Canada

Canada's regulatory regime is pretty familiar in the sense that it has a strong authority in Ad Standards (EN; FR), whose July 2019 Code of Advertising Standards and Interpretation guidelines form the key self-regulatory influence with a backdrop of federal consumer protection legislation in the Competition Act, together with provincial equivalents (which we address later), not unlike the US framework. There's 'good citizen' behaviour from some industries, such as the Beer Industry's Responsible Advertising and Marketing Code (March 2020) and Spirits Canada's Code of Responsible Advertising and Marketing (2018) FR, albeit alcohol advertising is also subject to legislation. Ad Standards offer pre-clearance in a number of the more sensitive categories and it's mandatory for food ads primarily directed to children. Check Mark feature here and Complaint case summaries are here.

So it's a recognisable landscape but with some important wrinkles, if landscapes have wrinkles, such as some particular arrangements for French-speaking Quebec (see below) and, unusually, some relatively broad environmental rules, in the sense that there's no environmental code per se (though there are self-regulatory guidelines - see No. 3 in the link - and upcoming developments from the statutory authority described here by Blakes and a sensitive attitude from the authorities to what is as much a high profile issue in Canada as it is elsewhere. Perhaps predictably in the Canadian cultural environment, that sensitivity extends into matters of representation and diversity. The Association of Canadian Advertisers publish a Diversity and Representation Guide (2021).

This October 2023 Advertising & Product Regulatory from Gowling LLG is an extremely helpful overview and includes e.g. a section (9) on Quebec where there are particularly tight rules on food advertising to kids especially. Likewise, Prohibited and Controlled Advertising in Canada from Miller Thomson/ Lex of March 2020 sets out some significant restrictions in the jurisdiction. The same company forms the content of Chambers and Partners' Advertising & Marketing 2023 Canada, last updated October 2023 and their checklist may also be helpful. Also worthy of note in this necessarily brief summary is the Competition Bureau's Advertising do's and don'ts and Deceptive Marketing Practices (Vol. 7 July 22, 2024). The Competition Bureau is 'an independent law enforcement agency that protects and promotes competition ... We enforce the Competition Act, Consumer Packaging and Labelling Act .... and will not hesitate to take action when business is not carried out in ways that are truthful, fair and legal. We work to protect and promote competition by...ensuring truth in advertising...'

Significant changes to strengthen the Competition Act become law
Competition Bureau Canada June 25, 2024

INFLUENCER MARKETING

There are at least two heavyweight influences in what is a high profile issue among Canada's marketing weaponry. The first from Ad Standards' Influencer Marketing Disclosure Guidelines (Update Fall 2023), which points to broader but relevant clauses in its general code linked above - clauses related to accuracy and clarity (1), disguised advertising techniques (2) and testimonials (7) - and sets out more specific requirements from both advertisers and influencers in conveying where there is a 'material connection' (the same expression used in the Competition Bureau's provisions linked below, so the two authorities are on the same page). Extracting from Ad Standards' Disclosure guidelines: 'Hashtags that have been recognized as clear and widely accepted include: #ad, #sponsored, #XYZ_Ambassador, #XYZ_Partner (where “XYZ” is the brand name).

As we have indicated, the above guidelines include a link to Volume 4 of the Competition Bureau's Deceptive Marketing Practices Volume 4 Influencer Marketing. This is also an extensive work which sets out the legal framework, provides checklists for both advertisers and influencers and points to the guidelines above, as well as The International Consumer Protection Network (ICPN) Online Reviews and Endorsement Guidelines. For a helpful summary of the two sets of rules and some additional requirements by sector and medium (e.g. YouTube), read New guidelines for influencer marketing #FullDisclosure from Smart & Biggar/ Lex November 30, 2023. Influencer marketing: How to keep your practices compliant from Miller Thomson/ Lex February 12, 2024 is more focused on the advertiser's compliance in light of updated guidelines. Finally, Influencer Marketing Research 2023 from Ad Standards is solid consumer research on the consumer perspective. The image below is an extract from the Competition Bureau's Vol 4.

CHILDREN AND FOOD AND DRINK PRODUCTS TO CHILDREN

Section 12 of the Code of Advertising Standards addresses advertising to children (defined under the CCFBA below as under 13 but in the Broadcast code, also below, as under 12): 'Advertising that is directed to children must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm.' Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act (emphasis ours).

Canada's system starts with pre-clearance of food commercials under the provisions of the Food and Drugs Act and the Canadian Food Inspection Agency's Food Labelling for Industry (CFIA Industry Labelling Tool). "The Code for the Responsible Advertising of Food and Beverage Products to Children (CCFBA; May 2023) sets rules for advertisers of food and beverage products, requiring a responsible approach to child audiences. The CCFBA starts with a prohibition: unless the food or beverage product in question meets specific nutrition criteria, the advertising may not be primarily directed to children. A companion document - the Guide for the Responsible Advertising of Food and Beverage Products to Children - helps advertisers understand its intended scope and application, and informs Ad Standards in its interpretation of the CCFBA. Advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in Appendix A (the “Restriction”)." Scope is extracted here; a child is defined as under 13; the code also prohibits advertising in elementary or middle schools. Ads that might reasonably be seen as primarily directed to children must be pre-cleared by Ad Standards.

Food advertising is also regulated under the The Food and Drug Act (EN; FDA) and the Safe Food for Canadians Act (SFCA); both measures provide broad rules, e.g. under Part I (3) of the FDA the prohibition of advertising 'any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1.' The SFCA provides inter alia 6 (1) 'It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.' Bill C-252 An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children) prohibits the advertising of 'prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.' Current (March 2024) status is second reading in the Senate.

Some lawyer commentary

Canada: Back to school essentials: Do’s and don’ts of advertising food to children in Canada

Baker McKenzie September 28, 2023

Blake's Bulletin on the CCFBA July 18, 2023, from which:

in 2016, the federal Minister of Health launched the Healthy Eating Strategy, a key component of which was to restrict food and beverage advertising to children. The same year, the Minister introduced Bill S-228, an Act to amend the Food and Drugs Act, which aimed to prohibit food and beverage marketing directed at children in the belief that these advertisements contribute to child obesity in Canada. Bill S-228 faced significant pushback on the basis that there was no evidence that exposure to specific types of food advertising contributes to obesity in children, and ultimately failed to be adopted in 2019 prior to the 2019 Canadian federal election. See above act amending the FDA.

Proposed policy on food advertisements directed to children in Canada
Miller Thomson/ Lex June 9, 2023

Includes Policy update on restricting food advertising primarily directed at children: Overview from Health Canada June 2023.

ENVIRONMENTAL CLAIMS

DLA Piper's Aug 2024 Environmental Advertising Claims Guide includes Canada

Bill C-59’s Expansion of the Competition Act’s Deceptive Marketing Practices

Blakes July 2, 2024 and Beveridge & Diamond July 9, 2024

Significant changes to strengthen the Competition Act become law
Competition Bureau Canada June 25, 2024. Their guide here

Act amendments require companies to back up environmental claims
Torys LLP June 21, 2024. Helpful overview

Ad Standards statement re LNG May 28, 2024

The picture on regulation of environmental claims is a little blurred and volatile at the time of writing (March 2024). The twin spokes of ad regulation - self-regulatory and statutory - are in the first instance not fully developed (only in the sense that there are no specific environmental claims rules per se - but solid 'general' rules that protect consumers from misleading claims of any kind) and in the second, rules are in evolution, more of which later in this section. So Ad Standards' Interpretation Guidelines #3 December 2021 states: 'When evaluating complaints involving environmental claims that allegedly are misleading or deceptive, Standards Council may, in exercising its judgment, take into account the guidance of the Competition Bureau (available here) and, where relevant, the ICC Framework for Responsible Environmental Marketing Communications (November 2021).

Historically, Standards Council has also referred to the Canadian Standards Association Special Publication PLUS 14021 (GRS note: the publication appears to be available only when accessed from within Canada) Environmental claims: A guide for industry and advertisers. This may continue to be a reference for Standards Council in the case of advertising in market prior to this update to Interpretation Guideline #3.

The Competition Bureau and ~~upcoming~~ new legislation

Significant changes to strengthen the Competition Act become law
Competition Bureau Canada June 25, 2024. Their guide here from which:

The changes also tackle unsupported environmental claims, commonly known as greenwashing, by:

Requiring that claims about the environmental benefits of a product be supported by adequate and proper testing (Bureau guidelines here)
Requiring that claims about the environmental benefits of a business or business activity be based on adequate and proper substantiation in accordance with an internationally recognized methodology. The Bureau is assessing the impact of these requirements and expects to provide guidance, in due course, that will offer transparency and predictability for the business and the legal communities in the enforcement of the law.

At December 2021, the Competition Bureau's position on Environmental claims and greenwashing is the linked paper. Per commentary below, this references the archived Environmental claims: A guide for industry and advertisers. 'The Guide may not reflect the Bureau’s current policies or practices and does not reflect the latest standards and evolving environmental concerns. The guide will remain available for reference, research and recordkeeping purposes, but it will not be altered or updated as of the date of archiving.'

Bill C-59 (link is to the charter statement Feb 1, 2024; the bill is here): An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023. The bill had its first reading November 30, 2023. See Blake's Bulletin of the same date. Division 6 of Part 5 – Measures Related to Competition would include several amendments to the Competition Act, one of which is 'Representations of a product’s benefits for the environment': ...The amendments would add, to the existing section dealing with representations to the public, a new form of reviewable conduct: a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effect of climate change that is not based on an adequate and proper test.' See above link to the new amends to the law

Commentary

Significant changes to strengthen the Competition Act become law
Competition Bureau Canada June 25, 2024. Their guide here

Increased scrutiny on greenwashing in Canada ushers in changing regulations
DLA Piper April 18, 2024

Marketing's dirty laundry ̶ greenwashing, climate washing and the growing legal risks of environmental marketing
Baker McKenzie/ Lex June 7, 2023. From which, a bit of contextual history:

'Historically, advertisers relied on the detailed enforcement guidelines (Environmental claims: A guide for industry and advertisers) published by the Competition Bureau of Canada ("Bureau"), originally developed together with the Canadian Standards Association, which provided extensive guidance on the use of individual environmental claims. However, concurrently with a major greenwashing enforcement action, those enforcement guidelines were formally archived in 2021. The Bureau has made clear that these guidelines no longer reflect its current enforcement position due to changes in standards and evolving environmental concerns. Since then, the Bureau has only made statements that give high-level guidance, such as, companies should ensure that the precise environmental benefits of a product are described.'

Green branding or greenwashing? Regulatory considerations
Smart & Biggar April 28, 2023. Covers all the bases.

COMPARATIVE ADVERTISING

From the Code of Advertising Standards 6. Comparative Advertising: Advertisements must not, unfairly, discredit, disparage or attack one or more products, services, advertisements, companies or entities, or exaggerate the nature or importance of competitive differences. and 9. Imitation: No advertiser shall imitate the copy, slogans or illustrations of another advertiser in such a manner as to mislead the consumer.

Ad Standards' library provides Guidelines for the Use of Comparative Advertising, albeit published 2012

New Guidance from the Federal Court regarding Comparative Advertising Claims in Canada from Bereskin & Parr LLP August 4, 2023 reports on the Energizer v Gillette case of July 2023, which is an important case but not necessarily dealing directly with comparative advertising per se as it concerned a) trademark infringement reviewed under the Trademarks Act section 22 No person shall use a trademark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto and b) the use of sticker labels on Duracell batteries. The judge also referred to the Competition Act section 52 when assessing whether a claim was 'false or misleading'. This provides - at least - interesting reading on how the courts interpret those provisions; see under the linked 'New Guidance' commentary the para headed 'false and misleading claims.' Section 7 of the Trademarks Act provides (in part): 'No person shall (a) make a false or misleading statement tending to discredit the business, goods or services of a competitor; (b) direct public attention to his goods, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his goods, services or business and the goods, services or business of another;'

AD CONTENT LEGISLATION

The Competition Act is the principal statute that covers marketing and advertising practices, as well of course as a great deal else, and equivalent to the UCPD in the EU or the FTC Act in the U.S. False or misleading representations are criminalised under 52 (1) 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.' Additionally, section 74.01 addresses a civil, reviewable offense of a slightly different form of misrepresentation, one related to a 'performance claim' a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof versus section 52's 'materially misleading' claim. It's as well also to be aware of The Trademarks Act, discussed above under the Comparative Advertising header.

Some commentary

Doing Business In Canada: Ads & Product Regulatory

Gowling WLG/ Lex October 15, 2024

Canadian Advertising Law: 2023 Year in Review.

Blake, Cassels & Graydon/ Lex Jan 10, 2024. Addesses Bill c-59 above

Canada's new Online Harms Act: what you need to know

Osler Hoskin & Harcourt LLP March 1, 2024

Competition Law and the Environment: Update
McCarthy Tétrault LLP Feb 14, 2024

The Food and Drug Act 'An Act respecting food, drugs, cosmetics and therapeutic devices.'

PART I General Prohibited advertising. 3 (1) 'No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1. Prohibited claims - animal testing 16.3 (1) No person shall make a claim on the label of or in an advertisement for a cosmetic that is likely to create an impression that the cosmetic was not tested on animals after the day on which this section comes into force unless the person has evidence that no such testing occurred after that day.'

There's a system of marketing authorisations for some food types.

Provincial legislation in Canada

Advertisers and agencies will generally look to the Federal Competition Act and the Code of Advertising Standards for advertising rules, but it's as well at least to be aware of provincial legislation as, similar to the US framework, local rules can be the first port of call if a suit is filed. Most if not all of the provinces administer their own consumer protection legislation and, for example, Ontario introduced in October the new Consumer Protection Act 2023; see Gowling WLG December 2023 commentary here. We don't set out provisions, however, as the Competition Act is broad and there's a strong self-regulatory authority and a less litigious environment versus the US. Additionally, much of the legislation is devoted to e.g. contract law and pricing regulation - important marketing issues but not directly ad related. State authorities, such as the Alcohol and Gaming Commission of Ontario, publish comprehensive Liquor Advertising Guidelines.

Legislative assemblies of Canadian provinces and territories

Provincial Statutes & Legislation

CHANNEL (I.E. PLACEMENT) RULES

Data Protection Overview OneTrust DataGuidance Jan 2024

Personal Information Protection and Electronic Documents Act (PIPEDA - S.C. 2000, c. 5)

Current federal privacy law; see below for developments. Taylor Wessing commentary here

Facebook breached obligations under PIPEDA Torys Sept 24, 2024

Canada's Anti-Spam Law (S.C. 2010, c. 23) about which:

Cookie Consent in Canada Cassie November 2022
Supreme Court rules reasonable expectation of privacy in IP address
Dentons/Lex March 20, 2024

Proposed changes to federal privacy legislation

On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA), (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.

TV and radio

Canadian Radio-television and Telecommunications Commission (CRTC), from which:

The CRTC doesn’t directly regulate advertising content, except advertising to children and alcohol ads;
Children: broadcasters must adhere to the Broadcast Code for Advertising to Children published by the Canadian Association of Broadcasters in cooperation with Advertising Standards Canada;
In Quebec, commercial advertising aimed at persons younger than 13 is generally prohibited. See the Office de la protection du consommateur;
Alcohol: Broadcasters can advertise alcoholic beverages, but must follow the 'New regulatory framework governing the broadcast of alcoholic beverages advertising' (Public Notice CRTC 1996-108) GRS note: the preceding linked paper is archived on the web. The CRTC also expects broadcasters that carry advertising for alcoholic beverages to report annually on how many alcohol-education messages they broadcast;
Drugs, medications and condoms: Health Canada has standards for advertising these products;
Ad clearance: advertising clearance is the process of previewing commercials to make sure they meet applicable standards. Advertising Standards Canada provides the service, but clearance is only mandatory for children’s advertising;
False and misleading ads: Broadcasters must meet the Canadian Association of Broadcasters’ Code of Ethics on advertising. If you think an ad is false or misleading, contact Advertising Standards Canada or the Competition Bureau at Industry Canada.

QUEBEC
https://en.wikipedia.org/wiki/Quebec

The Charter of the French Language - updated regulations

GALA August 26, 2024

French Language Requirements: Public Signs, Posters And Commercial Advertising Smart & Biggar September 2020;
Quebec’s Consumer Protection Act 'contains many provisions unique to that province, including total price advertising, restrictions on free trials, rules for advertising of premiums and other material conditions.' (from Miller Thomson's Prohibited and Controlled Advertising in Canada);
Title II Business Practices of the above linked Consumer Protection Act provides the restrictions indicated above with the core 'misrepresentation' clause being 219. 'No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer.'
Clause 248 provides: 'Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.'
Alcoholic beverage advertising is subject to pre-clearance in the province of Quebec by the provincial liquor, racing and gaming authority, who administer the Regulation on promotion, advertising and educational programs;
Quebec's Law 25 on data processing and privacy 'was adopted in September 2021 and came into effect in phases, with some key provisions fully implemented as of September 2023.' (Secure Privacy March 6, 2024). Cassie checklist here.

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SECTION A OVERVIEW

Updates since Nov 2022 (slimmed)

DLA Piper Global Influencer guide

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

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

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

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

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

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

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

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

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific

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

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

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

* Recommended read

New ICC Code September 19, 2024

Press release here and key changes here

French trans November 7, 2024, SW here

ISSUES/ NEWS/ COMMENTARY

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

REP November 20, 2024

TEMU challenged by CPC network (FR)

EC Digital Fitness Check published Oct 3, 2024

Lewis Silkin on above here (scroll down)

Recycling claims mislead consumers:

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

The AI Convention CSC Sept 12, 2024 here

EASA newsletter update AI legislation Aug 2024

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

AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024

EU AI Act: first regulation on artificial intelligence. June 2023

Visual summary of the EU's AI Act's risk levels here

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

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

Greenwashing in the EU, France and the UK

Addleshaw Goddard/ Lex November 11, 2024

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

Stichting Milieudefensie v. Shell. Freshfields November 6, 2024

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

The UK Guardian September 13, 2024

There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:

1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.

2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.

More lawyer commentary

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

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

Formosan Brothers October 4, 2024

UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024

Katjes 'Climate Neutral' & Green Claims Globally

Herbert Smith Freehills/ Lex July 10, 2024

Corporate & financial reporting and due diligence

CSDDD FAQs Proskauer October 4, 2024

FAQs on the implementation of the EU corporate sustainability reporting rules

From the Commission August 7, 2024. Ropes & Gray unpack them here

As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here

This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024

INFLUENCER MARKETING

Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024

This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.

The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:

The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.

The USA

In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:

Guides Concerning the Use of Endorsements and Testimonials in Advertising

Disclosures 101 for Social Media Influencers

FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform

In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.

India

ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.

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

The 2024 ICC Code is here:

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

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

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

1.2 Guidance and EASA

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

1.3 Structure and scope of the ICC Code

The latest ICC Code was published September 18, 2024

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

ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

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

Children

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

Lawyer commentary

Kids and Teens Online Safety and Privacy Roundtable

Baker Mckenzie July 26, 2023. Canada UK and USA. Video

EU: Two Key Decisions Highlight Issues When Handling Children's Data

Collyer Bristow/Lex 21 June, 2023

1.4 Sector and channel rules

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

2. THE LAW
European Regulations and Directives

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

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

European Directives in marketing
Issue or channel	Key European legislation and clauses
Cookies	The EU ‘Cookies Directive’ 2009/136/EC http://data.europa.eu/eli/dir/2009/136/oj articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC http://data.europa.eu/eli/dir/2002/58/oj
Electronic coms. Consent and Information	Directive 2002/58/EC on privacy and electronic communications Articles 5 (3) and 13
E-commerce; related electronic communications	Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj Articles 5 and 6
Marketing Communications	Directive 2005/29/EC on unfair business-to-consumer commercial practices http://data.europa.eu/eli/dir/2005/29/2022-05-28 Articles 6, 7, 14 (amendments re comparative advertising), Annex I December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
Audiovisual media	Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) http://data.europa.eu/eli/dir/2010/13/oj Directive 2018/1808 extended some rules into especially video-sharing platforms https://eur-lex.europa.eu/eli/dir/2018/1808/oj
Data Processing	Regulation 2016/679/EU on the processing of personal data (GDPR) https://eur-lex.europa.eu/eli/reg/2016/679/oj

THE DMA AND DSA IN EUROPE

Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.

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

Quinn Emanuel/ Lex October 10, 2024

DATA/ PRIVACY

Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section

See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic

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

Data Protection update - August 2024. Stephenson Harwood/ Lex

Above covers Australia, China, EU, UK, USA

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

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

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

EDAA launches new solution to DSA ad transparency requirements

THE OMNIBUS DIRECTIVE

Report from the Commission to the European parliament and the Council on implementation

June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)

Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.

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

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

COMPENDIA, FORECASTS, VADE MECUMS

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

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

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SECTION B CONTENT RULES

1. SELF-REGULATION

The Code of Advertising Standards (July 2019)

Interpretation guidelines

Influencer Marketing Disclosure Guidelines (Fall 2023)

The Food and Beverage Advertising Code (May 2023)

2. LEGISLATION

The Competition Act

The FDA and SFCA

Provincial legislation

SELF-REGULATION
Code of Advertising Standards

1. Accuracy and Clarity

In assessing the truthfulness and accuracy of a message, advertising claim or representation under Clause 1 of the Code the concern is not with the intent of the sender or precise legality of the presentation. Rather the focus is on the message, claim or representation as received or perceived, i.e. the general impression conveyed by the advertisement.

(a) Advertisements must not contain, or directly or by implication make, inaccurate, deceptive or otherwise misleading claims, statements, illustrations or representations.

(b) Advertisements must not omit relevant information if the omission results in an advertisement that is deceptive or misleading.

(d) Disclaimers and asterisked or footnoted information must not contradict more prominent aspects of the message and should be located and presented in such a manner as to be clearly legible and/or audible.

(e) All advertising claims and representations must be supported by competent and reliable evidence, which the advertiser will disclose to Ad Standards upon its request. If the support on which an advertised claim or representation depends is test or survey data, such data must be reasonably competent and reliable, reflecting accepted principles of research design and execution that characterize the current state of the art. At the same time, however, such research should be economically and technically feasible, with regard to the various costs of doing business.

(f) The advertiser must be clearly identified in the advertisement, excepting the advertiser of a “teaser advertisement” as that term is defined in the Code.

2. Disguised Advertising Techniques

No advertisement shall be presented in a format or style that conceals the fact that it is an advertisement.

3. Price Claims

(a) No advertisement shall include deceptive price claims or discounts, unrealistic price comparisons or exaggerated claims as to worth or value. "Regular Price", "Suggested Retail Price", "Manufacturer’s List Price" and "Fair Market Value" are deceptive terms when used by an advertiser to indicate a savings, unless they represent prices at which, in the market place where the advertisement appears, the advertiser actually sold a substantial volume of the advertised product or service within a reasonable period of time (such as six months) immediately before or after making the representation in the advertisement; or offered the product or service for sale in good faith for a substantial period of time (such as six months) immediately before or after making the representation in the advertisement.

(b) Where price discounts are offered, qualifying statements such as "up to", "XX off", etc., must be in easily readable type, in close proximity to the prices quoted and, where practical, legitimate regular prices must be included.

4. Bait and Switch

Advertisements must not misrepresent the consumer’s opportunity to purchase the goods and services at the terms presented. If supply of the sale item is limited, or the seller can fulfill only limited demand, this must be clearly stated in the advertisement.

5. Guarantees

No advertisement shall offer a guarantee or warranty, unless the guarantee or warranty is fully explained as to conditions and limits and the name of the guarantor or warrantor is provided, or it is indicated where such information may be obtained.

6. Comparative Advertising

Advertisements must not, unfairly, discredit, disparage or attack one or more products, services, advertisements, companies or entities, or exaggerate the nature or importance of competitive differences.

7. Testimonials

Testimonials, endorsements or other representations of opinion or preference, must reflect the genuine, reasonably current opinion of the individual(s), group or organization making such representations, and must be based upon adequate information about or experience with the identified product or service and must not otherwise be deceptive.

8. Professional or Scientific Claims

Advertisements must not distort the true meaning of statements made by professionals or scientific authorities. Advertising claims must not imply that they have a scientific basis that they do not truly possess. Any scientific, professional or authoritative claims or statements must be applicable to the Canadian context, unless otherwise clearly stated.

9. Imitation

No advertiser shall imitate the copy, slogans or illustrations of another advertiser in such a manner as to mislead the consumer.

10. Safety

Advertisements must not without reason, justifiable on educational or social grounds, display a disregard for safety by depicting situations that might reasonably be interpreted as encouraging unsafe or dangerous practices, or acts.

11. Superstitions and Fears

Advertisements must not exploit superstitions or play upon fears to mislead the consumer.

12. Advertising to Children

Advertising that is directed to children must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm. Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act.

13. Advertising to Minors

Products prohibited from sale to minors must not be advertised in such a way as to appeal particularly to persons under legal age, and people featured in advertisements for such products must be, and clearly seen to be, adults under the law.

14. Unacceptable Depictions and Portrayals

It is recognized that advertisements may be distasteful without necessarily conflicting with the provisions of this Clause 14; and the fact that a particular product or service may be offensive to some people is not sufficient grounds for objecting to an advertisement for that product or service.

Advertisements shall not:

(a) condone any form of personal discrimination, including discrimination based upon race, national or ethnic origin, religion, gender identity, sex or sexual orientation, age or disability;

(b) appear in a realistic manner to exploit, condone or incite violence; nor appear to condone, or directly encourage, bullying; nor directly encourage, or exhibit obvious indifference to, unlawful behaviour;

(c) demean, denigrate or disparage one or more identifiable persons, group of persons, firms, organizations, industrial or commercial activities, professions, entities, products or services, or attempt to bring it or them into public contempt or ridicule;

(d) undermine human dignity; or display obvious indifference to, or encourage, gratuitously and without merit, conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.

Interpretation guidelines
https://adstandards.ca/code/interpretation-guidelines/

1. Elements of Humour and Fantasy

2. Advertising to Children

3. Environmental claims

4. Alleged Infractions of Clauses 10 or 14: Motor Vehicle Advertising

5. Testimonials, Endorsements, Reviews

6. Scope of “government advertising”, “political advertising” and “election advertising”

7. Gender Portrayal Guidelines (ARCHIVED) Extract Since the themes identified in the document may still help advertisers to identify potential issues applicable to gender portrayal in advertising, the Gender Portrayal Guidelines are archived and not withdrawn at this time

Influencer Marketing Disclosure Guidelines (Fall 2023)
https://adstandards.ca/wp-content/uploads/AdStandards-Influencer-Guidelines-EN-2023-FIN.pdf

'This guide is the property of Ad Standards and may not be reproduced, in whole, or in part, without prior permission from Ad Standards.'

These are significant, recent and comprehensive guidelines so it's recommended that you click on the link above .

The Food and Beverage Advertising Code
https://adstandards.ca/wp-content/uploads/FoodAndBeverageAdvertisingCode-FINAL-20230505.pdf

The code is principally designed to frame requirements for advertising food and beverages to children: Advertising for a food or beverage product may not be primarily directed
to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in
Appendix A (the “Restriction”). We don't reproduce the appendix here as it's relatively complex and covers a number of different food types. Other restrictions (spelt out in full in the code) are:

1. No Advertising in Schools

2. No Product Placement/Restricted Product Integration

3. No Urging Children to Buy

'It is Ad Standards’ expectation that all advertising for food and beverages that could reasonably be considered to be primarily directed at children will be submitted for pre-clearance.'

LEGISLATION

The Competition Act

https://laws-lois.justice.gc.ca/eng/acts/c-34/FullText.html

False or misleading representations under 52 (1) 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.' It's as well also to be aware of The Trademarks Act, which will be referenced and interpreted in comparative advertising cases.

Bill C-59 had its first reading November 30, 2023. See Blake's Bulletin of the same date. Division 6 of Part 5 – Measures Related to Competition would include several amendments to the Competition Act, one of which is 'Representations of a product’s benefits for the environment': ...The amendments would add, to the existing section dealing with representations to the public, a new form of reviewable conduct: a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effect of climate change that is not based on an adequate and proper test.'

The Food and Drugs Act

'An Act respecting food, drugs, cosmetics and therapeutic devices'

https://laws-lois.justice.gc.ca/eng/acts/f-27/FullText.html

Amendment to the above

Bill C-252 An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children) prohibits the advertising of 'prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.' Current status is second reading in the Senate

The Safe Food for Canadians Act (SFCA); both measures (the FDA and SFCA) provide broad rules, e.g. under Part I (3) of the FDA the prohibition of advertising 'any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1.' The SFCA provides inter alia 6 (1) 'It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.'

Provincial legislation

Most if not all of the provinces administer their own consumer protection legislation and, for example, Ontario introduced in October the new Consumer Protection Act 2023; see Gowling WLG December 2023 commentary here. We don't set out provisions, however, as the Competition Act is broad and there's a strong self-regulatory authority and a less litigious environment versus the US. Additionally, much of the legislation is devoted to e.g. contract law and pricing regulation - important marketing issues but not directly ad related. State authorities, such as the Alcohol and Gaming Commission of Ontario, publish comprehensive Liquor Advertising Guidelines.

Legislative assemblies of Canadian provinces and territories

Provincial Statutes & Legislation

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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

SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

1.2. Environmental claims

1.3. Children and young people

1.4. Food and Beverages

1.5. Alcohol

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

2.3. The AVMS Directive

2.4. The Empco Directive

2.5. The Green Claims Directive

1. SELF-REGULATION; THE ICC CODE
The 11th edition of the ICC Code was published September 2024.
We show additions/amends in italics together with the previous versions, so you can see developments
We have not included e.g.scope, definitions, for reasons of space; these are often important and should be checked

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, environmental 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.~~
No communication should in the content and manner made undermine the public’s trust and confidence in marketing communications.

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 respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, physical attributes, mental health, disability, or sexual orientation. Marketers are encouraged to be mindful of diversity and inclusion (see ICC guidance on diversity and inclusion in advertising, 2023) and seek to avoid stereotypes and objectification. Explanation Stereotyping is the practice of referring to or playing on an oversimplified and untrue notion of a particular group, sometimes employing archetypal traits. Objectification means representing people not as persons or individuals but as objects of sexual or other templating character.
No marketing communication should be associated with corrupt practices (See ICC Rules on Combatting Corruption which defines in Part 1 “Corruption” or “Corrupt Practice(s)” as used in these rules shall include bribery, extortion or solicitation, trading in influence and laundering the proceeds of these practices) of any kind.
Marketers should take due account of the ICC Rules on Combating Corruption and other ICC anti-corruption tools

Marketing communications should not:

without justifiable reason play on fear or exploit misfortune or suffering;
appear to condone or incite violent, unlawful anti-social behavior or animal abuse;
appear to encourage or condone irresponsible use or harmful behaviour;
play on superstition;
marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards concerning climate change, sustainable and environmentally responsible behaviour;
they should respect the principles set out in Chapter D on environmental claims in marketing communications and be mindful of the ICC Framework for Responsible Environmental Marketing Communications

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.~~
Marketing communications should not contain anything which offends standards of decency currently prevailing in the country and culture concerned and strive to respect social norms and tradition;
Marketing communications should not incite or condone hate speech by using elements associated to it, such as false testimonials or endorsements, conspiracy theories, or other means to circulate harmful content

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.~~
Marketing communications should be structured in a way that does not take advantage of consumer trust or exploit their inexperience or limited understanding;
Relevant factors that can affect consumers’ decisions should be communicated in a manner and at a time that allows them to consider them effectively;
High-pressure marketing tactics which might be construed as harassment or hamper consumer choice, should not be used;
Marketing communications should not abuse the trust of consumers by using deceptive practices or spreading disinformation using elements such as false testimonials or endorsements, conspiracy theories, such as bait and switch or clickbait. Nor should they knowingly support, engage in, facilitate or fund illegal activities. See ICC Statement on Misplaced Digital Ads.

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:
Marketing communications should not contain any claim likely to mislead the consumer, regardless of how it is conveyed – by text, sound, visual elements or any combinations thereof – and regardless of how the misleading effect occurs – directly or by implication, omission, ambiguity or exaggeration. The combination of elements used in a marketing communication provides the net impression of a claim and control how it is interpreted. This applies especially, but is not limited to:
- characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as the nature, composition, method and date of manufacture, range of use, efficiency and performance, benefits, quantity, commercial or geographical origin or environmental, social or economic impact;
- the value of the product, ~~and~~ the total price and taxes to be paid by the consumer;
- terms for the delivery, provision, exchange, return, repair and maintenance;
- terms of guarantee;
- ~~copyright and industrial property rights such as patents, trade marks, designs and models and trade names;~~
- the full provision, activation or automatic renewal of a subscription or service, copyright and industrial property rights such as patents, trademarks, designs, models, trade names and other distinguishable marks;
- ~~compliance with standards;~~ compliance with certification and standards or any other use of quality marks, logos (e.g. environmental, sustainable) or recognition symbols;
- official recognition or approval, awards such as medals, prizes and diplomas;
- sponsorship, agreement or cooperation with a particular company or brand;
- the extent of benefits for charitable causes;
- respect of human rights or sustainable behaviour.

Audiovisual materials such as photos, video, sounds or other illustrations that are likely to mislead the consumer with regard to either a product’s characteristics, performance, benefits, quality and effects to be expected, or the association of a person or organisation with the product, should not be used, including where these are misleading because they have been altered or enhanced (e.g. AI generated or by so-called photo and video editing);
Communications that reflect specific commitments or goals that are aspirational in nature and not likely to be met until many years in the future (e.g. carbon negative, climate positive, diversity, equality, well-being etc.) require that the company is able to demonstrate, in concrete terms, that it has a reasonable capacity and methodological approach to meet such a commitment. Qualifiers should be included if elements or impacts will occur in the future.

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.
Marketers should have a reasonable basis for making claims relating to verifiable facts at the time the claim is made. Claims that state or imply that a particular level or type of substantiation exists should have at least the level of substantiation advertised. Supporting documentation should be provided promptly upon request to the self-regulatory organisations responsible for the application and enforcement of the Code. The standard of proof required generally depends on factors such as the type of claim, the product, the consequences of a false claim and the benefits of a truthful claim;
Substantiation should be based on documentation, tests or other factual evidence that is valid, reliable and sufficiently precise to support the claim made. In the absence of required substantiation, the claim would be regarded as misleading.
Regarding substantiation of environmental claims, see Article D1.

Identification clauses

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.
Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content;
Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers;
Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.;
In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

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 or misuse any label, symbol, logo, or seal to that effect.

Promotional terms/ dark patterns

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

The term "free", e.g. “free gift”, "free trial", 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~~
- where the only obligation is to pay the delivery costs which should not exceed the cost estimated to be incurred by the marketer, should be disclosed upfront, 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 e.g. an introduction at reduced price 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.

NEW ARTICLE

Presentation of the offer (Art. 11)

The terms and conditions of any offer including the identity of the marketer, full name and address along with information on how to ask questions or lodge complaints should be transparent to consumers. There should be a clear process which leads to the necessary steps to place an order, purchase, conclude a contract or any other commitment. 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 an extensive presentation;
Offers should not be presented in a manner that conceals or obfuscates material factors, e.g. price, additional costs, availability or other essential sales conditions, likely to influence consumers’ decisions;
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. When an offer involves different choices those should be clear and unambiguous, and their consequences easy to understand for consumers;
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. For offers involving promotional items, see Chapter A: Sales Promotion;
Before making any commitment, consumers should be able to easily access the information needed to understand the exact nature of the product and all conditions of the offer, as well as their rights and how to exert them. Marketing communications inviting consumers to contact the marketer for further information of an offer should be transparent on the cost of communications therefore (see also Article C4);
Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order. The fulfilment of any obligation arising from the offer should be prompt and efficient.

NEW ARTICLE
Automatic renewals (Art.12)

Advertising and marketing materials should clearly indicate when products are available as an automatic renewal rather than a one-time purchase. (See ICC Principles on Automatic Subscription Renewals. Essentially, marketers should obtain consumers’ consent to the material terms of an automatic renewal at the start of the contract);
The communication should not be misleading as to how the mechanism works or its consequences. The terms of renewal should be easily accessible for consumers before making any purchase. Where an automatic renewal begins with a free trial or other introductory offer Article 10 applies.

NEW ARTICLE
Use of “guarantee” (Art. 13)

Marketing communications should not state or imply that a “guarantee”, “warranty” or similar terms, provide extra consumer rights additional to those provided by law unless they genuinely do. The terms of any guarantee or warranty, including the guarantor’s name and address, should be easily available to consumers and limitations on consumer rights or remedies, where permitted by law, should be transparent and prominently visible.

Comparative and competitive

Comparisons (Art. 14)

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.
Marketing communications containing comparisons should be carefully designed so as not to mislead and should comply with the principles of fair competition. Points of comparison should be based on verifiable facts. Product or price advantages that are demonstrable per se should not be exaggerated or overdramatised. Comparisons should be clear whether they are to a competitor’s product or to another version of the same product.

Exploitation of goodwill (Art. 15)

Marketing communications should not make unjustifiable or unauthorised 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 obtaining 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
Marketing communications should not imitate another marketer’s work in a manner that is likely to mislead or confuse the consumer. This includes similarities in general layout, text, slogan, visual treatment, music or sound effects;
Where a marketer has established a distinctive marketing communications campaign in one or more markets, other marketers should not imitate that campaign in other markets where the original marketer might operate. This will consequently prevent blocking the expansion of the campaign to those markets within a reasonable period of time.

Denigration (Art. 17)

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/ Influencers

~~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.~~

Testimonials and endorsements; influencer marketing communications (Art. 18)

18.1 General principles. Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant. Testimonials or endorsements, including influencer marketing communications, which have become obsolete or misleading through passage of time should not be used. The sponsored nature of a testimonial or endorsement should be made clear through an appropriate disclosure if the form and format of the communication would not otherwise be understood to constitute a sponsored message;
18.2 Influencer marketing communications. All influencer marketing communications (including promotions of an influencer’s own products) should be designed and presented in such a way that it is immediately identifiable as such. Identification should be appropriate to the medium and message, particularly in the context of social media. Marketers and their influencers, as well as creators, should ensure the content is properly presented as marketing communications in accordance with the principles of identification and transparency (see Article 7). Content uploaded concerning third parties constitutes a marketing communication only if the influencer has received some form of compensation from the brand, whether financial or through other arrangements and this should be immediately clear from the context or the content. Each time the communication is shared, the connection between the marketer and the influencer should be transparent. Affiliate links to products on external third-party websites should be disclosed as such and their commercial nature transparent. In addition to the provisions in Article 7, identification disclosures should not be obscured by or hidden among other content. General disclosures on websites, in the terms and conditions at the end of a piece of content, buried in a string of hashtags, or in the ‘see more’ section are not sufficient. Marketers should make sure that influencer marketing communications posted on their behalf include relevant qualifiers or statements to avoid misleading consumers about the standards, qualities, attributes, costs or other features of the product involved. Influencers should not create social media posts or other messages alleging the content is sponsored by a business when they have no agreement with the brand. Such false statements should be regarded as marketing communications promoting the influencer’s own activity or brand, and hence as misleading (see Article 5);
18.3 Use of minors When the influencer is a minor (The term “minors” here refers to persons of such age that they, under the applicable law, lack legal capacity to enter into a binding agreement, e.g. an influencer contract with a marketer), marketing communications should be based on a contract providing for explicit parental or guardian consent and protecting the minor against any undue exploitation;
Marketers should respect the requirements set out in Chapter E concerning the privacy of children, teens and minors;
Marketing communications should clearly disclose the connection to the marketer, including if relevant, that the minor is receiving economic or other compensation. All content featuring minors should be age-appropriate and free from inappropriate products, language, themes, or behaviour; further on the special responsibility for children and teens, see Chapter E.

Portrayal or imitation of persons and references to personal property (Art. 19)

Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained from that person; 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.

Children/ teens

NEW ARTICLE

Children and teens (Art. 20)

Special care should be taken in marketing communications directed to or featuring children or teens. Marketing communications should not exploit the natural credulity of children or the lack of experience of teens and should not strain their sense of loyalty. In directing marketing communications to children and/or teens, the principles of this Code should be applied with due regard to the age and other characteristics of the actual target group, their differing cognitive abilities, and developing personal privacy rights independent of parents or guardians.;
Marketers should respect standards and laws prohibiting the marketing of products that are subject to age restrictions such as alcoholic beverages, gambling and tobacco to minors (The term minor here refers to those below the legal purchase age, i.e. the age at which national legislation permits the purchase or consumption of such restricted products. In countries where purchase age and consumption age are not the same, the higher age applies in relevant markets).

For further specific rules, see Chapter E – Children and teens.

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

Safety and health (Art. 21)

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 and/ or health 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, sound, text or a combination of these.

NEW ARTICLE

Data protection and privacy (Art. 22)

We haven't set out this article as it's a channel rule and well covered elsewhere, largely by the law

NEW ARTICLE

Unsolicited products and undisclosed costs (Art. 23)

Marketing communications associated with the practice of sending unsolicited products to consumers who are then asked for payment (inertia selling), including statements or suggestions that recipients are required to accept and pay for such products, should not be used;
Marketing communications which solicit a response constituting an order for which payment will be required (e.g. an entry in a publication) should make this unambiguously clear;
Marketing communications soliciting orders should not be presented in a form which might be mistaken for an invoice, or otherwise falsely suggest that payment is due;
For specific rules on respecting consumers’ wishes, see Chapter C, Article C6.

Articles 24-26, which complete the General Provisions section, are not included here as they are largely procedural

1.2. Environmental Claims from Chapter D of the
ICC Advertising and Marketing Communications Code (2024)

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 means any statement, symbol, sound, or graphic that indicates or implies an environmental aspect of a product, a component or ingredient of it, packaging or constituent of it, or an activity, facility or operation. The full scope and application of Chapter D has been extracted here

Article D1. Substantiation

All express or implied environmental claims should be substantiated by reliable scientific evidence11.(TT Reliable scientific evidence is the type of evidence likely to be recognised by experts in the field. Such evidence may, depending on the claim, consist of tests, analyses, calculations, studies, reports, surveys or other information) Care should be taken to assure that the substantiating data relied upon reflects the relevant product or activity and the claimed environmental aspects, attributes or performance featured in the marketing communication;
To substantiate aspirational claims or claims expressing goals or commitments related to achieving certain environmental metrics in the future, a marketer should be able to demonstrate that it has reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
As described in Article 6 of the Code, marketers need to monitor and review environmental claims regularly to ensure ongoing compliance, accuracy, and relevance. Typically, reliable scientific evidence, such as test data, analyses, studies and other documentation, are required to meet this standard;
See the Framework for further details on substantiation.

D2. Honest and truthful presentation

Environmental marketing communications should be so framed so as not ~~to abuse~~ to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;

D2.1 Marketing communications should not contain any ~~statement or visual treatment~~ environmental claims which are likely to mislead consumers in any way about the environmental aspects or advantages of ~~products~~ what's being communicated or about actions being taken by the marketer in favour of the environment.
~~Overstatement of~~ Marketing communications should not overstate environmental attributes, such as highlighting a marginal improvement as a major gain, or using statistics in a misleading manner, e.g. “we have doubled the recycled content of our product” when there was only a small percentage of recycled content used 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~~ specific focus of the marketing communication e.g. the products or activities in question. This should relate only to aspects or attributes that already exist or are likely to be realised during a 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 or aspect of the product, or its packaging or a specific ~~ingredient~~ constituent of the packaging or the marketer’s facilities or operations. 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; Aspirational claims should have reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
Improvements related to a product and its packaging should normally be presented separately, and not be combined in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient or element of the product, or the packaging or constituent of the packaging;
A claim concerning a combination of elements such as packaging and product combination can only be made if it really concerns both. This would not be the case, for example, if the claim only concerns the product packaging and the significant impacts of the packaging and product combination are different from the significant impacts of the packaging alone. Claims concerning a combination of elements, for example, inclusion of recycled content in a product or product packaged in compostable packaging, should both be supported by appropriate scientific evidence and qualified as needed to properly convey relevant limitations (e.g. our products include 20% recycled content and our packaging is compostable in industrial facilities, which are limited and may not be available near you);
Marketing communications that refer to specific environmental claims should not imply, without appropriate substantiation, that they extend to the whole performance of a product, company, group, sector, or industry. Such specific claims should be qualified as needed to avoid a misleading impression, i.e. if the limited nature of the claim is not otherwise clear from the claim itself or the context in which the claim is presented, then the claim should be appropriately qualified;
A pre-existing but previously undisclosed aspect should not be presented as “new”;
Environmental claims should not state or imply that reductions or benefits required by law or mandatory standards are voluntary.

D 2.2 Vague or general, non-specific claims

Vague or general non-specific claims of environmental benefit~~, which~~ may convey a range of meanings to consumers. Such claims 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;~~
Special care should be taken before claiming sustainability achievements. Marketers should be cognisant of ongoing work to establish relevant methods to measure and validate sustainability. Relevant limitations should be made clear. An unqualified “sustainability” claim may be understood to involve company actions beyond efforts to reduce environmental impacts, depending on the context. Claims may be perceived as stating or implying that they involve social and economic impacts, such as support for fair working conditions, diversity and inclusion, communities, or charities, or the like, as well. Hence, marketers making sustainability claims should be mindful that consumers may take away a broader corporate social responsibility message. Marketers should evaluate relevant substantiation for such messages and consider whether claims should be qualified accordingly;
A specific claim about individual environmental attributes supported by reliable scientific evidence could be linked to a claim of “sustainability” (for example, “this part of our product is sustainable because it’s made of 100% post-consumer recycled content and is recyclable”); however, marketers should not state or imply that an entire product, facility or operation is “sustainable” without qualification simply because it has some positive environmental benefits.

D 2.2 Qualifications

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~~ understood together;
There may be circumstances where it is appropriate to ~~use a qualifier that refers a consumer to a~~ refer a consumer to a QR code or 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~~ only in some communities, visit [URL] to check on if there are facilities near you,” provides both the relevant qualifier (that available recycling facilities are limited) plus a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.

D3. Scientific research

Marketing communications should use technical demonstrations or scientific findings about the environmental impact of what's advertised only when they are backed by reliable scientific evidence;
In line with article 9, environmental jargon or scientific jargon or terminology is acceptable provided it is relevant to the claimed environmental performance and used in a way that can be readily understood by those to whom the message is directed;
An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence. Also, such claim may require different reliable scientific evidence as they relate to aspects other than the environment, see Article D6.

D4. Comparisons

Any comparative claim should be specific and the basis for the comparison should be clear and understandable to reasonable consumers. Environmental superiority over competitors should be claimed only when an ~~significant~~ advantage can be demonstrated. ~~Products being compared~~ Whatever is being compared in a marketing communication 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 and whether it relates to the overall benefit or a specific benefit;
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.

D5. Product life-cycle

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 full life cycle analysis (cradle to grave). If an alternative lifecycle analysis is used (e.g. cradle to gate), the more limited scope of that lifecycle analysis should be disclosed;

Article D6 – Claims regarding components and elements

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~~ meaningful 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~~. Such claims could be justified if they respond to potential misperceptions about the use of the identified component, ingredient, feature, or impact. If so, qualifiers may be needed to avoid consumers being misled about the nature of the product, process, activity etc.Conversely, generic features or ingredients, which are common to all or most products in the category concerned, or required by law, standards or otherwise, 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;
When the absence of a certain component or ingredient is claimed, directly or implicitly, to offer an environmental benefit versus another product, the general rules on comparisons apply, see Article D4 and General Provisions Article 14.

D7. Certifications, signs and symbols

Environmental signs, logos, labels, 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 or when compulsory by law. Such ~~signs and symbols~~ marks 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.

D8. Environmental attribute claims

Environmental claims referring to a product’s makeup or constituents (for example, made with recycled or renewable content) or waste handling (for example, recyclable or compostable), should truthfully represent the attributes of the advertised product based on reliable scientific evidence as set out in Article D1. A product claimed to involve recycled or renewable content that is made from less than substantially all recycled or renewable content should avoid any risk of misleading consumers, e.g. by disclosing the percentage. A product claimed to be recyclable or compostable should disclose the extent of availability of these disposal methods if availability is limited;
Marketing communications that include compostability claims should disclose if a product is compostable only in industrial settings, and if so, whether facilities are limited, or if the resulting compost is subject to any use limits. A claim that a product’s packaging is refillable, or reusable should provide handling instructions to maintain safety.

D9. Responsibility

For this chapter, the rules on responsibility laid down in the general provisions apply (see article 24).

Additional guidance

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides a non-exhaustive checklist of additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim;
Additional information and guidance relating to responsible environmental marketing is provided via the Marketing Communications section on the ICC website.

1.3. Children (12 and under) and young people (U18)

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

We have not set out individual clauses below, therefore.

Applicable self-regulation

Article 20 from the General Provisions of the iCC Code above and Chapter E; 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

1.4. Food and Beverages (i.e. soft drinks)

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 (EN)
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

1.5. Alcohol

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 (EN)
The International Alliance for Responsible Drinking (IARD) ‘Guiding Principles (2012) and Digital Guiding Principles
In September 2021, IARD published Global standards for Influencer 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:

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

2. THE LAW

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

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)

Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.

Guidance

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

Article 6. Misleading actions

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

(a) the existence or nature of the product;

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

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

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

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

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

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

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

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

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

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

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

(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.

Article 7. Misleading omissions

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

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

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

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

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

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

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

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

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

(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.

4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.

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

6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.

ANNEX I

Commercial practices which are in all circumstances considered unfair

Marcoms-relevant only; see Empco amends below

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

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

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

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

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

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

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

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

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

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

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

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

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

11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.

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

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

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

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

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

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

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

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

23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.

23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.

Aggressive commercial practices

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

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

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

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. Specific pricing measures

2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

Article 2

For the purposes of this Directive:

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

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

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

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

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

Article 3

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

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

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 6a

1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.

2.2.2. Extracts from UCPD re pricing

Article 6

Misleading actions

(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;

Annex I

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

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

2.3.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

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

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

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

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

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

2.4. The Empco Directive
https://eur-lex.europa.eu/eli/dir/2024/825/oj
In force from March 2024, meaning that member states have until September 2026 to implement

Article 1

Amendments to Directive 2005/29/EC

(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:

‘(o) “environmental claim” means any message or representation which is not mandatory under Union or national law, in any form, including text, pictorial, graphic or symbolic representation, such as labels, brand names, company names or product names, in the context of a commercial communication, and which states or implies that a product, product category, brand or trader has a positive or zero impact on the environment or is less damaging to the environment than other products, product categories, brands or traders, or has improved its impact over time;
(p) “generic environmental claim” means any environmental claim made in written or oral form, including through audiovisual media, that is not included on a sustainability label and where the specification of the claim is not provided in clear and prominent terms on the same medium;
(q) “sustainability label” means any voluntary trust mark, quality mark or equivalent, either public or private, that aims to set apart and promote a product, a process or a business by reference to its environmental or social characteristics, or both, and excludes any mandatory label required under Union or national law;
(r) “certification scheme” means a third-party verification scheme that certifies that a product, process or business complies with certain requirements, that allows for the use of a corresponding sustainability label, and the terms of which, including its requirements, are publicly available and meet the following criteria:

(i) the scheme is open under transparent, fair, and non-discriminatory terms to all traders willing and able to comply with the scheme’s requirements;
(ii) the scheme’s requirements are developed by the scheme owner in consultation with relevant experts and stakeholders;
(iii) the scheme sets out procedures for dealing with non-compliance with the scheme’s requirements and provides for the withdrawal or suspension of the use of the sustainability label by the trader in case of non-compliance with the scheme’s requirements; and
(iv) the monitoring of a trader’s compliance with the scheme’s requirements is subject to an objective procedure and is carried out by a third party whose competence and independence from both the scheme owner and the trader are based on international, Union or national standards and procedures;

(s) “recognised excellent environmental performance” means environmental performance compliant with Regulation (EC) No 66/2010 of the European Parliament and of the Council (*2) or with national or regional EN ISO 14024 type I ecolabelling schemes officially recognised in the Member States, or top environmental performance in accordance with other applicable Union law;
(t) “durability” means durability as defined in Article 2, point (13), of Directive (EU) 2019/771;
(u) “software update” means an update that is necessary to keep goods with digital elements, digital content and digital services in conformity in accordance with Directive (EU) 2019/770 of the European Parliament and of the Council (*3) and Directive (EU) 2019/771, including a security update, or a functionality update;
(v) “consumable” means any component of a good that is used up recurrently and that needs to be replaced or replenished for the good to function as intended;
(w) “functionality” means functionality as defined in Article 2, point (9), of Directive (EU) 2019/771.

(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:

‘(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, environmental or social characteristics, accessories, circularity aspects, such as durability, reparability or recyclability, 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.’;

(b) in paragraph 2, the following points are added:

‘(d) making an environmental claim related to future environmental performance without clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan that includes measurable and time-bound targets and other relevant elements necessary to support its implementation, such as allocation of resources, and that is regularly verified by an independent third party expert, whose findings are made available to consumers;
(e) advertising benefits to consumers that are irrelevant and do not result from any feature of the product or business.’;

(3) in Article 7, the following paragraph is added:

‘7. Where a trader provides a service which compares products and provides the consumer with information on environmental or social characteristics or on circularity aspects, such as durability, reparability or recyclability, of the products or suppliers of those products, information about the method of comparison, the products which are the object of comparison and the suppliers of those products, as well as the measures in place to keep that information up to date, shall be regarded as material information.’;

(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:

(1) the following point is inserted:

‘2a. Displaying a sustainability label that is not based on a certification scheme or not established by public authorities.’;

(2) the following points are inserted:

4a. ‘Making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance relevant to the claim.
4b. Making an environmental claim about the entire product or the trader’s entire business when it concerns only a certain aspect of the product or a specific activity of the trader’s business.
4c. Claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions.’

(3) the following point is inserted:
‘

10a. Presenting requirements imposed by law on all products within the relevant product category on the Union market as a distinctive feature of the trader’s offer.’;

(4) the following points are inserted:

‘23d. Withholding information from the consumer about the fact that a software update will negatively impact the functioning of goods with digital elements or the use of digital content or digital services.
23e. Presenting a software update as necessary when it only enhances functionality features.
23f. Any commercial communication in relation to a good containing a feature introduced to limit its durability despite information on the feature and its effects on the durability of the good being available to the trader.
23g. Falsely claiming that under normal conditions of use a good has a certain durability in terms of usage time or intensity.
23h. Presenting a good as allowing repair when it does not.
23i.Inducing the consumer to replace or replenish the consumables of a good earlier than necessary for technical reasons.
23j. Withholding information concerning the impairment of the functionality of a good when consumables, spare parts or accessories not supplied by the original producer are used, or falsely claiming that such impairment will happen.’.

2.5. The Green Claims Directive

More formally, Proposal for a Directive on substantiation and communication of explicit environmental claims. The proposal aims to:
Make green claims reliable, comparable and verifiable across the EU; protect consumers from greenwashing; contribute to creating a circular and green EU economy by enabling consumers to make informed purchasing decisions; help establish a level playing field when it comes to environmental performance of products;
The Commission pages on the proposal are here; the draft directive itself is here. The directive is likely to be agreed in parliament by the end of 2024

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SECTION C: TV & RADIO/ AV

CONTEXT AND KEY RULES

The self-regulatory and statutory rules set out under our earlier content section B apply, except those that are specific to non-broadcast (e.g. some online rules). In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;
The Canadian Radio-television and Telecommunications Commission (CRTC) is the relevant authority; this is what they do. 'The CRTC doesn’t directly regulate advertising content, except advertising to children and alcohol ads.'
CRTC publish Commercials on TV and Radio; from that, here is the page on their advertising content rules;
Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. CRTC state that clearance is mandatory for children's advertising;
Broadcasters can advertise alcoholic beverages, but must follow the 'regulatory framework governing the broadcast of alcoholic beverages advertising (Public Notice CRTC 1996-108,' which can be found here, albeit archived on the web); See also Ad Standards Canada's Alcoholic Beverage Clearance Guide (2020);
Sponsorships and contra advertising are permitted; ditto (as far as we can establish) product placement, and will be subject to rules restricting e.g. alcohol, children (especially food and beverages to children);
Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act.

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SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

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 (EN 2024), 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)
2024 amends shown in italics

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~~ unless the sponsor is legally allowed to be the ~~programme~~ producer ~~or co-producer~~, media owner or ~~financier~~ funder;
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 and in social media, including any influencer involvement ~~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 italics 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:

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

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

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
Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
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
Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

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

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

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

Article 4a is found here

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The self-regulatory and statutory rules set out under our earlier content section B apply in these media. In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;
We were unable to trace any rules specific to cinema (Cineplex blocked our website access request on security grounds), though we expect that the traditional age-related rules will apply for e.g. alcohol advertising, which is also subject to statutory provincial requirements for example from the Ontario Alcohol and Gaming Commission, section 4: advertisements may not appear in magazines targeted specifically at people under the legal drinking age (LDA is 18 in Alberta, Manitoba and Quebec, and 19 in the rest of the Canadian provinces and territories) or run in conjunction with movies where the intended age of the audience is under the legal drinking age;
The Code for the Responsible Advertising of Food and Beverage Products to Children (CCFBA; May 2023) will also apply in cinema; the code applies 'in any media'; as a reminder: Advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria in Appendix A
The same section also prohibits the placing of stationary outdoor advertising within 200 metres of a primary or secondary school;
In the context of any 'native' advertising in print, Ad Standards Canada includes a number of identification rules, the most significant of which is clause 2: 'Disguised Advertising Techniques: no advertisement shall be presented in a format or style that conceals the fact that it is an advertisement.' The Competition Act also prohibits misleading representations

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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 (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. 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 with 2024 amends)

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.
Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

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

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 ICC Code 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~~ unless the sponsor is legally allowed to be the ~~programme~~ producer ~~or co-producer~~, media owner or ~~financier~~ funder;
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 and in social media, including any influencer involvement ~~material;~~
Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved.

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SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

This section covers the digital media space in broad. More specific headers such as email, marketer's own websites, cookies and OBA etc. follow

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

The self-regulatory and statutory rules set out under our earlier content section B apply in these media (online commercial communications are in remit), except those rules that specify broadcast media. In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;
The Competition Act includes under Section 52.01 False or misleading representation - sender or subject matter information (1) 'No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message. (2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.'
The issues in online commercial communications are largely dependent on the specifics of the medium: regular contextual online display advertising is subject only to the rules referenced above (except in the case of sector-specifc rules such as those for cars, cosmetics - the rules in these pages are 'general' i.e. all-sector rules), whereas more targeted channels will involve user consent and sender information requirements. Most online platforms also have their own advertising rules, generally in line with authorities' - Meta's are here;
As so much influencer marketing activity is online, bear in mind that this is a sensitive issue in most jurisdictions and Canada is no exception. Ad Standards' Influencer Marketing Disclosure Guidelines (Update Fall 2023) is the key regulation, together with the Competition Bureau's Deceptive Marketing Practices Volume 4 Influencer Marketing.

KEY APPLICABLE PRIVACY LEGISLATION
Privacy issues should be reviewed with specialist advisors

Canada's Anti-Spam Law (CASL S.C. 2010, c. 23) Purpose to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities; (b) imposes additional costs on businesses and consumers; (c) compromises privacy and the security of confidential information; and (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad. See Section 6 Requirements and Prohibitions on unsolicited electronic messages;
The Personal Information Protection and Electronic Documents Act (PIPEDA) 'sets out the ground rules for how businesses subject to the law must handle personal information in the course of commercial activities.' The act declares its purpose as to establish .. rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances. Schedule I sets out the ten principles Accountability, Identifying purposes, Consent, Limiting collection, Use, disclosure and retention, Accuracy, Safeguards, Openness, Individual access and Challenging compliance that form the core of the legislation in this context.
Two sets of regulations accompany the Anti-Spam Law: the Electronic Commerce Protection Regulations (SOR/2013-221), which addresses inter alia some definitions, excluded commercial messages and conditions for use of consent and the Electronic Commerce Protection Regulations (CRTC) (SOR/2012-36) which covers 'Information to be included in commercial electronic messages'
Note that Quebec's Law 25 formerly Bill 64 The Privacy Legislation Modernization Act differs in some respects from the federal equivalent privacy rules; see Everything You Need To Know About Quebec's Law 25 from Secure Privacy March 2024 and What Is Quebec’s Law 25? from Osano, which explains some of the key distinctions of this relatively new (the final phase came into effect September 2023) and representing 'the latest and most significant privacy legislation development in Canada.' (Gowling WLG)

Guidance and commentary

See Office of the Privacy Commission of Canada (OPC), 'which oversees compliance with PIPEDA, which includes investigating privacy complaints, and helping businesses improve their personal information handling practices.'
The Canadian Code of Practice for Consumer Protection in Electronic Commerce is pretty old (it was endorsed by federal, provincial and territorial ministers responsible for consumer affairs on January 16, 2004) but as far as we can establish still extant. The code establishes 8 principles including e.g. 4. Online privacy 7. Unsolicited email and 8. Communications with children;
The PIPEDA Compliance Guide for Businesses a checklist from from Secure Privacy;
Cookie Consent in Canada Cassie November 2022; this is a helpful commentary which explains the role of PIPEDA and CASL in relation to 'implied' and 'express' consent in particular;
A comprehensive guide to privacy law in Canada, also from Cassie. The document itself is undated; the link carries a 2023 reference
This January 2024 Data Protection Overview from OneTrust Data Guidance/ Fasken covers privacy legislation including some provincial examples, a wide selection of guidance documents primarily from the OPC (Office of the Privacy Commissioner) and some key case law. A rattling good read.

Developments in privacy law

On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA) replacing PIPEDA, (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.

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SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety,

Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024

EASA on the above and two calls for tender August 8, 2024

Meta and self-regulation December 2023

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

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 (EN 2024), which applies to all channels, online included
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 platforms online; 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 (linked above): Direct Marketing and Digital Marketing Communications; extracts below under 'self-regulatory clauses'
ICC Guide for Responsible Mobile Marketing Communications
EASA Best Practice Recommendation on Digital Marketing Communications 2023
EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments

Legislation

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

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

THE DSA AND DMA

Self-regulatory clauses

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

2024 amends in italics; there are some 20 articles in this section of the code

C2. 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~~ communications, as well as the identity of the marketer, should be transparent to ~~the~~ consumers in accordance with Articles 7-8 of the General Provisions.
Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
~~Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided~~

Article C3 – Presentation of the offer

The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions

~~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~~

Legislative clauses

Directive 2002/58/EC; Article 13

Unsolicited communications

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
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
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
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
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

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)

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:

The commercial communication shall be clearly identifiable as such
The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
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
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

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
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

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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SECTION C: COOKIES AND OBA

Privacy issues should be reviewed with specialist advisors

This section deals with cookies in the context of advertising delivery, taking in OBA. We don’t address ‘cookie statements/ notices’ specifically, though some guidance documents, which may contain references, are linked;
Cookie legislation/ regulation in Canada, especially as it relates to consent, is not the simplest, albeit that's the case in much of the world. Cookie Consent in Canada from Cassie November 2022 provides a clear explanation of the role of the laws that we show below and concludes: 'You must provide clear information about cookies at the time of collection. Your cookie notice must not simply be a link to your general privacy policy. You must provide a way for users to opt out of cookies.'
This January 2024 Data Protection Overview from OneTrust Data Guidance/ Fasken covers privacy legislation including some provincial examples, a wide selection of guidance documents primarily from the OPC (Office of the Privacy Commissioner) and some key case law;
The Personal Information Protection and Electronic Documents Act (PIPEDA) 'applies to private-sector organizations across Canada that collect, use or disclose personal information in the course of a commercial activity. Schedule 1 sets out the ten key principles that should be observed. See principles 3 to 5 especially (Consent, Limiting Collection and Limiting Use, Disclosure, and Retention) in this context.

Some guidance from the Office of the Privacy Commissioner (OPC)

PIPEDA compliance help

Online privacy, tracking, and cookies

Guidance for businesses doing e-marketing

Guidelines for obtaining meaningful consent

Ten tips for a better online privacy policy and improved privacy practice transparency.

CASL

Canada’s anti-spam legislation (CASL) 'is the federal law dealing with spam and other electronic threats. It is meant to protect Canadians while ensuring that businesses can continue to compete in the global marketplace.' (from the OPC);
CASL compliance help for businesses (OPC)

Provincial legislation

From the Office of the Privacy Commissioner (OPC): 'Several provincial laws have been deemed substantially similar to the PIPEDA. Under paragraph 26(2)(b), the Governor in Council can exempt an organization or class of organizations, an activity or a class of activities from PIPEDA if the collection, use or disclosure of personal information occurs within a province that has legislation that has been deemed substantially similar to the PIPEDA. This means that wherever the substantially similar provincial law applies, that law applies instead of PIPEDA.'
Note that Quebec's Law 25 formerly Bill 64 The Privacy Legislation Modernization Act differs in some respects from the federal equivalent privacy rules; see Everything You Need To Know About Quebec's Law 25 from Secure Privacy March 2024 and What Is Quebec’s Law 25? from Osano, which explains some of the key distinctions of this relatively new (the final phase came into effect September 2023) and representing 'the latest and most significant privacy legislation development in Canada.' (Gowling WLG)

OBA

OBA, or interest-based advertising as it is sometimes known (albeit perhaps a different concept), is the same as any other advertising in the sense that it is subject to the content rules we have set out in our overview section A and content section B (except those rules that are specific to broadcast media). Consent issues will be subject to PIPEDA regulation, discussed in the Privacy Commission's policy paper linked below;
The DAAC (Digital Advertising Alliance of Canada) October 2022 Principles for Online Interest-Based Advertising represent the principal form of self-regulation in OBA and are part of the (pretty much) worldwide 'your adchoices' programme ('The DAAC establishes and enforces responsible privacy practices through the AdChoices program across the Canadian industry for relevant digital advertising, providing consumers with enhanced transparency and control through multifaceted principles that apply to multi-site data and cross-app data gathered in either desktop, mobile web, or mobile app environments.'). 2023 compliance report here;
Internationally, there are a number of regulatory issues around interest-based advertising, or such advertising that targets consumers based on their web activities. The Office of the Privacy Commission of Canada provides a Policy position on online behavioural advertising from August 2021.

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SECTION C: COOKIES AND OBA

NEWS/ COMMENTARY

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

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

A new path for Privacy Sandbox on the web July 22, 2024

Third party cookie plans for Chrome. WFA view here

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

1. COOKIES

Applicable legislation, self-regulation and guidance

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

e-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
The introduction of the GDPR 2016/679 from May 25, 2018
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR

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

Meta must limit data for personalised ads

BBC October 4, 2024. Hunton Oct 15

EDAA launches new solution to DSA ad transparency requirements

EDPB ban on Meta processing personal data for behavioural advertising

DAC Beachcroft/ Lex December 6, 2023. EDPB here

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

Applicable regulation and opinion

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act
Provisions for Interest-based Advertising (IBA/OBA). These can be found under the 2024 ICC Advertising and Marketing Communications Code Chapter C, article C17
OBA, like any other advertising, is subject to content rules. In this context, the principle source of international rules is the ICC Code linked above

Opinion/ guidance

Article 29 Working Party* documents

Opinion 2/2010 on online behavioural advertising here
Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here
Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679

*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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The self-regulatory and statutory rules set out under our earlier content section B apply in this medium (online commercial communications are in remit), except those rules that specify broadcast media. In addition, some provincial legislation, especially in sectors such as alcohol, should also be observed;
The Competition Act includes under Section 52.01 False or misleading representation - sender or subject matter information (1) 'No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message. (2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.'
'At the federal level, spam and other electronic threats are regulated by Canada’s anti-spam legislation (CASL) and related provisions in the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Competition Act. PIPEDA, the federal private-sector privacy law, applies to the collection, use and disclosure of personal information in the course of commercial activities and contains restrictions relating to electronic address harvesting and e-marketing.' (From the OPC - Office of the Privacy Commission) and their Guidance for businesses doing e-marketing (January 2020). Other PIPEDA compliance help from the OPC is here;
Canada's Anti-Spam Law (CASL S.C. 2010, c. 23) Purpose to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages the use of electronic means to carry out commercial activities, because that conduct (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities; (b) imposes additional costs on businesses and consumers; (c) compromises privacy and the security of confidential information; and (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad. See Section 6 Requirements and Prohibitions on unsolicited electronic messages;
Two sets of regulations accompany the Anti-Spam Law: the Electronic Commerce Protection Regulations (SOR/2013-221), which addresses inter alia some definitions, excluded commercial messages and conditions for use of consent and the Electronic Commerce Protection Regulations (CRTC) (SOR/2012-36) which covers 'Information to be included in commercial electronic messages'
Note that Quebec's Law 25 formerly Bill 64 The Privacy Legislation Modernization Act differs in some respects from the federal equivalent privacy rules; see Everything You Need To Know About Quebec's Law 25 from Secure Privacy March 2024 and What Is Quebec’s Law 25? from Osano, which explains some of the key distinctions of this relatively new (the final phase came into effect September 2023) and representing 'the latest and most significant privacy legislation development in Canada.' (Gowling WLG)

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SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark

Posted June 2024

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 (EN 2024), 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 also apply
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

LEGISLATION

Directive 2002/58/EC; Article 13

Unsolicited communications

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
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
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
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
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

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:

The name of the service provider
The geographic address at which the service provider is established
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
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
Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
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

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)
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:

The commercial communication shall be clearly identifiable as such
The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
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
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

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
Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

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EU guidance documents

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

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As with most jurisdictions, the safe assumption is that 'own advertising/ marketing communications on own websites' are in remit, or in other words subject to regulation;
Obviously, much information on marketer websites will not be advertising, but much that marketers may not consider to be advertising, in the authorities' eyes may qualify as such;
The definition of advertising from the Canadian Code of Ad Standards (EN) includes: "Advertising" and "advertisement(s)" are defined as any message (other than those excluded from the application of this Code), the content of which message is controlled directly or indirectly by the advertiser expressed in any language and communicated in any medium (except those listed under Exclusions - see below) to Canadians with the intent to influence their choice, opinion or behaviour;
Application: the Code applies to "advertising" by (or for): advertisers promoting the use of goods and services; entities seeking to improve their public image or advance a point of view, whether or not the advertising is for a commercial purpose; and governments, government departments and crown corporations;
Excluded from the terms “advertising” and “advertisement(s)” (as defined in this Code) are messages from an “entity” that/who has no “material connection” with the entity that makes, distributes, markets or advertises the product or service featured in the advertising or advertisement(s) (This exclusion reference will be in relation to the issue of Influencer Marketing, where a 'material connection' triggers disclosure requirements);
Excluded Media: the following media are excluded from the application of the Code: foreign media (namely media that originate outside Canada and contain the advertising in question) unless the advertiser is a Canadian person or entity; and packaging, wrappers and labels;
The Competition Act section 52 (1) states: No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever (emphasis ours) knowingly or recklessly make a representation to the public that is false or misleading in a material respect;
Content on marketers' own websites that qualifies per above will therefore be subject to the rules set out in our earlier content Section B and referenced above;
Privacy issues that arise from connections with website users are covered under Cookies and OBA and Direct Electronic Communications headers and our section A Overview; privacy matters should be reviewed with specialist advisors.

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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 (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

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 (EN), 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

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
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
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
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
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

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

(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

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

The commercial communication shall be clearly identifiable as such
The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
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
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

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
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')

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

the main characteristics of the product, to an extent appropriate to the medium and the product
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
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
the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

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

Opinion 15/2011 on the definition of consent here
GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
Guidelines 8/2020 on the targeting of social media users adopted April 2021

EASA Digital Marketing Communications Best Practice Recommendation

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

FACEBOOK

https://www.facebook.com/policies/ads (also includes references to Instagram)
branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content

INSTAGRAM

TWITTER:

YOUTUBE: advertiser friendly content guidelines here:

SNAPCHAT:

https://www.snap.com/en-GB/ad-policies/
Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules

GOOGLE +

Promotions/ Contests:
https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html
For advertising on the Google network:
https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336 /
https://support.google.com/adwords/answer/6316?hl=en-GB

TIK TOK

Advertising guidelines

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Native advertising is subject to the advertising rules set out in our content section B; in this context, the most important of those rules is clause 2 of the Code of Advertising Standards: Disguised Advertising Techniques: No advertisement shall be presented in a format or style that conceals the fact that it is an advertisement;
It is likely to be the case that a native ad that doesn't make clear that it is an ad would contravene the Competition Act Section 52 misleading representations and its 'sister' provincial consumer protection laws; a view supported by:
This June 2018 Final Report - Native advertising: information or illusion - of the Research Project from the ISED Office of Consumer Affairs Canada - see p.115 for recommendations and section 3 from p34 for the regulatory framework. This latter refers to a Competition Bureau 'working document' which we have been unable to trace;
See also Native Advertising & the Canadian AdChoices Self-Regulatory Program for a context when 'Native' is also interest-based (March 2017).

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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 (EN 2024)

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

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 (EN 2024), 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
2024 amends in italics

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.
Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

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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Following feedback, we no longer cover Telemarketing

SECTION C: DIRECT POSTAL MAIL

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)
ICC Advertising and Marketing Communications Code (EN 2024)

Standard rules

For content rules, refer to the earlier content section B. The principal source of general international content rules is the ICC code linked immediately above, most of which content rules apply to all channels
The UCPD referenced and linked above will also apply to direct postal mail; this legislation provides a broad framework regulating commercial practices of all kinds; articles 6 and 7 establish regulation of misleading actions and misleading omissions respectively
Channel rules in this international context 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
There isn't really a common set of self-regulatory general channel rules that cross borders for direct postal mail (largely a market activity), though article 22 (data protection and privacy) of the iCC Code linked above comes closest, but there is a common principle: unless you have consent to process their personal data and send them material, in other words they have 'opted in', you can't send consumers marketing communications. Postal mail to e.g. 'the occupier' of individual addresses, is generally permitted, though some countries have arrangements whereby local communities display signs preventing, or trying to prevent, delivery.
From legislation, the GDPR will apply if processing personal data (that which can identify an individual)

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:

the main characteristics of the product, to an extent appropriate to the medium and the product
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
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
the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

Per above, 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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SECTION C: EVENTS/ SPONSORSHIP

Navigating ambush marketing: Paris 2024 Olympics edition
Gowling WLG July 23, 2024

Playing by the rules: Ambush marketing and major sporting events
Gowling WLG July 15, 2024

SECTION C: EVENTS/ SPONSORSHIP

Pilot Project Relaxes Olympic Games' Rule For Participating Brands

Marks & Clerk July 19, 2024

Paris Olympics & Paralympics - Part 2: What could possibly go wrong?

Squire Patton Boggs july 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

Self-regulation

Advertising associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier content section B, or from the ICC Code linked below
ICC Advertising and Marketing Communications Code (EN 2024): Chapter B Sponsorship. 2024 amends in italics

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
There should be clear communication about the specific rights available for sponsorship from the rights holder, including the timing of the sponsorship commitment and the scale of coverage, such as territory. Sponsored parties should retain the sole discretion to determine the value of the sponsorship rights they offer and the suitability of a potential sponsor
Furthermore, both parties should reserve the right to terminate the sponsorship agreement based on the terms outlined in the 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~~ as long as the sponsored party ~~fulfills the obligations set out in the sponsorship agreement~~ meets the requirements set in the sponsorship agreement and those actions do not damage the reputation of the sponsor

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
Both sponsors and sponsored parties, along with anyone else involved, should avoid imitation of other sponsorships if it could mislead or cause confusion, even with non-competing products, businesses 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
No party should falsely pretend, associate or mislead to be a sponsor of any event or media coverage of an event, whether sponsored or not, unless they are indeed an official sponsor
The sponsor and sponsored party should each make sure that any actions they take against ‘ambush marketing’ are proportionate and do not damage the reputation of the sponsored property, event or image, or unfairly affect the general public

B5: Respect for the sponsorship property and the sponsor

Sponsors should take particular care to ~~safeguard the inherent~~ protect the unique features including artistic, cultural, sporting or other content of the sponsorship property. They 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~~ risk damaging 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 including branded giveaways and similaor 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.~~ Any posts on social media by the sponsored party should be transparent and properly identified. The sponsor should also be mindful of the professional values of the sponsored party and audience
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
Branded sponsorship or entertainment events that primarily target children or teens should comply with Chapter E – Children and Teens

B7: Data capture/ data sharing

If ~~an individual’s~~ personal data are used in connection with sponsorship, the provisions of article 19 22 are applicable

B8: Artistic and historical objects

~~Sponsorship should not be conducted in such a way as to endanger artistic or historical objects~~
Sponsorship should not put art or historical items at risk
~~Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them~~
Where a sponsorship is meant to protect, restore, or maintain cultural, artistic or historical properties or spread awareness about them, it should respect the public interest in 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.
If a sponsorship message claims to have a positive social or environmental effect (or less harm), it should be backed up with evidence of actual benefits. 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~~
If the sponsorship makes any environmental claims, they should align with the rules in Chapter D and the ICC Framework for Responsible Environmental Marketing Communication

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~~ conflict with another sponsor’s rights to the property
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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SECTION C: SALES PROMOTIONS

CONTEXT

This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that may affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal.

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It's a feature of the Canadian regulatory environment that there are a considerable number of rules relating to pricing and promotions in particular. We'll get to those; meanwhile we should remind that sales promotional material should also observe the ad content rules set out in our earlier section B. The Code of Advertising Standards applies to 'advertisers promoting the use of goods and services; amongst exclusions are 'packaging, wrappers and labels.'

FROM SELF-REGULATION

From the Canadian Code of Advertising Standards

3. Price Claims: (a) No advertisement shall include deceptive price claims or discounts, unrealistic price comparisons or exaggerated claims as to worth or value. "Regular Price", "Suggested Retail Price", "Manufacturer’s List Price" and "Fair Market Value" are deceptive terms when used by an advertiser to indicate a savings, unless they represent prices at which, in the market place where the advertisement appears, the advertiser actually sold a substantial volume of the advertised product or service within a reasonable period of time (such as six months) immediately before or after making the representation in the advertisement; or offered the product or service for sale in good faith for a substantial period of time (such as six months) immediately before or after making the representation in the advertisement.
(b) Where price discounts are offered, qualifying statements such as "up to", "XX off", etc., must be in easily readable type, in close proximity to the prices quoted and, where practical, legitimate regular prices must be included.
(c) Prices quoted in advertisements in Canadian media, other than in Canadian funds, must be so identified.
4. Bait and Switch: Advertisements must not misrepresent the consumer’s opportunity to purchase the goods and services at the terms presented. If supply of the sale item is limited, or the seller can fulfill only limited demand, this must be clearly stated in the advertisement.

FROM LEGISLATION

From the Competition Act (EN)

Promotional contests 74.06 A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product, or for the purpose of promoting, directly or indirectly, any business interest, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, or otherwise disposes of any product or other benefit by any mode of chance, skill or mixed chance and skill whatever, where (a) adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning; (b) distribution of the prizes is unduly delayed; or (c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.
Deceptive notice of winning a prize 53 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, send or cause to be sent by electronic or regular mail or by any other means a document or notice in any form, if the document or notice gives the general impression that the recipient has won, will win, or will on doing a particular act win, a prize or other benefit, and if the recipient is asked or given the option to pay money, incur a cost or do anything that will incur a cost.

Non-application (2) Subsection (1) does not apply if the recipient actually wins the prize or other benefit and the person who sends or causes the notice or document to be sent (a) makes adequate and fair disclosure of the number and approximate value of the prizes or benefits, of the area or areas to which they have been allocated and of any fact within the person’s knowledge that materially affects the chances of winning; (b) distributes the prizes or benefits without unreasonable delay; and (c) selects participants or distributes the prizes or benefits randomly, or on the basis of the participants’ skill, in any area to which the prizes or benefits have been allocated.
Drip pricing (1.1) For greater certainty, the making of a representation of a price that is not attainable due to fixed obligatory charges or fees constitutes a false or misleading representation, unless the obligatory charges or fees represent only an amount imposed by or under an Act of Parliament or the legislature of a province.
Ordinary price: suppliers generally (2) Subject to subsection (3), a person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, makes a representation to the public concerning the price at which a product or like products have been, are or will be ordinarily supplied where suppliers generally in the relevant geographic market, having regard to the nature of the product, (a) have not sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; and (b) have not offered the product at that price or a higher price in good faith for a substantial period of time recently before or immediately after the making of the representation, as the case may be.
Ordinary price: supplier’s own (3) A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, makes a representation to the public as to price that is clearly specified to be the price at which a product or like products have been, are or will be ordinarily supplied by the person making the representation where that person, having regard to the nature of the product and the relevant geographic market, (a) has not sold a substantial volume of the product at that price or a higher price within a reasonable period of time before or after the making of the representation, as the case may be; and (b) has not offered the product at that price or a higher price in good faith for a substantial period of time recently before or immediately after the making of the representation, as the case may be.

From the Competition Bureau 'Misleading representations and deceptive marketing practices'

The table below extracts relevant practices from the original shown in the link

Practice	Section	Description
False or mis leading represent ations	section 52 & para 74.01(1)(a)	It is against the law to make materially false or misleading representations to promote a product, service or business interest. A representation is “material” if the general impression it conveys leads someone to take a particular course of action, like buying or using a product or service. A “representation” refers to any marketing material, including online and in-store advertisements, direct mail, social media messages, promotional emails, and endorsements, among other things.
Drip pricing	sub-sec 52(1.3) sub-sec 74.01(1.1)	Drip pricing involves offering a product or service at a price that is unattainable because consumers must also pay additional charges or fees to buy the product or service. Subsections 52(1.3) and 74.01(1.1) confirm that offering a price that a customer cannot actually attain because there are mandatory fixed additional (non-governmental) charges or fees is a false or misleading representation.
Ordinary selling price	sub-secs 74.01	A price cannot be referred to as the ordinary price when it is inflated to create the illusion of offering a better deal.
Bait and switch	section 74.04	Bait and switch selling is when a product is advertised at a “bargain price” but the product is not available for sale in reasonable quantities.
Deceptive prize notices	section 53	It is a criminal offense to send prize notices that give recipients the general impression that they have won (or will win) a prize but requires them to pay a fee or incur a cost to collect their prize unless they have actually won the prize and the sender makes specific disclosures and satisfies certain other requirements.
Promotion contests	section 74.06	Contest organizers must: disclose the number and approximate value of prizes and information relating to the chances of winning. They cannot unduly delay the distribution of prizes, and must choose the participants and award the prizes either randomly or on the basis of skill.

The Competition Bureau: Promotional Contests Enforcement Guidelines. This publication outlines the approach that the Commissioner of Competition is taking in enforcing the promotional contests provision of the Act. The guidelines contained in this publication are intended to help the general public, business people and their legal advisors to better understand section 74.06 of the Act and the general approach taken by the Competition Bureau to enforce that provision.

From lawyer commentary
And a drip pricing case

Legal 500 publishes An overview of Advertising & Marketing laws and regulations applicable in Canada in a Q&A format, which includes the questions (and answers):

Do any specific rules apply to advertising featuring prices?
Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?

Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?

Must promotional prize competitions be registered with a state agency or authority?

Miller Thomson's March 2020 Prohibited and controlled advertising in Canada includes: What are the requirements for advertising and offering promotional contests?
Gowling WLG's October 2023 (updated on November 14, 2023, to reflect the repeal of Québec's publicity contest laws) Demystifying contest laws in Canada and the drip pricing case:
Competition commissioner sticks with claims that Cineplex uses 'deceptive' marketing. July 2023 BNN Bloomberg

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SECTION C: SALES PROMOTIONS

CONTEXT

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .

APPLICABLE SELF-REGULATION AND LEGISLATION

ICC Advertising and Marketing Communications Code (EN 2024), 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

Clauses are from the 2024 edition of the Code

A1: Principles governing sales promotions

All sales promotions should interact with consumers in a fair, transparent, respectful and honourable way while upholding the Code’s data protection and privacy principles
The design and implementation of sales promotions should align with the consumers’ reasonable expectations as set by the promotion
The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient and consistent with the presentation of the promotion
The terms and conduct of all sales promotions should be transparent to all participants
All sales promotions should be framed in a way which is fair to competitors and others in the market
Sales promotions that primarily target children or teens should comply with Chapter E – children and teens
No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

A2: Transparency and terms of the offer

Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.

A3: Presentation

Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.

A4: Administration of promotions

Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:

Promotional items should be sufficient to meet anticipated demand consistent with the terms of the offer. If delay or any other change 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 a reasonable estimate of the expected response before the event. Phrases like “subject to availability” and similar may be used when demand is significantly difficult to calculate, but not as a general means to relieve the promoter from the obligation to meet consumers’ legitimate expectations
When the acquisition of the promotional item is dependent on a purchase or multiple purchases, promoters should ensure promotional items are sufficiently available to match the number of purchases being made, also see Article A6 under Information requirements
Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any proven expenses reasonably incurred by consumers directly due to such deficiencies, should be refunded upon request as soon as possible
Complaints should be efficiently and properly handled

A5: Safety and suitability

Care should be taken to prevent promotional items, if used correctly, from exposing consumers, intermediaries, or any other persons or their property to any harm or danger
Where appropriate promotional items should be accompanied by any necessary warnings and safety advice. Promoters should ensure that their promotional activities are consistent with the principles of environmental and social responsibility and in particular take reasonable steps to prevent unsuitable, inappropriate or age-restricted 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
Where consumers are prompted to engage with content by clicking on a link, or using a similar mechanism, like voice or movement activation, it should be made clear beforehand what the outcome will be, e.g. by specifying the form and nature of the offer. Deceptive practices like “click to reveal code” only to present an offer, should not be used

Information requirements

Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:

detailed and clear instructions on how to obtain or participate in the promotional offer, including the conditions for receiving promotional items, liability for associated costs, or taking part in prize promotions
the main characteristics of the promotional items being offered
any time limit on taking advantage of the promotional offer
any restrictions on participation (e.g. geographical, employment in a particular company, sector or activity or age-related), availability of promotional items, or stock limitations. In the case of limited availability, e.g. due to unexpectedly high demand or any other exceptional circumstance, the consumer should be informed about alternative arrangements or refunding policies
the value of any financial substitutes offered like vouchers, coupons, discount codes or stamps offered where a monetary alternative is available
any requirements such as automatic renewals or subscriptions
any use of data and privacy clauses
any costs involved, including shipping and handling fees taxes, tariffs or duties and payment terms
The promotor’s full name and address along with information on how to ask questions or lodge complaints.

Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.

Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.

Information in prize promotions

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

an overview of the entry process
any rules governing eligibility to participate in the prize promotion, as well as any use of data and privacy implications
costs associated with participation, excluding communication costs at or below standard rate (mail, telephone and other devices)
restrictions or limitations on the number of entries
The number, value and nature of prizes to be awarded. If a cash alternative is available instead of a prize, that should be communicated
for skills contests, the nature of the contest and the criteria for judging the entries
the procedure for selecting winners and awarding prizes
the starting and closing dates of the competition
the timeline and procedure for notifying winners and publicising results
where appropriate, information that prizes may be subject to tax
the procedure and time frame for collecting prizes
where a jury is involved, the composition of the jury, or the criteria for selecting its members
if winners’ images, quotes, audiovisual content or winning contributions will be used in post-event activities and the terms for their use

The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

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

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

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

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;

(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

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
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

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

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

Article 5

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

Article 6a

1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction

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SECTION D: SRO SERVICES

https://adstandards.ca/preclearance/infologo/

SECTION D: SRO SERVICES

The ICAS Global SRO database

https://icas.global/srodatabase/

EASA (European Advertising Standards Alliance)

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

EASA membership

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

Link to Best Practice Recommendations

https://www.easa-alliance.org/publication/best-practice-recommendations/

EASA Digital Marketing Communications Best Practice Recommendation

https://www.easa-alliance.org/publications/easa-best-practice-recommendations-digital-marketing-communications/

EASA Best Practice Recommendation on Online Behavioural Advertising

https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/

EASA Best Practice Recommendation on Influencer Marketing

https://www.easa-alliance.org/publications/best-practice-recommendation-on-influencer-marketing-guidance_v2023/

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SECTION E SOURCES/ LINKS

KEY NATIONAL LEGISLATION

The Competition Act. '1.1 The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.' For our purposes, the specific relevance of the act is under Section 52(1), which states: 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever knowingly or recklessly make a representation to the public that is false or misleading in a material respect.'

laws-lois.justice.gc.ca/eng/acts/c-34/FullText.html

The Food and Drug Act R.S.C., 1985, c. F-27 'An Act respecting food, drugs, cosmetics and therapeutic devices.' Part I General Prohibited advertising. 3 (1) 'No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1. Prohibited claims - animal testing 16.3 (1) No person shall make a claim on the label of or in an advertisement for a cosmetic that is likely to create an impression that the cosmetic was not tested on animals after the day on which this section comes into force unless the person has evidence that no such testing occurred after that day.'

laws-lois.justice.gc.ca/eng/acts/f-27/FullText.html

Privacy

Personal Information Protection and Electronic Documents Act (PIPEDA - S.C. 2000, c. 5. Assented to 2000-04-13). 'An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.' This is the current federal privacy law; see below for developments.

laws-lois.justice.gc.ca/eng/acts/p-8.6/FullText.html

Canada's Anti-Spam Law (S.C. 2010, c. 23) An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)

laws-lois.justice.gc.ca/eng/acts/E-1.6/FullText.html

SELF-REGULATION

The Canadian Code of Ad Standards. From definitions: "Advertising" and "advertisement(s)" are defined as any message (other than those excluded from the application of this Code), the content of which message is controlled directly or indirectly by the advertiser expressed in any language and communicated in any medium (except those listed under Exclusions - see below) to Canadians with the intent to influence their choice, opinion or behaviour. Application: the Code applies to "advertising" by (or for): advertisers promoting the use of goods and services; entities seeking to improve their public image or advance a point of view, whether or not the advertising is for a commercial purpose; and governments, government departments and crown corporations

Excluded from the terms “advertising” and “advertisement(s)” (as defined in this Code) are messages from an “entity” that/who has no “material connection” with the entity that makes, distributes, markets or advertises the product or service featured in the advertising or advertisement(s) (This exclusion reference will be in relation to the issue of Influencer Marketing, where a 'material connection' triggers disclosure requirements). Excluded Media: the following media are excluded from the application of the Code: foreign media (namely media that originate outside Canada and contain the advertising in question) unless the advertiser is a Canadian person or entity; and packaging, wrappers and labels. Importantly, the code includes 'Interpretation Guidelines' that 'enhance industry and public understanding of the interpretation and application of the Code’s 14 clauses'. The Interpretation Guidelines can be found here and cover issues such as humour, ads to children, pricing, environmental claims etc. An additional key element of the code is Influencer Marketing Disclosure Guidelines from Fall 2023. The code in English:

adstandards.ca/code/the-code-online/

Beer Industry's Responsible Advertising and Marketing Code (March 2020). 'The Responsible Advertising and Marketing Code (the Code) applies to all Beer Canada member activities undertaken to advertise and market their products. As responsible brewers, our members want to ensure that any commercial communication is directed only to those of legal purchase age and carried out in a socially responsible manner. Beer Canada represents over 50 Canadian brewing companies that account for 90% of beer made in Canada. As a statement of principles and best practices, the Code is intended to complement, support and enhance federal and provincial/ territorial alcohol advertising and marketing rules as well as those codes administered by Ad Standards (Advertising Standards Canada). The Code applies to all forms of brand marketing and commercial communication for all member products that contain alcohol, or are de-alcoholized or nonalcoholic beer product. '

industry.beercanada.com/sites/default/files/beer_canada_-_responsible_advertising_code_-_english_-_march_2020.pdf

Spirits Canada's Code of Responsible Advertising and Marketing (2018). Scope: the Code applies to all activities undertaken to advertise and market distilled spirits. Spirits Canada Members are encouraged to ensure all the beverage alcohol products they represent in Canada including maltbased, cider or wine also comply with the Code. These activities include brand advertising, consumer communications, promotional events, packaging, labels, and sales materials. The provisions of the Code apply to every type of print and electronic media, including the internet, and any on-line or digital communication, used to advertise or market beverage alcohol. These provisions also apply to every type of promotional or marketing activity or event, including all product placements (e.g. movies, television programs, music videos, video games) and sponsorships.

adstandards.ca/wp-content/uploads/Spirits-Canada-Code-of-Responsible-Advertising-and-Marketing-ASC-FINAL-2017-1.pdf

acrobat.adobe.com/id/urn:aaid:sc:VA6C2:8ff70225-4976-458c-9b2c-702eabfbd98d (FR)

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SECTION E SOURCES/ LINKS

SELF-REGULATION

ICC

ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include:

greater clarity in the scope and application to different forms of marketing communications
the inclusion of coverage for the use of algorithms and AI in preparing and delivering marketing communications
taking account of recent social and technological developments and the inclusion of specific provisions from chapters which are widely applicable to all marketing communications
encouraging mindfulness regarding diversity and avoiding objectification stereotypes
new provisions concerning anti-corruption and not inciting or condoning hate speech and disinformation
improved indications regarding claims (including aspirational claims) and substantiation
addressing influencer marketing and the responsibility of influencers and creators
updated provisions regarding environmental advertising and environmental aspects of sustainability
clearer rules in a separate chapter regarding children, teens and minors

This Code revision has been informed by the latest industry rules and legal developments around the world, such as in the area of consumer protection, privacy and fair competition. The Code is designed to establish a sound ethical framework to govern marketing practices worldwide based on twin goals of fostering consumer fairness and trust, and the freedom of commercial communications.' The Code is organised into General Provisions and individual chapters Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E). Translation of the code is under way as at September 2024. Earlier translations of the former (2018) code can be found here.

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

Additional guides and frameworks (all EN)

ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC Guidance on Native Advertising

ICC toolkits

ICC Toolkit: Marketing and Advertising to Children (2017)
https://iccwbo.org/publication/icc-toolkit-marketing-advertising-children/
Summary and Toolkit for Advertising Agency/ Marketer:
http://www.codescentre.com/about-you/advertising-agency-views.aspx

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 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:

https://www.easa-alliance.org/publications/easa-best-practice-recommendations-digital-marketing-communications/

EASA Best Practice Recommendation on OBA (Revised Oct. 2021): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/

EASA Best Practice Recommendation on Influencer Marketing 2023. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR networks and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

https://www.easa-alliance.org/publications/best-practice-recommendation-on-influencer-marketing-guidance_v2023/

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:

Not to advertise food and beverages to children under 13 years, except for products which fulfil the EU Pledge common nutrition criteria;
No marketing or advertising in primary schools, except where specifically requested by, or agreed with, the school administration for educational purposes;
To abide by the International Chamber of Commerce (ICC) Code of Advertising and Marketing Communication Practice (EN 2024) and the ICC Framework for Responsible Food and Beverage Marketing Communications in all marketing communications.

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.

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.
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: 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 were supposed to be transposed by November 2021 and in force in member states by May 2022; some delays but all in place end 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:

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

The Digital Services Act

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

The Digital Markets Act

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

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Reduce

Canada

A. Overview

Sector

General

SECTION A OVERVIEW

International

SECTION A OVERVIEW

B. Content Rules

Sector

General

SECTION B CONTENT RULES

International

SECTION B CONTENT RULES

C. Channel Rules

1. TV/Radio/VOD

Sector

General

SECTION C: TV & RADIO/ AV

International

SECTION C TV/AV AND RADIO

2. Cinema/Press/Outdoor

Sector

General

SECTION C: CINEMA, PRINT, OUTDOOR

International

SECTION C: CINEMA, PRINT, OUTDOOR

3. Online Commercial Communications

Sector

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

4. Cookies & OBA

Sector

General

SECTION C: COOKIES AND OBA

International

SECTION C: COOKIES AND OBA

5. Emails & SMS

Sector

General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

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6. Own Websites & SNS

Sector

General

SECTION C: MARKETERS' OWN WEBSITES

International

7. Native Advertising

Sector

General

SECTION C: NATIVE ADVERTISING

International

SECTION C: NATIVE ADVERTISING

8. Telemarketing

Sector

General

International

9. Direct Postal Mail

Sector

General

International

SECTION C: DIRECT POSTAL MAIL

Guidance

10. Event Sponsorship/ Field Marketing

Sector

General

SECTION C: EVENTS/ SPONSORSHIP

International

SECTION C: EVENTS/ SPONSORSHIP

11. Sales Promotion

Sector

General

SECTION C: SALES PROMOTIONS

International

SECTION C: SALES PROMOTIONS

D. Advice & Clearance

General