Alcohol

 

Uploaded November 2018.

See individual countries for updates.

Alcohol

A. Overview

Sector

SECTION A OVERVIEW

 

Autocontrol review March 2020

Confianza Code update August 2020

AC Gen Code update Oct 2020

AC Influencer Code Dec 2020

2021 OIVE (wine) Code Jan 2021

Overhaul June 2021, new ES Confianza

IARD Influencer Global standards Sept 2021

International context October 2021

Wine Communications Standards 2022

General AV Law 2022 amends May 2022 (EN)

General Advertising Law 2022 amends (EN)

COEC translation October 2022

Reviewed November 2023; 4 links renewed 

TikTok's updated alcohol policy (EN) October 2024

WHO Europe alcohol policy playbook Nov 8, 2024

See p30 of above for SR critique 

 

INTERNATIONAL CONTEXT 

 

Advertisers/ agencies should be aware of two influences that may have an impact on regulation of their business/ advertising. In the context of Europe’s ‘Beating Cancer Action Plan’, there may be some impact on self-regulation of alcohol advertising. The second is the WHO's Global Alcohol Action Plan 2022-2030 (also see above alcohol policy playbook). The board requested 'a technical report on the harmful use of alcohol related to cross-border alcohol marketing, advertising and promotional activities, including targeting youth and adolescents.' That report from May 2022 is here. The January 2022 draft action plan is here.

 

A GENERAL POINT 

 

The rules set out in these pages are specific to the product category. They are, however, only half the story, as all products must also observe the ‘general’ rules, which are those that apply to all sectors, alcohol included. We generally show a ‘snapshot’ of such rules under each header within this sector; they are set out in full under the General tab. Most rulings are made against advertising that breaches ‘general’ misleadingness or harm and offense rules.

 

OVERVIEW

 

The regulation of alcohol marcoms in Spain is relatively restrictive and complex. There is no single code for alcohol marcoms, the rules being provided by statutory influence from the General Advertising Law 34/1988 (EN key clauses inc. 2022 amends) which prohibits the advertising on television and ‘in those places where its sale and consumption is prohibited’ of beverages with an alcoholic strength of more than 20% ABV (which in turn means that beverages with alcoholic content below 20% ABV can be advertised, even in places where its sale or consumption is prohibited). In a 2022 amendment, beverages > 20%ABV are permitted to advertise in audiovisual media between the hours of 0100 and 0500. The law and its supporting codes refer to alcoholic beverages with an ABV either above or below 20%. The official EU definition of a spirit is ‘above 15% ABV’; the likes of Martini vermouth, or Baileys Irish Cream, are below 20% ABV and therefore permitted to advertise in audiovisual media (between the hours of 2030 and 0500).

 

The General Law on Audiovisual Communication (EN key clauses inc. 2022 amends) 13/2022 now permits the advertising of beverages with an alcoholic strength of more than 20% ABV between 0100 and 0500 hrs and applies an 8:30 pm watershed for alcohol brands below 20% ABV and prohibits for the same categories all audiovisual commercial communications - including sponsorship, teleshopping, product placement - that target minors, encourage excessive consumption, or associate consumption with improved physical performance, health or social success, all of which are stipulations echoed in the self-regulatory codes. Details of these codes are in content section B by sector (Beer, Wine, Spirits); links below.

 

INDUSTRY CODES

 

 Beer: Spanish Brewers Association Cerveceros; Code here (ES); GRS translation:

http://www.g-regs.com/downloads/SPAlcBrewersCodebEN.pdf​ (EN)

 

Wine: 2021 OIVE Code (ES); AC translation here:

https://www.autocontrol.es/wp-content/uploads/2021/03/code-for-wine-commercial-communications_2021.pdf

 

Spirits: the Spanish Spirits Association FEBE Code (ES); AC translation here:

https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_febe_en.pdf

 

The codes, applicable to the associations' members, are managed by the advertising Self-Regulatory Organisation Autocontrol, who also administer the General Code of Advertising Practice (EN), applicable to Autocontrol members and those that voluntarily accept its authority, and to all product sectors including alcohol, whose individual codes are set out in full in our content section B that follows.

 

RESPONSIBLE CONSUMPTION MESSAGES (RCMs)

 

All three of the alcohol codes of conduct require the inclusion of a responsible consumption message: 

 

Beer: ‘(la marca correspondiente) recomienda el consumo responsable’  (‘X brand of beer recommends responsible consumption’

Spirits: ‘Disfruta de un consumo responsable’ (‘Enjoy responsible drinking’); must also include ABV

Wine: ‘El Vino Sólo Se Disfruta Con Moderación’ (Wine is only appreciated in moderation); or equivalent; see Code

 

RCM formatting details/ logos etc. are in our following content section B

 

The Codes apply to all forms of commercial communications Caveat Wine Code is not applicable to labelling nor in advertising where the presence of the winery is limited to communicating its sponsorship of an activity/ event. Spirits Code is not applicable to labelling, nor to sponsorship or corporate advertising, where they do not promote products or consumption

 

REGIONAL LEGISLATION IN OUTDOOR

 

The complexity referenced in our introduction is in part a function of autonomous regional legislation, which in some cases adds a number of prohibitions to those established by state legislation, which prohibits advertising of beverages of more than 20% ABV ‘in those places where its sale and consumption is prohibited’. We explain the impact of regional regulations in channel section C and include a summary here, though this is not maintained for updates with the same regularity as the rest of the website. Note, for example, that in Andalusia, home of the major tourist resorts, all alcohol advertising in 'public and private sports facilities' is prohibited. A commentary on the outdoor advertising of alcohol in the Madrid region and some others is here

 

GENERAL RULES (and some alcohol-specific) 

 

It's important that the rules that apply to all product categories, alcohol included, are observed along with the sector-specific rules. Adjudications against advertisers in regulation-sensitive sectors are frequently made on the grounds of misleadingness, social responsibility, taste and decency etc. from the general rules. The principal source of those rules in the case of Spain is the General Code of Advertising Practice (EN) from the Spanish Self-Regulatory Organisation Autocontrol. In legislation, Spain is relatively unusual in deploying a General Advertising Law 34/1988 (EN key clauses) which carries a number of provisions relating to discrimination, depiction of women etc. that are obviously significant for any sector as well as some alcohol-specific rules under article 5 referenced above. Another significant influence in commercial communication legislation is the Law 3/1991 (EN key clauses inc. 2022 amends) on Unfair Competition, which is the vehicle in Spain for the seminal Unfair Commercial Practices Directive (UCPD) 2005/29/EC, carrying rules on misleadingness in communications, 'bait' pricing, invitation to purchase etc. Amends from the 'Omnibus' Directive 2019/2161 to the UCPD include provisions for search rankings and consumer reviews which, for transposition in Spain, can be found under articles 26 and 27 of Law 3/1991. Finally in this brief snapshot, the General AV Law 13/2022 (EN key clauses inc. 2022 amends), also referenced above, carries from the Audiovisual Media Directive 2010/13/EU rules on discrimination, gender identity, protection of minors etc. as well as some very important alcohol advertising rules (art.123) in the AV environment, a remit which includes VOD and most recently, as a result of amends from Directive 2018/1808, extends that scope into video-sharing platforms where there are new rules on identification of commercial communications. See article 91 of the linked AV law. 

 

CHANNEL SELF-REGULATION 

 

Key code in this context is the Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version, most significant provisions unofficially translated here. Some rules are set out in the relevant headers under the General tab in our channel section C. Autocontrol published in October 2020 the Code of Conduct on the Use of Influencers in Advertising (ES), in force January 2021. There’s an unofficial GRS translation into English here. While the code applies to all sectors, as this particular sector may be active in this channel/ technique, we highlight it here. The code defines when Influencer advertising qualifies as such and sets out identification requirements.

 

 

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General

SECTION A OVERVIEW

 

Updates since June 2022

Draft General AV law (ES) approved June 2022

July 2022 General AV Law 13/2022 of 7 July (ES)

General Advertising Law 34/1988 ES / EN

New clauses above in force October 2022

Confianza Online Ethical Code EN Oct 2022

Greenwashing and Spanish laws. Osborne Clarke

AEPD updates Cookies Guide (ES). July 2023

Data Processing in Advertising Activities 

EN version released by AC October 5, 2023

Draft Decree (ES) on Influencer regulation the requirements to be considered a user of special relevance for the purposes of the provisions of Law 13/2022

Above from the Ministry consultation closed Dec 20, 2023

See below under Issues/News. Decree approved 

Register for AV Service Providers. GALA Jan 8, 2024

AEPD 2023 Activity Report (ES) April 2024

The above Google Translated here

RD 444/2024 (ES) of April 30 approved

Government regulatory plan 2024 (ES)

The above Google Translated here

DLA Piper Environmental Advertising Claims Guide 

Above from August 7, 2024 includes Spain

New ICC Code September 19 2024 (EN)

Autocontrol newsletter October 2024 (ES)

 

SOME RECENT DEVELOPMENTS

 

CSRD: practical aspects re sustainability report
Garrigues November 5, 2024

The future of eco-labelling in the Spanish market
Bird & Bird. November 12, 2024

Spanish govt. proposes new digital safeguard measures for minors
Osborne Clarke July 24, 2024 (EN)

Legal Battle in the Spanish Energy Sector Over 'Greenwashing' Claims

GALA April 2, 2024. Iberdrola v Repsol 

RD 444/2024 (ES) of April 30 approved by council of Ministers

Re Influencers. Details below under channel rules/ AV header

 

SELF-REGULATION 

 

The Spanish Self-Regulatory Organisation Autocontrol's main code is the Code of Advertising Practice (EN), the applicable Spanish version here. The code closely reflects national legislation and is based on and inspired by the ICC Advertising and Marketing Communications Code (EN 2018; 2024 code here), which is indirectly applicable; Explanation the Autocontrol Code’s General Rules (Point 8) state that the Jury will resolve complaints by applying the Code of Practice... subsidiary to the above-mentioned standards, the ICC Code shall also be applied. Autocontrol’s Advertising Jury applies the code, which is compulsory for members of Autocontrol and voluntary for others. 

 

Autocontrol also manages 21 sectoral advertising codes, list here. Of most relevance to the general advertising rules is the Confianza Online Ethical Code ES. The link is to the applicable 2022 Spanish version, the 2015 version having been amended in light of GDPR and the 2021 version also amended. Unofficial and non-binding translation of the key provisions here. The code covers ‘electronic distance communications media’ and requires observation of a) the law and b) the Autocontrol Code of Practice linked above and is enforced by Autocontrol’s Advertising Jury; more background here.

 

A code of conduct on the use of Influencers in advertising entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. A March 2021 decision (ES) by the Autocontrol jury found transgressions in Samsung-inspired posts on Instagram. There's helpful commentary on this case from Bird & Bird via Lexology here (EN). This is an important case as it addresses the validity in Spain of the term #ad as an identifier, considered by the jury to be not necessarily understood by Spanish readers. The key rule is para 5 of the linked Influencer code. 

 

LEGISLATION IN CONTENT 

 

The EU Directives on unfair B2C commercial practices UCPD 2005/29/EC and misleading and comparative advertising MACAD 2006/114/EC will apply in parallel and without limitation to the advertising of any sector. Background note here. At national level, the following laws carry the EU requirements:

 

- Law 3/1991 on Unfair Competition EN / ES (inc. 2022 amends)

- Law 34/1988 on General Advertising EN / ES (inc. 2022 amends)

- Law 7/1996 on Retail Trade EN / ES, which principally affects sales promotions and

- Royal Legislative Decree 1/2007 ES  (2022) in particular Article 20 (EN) inc. information requirements for an ‘invitation to purchase’

 

Law 34/1988 on General Advertising, which covers broader aspects of advertising in society such as the portrayal of stereotypes and the protection of children, and Law 3/1991 on Unfair Competition, are Spain’s principal advertising laws. See also Q&A: misleading advertising practices in Spain from Jacobacci Abril/ Lex of March 12, 2024 and In brief: prohibited and controlled advertising in Spain from the same busy company, same date.

 

CHANNEL RULES FRAMEWORK - statutory

 

AV

RD 444/2024 (ES) of April 30 approved by Council of Ministers

Register for AV Service Providers (Including Influencers and Vloggers) GALA Jan 8, 2024

 

The General Law on Audiovisual Communication 13/2022 of 7 July EN key clauses (does not include art. 94 translated here; see below for why it's important) / ES, implementing the AVMS Directive 2010/13/EU and its revisions via Directive 2018/1808, regulates audiovisual media, both traditional TV/ radio, and on-demand services (and now video-sharing services), and sets out the rules for both content and placement of audiovisual commercial communications, which include 'spot' advertising, teleshopping, product placement and sponsorship.The law is supplemented by Royal Decree 1624/2011 EN / ES on AV communications in TV advertising, which covers e.g. marcoms during the broadcasting of sports events. See above header for approval of Royal Decree 444/2024 which regulates requirements for a 'user of special relevance' - i.e. an influencer - of video sharing services, in development of article 94 of Law 13/2022. Specifically, the RD 'is prepared with the objective of specifying the requirements provided for in letters a) and c) of article 94.2'. Those concern income, audience/ followers and activity respectively; these are set by the decree (Ch 2, arts 3 & 4) at 300k euros and 1mil followers in a single platform or 2mil across all platforms and they must have published or shared 24 or more videos per annum. Influencers who meet these criteria must register with the State Register of Audiovisual Providers within two months (from May 2nd) and comply with Article 94 of the General Law on Audiovisual Communication (EN). Helpful DLA Piper May 3, 2024 commentary here 

 

Data processing/ protection

Privacy Sandbox news and updates 

Management of personal data protection measures should be reviewed with specialist advisors. Meanwhile, as will be well understood, GDPR became directly applicable in member states from May 2018; the EC page on GDPR is here. Member states deal with the regulation differently; in the case of Spain, the Law on Data Protection and Digital Rights (ES permalink) adapts the Spanish legal system to GDPR. The Data Protection Agency AEPD oversees compliance. Autocontrol have recently updated data protection measures in the form of Data Processing in Advertising Activities (EN) published October 2023 and approved by the AEPD linked earlier. Law No. 11/2022, of 28 June 2022 (ES), the General Telecommunication Law, replaced Law No. 9/2014, of 9 May 2014. I Article 66 (1)(a) provides for the right to the protection of personal data and privacy in relation to unsolicited communications.

 

Cookies and e-Commerce

Law 34/2002 of 11 July on Information Society Services (LSSI) EN key clauses / ES (see art. 22.2) carries the EU rules from the 'Cookie' Directive 2009/136/EC. When cookies identify individuals, then GDPR lawful processing rules may apply. The AEPD (Spanish Data Protection Agency) updated its Guide on the Use of Cookies (ES) July 2023. Autocontrol’s cookie advice service in English is available hereLaw 34/2002 also regulates the e-Commerce context, implementing the Directive 2000/31/EC and article 13 on unsolicited communications of e-Privacy Directive 2002/58/EC. This imposes information requirements on ‘Information Society Service providers’ and addresses e-Marketing communications, establishing the opt-in principle. Details under channel section C, or see the linked files.

 

SPECIFIC CLAIM AREAS
Pricing

 

Pricing in ads is often a source of consumer or competitor complaint, & sometimes litigation. Best to check prices in ads, especially new ads, with legal advisors

 

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

The case is here; Pinsent Oct 4 commentary here 

 

National law in the form of Royal Decree 3423/2000 (EN key clauses; ES), transposes the Product Price Directive (PPD) 98/6/EC, establishing that the 'selling price' means the final price for a unit of the product or a specific/ given quantity of the product, including VAT and all other taxes. The Citroën/ZLW case here is important perspective on pricing. In amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for promotional pricing, applied in Spain by Law 7/1996 on Retail Trade ES / EN key clauses. Commission guidance for the application of the article is here. If advertising constitutes an ‘invitation to purchase’, Article 20 (1) RLD 1/2007 (EN art. 20) also requires a ‘full final price’. Law 3/1991 (EN key clauses) on Unfair Competition includes ‘promotional’ pricing references, such as ‘bait and switch’ advertising - see Article 22. Finally, Autocontrol’s General Code of Advertising Practice (EN) also includes price provisions in Articles 14 and 22; see our Content Section B for details of all of the above.

 

Environmental claims

 

The future of eco-labelling in the Spanish market
Bird & Bird November 12, 2024

Legal Battle in the Spanish Energy Sector Over 'Greenwashing' Claims

GALA April 2, 2024. Iberdrola v Repsol 

Greenwashing: the current position of the Spanish laws. Osborne Clarke/ Lex March 27, 2023

 

From a self-regulatory perspective, the Code on the Use of Environmental Claims In Commercial Communications (2009) ES / EN applies to signatory companies from the car and energy sectors. See background note here. Autocontrol’s Code of Practice states that advertising must respect the environment (Art. 12). The general provisions and Chapter D Environmental Claims from the ICC Advertising and Marketing Communications Code (EN 2018; 2024 code here) will apply. Additional guidance on the use of environmental claims is in the ICC Framework for Responsible Environmental Marketing Communications (November 2021). From a statutory perspective, the use of environmental claims may be assessed against Law 3/1991 (EN key clauses 2022) on Unfair Competition; for help in this area, see section 4.1.1 Commission Guidance on application of the UCPD (December 2021). Again, details of all of the above are in our following content section B, or see the linked documents. 

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7th October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More hereDLA Piper's August 2024 Environmental Advertising Claims Guide includes Spain in its comprehensive coverage.

 

 

 

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Read more

International

SECTION A OVERVIEW

 

Updates since Nov 2022 (slimmed)
 

DLA Piper Global Influencer guide 

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

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

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

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

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

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

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

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

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here 

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific 

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

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

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

* Recommended read 

New ICC Code September 19, 2024

Press release here and key changes here 

 French trans November 7, 2024, SW here

 

ISSUES/ NEWS/ COMMENTARY

 

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

REP November 20, 2024

TEMU challenged by CPC network (FR)

EC Digital Fitness Check published Oct 3, 2024

Lewis Silkin on above here (scroll down)

Recycling claims mislead consumers:

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

 

AI

The AI Convention CSC Sept 12, 2024 here

EASA newsletter update AI legislation Aug 2024

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

AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024

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

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

 

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

 

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

Greenwashing in the EU, France and the UK 

Addleshaw Goddard/ Lex November 11, 2024

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

Stichting Milieudefensie v. Shell. Freshfields November 6, 2024

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

The UK Guardian September 13, 2024

 

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

 

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

 

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

 

More lawyer commentary

 

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

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

Formosan Brothers October 4, 2024

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

Katjes 'Climate Neutral' & Green Claims Globally

Herbert Smith Freehills/ Lex July 10, 2024

 

Corporate & financial reporting and due diligence

 

CSDDD FAQs Proskauer October 4, 2024

FAQs on the implementation of the EU corporate sustainability reporting rules

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

 

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

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

  

INFLUENCER MARKETING 

 

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

 

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

 

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

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

 

The USA

 

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

 

Guides Concerning the Use of Endorsements and Testimonials in Advertising

Disclosures 101 for Social Media Influencers 

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

 

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

 

India 

 

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

 

1. SELF-REGULATION: GENERAL RULES 
1.1 The ICC Code
 
The ICC Code is in the process of update May 2024. Expected 'second half 2024' :
 
This International sector provides largely self-regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2024, underpins much of self-regulation worldwide.
 
Most countries feature national advertising self-regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide several translations of their code (2024 to follow); ICAS, the International Council for Advertising Self-Regulation, list most if not all of the providers of self-regulation around the world. 
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of advice and good practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between paid and unpaid communications. These documents are placed and linked in relevant channels within the text in each country or can be found via the earlir llnk.
 
1.3 Structure and scope of the ICC Code

 

The latest ICC Code was published September 18, 2024 

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

Lawyer commentary 

Kids and Teens Online Safety and Privacy Roundtable

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

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

Collyer Bristow/Lex 21 June, 2023

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

Issue or channel Key European legislation and clauses
Cookies
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
Electronic coms. Consent and Information 
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
http://data.europa.eu/eli/dir/2010/13/oj

Directive 2018/1808 extended some rules into especially video-sharing platforms 

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

Data Processing 

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

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

 

THE DMA AND DSA IN EUROPE

 

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

 

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

Quinn Emanuel/ Lex October 10, 2024

 

DATA/ PRIVACY 

 

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

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

 

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

Data Protection update - August 2024. Stephenson Harwood/ Lex

Above covers Australia, China, EU, UK, USA

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

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

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

EDAA launches new solution to DSA ad transparency requirements

 

THE OMNIBUS DIRECTIVE

 

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

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

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

 

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

 

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

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

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

 

 

 

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Read more

B. Content Rules

Sector

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

 

STRUCTURE


As we have set out in the Overview Section A, Alcohol marcoms rules in Spain are ‘primed’ by Law 34/1998 and by the General Law on Audiovisual Communication (the AV law), and extended by the separate trade associations for Beer, Wine, and Spirits, whose application is by the Spanish Self-Regulatory Organisation Autocontrol.  Each sector has similar but not identical rules, so we have shown them separately and prefaced with statutory requirements, as follows:

 

 
 Legislation and codes 
 General Principles
 Specific rules 
 
Legislation and codes
General principles 
Specific rules  
 
 Per wine and beer above
 Corporate and Brand extensions 
 
5. GENERAL ADVERTISING RULES 
 
 

1. PROHIBITIONS

 

  • Audiovisual commercial communications of drinks with an alcohol content above 20% ABV are prohibited except between 0100 and 0500 hrs. (Art. 123 AV Gen Law 13/2022 (EN key clauses inc. 2022 amends) and article 5.5 General Advertising Law 34/1988 (EN key clauses inc. 2022 amends) and:
  • The advertising of beverages with an alcoholic strength of more than 20% ABV shall be prohibited in those places where its sale and consumption is prohibited (Art. 5.5 Law 34/1988); note: essentially, that means public places/ thoroughfares, though there can be regional differences in autonomous communities; more information under Outdoor in our channel section C; it also means that beverages with alcohol content below 20% ABV can be advertised, even in places where its sale or consumption is prohibited. (Explanation from Autocontrol: Art. 5.5 Law 34/1988 on General Advertising was modified by the Seventh Additional Disposition of Law 12/2012 on Urgent Trade Liberalisation Measures. The amendment introduces the possibility of advertising beverages with alcoholic content below 20% ABV, even in places where its sale or consumption is prohibited. With the previous regulation, the advertising in these places of all alcoholic drinks regardless of its strength was prohibited) 
  • Beverages below 20% are subject to an 8.30 watershed and all, of course, also subject to heavy restrictions on advertising content - set out below. Some drinks that are technically spirits have an ABV of less than 20%, and are therefore allowed to advertise on TV etc.
  • Nutritional and health claims relating to drinks containing more than 1.2% of alcohol by volume are prohibited, with the exception of those which refer to a reduction in the alcohol or energy content of an alcoholic beverage (Art. 4 (3): Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods)

 

2. BEER

 

Relevant national legislation and Industry codes

 

 

The General AV Law (applicable to audiovisual communications) article 123/3 prohibits commercial communication which:

 

  1. Is specifically directed at minors, or presents minors consuming said beverages
  2. Associates consumption with improved physical performance or with driving
  3. Gives the impression that its consumption contributes to social or sexual success, or associates, links or relates it with ideas or behaviours that express personal, family, social, sports or professional success
  4. Suggests that alcoholic beverages have therapeutic properties, or a stimulating or sedative effect, or that they constitute a means of resolving conflicts, or that they have health benefits
  5. Promotes immoderate consumption or offers a negative image of abstinence or sobriety
  6. Underlines alcohol content as a positive quality of the drinks
  7. Does not include a message of moderate consumption and of low risk

 

The Beer Code

 

General principles applicable to all Beer marcoms 

 

  • Must be legal, honest, truthful and in accordance with the principles of fair competition and good business practices
  • Must be developed with a sense of social responsibility based on the principles of good faith and fairness between the parties concerned
  • Must under no circumstances infringe the bounds of ethics, human dignity and human integrity (from the Brewers' Code preamble)

 

Specific rules 

 

Headings are not necessarily in the same order as those shown in the code itself; clauses are identified

 

  • 2.1. Misuse. Beer marcoms must not:
  • Describe situations that create the impression of excessive consumption and consumption associated with psychotropic substances and/ or tobacco (Chap. 3 (5))
  • Show people in a state of intoxication or highlighting ‘drunkenness’ as positive exemplary behaviour (Chap 3, point 7)
  • Encourage aggressive or violent behaviour - equally, the consumption of beer may not be associated with the use or handling of weapons and explosives (Chap. 3 (9))

 

  • 2.2. Dangerous activities/ sports issues. Beer marcoms must not:
  • Link drinking with the use of dangerous machinery (Chap. 6 (2))
  • Reflect that the consumption of beer improves performance in sport (Chap. 3 (11))
  • Suggest that there is a ‘safe level’ for the consumption of alcohol or that there is a product that can mask the effects of alcohol on a breathalyser test (Chap. 5 (2))
  • Link the consumer with the act of driving (Chap. 5 (3))
  • Commercial communications of alcohol-free beer may be recommended as a consumption alternative in connection with driving (Chap. 5 (7))

 

  • 2.3. Alcohol contentBeer marcoms must not place emphasis on high alcohol content as being a positive attribute of the beverage (Chap. 3(6))
  • 2.4. Medical/ nutritional aspectsBeer marcoms must never be aimed at people undergoing medical treatment in general and pregnant women in particular, nor can they give the impression that the consumption of beer has any therapeutic effect on them (Chap. 3 (11))

  • 2.5. Performance/ work. Beer marcoms must not:
  • Make a positive connection between the consumption of alcoholic beverages and good performance at work and job success
  • Show consumption of alcoholic drinks in a working environment unless it is clearly established that the working day has ended
  • Be linked with the use of dangerous machinery (Chap. 6 (1-3))

 

 

General principles; Chap. 2, B: Prevent design or promotion from being aimed at minors, paying attention to the following elements:

 

  • Use of designs or codes of communication likely to be aimed at children or minors
  • Use of minors or people appearing to be minors drinking or encouraging the consumption of beer in campaigns
  • Allusions or images related to the consumption of drugs and tobacco
  • Links with violence or antisocial behaviour
  • Insinuations of social or sexual success associated with the consumption of alcohol
  • Encouragement of minors to consume alcohol
  • Sponsorship or advertising at events or on supports or media specifically aimed at minors
  • The distribution of alcoholic beverages to minors free of charge as well as the sale or distribution of promotional products specifically designed for children and minors free of charge

 

Specifically marcoms:

  • Must not be aimed at minors under 18 years of age
  • Labelling of beer containers must include a +18 graphic/symbol (Annex I); only applicable to beer brewed and marketed in Spain

 


  • Must only use actors who are at least 21 years old (also applies to non-alcoholic beer)
  • Must not suggest that the consumption of beer is a sign of maturity and that not drinking is a sign of immaturity
  • Must not show people who give the impression that they used to drink beer when they were minors
  • Must not use designs, codes of communication, fictional characters or people specifically connected to child audiences or minors (also applies to non-alcoholic beer)
  • No type of beer or promotional material designed especially for child audiences or minors must be produced or distributed (Chapter 4 (3-7; also applies to non-alcoholic beer)

 

  • 2.7. Social success. Beer marcoms: 
  • Must not indicate that beer consumption contributes to the reduction or disappearance of feelings of anxiety, internal conflict or feelings of social maladjustment as a result of its consumption.  It may never be suggested that drinking beer on one’s own contributes to the solution of these problems (Chap. 3 (8))
  • May reflect the pleasure of communication, conviviality and socialising accompanying the responsible consumption of beer but must never imply that drinking is necessary for a successful social or working life or that non-drinkers are less accepted or less successful than those who drink (Chap. 3 (9))
  • Must not claim or suggest that beer can help to overcome shyness (Chap. 3 (10))

 

  • 2.8. Sexual aspects/ discriminationBeer marcoms must not: 
  • Make sexist references that misrepresent the role of women in society (Chap. 3 (12))
  • Claim or suggest that beer can contribute to sexual attraction or success (Chap. 3 (10))
  • Contain any type of discriminatory reference on the basis of race, sexual orientation, religion or political inclination (Chap. 3 (13))

 

Responsible Consumption Message

 

'(The corresponding trademark/ beer brand) recommends responsible consumption' ‘(la marca correspondiente) recomienda el consumo responsable’

 

  • The message must be presented in a legible format for the target audience and must always appear horizontally
  • Applies to television spots, newspaper and magazine advertisements and outdoor hoardings (excluding supports located at the tops of buildings, monoposts/column or similar)
  • For TV advertising: the caption must appear in lettering with a font size of 26.  Exposure time must be 3 seconds in spots of up to 10 seconds; 5 seconds in spots of between 11 and 30 seconds; and 7 seconds in spots longer than 30 seconds

 

Exemptions: any type of non-conventional advertising which lasts less than ten seconds, e.g. sponsorship (Ch. 3 (2))

 

3. WINE

 

Relevant national legislation and Industry codes

 

 

The Wine code 

 

The code is set out verbatim from the original English version linked above; translation has not been enhanced. See the code for preamble, full scope, compliance, sanctions etc. The code ‘should be applied to all wine commercial communications’, related definitions here

 

Principles (Ch. V)

 

  • “Communications” are welcome to outline the wine sector and/or any of the specific attributes of wine (e.g., origins, tradition, vinification process, specific features, and product service), as well as other activities related to leisure, joviality or socialitazion in a moderate and responsible consumption context
  • By no means, “communications” are allowed to encourage, under any circumstances, any kind of irresponsible and/or abusive consumption of wine

 

Communications must respect the following principles:

 

  • 1-3. Legality, Veracity, Good faith Wine commercial communications must comply with legislation in force, regarding content, broadcast method or whatever the form it might take
  • All "Communications" regarding wines must be decent, honest and truthful
  • All “communications” regarding wine must bear in mind their social responsibility. Thus, they will meet the good faith requirements and good business practices, regardless their content, the type of media or the way they are consumed
  • “Communications” must not be amoral or discriminatory. They must not violate the accepted standards of good taste and decency neither be an affront to human dignity and integrity

 

"Commercial communications" shall never:

 

  • Encourage or tolerate excessive or irresponsible consumption of wine. Neither this kind of behavior nor abstinence or moderate wine consumption shall be trivialized
  • Suggest any type of connection with violence, aggressiveness or any antisocial, illegal or dangerous behavior
  • Display situations of abusive consumption. They shall not exhibit people showing signs of excessive consumption or somehow accepting it
 
Ch. VI. Content of commercial communications

 

  • 1. Messages of moderate and responsible consumption. Wine communications shall foster responsible wine consumption. To this effect: 
  1. Commercial communications being visible enough must include: 
  • The Wine in Moderation logo, according to the style guide found in annex 1
  • The 'Wine - only appreciated in moderation' message
  • This obligation shall NOT apply to:
  1. Freely expressed contents on mass media based on press releases, as long as they are not a paid job or whenever the content has been published without the member being able to control it
  2. Product labeling, where is an opt-in
  3. Winemakers sponsoring an activity or event in any advertising campaign
  4. Corporate advertising whenever not promoting products or consumption

 

  1. On a voluntary basis and in those cases where the aforementioned logo and message is mandatory, it is strongly recommended use the logos included in annex 2, or similar ones
  2. Radio spots with a duration of more than 20 seconds are only obliged to include the “Wine only appreciated in moderation” message or an equivalent one
  3. The message referred to on point a) applies to Spain

 

 

The Code (EN) includes details in the annexes on how and where to apply the moderate consumption messages/ logo and in summary in this page of the Code

 

  • 2. Misuses

  1. Shall not encourage or tolerate excessive or irresponsible consumption of wine. Neither this kind of behavior nor abstinence or moderate wine consumption shall be trivialized
  2. Shall not display situations of abusive consumption. They shall not exhibit people showing signs of excessive consumption or somehow accepting it
  3. Shall not suggest any type of connection with violence, aggressiveness or any antisocial, illegal or dangerous behavior

 

  • 3. Alcoholic strength 
  1. Commercial communications must not lead to confusion when informing about wine’s alcoholic strength
  2. Whenever commercial communications inform about wine’s alcoholic strength, they shall do it for the purposes of information only
  3. Commercial communications must not give the wrong impression that high alcohol content is a positive attribute of wine nor a purchase trigger
  4. Commercial communications must not give the wrong impression that low alcohol content wines prevent from abusive consumption

4. Minors

 

  1. Websites of those companies where this code is applied must set up an age control system in order to prevent minors from entering
  2. Commercial communications must not be intended for minors, nor display minors or people looking like minors drinking or encouraging wine consumption
  3. Commercial communications must not be broadcasted by mass media intended for minors2
  4. Commercial communications must not suggest that abstinence is equivalent to immaturity
  5. Commercial communications must not suggest that consumption triggers growth or maturity
  6. Commercial communications must not use any appealing element (objects, people, images, styles, symbols, logos, colors, music or characters) for minors. An effective system to avoid minors from accessing commercial communications is age control tools or parental control apps. Audiovisual media can use age groups audience figures
  7. Those advertising legal restrictions applied to alcoholic drinks shall also apply to non-alcoholic drinks commercial communications

(2) An effective system to avoid minors from accessing commercial communications is age control tools or parental control apps. Audiovisual media can use age groups audience figures

 

 

Social responsibility, performance

 

  • 5. Drinking and driving and other potential risky activities, recreational or job relatedCommercial communications must not associate wine consumption with driving or operating with potentially dangerous machinery, nor with any type of recreational activities or those implying third parties’ responsibilities

  • 6. WorkplaceCommercial communications must not associate wine consumption with permanent workplaces nor with people consuming wine while working, with the exception of workplaces or people directly related to wine as a profession

  • 7/8. Health issues, pregnancyCommercial communications shall not claim or suggest wine having health properties, or wine consumption helping preventing, treating or healing any kind of human illness by any medical effect

  • Commercial communications must not display pregnant women while drinking or specifically target pregnant women
  • 9. Psychosocial aspects (disinhibition, anxiety and psychic conflicts) Commercial communications shall NOT:
  • Claim the disinhibiting effect of wine consumption
  • Suggest that wine consumption helps overcoming shyness and fear, or invite to transgression
  • Display situations that might suggest that wine consumption helps to reduce or eliminate social maladjustment, anxiety or psychosocial conflicts and, in general terms, they shall never suggest or present solitary drinking as a mean to solve this type of problems
  • 10. Performance abilities. Commercial Communications must not give the false impression that wine consumption improve mental or physical capacities
  • 11.  Social successCommercial communications are allowed to display people socializing or cohabitating but shall not:
  1. Suggest that wine consumption helps social acceptance or social success
  2. Suggest that abstinence is equivalent to social, work or business failure
  • 12. Sexual issues 

  1. Commercial communications must not display images discriminating or degrading men or women, nor share any kind of stereotype, feminine or masculine, or images or to incite violence
  2. Commercial communications must not suggest that wine consumption enhances sexual strength, nor stimulates sexual appetite or leads to sexual encounters​

 

4. SPIRITS

 

Relevant national legislation and Industry codes 

 

  • General Law on Audiovisual (AV) Communication 13/2022 here (EN key clauses inc. 2022 amends)
  • General Law on Advertising 34/1988 here (EN key clauses inc. 2022 amends)​
  • Spanish Spirits Association Advertising Self-Regulation Code (Federación Española de Bebidas Espirituosas Abbrev. FEBE):
    Applicable version in Spanish here; AC translation below:
    https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_febe_en.pdf (EN)

 

Prohibitions

 

  • Audiovisual commercial communications of alcoholic beverages with an alcohol content above 20% ABV are prohibited except between the hours of 0100 and 0500 (Art. 123/4 Gen Law 13/2022); and article 5/5 General Advertising Law 34/1988
  • The advertising of beverages with an alcoholic strength of more than 20% ABV shall be prohibited in those places where its sale and consumption is prohibited. Note: not all spirits exceed 20% ABV
 

Chapter II General deontoligical principles 

 

  • Article 4. Legality principles. The advertising of beverages to which this Code applies shall comply with the legislation in force, whatever its content, the dissemination medium or the form that it takes
  • Article 5. Fairness principle. The advertising of beverages to which this Code applies shall meet the requirements of good faith and good business practices, whatever their content, the dissemination medium or the form that they take
  • Article 6. Veracity principle 6.1. The advertising to which this Code applies shall be truthful and identifiable as advertising
  • 6.2. The advertising to which this Code applies shall avoid any error as to the alcoholic strength of the beverage advertised. To this effect, advertising that is visually perceptible shall inform consumers in a clearly legible format of the alcoholic strength of the beverage advertised in accordance with the conditions set out in Article 7 
  • Article 7. Social responsibility principle7.1. The advertising to which this Code applies, both in its content and in its form and dissemination, shall be effected with a sense of social responsibility
  • 7.2. The advertising to which this Code applies shall not encourage abusive consumption. To this effect, advertising which is visually perceptible shall include the Responsible Consumption Message indicating that moderation is a basic premise for responsible consumption. The said message shall be common to all FEBE member companies and shall be displayed to consumers in a clearly legible format. To this end, the FEBE Responsible Consumption message:
  1. Must be affixed in a clearly visible place
  2. Must have a minimum size equivalent to 1% of the total area of the advertisement; when it is a question of advertising in cinemas or on television, it must have a minimum size of 1.5% of the total area of the advertisement and must be displayed for at least 2 seconds
  3. Must be printed in a colour which allows it to be clearly visible and legible against the background of the advertisement
  4. Must be accompanied by an indication of the alcoholic strength of the product, in the same format and colour and immediately following the said message
  • 7.3. Additionally and voluntarily, FEBE member companies may include in their promotional material the FEBE Responsible Consumption Message or any other moderation message, in accordance with the parameters established in Article 13 below
  • 7.4 The FEBE General Assembly may complete and/ or modify the parameters relating to the FEBE Responsible Consumption Message indicated in subparagraph 7.2 above

Chapter III. Deontological principles relating to advertising content 

 

  • Article 8 References to consumption. The advertising to which this Code applies:
  1. may highlight the pleasure of communication, conviviality or socialising associated with responsible consumption, but may never suggest that nonconsumption is synonymous with immaturity, failure in social or working life or in business or that non-consumers are less accepted or are less successful than consumers;
  2. may not reflect situations of sexual success or suggest that consumption may contribute towards professional success, may enhance sexual attractiveness or may help to overcome shyness;
  3. may not show situations inferring that consumption contributes towards reducing or eliminating problems of social maladjustment, anxiety or internal conflicts and, in general, may never suggest that consumption in solitude helps to solve this type of problem;
  4. may not show situations in which it may be inferred that consumption improves physical or mental efficiency;
  5. may not attribute to beverages the possibility or preventing, treating or curing diseases or indicate that they have therapeutic properties, and may not be specifically aimed at persons undergoing medical treatment;
  6. may not show or be specifically aimed at pregnant women;
  7. may not show images of women of a discriminatory or degrading nature or stereotypical female images that may encourage violence;
  8. may not present situations of abusive consumption;
  9. may not present a high alcoholic strength as a positive quality or allow it to be inferred that a low alcoholic strength justifies immoderate use;
  10. may not show abstinence or moderate consumption in a negative light;
  11. may not associate drinks with situations of violence, aggression, danger or antisocial behaviour; may not associate consumption with carrying out a job which involves responsibility for third persons or a high-risk activity, or suggest that it has a positive effect on performance.

 

Chapter IV. Deontological principles relating to the safeguarding of general interests

 

  • Article 9. Road safety9.1 The advertising to which this Code applies may not suggest that a minimal amount of alcohol can be consumed without a risk to driving and road safety. Nor may it show situations which associate alcohol consumption with driving vehicles or allow the appearance in the content of the advertising message, in a primary and not merely secondary manner, of vehicles or elements directly linked with driving, regardless of whether or not this is in a driving situation, except for cases of responsible consumption campaigns.
  • 9.2. The advertising to which this Code applies may not be inserted in motor magazines or other publications or in specialised supplements or sections of magazines or other publications whose main content is motor vehicles

 

  • Article 10. Minors.10.1. The advertising to which this Code applies may not be specifically aimed at minors
  • 10.2 Minors may not play a part in or figure in advertising to which this Code applies
  • 10.3 The models in advertising to which this Code applies must not be under 23 years of age
  • 10.4. The advertising to which this Code applies and the presentation of beverages included in its objective scope may not use images, drawings, icons, fictional persons or persons of public renown directly or fundamentally connected with minors
  • 10.5. With a view to reducing the impact of the advertising to which this Code applies on minors:
  1. the said advertising may not be broadcast on television or radio or shown in cinemas during, immediately before or immediately after programmes or sessions specifically intended for minors or the majority of the audience for which are minors
  2. the said advertising may not be broadcast on television until the beginning of the news in the evening/night and in no case before 20:30
  3. the said advertising may not be inserted in publications aimed at minors or on pages for minors in publications not specifically intended for them
  4. when the said advertising is direct and, in particular, when it is a question of sending out leaflets, graphic advertising and other advertising media by any means to a particular consumer or predetermined consumers, in this case it must be sent to adults and, to this effect, its external presentation shall indicate the name of the adult to whom it is addressed and its internal content shall include the words “Not suitable for minors” or similar, clearly establishing that the said advertising is in no case intended for minors
  • 10.6.The advertising to which this code applies, in both the printed press and broadcast media, shall only be shown during the hours, programmes or sections of the said media output, when at least 70% of the audience are reasonably expected to be adults of 18 years or older

Chapter V. Deontological principles relating to specific forms of advertising 

 

  1. Article 11. Corporate advertisingCorporate advertising by companies manufacturing, importing or marketing beverages to which this Code applies is legal whenever it sets out to attain a certain and reasonable objective within the company’s corporate communications plan
  2. Nevertheless, corporate advertising may not be used as indirect advertising of particular beverages or brands whose advertising is prohibited in the medium through which it is disseminated. In order to prevent any supposition of illegal indirect advertising within the meaning of the previous paragraph, corporate advertising shall at least fulfil the following conditions:

 

  1. no corporate name, business name or other distinctive sign substantially identical to a brand whose advertising is prohibited in the medium through which it is intended to disseminate advertising may be used except in the hypotheses considered in this Article
  2. the complete corporate name or business name of the advertiser must be given
  3. the design of the advertising message must not evoke a beverage or brand, even without its being expressly mentioned, the advertising of which is prohibited through the medium in which it is intended to disseminate the advertising, using all necessary means to ensure that the consumer perceives without any confusion that it is not a question of advertising a beverage or brand prohibited in the medium through which it is intended to disseminate the said advertising
  4. it may not immediately precede or follow or coincide in time with advertising campaigns for brands or beverages leading to the recipient’s possibly establishing a direct link between them

 

  1. In particular, it shall be legal to use corporate advertising which, complying with the above-mentioned criteria, is carried out on the occasion of events of relevance to the legal-business life of the company which reasonably justifies its use, such as a stock exchange flotation or a share or bond issue

 

  • Article 12. Brand extension advertising12.1. The use of a brand of one of the beverages to which this Code applies to designate another product, alcoholic or otherwise, or a service is the right of a company established by legal edict.
  • 12.2. Nevertheless, advertising a product identified through a brand identical or similar to one of the beverages to which this Code applies must not be used as a form of indirect advertising of the said beverage in media in which its advertising is prohibited. In order to prevent any supposition of illicit indirect advertising within the meaning of the previous paragraph, brand extension advertising for the products to which this Code applies shall fulfil the following conditions at least:
  1. it must correspond to a real and reasonable intention to place the new product on the market;
  2. once the product has been launched on the market, for its advertising to continue it must be possible to demonstrate that an average weighted distribution is being made, detectable on an independent index confirming its continued marketing;
  3. it must clearly identify the product that is the subject of the advertising, so that the consumer is aware of its nature, using all necessary means to ensure that the consumer perceives without any confusion that it is advertising for a product different from that whose advertising is prohibited in the medium in which it is intended to disseminate it;
  4. the advertising must not use common slogans, images or motifs that can be associated by the consumer with previous, simultaneous or subsequent campaigns relating to the beverage whose advertising is prohibited in the medium in which its intended to disseminate it.

 

  • Article 13. Responsible consumption advertising13.1. FEBE member companies and the beverages to which this Code applies which they produce or market may use advertising messages within their own Responsible Consumption Advertising (“Responsibility Advertising Message”). However, there must be no risk of confusion in consumers’ minds which may lead them to think that the said Responsibility Advertising Message is a sectoral message.
  • 13.2 In view of the above, any FEBE member company intending to carry out Responsible Consumption Advertising must in all cases ensure that there is sufficient differentiation between on the one hand its Responsibility Advertising Message and on the other hand the FEBE Responsible Consumption Message, which means that the text of its Responsibility Advertising Message:
  1. must always be clearly linked to the brand or business name of the member company that uses it;
  2. must never be similar or sufficiently like the FEBE Responsible Consumption Message or use the same terms, even though structured differently, or the same typography;
  3. must always be larger than the FEBE Responsible Consumption Message and must appear in a clearly differentiated place where it can never be confused with the FEBE Responsible Consumption Message.
  • 13.3 The Responsibility Advertising Message must not:
  1. make responsible use of the beverages to which this Code applies appear commonplace or trivial, evoke fear or negative feelings or denigrate or have a negative impact on the image of FEBE or any of its members;
  2. mislead;
  3. be associated with any content or conduct not permitted by this Code;
  4. be used for direct or indirect advertising for products or companies associated with FEBE, including advertising in those media in which the advertising of alcoholic beverages is not permitted, or be used in any other way to evade legal or self-regulation prohibitions in force as regards the advertising of the beverages covered by this Code

 

  • Article 14. Sponsorship. 14.1 Sponsorship is that activity whereby a natural or legal person, called the sponsor, contributes towards the financing of any kind of social, cultural or sports event or a spot in communication media to the benefit of another natural or legal person, called the sponsored, with the objective of promoting the name, brand, image, activities or relations of the sponsor. Simply contracting for static advertising at events does not constitute sponsorship, which in any case must comply with the legislation applicable in this field
  • 14.2. Sponsorship, and especially sponsorship of radio and television programmes, shall comply with the applicable legislation concerning the advertising of alcoholic beverages. In so far as the beverages to which this code applies are concerned, FEBE member companies may not:
  1. sponsor events specifically aimed at or minors or in which minors mostly participate;
  2. sponsor events which are broadcast on television when the main objective of the said sponsorship is promotion through the medium of television of any alcoholic beverage whose advertising is prohibited in this medium. Promotion through the medium of television is considered to exist when there is a consideration for the medium on the part of the member company, whether directly or through the organiser of the event or any other intermediary. Nevertheless, it is to be understood that promotion through the medium of television does not exist when the event is of informational interest in itself or forms part of sports competitions, cultural or social programmes, courses or series and any other acts provided that they are of an official nature

 

  • Article 15. Advertising on the Internet15.1 Advertising on the Internet and the websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies, both on national sites or international sites intended for the Spanish public (henceforth called “websites”) is governed by the provisions of this Code
  • 15.2 The websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies must show, on the first page of the section of the website where alcoholic beverages to which this Code applies are displayed or promoted:
  1. the FEBE Responsible Consumption Message, in accordance with Article 7 above. In the case of international websites intended for the Spanish public, the obligations laid down in this subparagraph shall be deemed to be fulfilled when a message is introduced similar to the FEBE Responsible Consumption Message, in a language easily understandable to Spanish users and meeting all the obligations that are mentioned
  2. For access thereto, a warning and a compulsory pass button which differentiates between adult users and non-adults and which the user must click in order to continue viewing the website, provided that he or she is an adult. The said button must appear in an immediately visible position as soon as the website opens and be of a size and colour making it clearly visible. If the user is not an adult, when the corresponding button is clicked the system sends the user back to the home page, refusing further access to minors
  3. Likewise, when there are questionnaires on websites for any kind of survey or for participation in promotions applicable to Spanish territory, they must include a request for the complete date of birth (day, month and year) and the system must refuse access to the data process to minors, sending the user back to the home page of the website
  • 15.3.Digital publicity on web site controlled by the advertiser or on social network should have a compulsory pass button for age confirmation were they interact directly with the user. The user should click in order to continue viewing the provided contents, the user should be at least 18 years old or above. If this is not the case, access should be blocked
  • 15.4.Without prejudice to the responsibilities due to the current legislation, digital publicities created with the aim of reposting content, should clearly specify that are not aimed to underage people and can´t be forwardable to them

 

 

5. GENERAL ADVERTISING RULES 

 

The alcohol sector, as with any other, must also observe the general rules, i.e. those that apply to all advertising; rules are set out under the General tab below; principal self-regulatory source is the General Code of Advertising Practice (EN). In legislation, the core rules are those from Law 3/1991 on Unfair Competition and the General Advertising Law 34/1988 (both EN key clauses inc. 2022 amends)

 

 

 

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

General

SECTION B CONTENT RULES

 

 

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

 

1. SELF-REGULATION

 

1.1. Autocontrol’s General Code of Advertising Practice

A. Basic principles

B. Authenticity

C. Principle of truthfulness 

D. Rules on certain advertising forms and techniques

E. Protection of Children and Adolescents

F.  Health protection

G. Advertising of credit institutions

Autocontrol Jury Decisions 

 

1.2. Confianza Online Ethical Code

 

2. LEGISLATION

2.1. General Advertising Law 34/1988

2.2. Law 3/1991 on Unfair Competition

2.3. RLD 1/2007 General Consumer & User Protection Act

2.4. Broadcast content rules from the General AV Law 13/2022

 

3. SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.1.1. National self-regulation, including AC resolutions

3.1.2. International self-regulation

3.1.3. Horizontal legislation

3.1.4. EU guidance

3.1.5. Comparative claims

 

3.2. Pricing

3.2.1. Self-regulation

3.2.2. Legislation

3.2.4. Case law

1. SELF-REGULATION

 

1.1. Autocontrol’s General Code of Advertising Practice EN / ES

 

I. Scope of application 

 

  • These ethical rules apply to all of advertising communication aimed at promoting, directly or indirectly and regardless of the means, format, or media used, the contracting of goods and services, or the enhancement of trademarks and trade names. These ethical rules will also be applicable to any advertisements commercial communications (sic) released on behalf of private individuals or legal persons, in order to promote certain attitudes or behaviours. These rules will not apply to political advertising

 

II. Ethical rules. A. Basic principles

 

  1. The Value of advertising: No commercial communication may be made in such a way that it negatively affects the social perception of advertising, undermines consumer confidence, or impairs its importance in ensuring the proper functioning of the market
  2. Respect for Law and the Constitution: Commercial communications shall respect legislation in force, and in particular the values, rights and principles enshrined in the Spanish Constitution
  3. Interpretation of advertising
  4. Good faith: Commercial communications must never constitute a means to abuse the good faith of the consumer
  5. Exploitation of fear: Commercial communications must not, without justification, provide reasons for purchasing which take advantage of fear, apprehension, misfortune, suffering or superstitions of those to whom it is addressed. Among other examples, advertisers may make use of fear, as long as it is proportionate to risk or adversity, in order to encourage prudent behaviour or to discourage dangerous, imprudent or unlawful actions
  6. Non-incitement to violence: Commercial communications shall not Incite or condone violence nor will they suggest advantages in violent attitudes or practices
  7. Non-incitement to unlawful behaviour: Commercial communications must not incite antisocial or unlawful behaviour, nor will it be tolerant of those aspects, nor will they suggest that there are advantages in antisocial or unlawful attitudes or behaviours
  8.  Respect good taste: commercial communications must not include any content which runs contrary to the prevailing standards of good taste and social decency, as well as against good customs
  9. Dangerous practices and safety: Commercial communications must not encourage dangerous practices except when made in a context in which it may be specifically deduced that it promotes personal safety or that of others. Advertising addressed to children should not contain any visual representation or description of potentially dangerous practices or situations that show a disregard for safety
  10. Discriminatory advertising: Commercial communications must avoid endorsing discrimination based upon race, nationality, religion, disability, age, gender or sexual orientation; neither must they prejudice a person’s dignity. In particular, advertising commercial communicationsthat can be degrading or discriminatory towards women must be avoided, including those which use the woman's body, or parts thereof, as a mere object detached from the product or service that is intended to be promoted, or associated with stereotypical behaviours that undermine equality between women and men
  11. Right to honour: advertising must necessarily respect the rights to honour, privacy and personal image
  12. Respect for the environment: commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour

 

B. Authenticity

  1. Commercial communications will be identifiable as such, regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis
 

C. Principle of truthfulness 

 

  1. Misleading advertising

 

14.1. Commercial communications must not be misleading. Misleading advertising is understood as the one (sic.) that in any way deceives or is likely to deceive its recipients, and is liable to alter their economic behaviour, provided that it has an impact on one of the following elements:

 

  1. The existence or nature of the good or service
  2. The main characteristics of the good or service, such as its availability, benefits, risks, execution, composition, accessories, 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
  3. After-sale customer assistance and complaint handling
  4. The extent of the entrepreneur's or professional's commitments, the motives for the commercial practice and the nature of the commercial transaction or contract, as well as any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the goods or services
  5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
  6. The need for a service, part, replacement or repair, and the change of the initially advertised price, unless there is a subsequent agreement between the parties agreeing to such change.
  7. The nature, attributes and rights of the entrepreneur or professional 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
  8. The consumer’s rights or the risks he may face

 

14.2. Likewise, it will be regarded as misleading, the advertising which omits information necessary for the recipient to make or be able to make a prior informed decision on his economic behaviour, and for this reason can significantly distort their economic behaviour

14.3. For the purpose of applying the previous paragraph, all the characteristics and circumstances of the advertisement, as well as the limitations of the medium of communication used, must be taken into account. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the entrepreneur or professional to make the necessary information available to consumers by other means shall be taken into account, in deciding whether the information has been omitted

 

 

D. Rules on certain advertising forms and techniques

 

Guarantees/ delivery/ technical data/ comparative tests/ testimonials

 

  1. Guarantees: Commercial communications must not contain any reference to a guarantee that does not improve the legal position of the purchaser. Advertising may contain the words "guarantee" (“garantía"), "guaranteed" ("garantizado"), "certified" ("certificado") or words having the same meaning, provided that it does not deceive or is not likely to mislead the consumer regarding the scope of the guarantee
  2. Availability of products: Goods or services that cannot be supplied or provided shall not be offered, unless the advertisement indicates the moment or time-scale for the delivery or service
  3. Technical data:Where technical, scientific or statistical data are disseminated in advertising, they must be relevant and verifiable; they shall not give rise to error on the natural or legal persons, their nature and other circumstances that support them 
  4. Comparative tests: Publication of comparative tests on products or services must reveal the identity of the individuals and legal entities that have carried them out, as well as the date on which they were carried out. In the event of partial dissemination, this shall be done in an equitable manner
  5. Testimonials: When commercial communications include recommendations and/ or testimonials, that are assertions from parties not connected to the advertiser and who are not acting as spokespersons for the advertiser, whether they are paid or not, they must be truthful, both with regard to the person providing the recommendation/ testimonial, as well as to the content of the recommendation and/ or testimonial.The advertiser must have written authorisation of the testimonial and it is his responsibility to prove the veracity of the advertisement. Such advertising may only be used as long as the above conditions remain valid. The sponsored nature of a recommendation or testimony must be made clear by an appropriate warning in those cases in which the message, due to its formal characteristics or content, may mislead the user about the said nature

    See further note on testimonials here

 

Autocontrol jury decisions

 

To be updated

 

  • Jury judgment; decision of 24.05.2012 Glaxo vs. Colgate (Sensitive Pro Alivio) confirmed by the Full Session on 21 June 2012 ES Infringed Article 14 (Principle of Truth) and Article 21 (Denigration) and Article 3.1 Confianza Online Code for saying that the product was new, when it had been available on the market for almost 2 years
  • Jury Judgement; decision 29.05.2016 Glaxo & Henkel vs Colgate ES the expression ‘Colgate Total, the Dentist's Choice’ ('la elección del dentista'). From the viewpoint of the reasonably attentive and perceptive, normally informed, average consumer, the Jury understood the slogan to convey two distinct messages: that Colgate Total is the toothpaste most used by dentists and that dentists recommend the use of Colgate Total. Colgate under the Principle of Truth was obliged to prove the accuracy of the statements, which it could not

 

Comparative advertising 

 

  1. Exploitation of the reputation of others and Imitation:

 

  • Commercial communications shall not contain either explicitly or implicitly, any reference to the distinctive signs of another advertiser, other than in legal or conventionally permitted cases or in the case of acceptable comparative advertising (20.1)
  • Commercial communications must not imitate the general layout, text, slogan/ tagline, distinctive signs, visual presentation, music, or sound effects of other advertisements, whether national or foreign, even if the campaigns have come to an end, when any of these items are protected by industrial or intellectual property rights or the advertising leads to the likelihood of confusion in the minds of consumers, or entails taking unfair advantage of the effort or reputation of others (20.2)

 

  1. Denigration: Commercial communications must not discredit or denigrate, implicitly or explicitly, other companies, activities, products or services. Statements contained in the message that are accurate, true and relevant will not be considered as denigration. In particular, references to the personal circumstances of a businessman or his company will not be considered as 'relevant'
  2. Comparisons: Comparative advertising, direct or indirect, must respect the requirements listed below:

 

  1. The goods or services compared must have the same purpose or meet the same needs
  2. The comparison will be done objectively between one or more material, relevant, verifiable and representative features of those goods and services, which may include price
  3. In the case of products covered by a designation of origin or geographical indication, specific name or guaranteed traditional specialty, the comparison may be only made with other products of the same designation
  4. Goods or services shall not be presented as imitations or replicas of good of services bearing a protected trade mark or trade name
  5. The comparison must not contravene any rules established by Articles 14, 20 and 21 of the Code, related to acts of deception, denigration and confusion and exploitation of another's reputation

 

See also clause 18 above 

Other key clauses (see linked code

 

23. Proof of Advertising Claims

24. Aggressive Advertising 

25. Promotions

26. Common characteristics

27. Campaigns with a social cause

 

E. Protection of children and adolescents

 

28. Commercial communications addressed to children must be extremely careful. They must not exploit the naivety, immaturity, inexperience or natural gullibility of children or adolescents.  Commercial communications aimed at children or adolescents, or which are likely to influence them, must not contain statements or visual presentations which may harm them mentally, morally or  physically. Products that are illegal for children and / or adolescents or inappropriate or harmful to them should not be publicised in media directed to them. Commercial communications aimed at children and / or adolescents should not be included in media where editorial content is not suitable for them. Special care will be taken to ensure that advertisements do not mislead or deceive children as to the actual size, value, nature, lifespan or performance of the advertised product. If extra items (e.g. batteries) are required to use the product or to produce the results described or shown (e.g. paint) they must be explicitly pointed out. Commercial communications must not overestimate the degree of skill or the age limit of the children in order to enjoy or use the products

 

F.  Health protection

G. Advertising of credit institutions

 

1. 2. Confianza Online Ethical Code (COEC) 

 

2022 version in Spanish here 

Key provisions translated here 

 

Applicable to advertising, e-commerce, protection of minors, and personal data in the context of distance electronic communications

 

  • The new (2022) version of this important code has been significantly amended. The key changes for our purposes are related to a) the loss of a number of clauses that covered advertising content issues that in large part replicated the Autocontrol Code of Advertising Practice and b) Title IIII, Chapter III of COEC - Personal Data Protection - now incorporates and more closely reflects GDPR provisions. E-Commerce rules are also significantly amended
  • Unchanged for our purposes is the Definition of Advertising (EN) specifically. The latter can be important in the context of e.g. owned websites as it clarifies what does and doesn’t qualify as advertising in an owned environment and provides exemptions that may be pertinent
  • Reference point a) in the first bullet point above, Article 23 ‘Advertising’ represents the former clauses:

 

The advertising in electronic distance communications media of this Code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

 

2. LEGISLATION

 

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation

 

Applicable in this context

 

  • Law 34/1988 of 11 November on General Advertising EN key clauses / ES (both inc. 2022 amends)
  • Law 3/1991 of 10th January on Unfair Competition EN key clauses / ES (both inc. 2022 amends)
  • Royal Legislative Decree 1/2007 General Consumer and User Protection Law (RLD 1/2007) ES / Art. 20 Invitation to Purchase EN
  • Law 13/2022 of July 7 on General Audiovisual Communication ES / EN key clauses 

 

2.1. General Advertising Law (34/1988)

 

The following is unlawful (key extracts, unofficial translation, 2022 amends in italics):

 

  • Advertising that violates the dignity of the person or any of the values and rights enshrined in the Constitution, particularly those referred to in Articles 14, 18 and 20 (4) of the Constitution EN / ES (Art. 3a) Note: these are rights to equality and non-discrimination, freedom of religion, right to honour, personal and family privacy and own image
  • Advertising which portrays women in a degrading or discriminatory manner, either by specifically and directly using their bodies or parts thereof as mere objects unrelated to the product being promoted, or their image associated with stereotyped behaviours (see note on case here) which violate the basis of the legal system while contributing to generate the sort of violence referred to in Organic Law 1/2004 of 28 December 2004 on comprehensive protection measures against gender-based violence 
  • Similarly, included in the previous provision is any form of advertising in any of its manifestations that contributes to encouraging violence against or discrimination towards minors, or promotes stereotypes of a sexist, racist, aesthetic or homophobic or transphobic nature, or because of disability, as well as that advertising which promotes prostitution
  • Advertising aimed at minors encouraging them to purchase a good or service by exploiting their inexperience or credulity or where they appear persuading parents or legal guardians to buy the advertised product/ service for them. Children may not be shown in dangerous situations without good reason. Advertising may not be misleading as to the characteristics of products or their safety nor to the ability and skills necessary for the child to use it without causing harm to itself or others (Art. 3b)  

2.2. Law 3/1991 on Unfair Competition ES / EN key clauses inc. 2022 amends

 

Law 3/1991 distinguishes between two types of unfair conduct: 

 

  1. ‘Acts of unfair competition’, which affect companies/ businesses as well as consumers, the latter in Articles 4, 5, 7 and 8, Chapter II
  2.  ‘Commercial practices with consumers and users’ in Chapter III, Articles 19-31. This section regulates acts of misleadingness/ deception towards consumers

A. Acts of unfair competition; key points from Chapter II

 

Misleading acts (Art. 5; unofficial translation, 2022 amend in italics)

  1. Any conduct containing false information or information that although true, by virtue of its content or presentation, leads or could lead its recipients to an error in judgement and is liable to alter their economic behaviour is considered misleading and hence unfair, provided that it has an impact on one of the following elements:

 

  1. The existence or nature of the goods or services
  2. The main characteristics of the good or service such as its availability, benefits, risks, execution, composition, accessories, 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 essential features of tests or checks carried out on the good or service
  3. After-sales customer service and complaint handling
  4. The extent of the entrepreneur's or professional's undertakings, the motives for the commercial practice and the nature of the commercial transaction or contract and any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the good or service
  5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
  6. The need for a service, part, replacement or repair
  7. The nature, attributes and rights of the entrepreneur or professional 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
  8. The consumer’s statutory or contractual rights or the risks he/ she may face

 

  1. When the entrepreneur or professional indicates in a commercial practice that he is bound to a code of conduct, failure to adhere to the commitments assumed in that code is considered unfair, provided that the commitment is firm (not aspirational) and can be verified and, in its factual context, this conduct is likely to significantly distort the economic behaviour of its recipients
  2. Any marketing of a good as identical to another marketed in other Member States is also considered unfair, when said good has significantly different composition or characteristics, unless it is justified by legitimate and objective factors

 

Misleading omissions (Art. 7)

Considered unfair (Art. 7.1):

 

  1. The omission or concealment of information necessary for the recipient to make or be able to make a prior informed decision on his/ her economic behaviour is considered unfair. It is likewise unfair if the information provided is unclear, unintelligible, ambiguous, is not offered at the right time or the commercial purpose of that practice is not revealed when it is not evident from the context
  2. The factual context of acts, taking account of all of their characteristics and circumstances and the limitations of the media employed, shall be considered in determining the misleading nature of the acts referred to in the preceding paragraph
    In assessing the existence of an omission of information when the media used imposes space or time limitations, such limitations shall be taken into account along with all the steps taken by the entrepreneur or professional to convey the necessary information through other channels

 

Article 9: Acts of denigration

 

  • The creation or dissemination of statements about the activity, services, establishment or commercial relations of a third party that are designed to undermine or damage its credibility in the market is considered unfair, unless they are accurate, true and relevant. In particular, statements concerning the nationality, beliefs or ideology, private life or any other strictly personal circumstances of the person concerned, will not be deemed relevant

 

Article 10: Acts of comparison

 

Summary with relevant cases here

 

Public comparison, including comparative advertising by means of an explicit or implicit reference to a competitor, is allowed if the following requirements are met:

 

  1. The goods or services compared must have the same purpose or meet the same needs
  2. An objective comparison is made between one or more material, relevant, verifiable and representative features of the goods and services, which may include price
  3. In the case of products protected by a designation of origin or a geographical indication, specific designation or a certified traditional speciality, the comparison may only be made with products of the same designation
  4. Goods or services may not be presented as imitations or replicas of goods or services bearing a protected trade mark or trade name
  5. The comparison may not infringe the provisions of Articles 5, 7, 9, 12 or 20 regarding misleading and denigrating acts and exploitation of another’s reputation

 

Article 12: Exploitation of the reputation of others

 

  • The misappropriation, for one's own benefit or that of a third party, of the advantages of the industrial, commercial or professional reputation acquired by another party in the market, is deemed unfair
  • In particular, the use of distinguishing signs of others or false designations of origin together with the real product origin, or expressions such as 'models', 'system', 'type', 'class' and similar, is deemed unfair

 

B. Chapter III Commercial Practices with Consumers and Users: articles 21-27 concern misleading practices, articles 28-31 aggressive practices;

 

We have extracted and placed in the file below those articles from Law 3/1991 on Unfair Competition that are most relevant to marcoms: translation is unofficial and non-binding. Clauses include those transposed in 2022 from the Directive 2019/2161 relating to search rankings and consumer reviews:

http://www.g-regs.com/downloads/SPGenUnfCompExtracts2022EN.pdf

 

2.3.  Article 20: Royal Legislative Decree 1/2007 (RLD 1/2007) General Consumer and User Protection Act ES / EN key clauses unofficial translation

 

‘Invitation to purchase’

 

  1. Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase, must contain, if not already apparent from the context, at least the following information:
     

a) Name, registered name and full address of the entrepreneur responsible for the product offered and, where appropriate, the name, registered name and full address of the entrepreneur on whose behalf he acts

b) The essential characteristics of the good or service, in a manner appropriate to its nature and to the means of communication used

c) The full and final price, inclusive of taxes, providing a breakdown, where appropriate, of the amount of additions or discounts applicable to the transaction and any additional costs being passed onto the consumer or user. In other cases where, owing to the nature of the good or service, the price cannot be accurately determined in the commercial offer, the consumer and user must be informed of the basis of the calculation in order to allow them to check the price. Similarly, when the additional costs being passed on to the consumer or user cannot be calculated in advance on objective grounds, they must be informed of the existence of these additional costs, and if known, their estimated amount

d) Payment procedures, deadlines for delivery and performance of the contract and the complaint handling policy, where they depart from the requirements of professional diligence, as defined in Article 4.1 of the Unfair Competition Law

e) Where appropriate, the existence of a right of withdrawal

 

  1. For the purposes of complying with the provisions of the previous section and without prejudice to the sectoral regulations that may be applicable, the information required to be included in the commercial offer must be provided to consumers or users, mainly in the case of vulnerable consumers, in clear, understandable, truthful terms and in a format that ensures their accessibility, in such a way that secures their proper understanding and allows optimal decision-making for their interests
  2. Failure to comply with the provisions of the preceding paragraphs will be considered unfair practice on the grounds of being misleading in the same terms as those established in article 7 of Law 3/1991, of January 10, on Unfair Competition
  3. Commercial practices in which an entrepreneur enables access to consumer and user reviews of goods and services must contain information on whether or not the entrepreneur ensures that said published reviews have been made by consumers and users who have actually used or acquired the good or service. To this end, the entrepreneur must provide clear information to consumers and users about how reviews are managed
  4. The burden of proof of compliance with the information requirements established in this article will fall on the entrepreneur
  5. Failure to comply with the provisions of the preceding paragraphs will be considered an unfair practice as it is misleading in the sense of article 7 of Law 3/1991 of January 10 on Unfair Competition

 

2.4. Broadcast law; content rules

 

General Law on Audiovisual Communications 13/2022 of 7 July (ES; EN key clauses), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services. Includes rules on various sectors such as alcohol, medical products, rules related to children, surreptitious and subliminal advertising. Transposes the 2010/13 Directive and its amending directive 2018/180

 

3. SPECIFIC CLAIM AREAS
3.1. Environmental claims 

 

3.1.1. Self-regulation (national)

 

  • Autocontrol’s General Code of Advertising Practice (EN)
  • Commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour (art. 13)
  • Sectoral code, relevant mainly to cars: self-regulatory code on the use of environmental claims in commercial communications (2009) ES / EN 
  • The Ministry of Agriculture and Fisheries, Food and Environment MAPAMA, Autocontrol, and companies from the energy and automotive sectors established a Code of Good Practice that guides companies in the development, execution and dissemination of advertising messages that include environmental claims. The Code applies only to the signatory companies

 

Autocontrol resolutions

 

  • Resolution 16.02.2012 ES:  re illegible information in advertising for Hyundai iX35; breach of Article 3.3 General Code of Conduct: the FC&CO2 data in a TV commercial were displayed on a scroll/ overlay that appeared on the screen so briefly they were impossible to read
  • Resolution 03.12.2015 ES: Re cars 'parked' on the beach in a commercial for Volvo XC60. Contrary to Article 12, General Advertising Code The article Commercial communications shall not present behaviours generally considered harmful to the environment, unless their display has an educational or demonstrative motive in favour of the environment, nor shall they incite such behaviour and Article 33.5 of Law 22/1988 of 28 June on Coasts which establishes 'parking and unauthorised movement of cars is prohibited' on beaches and Article 72.1 of Royal Decree 876/2014 of 10 October which confirms that parking and movement of vehicles is prohibited on beaches

 

3.1.2. International self-regulation

 

 

3.1.3. Horizontal legislation:
The Unfair Commercial Practices Directive UCPD 2005/29/EC, transposed into Law 3/1991 on Unfair Competition

 

  • EU legislation in environmental marketing is confined to specific sectors such as energy-related and organic products; the UCPD applies to all claims made in B2C commercial practices, including those related to the environment
  • Environmental claims may be reviewed inter alia under articles 6 Misleading actions, 7 Misleading omissions and 12 of the UCPD; in Spain in Law 3/1991 on Unfair Competition (EN key clauses) articles 5 and 7 respectively, and article 21 which reflects Annex I of the UCPD regarding trust marks; see also Commission Guidance below

 

3.1.4. Guidance

 

On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). Section 4.1. for Sustainability and 4.1.1. for Environmental claims specifically

 

3.1.5. Comparative claims

 

Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising (MACAD) Article 4 MACAD / Article10 Law 3/1991 sets out the criteria under which comparative advertising is allowed. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 10 Law 3/1991 on Unfair Competition):

 

  • Not be misleading, within the meaning of the UCPD
  • Compare goods or services meeting the same needs or intended for the same purpose (usually interpreted to mean that the comparison should refer to the same product category)
  • Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

 

3.2. Pricing

 

 Stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of this website, does not constitute advice, just what the rules say

 

Applicable self-regulation and legislation 

 

Note:  the law under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC; in amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for reduced/ promotional pricing. These came into force in member states on May 28, 2022, in Spain via Royal Decree 24/2021 amending the Retail Trade law 7/1996 ES / EN key clauses. Commission guidance for the application of the article is here

 

  • Autocontrol’s General Code of Advertising Practice (EN) articles 14.1 (e) Misleading advertising and 22 (b) Comparative advertising
  • Royal Decree 3423/2000 on the Regulation of the Indication of Prices ES / EN key clauses inc. article 3 Indication of prices and exceptions
  • Royal Legislative Decree 1/2007 General Consumer and User Protection Act ES (2022). Key clause Article 20 EN 'Invitation to purchase'
  • Law 3/1991 on Unfair Competition EN key clauses / ES (both inc. 2022 amends) articles 5/1/e, 7, 22
  • Law 7/1996 on Retail Trade EN key clauses / ES (Art. 20 for 2022 amend re discount price announcements) 

 

Case law: Court of Justice of the European Union (CJEU) C‑476/14 Citroën/ZLW Judgement and AG Opinion

 

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

The case is here; Pinsent Oct 4 commentary here 

 

3.2.1. Self-regulation key clauses

 

  • Article 14.1 (e) AC General Code: Commercial communications must not be misleading. Misleading advertising is that which in any way deceives or is likely to deceive its recipients, and is liable to alter their economic behaviour, provided that it has an impact on one of the following elements: The price or the manner in which the price is calculated, or the existence of a specific price advantage (this clause selected for this context)
  • Article 22 (b) AC General Code: Direct or indirect comparative advertising shall respect the requirements listed below: The comparison will be done objectively between one or more material, relevant, verifiable and representative features of those goods and services, which may include price

 

3.2.2. Legislation key clauses

 

  • Royal Decree 3423/2000 ES implements Product Pricing Directive 98/6; key provisions in English, as outlined below EN
  • The selling price must be indicated for all products offered by traders to consumers (Art. 3.1)
  • Selling Price is the final price for a unit of the product or a specific/ given quantity of the product, including the Value Added Tax and all other taxes (Art. 2a)
  • The price per unit of measurement must be indicated:

 

  • For all products that need an indication of the quantity, the unit of measurement of which must be stated 
  • For products sold by units or pieces, using in such a case the price of one unit or piece as the unit price (Art. 3.2)

 

 

Features and presentation of prices (Art. 4)

 

  • The selling price and the unit price (price per unit of measurement) must be:

 

  • Unambiguous, easily identifiable and clearly legible, situated in the same visible area/ field of vision
  • Visible to the consumer without the need for the latter to request such information (Art. 4 (1a&b))

Discount pricing

 

  • The Retail Trade Law 7/1996 EN key clauses / ES (2022) carries many provisions related to pricing; the linked EN file includes only those more closely related to commercial communications and especially requirements from the Product Price Directive amended by Directive 2019/2161 to incorporate a new article 6a on promotional price announcements;  transposition is under article 20 of the Retail Trade Law:
  • 1. Whenever items with a reduced price are offered, the previous price together with the reduced price must be clearly shown on each one of them, except in the case of items offered for sale for the first time. The previous price shall be understood to be the lowest that would have been applied to identical products in the preceding thirty days. For these purposes, the price that could have been applied, in order to reduce food waste, on identical products whose expiration or preferential consumption (best before) dates were about to lapse will not be taken into consideration. 2. Under no circumstances may the use of sale promotion activities be subject to the condition of the existence of a minimum or maximum percentage reduction.

 

3.2.4. Case law

 

  • Key points from C‑476/14 Citroën/ ZLW case. Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (para. 37). Other price components = integral parts of the final price (para. 23)
  • EU Commission also confirms, under Article 7 (4)(c) UCPD (In Spain Art. 20 RLD 1/2007), an entry-level price or starting price, i.e. indicating the price as 'from' a specific minimum amount, can only be permitted if the final price cannot ‘reasonably be calculated in advance’ due to the nature of the product (Case C-122/10 Konsumentombudsmannen/ Ving Sverige AB, Judgment of 12 May 2011, para. 64)

 

 

 

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

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 2024 ICC Code

1.1. General provisions

 
  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

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive 


 

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

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful;
  • All marketing communications should be prepared with a due sense of social, environmental and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
  • No communication should be such as to impair public confidence in marketing.
  • No communication should in the content and manner made undermine the public’s trust and confidence in marketing communications.

 

Social responsibility (Art. 2)

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

Marketing communications should not:

 

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

Truthfulness (Art. 5)

 

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

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

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code.
  • Marketers should have a reasonable basis for making claims relating to verifiable facts at the time the claim is made. Claims that state or imply that a particular level or type of substantiation exists should have at least the level of substantiation advertised. Supporting documentation should be provided promptly upon request to the self-regulatory organisations responsible for the application and enforcement of the Code. The standard of proof required generally depends on factors such as the type of claim, the product, the consequences of a false claim and the benefits of a truthful claim;
  • Substantiation should be based on documentation, tests or other factual evidence that is valid, reliable and sufficiently precise to support the claim made. In the absence of required substantiation, the claim would be regarded as misleading. 
  • Regarding substantiation of environmental claims, see Article D1.

 

 

Identification clauses

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
 
Use of technical/ scientific data and terminology (Art. 9)

 

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

 

 

Promotional terms/ dark patterns 

 

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

 

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

 

NEW ARTICLE

Presentation of the offer (Art. 11)

 

  • The terms and conditions of any offer including the identity of the marketer, full name and address along with information on how to ask questions or lodge complaints should be transparent to consumers. There should be a clear process which leads to the necessary steps to place an order, purchase, conclude a contract or any other commitment. Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated but should not be scattered throughout an extensive presentation;
  • Offers should not be presented in a manner that conceals or obfuscates material factors, e.g. price, additional costs, availability or other essential sales conditions, likely to influence consumers’ decisions;
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided. When an offer involves different choices those should be clear and unambiguous, and their consequences easy to understand for consumers;
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer. For offers involving promotional items, see Chapter A: Sales Promotion;
  • Before making any commitment, consumers should be able to easily access the information needed to understand the exact nature of the product and all conditions of the offer, as well as their rights and how to exert them. Marketing communications inviting consumers to contact the marketer for further information of an offer should be transparent on the cost of communications therefore (see also Article C4);
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order. The fulfilment of any obligation arising from the offer should be prompt and efficient.

 

NEW ARTICLE
 Automatic renewals (Art.12)

 

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

 

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

 

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

 

Comparative and competitive 

 

Comparisons (Art. 14)​

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time
  • Marketing communications should not imitate another marketer’s work in a manner that is likely to mislead or confuse the consumer. This includes similarities in general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more markets, other marketers should not imitate that campaign in other markets where the original marketer might operate. This will consequently prevent blocking the expansion of the campaign to those markets within a reasonable period of time.

 

 

Denigration (Art. 17)

 

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

 

Testimonials/ Influencers 

 

Testimonials (Art. 13)

 

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

 

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

 

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

 

 

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

 

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

 

Children/ teens 

 

NEW ARTICLE

Children and teens (Art. 20)

 

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

 

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

 

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

 

Safety and health (Art. 21)

 

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

 

NEW ARTICLE

 Data protection and privacy (Art. 22)
We haven't set out this article as it's a channel rule and well covered elsewhere, largely by the law 

 

NEW ARTICLE
Unsolicited products and undisclosed costs (Art. 23) 
 
  • Marketing communications associated with the practice of sending unsolicited products to consumers who are then asked for payment (inertia selling), including statements or suggestions that recipients are required to accept and pay for such products, should not be used;
  • Marketing communications which solicit a response constituting an order for which payment will be required (e.g. an entry in a publication) should make this unambiguously clear;
  • Marketing communications soliciting orders should not be presented in a form which might be mistaken for an invoice, or otherwise falsely suggest that payment is due;
  • For specific rules on respecting consumers’ wishes, see Chapter C, Article C6.
 
Articles 24-26, which complete the General Provisions section, are not included here as they are largely procedural
 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media means any statement, symbol, sound, or graphic that indicates or implies an environmental aspect of a product, a component or ingredient of it, packaging or constituent of it, or an activity, facility or operation. The full scope and application of Chapter D has been extracted here 

 

Article D1. Substantiation 
 
  • All express or implied environmental claims should be substantiated by reliable scientific evidence11.(TT Reliable scientific evidence is the type of evidence likely to be recognised by experts in the field. Such evidence may, depending on the claim, consist of tests, analyses, calculations, studies, reports, surveys or other information) Care should be taken to assure that the substantiating data relied upon reflects the relevant product or activity and the claimed environmental aspects, attributes or performance featured in the marketing communication;
  • To substantiate aspirational claims or claims expressing goals or commitments related to achieving certain environmental metrics in the future, a marketer should be able to demonstrate that it has reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
  • As described in Article 6 of the Code, marketers need to monitor and review environmental claims regularly to ensure ongoing compliance, accuracy, and relevance. Typically, reliable scientific evidence, such as test data, analyses, studies and other documentation, are required to meet this standard;
  • See the Framework for further details on substantiation.

 

D2. Honest and truthful presentation

 

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

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

 

D 2.2 Vague or general, non-specific claims 

  • Vague or general non-specific claims of environmental benefit, which may convey a range of meanings to consumers. Such claims should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular Claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made; 
  • Special care should be taken before claiming sustainability achievements. Marketers should be cognisant of ongoing work to establish relevant methods to measure and validate sustainability. Relevant limitations should be made clear. An unqualified “sustainability” claim may be understood to involve company actions beyond efforts to reduce environmental impacts, depending on the context. Claims may be perceived as stating or implying that they involve social and economic impacts, such as support for fair working conditions, diversity and inclusion, communities, or charities, or the like, as well. Hence, marketers making sustainability claims should be mindful that consumers may take away a broader corporate social responsibility message. Marketers should evaluate relevant substantiation for such messages and consider whether claims should be qualified accordingly;
  • A specific claim about individual environmental attributes supported by reliable scientific evidence could be linked to a claim of “sustainability” (for example, “this part of our product is sustainable because it’s made of 100% post-consumer recycled content and is recyclable”); however, marketers should not state or imply that an entire product, facility or operation is “sustainable” without qualification simply because it has some positive environmental benefits.

 

D 2.2 Qualifications

 

  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read understood together;
  • There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a refer a consumer to a QR code or a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many only in some communities, visit [URL] to check on if there are facilities near you,” provides both the relevant qualifier (that available recycling facilities are limited) plus a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.

 

D3. Scientific research

 

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

 

D4. Comparisons

 

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

 

 

D5. Product life-cycle

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a full life cycle analysis (cradle to grave). If an alternative lifecycle analysis is used (e.g. cradle to gate), the more limited scope of that lifecycle analysis should be disclosed;

Article D6 – Claims regarding components and elements

  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant meaningful environmental improvement;
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Such claims could be justified if they respond to potential misperceptions about the use of the identified component, ingredient, feature, or impact. If so, qualifiers may be needed to avoid consumers being misled about the nature of the product, process, activity etc.Conversely, generic features or ingredients, which are common to all or most products in the category concerned, or required by law, standards or otherwise, should not be presented as if they were a unique or remarkable characteristic of the product being promoted;
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code;
  • When the absence of a certain component or ingredient is claimed, directly or implicitly, to offer an environmental benefit versus another product, the general rules on comparisons apply, see Article D4 and General Provisions Article 14.

 

D7. Certifications, signs and symbols 

 

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

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described.
 
D8. Environmental attribute claims
 
  • Environmental claims referring to a product’s makeup or constituents (for example, made with recycled or renewable content) or waste handling (for example, recyclable or compostable), should truthfully represent the attributes of the advertised product based on reliable scientific evidence as set out in Article D1. A product claimed to involve recycled or renewable content that is made from less than substantially all recycled or renewable content should avoid any risk of misleading consumers, e.g. by disclosing the percentage. A product claimed to be recyclable or compostable should disclose the extent of availability of these disposal methods if availability is limited;
  • Marketing communications that include compostability claims should disclose if a product is compostable only in industrial settings, and if so, whether facilities are limited, or if the resulting compost is subject to any use limits. A claim that a product’s packaging is refillable, or reusable should provide handling instructions to maintain safety.

 

D9. Responsibility

 

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

 

 

Additional guidance

 

 

 

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

We have not set out individual clauses below, therefore. 

 

Applicable self-regulation 

 

  • Article 20 from the General Provisions of the iCC Code above and Chapter E; see above or here 
  • ICC Statement on code interpretation and ICC reference guide on advertising to children here
  • ICC toolkit: Marketing and Advertising to Children (2017) here
  • Framework for Responsible Food and Beverage Marketing Communications here
  • WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children 

 

 

 

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

 

Applicable self-regulation and legislation 

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

 

 

 

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) 

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

 

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

 

Guidance 

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product;

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

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

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

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

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

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

 

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

 

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

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

 

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

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

 

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

 

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

 

 

ANNEX I

 

Commercial practices which are in all circumstances considered unfair 

Marcoms-relevant only; see Empco amends below

 

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

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

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

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

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

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

 

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

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

(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).

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

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

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

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

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

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

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

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

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

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

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

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

Article 6a

 

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

 

 

2.2.2. Extracts from UCPD re pricing

 

Article 6

Misleading actions

 

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').

 

 

 

2.3.The AVMS Directive and amend 

 

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

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

 

Article 9

 

  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.

 

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

 

 

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

 

Article 1

Amendments to Directive 2005/29/EC

 

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

 

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


 

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


 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

(1) the following point is inserted:

 

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

(2) the following points are inserted:
 

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

(3) the following point is inserted:

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

 

(4) the following points are inserted:
 

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

 

2.5. The Green Claims Directive 

 

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

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C: TV & RADIO/ AV

 

 

CONTENT RULES

 

  • The content rules set out in section B apply to this channel, except where media specification identifies non-broadcast; both the sector-specific and the general rules (shown under the General tab) should be observed. Principal source of general rules is the General Code of Advertising Practice (EN)

 

LEGISLATION

 

  • Commercial communication of alcoholic beverages with more than 20% ABV is prohibited except between the hours of 0100 and 0500 (Art. 123/4 Law 13/2022 and Art. 5 (5) Gen Law 34/1988 on Advertising; both files EN key clauses inc. 2022 amends)
  • Commercial communication of alcoholic beverages below 20% ABV is permitted between 2030 hrs and 0500 (Art. 123/5 Law 13/2022)
  • Commercial communication of alcoholic beverages below 20% ABV is prohibited for those communications which are aimed at minors, or encourage immoderate consumption, or associate consumption with improved physical performance, health, or social success (Art 123/3 Law 13/2022)
  • Audiovisual commercial communication includes television, radio advertising spots, sponsorship, teleshopping and product placements (Law 13/2022). Scope is extended in the 2022 law to video-sharing services, consistent with the AVMS Directive 2018/1808
  • An (all) advertising ban on TV and radio channels of the public service broadcaster (RTVE) has been in place from 1 January 2010 (Law 8/2009 on financing of RTVE – first transitional provision)

 

ALCOHOL INDUSTRY CODES  

 

BEER

 

Spanish Brewers Code SBC (EN)

 

  • Member companies must submit their advertisements or draft advertisements for alcoholic beer on television (for example, script and storyboard) for pre-assessment before broadcasting (Chap. 3 (4))
  • Responsible Consumption Message: the caption - brand X of beer recommends responsible consumption ‘(la marca correspondiente) recomienda el consumo responsable’ must appear in lettering running horizontally across the screen with a font size of 26.  Its exposure time must be 3 seconds in spots of up to 10 seconds, 5 seconds in spots of between 11 and 30 seconds and 7 seconds in spots longer than 30 seconds (Chap. 3 (2))
  • The booking/ allocation of beer advertising in television or radio spots in programmes specifically related to the driving of motor vehicles is prohibited (Chap. 5 (4))
  • Minors: on Free-to-Air commercial TV, advertising spots for beer must not be broadcast before 8.30 pm local time in mainland Spain (estimated start of late-night news), irrespective of the internal regulations or resolutions of each channel (Chap. 4 (8d))
  • Minors: advertising broadcast immediately before, during or after the transmission of TV, radio programmes which are aimed specifically at child audiences or minors are prohibited (Chap. 4 (8e)); this provision also applies to advertising of alcohol-free beer (Chap. 4)

 

WINE

 

OIVE Code (EN)

 

  • Prior consultation or copy advice for advertisements to be broadcast on TV: Companies affiliated to the Code must send their (draft) advertisement to the Technical Office of Autocontrol for prior review and confidential, binding copy advice before broadcast (Chap. VII)
  • Responsible Consumption Message: ‘El Vino Sólo Se Disfruta Con Moderación’. The message must be displayed to consumers and the public in a clearly visible and legible format; the message must be located in a clearly visible place and appear in a colour which allows it to be read clearly and easily with respect to the background of the advertisement (Chap. VI, Clause 1)
  • In the case of television, it must always appear horizontally using a fixed overprint/ overlay on screen for at least 2 seconds, with a surface area of 1.5% of the total advertisement (Chap. VI, Clause 1)
  • Minors: commercial communications must not be transmitted by media, for example programmes, specifically aimed at minors in terms of editorial content and/ or audiences (Chap VI, Clause 4)

 

SPIRITS

 

Spanish Spirits Association Code - FEBE Code (EN)

 

  • Alcoholic beverages in excess of 20% ABV are not permitted to advertise on television except between the hours of 0100 to 0500. Any spirit below this ABV should observe the following: 
  • Responsible Consumption Message (RCM): the message must be displayed in a clearly legible format:

 

  • Must be placed so as to be clearly visible
  • For TV: must have a minimum size of 1.5% of the total area of the advertisement and must be displayed for at least 2 seconds
  • Must be printed in a colour which allows it to be clearly visible and legible against the background of the advertisement
  • Must be accompanied by an indication of the alcoholic strength of the product, in the same format and colour and follow immediately after the RCM (Art. 7 (2) FEBE Code)
  • Minors: marcoms must not be broadcast on television or radio, immediately before, during, or immediately after programmes or sessions specifically intended for minors or where the majority of the audience are minors (Art. 10 (5a))
  • Minors: marcoms must not be broadcast on television until the beginning of the evening news and in no case before 20:30hrs (Art. 10 (5b))
  • Marcoms may only be shown during the hours, programmes or sections of broadcast media when at least 70% of the audience are reasonably expected to be adult (Art. 10 (6))

 

ALL ALCOHOL 

 

The law: Product placement (PP)

 

  • Must respect the general rules (i.e. broadcast in feature-length films, short films, documentaries, films and series for television, sports programmes and entertainment programmes (Art. 129 Law 13/2022 EN and Art. 14 RD 1624/2011) applicable to all kinds of product placement, but also must comply with all the alcohol marcoms restrictions (i.e. AV Advertising (includes PP) of drinks with more than 20% ABV is prohibited except between 0100 and 0500 hrs.; AV advertising of drinks with less than 20% ABV is permitted only between 20h30 and 05h00; advertising may not be aimed at minors, or encourage immoderate consumption, or associate consumption with improved physical performance, health, or social success)

 

Sponsorship 

 

  • Must respect the general rules applicable to all kinds of sponsorship, but also must comply with all the alcohol marcoms restrictions i.e. TV Advertising (includes sponsorship) of drinks with more than 20% ABV is prohibited except between 0100 and 0500 hrs; TV advertising of drinks with less than 20% ABV is permitted only between 20h30 and 05h00; advertising may not be aimed at minors, or encourage immoderate consumption, or associate consumption with improved physical performance, health, or social success (Law 13/2022 EN; art. 128 for sponsorship rules)
  • Exemption from the obligation to include Responsible Consumption Messages (see Industry Code section below)

 

INDUSTRY CODES 

 

  • The rules contained in the codes relating to commercial communications will also apply to sponsorship, e.g. rules above relating to minors
  • RCM: exemption in sponsorship; there is no obligation to include the responsible consumption message in sponsorship advertising. For Beer, this applies for sponsorship sequences which do not last more than 10 seconds (Chap. 3 (2) SBC). For Wine, the exemption extends to advertising in which the presence of the winery is restricted to sponsorship of activities/ events (Chap. V, Clause 1, FEV Code). For Spirits, it applies to sponsorship where the products or consumption are not promoted (Art 7 (2) FEBE Code)

 

Specific references to sponsorship in Industry codes:

 
Beer

 

  • No event or occasion shall be sponsored, which is specifically aimed at minors (Chap. 4 (8f) SBC)
  • AV sponsorship specifically related to the driving of motor vehicles is prohibited. (Chap 5 (4) SBC)

 

Spirits 

 

  • Sponsorship, and especially sponsorship of radio and television programmes, shall comply with the applicable legislation on the advertising of alcoholic beverages (Art. 14 (2) FEBE)
  • Member companies must not sponsor events which are broadcast on TV when the main objective of the said sponsorship is the promotion via TV of any alcoholic beverage whose advertising is in fact prohibited via this medium (Art. 14 (2b) FEBE)
  • Promotion through the medium of television is considered to exist when there is compensation (payment) for the medium on the part of the member company, whether directly or through the organiser of the event or any other intermediary. Nevertheless, it is to be understood that promotion through the medium of television does not exist when the event is of informational interest in itself or forms part of sports competitions, cultural or social programmes, courses or series and any other acts provided that they are of an official nature

 

 

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General

SECTION C: TV & RADIO/ AV

 

 

APPLICABLE LEGISLATION

 

Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024

Register for AV Service Providers. GALA Jan 8, 2024

 

  • General Law on Audiovisual Communications 13/2022 of 7 July (ES; abbrev. GL. EN key clauses here), which sets out the rules for advertising spots, product placement, teleshopping and sponsorship; covers TV and Radio, some forms of VOD and, most recently, video-sharing services. Implements the AVMS Directive 2010/13/EU and its revisions via Directive 2018/1808,
  • Royal Decree 1624/2011 (EN key clauses; ES) complements the General Law 13/2022 above and develops some of its elements in relation to tele-promotion, self-promotion, product placement, sponsorship and marcoms during the broadcasting of sporting events (referred to as the Advertising Regulation in CNMC Documents below)

 

RD 444/2024 (ES) of April 30 approved by Council of Ministers

Register for AV Service Providers (Including Influencers and Vloggers) GALA Jan 8, 2024

 

See above header for approval of Royal Decree 444/2024 which regulates requirements for a 'user of special relevance' - i.e. an influencer - of video sharing services, in development of article 94 of Law 13/2022. Specifically, the RD 'is prepared with the objective of specifying the requirements provided for in letters a) and c) of article 94.2'. Those concern income, audience/ followers and activity respectively; these are set by the decree (Ch 2, arts 3 & 4) at 300k euros and 1mil followers in a single platform or 2mil across all platforms and they must have published or shared 24 or more videos per annum. Influencers who meet these criteria must register with the State Register of Audiovisual Providers within two months (from May 2nd) and comply with Article 94 of the General Law on Audiovisual Communication (EN unofficial translation of article 94 and implications). Helpful DLA Piper May 3, 2024 commentary here 

 

STANDARD RULES 

 

  • As well as the channel-specific rules that follow, the commercial communication content rules set out in our preceding content section B generally apply in these channels. The principal set of content rules is from the Autocontrol Code of Advertising Practice (EN)

 

PROHIBITIONS

 

  • Surreptitious commercial communication and commercial communication using subliminal techniques are prohibited (Art.122/ 3&4). Product placement must be identifiable to the viewer, otherwise it will be considered to be surreptitious; requirements in CNMC Criteria (ES)
  • Commercial communication that encourages behaviour harmful to health is prohibited; article 123 of the LG above covers cigarettes and other tobacco products, medicines and health products, some alcoholic beverages, games of chance
  • Article 124 covers protection of minors in the context of e.g. direct incitement to purchase, dangerous situations, discrimination beteween men and women, the cult of the body and other situations
 

RIGHTS OF THE MINOR

 

  • Children are protected by the restriction of some forms of advertising in some time periods. Rules are set out under the Children category available from the home page of this website, or see article 124 of the GL file linked above 

 

 ADVERTISING DURING A SPORTING EVENT

 

  • 'Publicidad' (Advertising) must be superimposed clearly and legibly throughout the duration of the advertising, where it takes the form of transparencies, virtual advertising, voiceovers, and split screen advertising (Art. 17.2 RD) This will also apply to such adverts inserted into replays shown during the transmission of the event; not applicable to replays shown after the event or during a break (Art. 17.3 RD)

 

PRODUCT PLACEMENT 

 

Article 129 General Law 13/2022 (ES; key clauses EN here) and Article 14 RD 1624/2011​

 

SPONSORSHIP

 

Article 128 General Law 13/2022 (linked above); articles 12/13 Royal Decree 1624/2011​

 

 

 

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International

SECTION C TV/AV AND RADIO

 

 

EASA Jan 2024 update on the AVMSD

 

APPLICABLE SELF-REGULATION AND LEGISLATION

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

 

SPONSORSHIP (from the ICC Code)
2024 amends shown in italics

 

Article B12: Media sponsorship

 

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

LEGISLATION KEY CLAUSES 

 

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

 

Article 9

 

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

 

  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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2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The content rules set out in section B - both the sector-specific and the general rules - apply, except those specifically for audiovisual broadcast media. Principal source of general rules is the General Code of Advertising Practice (EN)
  • The agreement signed between FEBE (the Spanish Spirits Association) and Autocontrol in April 2014 requires that all FEBE members request Copy Advice® for advertising to appear in TV, cinema, press, radio and outdoor media
  • Article 7 of Autocontrol’s Code on Cinema Advertising states that the advertising of alcoholic beverages shown in cinemas must be adapted/ aligned, where appropriate, to the provisions contained in the Beer, Spirits and Wine Trade Association Codes, contents of which we have set out in section B
  • For spirits, the Responsible Consumption Message must be displayed in a clearly legible format and:
     
    • Placed so as to be clearly visible
    • To a minimum size of 1.5% of the total area of the advertisement and displayed for at least 2 seconds
    • Printed in a colour that allows it to be clearly visible and legible against the background of the advertisement
    • Accompanied by an indication of the alcoholic strength of the product, in the same format & colour & follow immediately after the RCM (Art. 7 (2) FEBE)
       
  • While the Beer industry association does not specify formatting for RCMs in cinema, a reasonable assumption is to follow the television formatting shown earlier
  • Minors: marcoms must not be shown immediately before, during or immediately after performances/ shows specifically intended for minors or where the majority of the audience comprises minors (Art. 10 (5a) FEBE; also principle replicated in Chap. 4c (8b) SBC and Chap. VI, Clause 4b, OIVE Code). This principle also applies to alcohol-free beer (Chap. 4 SBC)

 

PRINT

 

Press, magazines & promotional literature, e.g. leaflets, brochures, catalogues etc.

 

  • The content rules from the respective codes and laws (except those rules for audiovisual media) outlined in section B will apply
  • The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found below the sector rules in section B. Principal source of general rules is the General Code of Advertising Practice (EN)
  • Rules specific to print media within the respective codes:

 

Beer

 

  • Beer marcoms must not appear on the front or back covers of daily newspapers (Chap. 3 (3) SBC)
  • The booking or allocation of advertising in magazines or sections of newspapers specifically related to the driving of motor vehicles is prohibited (Chap. 5 (4) SBC)
  • RCM: Newspaper and magazine advertisements must include the Responsible Consumption Message which must be included in a legible format for the target audience and must always appear horizontally (Chap. 3 (2) SBC)
  • Minors: Beer marcoms must not be shown on printed media aimed at minors or on printed pages which contain articles, reports or information especially aimed at this audience (Chap. 4 (8a) SBC). Applies in the case of alcohol-free beer also (Chap. 4 SBC)

 

Wine

 

  • RCM: Must be displayed to consumers and the public in a clearly visible and legible format: and
     
    • Located in a clearly visible place.
    • To a minimum size of 1% of the total advertisement.
    • In a colour which allows it to be read clearly and easily with respect to the background of the advertisement
       
  • RCM Exemption: applies where references are made to the winery and its products in the messages freely developed by media on the basis of press releases, provided there is no consideration or commission and the member company does not have control over the published content (Chap. VI, clause 1)
  • Minors: Wine marcoms must not be transmitted by media (for example: sections, pages) specifically aimed at minors in terms of editorial content and/ or audiences (Chap. VI, Clause 4b, OIVE Code)

 

Spirits

 

  • The agreement signed between FEBE (the Spanish Spirits Association) and Autocontrol in April 2014 requires that all FEBE members request Copy Advice® for advertising to appear in cinema, press, radio and outdoor media
  • Spirits marcoms: must not be inserted in motor magazines or other motor publications or in those specialised supplements or sections of magazines/ other publications whose main content relates to motor vehicles (Art. 9 (2) FEBE Code)
  • RCM: Must be displayed to consumers in a clearly legible format:
  • Must be placed so as to be clearly visible
  • Must have a minimum size equivalent to 1% of the total area of the advertisement
  • Must be printed in a colour which allows it to be clearly visible and legible against the background of the advertisement
  • Must be accompanied by an indication of the alcoholic strength of the product, in the same format and colour and follow immediately after the said message (Art. 7 (2) FEBE Code)
  • Minors: Spirits marcoms must not be inserted in publications aimed at minors or in pages for minors contained in publications not specifically intended for minors (Art. 10 (5c) FEBE Code)

 

OUTDOOR

 

The content rules - both the Sector and the General rules - set out in our earlier Section B apply to Outdoor advertising, except those specific to Audiovisual communications. There is one significant statutory rule re Outdoor advertising:

 

  • The advertising of beverages with an alcoholic strength of more than 20% ABV is prohibited in those places where its sale and consumption is prohibited (Art. 5 (5) General Law 34/1988 on Advertising; EN key clauses linked inc. 2022 amends)
  • Therefore, advertising of beverages with alcoholic content below 20% ABV can be advertised even in places where its sale or consumption is prohibited
    Note: Art. 5.5 Law 34/1988 on General Advertising was modified by the Seventh Additional Disposition of Law 12/2012 on Urgent Trade Liberalization Measures and certain services. The amendment introduced the possibility of advertising beverages with alcoholic content below 20% ABV, even in places where its sale or consumption is prohibited. Previously, the advertising in these places of all alcoholic drinks regardless of strength was prohibited. After the amendment, this prohibition only applies for alcoholic drinks over 20% ABV

 

Three issues arise:

 

1) Consumption of alcohol is generally prohibited in public thoroughfares, meaning no advertising of drinks exceeding 20% ABV will be permitted in those places, but

2) There is no State law that lists the places where consumption is prohibited and

3) The interpretation or application of the rule varies according to region; authorities generally have autonomy

 

A regional table is here (EN), but best to check with local advisors. See also some commentary here (EN)

 

Note: Law 12/2012 (which amended Art. 5.5 Law 34/1988) is considered a basic regulation and, therefore, prevails over autonomic legislation. Consequently, it is not necessary to take into account those regional regulations that generally prohibit the advertising of alcoholic beverages in places where it is prohibited to sell and consume, and it should be understood that this limitation would only affect beverages with alcohol content over 20% ABV

 

Rules specific to Outdoor within the respective codes:

 

Beer

 

  • Minors: Beer marcoms must not be shown within 100 metres of the entrance to Infant, Primary and Secondary schools, once the state governments provide the lists of schools located in their regions for this purpose (Chap. 4 (8c) SBC)
  • RCM: Outdoor hoardings (excluding supports located at the tops of buildings, monoposts or similar) must include the responsible consumption message (Chap. 3 (2) SBC)

 

Wine

 

  • RCM: The message must be displayed to consumers and the public in a clearly visible and legible format: 
     
    • Must be placed so as to be clearly visible
    • Must have a minimum size of 1% of the total advertisement
    • Must appear in a colour which allows it to be read clearly and easily with respect to the background of the advertisement (Chap. VI, Clause 1, OIVE)

 

Spirits

 

  • The agreement signed between FEBE (the Spanish spirits association) and Autocontrol in April 2014 requires that all FEBE members request Copy Advice® for advertising to appear in cinema, press, radio and outdoor media
  • The advertising of beverages with an alcoholic strength of more than 20% ABV is prohibited in those places where its sale and consumption is prohibited (Art. 5 (5) General Law 34/1988 on Advertising); see commentary above under Outdoor heading
  • RCM: The message must be displayed to consumers in a clearly legible format:
     
    • Must be placed so as to be clearly visible
    • Must have a minimum size equivalent to 1% of the total area of the advertisement
    • Must be printed in a colour that allows it to be clearly visible and legible against the background of the advertisement
    • Must be accompanied by an indication of the alcoholic strength of the product, in the same format and colour and immediately following the said message (Art. 7 (2) FEBE Code)

 

Example here

 

 

 

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Read more

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • Code of Ethics for Cinema Advertising (2016). The Code is enforced by Autocontrol jury; copy advice can be obtained from the Technical team. ES version here
  • General rules Articles 3-5. Special rules in Chapter III especially Articles 6 and 7 on protection of children. Key clauses shown below (GRS translation)
  • The Content rules set out in Section B apply to advertising in cinemas, except for those rules that identify broadcast channels. The principal set of rules is from Autocontrol’s Code of Advertising Practice (EN)
  • SAWA is the Screen Advertising World Association; member in Spain 014 Digital Screen

 

Special rules

 

Advertising in the cinema and protection of children (Art. 6)

 

  • Cinema advertising during films aimed at minors (under 18’s) must comply with the values and principles of child and youth protection. In particular, advertising must not contain any statements or visual presentations that could have the effect of harming minors mentally, morally or physically. The following principles must be respected. Advertising must not:
     
    • Directly incite minors to buy a product or service, exploiting their inexperience and credulity, nor persuade parents or guardians, or parents or guardian of third parties, to purchase the product or service advertised
    • Exploit the special trust minors place in parents, teachers or other persons
    • Present, without justified reasons, children in dangerous situations, or that incite violent, unjust, divisive, anti-education attitudes
    • Incite violence, nor imply advantages of violent attitudes
    • Show situations of clear sexual content (Art. 6.1)
       
  • Cinema advertising shown during children’s films must especially respect the principles laid down in the previous paragraph. A children’s film will be understood to mean a film aimed principally at those under 7 years old (Art. 6.2)

 

Advertising of alcoholic beverages (Art. 7)

 

  • In addition to what is envisaged in the applicable regulations, advertising of alcoholic beverages in cinemas must be aligned, where applicable, to the provisions contained in the Self-Regulatory Codes from the Spanish Federation of Spirits, the Spanish Brewers Association and the Spanish Wine Federation. GRS note: see Alcohol Sector for translations

 

 

PRINT
Press, Magazines & Promotional Literature, e.g. Leaflets, Brochures, Catalogues etc.

 

Content rules in Section B will apply to Print advertising, except those rules specific to Broadcast media. The principal set of rules is from Autocontrol’s General Code of Advertising Practice (EN)

 

OUTDOOR

 

  • Content rules set out in Section B apply to Outdoor advertising, except those rules specific to Broadcast media
     

In the context of roadside static advertising:
 

  • Under Highways Law 37/2015 (EN); advertising is only permitted on urban sections/ stretches of road, as classified by the Ministry of Public Works and Transport (See Preamble and Art. 11(2G) Law 37/2015)
  • Article 37 of the Highways Law includes advertising provisions:
     
  • Outside of urban stretches of road it is prohibited to advertise in any place that would be visible from the road and in general any advert that could possibly capture the attention of the driver on the road, so outdoor advertising visible from motorways and highways is prohibited (Art. 37.1)
  • This applies to all signs, posters, markings, shapes, logos and images, whatever their type, size (Art. 37.2)

 

 

Autonomous regional legislation

 

 

 

The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here

 

 

 

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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 (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below with 2024 amends)

 

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

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

 

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Article B12 ICC Code Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section sets out the rules for the commercial online environment generally. Below this, more specific digital channels are covered such as email, social networks, own websites, and OBA. As the boundaries online can be less clear, and as space online is often advertiser-owned, there’s greater focus on the identification of advertising, as advertising is subject to the rules in owned and (some) earned space online as well as in paid. The scope online from the Confianza Online Ethical Code (EN key clauses 2022) is “any communication made by an individual or legal entity, public or private, when carrying out a commercial, craft, or professional activity with the aim of promoting, directly or indirectly, the contracting of personal or real estate property, services, rights, and obligations or with the aim of promoting certain attitudes or behaviours." Full definition, including some exemptions in an owned environment, here (EN)

 

STANDARD RULES 

 

  • All three (Beer, Wine, Spirits) codes include online/ digital marketing in their scope, and they also set out some specific provisions for digital activity. These more general online rules are below. There are more specific rules for producers’ own websites shown under that heading later in this channel section C  
  • The content rules in section B - both the sector and the general rules - therefore apply in this environment, except those that identify broadcast media, or that are otherwise offline channel-specific. Principal source of general rules is the General Code of Advertising Practice (EN)
  • Two other pieces of legislation that apply online (as they apply to all media) and that include provisions for alcohol specifically are the General AV Law 13/2022 (EN key clauses) and the General Advertising Law 34/1988 (EN key clauses). Essentially, the AV law, which carries a number of significant alcohol rules which are set out in content section B, addresses 'only' audiovisual communications and extends scope into video-sharing platforms (scope already included some VOD services) and sets out new rules for identification of commercial communications in those platforms
  • Additionally, while not alcohol-specific, new provisions from Directive 2019/2161 transposed into Law 3/1991 on Unfair Competition (EN key clauses) apply to search rankings and consumer reviews; these are not directly marcoms-related and apply mainly to platforms, but they may impact e.g. alcohol advertisers' own websites. Details are in the general rules below; see also  that header in this section for reference to Influencer rules, applicable to all advertising

 

BEER

 

  • RCM (Responsible Consumption Message): no specific provision stating that the RCM is required for online marcoms
  • Corporate websites associated with the Spanish Brewers should carry the sectoral messages relevant to the road safety campaign ‘La Carretera te pide SIN’ – literally, ‘The road asks you to be without’. Note: In Spanish, the term for “Non-alcoholic” is “Sin alcohol”. In everyday language, people often use only “Sin” to refer to or ask for this kind of beer (Chap. 5 (6) SBC)

 

WINE

 

  • The RCM applies to all commercial communications which are visibly perceptible; includes online marcoms
  • The RCM must be displayed in a clearly visible and legible format:


 

  • In a clearly visible place
  • To a minimum size of 1% of the total advertisement
  • In a colour which allows it to be read clearly and easily with respect to the background of the advertisement


 

  • The web pages of member companies must include the message and identifying logo (linked to the WIM programme web page http://www.wineinmoderation.eu) in a permanent and prominent position (Chap. VI, Clause 1, OIVE Code EN); WIM digital application here
  • Minors: commercial communications must not be transmitted by media - for example, programmes, sessions, sections, pages - specifically aimed at minors in terms of editorial content and/ or audiences (Chap. VI, Clause 4b, OIVE)

 

 

SPIRITS

 

  • RCM: The message must be displayed to consumers in a clearly legible format:
     
  • In a clearly visible place (in the case of websites of member companies, on the first page of the section of the website where alcoholic beverages to which this Code applies are displayed or promoted – art. 15.2)
  • To a minimum size equivalent to 1% of the total area of the advertisement
  • Printed in a colour which allows it to be clearly visible and legible against the background of the advertisement
  • Accompanied by an indication of the alcoholic strength of the product, in the same format and colour and immediately following the RCM (Art. 7 (2) FEBE Code EN)
     
  • In the case of international websites intended for the Spanish public, a message must be introduced similar to the FEBE Responsible Consumption Message in a language easily understandable to Spanish users and meeting all the obligations that are mentioned above (Art. 15 (2a) FEBE Code)
  • Access: Websites must contain a clearly visible mechanism that prohibits access to minors – via a compulsory pass button (access key) for instance which differentiates between adult and non-adult users and which the user must click in order to continue viewing the website, provided that he or she is an adult. If the user is not an adult, when the corresponding button is clicked the system sends the user back to the home page, refusing further access to minors (Art. 15 (2b) FEBE Code)
  • Questionnaires on websites for any kind of survey or for participation in promotions applicable to Spanish territory must include a request for the complete date of birth (day, month and year); the system must refuse progression of personal data of minors, sending the user back to the home page of the website (Art. 15 (2c) FEBE)
  • Digital advertising on a website controlled by the advertiser or on a social network that allows it, which leads to direct interaction with the user, should have an obligatory notification and pass/ access button for age confirmation. Access should be blocked if the user is under 18 years old (Art. 15 (3) FEBE)
  • Digital advertising created with the aim of being forwarded to other users, must clearly specify that the contents are not appropriate for minors and should not be forwarded to those under the age of 18 (Art.14 (4) FEBE)

 

 

IARD

 

  • The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers manufacturers, publish Digital Guiding Principles (DGPs) to supplement their Guiding Principles (shown in our Section D Industry Guidelines). The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” Members are hereIn September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

 

ALCOHOL ADVERTISING POLICIES FROM SOCIAL MEDIA PLATFORMS

 

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

TikTok is not included in the above; their rules are here

 

GENERAL RULES 

 

  • It's important that the channel (i.e. placement) rules that apply to all product categories, alcohol included, are observed along with the sector-specific rules. These rules include statutory Consent and Information requirements which apply to most commercial contexts online. See the General tab below, and the specific channels that follow
  • The self-regulatory influence in the context of channel rules in online commercial communications is the Confianza Online Ethical Code, which provides for data protection, e-Commerce and protection of minors inter alia. The 2022 version ES / EN key clauses is updated more closely to reflect GDPR and other statutory requirements
  • As we have identified above, as well as the alcohol-specific rules, the sector must also observe the general content rules in these channels, principal of which is the Autocontrol General Code of Advertising Practice (EN). In legislation, the recently (May 2022) amended consumer protection acts 1/2007 and 3/1991 (both files EN key clauses inc. 2022 amends) carry some significant general requirements applicable to all advertising, alcohol included. Details under the General tab below, or see the linked files
  • Autocontrol published in October 2020 the Code of Conduct on the Use of Influencers in Advertising (ES), in force January 2021. There’s an unofficial GRS translation into English here. While the code applies to all sectors, as this particular sector may be active in this channel/ technique, we highlight it here. The code defines when Influencer advertising qualifies as such and sets out identification requirements

 

 

 

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Read more

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024

 

CONTEXT

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important. Autocontrol define as 'that which is aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘

 

In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown where possible/ relevant under individual channel sections that follow. Privacy issues should be reviewed with specialist advisors

 

KEY RULES

 

  • Per intro above, online advertising is subject to the rules set out in content section B, except those specific to broadcast. if it’s advertising, it’s in remit. The key set of content rules is from Autocontrol’s Code of Advertising Practice (EN)
  • The Confianza Online Ethical Code is an important source of online channel rules. The code linked is the 2022 version in Spanish, key provisions from which are unofficially translated here
  • 24/11/20. A Code of Conduct on the use of Influencers in advertising from the Association of Spanish Advertisers and Autocontrol. The code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; it's unofficially translated by GRS here

 

APPLICABLE LEGISLATION 

 

Non-exhaustive

 

  • E-COMMERCE: Law 34/2002 on Information Society Services and Electronic Commerce (LSSI) EN key clauses / ES. Title III Electronic Commercial Communications, Articles 8, 10, 19, 20. Scope is set out in the Annex shown in the linked document; information requirements shown below 
  • PERSONAL DATA PROCESSING: most of the channels that follow will involve the deployment of marketing databases; in the event that processing includes personal data (that which can identify individuals) then lawful processing rules from the GDPR may apply
  • CONSUMER PROTECTION: the core marketing and commercial communications legislation in Spain is Law 3/1991 on Unfair Competition EN key clauses / ES inc. 2022 amends; applicable online
  • Royal Legislative Decree 1/2007 ES / EN (key clauses inc. 2022 amends) the General Consumer and User Protection Act, which largely applies to the relationships and contracts entered into between consumers and business people or companies, but which carries under article 20 the rules on advertising that constitute an 'Invitation to Purchase.'
  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

 

SELF-REGULATION 

 

  • Autocontrol’s Code of Advertising Practice (EN); applicable to all media 
  • Confianza Online Ethical Code (COEC) is specific to electronic distance communications media EN key clauses / ES (both 2022)
  • The Autocontrol Influencer Code of Conduct 2020 ES / EN defines when Influencer advertising qualifies as such and sets out identification requirements
  • Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD

 

INTERNATIONAL/ GUIDELINES 

 

 

e-Commerce information requirements (from legislation)

 

  • In the context of e-Commerce, the information requirements from articles 10 and 20 LSSI (EN key clauses) relating to an information society service provider and article 20 for rules on an ‘Invitation to Purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase from RLD 1/2007 (EN key clauses) apply
  • The Confianza Self-Regulatory Code also carries a chapter on e-Commerce
  • Rules for both of the above entries are set out under the later section headed emails/SMS

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

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

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

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

Meta and self-regulation December 2023 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

Logan & partners/ Mondaq November 28, 2023

 

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

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

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

  •  

THE DSA AND DMA 

 

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

 

Self-regulatory clauses 

 

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

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

 

C2. Identification and transparency

 

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

 

Article C3 – Presentation of the offer
 

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

 

C2. Identity of the marketer

 

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

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • While the individual codes do not address specifically the placement of tracing/ tracking cookies, clearly those cookies associated with Alcohol brands should avoid minors: all the Codes prohibit activity that is ‘aimed at’ minors

  • The Cookie rules that apply to all sectors, Alcohol included, are shown below under the General tab; rules include statutory Consent and Information requirements 

 

OBA

 

  • The Alcohol sector does not attract rules that are particular to OBA/ Alcohol but OBA, like any other Alcohol advertising, is subject to the rules in Content Section B

  • The Content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These can be found under the Sector rules in Content Section B. Principal source of general rules is the General Code of Advertising Practice (EN)

  • As above under the Cookies heading, where tracking cookies are deployed in order to inform OBA, these should avoid minors; the General OBA rules under the tab below include third party cookies within Consent requirements, which implies that third party cookies should be subject to the same tracking rules. Data Protection authorities generally advise clear agreements with e.g. ad networks in this regard

  • Note the requirement from major producers to apply Responsible Consumption Messages in their advertising. Formatting for all three sectors (Beer, Wine, Spirits) is here

  • Further information for all product sectors, Alcohol included, is under the General rules tab below 

 

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Privacy Sandbox news and updates 

AEPD 2023 Activity Report (ES) April 2024

The above Google Translated here

New guidance on analytic cookies - is consent always required? (EN)
Hogan Lovells January 16, 2024. Guidance here (ES)

AEPD updates its Cookie Guide (ES). July 11, 2023

The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 

 

This section deals with cookies in the context of advertising delivery, taking in OBA. We don’t address ‘cookie statements’ specifically, though some guidance documents, which may contain references, are linked. In the context of GDPR 2016/679; when cookies (can) identify individuals, then GDPR lawful processing rules apply. Privacy issues should be reviewed with specialist advisors 

 

Applicable legislation and guidance 

 

 

Self-regulation

 

  • DATA PROCESSING: The Confianza Online Ethical Code (2022; ES) Data protection section reflects GDPR. An official translation from Autocontrol is in hand. Meanwhile, unofficial translation of the key articles here
  • DATA PROTECTION: Autocontrol incorporate data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here (EN)
  • Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here
  • COOKIES: Confianza Online Ethical Code. Article 27 of the 2022 version linked above:

 

Use of cookies and and similar devices 

 

  1. The use of cookies (including other similar devices) by the affiliated entities will be subject to the provisions of the Law on Information Society Services or the regulations that replace it
  2. For the use of cookies not excepted from obtaining informed consent in accordance with the regulations, the affiliated entities must obtain said informed consent in accordance with the provisions of the GDPR. In particular, the affiliated entities will take into account the following: 
 
 
  1. When describing the purpose of the cookies, ambiguous descriptions will be avoided
  2. The consent must in any event be express and, in the cases required by data protection regulations, explicit (therefore, in no circumstances will consent obtained under the ‘continue browsing’ formula be valid)
  3. If third-party cookies are used, the data subject will be informed of this
 
 
  1. For illustrative purposes and for a better understanding given its complex nature, Confianza Online recommends that the affiliated entities follow the guidelines set by the Spanish Agency for Data Protection in their current version or later, as well as the use of the examples published in the Guide on the use of cookies.
    https://www.aepd.es/es/documento/guia-cookies.pdf

 

OBA

 

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

William Fry/ Lex September 8, 2023

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19th January 2022

 

  • OBA is the same as any other advertising in the sense that it is subject to the content rules set out in our section B, except those specific to broadcast. Principal source of rules is the Autocontrol Code of Advertising Practice (EN)
  • Express consent is required for third party cookies; they will be treated the same as first party cookies. Opt-out mechanisms are not valid
  • Legal reports issued by AEPD provide requirements regarding the use of third party cookies/ tracker cookies in OBA. These are in Spanish; we have translated the relevant section of p. 4 AEPD 2014-0196, as follows:

 

‘It is not necessary to provide links to third party websites where the purposes of such cookies are clearly shown. If the editor/ website owner cannot provide a sufficient explanation on the purposes of cookies used by third parties, or if it is deemed relevant, the editor must include a link to the third party website in which there is an explanation on cookies used and their purpose. The editor/ publisher must ensure that the links open out onto pages that exist which are not in English, but Spanish or co-official language used on the website. In addition, the editor must make sure that the links are not obsolete or broken, and therefore they are not directing users to out-of-date versions of the documents

 

  • Note: the report referenced in the above is pre GDPR. The AEPD have ‘archived’ this and other reports in a database that can be accessed here, though we have come second in a wrestle with the search function. More recent reports are available here

 

GDPR AND PROFILING

 

 

International self-regulation

 

  • EASA’s Best Practice Recommendation on OBA 2021 includes principles that form the basis of a European-wide industry self-regulatory standard for increased consumer transparency and choice regarding Online Behavioural Advertising. They are drawn from the principles and definitions contained within the OBA Framework of IAB Europe, also included in Section 5.3 EASA BPR. This standard is self-regulatory in nature and is intended to apply to all third parties involved in OBA
  • ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: includes explanation of the global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles, and links to further resources

 

 

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 on the icon 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

 

Application in Spain 

 

Autocontrol has extended its remit to cover OBA and translated the EASA BPR into Spanish, a copy of which text is available on their website here. The Advertising Jury is responsible for applying the EASA BPR and/ or the IAB Framework, handling complaints regarding any alleged breaches. A tailored OBA complaint mechanism is on the ‘Reclama Online’ section of the Autocontrol website

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

NEWS/ COMMENTARY

 

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

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

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

Third party cookie plans for Chrome. WFA view here 

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

 

1. COOKIES

 

Applicable legislation, self-regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

Meta must limit data for personalised ads

BBC October 4, 2024. Hunton Oct 15

EDAA launches new solution to DSA ad transparency requirements

EDPB ban on Meta processing personal data for behavioural advertising

DAC Beachcroft/ Lex December 6, 2023. EDPB here

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

 

Applicable regulation and opinion

 

 

 

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

STANDARD RULES 

 

  • While there are no rules for alcohol that are specific to direct electronic communications, the content rules - both sector and General - set out in section B will apply
  • Principal source of general rules is the General Code of Advertising Practice (EN)
  • Alcohol marcoms may not be aimed at minors (all Codes)
  • Major producers require Responsible Consumption Messages in their advertising. Formatting for all three sectors (Beer, Wine, Spirits) is here. These rules/ codes contain some exemptions
  • The channel (i.e. placement) rules set out here are specific to the alcohol sector; the channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory consent and information requirements  
 
IARD

 

The Digital Guiding Principles from IARD (International Alliance for Responsible Drinking) include 7 key provisions set out under 4 main headings: Minors, Responsible Drinking messaages, transparency and privacy. See the linked file for details. 

 

GENERAL RULES 

 

  • The general rules for this channel, i.e. those that apply to all sectors including alcohol, are shown below under the General tab. As indicated above, the rules include statutory consent and information requirements
  • Also note that there's now a 2022 version of the Confianza Online Ethical Code, which provides for data protection, e-Commerce, protection of minors inter alia: ES / EN key clauses 
  • Principal general content rules are from the Autocontrol General Code of Advertising Practice (EN). In legislation, the recently (May 2022) amended consumer protection acts 1/2007 and 3/1991 (both files EN key clauses inc. 2022 amends) carry some significant requirements applicable to all advertising, alcohol included. Details under the General tab below, or see the linked files

 

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

STANDARD RULES 

 

  • Content of electronic commercial communications is subject to the rules set out in our earlier content section B, except those rules specific to broadcast. The principal source of rules is Autocontrol's General Code of Advertising Practice (EN) and in this online context the Confianza Online Ethical Code. The linked latter code is the 2022 version in English. Key provisions unofficially translated here. The code contains a single article (23) under the header 'Advertising' to indicate content rules in electronic commercial communications: The advertising in electronic distance communications media of this code’s affiliated entities must be in accordance with the applicable law and with the AUTOCONTROL Advertising Code of Conduct as well as being being decent, honest and truthful, according to the terms in which these principles have been articulated by the International Chamber of Commerce Code of Advertising Practice

 

1. APPLICABLE LEGISLATION

 

  • DATA PROCESSING: If data for the sending of electronic communications is processed and it constitutes personal data, i.e. that which identifies an individual, then the GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • E-COMMERCE: Law 34/2002 on information society services and electronic commerce, known as LSSI. Title III Electronic Commercial Communications Articles 19, 20, 21 EN key clauses / ES applicable B2C and B2B; implements E-Privacy Directive 2002/58/EC Article 13, as well as the E-Commerce Directive 2000/31/EC
  • CONSUMER PROTECTION: Royal Legislative Decree 1/2007 the General Consumer and User Protection Act ES / EN article 20 for ‘Invitation to Purchase’ Definition Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase
  • Art 29 (2) of Law 3/1991 (EN key clauses) on Unfair Competition; this is the clause prohibiting ‘unsolicited and repeated proposals/ offers by telephone, fax, e-mail or by other means of distance communications’. This law also represents the core legislation in commercial practices/ marketing communications, transposing the UCPD 2005/29/EC and applicable online
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here 

 

2. APPLICABLE SELF-REGULATION 

 

 

DATA PROTECTION: EDPB GUIDANCE

 

 

1.1. E-COMMERCE / INFORMATION SOCIETY SERVICE

 

(Art. 20 LSSI) Key clauses 

Note that in setting out the rules below, we show primarily, and lead with, the LSSI versions, unless otherwise indicated

 

  • Commercial communications sent by email (incl. SMS, MMS) must be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable (Art 20.1 LSSI; Art 96 (1) RLD 1/2007)
  • In emails (incl. SMS/ MMS) containing promotional offers such as discounts, premiums and gifts and promotional competitions or games, the necessary prior consent must have been obtained; the requirements in Article 20.1 must be complied with along with applicable commercial laws and regulations (Art. 20.2)
  • Such promotional offers in addition to promotional competitions or games must be clearly identifiable as such, and the conditions necessary to qualify or participate must be easily accessible and presented clearly and unambiguously (Art. 20.2)
  • The provisions of the preceding paragraphs shall be without prejudice to the provision of regulations issued by the Autonomous Communities (Art. 20.3)
  • It is prohibited to send commercial communications by email which disguise or conceal the identity of the sender; as well as encourage recipients to visit websites which contravene the provisions of Article 20 LSSI (Art 20.4 LSSI)
 

1.2. CONSENT AND OPT-OUT 

 

Key clauses

  • Consent is based on an opt-in regime: it is prohibited to send advertising or promotional communications by electronic mail or another equivalent means of electronic communication when it has not been requested or expressly authorised in advance by the recipient of the communications (Art 21.1 LSSI)
  • Soft Opt-in: as an exception, the provisions of the previous paragraph will not apply where there is a prior contractual relationship, provided:
     
    • The contact details of the recipient have been lawfully collected
    • The commercial communication sent relates to products or services (from the same provider/ company) which are similar to those previously purchased by the customer (Art 21.2 LSSI)
       
  • In all cases, a free-of-charge and easy to use opt-out procedure must be available at the time of data collection and in each subsequent commercial communication (Art. 21.2 LSSI; Art. 96(4) RLD 1/2007)
  • When commercial communications have been sent by email, they must include a valid e-mail address where recipients can exercise their right to opt-out. It is prohibited to send communications which do not include such an address (Art 21.2 (3rd para) LSSI and Art. 22.1 (2nd para) LSSI)
  • The recipient can at any time revoke his/ her consent to receiving commercial communications by simply notifying the sender of such a desire (Art. 22.2 LSS); information on the free and simple means/ way of revoking consent must be provided electronically (Art. 22.2 2nd para)
 

1.3 PERSONAL DATA; B2C solely

 

  • When personal data has been used for commercial communications without obtaining consent (soft opt-in principle above, or the personal data has been obtained from sources accessible to the public, see Art. 6.2 LOPD), the recipient must be provided with the following information: the origin of the data; the identity of the controller, as well as the rights available to the data subject, including the opportunity to object to receiving communications (Art 96.6 RLD 1/2007)
  • Note that the situation above should be reviewed in light of the GDPR; check with the AEPD or advisors whether the opt-out scenario continues to apply when using sources accessible to the public

 

1.4. HARASSMENT

 

  • Under Art. 29 (2) of Law 3/1991 Unfair Competition Act, aggressive practices using harassment will be considered unfair commercial practices in all cases and under all circumstances (Art. 19.2):
     
    • Making unsolicited and repeated proposals/ offers by e-mail, except in circumstances and to the extent legally justified to comply with a contractual obligation, shall be deemed unfair
    • In these communications, the businesses (senders) must use systems that enable the consumer to object to receiving commercial proposals/ offers from them
    • The above is without prejudice to the provisions from existing regulations on personal data protection (GDPR), Information Society Services (i.e. LSSI), telecommunications and distance contracting with consumers or users (i.e. RLD 1/2007), including the distance contracting of financial services

 

2.1. THE CONFIANZA ONLINE ETHICAL CODE  (COEC)

 

  • COEC’s latest version was published February 2022 ES. Key provisions unofficially translated hereThis is a significant development versus the 2015 and 2021 codes, extracting much of the former Title II ‘Advertising’ including articles 3 to 13, which covered advertising sent via email messages. Advertising content requirements now refer to the applicable statutory requirements and Autocontrol's Code of Practice.
  • Commercial communications via email are required to observe the data protection and e-commerce provisions (when applicable) set out under legislation referenced above and in the COEC code itself which, per above, has been amended to reflect lawful processing rules under GDPR. e-Commerce provisions are similarly overhauled under Title III, Chapter I

 

 

  • The ICC Code is indirectly applicable in Spain; it is referenced in COEC as required to be observed Reference Art. 3 General Principles COEC Advertising in electronic distance communications media must be honest and true and comply with the applicable law according to the terms in which these principles have been articulated in the Autocontrol Code of Conduct for Advertising and the Code of Practice for Advertising of the International Chamber of Commerce
  • Article 19  under General Provisions of the ICC Code  includes provisions for Data Protection and Privacy; Chapter C of the code covers Direct Marketing and Digital Marketing Communications and 'applies to all participants in the direct marketing and digital marketing eco-system and their marketing communications activities'; see the linked code above for full provisions

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications; General Provisions of the ICC Code will also apply
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  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

SECTION C: MARKETERS' OWN WEBSITES

 

 

REGULATORY CONTEXT

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. The scope online is described as follows in the Confianza Online Ethical Code (EN key clauses 2022): “any communication made by an individual or legal entity, public or private, when carrying out a commercial, craft, or professional activity with the aim of promoting, directly or indirectly, the contracting of personal or real estate property, services, rights, and obligations or with the aim of promoting certain attitudes or behaviours." There are exemptions in an owned environment; those are outlined in the relevant article here (EN)

 

STANDARD RULES 

 

  • Clearly, much information on any website is not advertising (as defined above); it is important, however, that marketers/ agencies are clear about what might be adjudged to be advertising, as marketers' own advertising on their own websites will be subject to the rules set out in content section B (except any for audiovisual broadcast media)
  • The channel (i.e. placement) rules that apply to all product sectors, alcohol included, must also be observed. These are shown under the General tab below and include some statutory consent and information requirements 
  • Exemptions (for all sectors, alcohol included) are set out in the file linked above in the introduction and here. Another useful reference in this context is EASA’s Digital Communications Best Practice Recommendation. In this document, UGC is exempted except when it has been endorsed by the marketer; see pps 10/11. The same principle applies to viral communications
  • By Law 34/2002 on Services of the Information Society and Electronic Commerce (EN) and according also to the IARD Digital Guiding Principles (see below), alcohol brand website owners must provide access-blocking devices to prevent exposure of illegal material to minors
  • Two other pieces of legislation that apply online (as they apply to all media) and that include provisions for alcohol specifically are the General AV Law 13/2022 (EN key clauses) and the General Advertising Law 34/1988 (EN key clauses). Essentially, the AV law, which carries a number of significant alcohol rules which are set out in Content Section B, addresses 'only' audiovisual communications and extends scope into video-sharing platforms (scope already included some VOD services) and sets out new rules for identification of commercial communications in those platforms
  • Additionally, while not alcohol-specific, new provisions from Directive 2019/2161 transposed into Law 3/1991 on Unfair Competition (EN key clauses) apply to search rankings and consumer reviews; these are not directly marcoms-related and apply mainly to platforms, but they may impact e.g. alcohol advertisers' own websites. Details are in the General rules below; see also  that header in this section for reference to Influencer rules, applicable to all advertising

 

RCMs AND OTHER STIPULATIONS FROM PRODUCER CODES 

 

The OIVE Wine Code (EN) stipulates:

 

  • The web pages of member companies shall include the message and identifying logo linked to the WIM programme web page http://www.wineinmoderation.eu, in a permanent, prominent position

 

Where appropriate, the message stipulated in paragraph a) may be replaced by other responsible consumption messages and expressed in any official language of the European Union or co-official language of the State of Spain, whenever it is easily comprehensible for the consumer. In any case, this message must not:

 

  • Be able to be interpreted such that the moderate consumption of wine appears something vulgar, commonplace or trivial, cause fear or evoke negative feelings or denigrate or have a negative impact on the image of the wine sector, its companies and associations)
  • Mislead
  • Be associated with any content or conduct which does not comply with these Standards
  • Be used in media in which the commercial communication of wines is not permitted or be used in any other way or with the purpose of evading legal or Self-Regulatory restrictions in force in respect of wine advertising

 

Spirits

 

The Spirits Code (EN) stipulates:

 

  • 15. 2. The websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies must show, on the first page of the section of the website where alcoholic beverages to which this Code applies are displayed or promoted:

 

  1. The FEBE Responsible Consumption Message, in accordance with Article 7 above. In the case of international websites intended for the Spanish public, the obligations laid down in this subparagraph shall be deemed to be fulfilled when a message is introduced similar to the FEBE Responsible Consumption Message, in a language easily understandable to Spanish users and meeting all the obligations that are mentioned
  2. For access thereto, a warning and a compulsory pass button which differentiates between adult and non-adult users and which the user must click in order to continue viewing the website, provided that he or she is an adult. The said button must appear in an immediately visible position as soon as the website opens and be of a size and colour making it clearly visible. If the user is not an adult, when the corresponding button is clicked the system sends the user back to the home page, refusing further access to minors
  3. Likewise, when there are questionnaires on websites for any kind of survey or for participation in promotions applicable to Spanish territory, they must include a request for the complete date of birth (day, month and year) and the system must refuse progression of personal data of minors, sending the user back to the home page of the website

 

  • 15.3 Digital advertising on a website controlled by the advertiser or on a social network that allows it, which leads to direct interaction with the user, should have an obligatory notification and pass/ access button for age confirmation (to differentiate between those users who are under/ over age). The user should click on it to be able to view the contents, provided the user is 18 years old or above. If this is not the case, access should be blocked
  • 15.4 Without prejudice to the responsibilities and obligations which could be derived from the current legislation, digital advertising created with the aim of being forwarded to other users, must clearly specify that the contents are not appropriate for minors (underage people) and should not be forwarded to those under the age of 18

 

Beer

 

The Beer Code (EN) states:

 

  • The web pages of the companies to which this Code applies shall show a clearly visible mechanism on their access page that identifies access by minors (Ch. 4. art. 9)
  • Commercial communications may not be realised which are specifically aimed at minors via SMS on mobile telephones, chat rooms and games (Ch. 4.art. 10)

 

IARD

 

The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers manufacturers, publish Digital Guiding Principles (DGPs) to supplement their Guiding Principles (shown in our Section D Industry Guidelines). The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” Membership is hereIn September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)

 

SNS

 

Alcohol advertising policies from social media platforms 

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

 

TikTok is not included in the above; their rules are here

 

GENERAL RULES 

 

  • The General rules for this channel, i.e. those that apply to all product sectors including Alcohol, are shown below under the General tab. In some contexts, for example when in 'commercial dialogue' with consumers/ users via email, rules will include statutory Consent and Information requirements. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)
  • Also note that there's now a 2022 version of the Confianza Online Ethical Code, which provides for data protection, e-Commerce, protection of minors inter alia: ES / EN key clauses 
  • In legislation, the recently (May 2022) amended consumer protection acts 1/2007 and 3/1991 (both files EN key clauses inc. 2022 amends) carry some significant general requirements applicable to all advertising, alcohol included. Details under the General tab below, or see the linked files
  • Autocontrol published in October 2020 the Code of Conduct on the Use of Influencers in Advertising (ES), in force January 2021. There’s an unofficial GRS translation into English here. While the code applies to all sectors, as this particular sector may be active in this channel/ technique, we highlight it here. The code defines when Influencer advertising qualifies as such and sets out identification requirements

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. The Autocontrol definition is ‘all advertising communication aimed at promoting, directly or indirectly and regardless of the means used, the contracting of goods and services, or the enhancement of trade marks and trade names.‘ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below and article 4p of the Confianza Online Code (COEC), 2022 version unofficially translated here.

 

Issues may arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 

STANDARD RULES 

 

  • Content rules from our earlier section B apply to advertising (as defined) on or from owned websites, except those rules specific to broadcast channels. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)

 

APPLICABLE LEGISLATION AND SELF-REGULATION 

 

Legislation/ guidance 

 

  • DATA PROCESSING: Per the reference in the introduction above, website owners processing data that may be defined as personal data should be aware that lawful processing rules from the GDPR may apply; In the case of Spain, the Regulation is ‘recognised’ by the new Data Protection Act (ES), whose purpose is to ‘adapt the Spanish legal system to Regulation (EU) 2016/679.’ Former national data protection laws are repealed 
  • The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
  • And in May 2020 Guidelines 05/2020 on consent under Regulation 2016/679; this is the definitive guidance on consent in the context of GDPR
  • E-COMMERCE: Law 34/2002 (LSSI) regulates commercial communications in e-commerce, implementing the e-Commerce Directive 2000/31/EC and article 13 (unsolicited communications) of e-Privacy Directive 2002/58/EC. This imposes information requirements on ‘information society service providers’ and addresses e-marketing communications, establishing the opt-in principle. Details are in the preceding section, Emails and SMS
  • COOKIES: The same Law 34/2002 carries the ‘Cookie Directive’ rules; see our earlier Cookies and OBA section for further information, though this is a complex area in Spain especially, and best reviewed with advisors
  • CONSUMER PROTECTION: The following laws also regulate online communications as they regulate all forms of communication. Provisions are spelt out in our content section B; the links are here just in case:

 

 

Self-regulation

 

  • The principal self-regulatory influence in this channel context is the Confianza Online Ethical Code (COEC); 2022 version in Spanish here; key provisions unofficially translated here. Some of the most relevant articles shown below 
  • EASA Digital Marketing Communications Best Practice 2023; see section 2.2.5 for guidance on marketer-owned digital properties
  • The EASA Best Practice Recommendation on Influencer Marketing 2023 is not binding, but it is helpful guidance on how European regulators should approach this marketing technique
  • Autocontrol include data protection measures in their Code of Advertising Practice. These have been extracted from the code and are shown here (EN)
  • 24/11/20. A code of conduct on the use of Influencers in advertising has been published by the Association of Spanish Advertisers and Autocontrol. The code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here, the English version shown alongside the original Spanish
  • Data processing in advertising activities (EN). From Autocontrol October 2023, approved by the data protection authority AEPD. Applicable Spanish version here
 
COEC  selected articles

 

Title III. e-Commerce/ DP

 

  • Activities of contracting goods or services with consumers performed through electronic distance communications media must comply with current legislation and, in particular, the values, rights, and principles recognised in the Constitution (Clause 14. Principle of legality)
  • The most relevant article from COEC Title III e-Commerce is 15, Obligations prior to initiation of contracting procedure, essentially reflecting requirements from legislation. That clause can be found in the file linked above or here. Many of the other articles relate to distance selling and contractual information requirements, warranties etc. and do not directly or indirectly address commercial communications
  • The 2022 version of COEC makes several amendments to the former 2021 version, most significantly to reflect GDPR closely. Data protection clauses are under COEC articles 24-26 and show several helpful 'working examples.'

 

 

 

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

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

 

Standard rules

 

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

 

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

Unsolicited communications

 
  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

 

CONTEXT

 

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. Category-specific rules are immediately below; the rules that apply to all product sectors, Alcohol included, are shown under the General tab below 

 

 

  • ‘Native’ advertising is like any other Alcohol advertising or any sector’s advertising – it’s subject to the Content rules set out in our earlier Content Section B (both the Sector and the General rules); the key general rule in this context, spelt out under the General channel tab below, is that of identifiability/ disclosure (see also point 13 of the General Code of Advertising Practice (EN)
  • All of the Industry Codes, and the law, prohibit the targeting of minors
  • A ‘Responsible Consumption Message’ should be included. Formatting and other requirements, depending on the channel, have been assembled from the different Codes here (Note: the Wine Code within this document is from a previous source and is replaced by the OIVE Code (EN); RCM requirements are changed as new logos have been introduced by the Wine in Moderation association; see the Code for details)

 

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

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. The key issue, obviously, is that of advertising identification. If it’s advertising, defined in Spanish law as ‘Any form of communication made by natural, legal, public or private person in the exercise of its commercial, business, craft or professional activities that aims at direct or indirect promotion of moveable or immoveable goods, services, rights or obligations' (Art. 2 Law 34/1988), then like any other advertising, it’s subject to the rules set out in our content section B

 

LEGISLATION

 

  • General Advertising Law (34/1988) Article 2 Definition of advertising EN key clauses inc 2022 amends

  • Unfair Competition Act (3/1991) Article 26 Covert Commercial Practices EN key clauses inc 2022 amends

  • Law 34/2002 on ISS and Electronic Commerce (LSSICE) Article 20.1 Identification of electronic commercial communications EN key clauses / ES

 

GUIDANCE

 

 

SELF-REGULATION 

 

 

LEGISLATION KEY CLAUSES 

 

  • Under Article 26 Covert Commercial Practices of the Unfair Competition Act (Law 3/1991) payment to include promotional communications of goods or services as information in the media without clearly specifying in the content or by means of images and sounds clearly indicating to consumers or users that this is an advertisement, shall be considered misleading and hence an unfair commercial practice.

  • Commercial communications sent by electronic means shall be clearly identifiable as such and the entity or person on behalf of which they are made must also be clearly identifiable (Art. 20.1 LSSICE; Law 34/2002 on Information Society Services and Electronic Commerce)

  • As a result, the average consumer or user must be able to easily identify advertising content and distinguish it from other content. IAB Spain Guide in S. 4.6 confirms terms used to identify native advertising – which vary according to the context: “contenido presentado por – content presented by”; “contenido destacado – featured content”; contenido patrocinado – sponsored content”; or before an advertising message placing the word “publicidad” (advertising) or “publi”. Simply referencing the name of the brand without anything else is not recommended

 

SELF-REGULATION KEY CLAUSES

 

  • Commercial communications will be identifiable as such regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labeled as such. That the real intent is advertising must be obvious. Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis (Autocontrol’s General Code of Advertising Practice: B. Authenticity, point 13)

 

 

 

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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 (EN 2024)

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

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

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

 

Standard rules

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

 

Self-regulation: key rules from the ICC Code
2024 amends in italics 

 

Identification and transparency (Art. 7)

 

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

 

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

 

Following feedback, we no longer cover Telemarketing

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

 

STANDARD RULES 

 

  • The content rules - both the sector and the general rules - set out in section B apply in Direct Postal Mail, except those specific to audiovisual media
  • The channel (i.e. placement) rules for all sectors, Aacohol included, are under the General tab below. These include statutory consent and information requirements relating to data processing and to execution of mailshots 
  • Advertising may not target minors (All codes)
  • Requirements for the use of the Responsible Consumption Messages will also apply; formatting rules for all three sectors (Beer, Wine, Spirits) here (EN)

 

SPIRITS

 

  • Direct mail marketing must never be addressed to minors
  • Direct mail marketing must in all cases be addressed to adults; to this effect, the outside cover of the direct mail must include the name of the adult to whom it is addressed
  • The internal contents must include the words, “Not suitable for minors” or similar, clearly establishing that the advertising is in no way intended for minors (Art. 10 (5d) FEBE Code)
  • A Responsible Consumption Message is required for direct mail material

 

BEER/ WINE

 

No specific provisions in Direct Mail marketing. Direct Mail is included within the scope of the definition of commercial communications within both codes (Chap. 2C SBC, Chap. III OIVE)

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

STANDARD RULES 

 

  • Rules set out in our earlier content section B apply to Direct Mail, except those rules that identify either broadcast or digital channels. The principal source of content rules is the Autocontrol Code of Advertising Practice (EN)
  • Direct Postal Mail in most countries, Spain included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; Robinson lists or equivalent must be reviewed before distribution

 

LEGISLATION 

 

  • MAIL LEGISLATION: Article 13 (D) of Royal Decree 1829/1999 (ES) on DM commercial communications
  • DATA PROCESSING: Lawful processing rules from the GDPR may be applicable. Privacy issues should be reviewed with specialist advisors. The Data Protection Act 15/1999, now repealed, permitted the obtaining and deployment of publicly available data, provided that the data subject did not object to processing and that information requirements were fulfilled (Art 45 (1a) RLOPD; Art 30 (1) LOPD). It is not entirely clear whether this exemption continues to apply in light of the GDPR. The AEPD, Spain’s data protection authority, address the issue in a FAQ here (ES)
  • CONSUMER PROTECTION: RLD1/2007 (EN key clauses inc. 2022 amends; ES) General Consumer and User Protection Act provides for opt-out and requires clear identification of commercial content; see article 96 Distance Commercial Communications, only available in full ES version, some clauses below; article 20 carries information requirements for an ‘invitation to purchase’ (often part of DPM) and can be seen in the EN link 

 

………………………………………..

 

 

Data processing in advertising activities (EN). From Autocontrol September 2022, approved by the data protection authority AEPD. Applicable Spanish version here

 

 

Key clauses from RD 1829/1999

 

Direct marketing for the promotion and sale of goods and services:

 

  • Must be formed of a communication consisting solely of advertising, market research or publicity/ promotions
  • Must contain a similar message, although the name, address and any specific ID numbers assigned to their addressees/ recipients, must be different in each case (i.e. they must be addressed)
  • Must be sent to more than 500 addressees/ recipients
  • Must be sent in an open envelope to allow postal inspection/ mail screening
  • The letters “P.D.” (Publicidad Directa) must be marked on its cover in order to allow such mail to be identified as advertising

 

Key clauses from RLD 1/2007 Consumer and User Protection Act, and Law 3/1991 on Unfair Competition

 

  • Identification: The commercial nature of all distance commercial communications must be clearly stated in these communications (Art. 96.1 RLD 1/2007); Art. 92.1 (2nd Para) identifies postal mail as a form of distance commercial communication

 

Law 3/1991 on Unfair Competition; Article 29.2:

 

  • Aggressive practices using harassment will be deemed an unfair commercial practice in all cases and under all circumstances Making unsolicited and repeated proposals/ offers by means of distance communications except in circumstances and to the extent legally justified to comply with a contractual obligation, shall be deemed unfair
  • In these communications, the business must use systems that enable the consumer to register their opposition/ objection to receiving commercial proposals/ offers from the business in question
  • This is without prejudice to what is established in current regulations on personal data protection, information society services, telecommunications and distance contracting with consumers or users, including the distance contracting of financial services
 
‘Invitation to purchase’

 

  • As Direct Mail will frequently include offers, advertisers should be aware of requirements regarding an ‘Invitation to Purchase’, defined here as “Commercial practices which, in a manner appropriate to the means of communication, include information on the characteristics of the good or service and its price, thus enabling the consumer or user to make a decision regarding purchase.” These are found in article 20 of the General Consumer and User Protection Act linked above

 

B2B

 

B2B marketing activities sent by postal mail: we cannot establish any prohibition of B2B postal mail  

 

 

 

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International

SECTION C: DIRECT POSTAL MAIL

 

 

Applicable self-regulation and legislation 

 

Standard rules

 

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

 

 

Legislation

 

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

 

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

 

  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

 

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

 

 

Guidance

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

 

 

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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

 

Associated sponsorship material should observe the sector and general content rules set out in section B

 

Alcohol Industry Codes' sponsorship requirements:

 

BEER

 

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

 

  • Minors: No event or occasion shall be sponsored, which is specifically aimed at minors, without prejudice to those due to their social character or subject matter come within the scope of the activities of non-profit companies or foundations which are traditionally dedicated to the development and education thereof (Chap. 4 (8f) SBC)
  • Prohibition: Member companies must not sponsor events specifically related to the driving of motor vehicles (Chap 5 (5) SBC)
  • RCM exemption: Responsible Consumption Message is not required - 2. Television spots, newspaper and magazine advertisements and outdoor hoardings (excluding supports located at the tops of buildings, monoposts or similar) must include a message stating that moderation is a basic premise for responsible consumption, unless sponsorship advertising is disseminated on said media/ supports. (Chap. 3 (2) SBC)

 

WINE

 

https://www.autocontrol.es/wp-content/uploads/2021/03/code-for-wine-commercial-communications_2021.pdf

 

  • Sponsorship is included within the remit and definition of commercial communications (Scope of Code, Chap. III). Rules relating to commercial communications will apply to sponsorship
  • Commercial communications (including sponsorship) must not be transmitted by media specifically aimed at minors in terms of editorial content and/ or audiences. Commercial communications (including sponsorship) must not be aimed at minors or show minors drinking or encourage the consumption of wine by minors (Chap. VI, Clauses 4a&b) OIVE Code)
  • There is an exemption for RCMs (Responsible Consumption Messages) as follows: ‘In advertising in which the presence of the winery is restricted to announcement of its sponsorship of activities/ events.’ It is not clear whether the exemption extends to sponsorship as opposed to announcement of sponsorship. Check with OIVE if uncertain. It would be surprising if high profile events did not require RCMs, though these may be on a voluntary basis

 

SPIRITS

 

https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_febe_en.pdf

 

  • Simply providing/ allocating static advertising at events does not constitute sponsorship, which in any case must comply with the legislation applicable in this field (Art. 14 (1) FEBE Code)
  • Minors: member companies must not sponsor events specifically aimed at minors or events in which minors mostly participate (Art. 14 (2a) FEBE Code)
  • Member companies must not sponsor events that are broadcast on television when the main objective of the said sponsorship is promotion through the medium of television of any alcoholic beverage whose advertising is prohibited in this medium. Promotion through the medium of television is considered to exist when there is compensation (payment) for the medium on the part of the member company, whether directly or through the organiser of the event or any other intermediary. Nevertheless, it is to be understood that promotion through the medium of television does not exist when the event is of informational interest in itself or forms part of sports competitions, cultural or social programmes, courses or series and any other acts provided that they are of an official nature (Art. 14 (2b) FEBE Code)
  • The Responsible Consumption Message is not required when advertising is ‘that in which sponsorship or corporate advertising is disseminated, when the products and consumption are not promoted.’ (Art. 7 (2) FEBE)

 

 

The general sponsorship rules, i.e. those that apply to all sponsors, Alcohol producers included, are set out under the General tab below

 

 

 

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Read more

General

SECTION C: EVENTS/ SPONSORSHIP

 

 

Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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Article 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
 
Article 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
 
Article 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

 
Article 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
 
Article 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
 
Article 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

 

Article B7.  Data capture/data sharing
 
  • If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

 

Article 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

 

Article 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

 

Article 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

 

Article 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

 

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

 

Article 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

SECTION C: EVENTS/ SPONSORSHIP

 

 

Pilot Project Relaxes Olympic Games' Rule For Participating Brands

Marks & Clerk July 19, 2024 

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

Squire Patton Boggs july 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

 

Self-regulation

 

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

 

B1: Principles governing sponsorship

 

  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party
  • Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
  • There should be clear communication about the specific rights available for sponsorship from the rights holder, including the timing of the sponsorship commitment and the scale of coverage, such as territory. Sponsored parties should retain the sole discretion to determine the value of the sponsorship rights they offer and the suitability of a potential sponsor
  • Furthermore, both parties should reserve the right to terminate the sponsorship agreement based on the terms outlined in the contract

 

B2: Autonomy and self-determination

 

  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided as long as the sponsored party fulfills the obligations set out in the sponsorship agreement  meets the requirements set in the sponsorship agreement and those actions do not damage the reputation of the sponsor

 

B3: Imitation and confusion

 

  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
  • Both sponsors and sponsored parties, along with anyone else involved, should avoid imitation of other sponsorships if it could mislead or cause confusion, even with non-competing products, businesses or events

 

 B4: 'Ambushing' of sponsored properties

 

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

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

B6: The sponsorship audience

 

  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme including branded giveaways and similaor person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party. Any posts on social media by the sponsored party should be transparent and properly identified. The sponsor should also be mindful of the professional values of the sponsored party and audience
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
  • Branded sponsorship or entertainment events that primarily target children or teens should comply with Chapter E – Children and Teens

 

B7: Data capture/ data sharing

 

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

 

B8: Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship should not put art or historical items at risk
  • Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
  • Where a sponsorship is meant to protect, restore, or maintain cultural, artistic or historical properties or spread awareness about them, it should respect the public interest in them

 

B9: Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
  • If a sponsorship message claims to have a positive social or environmental effect (or less harm), it should be backed up with evidence of actual benefits. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications
  • If the sponsorship makes any environmental claims, they should align with the rules in Chapter D and the ICC Framework for Responsible Environmental Marketing Communication

 

B10: Charities and humanitarian sponsorship

 

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

 

B11: Multiple sponsorship

 

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

 

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules are included. National self-regulatory codes, which will sometimes include SP measures, and consumer protection legislation, for example, are checked for any provisions that affect SP and included below

 

STANDARD RULES 

 

  • Promotional material should observe the content rules for alcohol set out in our earlier section B, together with the rules for all sectors, alcohol included, under the General tab in section B. Principal source of general rules is the General Code of Advertising Practice (EN)
  • Statutory channel (placement) rules that are applicable to all product sectors for e.g. promotional pricing, and conditions for competitions are shown below under the General tab
  • Alcohol promotional activity is especially vulnerable to claims of transgression of excess consumption rules 

 

ALCOHOL INDUSTRY CODES 

 

Beer

 

  • No type of beer or promotional material (including non-alcoholic beer) designed especially for child audiences or minors must be produced or distributed (Chap. 4 (7) SBC)

 

Wine/ spirits

 

  • There are no specific provisions for sales promotions per se in the Wine Code or the Spirits Code; all provisions will apply to sales promotional material and in this context the most notable being the requirement that Wine/ spirits marcoms must not be aimed at minors
  • The general SP rules, i.e. those that apply to all manufacturers, alcohol producers included, are set out under the General tab below

 

Regional provisions

 

Some autonomous communities have special requirements for promotions; a clause that is commonly found is ‘Promotions of alcohol in trade fairs, exhibitions, shows and similar activities must be carried out in segregated and distinctly separate areas.’  See the table of consolidated regional provisions here

 

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. In the case of Spain, however, we have included extensive provisions from the Retail Trade Act, as well as national self-regulatory codes and consumer protection legislation around pricing, for example. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal. As promotional advertising/ communications might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be reviewed by specialist advisors

 

1. APPLICABLE RULES 

1.1. Legislation

1.2. Self-regulation in promotions

1.3. Guidance

 

2. PROMOTIONAL FORMS 

2.1. Promotion of sales with free gifts

2.2. Information requirements

2.3. Promotion of sales with a free gift or bonus/ premium

2.4. Online advertising of promotional offers and games/ competitions

2.5. Skill-based and prize draws

2.6. Free-prize draws/ sweepstakes

2.7.  Paid-entry sweepstakes, games and raffles

2.8. Competitions and contests

2.9. Other requirements

 

3. HORIZONTAL LEGISLATION 

3.1. Misleading Advertising by omission of material information

3.2. ‘Bait’ advertising and misleading promotional practices

 

4. LEGAL BASES (rules of the promotion)

5. SOCIAL NETWORKS 

6. SELF-REGULATION IN PROMOTIONS 

 

6.1. Autocontrol Code of Advertising Practice

6.2. ICC Advertising and Marketing Communications Code 

 

 

1. APPLICABLE RULES  

 

1.1. Legislation

 

  • RETAIL: Law 7/1996 on Retail Trade EN key clauses / ES. Articles 18,19, and 32 promotion of sales with accompanying gift
  • GAMBLING: Law 13/2011 on the Regulation of Gambling (Gambling Act) EN / ES  (Art. 47 (7) (12)
  • E-COMMERCE: Law 34/2002 on Information Society Services. Information requirements for online commercial communications, promotional offers. Article 20) EN key clauses / ES
  • CONSUMER PROTECTION: Articles 20, 60, 61 RLD 1/2007 General Consumer and User Protection Act ES / EN key clauses inc. 2022 amends
  • Articles 22 (4 and 6) Law 3/1991 on Unfair Competition, unfairness due to misleadingness EN key clauses / ES both files inc. 2022 amends

 

1.2. Self-Regulation in promotions

 

1.3. Guidance

 

  • The Spanish Marketing Association, with the law firm Riestra Abogados and Mando, produce a guide ‘Advertising Promotions: mechanics, efficiency and security’ aimed at marketing departments and advertising agencies. In Spanish here
  • Resolution of 8th July, from Secretary of State for Telecommunications and the Information by which a Code of Conduct on the provision of premium rate services based on the sending of mobile telephone messages (or premium SMS) is published ES (Relevant: 6.3.6); key articles in English here

 

2. PROMOTIONAL FORMS 

 

2.1. Promotion of sales with free gifts; from the Retail Trade Act (EN key clauses)

 

The promotion of sales with a free gift is legal and subject to rules contained in Retail Act 7/1996. Article 32 specifically regulates these types of sales. The Act relates primarily to retail-based promotional rules (i.e. discount, stock clearance and liquidation sales); sales with gifts/ premiums is the most relevant category in this context

  • ‘Sales with free gifts’ activity is considered a sales promotion activity under the Retail Act (Art. 18.1)
  • Other sales promotion activities for which there are specific rules include discount sales, sale offers/ sales promotions, stock clearance sales, liquidation sales, and direct sales offers
  • The promotion of sales with free gifts must comply with the corresponding rules established for this type of sales promotion activity  in Chapter VI, particularly Article 32 (notion/ concept) shown below (Art. 18.2)
  • Failure to comply with Chapter VI and Article 32 will lead the activity to be considered unfair when the conditions in Article 5 (Misleading Act) of Law 3/1991 on Unfair Competition are met (Art. 18.3)

 

2.2. Information requirements

 

  • The promotion of sales with a free gift must specify the duration of the sales promotion and any specific terms or conditions applicable to it. (Art. 19.1) Note: In case the promotion has not started yet, also the start date. Moreover, case law and the advertising Jury have stated that the amount of stock available for the promotion is disclosed (this note added by the SRO Autocontrol)
  • The offer of products with a prize or gift will be deemed misleading when the consumer does not actually or effectively receive what he/ she would have reasonably expected in view of the offer made (Art. 19.3)

 

2.3. Promotion of sales with a free gift or bonus/ premium; Article 32 of the Retail Act

 

  • Sales (promotions) with free gifts are those in which the purpose or aim is to promote sales, by offering buyers a prize, whatever its nature, either automatically or by participation in a draw/ lottery or contest
  • Sales with a bonus/ premium are those that offer any incentive or advantage related to the acquisition of a good or service
  • When the incentive or gift consists of entry into a draw, the provisions of the Retail Law must be observed, without dismissing the terms of existing sectoral legislation (i.e. the Gambling Act 13/2011. Where entry is free, the Gambling Act will not apply and authorisation will not be required)
  • Sales with a free gift or bonus/ premium are deemed unfair under the circumstances provided by Act 3/1991 on Unfair Competition; see Articles 22.4 and 22.6
  • Delivery of free gift: Irrespective of any autonomous legislation the gift must always be provided within three months of the moment when the consumer fulfils the condition of the promotion (note: usually the purchase). Any gift that has been offered on the packaging of the product must also be available for at least three months from the end of the promotion (Art. 33)

                                                                      

Note: Specific regulations apply to particular types of goods. For example, it is prohibited to offer any kind of promotional gifts in the medicinal and pharmaceutical sectors (Art. 78.5 Act 29/2006 on Guarantees and Rational Use of Medicines and Healthcare Products)

 

2.4. Online advertising of promotional offers and games/ competitions; from LSSICE (EN)

Article 20 LSSICE: Information Requirements:

 

  • Applicable to Information Society Service Definition See Annex LSSICE (a)  Information Society Services or “Services” means any service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipientapplicable to the sending of commercial communication providers established in Spain (Arts. 1 & 2) 
  • The communication must be clearly identifiable as such and the natural or legal person on behalf of whom they are made must also be clearly identifiable (Art. 20.1)
  • Promotional offers (discounts, premiums and gifts), in addition to promotional competitions or games must be clearly identifiable as such, and the conditions which are to be met to qualify for them (in the case of offers) or participate in them (competitions/ promotional games) must be easily accessible and must be expressed in a clear and unambiguous manner (Art. 20.2)
  • In the case of emails containing promotional offers, such as discounts, premiums and gifts, and promotional competitions or games, the necessary prior consent must be obtained, i.e. opt-in consent, see Art. 21.1 LSSI (Art. 20.2)

 

See Article 22 LSSICE for consent requirements for sending of commercial communications by email and SMS

 

2.5. Skill-based and prize draws

 

The Regulations make a distinction between skill-based contests/ competition and random combinations aka sweepstakes/ prize draws, whether paid or free entry

The Gambling Act 13/2011 EN DGOJ the Spanish Gambling Authority, version / ES regulates gambling activities carried out via electronic, computer, telematic or interactive Definition Covers television, the Internet, mobile and landline telephones or any other, or interactive communication, whether it is in real or delayed time (art. 3h) means where ‘in-person channels are rendered accessory’ (Art. 1) i.e. so this law is applicable to contests and draws carried out via/ on the Internet and social networks

 

2.6. Free-prize draws/ sweepstakes; helpful info from DGOJ here

 

  • Sweepstakes/ Prize Draws for advertising or promotional purposes: these are aimed exclusively at advertising or promoting a product or service, whose sole consideration is the consumption of said product or service, without surcharge or tariff, which offer cash, in-kind or service prizes and, in certain cases, require registering as a client of the entity being advertised or promoted (Art. 3 (i) Gambling Act). Often used to build a database 
  • Sweepstakes for advertising and promotional purposes are excluded from the scope of application of the Gambling Act, with the exception of Gambling Tax requirements; see Title VII Tax System Gambling Act) (Art. 2 (2c) GA)
  • Therefore, they do not require a licence or authorisation, nor any prior notice to the Spanish Gambling Authority, provided the prize draw has national scope (Under Article 2 (1) Gambling Act, the Act only applies to activities carried out on a national level). In which case, they will be subject to the general regulations of commercial and civil law. However it is recommended that the organiser files the rules with a notary
  • In the case of promotions with regional scope, meaning those promotions only addressed to residents in one Spanish region, regional regulations will apply and in some cases, prior communication to the corresponding regional authorities is required

 

2.7.  Paid-entry sweepstakes, games and raffles

 

In order for the Gambling Act (EN) to apply, the activity, i.e. Occasional Contest/ Game or Raffle, in line with the definition on Gambling, must involve the risking of money or other objects of measurable value on future, uncertain results which to some extent depend on chance, regardless of whether the player's skills determine the outcome or not, in order to obtain a prize. (See Art. 3a and Art. 2 (1a) GA).

 

The procedure for obtaining authorisation and other requirements vary depending on the type of gambling activity

 

  • Most relevant: Occasional Gambling Activities (Art. 2 (1c) GA); applicable where an outside company might want to offer a contest or draw to residents of the Spanish state
  • All gambling activities listed in Law 13/2011 which are occasional require prior authorisation issued by the DGOJ; most applicable types of gambling activities in respect of sales promotions will be Contests and Raffles, where money is a requirement of playing (see Art. 12 Gambling Act EN)
  • Occasional or sporadic gambling activities are defined as those which are not conducted periodically or permanently or, if conducted periodically, once a year or less frequently. Occasional or sporadic gambling is not part of the ordinary activity of the organising entity
 
Further information 

 

  • Article 7 Advertising, sponsorship and promotion of gaming activities, Gambling Act will apply
  • Information in English from Gambling Authority on Occasional Raffles here and Occasional Gambling Activities here 
  • Take into account Article 9 Ministerial Order regulating Contests; applies to permanent, not occasional contests, but still a useful guide EN

 

2.8. Competitions and contests

  • The essential requirements of a competition or contest is that it must be 100 per cent skill-based. The winner is chosen only on the basis of skill, not chance
  • The determination of the winner must be carried out according to the criteria established in the terms and conditions and without the influence of chance
  • The winner must be selected by a qualified judge or panel of judges 

 

2.9. Other requirements

  • Filing the rules/ terms and conditions with a notary prior to the start date is strongly advised, although not required by law
  • Language: Terms of the competition be drafted at least in the Spanish language. Article 18 (3) RLD 1/2007 Consumer Protection Law
  • In regional promotions, regional language translations may also be mandatory, or strongly recommended

3. HORIZONTAL LEGISLATION 

 

3.1. Misleading advertising by omission of material information

 

Omission of key information can be considered misleading advertising and hence an unfair act of competition under Article 7, Law 3/1991 (EN key clauses inc. 2022 amends). As promotional communications are particularly sensitive in this respect, we are showing some ‘horizontal’ legislation as well as promotional-specific clauses below

 

  • Where a sales promotion constitutes an invitation to purchase; Article 20 RLD 1/2007 (EN) on Consumer and User Protection: commercial practices which, in a manner appropriate to the means of communication employed, include information on the characteristics of goods or services and their price, enabling consumers or users to make a decision regarding purchase, must contain at least the following information, unless it is already clear from the context:
  • Article 20(1c): The full final price, including taxes, providing a breakdown, where appropriate, of the amount of any additions or discounts applicable to the transaction and any additional costs that are passed on to the consumer or user. In other cases in which the price of product offered cannot be agreed upon exactly due to the nature of the goods or services, information shall be given as to the basis for calculation, which will allow the consumer or user to check the price. Likewise, when the additional expenses that are passed on to the consumer or user cannot be calculated in advance for objective reasons, information shall be provided to the effect that there are additional expenses, along with an estimated amount in this regard, if known.
 

3.2.  ‘Bait’ advertising and misleading promotional practices, under article 22 Law 3/1991 (EN key clauses) on Unfair Competition

 

The following shall be considered misleading and hence unfair:

 

  • Commercial practices whereby a prize is offered, automatically or through a competition or draw but the prizes described or others of equivalent quality and value are not awarded (Art. 22.4)
  • Creating the false impression, including by means of aggressive practices, that the consumer or user has won, will win or will be awarded a prize or any other similar advantage if he carries out some specific act when the truth is that (Art. 22.6):
  • There is no prize or similar advantage
  • Or the action that the consumer or user is invited to take in order to obtain the prize or similar advantage is subject to an obligation to make some payment or incur some expense

 

 
4. LEGAL BASES 

 

It is recommended that the organiser of a sales promotion in the form of a contest or draw always include legal bases which are accessible and available to users at all times, e.g. published on website. And on the registration form of promotion it is advisable to include the clause: The application to participate in this contest/ draw implies full acceptance of the legal bases that are published at the following web address: http://www.paginaweb.com/baseslegales/ 

Although not required by law, it is also advisable to place these bases with a notary; this allows for greater transparency and avoids any doubt over rigging the draw. The bases are here (EN)

 

5. SOCIAL NETWORKS 

 

 

When organising a draw/ contest on a social network it is important to consult its own rules, which might otherwise result in the blocking of accounts/ profiles. For example, Facebook and Twitter have specific conditions:

  • Facebook promotion rules here
  • Twitter promotion rules here

 

6. SELF-REGULATION IN PROMOTIONS 

 

6.1. Autocontrol Code of Advertising Practice

  • Clause 25, Promotions: Promotional advertising, such as contests or similar activities must clearly indicate the conditions for participation and their duration. Under no circumstances must the pre-conditions for winning the prize, nor the costs associated with receiving it or taking part in the promotion be masked

 

6.2. The ICC Advertising and Marketing Communications Code (EN), which underpins much of self-regulation worldwide, carries a full chapter (A) on Sales Promotions

 

 

 

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International

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing

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

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

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

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

Clauses are from the 2024 edition of the Code 

 

A1: Principles governing sales promotions

 

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

 

A2: Transparency and terms of the offer

 

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

 

A3: Presentation

 

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

 

A4: Administration of promotions

 

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

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

 

A5: Safety and suitability

 

  • Care should be taken to prevent promotional items, if used correctly, from exposing consumers, intermediaries, or any other persons or their property to any harm or danger
  • Where appropriate promotional items should be accompanied by any necessary warnings and safety advice. Promoters should ensure that their promotional activities are consistent with the principles of environmental and social responsibility and in particular take reasonable steps to prevent unsuitable, inappropriate or age-restricted materials from reaching children.

 

A6: Presentation to consumers

 

  • Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated
  • Where consumers are prompted to engage with content by clicking on a link, or using a similar mechanism, like voice or movement activation, it should be made clear beforehand what the outcome will be, e.g. by specifying the form and nature of the offer. Deceptive practices like “click to reveal code” only to present an offer, should not be used

 

 

Information requirements

 

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

 

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

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

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

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

LEGISLATIVE CLAUSES

 

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

 

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

Article 6a

 

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

 

 

 

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D. Advice & Clearance

General

SECTION D

 

NOVEMBER 2023

 

AUTOCONTROL publishes video on copy advice management process (ES)

 

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AUTOCONTROL has updated its service offering (ES) and, among others, has launched two new consulting services:

 

la Consultoría orientativa de protección de datos,

Data protection consultancy and

la Consultoría sobre campañas de publicidad o web

Consultancy on ad campaigns or the web

 

The latter provides formal advice on a more general basis than the analysis of specific proposals under Copy Advice®, covering application of the rules, regulation of the category or service, etc. of future advertising campaigns, including web pages or assessing those on the same basis separately. 

 

Additionally, after the entry into force of the Data Processing Code January 1, AUTOCONTROL has a new sistema de reclamaciones de reclamaciones de protección de datos y publicidad  (we think that’s a system for complaints about claims related to data protection and advertising)  which Confianza Online members can access for free

 

 

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There are 3 key instruments in Autocontrol, as with most advertising SROs:

 

  1. Code of conduct: the Autocontrol Code of Advertising Practice (EN) 
  2. Out-of-court dispute settlement system: Complaints Committee or Advertising Jury (Jurado de la Publicidad) and
  3. Prior control mechanisms Copy Advice® and Cookie Advice. There is no pre-clearance per se in Spain; however, some sectoral codes and co-operation agreements with Autocontrol require adhered companies to obtain copy advice for advertising in certain media. This is not always mandatory; for example, it is voluntary for Cosmetics under the STANPA Code

 

MANDATORY COPY ADVICE 

 

See above under first header

 

Copy Advice is compulsory under some codes for adhering companies, and is binding:

 

  • Code of co-regulation of advertising for food and beverage products directed to children, prevention of obesity and health PAOS Code. Prior copy advice is required for all advertisements aimed at children under 12, and for food and beverage TV commercials broadcast during children’s enhanced protection viewing times (between 8–9am and 5-8pm on weekdays, and 9am–12pm on weekends and public holidays (1st, 6th Jan; Good Friday; 1st May; 12th October; 1st November; 6th, 8th, 25th Dec), during which time it is prohibited to broadcast programmes rated as +12). See Section B (4) (1) PAOS Code
  • Self-Regulatory Code for advertising toys to children EN. Those companies affiliated to the Code undertake to send all TV advertisements for binding copy advice; see p. 15 of linked translation; Section 3 (1). Whilst the Code states all toy ads must be sent for advice, Autocontrol have confirmed that, since the code’s application, this has been interpreted and implemented as for TV advertising only
  • Alcohol codes:

 

  • BEER: following an agreement between Cerverceros and Autocontrol in 2009, copy advice is required for all Brewers’ TV commercials, per the Brewers Code (EN) itself; mandatory for TV, optional for other media
  • WINE: under Chapter VI of the OIVE Wine Code (EN), copy advice is mandatory for TV, optional for other media
  • SPIRITS: FEBE and Autocontrol contracted in April 2014 that FEBE members or those observing their Code must request Copy Advice® prior to advertising in TV, cinema, press, radio and outdoor
 

AUTOCONTROL AND CONFIANZA 

 

Re the General Code of Advertising Practice (EN) and the Confianza Online Ethical Code (ES). Autocontrol membership implies commitment only to the General Code. The Confianza Code is one of several sectoral Codes managed by Autocontrol that apply only to their members. Nevertheless, for the time being Autocontrol membership allows membership of Confianza Online at no extra charge; therefore, most Autocontrol members are also members of Confianza Online

 

ADVICE SERVICES 

 

(also see above under November 2023)

 

Autocontrol provides four types of advice service: 

 

  1. Legal Advice: this is informal legal advice, since January 2015 provided verbally, concerning general advertising issues, e.g. legislation, jurisprudence, ethics, etc. Requests are usually answered within 48 hours by telephone. Free to members, though there is a charge if a quota is exceeded. €436 non-members
  2. Copy Advice©: a legal report issued by Autocontrol’s Technical Committee, which provides advertisers, agencies, media, and professional associations with written opinion/ advice on a specific advertisement before it is disseminated, discussing any revision needed to achieve compliance with Self-Regulatory codes and relevant legislation. Requests are voluntary, confidential, non-binding except where expressly provided in sectoral agreements/ codes, and available free of charge to Autocontrol members for a set number – determined by membership fee and social category – after which a fee of €90 is required per additional advice. There is a €672 charge per request from non-members. The service is normally provided within three working days

 

  • TV: commercials up to 60 secs shall count as one Copy Advice®; every extra 60 second segment from that first minute will count as one additional
  • Websites: one Copy Advice® will apply for every page analysed on the website
  • Catalogues/ brochures: one Copy Advice® for every 4 pages of the catalogue

 

Express Copy Advice: A Copy Advice Express Service is also available, delivered in one working day. The price for members is €566, and €1,131 for non-members or advertisers who are non-members. Copy Advice® Express requested before 13:00 (1pm) will be delivered within one working day following the day on which the required documentation and information was provided (working hours: Mon-Thurs 9am – 6pm; Fri 9am – 3pm; June 15 - Sept 15 8am – 3pm; holidays not included)

 

  • Express copy requests in relation to advertising materials of great size or long duration will not be accepted
  • No more than x2 express copy advice requests per week and no more than x5 requests per month, nor between August 1 and 31

 

  1. Legal Website Report (for websites of 30 pages, additional costs thereafter): this is a review of websites provided to advertisers, agencies, the advertising media, and professional associations consisting of a detailed analysis of the lawfulness and deontological correctness of the advertising contents included in the analysed website. It is strictly confidential, non-binding, and carries a €2,060 charge for members or €4,833 for non-members. In those cases where the website has more than 30 pages, each additional page will be considered as one Copy Advice© in terms of invoicing (i.e. €672)
  2. Cookie Review Service/ Cookie Advice® Service: a legal review which helps companies to implement their cookie policies in order to meet cookie (or similar storage and retrieval technologies) legal requirements from article 22.2 of the Law on Information Society and Electronic Commerce Services (LSSICE)

 

The Cookie Advice Service is in 3 stages:

 

  1. Technical analysis: Autocontrol’s Technical Team locates cookies (including third party) installed through a specific website, platform or computing application, reviews them one by one and identifies their usage. Also detects spy cookies (flash cookies; local storage and similar technologies)
  2. Legal analysis: Legal review of compliance with LSSICE and the 'Guide on the Use of Cookies', from the Spanish Data Protection Agency (AEPD) with Autocontrol, Adigital and IAB Spain. Autocontrol’s legal team, based on these principles:

 

  • classifies cookies in terms of their purpose, the entity managing them, and their expiration
  • checks if proper information is given on their use
  • checks if informed consent is correctly obtained
  • analyses the correctness of the cookies policy and banner text
  • Optional: Review of the terms of third-party contracts

 

  1. Written verification report: If the website complies with LSSICE and 'Guide on the use of Cookies', Autocontrol will issue a positive report. Otherwise, the report sets out recommendations for modifications needed to comply and obtain a positive report

 

This service is normally provided within ten days. Although the Cookie advice service is voluntary, the Guide on the use of Cookies recommends regular verification. Cost for members €848 and non-members €1,697

 

Autocontrol services:

https://www.autocontrol.es/servicios/

 

CLEARANCE

 

Autocontrol 10 – 14 days TV/VOD/Online/Sponsorship (incurs fees)

For help, contact the Traffic Bureau administration@trafficbureau.net

 

 

Read more

International

SECTION D: SRO SERVICES

 

The ICAS Global SRO database

https://icas.global/srodatabase/

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION 

 

Health claims

 

Regulation (EC) No. 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. Relevant: Article 4(3): Beverages containing more than 1.2 % by volume of alcohol shall not include: (a) Health claims (b) Nutrition claims, other than those that refer to a reduction in the alcohol or energy content:

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006R1924


Regulation (EU) No. 1169/2011 on the provision of food information to consumers. This regulation essentially combines two directives in one piece of legislation: Directive 2000/13/EC on the labelling, presentation and advertising of foods and Directive 90/496/EEC on the nutrition labelling for foods. The full list of mandatory particulars to be included on the label is contained in Article 9 (1). Alcoholic beverages must be marked with their strength where this is above 1.2% by volume of alcohol (Art. 9 (1k)). Labelling requirements can be found via the link below, and this Regulation is also the vehicle for the prohibition in advertising of any claims related to the prevention, treating or curing of a human disease (art. 7 (3)):

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32011R1169

Key clauses:
http://www.g-regs.com/downloads/EUfoodlabelling1169-2011.pdf

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010, the Audiovisual Media Services Directive, provides under article 9 (e) that ‘audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages.’ Article 22 provides ‘Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria: (a) it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages; (b) it shall not link the consumption of alcohol to enhanced physical performance or to driving; (c) it shall not create the impression that the consumption of alcohol contributes towards social or sexual success; (d) it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; (e) it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; (f) it shall not place emphasis on high alcoholic content as being a positive quality of the beverages:

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. 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. 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

 

 

NATIONAL LEGISLATION

 

Alcohol-specific 

 

General Advertising Law; Law 34/1988 of 11th November, published in BOE No. 274 of 15 November 1988, entered into force 05/12/1988. (Ley 34/1988, de 11 de noviembre, General de Publicidad). Applies to advertising, defined as any type of communication carried out by a natural person or legal entity, public or private, in the exercise of a trade, business, craft or profession, for the purposes of promoting, directly or indirectly, moveable (goods) and immoveable (real estate) property, services, rights, and obligations (Art. 2).

 

Alcohol-specific section: Title II Illegal advertising and measures to prevent it happening (Arts 3-6). Article 5 (5) prohibits advertising on TV (2022 amends permit advertising in AV media between 0100 and 0500) and ‘in those places where its sale and consumption is prohibited’ for beverages of more than 20% ABV. Art. 5.5 was amended by the Seventh Additional Disposition of Law 12/2012 on Urgent Trade Liberalisation Measures and certain services. The amendment introduces the possibility of advertising beverages with alcoholic content below 20% ABV, even in places where its sale or consumption is prohibited. With the previous regulation, the advertising in these places of all the alcoholic drinks regardless of its strength was prohibited. Law 13/2022 of July 7 on General Audiovisual Communication provided amends to article 5 of Law 34/1988 covering some aspects of alcohol advertising and Organic Law 10/2022, of September 6 added to the protective measures for vulnerable consumers under article 3.  Consolidated text:

https://www.boe.es/eli/es/l/1988/11/11/34/con

 

Unofficial, non-binding English translation of key clauses including 2022 amends: 

https://www.g-regs.com/downloads/SPGenAdvertisingLaw3419882022EN.pdf

 

Channel legislation

 

General Law on Audiovisual Communication 7/2010 of 31st March BOE No. 79 of 01/04/2010, entered into force 01/05/2010. Scope: television and radio advertising spots, sponsorship, teleshopping and product placements (Art. 2.24) The law sets down general rules for the media in its scope, and more specifically allows TV advertising of alcoholic beverages below 20% ABV only from 20h30 to 06h00 (Art. 18 (3d)), provided that they are not aimed at minors, nor encourage immoderate consumption, nor associate consumption with improved physical performance, health, or social success. Advertising on television of beverages with an ABV over 20% is prohibited (Art. 18. 3c). The law also implements the AVMS (Audiovisual Media Services) Directive 2010/13/EU.

Consolidated text: 

http://boe.es/buscar/act.php?id=BOE-A-2010-5292

English translation of relevant provisions here: 

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

 

General Law on Audiovisual Communication 13/2022 of 7 July. Repeals the former general AV law above and transposes the amends to the AVMS Directive 2010/13/EU brought about by Directive 2018/1808 which, for the purposes of this database, largely concern the extension of scope into video-sharing platforms. Alcohol rules are found under article 123. Consolidated text:

https://www.boe.es/eli/es/l/2022/07/07/13

Unofficial non-binding English translation of key clauses inc. 2022 amends:

https://www.g-regs.com/downloads/SPGenAVLaw2022ContentrulesEN.pdf

 

 

SELF-REGULATION

 

Advertising industry codes 

 

The Spanish advertising Self-Regulatory Organisation (SRO) is AUTOCONTROL, abbrev. AC (Asociación para la Autorregulación de la Comunicación Comercial). AC collaborates with other associations and organisations in the development of Sectoral Advertising Codes, establishing co-operation schemes in which AC, via its Advertising Jury, an independent complaints resolution body, enforces and monitors compliance with the Code. Some Codes and agreements require member companies to obtain copy advice for some forms of advertising. Sectoral codes apply only to members of the respective association or other Code signatories:

https://www.autocontrol.es/wp-content/uploads/2021/05/codigo-de-conducta-publicitaria-autocontrol.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2021/03/code-of-advertising-practice-autocontrol.pdf (EN)

 

Confianza Online

 

Confianza Online Ethical Code (2022) ES:

https://www.autocontrol.es/wp-content/uploads/2022/03/codigo-de-conducta-de-confianza-online.pdf

GRS unofficial translation of the key articles from the 2022 version:

http://www.g-regs.com/downloads/SPCOEC2022GRSEN.pdf

 

Influencers

 

The Code of Conduct on the Use of Influencers in Advertising is published by the Association of Spanish Advertisers and Autocontrol. The Code entered into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. The Code defines when Influencer advertising qualifies as such and sets out identification requirements.
https://www.autocontrol.es/wp-content/uploads/2020/10/codigo-de-conducta-publicidad-influencers.pdf (ES)
http://www.g-regs.com/downloads/SPGenInfluencerCode2020ENonly.pdf (EN)

 

 

Alcohol industry codes 

 

Beer

 

The Spanish Brewers Code of Advertising Practice 2003 (modified 2009). Código de Autorregulación Publicitaria de Cerveceros de España. The Code applies to all media and forms of commercial communications and covers four main areas: misuse, minors, driving, and working. It is operated with two Consumer Organisations (CECU: Confederación de Consumidores y Usuarios and UCE: Unión de Consumidores de España) and Autocontrol. The Code was revised in 2003 and 2009 to include stricter measures focused on the protection of minors. Television, print, and outdoor must incorporate a Responsible Consumption Message: ‘(la marca correspondiente) recomienda el consumo responsable’ (X brand) recommends responsible consumption), which must appear horizontally and legibly. Following an agreement signed between Cerverceros and Autocontrol in 2009, copy advice is required for all Brewers’ TV commercials. Cerveceros link:

https://cerveceros.org/uploads/60ad057cdcd31__CAP_CE_envigor.pdf

Autocontrol link:

https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-de-autorregulaci%C2%A2n-publicitaria-de-cerveceros-de-espa%C2%A7a-cerveceros.pdf

The above links are to the same document. An unoffical and non-binding English translation of relevant clauses is here:

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

 

Wine

 

The Wine Code of Commercial Communication 2020, from the Spanish Wine Interprofessional Organisation (OIVE - Organización Interprofesional del Vino de España), administered by Autocontrol. On August 1st 2018 the ‘OIVE Wine Code’ came into force. The Code implements/ observes the European Wine Communication Standards and replaces/ refreshes the FEV Code. Commercial communications must include the Responsible Consumption Message (‘El Vino Sólo Se Disfruta Con Moderación’ - Wine is only appreciated in moderation) accompanied by the WIM logo. The application of the Code is mandatory for all OIVE members, as well as for other signatories. The Code is enforced by Autocontrol. Under Chapter VII, copy advice is mandatory for TV, optional for other media. Recent changes to the Wine in Moderation association's logo have caused a re-issue of the code, reflecting the WIM updates; all changes are in Annex 1 of the code and related to RCMs/ WIM. Autocontrol link:

https://www.autocontrol.es/wp-content/uploads/2021/03/codigo-comunicacion-comercial-vino_2021.pdf (ES)

OIVE link:

https://www.interprofesionaldelvino.es/codigo-de-comunicacion-comercial-del-vino/

An unofficial and non-binding AC translation is here: 

https://www.autocontrol.es/wp-content/uploads/2021/03/code-for-wine-commercial-communications_2021.pdf 

 

Spirits

 

FEBE Self-Regulation Advertising Code. Código FEBE de autorregulación publicitaria: Federación Española de Bebidas Espirituosas. The Code was created in 1999, applies to all associated spirits companies, and is enforced by Autocontrol. A revised version including provisions for digital media was adopted in March 2013. An agreement was signed between FEBE and AUTOCONTROL in April 2014 in which FEBE members observing the Code must request Copy Advice® prior to distributing advertising in TV, cinema, press, radio and outdoor media. All members of FEBE must include a Responsible Consumption Message (RCM) in their advertising campaigns: ‘Disfruta de un consumo responsable’ (Enjoy responsible drinking). In 2010 a consumer information website www.disfrutadeunconsumoresponsable.es was created. Print and online advertising is checked monthly to certify that the RCM is correctly included (see Art. 7 FEBE Code). FEBE link to responsible consumption page:

https://www.disfrutadeunconsumoresponsable.com/

Autocontrol link to Code: 

https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-de-autorregulaci%C2%A2n-publicitaria-de-la-federaci%C2%A2n-espa%C2%A7ola-de-bebidas-espirituosas-febe.pdf

AC English translation: 

https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_febe_en.pdf

 

ICC

 

ICC’s Framework for Responsible Marketing Communications of Alcohol:

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

 

 

Alcohol industry guidelines

 

These Codes or Guidelines are often a) voluntary, and apply only to the members of the associations concerned and b) anyway reflect the self-regulatory codes and the law.  Nevertheless, taken together the members cover significant volume in the market, so it’s best at least to be aware of their requirements. Players, contacts, and rules or guidelines are as follows:  

 

International

 

IARD

 

The International Alliance for Responsible Drinking IARD: http://www.iard.org

IARD is a not-for-profit organisation dedicated to addressing the global public health issue of harmful drinking. Its members are leading international beer, wine, and spirits producers. IARD is the Secretariat of the Beer, Wine and Spirits Producers’ Commitments to Reduce Harmful Drinking.

 

‘Guiding Principles: Self-Regulation of Marketing Communications for Beverage Alcohol’ were published in November 2011.  They highlight the underlying global values in responsible advertising and marketing practices across beverage alcohol industry sectors and form a basis for developing new codes or assessing existing codes in diverse markets: 

https://www.iard.org/science-resources/detail/Guiding-Principles-Self-Regulation-of-Marketing-Co

 

To supplement the Guiding Principles, Digital Guiding Principles (DGPs) were launched in September 2014. The scope of the DGPs is ‘relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.’ 

 

In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)


 

WFA: Responsible Marketing Pact

 

The World Federation of Advertisers (WFA). 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets & marketers worldwide, representing approximately 90% of global marketing communications spend. WFA champions responsible, effective marketing communications':

http://www.wfanet.org/en

The Responsible Marketing Pact is in force from 1st June 2015. Under the RMP, Europe’s eight largest alcohol producers (AB InBev, Bacardi, Brown-Forman, Carlsberg, Diageo, Heineken, Pernod Ricard and SAB Miller) have agreed to build common standards for the responsible marketing of their brands:

https://www.wfanet.org/priorities/public-affairs/alcohol-marketing/ and the rmp website is here: https://the-rmp.eu/

 

 

Europe Spirits

 

spiritsEUROPE http://spirits.eu/ is the European representative body for the spirits sector and comprises 31 national associations as well as a group of leading spirits companies. Membership here. In February 2022  spiritsEUROPE adopted EU-wide Guidelines for the Development of Responsible Marketing Communications. The rules cover both the content and placement of commercial communications as well as the mention of a Responsible Drinking Message e.g. in the form of a consumer information website address, in all marketing communications. spiritsEUROPE member-controlled websites should provide a link to an information website on responsible drinking, such as the national websites referenced under http://www.responsibledrinking.eu or the EU Portal itself.

 

Europe Beer

 

The Brewers of Europe. Founded in 1958 in Brussels as a not-for-profit European association, the BofE “brings together national brewers’ associations from 29 European countries and provides a voice to represent the united interests of Europe’s 9,500 breweries. Responsible Beer Advertising Through Self-Regulation. 7 Operational Standards:
The Beer Pledge, a package of responsibility initiatives from Europe’s brewers, was launched in 2012. The 2017 third edition report is available here. The Brewers of Europe is actively involved, as an associated partner, in the Responsible Marketing Pact managed by the World Federation of Advertisers. 

 

Europe Wine

CEEV

 
Comité Européen des Entreprises Vins. Founded in 1960, CEEV is the representative professional body of the EU Industry and trade in wines, including still and aromatised wines, sparkling wines, liqueur wines and other wine products. CEEV 'brings together 23 EU national associations and was the driver and founding member for the ‘Wine in Moderation - Art de vivre’ Programme (WIM)'.  CEEV 'actively guides and supports' the development of the WIM programme (see WIM details below). www.ceev.eu

 

WIM
 

Wine in Moderation. ‘The roots:

  • A single global message to reduce harm and inspire moderation when drinking wine
  • Tailored by each culture and community where it is introduced
  • A social responsibility program launched in 2008 by the European wine sector to demonstrate social responsibility and managed by the WiM Association.

Wine in moderation is for all wine producers and wine professionals who want to responsibly present, sell and serve wine’

https://www.wineinmoderation.eu/

 

Wine Communication Standards

 

‘These standards are established as a set of basic principles and criteria to comply with the law and with good faith and good business practices. They do not seek to replace relevant national laws or codes of conduct but do provide best practice guidelines for application by national self-regulatory bodies responsible for sector and company codes. Wine sector representative associations and/or individual companies are recommended to cooperate with the respective national self-regulatory bodies or other appropriate independent organisations for the adaptation, effective implementation and compliance monitoring at national level of these Standards.’ Document is subject to Copyright. Refer back to WiM. 

https://www.wineinmoderation.eu/medias/2537/WIM-communication-standard-update2022.pdf

 

 

National

 

See earlier entries for the national Beer, Wine, and Spirits Codes. Links below.

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

http://www.g-regs.com/downloads/SPWineCodeOIVE2018b.pdf

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

 

 

 

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Read more

General

SECTION E LINKS/ SOURCES

 

 

EUROPEAN LEGISLATION 

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 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 (General Data Protection Regulation). The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures. Both came into force May 25 2018:

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. 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.h

 

Five recent and significant papers in the GDPR context:

 

 

​​Commercial practices: UCPD


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 legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. 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: On 17 December 2021, the European Commission adopted Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), 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 and 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

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 above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. 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. 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. 

Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. 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

 

e-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. Article 2 provides amends to the E-privacy Directive above

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 such as contact details from the ‘service provider’, which information should be made easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

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

 

The Digital Services Act

 

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

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

 

The Digital Markets Act

 

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

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

 

 

NATIONAL LEGISLATION 

 

Advertising

 

Law 34/1988 of 11th November, General Advertising; entered into force 05/12/1988. Ley 34/1988, de 11 de noviembre, General de Publicidad. This law partly transposed Directive 84/450/EEC concerning misleading advertising, subsequently repealed and codified by Directive 2006/114/EC. Relevant section: Title II Unlawful advertising and measures to prevent it happening (Arts. 3-6). The law prohibits advertising that violates fundamental constitutional rights, unfair competition including misleading and aggressive advertising, and surreptitious and subliminal advertising. It also prohibits discriminatory or disparaging portrayal of women. Law 13/2022 of July 7 on General Audiovisual Communication provided amends to article 5 of Law 34/1988 covering some aspects of alcohol advertising and Organic Law 10/2022, of September 6 added to the protective measures for vulnerable consumers under article 3.  Consolidated text:

https://www.boe.es/eli/es/l/1988/11/11/34/con

Unofficial English translation of key clauses inc. 2022 amends:

http://www.g-regs.com/downloads/SPGenAdvertisingLaw3419882022EN.pdf

 

Unfair competition

 

Law 3/1991 of 10th January on Unfair Competition. Ley 3/1991 de 10 de enero de Competencia Desleal. Chapters II Acts of Unfair Competition and III Commercial practices involving consumers and users. This law carries provisions from the Unfair Commercial Practices Directive 2005/29/EC and the Misleading and Comparative Advertising Directive 2006/114/EC. Royal Decree 24/2021 (ES), of November 2 under article 84 transposed the provisions of Directive 2019/2161 that relate to search rankings, consumer reviews and international marketing into articles 5, 26 and 27 of Law 3/1991, which distinguishes between two types of unfair conduct: ‘Acts of unfair competition’, which affect companies/ businesses as well as consumers, the latter in Articles 4, 5, 7 and 8, Chapter II and ‘Commercial practices involving consumers and users’ in Chapter III, Articles 19-31. This section regulates acts of misleadingness towards consumers, separate to the acts of misleadingness from Article 5. Aggressive practices introduced in Article 8 are expanded in Articles 28 to 31. Practices from Articles 20-31 will be considered unfair commercial practices in all cases and circumstances (Art. 19.2). Consolidated text:

https://www.boe.es/eli/es/l/1991/01/10/3/con

Unofficial English translation:of key clauses inc. 2022 amends:

http://www.g-regs.com/downloads/SPUnfairCompLaw319912022CENb.pdf

 

Consumer protection/ distance selling

 

Royal Legislative Decree 1/2007, of 16 November approving the revised text of the General Law on the Protection of Consumers and Users and other supplementary laws. The Consumer Protection Act; entry into force 01/12/2007. This act applies to the relationships and contracts between consumers and businessmen or companies. Articles 92–100 provide a special regime applicable to distance sales contracts; article 20 covers information requirements for an ‘invitation to purchase’; Article 96 covers distance commercial communications. These provisions are additional to those in Law 34/2002 of 11 July (E-commerce act); in case of contradiction, the E-Commerce act will take precedence (see Art. 94). Law 4/2022, of February 25, on the protection of consumers and users in situations of social and economic vulnerability amends article 20 of RLD 1/2007, adding further protection to vulnerable users under Sections 2  and 3. Royal Decree 24/2021, of November 2 article 82.2 amends article 20 to incorporate the provisions from Directive 2019/2161 re search rankings. Consolidated text:

https://www.boe.es/eli/es/rdlg/2007/11/16/1/con

Unofficial English translation, article 20 only:
http://www.g-regs.com/downloads/SPRLD12007GenProtection2022EN.pdf

Other relevant articles in English here:

http://www.g-regs.com/downloads/SPDistSellingRLD1_2007Art.96.pdf

2014 Ministry translation of full law EN

 

Pricing

 

National law in the form of Royal Decree 3423/2000 of 15 December, transposing the Product Price Directive 98/6/EC, establishes in Article 3 that when a price is stated it should be the ‘final’ price, including VAT and all other taxes:

https://www.boe.es/eli/es/rd/2000/12/15/3423/con (ES)

http://www.g-regs.com/downloads/SP_PriceIndication_RD3423-2000_EN.pdf (EN)

 

 

Channel legislation

 

TV, Radio, VOD

 

General Law on Audiovisual Communication 7/2010 of 31st March. Entry into force 01/05/2010. This law implements the AVMS Directive 2010/13/EU and so regulates audiovisual media services TV/ Radio, linear and non-linear/ on-demand (Art.2.2), and establishing rules for sponsorship, tele-shopping and product placements. This applies only to private broadcasting channels; national public channels do not carry advertising. Consolidated text:

http://boe.es/buscar/act.php?id=BOE-A-2010-5292

English translation of key clauses:

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

 

General Law on Audiovisual Communication 13/2022 of 7 July. Repeals the former general AV law above and transposes the amends to the AVMS Directive 2010/13/EU brought about by Directive 2018/1808 which, for the purposes of this database, largely concern the extension of scope into video-sharing platforms. Consolidated text:

https://www.boe.es/eli/es/l/2022/07/07/13

Unofficial non-binding English translation of key clauses inc. 2022 amends:

https://www.g-regs.com/downloads/SPGenAVLaw2022ContentrulesEN.pdf

 

Royal Decree 1624/2011 of 14th November approving the Regulation developing the Spanish General Law 7/2010 of 31 March on Audiovisual Communications regarding television advertising, in force 07/01/2012. The regulation supplements the General Law 7/2010 and develops some elements that were deemed not sufficiently clear in the General Law, such as the calculation of advertising minutage and the maximum number of breaks. The law more clearly defines sponsorship, product placement, and marcoms during broadcasting of sports events. Consolidated text:

https://www.boe.es/eli/es/rd/2011/11/14/1624/con

English translation of key clauses:

http://www.g-regs.com/downloads/SPRD1624-2011tsedit.pdf

 

Direct mail

 

Royal Decree 1829/1999, of December 3, which approves the Regulation for the provision of postal services, in accordance with the provisions of Law 24/1998, of July 13, of the Postal Service Universal and Liberalization of Postal Services. Entry into force 01/01/2000. See article 13 (D), which requires identification of promotional mail via the letters ‘PD’:

https://www.boe.es/buscar/act.php?id=BOE-A-1999-24919

 

e-Commerce

 

Law 34/2002 of 11 July, on information society services and electronic commerce; entry into force 12/10/2002Ley de servicios de la sociedad de la información y de comercio electrónicoabbrev. LSSI or LSSICE)This law implemented the E-Commerce Directive 2000/31/EC and also incorporated some of the provisions of the E-Privacy Directive 2002/58/EC (Article 13). Law 34/2002 establishes a number of information requirements (Art. 10) for any company providing ‘Information Society Services’, defined as those normally provided for remuneration (included are unpaid services, as far as it represents an economic activity for the service provider), at a distance, electronically and at the individual request of the user. It also regulates companies sending of electronic commercial communications in Title III, Articles 20 and 21.

https://www.boe.es/eli/es/l/2002/07/11/34/con (ES)

http://www.g-regs.com/downloads/SP34_2002LSSICE.pdf (EN)

 

Data protection  

 

The General Data Protection Regulation GDPR (see opening entry in this section), directly applicable in member states and applying to the processing of personal data, was introduced in May 2018. Nationally, the 3/2018 Law on Data Protection and Digital Rights (Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y garantía de los derechos digitales), whose purpose inter alia is to 'adapt Spanish law to the model established by the GDPR' (from the AEPD), deals with significant matters excluded by European law/ GDPR e.g. '"data processing related to common foreign and security policy, and to the prevention, investigation, detection or prosecution of criminal offences". See Barcelona University blog. Article 7 states the ‘qualifying’ age of a minor to provide consent to processing of personal data to be over 14; parents or guardians must authorise consent of under 14s. The 3/2018 law on Data Protection is here:

https://www.boe.es/eli/es/lo/2018/12/05/3/con (ES; permalink)

 

General Telecommunications Law (Ley 11/2022, de 28 de junio, General de Telecomunicaciones.) This legislation recasts and updates, in accordance with the Digital Single Market Strategy of 2015, the package of Community Directives of 2002: Directive 2002/19/EC the Access Directive, Directive 2002/20/EC the Authorization Directive, Directive 2002/21/EC the Framework Directive and Directive 2002/22/EC, the Universal Service Directive. For our purposes, it maintains the applicatiion of Directive 2002/58/EC, the e-Privacy Directive, providing the rules related to consent  requirements under article 66 (1). July 2022 Data Guidance article on the General Telecommunications Law in English here.

https://www.boe.es/eli/es/l/2022/06/28/11/con (ES; permalink)

 

Regulatory authority

 

The Data Protection Authority is Agencia Española de Protección de Datos (AEPD)

https://www.aepd.es/es/la-agencia/bienvenida-la-agencia

Guide on the Use of Cookies (ES) July 2023

https://www.aepd.es/es/documento/guia-cookies.pdf (ES)

 

Sales promotions

 

Law 7/1996 of 15 January on Retail Trade; entry into force 06/02/1996. (Ley 7/1996, de 15 de enero, de ordenación del comercio minorista). The Law includes a section on Pricing (Chapter III; Title I) and a title on sales promotion activities (Title II, relevant provisions Articles, 18,19, and 32, promotion of sales with accompanying gift). Royal Decree 24/2021 of November 2 amended article 20, in force May 28,2022, of the Retail Trade Law to incorporate promotional pricing rules from Directive 2019/2161, which amended the Product Price Directive 98/6/EC. Consolidated text:

https://www.boe.es/eli/es/l/1996/01/15/7/con

Unofficial, non-binding English translation inc. 2022 amends:

http://www.g-regs.com/downloads/SPRetailTradeLaw2022amendsEN.pdf

 

The Gambling Act 13/2011 regulates gambling activities carried out via electronic, computer, telematic or ‘interactive’, which covers television, the Internet, mobile and landline telephones or any other, or interactive communication, whether it is in real or delayed time (art. 3h) means where ‘in-person channels are rendered accessory’ (Art. 1), so this law is applicable to contests and draws carried out via/ on the Internet and social networks:

https://www.boe.es/buscar/act.php?id=BOE-A-2011-9280 (ES)

http://www.g-regs.com/downloads/SPGamblingLaw13_2011Gambling.pdf (EN)

 

 

INDUSTRY CODES

 

The Spanish advertising Self-Regulatory Organisation (SRO) is Autocontrol (AC) Asociación para la Autorregulación de la Comunicación Comercial. AC collaborates with other associations and organisations in the development of Sectoral Advertising Codes, signing various agreements in which AC enforces and monitors compliance with the code. Some sectoral codes require adhering companies to obtain copy advice.

 

Autocontrol General Code of Advertising Practice 2021. Autocontrol has one main Code of Conduct, which covers commercial communications of all products/ services, except political advertising, in all media and applicable to all members of Autocontrol, and covers all advertising whose aim is to promote, directly or indirectly, whatever the means, format, or media used, the procurement of goods or services, or the strengthening of brands or trademarks.

https://www.autocontrol.es/wp-content/uploads/2021/05/codigo-de-conducta-publicitaria-autocontrol.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2021/03/code-of-advertising-practice-autocontrol.pdf (EN)

 

Confianza Online Ethical Code, February 2022. Confianza Online is the non-profit association created in 2003 by Autocontrol and Adigital (the Spanish Association of Digital Economy) with the aim of increasing trust of users online; entered into force January 2003 and covers important self-regulatory ground under Title III in e-Commerce, Data Protection and Protection of Minors. The most recent February 2022 version updates Title IV in accordance with the GDPR. Ethical Code 2022 ES:

https://www.autocontrol.es/wp-content/uploads/2022/03/codigo-de-conducta-de-confianza-online.pdf

GRS non-binding unofficial translation of the key articles:

http://www.g-regs.com/downloads/SPCOEC2022GRSEN.pdf

 

Influencers 

 

The Code of Conduct on the Use of Influencers in Advertising has been published by the Association of Spanish Advertisers and Autocontrol. The code enters into force on January 1st, 2021. The Code in Spanish is the applicable version; It is unofficially translated by GRS here. The code defines when Influencer advertising qualifies as such and sets out identification requirements:

https://www.autocontrol.es/wp-content/uploads/2020/10/codigo-de-conducta-publicidad-influencers.pdf (ES) 
http://www.g-regs.com/downloads/SPGenInfluencerCode2020ENonly.pdf (EN)

 

Data processing

 

The Spanish Data Protection Authority (AEPD, Spanish DPA) has approved the Code of Conduct for Data Processing in Advertising Activities. This is the third code of conduct on data protection approved by the Spanish DPA under the umbrella of the General Data Protection Regulation (GDPR). The main objective of this code is to establish an out-of-court system to process complaints about data protection and advertising. The new procedure, approved by the AEPD, is operational from October 2023:

https://www.autocontrol.es/wp-content/uploads/2023/10/declaracion-de-adhesion-al-codigo-de-conducta-proteccion-de-datos-autocontrol.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2023/10/code-of-conduct-data-processing-in-advertising-activities-autocontrol.pdf (EN)

 

Cinema

 

Code of Ethics on Advertising in Cinema. (Código ético de publicidad en cine de las principales agencias de exclusivas de publicidad cinematográfica) Entry into force 30 June 2016. An agreement establishing this Code of Ethics was signed between Autocontrol and the main agencies responsible for cinema advertising – Movierecord, Discine and 014 - on May 30th 2016 in Madrid. The new text is an update of the previous code from 2001, taking into account changes in advertising practice and legislation. The code establishes some general and specific rules in chapter 3 on the protection of children (Art. 6), alcoholic beverages (Art. 7), and movie promotions in the form of trailers (Art. 8). In Spanish:

https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-etico-de-publicidad-en-cine.pdf

 

Environmental advertising

 

Self-Regulatory Code on the Use of Environmental Claims in Commercial Communications (2009)The Ministry of Agriculture and Fisheries, Food and Environment MAPAMA, Autocontrol and 19 companies from the Energy and Automotive sectors signed an agreement on the use of environmental claims in advertising. The code only applies to the signatory industries and to the adhering companies from the Energy and Automotive sectors:

https://www.autocontrol.es/wp-content/uploads/2016/02/c%C2%A2digo-de-buenas-pr%E2%80%A0cticas-para-el-uso-de-argumentos-ambientales-en-la-publicidad-comercial.pdf (ES)

https://www.autocontrol.es/wp-content/uploads/2020/01/self-regulation-commercial-communications_tcm30-70734.pdf (EN)

 

Spanish marketing association

 

Ethical code:

http://www.asociacionmkt.es/actividad/codigo-etico-de-la-profesion/

 

IAB Spain/ Europe

 

IAB Spain:

https://iabspain.es/quienes-somos-iab-spain#iab-spain-misin

Legal guides:

https://iabspain.es/legal/#guas-legales

How to Comply with EU Rules Applicable to Online Native Advertising:

https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/

IAB Transparency and Consent Framework: 

https://iabeurope.eu/transparency-consent-framework/

 

INTERNATIONAL SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

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

 

 

ICC Advertising and Marketing Communications Code 2024:

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

 

 

Chapter A . Sales Promotion

Chapter B.  Sponsorship

Chapter C.  Direct Marketing and Digital Marketing Communications

Chapter D . Environmental Claims in Marketing Communications

Chapter E. Children and Teens (2024 code)

 

Additional ICC Guidance and Frameworks

(non-exhaustive)

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising 
https://iccwbo.org/news-publications/policies-reports/mobile-supplement-icc-resource-guide-self-regulation-interest-based-advertising/
ICC Guide for Responsible Mobile Marketing Communications
https://iccwbo.org/news-publications/policies-reports/icc-guide-responsible-mobile-marketing-communications/
The ICC’s Guidance on Native Advertising
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/

 

WFA

World Federation of Advertisers

 

From their website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':

https://www.wfanet.org/

This is their ‘GDPR Guide for Marketers’:

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

EASA

 

The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as Autocontrol) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:

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

 

EASA’s Best Practice recommendations 

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

Influencer Marketing (2023)

 

ESA

 

The European Sponsorship Association was formed in October 2003. ESA’s central aim is to encourage and promote good practice within the sponsorship industry. ESA can be found here:

http://www.sponsorship.org

The ESA Code of Conduct is here:

https://sponsorship.org/membership/code-of-conduct/

ESA require that Members will abide by the ICC Advertising and Marketing Communications Code, which incorporates Sponsorship under Chapter B, and ‘all applicable legal and self-regulatory requirements in the territories in which they operate.’

 

FEDMA

 

Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:

http://www.fedma.org/index.php?id=30

 

 

NATIONAL ASSOCIATIONS 

 

AEA

 

The Spanish Advertisers Association - Asociación Española de Anunciantes (AEA). Founded in 1965, AEA represents advertising companies, defending their interests in anything related to marketing communications in Spain. The AEA currently consists of 160 members whose advertising spend accounts for 70% of TV advertising and represents 50% of the remaining media spend. It is a member of the World Federation of Advertisers (WFA). One of the activities of the association is to develop professional documents, codes of conduct and procedural arrangements, including a Code of Conduct here 

http://www.anunciantes.com/

AEPE

 

The Spanish Association of Outdoor Advertising - Asociación Española de Publicidad Exterior (AEPE)

http://www.aepe.org/

 

Opt-out register 

 

Robinson lists. The Robinson List service enables consumers to register their desire not to receive advertising. Individuals can request that their respective data is deleted from lists of specific companies that send advertising by postal mail, email, or telemarketing. It is managed by the Spanish Association of Digital Economy (Adigital) and was created under the provisions of the Data Protection legislation:

https://www.listarobinson.es

 

 

OTHER REGULATORY AUTHORITIES

 

CNMC

 

National Markets and Competition Commission (CNMC - Comisión Nacional de los Mercados y la Competencia) created by Law 3/2013 is the independent authority in charge of both competition and regulatory matters in Spain under Article 1 Law 3/2013: "The CNMC aims to guarantee, conserve, and promote the correct operation, transparency and the existence of effective competition in all markets and productive sectors, to the benefit of consumers and users".  It will thus have hybrid functions: enforcing competition rules (provisions of Law 15/2007 of 3rd July on Competition) as well as regulating economic sectors – including Telecommunications, in the form of Gen. Telecoms Law 9/2014; see Article 70(2) for functions, and audiovisual media in the form of the AVMS Law 7/2010 of 31 March; see Art. 9 Law 3/2013. The new authority became fully operational in October 2013. The authority signed an agreement in June 2015 with Autocontrol to promote co-regulation on TV commercial communications. See AC Brochure here (page 9).

 

 

 

 

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International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

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

 

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

 

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

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

 

 

Additional guides and frameworks (all EN)


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC Guidance on Native Advertising 

 

ICC toolkits

 

 

IAB Europe

 

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

http://www.iabeurope.eu/

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

https://www.iabuk.com/goldstandard

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

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

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

 

 

ICAS

 

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

https://icas.global/about/

 

EASA: European Advertising Standards Alliance

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

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

 

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

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

 

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

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

 

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

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

 

The European Interactive Digital Advertising Alliance (EDAA)

 

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

 

 

FEDMA

 

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

 

 

THE EU PLEDGE 

 

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

 

 

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.

More recent documents:

 

 

 

Key Directives in marketing communications

 

Privacy/ cookies

 

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.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

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

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

 

 

The Omnibus Directive 

 

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

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here