Advertisers/ agencies should be aware of the WHO consultation on the first draft of the Global Alcohol Action Plan 2022-2030. The action plan will be considered by the 75th World Health Assembly through the Executive Board in 2022. The board has requested of the Director General 'to develop a technical report on the harmful use of alcohol related to cross-border alcohol marketing, advertising and promotional activities, including targeting youth and adolescents, before the 150th session of the WHO Executive Board, which could contribute to the development of the action plan.'

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

• The sentences above do not exclude others that may meet the purpose and are able to reflect social responsibility of advertising (from the Self-Regulatory Code, Resolution 3/08)
• Warning messages must be 'written legibly and prominently, shall be used sequentially either simultaneously or on a rotating basis, and in the latter case varying at most every five months' (Art. 3, Law 9.294)
• These messages apply to all alcoholic drink categories, except that in the case of beer the following applies: “Beer is an alcoholic beverage. Sale and consumption is prohibited to minors."
• Requirements for layout/ size etc. by medium are set out under individual headers under Channel Section C, or assembled here
• Exceptions are here

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 ecosystem. The 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

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

1. General Rule

• Since alcoholic beverage is a product for restricted consumption and improper for certain publics and situations, the advertising shall be structured in a socially responsible manner, without deviating from its major purpose of promoting the brand and its features, provided that the any imperative consumption appeal and the exaggerated offer of units of the product in any advertisement, either by text or image, directly or indirectly, including the slogan shall be prohibited

2. Principle of Protection to Children and Adolescents

• The advertising shall not have children and adolescents as target public. In view of such principle, the Advertisers and Agencies shall adopt special caution in the preparation of their marketing strategies and in the structuring of their advertising messages. Accordingly:

​

1. children and adolescents shall not appear, in any manner, in the advertisements; any person appearing in the ad shall be and look older than 25
2. the ads shall be exclusively addressed to adult public, and no indulgence as regards such principle shall be accepted. Accordingly, the content of the ads shall make clear that the product is improper for consumption by minors. The ads shall not contain any language, expressions, graphic and audiovisual resources recognizedly inherent to the infantile and juvenile’s universe, such as “humanized” animals, characters or animations that may call the attention or curiosity of minors and contribute for them to adopt moral values or habits incompatible with their minority condition
3. media planning shall consider such principle and, therefore, shall reflect the proper technical and ethical restrictions and caution. Accordingly, the ad may only be inserted in programming, publication or web site especially intended to persons of age. In case of any eventual difficulty to evaluate the prevailing public, a programming that better serves the purpose of protecting children and adolescents shall be adopted
4. websites of most products that fit into the category dealt with herein shall contain a provision for selective access, so as to prevent navigation by minors

3. Responsible consumption principle

1. any eventual appeal to sensuality shall not constitute the main content of the message; advertising models shall never be treated as sexual object
2. there shall appear no scene, illustration, audio or video that presents or suggests ingestion of the product
3. there shall be no use of images, language or arguments that suggest that consumption of the product is an indication of maturity or that contributes to higher personal courage, professional or social success or provides more seduction power to consumers
4. whenever there is the support of the image of a famous person, the same provisions of item 2 “a”, “b”, “c” and “d” of Exhibit “Q” – Testimony, Certifications and Endorsements – shall be applicable
5. no arguments shall be used or situations shall be presented that may make consumption of the product to look like a challenge or despise those who do not drink; no image or text that may disdain consumption moderation shall ever be used
6. the ad shall not give the impression that the product is being recommended or suggested by virtue of its effect on the senses
7. specific references to reduction of the alcoholic content of a product are acceptable, provided that there are no implications or conclusions concerning safety or quantity that may be consumed by virtue of such reduction
8. no positive association between product consumption and driving vehicles shall be made
9. consumption in improper, illegal, dangerous or socially condemnable situations shall not be encouraged
10. no association of the product with performance of any professional activity shall be made
11. no association of the product with situations that suggest aggressiveness, use of weapons and changes of emotional equilibrium shall be made; and
12. no use of uniforms of Olympic sports shall be made as support to promote a brand

5. Warning Clause

See also 1.5.

1. in Radio, the warning shall be inserted as the end of the commercial message
2. in TV, including Pay TV and Cinemas, the warning shall be inserted in audio and video as the end of the commercial message. The same rule shall be applicable to ads broadcast in theaters cinemas and similar
3. in Newspapers, Magazines and other printed means, in outdoors and advertising panels, and in the ads made through Internet, the warning shall be written in the manner to be adopted in the resolution
4. in videos broadcast through Internet and telephony, the warning shall follow the same restrictions adopted for TV
5. in packages and labels it shall be reiterated that sale and consumption of the product are indicated for persons older than 18 only

6. Outdoor advertising and similar

• Since they reach all ages without technical possibility of segmentation, the commercials broadcast in outdoors, indoors, places of heavy circulation, screens and electronic panels, back and front lights, building panels, busdoors, in collective transportation vehicles, vehicles used for distribution of the product; pieces of urban furniture and similar, etc, whatever the communication means and the support used may be, shall be restricted to exhibition of the product, brand and/or slogan, without consumption appeal, provided that the warning is included

7. Exceptions

• The following ads, provided that they have no product consumption appeal, are released from the mandatory insertion of the warning clause:

​

1. static advertisement in stadium, samba stadium (sambódromos), gymnasium and other sports arenas, when only the product, brand and slogan are identified
2. the mere expression of brand, slogan or exhibition of the product that uses competition means as support
3. calls of sponsored programs in radio and TV, including pay TV, including characterizations of sponsorship of such shows
4. rocket lines*, vignettes and similar (*these are best described as 'brand sound bites')

8. Commerce

• Whenever the advertisement broadcast by the wholesaler, importer, distributor, retailer, bar, restaurant and similar mentions any product subject to the provisions of this Exhibit, it will be subject to the rules established herein, especially those contained in item 5 hereof

10. Sales point

• The advertising in sales points shall be addressed to adult public, containing a warning that the product is destined only to adults. Any ads inserted in the service equipment, meaning tables, chairs, refrigerators, lighted panels, etc. are released from including the warning clause, provided that they do not contain consumption appeal

4.1. Self-Regulation; key extracts only

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)

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 

• Articles 18 and 19 ICC Code; see above or here
• ICC Statement on code interpretation and ICC reference guide on advertising to children here
• ICC toolkit: Marketing and advertising to Children (2017) here
• Framework for Responsible Food and Beverage Marketing Communications here
• WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children 
• For amalgamated ICC Code children’s provisions, from general provisions, data protection, and Digital Marketing Communications:
  http://www.g-regs.com/downloads/ICCChildrenCollection2018.pdf

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 

• ICC Framework for responsible marketing communications of alcohol here
• The International Alliance for Responsible Drinking (IARD) ‘Guiding Principles and Digital Guiding Principles
• In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
• World Federation of Advertisers; Responsible Marketing Pact (RMP) here
• Directive 2010/13/EU, the Audiovisual Media Services Directive (consolidated following amends from Directive 2018/1808)

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

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

Article 6

Misleading actions

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

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

Article 7

Misleading omissions

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

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

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

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

Annex I

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

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

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

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

(c) demonstrating a defective sample of it,

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

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

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

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

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

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

Article 9

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

4. all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited
5. audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
6. 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
7. 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

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 (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

LAW No. 9.294, OF JULY 15th 1996. Governs restrictions on the use and advertising of smoking products, alcoholic beverages, medicines, therapeutic remedies and pesticides, pursuant to the terms of Art. 220, § 4 of the Federal Constitution. This is the seminal law for alcohol marketing in Brazil, albeit the day-to-day regulation of alcohol advertising is the responsibility of Self-Regulation. Alcoholic beverages are defined under article 1 as  'potable beverages with an alcohol content greater than thirteen degrees Gay Lussac' (essentially the same as ABV). Article 3, Section 2 provides for 'warning messages' in alcohol advertising, and the core article 4 requires that TV and radio advertising is confined to the period between 9pm and 6am, the product may not be associated with with Olympic or competitive sports, with the healthy performance of any activity, or with the driving of vehicles and images or ideas of people’s increased success or sexuality. Labels on packaging of alcoholic beverages are to include Excess Consumption warnings. Article 5 exempts some marcoms from the warning message requirements and permits some limited forms within the restricted broadcast period. The Federal Court of the 4th Region of Rio Grande  on 11/12/2014 ruled that law 9.294 will define alcoholic beverages as those exceeding 0.5 degrees, which would bring in broadcast restrictions to, effectively, the whole market. It is not clear whether this decision applies beyond the jurisdiction of the 4th region:

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

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