 (CCA) (formerly the Trade Practices Act 1974) is a national law that governs how all businesses in Australia must deal with their competitors, suppliers and customers. The law is designed to enable all businesses to compete on their merits in a fair and open market, while also ensuring businesses treat consumers fairly. Consumer protection provisions are in the Australian Consumer Law (ACL), which is contained in a schedule to the CCA. The ACL governs business behaviour when advertising and interacting with consumers. It also sets out a number of consumer rights, including specific guarantee rights. State, territory and federal regulators including the Australian Competition and Consumer Commission (ACCC) enforce the ACL. Only the ACCC enforces the competition law, which is set out in the CCA.' From A guide to competition and consumer law.

www.legislation.gov.au/Details/C2022C00326

 

Authority

 

Australian Competition & Consumer Commission. 'The ACCC promotes competition and fair trade in markets to benefit consumers, businesses, and the community. We also regulate national infrastructure services. Our primary responsibility is to ensure that individuals and businesses comply with Australian competition, fair trading, and consumer protection laws - in particular the Competition and Consumer Act 2010.' The ACC publish a considerable amount of helpful information on tehir website including some practical 'walk-throughs' such as the Advertising and Selling Guide 

https://www.accc.gov.au/about-us

 

Privacy

 

The Privacy Act 1988 is the principal piece of Australian legislation protecting the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information in the federal public sector and in the private sector. The Act was amended in December 2022 by the Online Privacy Bill, more formally The Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, which significantly increases penalties under the Privacy Act and also increases the powers of the Australian Information Commissioner (OAIC);

www.legislation.gov.au/Details/C2022C00361 (compilation including act no. 83)

 

The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collection, use and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);

www.oaic.gov.au/privacy/australian-privacy-principles/read-the-australian-privacy-principles

 

The Do Not Call Register Act 2006. Simplified outline: Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register; Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register. The main remedies for breaches of this Act are civil penalties and injunctions.

www.legislation.gov.au/Details/C2021C00356 (compilation to 2021)

 

The Spam Act 2003. Simplified outline: This Act sets up a scheme for regulating commercial email and other types of commercial electronic messages. Unsolicited commercial electronic messages must not be sent. Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message. Commercial electronic messages must contain a functional unsubscribe facility. Address harvesting software must not be supplied, acquired or used. An electronic address list produced using address harvesting software must not be supplied, acquired or used. The main remedies for breaches of this Act are civil penalties and injunctions.

www.legislation.gov.au/Details/C2016C00614 (compilation to 2016)

 

Authority

 

Australian Information Commissioner (OAIC). 'Our purpose is to promote and uphold privacy and information access rights. We do this by: making sure that Australian Government agencies and organisations with an annual turnover of more than $3 million, and some other organisations, follow the Privacy Act 1988 and other laws when handling personal information, protecting the public’s right of access to documents under the Freedom of Information Act 1982 (FOI Act), carrying out strategic information management functions within the Australian Government under the Australian Information Commissioner Act 2010 (AIC Act).' The OAIC also publish some helpful/ essential guides related to the Privacy Act and Principles, e.g. Australian Privacy Principles guidelines.

www.oaic.gov.au/about-us/what-we-do

 

Fair Trading laws by state

 

Australian Capital Territory
Access Canberra administers the ACT Fair Trading Act 1992- external site and provides information on codes of practice and other business guides for traders.

 

New South Wales
NSW Fair Trading administers the NSW Fair Trading Act 1987. Fair Trading's Acceptable business conduct provides business operators with information about how to trade fairly in New South Wales.

 

Northern Territory
Consumer Affairs administers the NT Consumer Affairs and Fair Trading Act 1990. You can find information on trader issues such as advertising, business tenancies, disposal of uncollected goods and product safety.

 

Queensland
The QLD Office of Fair Trading administers the QLD Fair Trading Act 1989. You can find information on business rights and responsibilities.

 

South Australia
Consumer and Business Services administers the SA Fair Trading Act 1987 and provides businesses with information on fair trading laws, advertising, handling complaints and warranties.

 

Tasmania
The Consumer, Building and Occupational Services administers the Australian Consumer Law (Tasmania) Act 2010 and has publications covering many aspects of fair trading.

 

Victoria
Consumer Affairs Victoria administers the Australian Consumer Law and Fair Trading Act 2012.

Forms and publications are available to help businesses understand fair trading.

 

Western Australia
Department of Mines, Industry Regulation and Safety administers the WA Fair Trading Act 2010.

 

 

Food and Beverages 

 

Australia New Zealand Food Standards Code. The standards in the code are legislative instruments under the Legislation Act 2003 and are described in the Code, which is a law that applies in Australia and New Zealand. The code provides: a common set of food composition and labelling rules agreed between New Zealand and Australia. Standard 1.2.7 Nutrition, health and related claims. This Standard: (a) sets out: (i) the claims that may be made on labels or in advertisements about the nutritional content of food (described as ‘nutrition content claims’); and (ii) the claims that may be made on labels or in advertisements about the relationship between a food or a property of a food, and a health effect (described as ‘health claims’); and (b) describes the conditions under which such claims may be made; and (c) describes the circumstances in which endorsements may be provided on labels or in advertisements.

www.foodstandards.gov.au/code/Pages/default.aspx

 

Therapeutic goods

 

Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021. 'The objects of this Code are to specify requirements for advertisements about therapeutic goods so that advertisements: (a) promote the safe and proper use of the therapeutic goods by minimising misuse, overuse or underuse; and (b) are ethical and do not mislead or deceive the consumer or create unrealistic expectations about the performance of the therapeutic goods; and (c) support informed health care choices; and (d) are not inconsistent with current public health campaigns.

www.legislation.gov.au/Details/F2021L01661

 

Infant formula

 

Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement.

www.health.gov.au/internet/main/publishing.nsf/Content/health-pubhlth-strateg-foodpolicy-apmaif.htm

 

SELF-REGULATION

 

Ad Standards. 'Ad Standards manages the complaint resolution process of the advertising self-regulation system. Our vision is to be Australia’s community voice for complaints about advertising and marketing standards. Our purpose is to give a voice to consumer values and guide industry in maintaining decent and honest advertising aligning with prevailing community standards. Ad Standards functions as secretariat for the Ad Standards Community Panel and the Ad Standards Industry Jury - the two independent bodies established to determine consumer and competitor complaints against the advertising self-regulatory codes. Australia's current system of advertising self-regulation was established by the Australian Association of National Advertisers (AANA) in 1998.'

https://adstandards.com.au/about/ad-standards

https://youtu.be/ppV-AcORJ1w

 

The AANA (Australian Association of National Advertisers) Code of Ethics February 2021 is the core self-regulatory code in Australia, 'the overarching code setting out standards that apply to Advertising or Marketing Communication across any medium.' Advertising is defined in the code as follows: '(a) any advertising, marketing communication or material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct, (b). but does not include: labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy. In the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network.' The code of Ethics is to be read with the Practice Note,  also February 2021, provided as a guide to interpretation.

aana.com.au/wp-content/uploads/2020/09/AANA_Code_of_Ethics_Effective_February_2021.pdf

 

Food and Beverages 

 

Food & Beverages Advertising Code November 2021. 'This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers maintain a high sense of social responsibility in advertising and marketing food and beverage products in Australia in a manner that is legal, honest, truthful and reflects health and safety standards.'

aana.com.au/wp-content/uploads/2021/06/AANA_FoodBev_Advertising_Code_final.pdf

Reklated Practice Note:

aana.com.au/wp-content/uploads/2021/08/AANA_FoodBev_Advertising_Practice_Note_Aug21v.pdf

 

See also Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018:

www.afgc.org.au/wp-content/uploads/2019/06/Responsible-Childrens-Marketing-Initiative-March-2018.pdf

 

Australian Food and Grocery Council Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children. Adds inter alia provisions on Children's sporting events, availability of nutrition information and on-pack nutrition labelling:

https://www.afgc.org.au/wp-content/uploads/2019/06/QSR-Initiative-for-Responsible-Advertising-and-Marketing-to-Children-March-2018.pdf

 

Environmental

 

Environmental Claims Code May 2018. 'This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain rigorous standards when making Environmental Claims and to increase consumer confidence to the benefit of the environment, consumers and industry. This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Community Panel in making its determinations. In the event of any ambiguity the provisions of the Code prevail.'

aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code.pdf

 

Environmental Claims Code Practice Note. 'This Practice Note is provided as a guide to interpretation to assist advertisers, their agencies and the community. The interpretations in this Practice Note are based on the AANA’s intent in relation to the Code and relevant determinations of the Ad Standards Community Panel.'

aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code-Practice-Note.pdf

 

Gambling

 

Wagering Advertising Code July 2016. This Code has been adopted by the Australian Association of National Advertisers (AANA) as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing wagering products in Australia:

aana.com.au/content/uploads/2018/03/180316-Wagering-Advertising-Code.pdf

 

Wagering Advertising Code Practice Note May 2018:

aana.com.au/content/uploads/2018/05/180315-Wagering-Advertising-Code-Practice-Note.pdf

 

See also Keeping wagering ads in check September 2022

 

Children

 

Children’s Advertising Code March 2021. This Code has been adopted by the AANA as part of advertising and marketing self regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing to children in Australia. This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Board in making its determinations. In the event of any ambiguity the provisions of the Code prevail.The code addresses: Prevailing community standards, placement, factual presentation, sexualisation, safety, social values, parental authority, qualifying statements and competitions. 

https://aana.com.au/wp-content/uploads/2022/06/AANA_Advertising_Code_for_Childrens_V2.pdf

 

Children's Advertising Code Practice Note March 2021

aana.com.au/wp-content/uploads/2022/06/AANA_Code_for_Children_Practice_Note_V2.pdf

 

See also AANA has launched a review of the Children’s Advertising Code June 2022

 

FCAI Motor Vehicle Code and Practice Note. Undated; reviewed every 5 years. 'The Voluntary Code of Practice for Motor Vehicle Advertising (the FCAI Code) has been instituted by the Federal Chamber of Automotive Industries (FCAI) as a means of industry self-regulation of motor vehicle advertising in Australia. The primary purpose of the FCAI Code is to provide guidance to advertisers in relation to appropriate standards for the portrayal of images, themes and messages relating to road safety.'

adstandards.com.au/sites/default/files/fcai_voluntary_advertising_code_of_practice.pdf

 

 

Alcohol and Influencer

 

The ABAC Responsible Alcohol Marketing Code. The ABAC Responsible Alcohol Marketing Code is designed to ensure that alcohol is marketed in a responsible manner. Signatories to the Code are committed to ensuring that their marketing complies with the Code’s spirit and intent. The Code complements Australian legislation, the AANA Code of Ethics and media-specific codes relevant to the placement of marketing. Application: (a) The Code applies to all marketing communications in Australia generated by or within the reasonable control of a marketer, except as set out in Section 2(b). This includes, but is not limited to: brand advertising (including trade advertising), competitions, digital communications (including in mobile and social media and user generated content), Alcohol Beverage product names and packaging, advertorials, alcohol brand extensions to non-alcohol beverage products, point of sale materials, retailer advertising, marketing collateral. Signatories here

www.abac.org.au/wp-content/uploads/2021/03/ABAC-Responsible-Alcohol-Marketing-Code-26-February-2021.pdf

 

The Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021. 'The Code of Practice has been created to elevate best practice across the influencer marketing community, protecting all concerned from reputational risk and legal action by not complying with Australian Consumer Law (ACL). The AiMCO Code of Practice has been developed from the feedback, information and discussions that have taken place across the influencer marketing ecosystem. AiMCO’s membership includes both corporate and content creator memberships. Corporate members are businesses and professional individuals from major advertising brands, media and creative agencies, talent representation, social and media marketing agencies, discovery platforms and industry providers such as legal firms. Find out who is a member of AiMCO on our Community Page.'

static1.squarespace.com/static/5f741c44029c373fe632e647/t/61541570a9213843c53d7adb/1632900464874/AIMCO_Code_Practice_August+2021.pdf

 

 

Channel 

 

ASTRA Codes of Practice (including Television and Radio). The Australian Subscription Television and Radio Association (ASTRA) is the peak body representing the subscription media industry in Australia. Members include television operators, independent content companies, technology companies and the industries that support them.  ASTRA manages codes of practice, and represents the industry with regulators and government:

www.astra.org.au/advocacy/codes-of-practice

 

Commercial Radio Code of Practice: This Code commences on 15 March 2017 and applies to all commercial radio broadcasting services operated by a Licensee:

commercialradio.com.au/CR/media/CommercialRadio/Commercial-Radio-Code-of-Practice.pdf

 

Commercial TV Code of Practice: 'Commercial free-to-air television content is regulated under the Commercial Television Industry Code of Practice. The Code is developed by Free TV Australia in consultation with the public and registered with the Australian Communications and Media Authority (ACMA). The Code regulates content in accordance with community standards; assists viewers in making informed choices about their own television viewing  and that of children in their care, and provides effective measures for receiving and handling viewer feedback and complaints. The Code contains provisions dealing with: program classifications; accuracy, fairness and respect for privacy in news and current affairs; advertising time on television; placement of commercials and program promotions; gambling advertisements; and complaints handling.'

www.freetv.com.au/content_common/pg-code-of-practice.seo

 

 

TRADE ASSOCIATIONS 

 

Courtesy of https://marketing.com.au/business-directories/marketing-industry-associations/

 

Australian Association of National Advertisers. The AANA represents the rights and responsibilities of companies and individuals involved in Australia’s $30 billion a year advertising, marketing and media industry. In the common cause of responsible advertising and marketing, the AANA today also serves to protect the rights of consumers in ensuring commercial communication is conducted responsibly within prevailing community standards. At a time of unprecedented change in advertising, marketing and media, the AANA provides ethical leadership, advocates continuous improvement in commercial communication practice, and promotes and protects freedom of commercial speech.

www.aana.com.au

 

Australian Marketing Institute (AMI). The leading organisation for marketing professionals in Australia. The Australian Marketing Institute’s record of service to the marketing profession goes all the way back to the institute’s origin in 1933. Over the intervening years we have continually evolved to meet the changing needs of marketers, delivering services to help members maximise their professional growth. Today the AMI represents professional marketers throughout Australia, including practitioners from all marketing functions and industries. Through our unified voice, the Institute has established strong links with business, academia and government to become the voice of the marketing profession. The AMI runs marketing training courses and holds a national conference each October and many local events throughout the year.

www.ami.org.au

 

Interactive Advertising Bureau. The Interactive Advertising Bureau (IAB) Limited is the peak trade association for online advertising in Australia and was incorporated in July 2010. As one of over 40 IAB offices globally, and with a rapidly growing membership, IAB Australia’s principal objective is to support and enable the media and marketing industry to ensure that they thrive in the digital economy. The role of the IAB is to work with its members and the broader advertising and marketing industry to assist marketers to identify how best to employ online as part of their marketing strategy, to better target and engage their customers and build their brands.

http://www.iabaustralia.com.au/

 

Australian Association of Social Marketing. 

https://aasm.org.au/

 

The Exhibition and Event Association of Australasia (EEAA) is 'the peak association for the exhibition and event industry in Australia and New Zealand, representing all aspects of the exhibition and event industry.' 

http://www.eeaa.com.au/

 

 

 

 

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International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

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

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

Downloaded:

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

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

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

 

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

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

 

ICC toolkits

 

 

IAB Europe

 

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

http://www.iabeurope.eu/

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

https://www.iabuk.com/goldstandard

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

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

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

 

 

ICAS

 

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

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

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

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

 

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

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

 

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

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

 

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

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

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

 

 

FEDMA

 

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

 

 

THE EU PLEDGE 

 

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

 

 

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

 

WFA

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

 

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

 

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

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

 

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

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

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

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

 

Article 29 Working Party/ EDPB

 

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

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

 

 

 

Key Directives in marketing communications

 

Privacy

 

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

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

 

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

 

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

E-commerce

 

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

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

 

Pricing

 

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

 

Commercial practices 

 

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

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

 

 

The Omnibus Directive 

 

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

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

 

Food Regulations

 

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

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

 

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

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

 

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

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

 

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

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

 

Audiovisual media 

 

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

 

 

 

 

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