* Recommended read 

New ICC Code September 19, 2024

Press release here and key changes here 

 French trans November 7, 2024, SW here

A Chat with ICAS - What Are Ad Law’s Global Hot Topics?

BBB National Programs. October 10, 2024 Audio

Recycling claims mislead consumers:

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

Google overturns 1.5 bil fine in EU ad case

AP News Sept 18, 2024. Stibbe here (EN) Oct 2

EASA Newsletter September 27, 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 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.

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

The Green Claims Directive on its way to adoption
Freshfields Bruckhaus Deringer June 18, 2024

Directive Empowering Consumers for Green Transition in force
Taylor Wessing Mar 21, 2024 and Womble Bond Apr 11, 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.

1. PROHIBITIONS

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

2. BEER

Relevant national legislation and Industry codes

• General Law on Audiovisual (AV) Communication 13/2022 here (EN key clauses inc. 2022 amends)
• General Law on Advertising 34/1988 here (EN key clauses inc. 2022 amends)
• Self-Regulatory Code of Advertising from Cerveceros de España (Brewers of Spain) 
  http://www.g-regs.com/downloads/SPAlcBrewersCodebEN.pdf (EN) (ES)

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

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

General principles applicable to all Beer marcoms 

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

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

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

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

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

​

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

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

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

Specifically marcoms:

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

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

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

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

Responsible Consumption Message

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

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

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

3. WINE

Relevant national legislation and Industry codes

• General Law on Audiovisual (AV) Communication 13/2022 here (EN key clauses inc. 2022 amends). Clauses set out above under Beer 
• General Law on Advertising 34/1988 here (EN key clauses inc. 2022 amends)​
• The Wine Code of Commercial Communication January 2021, from the Spanish Wine Interprofessional Organisation (OIVE) 
• https://www.autocontrol.es/wp-content/uploads/2021/03/codigo-comunicacion-comercial-vino_2021.pdf (ES)
  https://www.autocontrol.es/wp-content/uploads/2021/03/code-for-wine-commercial-communications_2021.pdf (EN)

The Wine code 

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

Principles (Ch. V)

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

Communications must respect the following principles:

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

"Commercial communications" shall never:

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

• 1. Messages of moderate and responsible consumption. Wine communications shall foster responsible wine consumption. To this effect: 

1. Commercial communications being visible enough must include: 

• The Wine in Moderation logo, according to the style guide found in annex 1
• The 'Wine - only appreciated in moderation' message
• This obligation shall NOT apply to:

1. Freely expressed contents on mass media based on press releases, as long as they are not a paid job or whenever the content has been published without the member being able to control it
2. Product labeling, where is an opt-in
3. Winemakers sponsoring an activity or event in any advertising campaign
4. Corporate advertising whenever not promoting products or consumption

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

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

• 2. Misuses

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

• 3. Alcoholic strength 

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

​

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

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

• 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

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

1. Suggest that wine consumption helps social acceptance or social success
2. Suggest that abstinence is equivalent to social, work or business failure

• 12. Sexual issues 

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

4. SPIRITS

Relevant national legislation and Industry codes 

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

Prohibitions

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

Chapter II General deontoligical principles 

• Article 4. Legality principles. The advertising of beverages to which this Code applies shall comply with the legislation in force, whatever its content, the dissemination medium or the form that it takes
• Article 5. Fairness principle. The advertising of beverages to which this Code applies shall meet the requirements of good faith and good business practices, whatever their content, the dissemination medium or the form that they take
• Article 6. Veracity principle 6.1. The advertising to which this Code applies shall be truthful and identifiable as advertising
• 6.2. The advertising to which this Code applies shall avoid any error as to the alcoholic strength of the beverage advertised. To this effect, advertising that is visually perceptible shall inform consumers in a clearly legible format of the alcoholic strength of the beverage advertised in accordance with the conditions set out in Article 7 
• Article 7. Social responsibility principle. 7.1. The advertising to which this Code applies, both in its content and in its form and dissemination, shall be effected with a sense of social responsibility
• 7.2. The advertising to which this Code applies shall not encourage abusive consumption. To this effect, advertising which is visually perceptible shall include the Responsible Consumption Message indicating that moderation is a basic premise for responsible consumption. The said message shall be common to all FEBE member companies and shall be displayed to consumers in a clearly legible format. To this end, the FEBE Responsible Consumption message:

1. Must be affixed in a clearly visible place
2. Must have a minimum size equivalent to 1% of the total area of the advertisement; when it is a question of advertising in cinemas or on television, it must have a minimum size of 1.5% of the total area of the advertisement and must be displayed for at least 2 seconds
3. Must be printed in a colour which allows it to be clearly visible and legible against the background of the advertisement
4. Must be accompanied by an indication of the alcoholic strength of the product, in the same format and colour and immediately following the said message

• 7.3. Additionally and voluntarily, FEBE member companies may include in their promotional material the FEBE Responsible Consumption Message or any other moderation message, in accordance with the parameters established in Article 13 below
• 7.4 The FEBE General Assembly may complete and/ or modify the parameters relating to the FEBE Responsible Consumption Message indicated in subparagraph 7.2 above

​

Chapter III. Deontological principles relating to advertising content 

• Article 8 References to consumption. The advertising to which this Code applies:

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

• Article 9. Road safety. 9.1 The advertising to which this Code applies may not suggest that a minimal amount of alcohol can be consumed without a risk to driving and road safety. Nor may it show situations which associate alcohol consumption with driving vehicles or allow the appearance in the content of the advertising message, in a primary and not merely secondary manner, of vehicles or elements directly linked with driving, regardless of whether or not this is in a driving situation, except for cases of responsible consumption campaigns.
• 9.2. The advertising to which this Code applies may not be inserted in motor magazines or other publications or in specialised supplements or sections of magazines or other publications whose main content is motor vehicles

• Article 10. Minors.10.1. The advertising to which this Code applies may not be specifically aimed at minors
• 10.2 Minors may not play a part in or figure in advertising to which this Code applies
• 10.3 The models in advertising to which this Code applies must not be under 23 years of age
• 10.4. The advertising to which this Code applies and the presentation of beverages included in its objective scope may not use images, drawings, icons, fictional persons or persons of public renown directly or fundamentally connected with minors
• 10.5. With a view to reducing the impact of the advertising to which this Code applies on minors:

1. the said advertising may not be broadcast on television or radio or shown in cinemas during, immediately before or immediately after programmes or sessions specifically intended for minors or the majority of the audience for which are minors
2. the said advertising may not be broadcast on television until the beginning of the news in the evening/night and in no case before 20:30
3. the said advertising may not be inserted in publications aimed at minors or on pages for minors in publications not specifically intended for them
4. when the said advertising is direct and, in particular, when it is a question of sending out leaflets, graphic advertising and other advertising media by any means to a particular consumer or predetermined consumers, in this case it must be sent to adults and, to this effect, its external presentation shall indicate the name of the adult to whom it is addressed and its internal content shall include the words “Not suitable for minors” or similar, clearly establishing that the said advertising is in no case intended for minors

• 10.6.The advertising to which this code applies, in both the printed press and broadcast media, shall only be shown during the hours, programmes or sections of the said media output, when at least 70% of the audience are reasonably expected to be adults of 18 years or older

​

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

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

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

• Article 12. Brand extension advertising. 12.1. The use of a brand of one of the beverages to which this Code applies to designate another product, alcoholic or otherwise, or a service is the right of a company established by legal edict.
• 12.2. Nevertheless, advertising a product identified through a brand identical or similar to one of the beverages to which this Code applies must not be used as a form of indirect advertising of the said beverage in media in which its advertising is prohibited. In order to prevent any supposition of illicit indirect advertising within the meaning of the previous paragraph, brand extension advertising for the products to which this Code applies shall fulfil the following conditions at least:

1. it must correspond to a real and reasonable intention to place the new product on the market;
2. once the product has been launched on the market, for its advertising to continue it must be possible to demonstrate that an average weighted distribution is being made, detectable on an independent index confirming its continued marketing;
3. it must clearly identify the product that is the subject of the advertising, so that the consumer is aware of its nature, using all necessary means to ensure that the consumer perceives without any confusion that it is advertising for a product different from that whose advertising is prohibited in the medium in which it is intended to disseminate it;
4. the advertising must not use common slogans, images or motifs that can be associated by the consumer with previous, simultaneous or subsequent campaigns relating to the beverage whose advertising is prohibited in the medium in which its intended to disseminate it.

• Article 13. Responsible consumption advertising. 13.1. FEBE member companies and the beverages to which this Code applies which they produce or market may use advertising messages within their own Responsible Consumption Advertising (“Responsibility Advertising Message”). However, there must be no risk of confusion in consumers’ minds which may lead them to think that the said Responsibility Advertising Message is a sectoral message.
• 13.2 In view of the above, any FEBE member company intending to carry out Responsible Consumption Advertising must in all cases ensure that there is sufficient differentiation between on the one hand its Responsibility Advertising Message and on the other hand the FEBE Responsible Consumption Message, which means that the text of its Responsibility Advertising Message:

1. must always be clearly linked to the brand or business name of the member company that uses it;
2. must never be similar or sufficiently like the FEBE Responsible Consumption Message or use the same terms, even though structured differently, or the same typography;
3. must always be larger than the FEBE Responsible Consumption Message and must appear in a clearly differentiated place where it can never be confused with the FEBE Responsible Consumption Message.

• 13.3 The Responsibility Advertising Message must not:

1. make responsible use of the beverages to which this Code applies appear commonplace or trivial, evoke fear or negative feelings or denigrate or have a negative impact on the image of FEBE or any of its members;
2. mislead;
3. be associated with any content or conduct not permitted by this Code;
4. be used for direct or indirect advertising for products or companies associated with FEBE, including advertising in those media in which the advertising of alcoholic beverages is not permitted, or be used in any other way to evade legal or self-regulation prohibitions in force as regards the advertising of the beverages covered by this Code

• Article 14. Sponsorship. 14.1 Sponsorship is that activity whereby a natural or legal person, called the sponsor, contributes towards the financing of any kind of social, cultural or sports event or a spot in communication media to the benefit of another natural or legal person, called the sponsored, with the objective of promoting the name, brand, image, activities or relations of the sponsor. Simply contracting for static advertising at events does not constitute sponsorship, which in any case must comply with the legislation applicable in this field
• 14.2. Sponsorship, and especially sponsorship of radio and television programmes, shall comply with the applicable legislation concerning the advertising of alcoholic beverages. In so far as the beverages to which this code applies are concerned, FEBE member companies may not:

1. sponsor events specifically aimed at or minors or in which minors mostly participate;
2. sponsor events which are broadcast on television when the main objective of the said sponsorship is promotion through the medium of television of any alcoholic beverage whose advertising is prohibited in this medium. Promotion through the medium of television is considered to exist when there is a consideration for the medium on the part of the member company, whether directly or through the organiser of the event or any other intermediary. Nevertheless, it is to be understood that promotion through the medium of television does not exist when the event is of informational interest in itself or forms part of sports competitions, cultural or social programmes, courses or series and any other acts provided that they are of an official nature

• Article 15. Advertising on the Internet. 15.1 Advertising on the Internet and the websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies, both on national sites or international sites intended for the Spanish public (henceforth called “websites”) is governed by the provisions of this Code
• 15.2 The websites of FEBE member companies and/or those of their brands of alcoholic beverages to which this Code applies must show, on the first page of the section of the website where alcoholic beverages to which this Code applies are displayed or promoted:

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

• 15.3.Digital publicity on web site controlled by the advertiser or on social network should have a compulsory pass button for age confirmation were they interact directly with the user. The user should click in order to continue viewing the provided contents, the user should be at least 18 years old or above. If this is not the case, access should be blocked
• 15.4.Without prejudice to the responsibilities due to the current legislation, digital publicities created with the aim of reposting content, should clearly specify that are not aimed to underage people and can´t be forwardable to them

5. GENERAL ADVERTISING RULES 

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

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

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

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

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

1. The existence or nature of the goods or services
2. The main characteristics of the good or service such as its availability, benefits, risks, execution, composition, accessories, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and essential features of tests or checks carried out on the good or service
3. After-sales customer service and complaint handling
4. The extent of the entrepreneur's or professional's undertakings, the motives for the commercial practice and the nature of the commercial transaction or contract and any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or professional or the good or service
5. The price or the manner in which the price is calculated, or the existence of a specific price advantage
6. The need for a service, part, replacement or repair
7. The nature, attributes and rights of the entrepreneur or professional or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions
8. The consumer’s statutory or contractual rights or the risks he/ she may face

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

Misleading omissions (Art. 7)

Considered unfair (Art. 7.1):

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

Article 9: Acts of denigration

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

Article 10: Acts of comparison

Summary with relevant cases here

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

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

Article 12: Exploitation of the reputation of others

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

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

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

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

‘Invitation to purchase’

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

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

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

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

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

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

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

2.4. Broadcast law; content rules

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

3. SPECIFIC CLAIM AREAS
3.1. Environmental claims 

3.1.1. Self-regulation (national)

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

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

3.1.2. International self-regulation

• The ICC Advertising and Marketing Communications Code (EN) applies, in particular:
   
  • Section I: General Provisions 
  • Chapter D: Environmental Claims

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• ICC Framework for Responsible Environmental Marketing Communications (November 2021).  'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims.' Appendix I carries an Environmental Claims checklist

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

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

3.1.5. Comparative claims

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

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

Truthfulness (Art. 5)

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

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

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

identification and transparency (Art. 7)

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

identity of the marketer (Art. 8)

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

• Marketing communications should not
   

• misuse technical data, e.g. research results or quotations from technical and scientific publications;
• present statistics in such a way as to exaggerate the validity of a product claim;
• use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity or misuse any label, symbol, logo, or seal to that effect.

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

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

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Presentation of the offer (Art. 11)

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

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 Automatic renewals (Art.12)

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

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Use of “guarantee” (Art. 13)

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

Comparisons (Art. 14)​

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

Exploitation of goodwill (Art. 15)

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

Imitation (Art. 16)

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

Denigration (Art. 17)

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

Testimonials (Art. 13)

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

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

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

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

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

NEW ARTICLE

Children and teens (Art. 20)

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

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

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Safety and health (Art. 21)

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

NEW ARTICLE

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

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

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

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

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

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

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

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

D4. Comparisons

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

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

Article D6 – Claims regarding components and elements

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

D7. Certifications, signs and symbols 

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

D6. Waste handling

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

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

D9. Responsibility

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

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

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

We have not set out individual clauses below, therefore. 

Applicable self-regulation 

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

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

Applicable self-regulation and legislation 

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

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

Applicable self-regulation and legislation 

• ICC Framework for responsible marketing communications of alcohol here (EN)
• The International Alliance for Responsible Drinking (IARD) ‘Guiding Principles (2012) and Digital Guiding Principles
• In September 2021, IARD published Global standards for Influencer Marketing (EN)
• World Federation of Advertisers; Responsible Marketing Pact (RMP) here
• Directive 2010/13/EU, the Audiovisual Media Services Directive (consolidated following amends from Directive 2018/1808)

Legislation 

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

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

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

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

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:

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

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

Article 2

For the purposes of this Directive:

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

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

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

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

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

Article 3

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

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

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

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

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

Article 4

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

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

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

Article 5

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

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

Article 6a

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

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

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

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

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

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

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:

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

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

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

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

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

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

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

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

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

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

(1) the following point is inserted:

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

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(2) the following points are inserted:
 

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

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(3) the following point is inserted:
‘

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

(4) the following points are inserted:
 

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

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