Select Sector

A. Overview

Sector

General

SECTION A OVERVIEW

 

 

This database uploaded 2/12/22

 

 

IN SUMMARY

 

 

The above overview is from the lawyers identified in the chart. Statutory developments in the form of the Consumer Protection Act 2019 and the 2022 advertising guidelines from the CCPA are relatively recent and there appears to be some 'regulatory settling down' in the jurisdiction. The situation depicted visually above is anyway not unusual (though its application may be) and might be familiar in a number of countries in Europe. What is unusual is that advertising complaints can be made direct to government via this portal, though 'authorities' nominated to deal with the complaint include self-regulatory bodies. ASCI is a well regarded and resourced self-regulatory organisation and its code is well established, but it's important to be aware of the new statutory influences in advertising regulation and especially the associated guidelines, which are unusual in being advertising related; most statutory authorities internationally are less advertising-specific and more commercial practices related. We will see how aggressively the statutory authority CCPA pursues its agenda and how they and ASCI work together.

 

RECENT ISSUES/ NEWS

 

India’s Government Asks Google to Remove Ads for International Betting Companies. Gambling Industry News December 7, 2022

ASCI’s discussion paper reveals dark patterns used by digital platforms that cause consumer harm

Views/ responses by December 21st 2022

Are you ready for India's new advertising laws? (EN)

Khaitan and co/ Mondaq. November 2022. This a ppt. presentation that provides a succinct and helpful overview of the advertising regulatory situation in India; chart extract above. 

 

SELF-REGULATION

India enjoys a robust self-regulatory system, administered by ASCI, the Advertising Standards Council of India. From their website: 'ASCI was established in 1985. ASCI is a voluntary self-regulatory organisation comprising members from marketing, creative, media, and allied companies in India. Since its inception, ASCI has been committed to protecting Indian consumers’ interests through self-regulation in advertising. ASCI was formed with the support of all four sectors connected with advertising, viz. advertisers, advertising agencies, media (including broadcasters and the press) and others such as PR agencies, market research companies etc.' Membership is here.

 

The code for self-regulation of advertising content in India  (EN)

 

The code includes 'general' rules, i.e. those on misleadingness, decency, offense, fair competition etc. as well as sections on Automotive vehicles (April 2008), Brand extensions (July 2021), Foods & Beverages (F&B; February 2013), Educational institutions and programs (April 2022), Disclaimers (October 2016) New/ improved (June 2014), Skin lightening (August 2014), Celebrities (April 2022), Awards/ rankings (April 2022), Online gambling (April 2022), Influencer advertising in digital media (April 2022), Online gambling (April 2022), Virtual digital assets (February 2022), Gender stereotypes guidelines (June 2022). The key rules are set out in our following Content Section B and there are some 'highlights' below, or click on the linked code. The ASCI code is based on/ updated to the ICC Code.
 

INFLUENCER MARKETING/ ENDORSEMENTS

 

From the self-regulatory organisation ASCI: Guidelines for Influencer advertising in digital media (the link will take you to a downloadable pdf.) Guidelines were published June 2021 and are therefore relatively recent and a significant part of ASCI's role, as the influencer industry has grown substantially worldwide and India, where it is 'rapidly burgeoning', is no exception. From the ASCI complaints half-yearly report April-September 2022: 'Non-disclosure by Influencers Advertising in Digital Media continue to contribute heavily to ads processed. 28% of ads were in violation of the Influencer Guidelines.' ASCI has put in place 'a partnership with French technology provider, Reech, to help identify lack of influencer transparency on social media. In addition to complaints received by public and other agencies, ASCI’s suo moto on its own motion surveillance has also started to flag potential violations of the guidelines.' Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (incidentally, 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.'

 

CHILDREN

 

Both the ASCI code, which defines children as 'persons who are below the age of 12 years,' and the CCPA guidelines contain provisions for children's advertising, the former under Chapter III Harmful products/ situations and the latter under article 8, extracted here. Key clauses are shown in our following content section B and they are also assembled here in a table that shows the two sets of provisions alongside each other. The CCPA guidelines definition is per clause (12) of section 2 of the Juvenile Justice Act, 2015 - a person 'who has not completed 18 years of age.'

 

GAMBLING

 

India’s Government Asks Google to Remove Ads for International Betting Companies. Gambling Industry News December 7, 2022

 

Gambling regulation in India is largely state-driven and betting and gambling is illegal in most parts of the country. Advisory note of June 2022 from Ministry of Information & Broadcasting (MIB) hereThe ASCI self-regulatory code carries a section on online gambling, or to give it its full title: 'Online gaming for real money winnings.' This includes rules on warning messages and their formatting. The full gambling section has been extracted from the code and is linked here. Note that gambling advertising, as with all advertising, is subject to the full ASCI code; adjudications will often be made under rules related to misleadingness, decency etc. from the 'general' section of the code, so this context should also be understood. 


14 ads found to be in potential violation of the ASCI code in first week of cricket extravaganza

ASCI press release April 2022 

Strong-Worded Advisory by the MIB on Advertisements of Online Betting Platforms (EN)

GALA November 1, 2022

 

GENDER STEREOTYPES AND INCLUSION

 

ASCI’s guidelines on harmful gender stereotypes
~ Guidelines lay down boundaries for unacceptable portrayals and
encourage advertisers to create more progressive gender depictions ~

 

ASCI bats for greater inclusion in advertising  May 25, 2022

 

RULINGS/ 'RECOMMENDATIONS'

 

'ASCI's independent jury (The Consumer Complaints Council or CCC) comprises 40 eminent professionals, both from the industry as well as from civil society, who review complaints on a weekly basis and provide their recommendations.' Link to the recommendations database is here and the Half Yearly Complaints Report - April to September 2022 is also linked. Extracted from the latter: 'Education overall continues to be the most violative sector covering 27% of all the ads processed. 22% ads belonged to classical education and the 5% to the Ed Tech sector. Personal Care and F&B follow are the other two sectors to make it to the top 3 owing to high volume of advertising by influencers.'

 

CONSUMER PROTECTION LEGISLATION, AD GUIDELINES AND AUTHORITY

 

Consumer Protection Act, 2019 (EN)

This act, applicable to 'all goods and services', is very signifcant legislation in the context of the advertising regulatory system in India, playing a similar role to that of the UCPD in the EU. The act established the Central Consumer Protection Authority and includes in the CCPA 'powers and functions' that they '(c) ensure that no false or misleading advertisement is made of any goods or services which contravenes the provisions of this Act or the rules or regulations made thereunder and (d) ensure that no person takes part in the publication of any advertisement which is false or misleading.' The act defines advertising in broad terms: 'an advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.'

 

Central Consumer Protection Authority (CCPA) established by the act above to 'promote, protect and enforce the rights of consumers.' Government press release here (EN)

 

Guidelines to provide for the prevention of false or misleading advertisements from the CCPA (EN). This is a recent (2022) and highly significant addition to the advertising regulatory framework, covering issues such as Conditions for non-misleading and valid advertisements, Conditions for bait advertisements, Prohibition of surrogate advertising, Free claims, Children targeted ads, Disclaimers, Disclosure of material connection (also see above under Influencer marketing). Extracts are in our following content section B. The guidelines are applicable to 'all advertisements regardless of form, format or medium.'

 

Consumer Protection (E-Commerce) Rules 2020

The above rules are among a number of pieces of secondary legislation that derive from the Consumer Protection Act 2019. Most don't address commercial communications, which are covered by the CCPA advertising guidelines linked earlier in this section, but these e-commerce rules are obviously significant in of themselves and as some content on e-commerce platforms may be deemed to be advertising and therefore in remit; additionally, the rules linked above carry provisions for sellers on e-commerce platforms under article 6 (4c).

 

The Cable Television Networks (Regulation) Act, 1995, known as the CTN act. From the Ministry of Information and Broadcasting (MiB). The act includes reference under article 6 to an associated advertising code, set out in our Channel Section C under the TV and Radio header. The code requires inter alia that advertisements must also observe the ASCI code. 

 

Some legal commentary

 

Consumer protection laws in India. Acuity Law/ Lex. June 2021 (EN)

CCPA guidelinesAcuity Law blog August 2022 (EN)

 

DATA PROTECTION

 

The Information Technology Act, 2008

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 here

The above two entries are the rules that will most 'keenly impact' companies; source is the entry below

India - Data Protection Overview. One Trust data guidance November 2022. This is a clear and complete summary of the data protection framework in India 

DLA Piper Data Protection Laws of the World - India. Copyrighted 2022

Draft Digital Personal Data Protection Bill open to consultation until 17th December, 2022 (the govt. withdrew a 2019 draft bill)

Commentary on the above from The International Association of Privacy Professionals (IAPP) November 22, 2022

 

 

 

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

International

SECTION A OVERVIEW

 

Updates since Jan 2022
 

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. Mar, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

DLA Piper Global Influencer guide 

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

New global network for online harm November 2022

Coke's aspirational claims are not actionable

Frankfurt Kurnit Klein & Selz PC November 20, 2022

ICAS publishes Factbook and Global SRO Database

Tesla fined $ millions for false advertising. Jan 2023

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

 

 

RECENT ISSUES

 

General

 

Top 10 Advertising and Marketing Issues for 2023

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

Marketing & advertising tips, traps and trends for 2023

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

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

December 2022: ICAS publishes 2021 Factbook and Global SRO Database 

Chambers Global Practice Guide Advertising & Marketing 2022

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

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

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

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

 

Environmental

 

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

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

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

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

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

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

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

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

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

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

April 2022. WFA issues Global Guidance on Environmental Claims

 

Digital/ data privacy

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Children

 

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

 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

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

 

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

 

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

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

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

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

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

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

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

 

* Recommended read

 

THE OMNIBUS DIRECTIVE

 

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

 

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

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

 

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

 

 

 

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Read more

B. Content Rules

Sector

General

SECTION B CONTENT RULES

 

 

 

This section is longer than most. In order to make navigation easier, some points are 'anchored' and linked to respective text 

 

 

1. THE CODE FOR SELF-REGULATION OF ADVERTISING CONTENT IN INDIA 

 

1.1. Chapters I to IV; 'general' rules

1.2. Guidelines for various sectors (non exhaustive)

 

2. CONSUMER PROTECTION ACT 2019

 

2.1. Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements 2022

 

3. THE ADVERTISEMENT CODE derived from the Cable Television Networks Act

 

 

1. THE CODE FOR SELF-REGULATION OF ADVERTISING CONTENT IN INDIA 
https://ascionline.in/images/pdf/code_book.pdf
CHAPTER I. TRUTHFUL & HONEST REPRESENTATION

 

 

To ensure truthfulness and honesty of representations and claims made by advertisements, and to safeguard against misleading advertisements

 

  • 1.1. Advertisements must be truthful. All descriptions, claims and comparisons, which relate to matters of objectively ascertainable fact, should be capable of substantiation. Advertisers and advertising agencies are required to produce such substantiation as and when called upon to do so by The Advertising Standards Council of India.
  • 1.2. Where advertising claims are expressly stated to be based on, or supported by independent research or assessment, its source and date should be indicated in the advertisement.
  • 1.3. Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution, which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by The Advertising Standards Council of India, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement.
  • 1.4. Advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions. Advertisements shall not contain statements or visual presentation, which directly, or by implication or by omission or by ambiguity or by exaggeration, are likely to mislead the consumer about the product advertised or the advertiser, or about any other product or advertiser.
  • 1.5. Advertisements shall not be so framed as to abuse the trust of consumers, or exploit their lack of experience or knowledge. No advertisement shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers. For example:

 

  1. Products shall not be described as `free’ where there is any direct cost to the consumer other than the actual cost of any delivery, freight, or postage. Where such costs are payable by the consumer, a clear statement that this is the case shall be made in the advertisement.
  2. Where a claim is made that if one product is purchased, another product will be provided `free’, the advertiser is required to show, as and when called upon by The Advertising Standards Council of India, that the price paid by the consumer for the product which is offered for purchase with the advertised incentive is no more than the prevailing price of the product without the advertised incentive
  3. Claims which use expressions such as “up to five years guarantee” or “Prices from as low as Rs.Y” are not acceptable if there is a likelihood of the consumer being misled, either as to the extent of the availability, or as to the applicability of the benefits offered.
  4. Special care and restraint has to be exercised in advertisements addressed to those suffering from weakness, any real or perceived inadequacy of any physical attributes such as height or bust development, obesity, illness, impotence, infertility, baldness and the like, to ensure that claims or representations, directly or by implication, do not exceed what is considered prudent by generally accepted standards of medical practice and the actual efficacy of the product.
  5. Advertisements inviting the public to invest money shall not contain statements which may mislead the consumer in respect of the security offered, rates of return or terms of amortisation; where any of the foregoing elements are contingent upon the continuance of, or change in existing conditions, or any other assumptions, such conditions or assumptions must be clearly indicated in the advertisement.
  6. Advertisements inviting the public to take part in lotteries or prize competitions permitted under law, or which hold out the prospect of gifts, shall state clearly all material conditions as to enable the consumer to obtain a true and fair view of their prospects in such activities. Further, such advertisers shall make adequate provisions for the judging of such competitions, announcement of the results and the fair distribution of prizes or gifts according 11 to the advertised terms and conditions within a reasonable period of time. With regard to the announcement of results, it is clarified that the advertiser’s responsibility under this section of the Code is discharged adequately if the advertiser and results in the media used to announce the competition, as far as is practicable and advises the individual winners by post.

 

  • 1.6. Obvious untruths or exaggerations intended to amuse or to catch the eye of the consumer are permissible, provided that they are clearly to be seen as humorous or hyperbolic, and not likely to be understood as making literal or misleading claims for the advertised product.
  • 1.7. In mass manufacturing and distribution of goods and services it is possible that there may be an occasional and unintentional lapse in the fulfilment of an advertised promise or claim. Such occasional and unintentional lapses may not invalidate the advertisement in terms of this Code. In judging such issues, due regard shall be given to the following:

 

  1. Whether the claim or promise is capable of fulfilment by a typical specimen of the product advertised.
  2. Whether the proportion of product failures is within generally acceptable limits.
  3. Whether the advertiser has taken prompt action to make good the deficiency to the consumer.

 

 

CHAPTER II. NON-OFFENSIVE TO PUBLIC

 

To ensure that advertisements are not offensive to generally accepted standards of public decency.

 

  • Advertisements should contain nothing indecent, vulgar, especially in the depiction of women, or nothing repulsive which is likely, in the light of generally prevailing standards of decency and propriety, to cause grave and widespread offence.

 

 

CHAPTER III. AGAINST HARMFUL PRODUCTS / SITUATIONS

 

To safeguard against the indiscriminate use of advertising in situations or of the promotion of products which are regarded as hazardous or harmful to society or to individuals, particularly children, to a degree, or of a type which is unacceptable to society at large.

 

  • 3.1. No advertisement shall be permitted which:

  1. Tends to incite people to crime or to promote disorder and violence or intolerance.
  2. Derides any individual or groups on the basis of race, caste, colour, religion, gender, body shape, age, sexual orientation, gender identity, physical or mental conditions, or nationality.
  3. Presents criminality as desirable, or directly or indirectly encourages people - particularly children - to emulate it, or conveys the modus operandi of any crime.
  4. Adversely affects friendly relations with a foreign State.

 

  • 3.2. Advertisements addressed to children shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental or moral harm, or which exploits their vulnerability. For example, advertisements:

  1. Should not encourage children to enter strange places or converse with strangers in an effort to collect coupons, wrappers, labels, or the like.
  2. Should not feature dangerous or hazardous acts which are likely to encourage children to emulate such acts in a manner which could cause harm or injury.
  3. Should not show children using or playing with matches or any inflammable or explosive substance; or playing with, or using sharp knives, guns or mechanical or electrical appliances, the careless use of which could lead to their suffering cuts, burns, shocks or other injury.
  4. Should not feature children for tobacco or alcohol-based products.
  5. Should not feature personalities from the field of sports and entertainment for products which, by law, require a health warning such as “………….. is injurious to health” in their advertising or packaging.

 

  • 3.3. Advertisements shall not, without justifiable reason, show or refer to dangerous practices, or manifest a disregard for safety, or encourage negligence.
  • 3.4. Advertisements should contain nothing which is in breach of the law, nor omit anything which the law requires.
  • 3.5. Advertisements shall not propagate products, the use of which is banned under the law.
  • 3.6. Advertisements for products whose advertising is prohibited or restricted by law or by this Code must not circumvent such restrictions by purporting to be advertisements for other products, the advertising of which is not prohibited or restricted by law, or by this Code. In judging whether or not any particular advertisement is an indirect advertisement for a product whose advertising is restricted or prohibited, due attention shall be paid to the following:

  1. Whether the unrestricted product, which is purportedly sought to be promoted through the advertisement under the complaint, is produced and distributed in reasonable quantities, having regard to the scale of the advertising in question, the media used and the markets targeted.
  2. Whether there exist in the advertisement under complaint, any direct or indirect clues or cues which could suggest to consumers that it is a direct or indirect advertisement for the product whose advertising is restricted or prohibited by law or by this Code.
  3. Where advertising is necessary, the mere use of a brand name or company name that may also be applied to a product whose advertising is restricted or prohibited, is not a reason to find the advertisement objectionable, provided the advertisement is not objectionable in terms of (a) and (b) above.

 

CHAPTER IV.  FAIR IN COMPETITION

 

To ensure that advertisements observe fairness in competition such that the consumer’s need to be informed on choice in the marketplace and the canons of generally accepted competitive behavior in business are both served.

 

  • 4.1. Advertisements containing comparisons with other manufacturers or suppliers, or with other products, including those where a competitor is named, are permissible in the interests of vigorous competition and public enlightenment, provided:

  1. It is clear what aspects of the advertiser’s product are being compared with what aspects of the competitor’s product.
  2. The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.
  3. The comparisons are factual, accurate and capable of substantiation.
  4. There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared.
  5. The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.

  • 4.2. Advertisements shall not make unjustifiable use of the name or initials of any other firm, company or institution, nor take unfair advantage of the goodwill attached to the trademark or symbol of another firm, its product or the goodwill acquired by its advertising campaign.
  • 4.3. Advertisements shall not be similar to any other advertiser’s earlier run advertisements in general layout, copy, slogans, visual presentations, music or sound effects, so as to suggest plagiarism.
  • 4.4. As regards matters covered by sections 2 and 3 above, complaints of plagiarism of advertisements released earlier abroad will lie outside the scope of this Code, except in the under-mentioned circumstances:

  1. The complaint is lodged within 12 months of the first general circulation of the advertisements/campaign complained against.
  2. The complainant provides substantiation regarding the claim of prior invention/usage abroad.

 

 

AUTOMOTIVE VEHICLES (April 1, 2008)

 

Preamble

 

Advertisements have a significant influence on people’s behaviour. As such, advertisers are encouraged to depict advertisements in a manner which promotes safe practices, e.g., wearing of helmets and fastening of seat belts, not using mobiles/ cell phones when driving, etc.

 

Guidelines

 

Specifically, advertisements should not:

 

  1. Portray violation of traffic rules.
  2. Show speed maneuverability in a manner which encourages unsafe or reckless driving, which could harm the driver, passengers and/or the general public.
  3. Show stunts or actions, which require professional driving skills, in normal traffic conditions, which in any case should carry a readable cautionary message drawing viewer attention to the depiction of stunts. 
CHILDREN
From Chapter III of the ASCI code Harmful products/ situations

 

  • 3.2. Advertisements addressed to children shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental or moral harm, or which exploits their vulnerability. For example, advertisements: 

  1. Should not encourage children to enter strange places or converse with strangers in an effort to collect coupons, wrappers, labels, or the like.
  2. Should not feature dangerous or hazardous acts which are likely to encourage children to emulate such acts in a manner which could cause harm or injury.
  3. Should not show children using or playing with matches or any inflammable or explosive substance; or playing with, or using sharp knives, guns or mechanical or electrical appliances, the careless use of which could lead to their suffering cuts, burns, shocks or other injury.
  4. Should not feature children for tobacco or alcohol-based products.
  5. Should not feature personalities from the field of sports and entertainment for products which, by law, require a health warning such as “………….. is injurious to health” in their advertising or packaging.

Additionally, clause 3.1 provides: No advertisement shall be permitted which...(c) Presents criminality as desirable, or directly or indirectly encourages people - particularly children (italics ours) - to emulate it, or conveys the modus operandi of any crime.

 

The CCPA advertising guidelines also carry some significant provisions under article 8 on children’s targeted advertising. See below.

 

 

 

https://www.indiacode.nic.in/bitstream/123456789/15256/1/A2019-35.pdf

 

2. Definitions. In this Act, unless the context otherwise requires, (1) "advertisement" means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents;

 

  • Chapter I Section 2 article 28 "misleading advertisement" in relation to any product or service, means an advertisement which:

 

  1. falsely describes such product or service; or
  2. gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or
  3. conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
  4. deliberately conceals important information;

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

 

  • Article (47)  "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:
     
  1. making any statement, whether orally or in writing or by visible representation including by means of electronic record, which:

 

  1. falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
  2. falsely represents that the services are of a particular standard, quality or grade;
  3. falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
  4. represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
  5. represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
  6. makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
  7. gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof: Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
  8. makes to the public a representation in a form that purports to be:

 

  1. a warranty or guarantee of a product or of any goods or services; or
  2. a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

 

  1. materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
  2. gives false or misleading facts disparaging the goods, services or trade of another person.

 

Explanation. For the purposes of this sub-clause, a statement that is:
 

 

  1. expressed on an article offered or displayed for sale, or on its wrapper or container; or
  2. expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
  3. contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;

 

  1. permitting the publication of any advertisement, whether in any newspaper or otherwise, including by way of electronic record, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation. For the purpose of this sub-clause, "bargain price" means:
 

 

  1. a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or
  2. a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

 

  1. permitting:

 

  1. the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged, in the transaction as a whole;
  2. the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, except such contest, lottery, game of chance or skill as may be prescribed;
  3. withholding from the participants of any scheme offering gifts, prizes or other items free of charge on its closure, the information about final results of the scheme.

 

Explanation. For the purpose of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspaper in which the scheme was originally advertised.

 

CCPA GUIDELINES FOR PREVENTION OF MISLEADING ADVERTISEMENTS AND ENDORSEMENTS FOR MISLEADING ADVERTISEMENTS, 2022
Extracts only; full guidelines here

 

4. Conditions for non-misleading and valid advertisement:

 

  1. An advertisement shall be considered to be valid and not misleading, if: 

 

  1. it contains truthful and honest representation;
  2. it does not mislead consumers by exaggerating the accuracy, scientific validity or practical usefulness or capability or performance or service of the goods or product;
  3. it does not present rights conferred on consumers by any law as a distinctive feature of advertiser’s offer;
  4. it does not suggest that the claims made in such advertisement are universally accepted if there is a significant division of informed or scientific opinion pertaining to such claims;
  5. it does not mislead about the nature or extent of the risk to consumers’ personal security, or that of their family if they fail to purchase the advertised goods, product or service;
  6. it ensures that the claims that have not been independently substantiated but are based merely on the content of a publication do not mislead consumers;
  7. it complies with the provisions contained in any other sector specific law and the rules and regulations made thereunder.

 

  1. Notwithstanding anything contained in sub-paragraph (1), if any occasional and unintentional lapse in the fulfilment of an advertised promise or claim occurs while carrying out mass manufacture and distribution of goods, products and services, such unintentional lapse may not invalidate the advertisement, provided:

 

  1. Such promise or claim is capable of fulfilment by a typical specimen of the product advertised;
  2. the proportion of product failures is within the generally acceptable limits;
  3. the advertiser has taken prompt action to make good the deficiency to the consumer. 

 

Free claims 

 

7. Free claims advertisements. A free claims advertisement shall:
 

  1. not describe any goods, product or service to be ‘free’, ‘without charge’ or use such other terms if the consumer has to pay anything other than the unavoidable cost of responding to such advertisement and collecting or paying for the delivery of such item;
  2. make clear the extent of commitment that a consumer shall make to take advantage of a free offer;
  3. not describe any goods, product or service to be free, if–

 

  1. the consumer has to pay for packing, packaging, handling or administration of such free goods, product or service;
  2. the cost of response, including the price of goods, product or service which the consumer has to purchase to take advantage of such offer, has been increased, except where such increase results from factors unrelated to the cost of promotion; or
  3. the quality or quantity of the goods, product or service that a consumer shall purchase to take advantage of the offer has been reduced;

 

  1. not describe an element of a package as free if such element is included in the package price;
  2. not use the term ‘free trial’ to describe a ‘satisfaction or your money back’ offer or an offer for which anon-refundable purchase is required.

 

Children

 

8. Children targeted advertisements.

 

  1. An advertisement that addresses or targets or uses children shall not:

 

  1. condone, encourage, inspire or unreasonably emulate behaviour that could be dangerous for children;
  2. take advantage of children's inexperience, credulity or sense of loyalty;
  3. exaggerate the features of goods, product or service in such manner as to lead children to have unrealistic expectations of such goods, product or service;
  4. condone or encourage practices that are detrimental to children's physical health or mental wellbeing;
  5. imply that children are likely to be ridiculed or made to feel inferior to others or become less popular or disloyal if they do not purchase or make use of such goods, product or service
  6. include a direct exhortation to children to purchase any goods, product or service or to persuade their parents, guardians or other persons to purchase such goods, product or service for them;
  7. use qualifiers such as ‘just’ or ‘only’ to make the price of goods, product or service seem less expensive where such advertisement includes additional cost or charge;
  8. feature children for advertisements prohibited by any law for the time being in force, including tobacco or alcohol-based products;
  9. feature personalities from the field of sports, music or cinema for products which under any law requires a health warning for such advertisement or cannot be purchased by children
  10. make it difficult for children to judge the size, characteristics and performance of advertised products and to distinguish between real life situations and fantasy;
  11. exaggerate what is attainable by an ordinary child using the product being marketed;
  12. exploit children’s susceptibility to charitable appeals and shall explain the extent to which their participation will help in any charity-linked promotions;
  13. resort to promotions that require a purchase to participate and include a direct exhortation to make a purchase addressed to or targeted at children;
  14. claim that consumption of a product advertised shall have an effect on enhancing intelligence or physical ability or bring exceptional recognition without any valid substantiation or adequate scientific evidence;
  15. claim any health or nutritional claims or benefits without being adequately and scientifically substantiated by a recognized body;
  16. be published in any mass media, including advertisement on network games in respect of medical services, drugs, dietary supplements, medical instruments, cosmetic products, liquor or cosmetic surgery which are adverse to the physical and mental health of children.

 

  1. An advertisement of any goods, product or service which addresses or targets children shall not:
     

 

  1. be such as to develop negative body image in children;
  2. give any impression that such goods, product or service is better than the natural or traditional food which children may be consuming.

 

  1. An advertisement for junk foods, including chips, carbonated beverages and such other snacks and drinks shall not be advertised during a program meant for children or on a channel meant exclusively for children.
  2. Any advertisement which offers promotional gifts to persuade children to buy goods, product or service without necessity or promotes illogical consumerism shall be discouraged.

 

 

 

  • The Cable Television Networks (Regulation) Act, 1995, known as the CTN act provides under article 6 'No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed Advertisement Code,' extracted in full in othe following Channel Section C under the TV and radio header, or see the linked code 

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

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


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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

 

Truthfulness (Art. 5)

 

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

 

Substantiation (Art. 6)

 

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

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

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

 

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

 

 

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

 

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

 

Comparisons (Art. 11)​

 

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

 

 

Denigration (Art. 12)

 

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

 

 

Testimonials (Art. 13)

 

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

 

 

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

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

 

Imitation (Art. 16)

 

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

 

 

Safety and health (Art. 17)

 

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

 

 

 

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

 

 

D1. Honest and truthful presentation

 

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

 

 

D2. Scientific research

 

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

 

 

D3. Superiority and comparative claims

 

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

 

 

D4. Product life-cycle, components and elements

 

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

 

 

D5. Signs and symbols

 

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

 

 

D6. Waste handling

 

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

 

 

D7. Responsibility

 

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

 

 

 

Additional guidance

 

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

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

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

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

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

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

 

 

18.2. Inexperience and credulity of children

 

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

 

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

 

18.3. Avoidance of harm

 

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

 

 

18.4. Social values

 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

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

 

 

 

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

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

 

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

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product

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

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

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

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

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

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

 

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

 

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

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

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

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

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

 

 

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

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

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

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

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

C. Channel Rules

1. TV/Radio/VOD

Sector

General

SECTION C: TV & RADIO/ AV

 

 

In brief: media law and regulation in India from INDUSLAW/ Lex June 2022

Television in India from Wikipedia 

 

STANDARD RULES 

 

  • The content rules set out in our earlier Section B should be observed in all channels. As well as the (non-exhaustive) extracts below that relate more specifically to TV, all commercial communications are subject to the full codes or rules or laws except where rules are print or online specific, and may well be reviewed under more 'general' terms such as those for misleadingness, decency etc. 
  • The principal sources of rules (excepting those from the CTN act set out below) are the ASCI code of self-regulation and the CCPA advertising guidelines, or to give them their full title 'Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.'
  • The CCPA advertising guidelines linked above require under article 8 (3) children targeted advertisements: An advertisement for junk foods, including chips, carbonated beverages and such other snacks and drinks shall not be advertised during a program meant for children or on a channel meant exclusively for children.

 

RELEVANT LEGISLATION AND CODE

 

 

Rule 7. Advertisement Code

 

  1. Advertising carried in the cable service shall be so designed as to conform to the laws of the country and should not offend morality, decency and religious susceptibilities of the subscribers.
  2. No advertisement shall be permitted which:

 

  1. derides any race, caste, colour, creed and nationality;
  2. is against any provision of the Constitution of India;
  3. tends to incite people to crime, cause disorder or violence or breach of law or glorifies violence or obscenity in any way;
  4. presents criminality as desirable;
  5. exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary;
  6. in its depiction of women violates the constitutional guarantees to all citizens. In particular, no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The cable operator shall ensure that the portrayal of the female form, in the programmes carried in his cable service, is tasteful and aesthetic, and is within the well established norms of good taste and decency;
  7. exploits social evils like dowry, child marriage;
  8. promotes directly or indirectly production, sale or consumption of:

 

  1. Cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants; provided that a product that uses a brand name or logo, which is also used for cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants, may be advertised on cable service subject to the following conditions that:

 

  1. the story board or visual of the advertisement must depict only the product being advertised and not the prohibited products in any form or manner;
  2. the advertisement must not make any direct or indirect reference to the prohibited products;
  3. the advertisement must not contain any nuances or phrases promoting prohibited products;
  4. the advertisement must not use particular colours and layout or presentations associated with prohibited products;
  5. the advertisement must not use situations typical for promotion of prohibited products when advertising the other products;

 

Provided further that:
 

  1. the advertiser shall submit an application with a copy of the proposed advertisement along with a certificate by a registered Chartered Accountant that the product carrying the same name as cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants is distributed in reasonable quantity and is available in substantial number of outlets where other products of the same category are available and the proposed expenditure on such advertising thereon shall not be disproportionate to the actual sales turnover of the product;
  2. All such advertisements found to be genuine brand extensions by the Ministry of Information and Broadcasting shall be previewed and certified by the Central Board of Film Certification as suitable for unrestricted public exhibition and are in accordance with the provisions contained in sub-clause (i) to (v) of the first proviso, prior to their telecast or transmission or retransmission.

 

  1. infant milk substitutes, feeding bottle or infant food.

 

 

  1. No advertisement shall be permitted, the objects whereof, are wholly or mainly of a religious or political nature; advertisements must not be directed towards any religious or political end. (3A) No advertisement shall contain references which hurt religious sentiments;
  2. The goods or services advertised shall not suffer from any defect or deficiency as mentioned in Consumer Protection Act, 1986;
  3. No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or supernatural property or quality, which is difficult of being proved;
  4. The picture and the audible matter of the advertisement shall not be excessively loud;
  5. No advertisement which endangers the safety of children or creates in them any interest in unhealthy practices or shows them begging or in an undignified or indecent manner shall not be carried in the cable service;
  6. Indecent, vulgar, suggestive, repulsive or offensive themes or treatment shall be avoided in all advertisements;
  7. No advertisement which violates the Code for self-regulation in advertising, as adopted by the Advertising Standard Council of India (ASCI), Mumbai, for public exhibition in India, from time to time, shall be carried in the cable service;
  8. All advertisement should be clearly distinguishable from the programme and should not in any manner interfere with the programme viz., use of lower part of screen to carry captions, static or moving alongside the programme;
  9. No programme shall carry advertisements exceeding twelve minutes per hours, which may include up to ten minutes per hour of commercial advertisements, and up to two minutes per hour of the channel’s self-promotional programmes. 

 

 

 

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

International

SECTION C TV/AV AND RADIO

 

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

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

 

LEGISLATION KEY CLAUSES 

 

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

 

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 
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Read more

2. Cinema/Press/Outdoor

Sector

General

International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable Self-Regulation and legislation 

 

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

 

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

 

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

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

 

 

Article B12 Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

In brief: media law and regulation in India from INDUSLAW/ Lex June 2022

India - Data Protection OverviewOne Trust data guidance November 2022

 

CONTEXT AND STANDARD RULES 

 

  • The content rules set out in our earlier Section B should be observed for all advertising activity online. As well as the (non-exhaustive) extracts below that relate more specifically to some online techniques, all 'advertisements' are subject to the full codes or rules or laws. The ASCI code linked below defines an advertisement as follows: 'a paid-for communication, addressed to the  public or a section of it, the purpose of which is to promote, directly or  indirectly, the sale or use of goods and services to whom it is addressed. Any communication which in the normal course may or may not be recognized as advertisement by the general public, but is paid for or owned  or authorized by the Advertiser or their Advertising Agency would be  included in the definition.' 
  • The CCPA guidelines, also linked below, define various forms of advertising (see article 2) but leaves the definition of advertising itself to the Consumer Protection Act, from which the CCPA springs: 'an advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.' Chapter I Section 2. Advertising is very broadly defined, therefore.
  • The principal sources of rules are the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment.

 

 

GUIDELINES FOR INFLUENCER ADVERTISING IN DIGITAL MEDIA
From the ASCI Code of self-regulation April 21st, 2022
https://ascionline.in/images/pdf/asci_code_of_self_regulation.pdf

Also downloadable here: https://asci.social/guidelines

 

 

Definitions

 

  • Influencer: An Influencer is someone who has access to an audience and the power to affect their audiences’ purchasing decisions or opinions about a product, service, brand or experience, because of the influencer’s authority, knowledge, position, or relationship with their audience.
  • Virtual Influencer: Virtual influencers, are fictional computer generated ‘people’ or avatars who have the realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers.
  • Material connection: A material connection is any connection between an advertiser and influencer that may affect the weight or credibility of the representation made by the influencer. Material connection could include, but is not limited to benefits and incentives, such as monetary or other compensation, free products with or without any conditions attached including those received unsolicited, discounts, gifts, contest and sweepstakes entries, trips or hotel stays, media barters, coverage, awards, or any family or employment relationship, etc.
  • Digital media: Digital Media is defined as a means of communication that can be transmitted over the internet or digital networks, and includes communication received, stored, transmitted, edited or processed by a digital media platform. Digital media includes but is not limited to:

  1. Internet (advergames, sponsored posts, branded content, promotional blogs, paid-for links, gamification, in-game advertising, teasers, viral advertising, augmented reality, native advertising, connected devices, influencers, etc.)
  2. On-demand across platforms, including near video on demand, subscription video on demand, near movie on demand, free video on demand, transactional video on demand, advertising video on demand, video on demand, pay per view, etc.
  3. Mobile broadcast, mobile, communications content, websites, blogs, apps, etc./digital TV (including digital video broadcasting, handheld and terrestrial), etc.
  4. NSTV (non-standard television)
  5. DDHE (digital delivery home entertainment)
  6. DTT (digital terrestrial television)

 

Preamble

 

As digital media becomes increasingly pervasive and more consumers start to consume advertising on various digital platforms, it has become important to understand the peculiarities of these advertisements and the way consumers view them. With lines between content and advertisements becoming blurry, it is critical that consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behaviour for an immediate or eventual commercial gain. Consumers may view such messages without realising the commercial intent of these, and that becomes inherently misleading, and in violation of clause 1.4 (misleading by omission) and 1.5 (abuse trust of consumers or exploit their lack of experience or knowledge).

 

 

Guidelines

 

  1. Disclosure All advertisements published by social media influencers or their representatives, on such influencers’ accounts must carry a disclosure label that clearly identifies it as an advertisement.

 

  • 1.1 The following criteria must be used to determine if disclosure is required:

 

 

  1. Disclosure is required if there is any material connection between the advertiser and the influencer.
  2. Material connection is not limited to monetary compensation. Disclosure is required if there is anything of value given to mention or talk about the advertiser’s product or service. For example: If the advertiser or its agents gives free or discounted products or service, or other perks, and then the influencer mentions one of its products or services, a disclosure is needed even if they were not specifically asked to talk about that product or service.
  3. Disclosures are required even if the evaluations are unbiased or fully originated by the influencer, so long as there is a material connection between the advertiser and influencer.
  4. If there is no material connection and the influencer is telling people about a product or service they bought and happen to like, that is not considered to be an advertisement and no disclosure is required on such posts.

 

  • 1.2 Disclosure must be upfront and prominent so that it is not missed by an average consumer

 

 

  1. It should be placed in a manner that is hard to miss.
  2. Disclosures are likely to be missed if they appear only on an ABOUT ME or profile page, or bios, at the end of posts or videos, or anywhere that requires a person to click MORE.
  3. Disclosure should not be buried in a group of hashtags or links.
  4. Using a platform’s disclosure tool should be considered in addition to an influencer’s own disclosure.
  5. If the advertisement is only a picture or video post without accompanying text (such as Instagram stories or Snapchat), the discloser label needs to be superimposed over the picture/ video, and it should be ensured that the average consumer is able to see it clearly.

 

  1. For videos that last 15 seconds or lesser, the disclosure label must stay for a minimum of 3 seconds.
  2. For videos longer than 15 seconds, but less than 2 minutes, the disclosure label should stay for 1/3rd the length of the video.
  3. For videos which are 2 minutes or longer, the disclosure label must stay for the entire duration of the section in which the promoted brand or its features, benefits etc., are mentioned.

 

  1. In live streams, the disclosure label should be announced at the beginning and the end of the broadcast. If the post continues to be visible after the live stream is over, appropriate disclosure must be added to the text/caption.
  2. In the case of audio media, the disclosure must be clearly announced at the beginning and at the end of the audio, and before and after every break that is taken in between.

 

  • 1.3 The disclosure must be made in a manner that is well understood by an average consumer.

 

  1. Following is the list of disclosure labels permitted. Any one or more can be used:

 

  • Advertisement
  • Ad
  • Sponsored
  • Collaboration
  • Partnership
  • Employee
  • Free gift 
  • “Paid Partnership” tag on Instagram
  • Affiliate
  • “Includes Paid Promotion” tag on YouTube

 

  1. The disclosure should be in English OR in the language as the advertisement itself, in a way that is easy for an average consumer to understand.

 

  • 1.4 A virtual influencer must additionally disclose to consumers that they are not interacting with a real human being. This disclosure must be upfront and prominent.
  • 1.5 Responsibility of disclosure of material connection and also of the content of advertisement is upon the advertiser for whose product or service the advertisement is, and also upon the influencer. For clarity, where advertiser has a material connection with the influencer, advertiser’s responsibility will be to ensure that the posted influencer advertisement is in line with the ASCI code and its guidelines. While the influencer shall be responsible for making disclosures required under the guidelines, the advertiser, shall, where needed, call upon the influencer to delete or edit an advertisement or the disclosure label to adhere to the ASCI Code and Guidelines.

 

  1. Due Diligence. The influencers are advised to review and satisfy themselves that the advertiser is in a position to substantiate the claims made in the advertisement.

 

Addendum (Dated 15.07.2021)

 

If an influencer/advertiser disputes that the piece of communication in question is not an advertisement as there is no material connection, the following evidence will be required to be submitted to ASCI:

 

  1. A declaration from the advertiser stating that there is no material connection between them and the influencer as on the date of the post. This declaration needs to be signed by a senior member of the advertiser’s organisation such as the Marketing Head, Legal/ Compliance Head, and Digital Marketing Head or similar.
  2. In the event that the advertiser of the brand featured is difficult to trace in spite of reasonable efforts, or if the piece of communication features brands of multiple advertisers, then proof of purchase of featured products and brands, provided by the influencer, would be considered adequate evidence to refute material connection. 

 

 CONSUMER PROTECTION (E-COMMERCE) RULES 2020 
From the Department of Consumer Affairs
https://consumeraffairs.nic.in/sites/default/files/E%20commerce%20rules.pdf

 

2. Scope and applicability

 

  1. Save as otherwise expressly provided by the Central Government by notification, these rules shall apply to:

 

  1. all goods and services bought or sold over digital or electronic network including digital products;
  2. all models of e-commerce, including marketplace and inventory models of e-commerce;
  3. all e-commerce retail, including multi-channel single brand retailers and single brand retailers in single or multiple formats; and
  4. all forms of unfair trade practices across all models of e-commerce:

 Provided that these rules shall not apply to any activity of a natural person carried out in a personal capacity not being part of any professional or commercial activity undertaken on a regular or systematic basis.

 

  1. Notwithstanding anything contained in sub-rule (1), these rules shall apply to a e-commerce entity which is not established in India, but systematically offers goods or services to consumers in India.

 

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  • Rules, as you might expect, largely relate to the information that should be provided to consumers by platforms and the processes to be applied in the course of transactions. An advertising-specific clause relates to sellers on e-commerce platforms under article 6: (4)(c) ensure that the advertisements for marketing of goods or services are consistent with the actual characteristics, access and usage conditions of such goods or services;
  • Some other commercial communications on the e-commerce platform may fall under the definition of advertising in ASCI codes and the CCPA guidelines and will therefore be required to observe the respective rules.

 

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

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

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

Also be aware of:

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

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

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

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

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

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

 

Self-Regulatory clauses 

 

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

 

C1. Identification and transparency

 

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

 

C2. Identity of the marketer

 

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

C7. Marketing communications and children

 

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

 

C10. Respect for the potential sensitivities of a global audience

 

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

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

 

Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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Read more

4. Cookies & OBA

Sector

General

SECTION C: COOKIES AND OBA

 

 

 

STANDARD RULES 

 

  • In the cookies context, the key legislation and accompanying rules are the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022). India - Data Protection Overview from One Trust data guidance November 2022 is a clear and complete summary of the data protection framework in India 
  • Bird&Bird's Global Cookie Review of Winter 2022 includes rules from India. 'There are no specific Indian laws regulating cookies. Under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”), which set out general data protection obligations, consent of the information provider is the only ground for the collection of sensitive personal data or information or “SPDI” – a subcategory of personal data that includes passwords, financial information, physical, physiological and mental health conditions, sexual orientation, medical records and history, and biometric information. While the use of cookies does not require consent, to the extent cookies are used to collect SPDI, consent must be obtained prior to the deployment of such cookies. Separately, market practice has also evolved in a manner where organisations generally seek consent for the use of cookies, regardless of whether any SPDI is collected through such use.' There's more in the linked review
  • OBA is the same as any other advertising in as much as it is subject to the advertising rules - those mainly being the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment. As far as we can establish, there is no EDAA equivalent operating in India 

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

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

From Reed Smith LLP/ Lex May 2022 

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

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

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

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

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

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

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

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

 

C22.1. Notice

 

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

 

C22.2. User control

 

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

 

C22.5. Data security

 

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

 

C22.6 Children

 

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

 

C22.7. Sensitive data segmentation

 

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

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European Self-Regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

 

STANDARD RULES 

 

  • In the context of data protection rules, which will apply to the processing of list data, the key legislation and accompanying rules are the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022). India - Data Protection Overview from One Trust data guidance November 2022 is a clear and complete summary of the data protection framework in India. 
  • In terms of the content of email advertising, requirements are the same as for any other advertising in as much as it is subject to the advertising rules - those mainly being the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give the latter their full title, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment.

 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

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

 

 

Article 19 ICC Code: Data protection and privacy

 

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

 

19.1. Collection of data and notice

 

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

 

 

19.2. Use of data

 

Personal data should be:

 

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

 

 

19.3. Security of processing

 

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

 

 

19.4. Children’s personal data

 

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

19.5. Privacy policy

 

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

 

 

19.6. Rights of the consumer

 

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

 

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

 

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

 

 

19.7. Cross-border transactions

 

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

 

 

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

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

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

 

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

 

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

 
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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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6. Own Websites & SNS

Sector

General

SECTION C: MARKETERS' OWN WEBSITES

 

 

STANDARD RULES 

 

  • The key issue in this owned environment is which communications are in the remit of the various applicable rules. As far as we can establish, there is no specific definition of what's in remit in the owned environment, though advertising as defined in the ASCI Code linked below contains references to that environment: 'An Advertisement is defined as a paid-for communication, addressed to the  public or a section of it, the purpose of which is to promote, directly or  indirectly, the sale or use of goods and services to whom it is addressed. Any communication which in the normal course may or may not be recognized as advertisement by the general public, but is paid for or owned  or authorized by the Advertiser or their Advertising Agency would be included in the definition.'
  • The CCPA guidelines take their definition of advertising from the Consumer Protection Act 2019 linked below: 'an advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.' This is obviously very broad; we can't be definitive about regulatory working practices in relation to this issue of owned space - advice should be sought if uncertain.
  • In terms of 'advertising' content, owned space requirements are the same as for any other advertising in as much as it is subject to the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give the latter their full title, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to online advertising, which is also subject to the Consumer Protection Act 2019. This October 2022 piece from AZB Partners/ Lex Q&A: online advertising in India is a helpful overview of what to look out for in this environment.
  • In the context of data protection rules, the key legislation and accompanying rules are the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022). India - Data Protection Overview from One Trust data guidance November 2022 is a clear and complete summary of the data protection framework in India. 

 

 

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International

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

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

 

 
LEGISLATION
 

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

Unsolicited communications

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

 

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

 

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

 

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

 

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

 
 
Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

General

International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

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

Guidance: ICC Guidance on Native Advertising here

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

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

 

Standard rules

 

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

 

Self-Regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

General

 

 

FOLLOWING USER FEEDBACK WE NO LONGER COVER TELEMARKETING 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

General

SECTION C: DIRECT POSTAL MAIL

 

 

  • The content rules set out in our earlier Section B should be observed for all advertising activity. The principal sources of rules are the ASCI Code of Self-Regulation and the CCPA Advertising Guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Both sets of rules apply to direct mail, which is also subject to the Consumer Protection Act 2019
  • Data processing related to this activity is regulated principally by the Information Technology Act 2000, as amended in 2008, together with the 2011 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, linked here. It should also be noted that the government has put out to consultation the Draft Digital Personal Data Protection Bill (open until 17th December, 2022).
  • The Code of Ethics of the Indian Direct Selling Association is here; the Global DMA Privacy Principles are here and the GDMA/ India website is here; the ICC Code's Direct Marketing rules are under Chapter C of the linked code 

 

 

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International

 

Applicable Self-Regulation and legislation 

 

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

 

 

Standard rules

 

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

 

 

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

 

 

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Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

 

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

 
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10. Event Sponsorship/ Field Marketing

Sector

General

SECTION C: EVENTS/ SPONSORSHIP

 

 

  • Content of collateral and other material that supports sponsorship, while not specifically identified as in remit, is likely to be covered by the two principal sources of rules - the self-regulatory ASCI Code and the CCPA Advertising Guidelines - as both define advertising broadly
  • Child-sensitive sectors such as gambling should obviously be careful to avoid events with a significant proportion of children; guidance is conventionally 25%+. Chapter B of the ICC Code is a solid source of sponsorship rules; key clauses set out below

 

 B1  PRINCIPLES GOVERNING SPONSORSHIP

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

 B2  AUTONOMY AND SELF-DETERMINATION

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

 B3   IMITATION AND CONFUSION

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

 B4   'AMBUSHING' OF SPONSORED PROPERTIES

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

 B5  RESPECT FOR THE SPONSORSHIP PROPERTY AND THE SPONSOR

 
  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which 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 trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
 
 

 B6   THE SPONSORSHIP AUDIENCE

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

 B7  DATA CAPTURE/ DATA SHARING

 
  • If personal data is used in connection with sponsorship, the provisions of article 19 are applicable
 

 

 B8  ARTISTIC AND HISTORICAL OBJECTS

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

 B9  SOCIAL AND ENVIRONMENTAL SPONSORSHIP

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

 B10  CHARITIES AND HUMANITARIAN SPONSORSHIP

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

 B11  MULTIPLE SPONSORSHIP

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

 B12  MEDIA SPONSORSHIP

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

B13  RESPONSIBILITY

 
  • As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
  • Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

 

 

 

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International

 

 

 

Self-Regulation

 

 

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

B3: Imitation and confusion

 

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

 

 

 B4: 'Ambushing' of sponsored properties

 

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

 

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

 

B6: The sponsorship audience

 

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

 

 

B7: Data capture/ data sharing

 

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

 

 

B8: Artistic and historical objects

 

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

 

 

B9: Social and environmental sponsorship

 

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

 

 

B10: Charities and humanitarian sponsorship

 

 

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

 

 

B11: Multiple sponsorship

 

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

 

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11. Sales Promotion

Sector

General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

We define sales promotion (SP) as the use of various marketing techniques for a pre-determined, limited time in order to increase consumer demand. As this website was created to provide international rules on marketing communications, we do not claim authority on specific national SP regulation, especially retail legislation. However, when we find relevant rules in the course of what is extensive research, we will include them in this section. We check, for example, the national self-regulatory codes and consumer protection legislation for anything that impacts SP. 

 

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. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.

 

STANDARD RULES 

 

  • The content rules set out in our earlier Section B should be observed for all sales promotional activity. As well as the (non-exhaustive) extracts below that relate more specifically to sales promotions, all commercial communications are subject to the full codes or rules or laws and may well be reviewed under more 'general' terms such as those for misleadingness, decency etc. 
  • The principal sources of rules are the ASCI code of self-regulation and the CCPA advertising guidelines, or to give them their full title Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Advertising and sales promotions are also subject to the Consumer Protection Act 2019, which carries a number of relevant rules set out below.
  • The ICC Code, which has at least indirect relevance in the Indian market, carries sales promotional rules under Chapter A.

 

LEGISLATION

 

From the Consumer Protection Act 2019 (EN)


The definition of an unfair trade practice under Chapter I, section 2, article 47 includes:

 

  • (i) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
  • (ii) permitting the publication of any advertisement, whether in any newspaper or otherwise, including by way of electronic record, for the sale or supply at a bargain price of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

 

Explanation. For the purpose of this sub-clause, "bargain price" means:
 

  1. a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise; or
  2. a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

 

  • (iii) permitting: (a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged, in the transaction as a whole; (b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest, except such contest, lottery, game of chance or skill as may be prescribed; (c) withholding from the participants of any scheme offering gifts, prizes or other items free of charge on its closure, the information about final results of the scheme.

 

Explanation. For the purpose of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspaper in which the scheme was originally advertised;
 

THE CCPA ADVERTISING GUIDELINES

 

https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/CCPA%20Notification.pdf

 

  • 5. Conditions for bait advertisements. A bait advertisement shall fulfil the following conditions, namely:

 

a) such advertisement shall not seek to entice consumers to purchase goods, products or services without a reasonable prospect of selling such advertised goods, products or services at the price offered;

b) the advertiser shall ensure that there is adequate supply of goods, products or services to meet foreseeable demand generated by such advertisement;

c) such advertisement shall state the reasonable grounds which the advertiser has for believing that he might not be able to supply the advertised goods, products or services within a reasonable period and in reasonable quantities, and in particular:

 

i. if the estimated demand exceeds the supply, such advertisement shall make clear that the stock of the goods or services is limited;

ii. if the purpose of the advertisement is to assess potential demand, it shall be clearly stated such advertisement; and

iii. the advertisement shall not mislead consumers by omitting restrictions, including geographic restrictions and age-limit on the availability of the goods, products or services; (d) such advertisement does not mislead consumers about the market conditions with respect to the goods, products or services or the lack of their availability in order to induce consumers to purchase such goods, products or services at conditions less favourable than normal market conditions.

 

  • 7. Free claims advertisements. A free claims advertisement shall:

 

a) not describe any goods, product or service to be ‘free’, ‘without charge’ or use such other terms if the consumer has to pay anything other than the unavoidable cost of responding to such advertisement and collecting or paying for the delivery of such item;

b) make clear the extent of commitment that a consumer shall make to take advantage of a free offer;

c) not describe any goods, product or service to be free, if:

 

i.  the consumer has to pay for packing, packaging, handling or administration of such free goods, product or service;

ii. the cost of response, including the price of goods, product or service which the consumer has to purchase to take advantage of such offer, has been increased, except where such increase results from factors unrelated to the cost of promotion; or

iii. the quality or quantity of the goods, product or service that a consumer shall purchase to take advantage of the offer has been reduced;

 

d) ​not describe an element of a package as free if such element is included in the package price;

e) not use the term ‘free trial’ to describe a ‘satisfaction or your money back’ offer or an offer for which a non-refundable purchase is required.

 

  • ​From article 8, children targeted advertisements:

​(f) include a direct exhortation to children to purchase any goods, product or service or to persuade their parents, guardians or other persons to purchase such goods, product or service for them;
(g) use qualifiers such as ‘just’ or ‘only’ to make the price of goods, product or service seem less expensive where such advertisement includes additional cost or charge;

(m) resort to promotions that require a purchase to participate and include a direct exhortation to make a purchase addressed to or targeted at children;

(4) Any advertisement which offers promotional gifts to persuade children to buy goods, product or service without necessity or promotes illogical consumerism shall be discouraged.

 

  • From article 12, Duties of manufacturer, service provider, advertiser and advertising agency

(e) advertisement is so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge and for this purpose:
(i) such advertisement may not make claims which use expressions such as "upto five years guarantee" or “Prices from as low as Rs.“Y", instead shall clearly indicate a fixed period of guarantee of the product or a fixed price at which the product is being offered; and in case, the product has different periods of guarantee for different parts or components, it shall clearly indicate the minimum and maximum of such periods of guarantee applicable to the relevant part or components;
(ii) if such advertisements invite the public to take part in lotteries or prize competitions permitted under any law for the time being in force or hold out the prospect of gifts, it shall clearly set out all pertinent material terms and conditions so as to enable consumers to obtain a true and fair view of their prospects in such activities;

 

 

SELF-REGULATION

 

From Chapter I of the ASCI code of self-regulation, Truthful and Honest Representation, article 1.5:

 

  1. Products shall not be described as `free’ where there is any direct cost to  the consumer other than the actual cost of any delivery, freight, or postage. Where such costs are payable by the consumer, a clear statement that this is the case shall be made in the advertisement.
  2. Where a claim is made that if one product is purchased, another product  will be provided `free’, the advertiser is required to show, as and when called upon by The Advertising Standards Council of India, that the price paid by the consumer for the product which is offered for purchase with the advertised incentive is no more than the prevailing price of the product without the advertised incentive.
  3. Claims which use expressions such as “up to five years’ guarantee” or “Prices from as low as Rs. Y” are not acceptable if there is a likelihood of the consumer being misled either as to the extent of the availability or as to the applicability of the benefits offered. 

  1. Advertisements inviting the public to take part in lotteries or prize competitions permitted under law or which hold out the prospect of gifts shall state clearly all material conditions as to enable the consumer to obtain a true and fair view of their prospects in such activities. Further, such advertisers shall make adequate provisions for the judging of such competitions, announcement of the results and the fair distribution of prizes or gifts according to the advertised terms and conditions within a reasonable period of time. With regard to the announcement of results, it is clarified that the advertiser’s responsibility under this section of the Code is discharged adequately if the advertiser and results in the media used to announce the competition as far as is practicable and advises the individual winners by post.

 

 

 

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International

 

 

CONTEXT

 

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

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

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

 

 

A2: Terms of the offer

 

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

 

 

A3: Presentation

 

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

 

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

 

A5: Safety and suitability

 

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

 

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

 

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

 

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

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

 

 

C4 : Presentation

 

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

 

 

C17:  Substitution of products

 

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

 

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

 

 

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Read more

D. Advice & Clearance

General

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

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

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

 

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

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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

E. Links

Sector

General

SECTION E SOURCES/ LINKS


 

 

LEGISLATION AND STATUTORY GUIDELINES 

 

 

Consumer protection legislation

 

The Consumer Protection Act 2019 Act no. 35 of 2019 on 9th August, 2019 in force from 20th July, 2020. 'An Act to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers' disputes and for matters connected therewith or incidental thereto.' The act is notable for our purposes for the establishment of the Central Consumer Protection Authority (see below) and its related advertising guidelines. Otherwise, the act deals with complaints, redressals, mediation, product liability etc. though in a relatively unusual structure it defines misleading advertising under article 28, Chapter I, section 2. Article 47 in the same definitions section covers unfair trade practices which also relates to advertising in the context of 'bargain price' communications. Under the Consumer Protection Act Chapter I Section 2, advertising is broadly defined: 'an advertisement means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.'

https://www.indiacode.nic.in/bitstream/123456789/15256/1/A2019-35.pdf

 

Statutory authority 

 

Central Consumer Protection Authority (CCPA). Under the auspices of the Ministry of Consumer Affairs. Part of the role of the Consumer Protection Act 2019 was 'to establish authorities for timely and effective administration and settlement of consumers' disputes and for matters connected therewith or incidental thereto.' One such, and the most significant from our perspective, is a Central Consumer Protection Authority, 'to be known as the Central Authority to regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers.' The role that advertising plays in the CCPA duties is relatively unusual for such authorities and their creation of advertising guidelines or 'Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022' (see below) to provide its full title, obviously makes a notable impact in the advertising regulatory framework.

https://consumeraffairs.nic.in/acts-and-rules/consumer-protection

 

CCPA Advertising guidelines 

 

Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. 'In exercise of the powers conferred by section 18 of the Consumer Protection Act, 2019 (35 of 2019), the Central Consumer Protection Authority hereby issues the following guidelines to provide for the prevention of false or misleading advertisements and making endorsements relating thereto.' The guidelines are pretty comprehensive and mostly 'general' rules rather than sector-specific and related to misleadingness, decency, portrayal of women , endorsements where a 'material connection' exists, surrogate advertising, free claims, disclaimers, children (defined as not yet completed their 18th year). Under article 8 'An advertisement for junk foods, including chips, carbonated beverages and such other snacks and drinks shall not be advertised during a program meant for children or on a channel meant exclusively for children.'

https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/CCPA%20Notification.pdf

 

Cable television

 

Cable Television Networks (Regulation) Act, 1995. in force 29 September, 1994. 'An Act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto.' As might be expected, the act largely deals with matters such as registration of operators, programme content, powers of the authority, duties of operators etc. Chapter II, section 6 establishes the 'Advertisement Code' - see below - 'No person shall transmit or re-transmit through a cable service any advertisement unless such advertisement is in conformity with the prescribed advertisement code. The code also requires that advertisements conform to the ASCI code.

https://www.indiacode.nic.in/bitstream/123456789/1928/1/A1995-07.pdf

 

 

Cable TV Advertising Code


Prescribed under the Cable Television Network Rules, 1994 and under the auspices of the Ministry of Information and Broadcasting (MIB). Prohibits the advertising of cigarettes, tobacco products, wine, alcohol, liquor or other intoxicants; addresses issues of race, caste, colour, creed and nationality; incitement crime, or violence or breach of law or  exploits the national emblem, or any part of the Constitution or the person or personality of a national leader or a State dignitary;  depiction of women: no advertisement shall be permitted which projects a derogatory image of women. Women must not be portrayed in a manner that emphasises passive, submissive qualities and encourages them to play a subordinate, secondary role in the family and society. The code also requires that advertisements conform to the ASCI code.

https://mib.gov.in/sites/default/files/pac1.pdf

 

 

Data Protection 

 

Information Technology Act, 2000, as amended by the Information Technology (Amendment) Act, 2008. 'An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto. The 2008 act is here.

https://www.meity.gov.in/writereaddata/files/itbill2000.pdf

 

Associated rules 

 

Four sets of Rules have been introduced under the Information Technology Act, 2000, as amended by the Information Technology (Amendment) Act, 2008. 1) The Security Practices Rules require entities holding sensitive personal information of users to maintain certain specified security standards. 2) The Intermediary Guidelines Rules prohibit content of specific nature on the internet. An intermediary, such as a website host, is required to block such content. 3) The Cyber Café Rules require cyber cafés to register with a registration agency and maintain a log of identity of users and their internet usage. 4) Under the Electronic Service Delivery Rules the government can specify certain services, such as applications, certificates, licenses etc, to be delivered electronically.(From PRS India). The most significant of these rules for commercial oeprational purposes (according to is the first, its full title the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. 

https://upload.indiacode.nic.in/showfile?actid=AC_CEN_45_76_00001_200021_1517807324077&type=rule&filename=GSR313E_10511(1)_0.pdf

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 from the Ministry of Electronics and Information Technology

https://prsindia.org/billtrack/the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

 

Consumer protection e-commerce rules

 

The Consumer Protection (E-Commerce) Rules, 2020. From the Ministry of Consumer Affairs,Food and Public Distribution (Department of Consumer Affairs) July 23rd 2020. These provisions largely relate to the information that should be provided to consumers by platforms and the processes to be applied in the course of transactions. An advertising-specific clause relates to sellers on e-commerce platforms under article 6 (4)(c): 'ensure that the advertisements for marketing of goods or services are consistent with the actual characteristics, access and usage conditions of such goods or services.' Some other commercial communications on the e-commerce platform may fall under the definition of advertising in the ASCI code and the CCPA guidelines and may therefore be required to observe their respective advertising rules.
https://consumeraffairs.nic.in/sites/default/files/E%20commerce%20rules.pdf

 

 

SELF-REGULATION

 

The Code for Self-Regulation of advertising content in India. From ASCI, the Advertising Standards Council of India. The code includes 'general' rules, i.e. those on misleadingness, decency, offense, fair competition etc. as well as sections on Automotive vehicles (April 2008), Brand extensions (July 2021), Foods & Beverages (F&B; February 2013), Educational institutions and programs (April 2022), Disclaimers (October 2016) New/ improved (June 2014), Skin lightening (August 2014), Celebrities (April 2022), Awards/ rankings (April 2022), Online gambling (April 2022), Influencer advertising in digital media (April 2022), Online gambling (April 2022), Virtual digital assets (February 2022), Gender stereotypes guidelines (June 2022).

https://ascionline.in/images/pdf/code_book.pdf

 

Guidelines For Influencer Advertising In Digital Media. All advertisements published by social media influencers or their representatives, on such influencers’ accounts must carry a disclosure label that clearly identifies it as an advertisement. Disclosure is required if there is any material connection between the advertiser and the influencer. Material connection isn’t limited to monetary compensation​. The guidleines set out what forms and styles of disclosure are permissible.

https://asci.social/guidelines

 

International 

 

ICC

 

ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). Scope: From the website: 'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication.' Structure: 'The ICC Code is constructed as an integrated system of ethical rules. There are General Provisions and Definitions which apply without exception to all marketing communications; these should be read in conjunction with the more detailed provisions and specific requirements set out in the relevant chapters:

 

Chapter A. Sales Promotion
Chapter B. Sponsorship
Chapter C. Direct Marketing and Digital Marketing Communications
Chapter D. Environmental Claims in Marketing Communications.'

 

Platform:

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

Downloaded:

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

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

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

 

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

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

 

ICC toolkits

 

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​

 

 

INDUSTRY ASSOCIATIONS 

 

ISA

 

The Indian Society of Advertisers 'has been the peak national body for advertisers for 70 years and represents the interests of organisations involved in Indian advertising, marketing and media industry. ISA's aim is to promote and safeguard the rights of its members to communicate freely with their customers, and to protect consumers by ensuring advertising and marketing communications are conducted responsibly.' (from their website)

https://www.isanet.org.in/index.php

 

 

 

 

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

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

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

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

Downloaded:

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

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

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

 

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

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

 

ICC toolkits

 

 

IAB Europe

 

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

http://www.iabeurope.eu/

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

https://www.iabuk.com/goldstandard

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

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

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

 

 

ICAS

 

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

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

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

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

 

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

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

 

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

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

 

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

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

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

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

 

 

FEDMA

 

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

 

 

THE EU PLEDGE 

 

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

 

 

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

 

WFA

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

 

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

 

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

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

 

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

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

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

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

 

Article 29 Working Party/ EDPB

 

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

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

 

 

 

Key Directives in marketing communications

 

Privacy

 

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

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

 

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

 

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

E-commerce

 

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

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

 

Pricing

 

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

 

Commercial practices 

 

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

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

 

 

The Omnibus Directive 

 

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

 

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

 

Food Regulations

 

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

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

 

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

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

 

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

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

 

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

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

 

Audiovisual media 

 

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

 

 

 

 

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