Updates:
IAP review March 2020
Digital Chart amends April 2020
CE Code and amends Dec 2020
Links checked July 2021
LD 208/2021 November 2021(IT)
Links refreshed Jan 2022
Layla Cosmetics Mascara Extra Black May 2022
Above is adjudication; commercial here
Oral B 'regenerates enamel' decision Oct 2022 (IT)
Translation links CC and DPC Nov 2022
Sunscreen 'reef-friendly' claims U.S. Feb 2023
'Clean' marketing claims. U.S. May 2023
Bryan Cave Leighton Paisner/ Lex
Alpecin caffein adjudication Nov 28, 2023
Links reviewed Dec 2023; 2 links renewed
Adjudication v Nivea added Section B Dec 2023
Revision of the EU Cosmetics Regulation
Obelis group March 11, 2024. EC pages here
CONTEXT AND SCOPE
These pages show the rules for marketing communications in the cosmetics sector. We don’t cover labelling or packaging. A cosmetic product is defined here Definition ‘any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours.’ (Art. 2.1.a. Regulation 1223/2009). A source of difficulty or complexity in making claims in this category is whether a particular product falls under cosmetics legislation or should be considered to be a medicinal product. In that context: the European Commission pages on Cosmetics are here; their statements on borderline products here. This is a heavily regulated sector with requirements for e.g. the appointment of ‘responsible persons’ and the compiling and maintenance of 'PIFs' (Product Information Files), which type of requirement is outside our scope.
RULES IN ITALY
There are two EU Regulations at the heart of the regulatory regime for the cosmetics sector, so all member states have those Regulations as the ‘core’ of rules. In the case of Italy, that core is complemented by self-regulation in the form of the IAP Code of Marketing Communication, article 23. The full picture is of four intertwined regulatory influences, as follows:
1. THE CPR AND COMMON CRITERIA
The Cosmetic Products Regulation (CPR) 1223/2009 deals largely with product formulation. The more immediately relevant (in this context) ‘supporting’ Regulation 655/2013 sets out 'common criteria’ for the justification of claims for cosmetic products. These rules are directly applicable in member states. The common criteria are here in summary and shown more fully in content section B, together with guidance.
The core marcoms-related provision from the CPR is under article 20.1: 'In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have'. In the same article, the EC is required to develop an 'action plan regarding claims used and fix priorities for determining common criteria justifying the use of a claim.' Full article here. The outcome was the ‘Regulation 655/2013 setting out those ‘common criteria’ for the justification of claims for cosmetic products, i.e. the acceptability of a claim made on a cosmetic product is determined by its compliance with the common criteria. The six common criteria are:
Legal compliance
Truthfulness
Evidential support
Honesty
Fairness
Informed decision-making
all extracted here with summary descriptions. These rules are directly applicable in member states. The (non legally binding) 2017 Technical document on cosmetic claims, provides guidance/ best practice for the application of Regulation 655/2013; Annex I sets out each of the six criteria and shows examples of claims that are not permitted. Annex II deals with Best practice for claim substantiation evidence and III and IV cover 'Free-from' and Hypoallergenic claims respectively. See also our following content section B.
2. NATIONAL SELF-REGULATORY CODE
Article 23 Cosmetics and Personal Hygiene Products
Marketing communication relating to cosmetics and personal hygiene products should not encourage the belief that such products have characteristics, properties or functions other than to be applied to the external parts of the human body, mouth or teeth for the exclusive or primary purpose of cleaning, freshening, changing their appearance or protecting them, in order to keep them in good condition or correcting body odours. Such marketing communication, therefore, may present these products as having additional features preventing particular pathological conditions, provided they actually contain specific ingredients or formulations with such effects; under no circumstances, however, should consumers be led to consider cosmetic or personal hygiene products as substitutes for medication, medical aids, medical devices or therapeutic treatments.
3. COSMETICS EUROPE (CE)
Cosmetics Europe is a particularly active and respected trade association, responsible for Guiding Principles on Responsible Advertising and Marketing Communication (2020). Full information in the following content section B. The Italian trade association Cosmetica Italia is a signatory, The CE code in Italian is here.
4. GENERAL (ALL SECTORS) RULES
General marcoms rules applicable to all sectors, cosmetics included, should also be observed; social responsibility/ taste and decency, and misleadingness rules are frequently applied in sector–specific adjudications. The principal set of rules that should be taken into account is the self-regulatory IAP Code of Marketing Communication (EN). Relevant articles are set out in our content section B that follows. A 2019 amend to article 12 (safety) provided the following clause: ‘In any case, marketing communication should not contain descriptions or representations that may lead consumers to be less cautious than usual or less watchful and responsible towards their own health and safety, including body images inspired by aesthetic models clearly associated with eating disorders that are harmful to health (emphasis ours).
While advertising regulation is largely managed by the industry, legislation plays a part in channel especially, but also in advertising content. Commercial practices deemed unfair, and comparative advertising in particular, can end up in the courts, so it’s best to know what the law says, albeit rules are largely echoed in self-regulation. The Consumer Code (IT / EN) LD 206/2005, implemented the Unfair Commercial Practices Directive UCPD 2005/29/EC protecting consumers against unfair commercial practices in the form of misleading and aggressive advertising or marketing; LD 145/2007 (AGCM trans EN / IT), which implemented article 14 UCPD 2005/29/EC which protects businesses from misleading advertising, including the conditions under which comparative advertising is permitted (Art. 4). Relevant articles are set out in our content section B that follows, under the General tab as rules apply to all sectors, cosmetics included.
CHANNEL RULES
The cosmetic sector does not attract any channel (i.e. placement) rules that are specific to the sector and to any individual channel. The general channel rules, applicable to all sectors cosmetics included, are referenced below and in the following channel section C, but principally available from the General tab beneath the sector-specific rules (as, essentially, there aren’t any). In the channel headers that follow in section C, however, we show some general rules that may be particularly relevant to cosmetics marketing, such as rules on recognisability of Influencer marketing, found in the IAP Digital Chart (EN; scroll down to ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet’). More in our following channel section C.
The recent (November 2021) arrival of Legislative Decree 208/2021 (IT), transposing the AVMS Directive and its amending Directive 2018/1808, may be significant for the cosmetics sector as it extends the scope of the AVMS Directive online and into video-sharing platforms in particular, where there are some new commercial communication identification rules, extracted from the Directive here and delivered by the Decree under Chapter II, article 42 (clauses 2,7). The issue for cosmetics is also that vloggers/ influencers, activity with which the sector is engaged, may constitute an 'audiovisual media service.' The definitive regulator view is from ERGA's 2021 paper Analysis and recommendations concerning the regulation of vloggers.
Updates since March 2023 (slimmed)
Directive 2019/2161 transposed via LD No.26
EN trans of the above in text. CMS Italy here
DPA Dark Patterns ruling RPC/ Lex July 7, 2023
AGCOM proceedings V Meta/Instagram (IT) Nov 2023
AGCOM findings (IT) v Chiara Ferragni (EN) € I mil
Katten commentary on above here (EN) Jan 31, 2024
AGCOM guidelines on influencers (IT). Jan 10, 2024
De Berti Jacchia commentary Jan 25, 2024 here (IT)
Prohibited and controlled advertising in Italy
Above from Jacobacci Avvocati March 12, 2024
And misleading practices same date and company
New corrective decree re AVMS Code June 18, 2024
Above courtesy of Portolano Cavallo
AGCM on fake endorsements on digital platforms
Orsingher Ortu July 24, 2024
DLA Piper Environmental Advertising Claims Guide
Above from August 7, 2024 includes Italy
New ICC Code September 19, 2024 (EN)
IAP annual meeting November 7, 2024
ECJ '30 day' price case added Sept 24, 2024
New Digital Chart Regulation Oct 30, 2024 (IT)
Changes above here thx 2 Eversheds (EN)
AGCOM extends deadline for Influencer Code of Conduct
Orsingher Ortu September 30, 2024
LD No. 125 of Sept 6, 2024 implements Directive 2022/2464/EU (CSRD)
Lexia September 11, 2024. Decree here (IT)
Noyb Files against Xandr with the Italian DPA
Studio Previti August 12, 2024
The influencer as commercial agent: ruling of Rome Court (IT)
Trevisan & Cuonzo/ Lex. June 4, 2024
SELF-REGULATION
The Code of Marketing Communication Self-Regulation (IT / EN), which is administered by IAP, provides the core advertising rules in Italy. The code sets out the general rules of conduct in Title I, covers rules for 'sales systems' (e.g. distance selling and prize promotions) in Title II A and specific product categories under Title II B. IAP’s Digital Chart (IT / EN) reviews the most commonly used forms of online marcoms including influencer marketing (blogging/ vlogging/ celebrity; see GALA commentary July 5, 2023 here), native, in-app, SNS, advergames, and establishes criteria for the recognisability of these in line with article 7 of the IAP Code, Identification of advertising. Details under our channel section C, or see the linked file.
CONTENT LEGISLATION
Statutory regulation of advertising claims is under the Consumer Code (IT / EN key clauses inc. 2023 amends) LD 206/2005 which implemented the Unfair Commercial Practices Directive UCPD 2005/29/EC and protects consumers against e.g. misleading and aggressive advertising or marketing; LD 145/2007 (EN / IT) which implemented article 14 UCPD 2005/29/EC protects businesses from misleading advertising, and sets out conditions for comparative advertising (art. 4); and article 2598 (EN) of the Italian Civil Code on unfair competition. Details under content section B or see the linked documents. This case, courtesy of Gala/ Lex November 2021, is an example of how the Consumer Code is applied by the authorities, specifically the Italian Competition Authority AGCM, in the context of some apparently dubious advertising from Crystal Drops co. on the TikTok platform. March 2023 CC amends are a result of transposition from Directive 2019/2161 delivered by Legislative Decree No. 26 of March 7, 2023 (IT), which introduces clauses related to search rankings and how they are achieved, the validity of consumer surveys, the consistency of international campaigns and promotional pricing requirements, the latter shown under the Pricing header later in this section. See E-commerce and new specific information requirements (EN) from CMS Italy March 21, 2023 and for a broader picture Prohibited and controlled advertising in Italy (EN) from Jacobacci Avvocati March 12, 2024.
CHANNEL LEGISLATION
Broadcast/ AV/ Influencers
New Legislative Decree Amending The Audiovisual Media Services Code
Portolano Cavallo June 18, 2024
Inter alia, Introduces “audio-only content sharing platform service”
The arrival of Directive 2018/1808, which significantly amended the scope of the AVMS Directive 2010/13/EU by extending rules online and into video-sharing platforms in particular, was recognised by the Legislative Decree of 8 November 2021, No. 208 (IT), which largely repealed the former AVMS Code. This is a significant move in AV regulation, reflecting the 'digitisation' of European audiovisual media. Commercial communication content rules are not significantly changed, however - the Directive's amends in that context are here. Arguably the most important development is the new rules under article 28b of the Directive and 41/42 of the Decree for video-sharing platforms (VSPS). These rules include the application of the Directive's commercial communication articles linked earlier to VSPS and require the platforms to make available to those who post video(s) a means by which they can declare if such videos contain commercial content, if known, and similarly the platform must advise users accordingly. There is some debate about whether Influencers/ vloggers constitute an 'audiovisual media service.' Best source for understanding the issue and the regulators' view of it is ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers (EN). Channel section C for more, or see the linked documents. In January 2024, Agcom (Autorità per le Garanzie nelle Comunicazioni (AGCOM) is the communication industries regulator) launched their Influencer guidelines (IT; GT EN translation here); CMS Italy commentary here (EN). The guidelines classify some influencers one mil subscribers/ followers, 24 posts annually, 2%+ engagement as Audiovisual Media Services, making them equivalent to publishers under the November 2021 law linked above.
Privacy/ online commercial communications
Privacy issues should be overseen by specialist advisors
Privacy Sandbox news and updates
Data protection complaints about the use of ChatGPT in Italy
Harting/ Lex June 19, 2023
The Data Protection Code (DPC) LD 196/2003 (IT), containing provisions for the adaptation of national law to Regulation 2016/ 679 (GDPR) was amended and re-named (as shown) by LD 101/2018 (IT); section 1 of the DPC now provides that the processing of personal data will be according to the standards of GDPR (see para below). There’s an English translation of the DPC from the Data Protection Authority Garante here (Dec 2021 text). Section 130 of the DPC covers unsolicited communications, implementing the e-Privacy Directive 2002/58/EC providing for opt-in consent to electronic communications. Some data processing aspects of the article are now subject to GDPR. Legislative Decree 70/2003 IT / EN (the e-Commerce law, relevant articles: 7 - 9,12,13), which implements the e-Commerce Directive 2000/31/EC inter alia provides requirements applicable to advertising from ‘information society services.’ There's a 'succinct Q&A on the law and practice surrounding online advertising in Italy, covering key regulations and restrictions' from ICT Legal Consulting here (Oct 2022). European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, are here. And finally, Garante/ GPDP published in July 2021 Guidelines for cookies and other tracking tools (IT); the English version is on the link or here. Finally finally, this Feb 27, 2023 piece from CMS Italy/ Lex is a helpful catch-up with the EDPB cookie banner task force findings and potential implications in Italy.
GDPR application
Important Garante case GALA October 6, 2023
Above re data retention indicates new stance from regulator
Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023
The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, Italy included, tend to retain their national privacy legislation and ‘recognise’ GDPR. Italy’s key data protection law LD 196/2003, referenced above, was amended following an enabling law 163/2017 (IT) and Guidelines (IT) from Garante, the Data Protection Authority. There’s a helpful blog on those from DLA Piper here. Garante published on 24 May 2021 European Regulation: Guidelines for DPOs (IT) and in English The Personal Data Protection Code from March 2020, as linked above, which lays down the provisions to adapt the national legislation to GDPR. Specific rules related to the above are set out by channel in our section C, headers as relevant. See this significant piece from August 2022 The Garante warns against personalised ads based on legitimate interest by Orsingher Ortu Avvocati Associati/ Lex.
KEY CLAIM AREAS
Environmental
The Italian Council of State on “green” claims for polluting products
Orsingher Ortu May 23, 2024
The challenge of transparency in environmental marketing
CBA Studio Legale/ Lex March 25, 2024
EU
Directive Empowering Consumers for Green Transition in force
Taylor Wessing Mar 21, 2024 and Womble Bond Apr 11, 2024
Green Claims Directive update Wiggin/ Lex March 21, 2024
Original EC press release here; EASA update Feb 2024 here
In self-regulation, article 12 of the IAP Code of Marketing Communication covers 'protection of the natural environment', albeit consisting of a single clause Advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence. Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefits refer to. The English version of the iAP website contains the essentials; the Italian language website, somewhat more expansive, has a section 'Green claims' which sets out the issues surrounding environmental ads under three headings - green claims, article 12 and rulings on green claims. The first of these is a brochure which contains some important discussion/ direction on how to make claims, some reference to key rulings and expansion of issues such as Ecological and Organic, Compostable and Biodegradable, Recyclable and Life Cycle Assessment. The brochure is in Italian here and Google Translated (forgive us) here. The 'article 12' piece, in Italian here, covers some claims ground as in, for example, the dangers of generic or unsupported claims and references a number of cases. This last is also extended, as you might expect, by the third category of support information 'Decisioni', which covers the three areas set out in the earlier brochure. A 'basic' example we like is the IAP jury/ Comitato di Controllo decision 50/2021 (IT) December 2021 which addresses how Freshly Cosmetics transgressed article 12: broad claims, no substantiation. Ad here.
Internationally, chapter D Environmental Claims in Marketing Communications from the ICC Advertising and Marketing Communications Code (EN 2024) is also relevant, together with The ICC Framework for Responsible Environmental Marketing Communications 2021 (EN). Still internationally, the WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including Italy. This last provides some important information and guidance in this jurisdiction.
In national legislation, CMS Italy's piece Sustainability, Advertising and Greenwashing (EN) discusses some of the broader claims' compliance and the role of competition authority AGCM, who imposed a fine of 5 million euros in January 2020 on the company Eni S.p.A. for the dissemination of misleading advertising messages for their Diesel+ fuel; press release here (EN). Environmental claims in advertising are assessed against the Consumer Code referenced above and transposing the UCPD 2005/29/EC. Guidance for this latter legislation is from Commission Guidance on application of the UCPD (December 2021); see section 4.1.1. for environmental claims. ICLG's Consumer Protection Laws and Regulations from April 2023 sets out how various jurisdictions, Italy included, apply consumer protection law to environmental claims and New Green Claims Directive: working on stricter rules against Greenwashing from Bugnion SpA July 16, 2024 brings green issues in Italy and the EU up to speed.
Pricing in advertising
Pricing in advertising is often a source of complaint and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
French trans November 7, 2024, SW here
EU to re-open, merge CSRD, CS3D & Taxonomy
REP November 20, 2024
TEMU challenged by CPC network (FR)
EC Digital Fitness Check published Oct 3, 2024
Lewis Silkin on above here (scroll down)
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
AI
The AI Convention CSC Sept 12, 2024 here
EASA newsletter update AI legislation Aug 2024
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS
Greenwashing in the EU, France and the UK
Addleshaw Goddard/ Lex November 11, 2024
Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)
Stichting Milieudefensie v. Shell. Freshfields November 6, 2024
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio
Standards for Claims of “Carbon Neutral” and “Climate Friendly”
Formosan Brothers October 4, 2024
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
CSDDD FAQs Proskauer October 4, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A) Sponsorship (B) Direct Marketing & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
Key rules are set out in the following content section B and channel section C, as applicable
Lawyer commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and self-regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or channel | Key European legislation and clauses |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
|
Electronic coms. Consent and Information |
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Shaping The Future Of Tech: Latest Updates On The Digital Markets Act
Quinn Emanuel/ Lex October 10, 2024
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
This section is longer than most. To help navigate it, some of the text is 'anchored' and linked to respective headings immediately below
THE CPR 1223/2009 AND CLAIMS REGULATION 655/2013
1.1. The CPR
1.2. The Claims Regulation Common Criteria and guidelines
1.3. Guidelines for ‘free from’ claims
1.4. Guidelines for ‘hypoallergenic’ claims
1.5. Other claims – ‘natural’ and ‘organic’
1.6. Sunscreen products
1.7. Animal testing (absence of)
3.1. Image honesty
3.2. Social responsibility. General principles
3.3. Children and young people
4.1. IAP Code key clauses
4.2. Legislation in marketing communications in Italy
5.1. Depiction of women
5.2. Product role and capabilities
5.3. Misleadingness and substantiation
5.4. Environmental claim
5.5. ‘Body shaming’
1. THE CPR 1223/2009 AND CLAIMS REGULATION 655/2013
1.1. The CPR 1223/2009
The acceptability of a claim made on a cosmetic product is determined by its compliance with the 'Common Criteria'. The 2017 (non-binding) Technical document on cosmetic claims is 'a collection of best practice for the case-by-case application of union legislation by the member-states.' Guidelines/ best practice for each of the criteria below are shown in Annex I of the technical document
1. Legal compliance
2. Truthfulness
3. Evidential support
4. Honesty
5. Fairness
6. Informed decision-making
From the Technical document on cosmetic claims agreed by the Sub-Working Group on Claims (version of 3 July 2017, as referenced above). We have assembled the specific free-from' guidance related to common criteria in a table here. Extracted is: “In the case of ‘free from’ claims, more guidance is needed for the application of the common criteria to provide an adequate and sufficient protection of consumers and professionals from misleading claims.”
Annex IV Technical document on cosmetic claims (version of 3 July 2017, per above)
The claim "hypoallergenic" can only be used in cases, where the cosmetic product has been designed to minimize its allergenic potential. The responsible person should have evidence to support the claim by verifying and confirming a very low allergenic potential of the product through scientifically robust and statistically reliable data (for example reviewing postmarketing surveillance data, etc.). This assessment should be updated continuously in light of new data. If a cosmetic product claims to be hypoallergenic, the presence of known allergens or allergen precursors should be totally avoided, in particular of substances or mixtures:
1.6. Sunscreen products Definition Any preparation (such as creams, oils, gels, sprays) intended to be placed in contact with the human skin with a view exclusively or mainly to protecting it from UV radiation by absorbing, scattering or reflecting radiation (sect. 1 (2a) CR). Therefore it applies to “primary” sun protection products such as beach, mountain or sports products. Daily protection products, such as moisturizers, with labelling of UV protection (even an SPF and/or UVA protection level) will not come under the scope of the Recommendation, as long as they do not claim "sun protection". (per Cosmetic Europe Q&A)
How Do Consumers Interpret "Reef Friendly" Claims? Frankfurt Kurnit Klein & Selz PC/ Lex. February 2023
The referenced judgements are from the U.S. courts
The EC pages on sunscreen products documentation and legislation are here. From those:
Sunscreen products are cosmetics according to Regulation (EC) No. 1223/2009. The efficacy of sunscreen products, and the basis on which this efficacy is claimed, are important public health issues. In particular:
The Recommendation on the efficacy of sunscreen products and the claims made relating to them, adopted in 2006, addresses these issues and sets out the:
No claim should be made that implies the following characteristics (point 5):
Cosmetics Europe related guidelines and recommendations
Article 20 (3) of the CPR and the accompanying guidelines from Commission Recommendation 2006/406/EC allows restricted use of claims on the absence of animal testing, relating to the development or safety evaluation of the product or its ingredients. Cosmetics Europe has argued that such a claim is obsolete, as it would transgress the Legal Compliance common criterion: that you have complied with a legal requirement can’t be the basis of a claim. As animal testing is prohibited (testing ban since 11/09/2004 and marketing ban since 11/03/2009) such a claim would be founded on a legal requirement
2. IAP CODE. Article 23, Cosmetics and Personal Hygiene Products
The September 2020 Charter and Guiding Principles on Responsible Advertising and Marketing Communications
2.2. Social responsibility
2.2.1. General principles. All cosmetic advertising and marketing communication shall comply with general provisions, concerning:
Vulnerable populations
Image honesty
4. GENERAL RULES with relevance to the cosmetics sector
The following is a ‘snapshot’ of the general rules that may be particularly relevant to cosmetics, but apply to all sectors, cosmetics included. Adjudications against cosmetics advertising are often from general misleadingness or taste and decency rules, for example. The full general rules are spelt out below under the General tab
4.1. Selected extracts from the IAP Code of Marketing Communication (EN)
On comparative advertising issues, see also article 13 Imitation, Confusion and Exploitation, and article 14 Denigration
(LD = Legislative Decree)
Relevant articles are set out under the General tab below as the rules apply to all sectors, cosmetics included
The following adjudications are taken from the IAP website under their Decisions tab. These may gradually archive; access to the archive is here; registration is required. These cases are limited in their helpfulness, as the advertising is largely not available, albeit described, and some do not include summaries of the arguments
5.1. Misleadingness July 2023 (art. 2)
Product: Anti-wrinkle cream Nivea Q10 Wrinkle Filler Serum
Advertising/ claim: “Reduces wrinkles after just 5 minutes/ targeted action against the most stubborn wrinkles”. EN version of what we take to be a European ad is here
Issue: Specific complaint not clear from the summary and probably not necessary as this is a pretty outlandish claim
Decision: Contravenes art. 2 Misleading commercial communication, art. 23 Cosmetic and personal hygiene products (see below under 5.3)
Link to case: https://www.iap.it/decisioni/pronuncia-31-2023-nivea-q10-siero-filler/
5.2. Depiction of women (art. 10)
Product: intimate hygiene product Lactacyd
Advertising: Radio spot that, according to the report of the decision, ‘plays on the many names that can be attributed to the female genitalia and invites the female audience to take care of themselves, thanks to the "detergent that celebrates your femininity.”
Issue: The expression above is repeated in the radio spot, and was the only issue under discussion among the Committee, who felt that femininity might mean rather more than the expression implied
Decision: Contravenes article 10 Marketing communication should not offend moral, civil and religious beliefs. Marketing communication should respect human dignity in every form and expression and should avoid any form of discrimination, including that of gender.
Link to case: https://www.iap.it/2018/02/n-17-18-del-19-2-2018/
5.3. Product role and capabilities (art. 23)
Product: Dermovitamina Calmilene.
Advertising: Print and website and Facebook page that references symptoms such as "... irritations, allergies, dermatitis, psoriasis",
Issue: Such references are not permitted for a cosmetic product, as these are real medical conditions.
Decision: Contravenes articles 2 (misleadingness) and 23: Marketing communication relating to cosmetics and personal hygiene products should not encourage the belief that such products have characteristics, properties or functions other than to be applied to the external parts of the human body, mouth or teeth for the exclusive or primary purpose of cleaning, freshening, changing their appearance or protecting them, in order to keep them in good condition or correcting body odours. Such marketing communication, therefore, may present these products as having additional features preventing particular pathological conditions, provided they actually contain specific ingredients or formulations with such effects; under no circumstances, however, should consumers be led to consider cosmetic or personal hygiene products as substitutes for medication, medical aids, medical devices or therapeutic treatments.
Link to case: https://www.iap.it/2018/06/n-52-18-del-1-6-2018/
5.4. Misleadingness and substantiation (arts. 2 and 23)
Product: Forhans dental line
Advertising: Print advertising that included the advertising message "Problems with your gums? Bad breath? GOODBYE bleeding gums! "
Issue: Promises such as " reduced gingival bleeding ", " goodbye bleeding gums! "," Helps to reduce gingival bleeding" appear to be likely to attribute to the product effects that transcend its cosmetic nature. The documentation provided does not justify the claims on protection of teeth and gums and the prevention of tooth decay
Decision: Contravenes articles 2 and 23 (see case above)
Link to case: https://www.iap.it/2019/02/n-11-19-del-25-2-2019/
5.5. Environmental claim (art. 12)
Product: Vitality Zero Hair colorant/ dye
Advertising: Print advertising that included the advertising message "first colour with environmental label, good with you, good with the environment”
Issue: Article 12 of the Code prohibits the use of generic claims, requiring that commercial communication in proposing an environmental benefit must “allow a clear understanding of which aspect of the product or activity advertised the claimed benefits refer to".
Decision: Contravenes articles 2 (misleadingness) and 23 (cosmetics functions) and 12 (protection of the natural environment)
Link to case: https://www.iap.it/2017/03/n-1417-del-6317/ (no longer active)
1. SELF-REGULATION; IAP Code
1.1. Fairness
1.3. Terminology/ statistical data
1.4. Testimonials
1.5. Guarantees and warranties
1.6. Substantiation
1.8. Superstition, credulity, fear
1.9. Violence, vulgarity, indecency
1.10. Moral, civil, & religious beliefs; human dignity
1.11. Children and young people
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1.12. Protection of the natural environment
1.12b. Safety
1.13 Imitation, confusion and exploitation
1.14. Denigration
1.16. Variability
2.1. Consumer Code
2.2. LD 145/2007 Comparative advertising
2.2.1. Case law and IAP rulings
2.3. Rules in audiovisual media
3. SPECIFIC CLAIM AREAS
3.1.1. Self-regulation (national)
3.1.2. International self-regulation
3.1.3. Horizontal statutory legislation
3.1.4. Commission guidance
1. SELF-REGULATION
The Code of Marketing Communication Self-Regulation IT / EN
1.2. Misleading marketing communication (Art. 2)
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1.7. Identification (Art. 7)
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See rulings from the IAP Jury regarding article 10:
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Aquilantibath.pdf
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Mobyb.pdf
http://www.g-regs.com/downloads/ITGenIAPrulingArt10Santhe.pdf
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1.15. Comparative advertising (Art. 15)
1.16. Variability (Art. 16)
Also shown above under relevant articles; the linked files are summaries in English
On 11th February 2019, IAP launched a new online database containing all the formal adjudications from 1966 to present day, with real-time updates. This new tool ‘greatly simplifies the identification of adjudications and allows users to login through different devices. The database is available through a subscription, free for the first 30 days.’
2.1. Key clauses Consumer Code
2.2. Key clauses LD 145/2007 (EN); Comparative advertising Section 4
Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
2.2.1. Case law and AGCM and IAP rulings
Case law is reported essentially verbatim; in some instances, commentary has been taken from online contributions. None of this text represents a view or guidance from GRS, but information to be interpreted as marketers, agencies, or advisors see fit
2.3. Content rules in audiovisual media
3. SPECIFIC CLAIM AREAS
3.1.1 Self-regulation (national)
Article 12 IAP Code; Protection of the Natural Environment:
Example cases:
3.1.2. International self-regulation
The ICC Advertising and Marketing Communications Code (EN) will apply, in particular:
3.1.3. 'Horizontal' legislation
The Unfair Commercial Practices Directive UCPD 2005/29/EC transposed into Italian law by the Consumer Code IT / EN (inc. 2023 amends)
3.1.4. Commission guidance
Guidance on the application of Directive 2005/29/EC on Unfair Commercial Practices December 2021, Section 4.1.1. Environmental claims
Check prices in advertising with legal advisors
3.2.1. Self-regulation
3.2.2. Legislation and key case
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
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Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
New Legislative Decree Amending The Audiovisual Media Services Code
Portolano Cavallo June 18, 2024 and GALA June 14
Inter alia, Introduces “audio-only content sharing platform service”
APPLICABLE REGULATION
AV CONTENT RULES
Chapter III, LD 208/2021, art. 43
Extracts of the more general clauses. There are also clauses related to alcohol and to gambling
General principles: audiovisual commercial communications must be readily recognisable as such; surreptitious audiovisual commercial communications are prohibited. And must not:
SPONSORSHIP
(Art. 46 of the LD)
The content and scheduling of a sponsored programme must not be influenced by the sponsor so as to affect the responsibility and editorial independence of the media service provider
PRODUCT PLACEMENT
(Art. 48 of the LD)
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
CINEMA
OUTDOOR
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
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Article B12 ICC Code Media sponsorship
This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow
Q&A: online advertising in Italy. ICT September 24, 2024
The DSA: Consequences of the use of digital advertising Dentons/ Lex Aug 30, 2022: implications for ad industry
Garante fines energy company 10 million euros (IT) Oct 23, 2023
CONTEXT AND SCOPE
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important. The IAP version is ‘advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used’.
GDPR
In the context of these channels, the influence of legislation is significant, particularly on the use of personal data. GDPR’s impact is shown under particular channel sections where relevant; in broad, if processing personal data, lawful processing rules from the GDPR now apply. For guidance, we show below the most relevant Data Protection Authority - Garante - statements, together with EU documentation
Privacy issues should be reviewed with specialist advisors
1. SELF- REGULATION
2. LEGISLATION
GUIDANCE
The Italian Data Protection Authority Garante per la protezione dei dati personali is the independent authority established by the Personal Data Protection Code as responsible for monitoring application of the GDPR
Article 29 Working Party/ EDPB
Established by Article 29 of Directive 95/46/EC, hence the name. As of May 2018 the Article 29 Working Party was replaced by the European Data Protection Board (EDPB). Nevertheless, WP29 papers/ guidelines remain valid. The 1997-2016 archive is here. Three key papers in this context are:
1.1. Key clauses self-regulation
Ad labelling/ Identification
Endorsements/ Influencers (extract from Section 2 IAP Digital Chart)
“Pubblicità/Advertising”, or
“Promosso da … brand/Promoted by … brand” or
“Sponsorizzato da … brand/Sponsored by … brand”, or
“in collaborazione con … brand/In partnership with … brand”;
2.1 Key clauses legislation and authority guidance
Invitation to purchase and advertising identification
Article 23 Consumer Code; Commercial practices which in all circumstances are misleading
Information requirements; from e-Commerce law LD 70/2003 (EN), Article 8
1. In addition to the information obligations stipulated for specific goods and services, marketing communications that constitute an information society service (Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services) or form an integral part thereof must contain specific information, from first dispatch, clearly and unequivocally, aimed at indicating:
Additionally, the service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information
Influencer Marketing: review by competition authority
The Italian Competition Authority AGCM on Influencer Marketing practices; press release July 2017 here (IT) includes a number of proposed identifiers
The authority remains active on the issue of influencer marketing and has opened proceedings November 2023 against Meta/ Instagram (IT)
Following brands in social media
Garante guidelines on promotional activity/ marketing and the fight against spam, July 4 2013 Doc. No. 2542348 IT, GRS trans EN; Garante trans EN Doc. No. 4304228. Clause 6.1 ‘Social spam'
Note: the Consent rules referenced in this documentation and below may now be impacted by lawful processing rules from the GDPR. Garante have not, however, withdrawn documentation from their website, or adapted it accordingly. As this (communication by brands in social media) is highly sensitive territory, it’s best to review the position with specialist advisors
Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety,
Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Privacy issues should be reviewed with specialist advisors
Q&A: online advertising in Italy. ICT September 24, 2024
COOKIES
Privacy Sandbox news and updates posted May 2024
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Privacy issues should be reviewed with specialist advisors
Legislation and guidance
Important Garante case GALA October 6, 2023 re permissible period for data retention indicates new stance from regulator.
Key clause
OBA
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023. Connects with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
Meta’s Ad Practices Ruled Illegal Under E.U. Law. From the NYT Jan 2023
EU Rules on Online Targeted Advertising Covington Burling Aug 2022 on existing targeted ad rules and DSA (in force Jan 2024)
Effective 19 January 2022
Profiling/ Behavioural cookies
Self-regulation
First 2 paras of this link:
ICC
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
Meta must limit data for personalised ads
BBC October 4, 2024. Hunton Oct 15
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
Applicable regulation and opinion
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
(DIRECT) ELECTRONIC COMMUNICATIONS INC SMS/MMS
LEGISLATION MOST RELEVANT TO THIS CHANNEL
GARANTE GUIDANCE
CONSENT/ EDPB GUIDANCE
KEY CLAUSES
Section 121 (m) of the DPC: electronic mail is defined as any text, voice, sound or image message sent over a public communications network, which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient
SOFT OPT-IN
GUIDELINES
Garante document Guidelines on Marketing and against Spam - 4 July 2013 [4304228]
From the Garante summary document ‘NO to Spam, YES to Consumer-Friendly Marketing’
PROMOTIONAL OFFERS AND SPAM
SIMPLIFIED RULES FOR COMPLIANT COMPANIES
AGGRESSIVE COMMERCIAL PRACTICE
Direct Marketing of Goods and Services in EU
ICLG April 2024. Clear and informative and (EN)
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable IAP Code as ‘advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used.’
CONTEXT
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the IAP Code here Definition ‘Advertising and all other forms of communication including corporate and institutional messages whose aim is to promote the sale of goods or services irregardless (sic) of the modalities (means) used, as well as forms of communication regulated by Title VI.’ (Charity appeals). Clearly, much content on owned websites won’t be advertising; for exemptions, e.g. UGC, see the EASA Recommendation linked below for some non-binding guidance. The IAP’s Digital Chart is also important in this context, as it explains disclosure/ recognisability requirements for various forms of website marcoms. Issues arise from the introduction of the GDPR: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors
SELF-REGULATION
KEY CLAUSES SELF-REGULATION
LEGISLATION AND GUIDELINES
VIRAL
Clause 6.2 Garante Guidelines on Marketing and against Spam, July 4 2013 EN:
SOCIAL MEDIA
Garante Guidelines on Marketing and against Spam, July 4 2013 Doc. No. 2542348 IT; Garante trans EN Doc. No. 4304228. Clause 6.1: Social Spam'
EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
CONTEXT
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
SELF-REGULATION
IAP Code of Marketing Communication Self-Regulation EN / IT
IAP Digital Chart IT / EN Native: in-feed units, paid search units, recommendation widgets
6) In-feed units
“Pubblicità/Advertising”, “Promosso da … brand/Promoted by … brand”
“Sponsorizzato da … brand/Sponsored by … brand”
“Contenuto Sponsorizzato/Sponsored content”
“Post Sponsorizzato/Sponsored post”
“Presentato da … brand/Presented by … brand”
7) Paid search units
8) Recommendation widgets
LEGISLATION
'Blacklist': Article 23 (1) (m) and (aa) Consumer Code LD 206/2005 EN
Misleading omission: article 22(1), (2) and 22 (5) Consumer Code
The Blacklist
Relevant extracts from the list of commercial practices which in all circumstances are misleading
Misleading omission
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
REGULATIONS MOST RELEVANT TO THIS CHANNEL
KEY CLAUSES
INVITATION TO PURCHASE
Article 22 of the Consumer Code (EN)
In the case of an invitation to purchase Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase the following information shall be regarded as material, within the meaning of paragraph (1), if not already apparent from the context:
Applicable self-regulation and legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
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Ambush marketing: the European summer of sport. Taylor Wessing May 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush. Lewis Silkin 25 Jan, 2024
Spotlight: organisation and commercialisation of sports events in Italy. Sports Generation/ Lex September 2022
from Portolano Cavallo/ Gala/ Mondaq May 9, 2022
More on the law here from Bird&Bird June 2020 and the law itself is here (IT)
B1. Principles governing sponsorship
B2. Autonomy and self-determination
B3. Imitation and confusion
B4. “Ambushing” of sponsored properties
B5. Respect for the sponsorship property and the sponsor
Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
B6. The sponsorship audience
The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
B7. Data capture/ data sharing
B8. Artistic and historical objects
B9. Social and environmental sponsorship
B10. Charities and humanitarian sponsorship
B11. Multiple sponsorship
B12. Media sponsorship
B13. Responsibility
................................................................
The European Sponsorship Association (ESA) may also be able to help/ inform
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions regulation, especially retail legislation. National Self-Regulatory codes and Consumer Protection legislation around pricing, for example, are checked for any provisions that affect SP and included under the General tab below.
Promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal
Manifestazioni a premio: nuove FAQ pubblicate dal Ministero delle Imprese e del Made in Italy
Lexia Avvocati February 28, 2024
CONTEXT
This website was created to provide international rules on marketing communications; we do not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation, or law on the mechanics and administration of promotions. Italy in particular has some intricate legislation that we show below, but which we recommend be managed/ interpreted by specialist advisors. Self-regulatory codes and consumer protection legislation relating to promotional pricing is also shown below.
Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal;
sales promotional material should observe the rules set out under the earlier content section B
LEGISLATION
Promotional pricing
See also pricing requirements under Point 3.2 in our content section B
e) 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)
f) Making an invitation to purchase products at a specified price and then:
1. Refusing to show the advertised item to consumers, or
2. Refusing to take orders for it or deliver it within a reasonable time, or
3. Demonstrating a defective sample of it with the intention of promoting a different product (bait and switch)
g) 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
Additional prize promotions legislation
Key Points/ obligations for promoters
Prize contest/ competition
Prize operation
SELF-REGULATION
From the IAP Self-Regulation Code of Marketing Communication (EN)
Article 20. Special sales
Article 21. Prize promotions
From the ICC Advertising and Marketing Communications Code (EN), Chapter A
A2. Terms of the offer
A4. Administration of promotions
In particular:
A5. Safety and suitability
A6. Presentation to consumers
Information requirements
Information should include, where relevant:
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction
COPY ADVICE
IAP (the self-regulatory body Istituto dell’Autodisciplina Pubblicitaria) provides copy advice on request and subject to a fee of 900€ + VAT for IAP members and 1.000€ + VAT for non-members. The whole list of tariffs can be found here on the IAP website.
The validity and completeness of the information, supplied with the approval of the advertisement, binds the IAP Review Board not to intervene against the approved communication. Copy advice is given within five working days, but particularly complex cases may require up to eight working days. In practice, however, the process usually takes less time. IAP can also offer an “express copy advice” within 24 hours.
The IAP website home page is http://www.iap.it
COMPLAINTS HANDLING
CLEARANCE
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
Cosmetics legislation and guidelines
CPR
.
Regulation of the European Parliament and of the Council on cosmetic products No. 1223/2009. Effective 11 July 2013, the Cosmetics Directive 76/768/EEC was replaced by Regulation 1223/2009, the Cosmetic Products Regulation CPR. Provisions aim to ensure that consumers’ health is protected and that they are well informed by monitoring the composition and labelling of products. The Regulation also provides for the assessment of product safety and the prohibition of animal testing. Article 20 prohibits any misleading advertising of cosmetic products: claims in the form of texts, names, trademarks, pictures and figurative or other signs – used in the labelling, making available on the market and advertising of cosmetic products – must not imply that these products have characteristics or functions which they do not have. Article 20 (2) required the Commission to establish common criteria for the acceptability of a claim which came in the form of Commission Regulation 655/2013 of 10 July 2013 – see below. Article 20 (3) allows use of the claim that no animal testing has been carried out.
https://eur-lex.europa.eu/eli/reg/2009/1223/oj
Common criteria
Regulation 655/2013 of 10 July 2013 laying down common criteria for the justification of claims used in relation to cosmetic products. Founded on Article 20 (2) of CPR 1233/2009, this Regulation established EU harmonised common criteria to which claims on cosmetic products must conform:
1. Legal compliance
2. Truthfulness
3. Evidential support
4. Honesty
5. Fairness and
6. Informed decision-making
The criteria are a mandatory and legally binding EU text and supersede any diverging national requirements
https://eur-lex.europa.eu/eli/reg/2013/655/oj
Guidelines common criteria
July 2013 - Guidelines to Commission Regulation (EU) No 655/2013 laying down common criteria for the justification of claims used in relation to cosmetic products. The purpose of this document is to provide guidance for the application of Commission Regulation EU No 655/2013 which lays down common criteria for the justification of claims used in relation to cosmetic products
http://www.g-regs.com/downloads/EUCosGuidelinesReg6552013.pdf
‘Free from’ guidelines
Guidelines for ‘free from’ claims. From the Technical document on cosmetic claims agreed by the Sub-Working Group on Claims (version of 3 July 2017). “In the case of ‘free from’ claims, more guidance is needed for the application of the common criteria to provide an adequate and sufficient protection of consumers and professionals from misleading claims.” Note: this is not an EC document
http://www.g-regs.com/downloads/EUCosTechDocJuly2017Freefrom.pdf
The ‘free-from' guidance related to common criteria is here
EC Cosmetics report
Report from the Commission to the European Parliament and the Council on product claims made based on common criteria in the field of cosmetics 19/9/2016
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52016DC0580
Sunscreen products
Commission recommendation 2006/647/EC of 22 September 2006 on the efficacy of sunscreen products and the claims made relating thereto. “Sunscreen product” means any preparation intended to be placed in contact with the human skin with a view exclusively or mainly to protecting it from UV radiation by absorbing, scattering or reflecting radiation (Sect. 1(2a)). From a legal point of view, these recommendations are not binding. However, because there was close collaboration between the authorities, consumer organisations and industry in drawing up the recommendations, this has become the principal document to take into account when developing or marketing sunscreen products. The Recommendation sets out examples of claims that should not be made in relation to sunscreen products (point 5), precautions that should be observed (Point 6), and usage instructions that should be recommended for some of the characteristics claimed (Points 7 and 8). Criteria for claims is outlined in Points 11-14; Claims concerning the efficacy of sunscreen products should be simple, meaningful and based on identical criteria (recital 18).
https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:265:0039:0043:en:PDF
GDPR
Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom.
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Three more recent and significant documents:
UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (the ‘Unfair Commercial Practices Directive’ – UCPD). Reference Cosmetics, the ‘common criteria’ from Regulation 655/2013 ‘should apply without prejudice to Directive 2005/29/EC’. The fairness criterion, e.g., references article 6 of the UCPD with regard to competitive claims. The relationship between the Cosmetics Regulation and the UCPD is explained in the report from the Commission to the European Parliament and the Council on product claims made based on common criteria in the field of cosmetics - linked above.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF
The entries below are those either directly connected with the Cosmetics sector, or the most relevant to that sector and reflecting references in the preceding texts. The full list of general regulations, i.e. those that apply to all categories Cosmetics included, is shown under the General tab below
Consumer protection
Consumer Code - Legislative Decree No. 206 of 6 September 2005. Entry into force 23/10/2005. The code applies to all forms of advertising regardless of the means used. Key amendments are from Legislative Decree August 2, 2007, No. 146 implementing Directive 2005/29/EC (see arts. 18-27 Consumer Code), and Legislative Decree February 21, 2014 No. 21 implementing the Consumer Rights Directive 2011/83/EC (arts. 45-67 Consumer Code). The Code provides the core legislation applicable to marcoms in Italy, covering misleading actions and omissions, e.g. ‘Invitation to Purchase’ information requirements (art.22) and the ‘blacklist’ of misleading/ aggressive commercial practices considered ‘unfair in all circumstances’ (arts. 23 and 26). Directive 2019/2161 - the Omnibus Directive - amended both the UCPD and the Product Pricing Directive PPD 98/6/EC, creating new rules in the UCPD related to the transparency of search rankings, the authenticity of consumer reviews and the consistency of international campaigns. New price reduction rules were established in the PPD. These amends were transposed (rather late in Italy) by the Legislative Decree No. 26 of March 7, 2023 (IT) into the Consumer Code and are found under articles 17, 22 and 23:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=
Unofficial non-binding GRS translation of key clauses:
http://www.g-regs.com/downloads/ITConsumerCode2023EN.pdf
Sanctions and distance selling; translation of provisions:
http://www.g-regs.com/downloads/ITConsCodeSanctsDistSellingEN.pdf
Legislative Decree No. 208/2121 of 8 November, 2021. Implementation of Directive (EU) 2018/1808 of the European Parliament and of the Council, of November 14, 2018, amending Directive 2010/13/EU, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States, concerning the consolidated act for the supply of audiovisual media services in view of changing market realities. This Decree, as it describes in the title, implements Directive 2018/1808 which amended the AVMSD 2010/13/EU, reflecting the 'digitisation' of audiovisual media in Europe and so extending scope online and in particular to video-sharing platforms (VSPS). The Decree repeals the AVMS Code (LD 177/2005) above and carries many of its provisions. For our (commercial communication) purposes, those are largely found in Chapter III - article 43 for the 'general' AV rules prohibiting discrimination, offense, protecting minors etc. and articles 46 and 48 for sponsorship and product placement. VSPS provisions are under Chapter II and require those platforms to identify commercial content where they are aware of it. Perhaps of particular relevance to the Cosmetics sector, Influencers/ vloggers may constitute an 'audiovisual media service'; definitive view from the Regulator group ERGA in their 2021 paper here.
https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:DECRETO.LEGISLATIVO:2021-11-08;208!vig= (IT)
Personal data
Legislative Decree of 30th June 2003, No. 196. Personal Data Protection Code (containing provisions for the adaptation of national law to Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals concerning the processing of personal data and the free movement of such data and repealing Directive 95/46/EC). Entry into force 01/01/2004. The Decree originally implemented Data Protection Directive 95/46/EC and Directive 2002/58/EC, the E-Privacy Directive. The Legislative Decree of 10 August 2018, No. 10 re-named the Code and applied amendments resulting from the introduction of GDPR, essentially repealing and re-structuring large sections; see link below. The core Consent rules from articles 23 and 24 are now assigned to the GDPR regime. Title X, Chapter I covers privacy in electronic communications, providing opt-in/ opt-out requirements for marketing across various channels, implementing Directive 2002/58/EC. The key article 130 is amended in some data processing aspects, but its opt-in provision remains. There is comment in Italian regulatory circles that the legitimate interest aspect of the GDPR does not seem to be addressed. See DLA Piper blog here. The regulatory authority is the Data Protection authority Garante per la protezione dei dati personali.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-06-30;196!vig= (IT)
Garante English translation (text released 22/12/21):
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9740796
Privacy/ opt-out register
Presidential Decree 7 September 2010, No. 178. Regulation establishing and managing the public register of subscribers who are opposed to the use of their phone number for sales or sales promotions. Entry into force 17/11/2010. The Presidential Decree created the public opt-out register or Register of Opposition (registro pubblico delle opposizioni as referenced in Article 130 (3-bis) of the Data Protection Code in relation to telemarketing activities, which now allows companies to make unsolicited telemarketing calls to any individual whose number is listed in a public telephone directory (electronic/ printed) provided that they have not objected by registering their telephone number on the Register. In July 2011, the opt-out system was extended to include direct mail (Decree Law 13 May 2011, No. 70). In English (Garante translation):
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1788873
Law of January 11, 2018, No. 5. New provisions on the registration and functioning of the register of oppositions and establishment of national prefixes for telephone calls for statistical, promotional and market research purposes:
www.gazzettaufficiale.it/eli/id/2018/02/03/18G00021/sg (IT)
Opt-out Register registro pubblico delle opposizioni. The Register is a 'do not call' list of telephone numbers; legal entities as well as individuals are entitled to register (see definition of subscriber in DPR). The Data Protection Authority La Garante supervises the operation of the Register as per Article 130 (3-quart) DPC, 3c in the amended version of the Code.
e-Commerce
Legislative Decree of 9th April 2003, No. 70. Entry into force 14/05/2003. Implementing Directive 2000/31/EC on certain legal aspects of information society services; known as the E-Commerce Directive. This decree applies to Information Society Service Providers (ISSP’s), defined as “any service normally provided for remuneration, at a distance, by electronic means, and at the individual request of a recipient of the service” (Art. 2 LD 70/2003). The requirement for an ISS to be “normally provided for remuneration” does not restrict scope to services giving rise to buying and selling online; the Decree also covers services that are not directly remunerated by those who receive them, such as those services offering online information. The Decree establishes information requirements for commercial communications, i.e. any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity, or exercising a regulated profession (Art. 8). Article 12 sets out information required to conclude a contract electronically, in addition to the information obligations in Articles 49 and 51 of the Consumer Code.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-04-09;70!vig=
English translation of relevant articles:
http://www.g-regs.com/downloads/ITLDApr03Ecommerce.pdf
Advertising industry codes
The IAP Self-Regulation Code of Marketing Communication, 68th edition effective February 9th, 2021. The IAP is Italy’s advertising standards authority since 1966. The Code is binding only on IAP members or separately contracted advertisers. Scope: ‘Marketing communication' is defined as any type of communication, either private or public, including advertising, used to promote the sale of goods or services irrespective of the means used. Article 23 addresses Cosmetics and Personal Hygiene Products: ‘Marketing communication relating to cosmetics and personal hygiene products should not encourage the belief that such products have characteristics, properties or functions other than to be applied to the external parts of the human body, mouth or teeth for the exclusive or primary purpose of cleaning, freshening, changing their appearance or protecting them, in order to keep them in good condition or correcting body odours. Such marketing communication, therefore, may present these products as having additional features preventing particular pathological conditions, provided they actually contain specific ingredients or formulations with such effects; under no circumstances, however, should consumers be led to consider cosmetic or personal hygiene products as substitutes for medication, medical aids, medical devices or therapeutic treatments.’
EN: http://www.iap.it/about/the-code/?lang=en
IT: http://www.iap.it/codice-e-altre-fonti/il-codice/
IAP Digital Chart
The objective of the Chart is to review the most common forms of marketing communication on the web and in the digital world in general, and to establish criteria for the recognition of marketing communications in compliance with Article 7 of the IAP Code. The forms of online communication covered in the Digital Chart include:
In Italian:
https://www.iap.it/codice-e-altre-fonti/regolamenti-autodisciplinari/regolamento-digital-chart/
IAP translation: Regulations (scroll down to the entry ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet'):
https://www.iap.it/regulations/?lang=en
International Chamber of Commerce: ICC
ICC Advertising and Marketing Communications Code 2018:
Chapter A: Sales Promotion
Chapter B: Sponsorship
Chapter C: Direct Marketing and Digital Marketing Communications
Chapter D: Environmental Claims in Marketing Communications
ICC Framework for Responsible Environmental Marketing Communications provides a general overview and guidance on 'green' claims, shows definitions of some common terms, and includes in Appendix I an Environmental Claims Checklist and in Appendix II a summary of the General Provisions of the ICC Code and those outlined in Chapter D on environmental claims, with guidance on use of environmental claims that often appear in marcoms:
https://iccwbo.org/wp-content/uploads/sites/3/2021/11/2023-ICC-Environmental-Framework-ENG.pdf (EN)
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
http://www.easa-alliance.org/members
EASA’s Best Practice Recommendation on Online Behavioural Advertising is here:
And on Digital Marketing Communications here:
And on Influencer Marketing here:
EDAA
‘The European Interactive Digital Advertising Alliance‘s principal purpose is to provide the ‘AdChoices Icon’ to companies involved in data-driven advertising across Europe. The AdChoices Icon is a consumer-facing, interactive symbol that links consumers to an online portal, YourOnlineChoices.eu, where consumers can find easy-to-understand information about data-driven advertising as well as a mechanism for exercising informed choice over tailored, personalised ads – if they so wish, consumers may ‘turn off’ personalised advertising by some or all companies.’
https://www.edaa.eu/who-we-are/edaa/
CE (Cosmetics Europe) European Charter and Guiding Principles on Responsible Advertising and Marketing Communication. September 2020. From the CE website: 'What is new in this first revision? The initial version of Cosmetics Europe’s Charter and Guiding Principles for Responsible Marketing Communications was developed at the same time as the European Commission was drafting the Common Criteria Regulation2 (CCR). Many of the principles covered by the former – such as honesty, truthfulness, claim substantiation, informed choice - are now included in the CCR, having thus become legal requirements. Therefore, the Charter and Guiding Principles for Responsible Marketing Communications were thoroughly revised to focus on self-regulatory aspects rather than maintain aspects which are now mere compliance with the law. Areas which are updated and/or addressed in further detail in this revised version are: the evolution of the digital environment / influencer marketing, advertising to vulnerable populations / children and teens, promotion of environmental benefits of products.'
See also Cosmetic Product Claims & Advertising: Compendium of applicable legislation, self-regulation, best practices and guidance (September 2020)
National cosmetics association
UNIPRO (Associazione Italiana delle Imprese Cosmetiche - Italian Association of Cosmetic Companies) was established in 1967, and currently encompasses more than 500 member companies representing more than 90% of turnover in the sector. UNIPRO has actively contributed to the establishment of rules regulating cosmetics industry. The website of the Association can be found at: http://www.unipro.org/home/it/
GDPR
Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Five more recent and significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted the Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/eli/dir/1998/6/oj
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video-sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
e-Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
Consumer protection
Consumer Code. Legislative Decree No. 206 of 6 September 2005. Entry into force 23/10/2005. The Code applies to all forms of advertising regardless of the means used. Key amendments are from Legislative Decree August 2, 2007, No. 146 implementing the Unfair commercial Practices Directive (UCPD) 2005/29/EC (see arts. 18-27 Consumer Code), and Legislative Decree February 21, 2014 No. 21 implementing the Consumer Rights Directive 2011/83/EC (arts. 45-67 Consumer Code). This is the core legislation related to marketing and advertising, covering misleadingness in the form of misleading acts and omissions and including rules on 'invitation to purchase' (art. 22) and distance selling. Directive 2019/2161 - the Omnibus Directive - amended both the UCPD and the Product Pricing Directive PPD 98/6/EC, creating new rules in the UCPD related to the transparency of search rankings, the authenticity of consumer reviews and the consistency of international campaigns. New price reduction rules were established in the PPD. These amends were transposed (rather late in Italy) by the Legislative Decree No. 26 of March 7, 2023 (IT) into the Consumer Code and are found under articles 17, 22 and 23:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206!vig=
Unofficial non-binding GRS translation:
http://www.g-regs.com/downloads/ITConsumerCode2023EN.pdf
Business protection
Legislative Decree of 2nd August 2007, No. 145. Implementing Article 14 of Directive 2005/29/EC, amending Directive 84/450/EEC on misleading advertising, now codified as Directive 2006/114/EC concerning misleading and comparative advertising. Entry into force 21/09/2007. The Decree is exclusive to the protection of businesses, as Directive 2006/114/EC applies to B2B relations. Article 4 sets out the conditions under which comparative advertising is considered lawful. The Decree covers advertising only where such advertising may harm a competitor, but does not cause direct consumer detriment. Where a consumer is affected, the Consumer Code is applicable.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2007-08-02;145!vig=
AGCM translation is here
Italian Civil Code
Royal Decree of 16 March 1942 No. 262. Approval of the text of the Civil Code. (GU 79 of 04.04.1942) Entry into force 19.4.1942:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:regio.decreto:1942-03-16;262!vig=
- Section 2250 provides the information that must be shown on websites/ emails; mirrors the provisions set out in Article 7 LD 70/2003
- Section 2598 outlines the basic principles of unfair competition and does not include any direct reference to advertising. However, practice in some case law has taken advantage of the broad definition provided in article 2598 (3) to incorporate misleading, confusing or denigrating advertising within the meaning of acts of unfair competition. In the case L’Oreal v Johnson & Johnson, comparative advertising was deemed to constitute unfair competition. Article 2598 (3) states that: “anyone commits an act of unfair competition who directly or indirectly uses any other means not in conformity with the principles of professional correctness, and able to damage another’s company”. English translation of key articles:
http://www.g-regs.com/downloads/ITCivilCode2250_2598.pdf
e-Commerce
Legislative Decree of 9th April 2003, No. 70. Entry into force 14/05/2003. Implementing Directive 2000/31/EC on certain legal aspects of information society services; known as the E-Commerce Directive. This decree applies to Information Society Service Providers (ISSP’s), defined as “any service normally provided for remuneration, at a distance, by electronic means, and at the individual request of a recipient of the service” (Art. 2 LD 70/2003). The requirement for an ISS to be “normally provided for remuneration” does not restrict scope to services giving rise to buying and selling online; the Decree also covers services that are not directly remunerated by those who receive them, such as those services offering online information. The Decree establishes information requirements for commercial communications, i.e. any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity, or exercising a regulated profession (Art. 8). Article 12 sets out information required to conclude a contract electronically.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-04-09;70!vig=
English translation of relevant articles:
http://www.g-regs.com/downloads/ITLDApr03Ecommerce.pdf
Law 20 November 2017, No. 167 Provisions for the fulfilment of the obligations deriving from Italy's membership of the European Union - European Law 2017: Entry into force 12/12/2017. (LEGGE 20 novembre 2017, No. 167 Disposizioni per l'adempimento degli obblighi derivanti dall'appartenenza dell'Italia all'Unione europea - Legge europea 2017). This ‘enabling’ law prepared for Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data:
http://www.gazzettaufficiale.it/eli/id/2017/11/27/17G00180/sg
Guidelines from the national authority
From the Italian Data Protection Authority Garante per la Protezione dei data Personali Guide on the application of EU Regulation in the matter of protection of personal data updated edition February 2018 (IT)
http://www.g-regs.com/downloads/ITGenGuidaallapplicazionedelRegolamentoUE2016_679.pdf
Personal data
Legislative Decree of 30th June 2003, No. 196. Personal Data Protection Code (containing provisions for the adaptation of national law to Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals concerning the processing of personal data and the free movement of such data and repealing Directive 95/46/EC). Entry into force 01/01/2004. The Decree originally implemented Data Protection Directive 95/46/EC and Directive 2002/58/EC, the E-Privacy Directive. The Legislative Decree of 10 August 2018, No. 10 re-named the Code and applied amendments resulting from the introduction of GDPR, essentially repealing and re-structuring large sections; see link below. The core consent rules from articles 23 and 24 are now assigned to the GDPR regime. Title X, Chapter I covers privacy in electronic communications, providing opt-in/ opt-out requirements for marketing across various channels, implementing Directive 2002/58/EC. The key section 130 is amended in some data processing aspects, but its opt-in provision remains. There is comment in Italian regulatory circles that the legitimate interest aspect of the GDPR does not seem to be addressed. See DLA Piper blog here. The regulatory authority is the Data Protection authority garante per la protezione dei dati personali; see entries below
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2003-06-30;196!vig= (IT)
English translation from Garante:
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9740796
The DPA
Note: the arrival of the GDPR created a new regime in the lawfulness of the processing of personal data. Most of the entries/ DPA decisions below were established pre GDPR. While decisions may well remain applicable (some are not impacted by GDPR, and some may anyway be consistent with GDPR), interpretation of the different aspects of decisions to different aspects of marketing communications may vary. In short, especially while this territory is somewhat uncertain, the opinion of specialist advisors should be obtained
Data Protection Authority (Garante per la protezione dei dati personali). The DPA or ‘Garante’ was established in 1997 when the former Data Protection Act came into force (675/1996). It is an independent authority set up to protect fundamental rights and freedoms in connection with the processing of personal data.
The application of EU Regulation in the matter of protection of personal data; updated edition February 2018:
http://www.g-regs.com/downloads/ITGenGuidaallapplicazionedelRegolamentoUE2016_679.pdf (IT)
Guidelines on the processing of personal data for online profiling; March 19, 2015
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/3881513 (IT)
How to lawfully email advertising messages
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1589969 (IT)
European Regulation: Guidelines for DPOs; May 24 2021
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9589388 (IT)
Guidelines for cookies and other tracking tools; June 10 2021
www.garanteprivacy.it/home/docweb/-/docweb-display/docweb/9677876 (IT)
FAQ on cookies (June 2021)
https://garanteprivacy.it/web/guest/faq/cookie
See also under the header Direct Marketing below
B2B unsolicited communications
DPA Decision 13 November 2012. This decision is on the applicability of Section 130 (Data Protection Code – LD 193/2003)) relating to protection from unsolicited marketing. It confirms that the provisions on marketing obligations are still applicable to legal entities and not only to natural persons. The decision came in response to legislative amendments (Decree Law 201/2011), which excluded legal entities from the definition of ‘data subject’ and consequently protection from unsolicited communications. Decree No. 69/2012, subsequently amended the Code to replace 'data subjects' with 'contracting parties', extending the protection to legal entities once again. Garante confirmed that while legal entities now benefit from the protection under section 130 as 'contracting parties', they remain excluded from other sections, which still refer to 'data subjects' or 'personal data'.
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2094796 IT)
Privacy/ opt-out register
Presidential Decree 7 September 2010, No. 178. Regulation establishing and managing the public register of subscribers who are opposed to the use of their phone number for sales or sales promotions. Entry into force 17/11/2010. The Presidential Decree created the public opt-out register or Register of Opposition (registro pubblico delle opposizioni as referenced in Article 130 (3-bis) of the Data Protection Code in relation to telemarketing activities, which now allows companies to make unsolicited telemarketing calls to any individual whose number is listed in a public telephone directory (electronic/ printed) provided that they have not objected by registering their telephone number on the Register. In July 2011, the opt-out system was extended to include direct mail (Decree Law 13 May 2011, No. 70). In English (Garante translation):
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1788873
Law of January 11, 2018, No. 5. New provisions on the registration and functioning of the register of oppositions and establishment of national prefixes for telephone calls for statistical, promotional and market research purposes:
www.gazzettaufficiale.it/eli/id/2018/02/03/18G00021/sg (IT)
Opt-out Register registro pubblico delle opposizioni. The Register is a 'do not call' list of telephone numbers; legal entities as well as individuals are entitled to register (see definition of subscriber in DPR). The Data Protection Authority La Garante supervises the operation of the Register as per Article 130 (3-quart) DPC, 3c in the amended version of the Code.
Legislative Decree 28 May 2012, No. 69. Amending Legislative Decree 30 June 2003, No. 196, establishing the law relating to the protection of personal data in the implementation of the Directive 2009/136/EC, which amended Article 5 (3) of Directive 2002/58/EC (E-Privacy Directive). Article 122 introduces new provisions on the use of cookies by website operators: that storing information on users’ equipment or access to information stored therein is allowed only on condition that users are informed on the use of cookies on the relevant website and that users provide their consent.
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2012-05-28;69!vig=
English translation of article 122:
https://garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/9740796
For guidance on cookies, see entries under the DPA above
Italian DPA via its decision dated 19 June 2008 (published in Italy's Official Journal no. 152 dated 1st July 2008 as well as on www.garanteprivacy.it under web document No. 1526724, link below). Re Soft Opt-in principle outlined in Art. 130 (4) of the DPC for email marketing extended to Direct mail marketing:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/1526724
Direct marketing (general)
Guidelines relating to promotional activity and combating spam: July 4th 2013 Doc. no. web. 2542348. The Guidelines lay down the first consolidated set of measures and precautions helping companies plan marketing campaigns with special focus on unsolicited marketing using social networking services (SNS), viral and targeted marketing. Doc. No. 2542348 (IT) GRS trans EN; Garante trans EN Doc No. 4304228
Section 2: Consent to processing of personal data for purposes of direct marketing. Section 6.1: Social Media and 6.2: Viral Marketing. IT:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2542348
English translation of key provisions:
http://www.g-regs.com/downloads/ITGaranteDoc2542348B.pdf
DPA Guidelines 23/07/2013 No. 2554512. 'No to spam, yes to consumer friendly marketing' (EN). Guidelines by the Garante on unsolicited commercial communications. Provides a summary of the guidelines from Doc. no. 2542348.
EN: http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2554512
IT: http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2549317
General decision: Consent to data processing for direct marketing purposes by means of traditional and automated systems. May 15, 2013 Doc. No. Web 2543820. This decision aims further to simplify the requirements applying to direct marketing. It complements Doc no. 2542348 and clarifies that consent obtained for the purposes of direct marketing by means of emails, sms, fax etc…(as per Art. 130(1&2) DPC) also covers marketing carried out by more traditional methods such as telemarketing, direct mail:
http://www.garanteprivacy.it/web/guest/home/docweb/-/docweb-display/docweb/2543820 (IT)
English translation of key provisions:
http://www.g-regs.com/downloads/ITDPADocNo2543820B.pdf
D.P.R. (Presidential Decree) No. 430 of 26 October 2001 on ‘Regulations concerning the comprehensive revision of standards governing contests, reward-based loyalty programmes and local draws pursuant to article 19 (4) of Law 449/1997 of 27 December’. The Decree regulates both prize competitions and prize operations, the two types of sales promotions with prizes that are permitted in Italy. Prize Contests (concorsi a premio) are awarded on the basis of chance (raffle) or special skill; Prize Operations (Operazioni a premio) concern the provision of prizes to each and every purchaser of a product. Prior notification to the Ministry of Economic Development (via Prima online at www.impresa.gov.it) is required.
Consumer Code LD 206/2005 (shown above under Legislation) implements the Unfair Commercial Practices Directive 2005/29/EC. Sales promotions fall within the scope of the Directive: commercial practices such as combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers are regulated by its provisions, transposed into the Consumer Code.
Note: The above selections are only two important regulations within Sales Promotions, which is a heavily regulated activity in Italy. The full list of decrees can be found here:
http://www.g-regs.com/downloads/ITGenSPcollection.pdf
The Consolidated Text on Radio and Audiovisual Media Services (Testo unico dei servizi di media audiovisivi e radiofonici), known as the AVMS Code; Legislative Decree No. 177 31st July 2005. The AVMS Directive 2007/65/EC, codified 2010/13/EC, was implemented by Legislative Decree No. 44/2010, the ‘Romani Decree’, which amended the original Broadcasting Code so as to align it to the AVMS Directive. The AVMS Code regulates TV and Radio and incorporates all audiovisual media services (linear: analogue and digital TV, live streaming, webcasting and near VOD; non-linear: VOD). The Act is enforced by the Italian Communications Authority AGCOM who adopted two regulations in 2010 which confirmed that the scope of the regulations will extend to those service providers that have editorial responsibility and an annual income in excess of €100,000; it will not include UGC portals such as Youtube, Vimeo. Consolidated text:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-07-31;177!vig
English translation of key provisions:
http://www.g-regs.com/downloads/ITLDSingle177-2005AVMSCode.pdf
Repealed by the below (art. 70)
Legislative Decree No. 208/2121 of 8 November, 2021. Implementation of Directive (EU) 2018/1808 of the European Parliament and of the Council, of November 14, 2018, amending Directive 2010/13/EU, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States, concerning the consolidated act for the supply of audiovisual media services in view of changing market realities. This Decree, as it describes in the title, implements Directive 2018/1808 which amended the AVMSD 2010/13/EU, reflecting the 'digitisation' of audiovisual media in Europe and so extending scope online and in particular to video-sharing platforms (VSPS). The Decree repeals the AVMS Code (LD 177/2005) above and carries many of its provisions. For our (commercial communication) purposes, those are largely found in Chapter III - article 43 for the 'general' AV rules prohibiting discrimination, offense, protecting minors etc. and articles 46 and 48 for sponsorship and product placement. VSPS provisions are under Chapter II and require those platforms to identify commercial content where they are aware of it. Helpful piece on the Directive from Simmons and Simmons LLP here.
https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:DECRETO.LEGISLATIVO:2021-11-08;208!vig=
Law No. 112 of 3 May 2004 (‘Gasparri Law’). Regulations establishing principles for the organisation of the radio and television system and Rai-Radiotelevisione Italiana SpA, as well as granting authority to the Government to issue a consolidated radio and television law. RAI is Italy’s national public broadcasting company; article 10 Protection of Minors in TV programmes mirrors the AVMS Code and Framework Law (125/2001), stating broadcasters must observe the Self-Regulatory Code on Media and Minors. Broadcasters are also required to apply specific measures in programming from 16.00 to 19.00 and within programmes aimed at minors. Consolidated text:
http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2004-05-03;112!vig=
The Self-Regulatory Code on Media and Minors (EN):
http://www.g-regs.com/downloads/IT_MinorsSelf-RegCodeTV.pdf
The IAP Self-Regulation Code of Marketing Communication, 68th edition effective February 9th, 2021 (Codice Di Autodisciplina Della Comunicazione Commerciale). The IAP (Istituto dell’Autodisciplina Pubblicitaria) is Italy’s advertising standards authority since 1966. Rules are enforced by the Review Board (Comitato di Controllo) and Jury (Giurì). The Code is binding only on IAP members or those advertisers otherwise contracted. Scope: The term 'marketing communication' is defined as any type of communication, either private or public, including advertising, used to promote the sale of goods or services irrespective of the means used. The Code includes general rules and behaviours to which marcoms must comply in Title I. Special Rules of the Code in Title II covers A. marcoms rules applicable to sales systems and B. specific product categories. The Code also incorporates a number of Regulations (EN), which 'form an integral part of the Code'. These include e.g. the 'Digital Chart' (see below) and in February 2021 the Regulation governing marketing communication for food products and beverages to protect children and ensure healthy eating, added in the context of amends to the AVMS Directive.
EN: http://www.iap.it/about/the-code/?lang=en
IT: http://www.iap.it/codice-e-altre-fonti/il-codice/
IAP Digital Chart
The objective of the Chart is to review the most common forms of marketing communication on the web and in the digital world in general, and to establish criteria for the recognisability of marketing communication in compliance with Article 7 of the IAP Code. The forms of online communication covered in the Digital Chart include:
Endorsements via celebrities/ influencers/ bloggers, vloggers, and UGC
Native advertising in the form of in-feed units, paid search units, and recommendations widgets
SNS
In-app advertising and
Advergames
In Italian:
https://www.iap.it/codice-e-altre-fonti/regolamenti-autodisciplinari/digital-chart/
IAP translation: scroll down to the entry ‘Digital Chart Regulations on the Recognizability of Marketing Communication Distributed over the Internet':
https://www.iap.it/regulations/?lang=en
ICC Advertising and Marketing Communications Code 2018
ICC Advertising and Marketing Communications Code 2024
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)
Chapter A: Sales Promotion
Chapter B : Sponsorship
Chapter C : Direct Marketing and Digital Marketing Communications
Chapter D : Environmental Claims in Marketing Communications
Chapter E: Children and Teens (2024 code)
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘resource guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
ICC Guide for Responsible Mobile Marketing Communications
The ICC’s Guidance on Native Advertising Is in English here:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/ (EN)
Self-Regulatory Code On Media and Minors (Codice di autoregolamentazione media e minori). The Code was signed by major public and private broadcasting companies and approved on 29 Nov 2002. The agreement was recognised by law No. 112/04 Article 10 (1) (the Gasparri Law – see earlier entry), and referenced in the AVMS Code Article 34 (6). The enactment of these statutes has made the Agreement binding on all TV broadcasters regardless of the type of platform employed (analogue, satellite, digital terrestrial, IPTV online TV). Section 4 provides rules on advertising with three levels of protection: General, Enhanced 7am-4pm and 7pm-10.30pm, and Specific 4pm-7pm
Section 4 GRS translation:
http://www.g-regs.com/downloads/IT_MinorsSelf-RegCodeTV.pdf
The Internet
Self-Regulatory Code on Internet Services (Codice di Autoregolamentazione per i Servizi Internet; ISC). Put together by AIIP, the Association of Italian Internet Providers, and Assinform, the Italian Association of Information and Communication Technology. Section 9e of the Internet Services Code specifically refers to the IAP Self-Regulatory Code of Marketing Communication. Therefore, the IAP Code will be binding on the companies that adhere to the ISC.
http://www.privacy.it/codeonprovideraiip.html
Telecoms
Asstel Telemarketing Code. Asstel is the official Employers’ Association of the telecommunication operators (fixed, mobile, internet etc.). Their Code lays out consumer protection rules in Telemarketing:
http://www.asstel.it/wp-content/uploads/2011/05/Codice-di-Condotta.pdf
English Translation:
http://www.g-regs.com/downloads/ITAsstelCode.pdf
The Italian Competition Authority (AGCM). The Competition Authority, also known as the Antitrust Authority, was established in Italy in 1990 by Law 287/1990. As of 2007, the Authority has been responsible for the protection of consumers from unfair commercial practices, as well as from all misleading advertising. In order to ensure fair market competition, it may also intervene in comparative advertising:
http://www.agcm.it/en/index.php
Italian Communications Authority (Autorità per le garanzie nelle comunicazioni) AGCOM. An independent body set up in accordance with Law No. 249 of 31 July 1997, an ‘umbrella’ authority for both the audio-visual and the telecommunications sectors. Agcom is empowered to issue regulations and guidelines for advertising in this area, usually in the form of deliberations.
DMA Italy. Association for Data Driven Marketing. The mission of DMA Italy, a member of FEDMA (see below), is to facilitate the practice of direct communication in all media channels available today (off-line, on-line, mobile, social). DMAItalia do not, as far as we can establish, publish a Code:
IAB/ Europe
IAB Italy. From their website (GT) ‘... is the Italian charter of the Interactive Advertising Bureau, the most important association in the field of digital advertising worldwide and represents the entire chain of the interactive communication market in Italy. ‘
How to Comply with EU Rules Applicable to Online Native Advertising:
https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/
IAB Transparency and Consent Framework:
https://iabeurope.eu/transparency-consent-framework/
IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)
World Federation of Advertisers: WFA
From the website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':
This is their ‘GDPR Guide for Marketers’:
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
http://www.easa-alliance.org/members
EASA’s Best Practice recommendations
Digital Marketing Communications (2023)
Online Behavioural Advertising (2021)
Influencer Marketing (2023)
FEDMA
Federation of European Direct and Interactive Marketing (FEDMA). FEDMA is the principal source of knowledge of the DM channel across Europe:
http://www.fedma.org/index.php?id=30
ESA
The European Sponsorship Association can be found at:
ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include:
This Code revision has been informed by the latest industry rules and legal developments around the world, such as in the area of consumer protection, privacy and fair competition. The Code is designed to establish a sound ethical framework to govern marketing practices worldwide based on twin goals of fostering consumer fairness and trust, and the freedom of commercial communications.' The Code is organised into General Provisions and individual chapters Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E). Translation of the code is under way as at September 2024. Earlier translations of the former (2018) code can be found here.
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)
Additional guides and frameworks (all EN)
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC Guidance on Native Advertising
ICC toolkits
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2021): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing 2023. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR networks and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Channel Regulations and Directives
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
More recent documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Privacy/ cookies
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘e-Privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions were supposed to be transposed by November 2021 and in force in member states by May 2022; some delays but all in place end 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925