Uploaded November 2018.
See individual countries for updates.
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
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.
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:
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.
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 here. Law 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 here. DLA Piper's August 2024 Environmental Advertising Claims Guide includes Spain in its comprehensive coverage.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
French trans November 7, 2024, SW here
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
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.
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
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
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.
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.
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.
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
Key rules are set out in the following content section B and channel section C, as applicable
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
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.
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) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
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
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
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.
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
This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below
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:
Relevant national legislation and Industry codes
The General AV Law (applicable to audiovisual communications) article 123/3 prohibits commercial communication which:
General principles applicable to all Beer marcoms
Headings are not necessarily in the same order as those shown in the code itself; clauses are identified
General principles; Chap. 2, B: Prevent design or promotion from being aimed at minors, paying attention to the following elements:
Specifically marcoms:
Responsible Consumption Message
'(The corresponding trademark/ beer brand) recommends responsible consumption' ‘(la marca correspondiente) recomienda el consumo responsable’
Exemptions: any type of non-conventional advertising which lasts less than ten seconds, e.g. sponsorship (Ch. 3 (2))
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 must respect the following principles:
"Commercial communications" shall never:
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
(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
5. Drinking and driving and other potential risky activities, recreational or job related. Commercial 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. Workplace. Commercial 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, pregnancy. Commercial 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
Relevant national legislation and Industry codes
Prohibitions
Chapter II General deontoligical principles
Chapter III. Deontological principles relating to advertising content
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)
1. SELF-REGULATION
1.1. Autocontrol’s General Code of Advertising Practice
A. Basic principles
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
1.2. Confianza Online Ethical Code
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
3.2.1. Self-regulation
3.2.2. Legislation
1.1. Autocontrol’s General Code of Advertising Practice EN / ES
I. Scope of application
II. Ethical rules. A. Basic principles
C. Principle of truthfulness
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:
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
To be updated
Comparative advertising
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 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
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
2.1. General Advertising Law (34/1988)
The following is unlawful (key extracts, unofficial translation, 2022 amends in italics):
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:
A. Acts of unfair competition; key points from Chapter II
Misleading acts (Art. 5; unofficial translation, 2022 amend in italics)
Misleading omissions (Art. 7)
Considered unfair (Art. 7.1):
Article 9: Acts of denigration
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:
Article 12: Exploitation of the reputation of others
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’
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
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)
3.1.2. International self-regulation
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):
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
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
Features and presentation of prices (Art. 4)
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
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
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
.........................................................
Safety and health (Art. 21)
NEW ARTICLE
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;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
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
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
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:
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.
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.
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:
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:
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.
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').
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
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
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:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(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:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
CONTENT RULES
LEGISLATION
ALCOHOL INDUSTRY CODES
BEER
Spanish Brewers Code SBC (EN)
WINE
OIVE Code (EN)
SPIRITS
Spanish Spirits Association Code - FEBE Code (EN)
ALL ALCOHOL
The law: Product placement (PP)
Sponsorship
INDUSTRY CODES
Specific references to sponsorship in Industry codes:
APPLICABLE LEGISLATION
Who will be considered an influencer? (ES) Osborne Clarke Jan 25, 2024
Register for AV Service Providers. GALA Jan 8, 2024
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
PROHIBITIONS
RIGHTS OF THE MINOR
ADVERTISING DURING A SPORTING EVENT
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
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
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
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
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
Press, magazines & promotional literature, e.g. leaflets, brochures, catalogues etc.
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:
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
Wine
Spirits
Example here
CINEMA
Special rules
Advertising in the cinema and protection of children (Art. 6)
Advertising of alcoholic beverages (Art. 7)
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
In the context of roadside static advertising:
Autonomous regional legislation
The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
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
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)
BEER
WINE
SPIRITS
IARD
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
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
APPLICABLE LEGISLATION
Non-exhaustive
SELF-REGULATION
INTERNATIONAL/ GUIDELINES
e-Commerce information requirements (from legislation)
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
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
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
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
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.
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
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
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(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)
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:
Article 7
Unsolicited commercial communication
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
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
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
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
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
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
Effective 19th January 2022
‘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
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
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
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
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
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
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
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
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
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.
STANDARD RULES
1. APPLICABLE LEGISLATION
2. APPLICABLE SELF-REGULATION
The ICC Advertising and Marketing Communications Code (EN); see 2.2. below
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
1.2. CONSENT AND OPT-OUT
Key clauses
1.3 PERSONAL DATA; B2C solely
1.4. HARASSMENT
Direct Marketing of Goods and Services in EU
ICLG April 2024. Clear and informative and (EN)
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- 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
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
RCMs AND OTHER STIPULATIONS FROM PRODUCER CODES
The OIVE Wine Code (EN) stipulates:
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:
Spirits
The Spirits Code (EN) stipulates:
Beer
The Beer Code (EN) states:
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 here. In 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
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
APPLICABLE LEGISLATION AND SELF-REGULATION
Legislation/ guidance
Self-regulation
Title III. e-Commerce/ DP
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
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
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
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
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
EU Guidance/ opinion documents
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
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
IAB Europe’s December 2016 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 and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
The ICC’s Guidance on Native Advertising (EN): https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
SELF-REGULATION
Point 13 Autocontrol Code of Advertising Practice (EN). Point 13, critical in this context, has been amended. See translated clauses in the link and below
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)
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
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.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
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
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
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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Data processing in advertising activities (EN). From Autocontrol September 2022, approved by the data protection authority AEPD. Applicable Spanish version here
Direct marketing for the promotion and sale of goods and services:
B2B marketing activities sent by postal mail: we cannot establish any prohibition of B2B postal mail
Applicable self-regulation and 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:
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
Guidelines on consent under Regulation 2016/679 (May 2020)
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Associated sponsorship material should observe the sector and general content rules set out in section B
Alcohol Industry Codes' sponsorship requirements:
http://www.g-regs.com/downloads/SPAlcBrewersCodebEN.pdf
https://www.autocontrol.es/wp-content/uploads/2021/06/codigo_febe_en.pdf
The general sponsorship rules, i.e. those that apply to all sponsors, Alcohol producers included, are set out under the General tab below
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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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
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
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
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
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
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
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
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
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
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
Beer
Wine/ spirits
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
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
1.1. Legislation
1.2. Self-Regulation in promotions
1.3. Guidance
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
2.2. Information requirements
2.3. Promotion of sales with a free gift or bonus/ premium; Article 32 of the Retail Act
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:
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
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
2.8. Competitions and contests
2.9. Other requirements
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
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:
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)
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:
6.1. Autocontrol Code of Advertising Practice
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
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. .
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
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
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:
A5: Safety and suitability
A6: Presentation to consumers
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:
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.
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:
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
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
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
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
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
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
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:
MANDATORY COPY ADVICE
See above under first header
Copy Advice is compulsory under some codes for adhering companies, and is binding:
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:
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)
The Cookie Advice Service is in 3 stages:
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
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
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
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
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
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/2021/03/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)
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:
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:
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:
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:
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':
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
Europe Wine
CEEV
Wine in Moderation. ‘The roots:
Wine in moderation is for all wine producers and wine professionals who want to responsibly present, sell and serve wine’
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
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
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:
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:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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:
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
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)
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 12/10/2002. Ley de servicios de la sociedad de la información y de comercio electrónico; abbrev. 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)
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/2021/03/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:
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:
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/
ICC
ICC Advertising and Marketing Communications Code 2018:
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':
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:
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
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
AEPE
The Spanish Association of Outdoor Advertising - Asociación Española de Publicidad Exterior (AEPE)
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:
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).
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:
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.
'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.
EASA: European Advertising Standards Alliance
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:
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.
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.
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
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:
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:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
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
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
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
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
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
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
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