Cosmetics

 

Uploaded March/April 2019.

See individual countries for updates.

 

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Netherlands

A. Overview

Sector

SECTION A OVERVIEW

 

Updates:

SRC Review March 2020

Media Act amends Dec 2020

Cosmetics Europe amends Dec 2020

New NRC links Jan 2021

ICC Environmental framework 2021 (Nov)

New Media, Telecom act links Dec 2021

Cosmetics Europe compendium Jan 2022

Media Act updates March 2022 (NL)

CvdM Influencer rules May 2022 (NL)

EN summary of the above here

Social Media & influencer Marketing Code 

Above effective July 1, 2022. EN trans

New SRC Cosmetics Code (EN) Jan 2023

And Sustainability Code (EN) Feb 2023

'Clean' marketing claims. U.S. May 2023

Bryan Cave Leighton Paisner/ Lex

Updated Field Marketing Code July 2023

Above applicable to all sectors NL / EN

Diadermine ruling re Nobel research (U; NL)

Above October 26, 2023; ad here 

Links reviewed Dec 2023; 2 links renewed

Revision of the EU Cosmetics Regulation

Obelis group March 11, 2024. EC pages here

Mineral Sunscreen Spray ruling Aug 7, 2024 (NL)

 

ISSUES/ NEWS

 

The Cosmetic Products Advertising Code is amended from January 2023. The NL versions linked take you to the correct code. An unofficial English translation is here.

From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising. The Dutch version is linked; an English translation is here

 

CONTEXT AND SCOPE 

 

These pages cover 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 registering of PIFs (Product Information Files), which type of requirements is outside our scope.

 

RULES IN THE NETHERLANDS

 

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 the Netherlands, that core is complemented by a specific self-regulatory Advertising Code for Cosmetic Products. The full picture is of three regulatory influences, as follows:

 

1. THE CPR AND COMMON CRITERIA 

 

The Cosmetic Products Regulation (CPR) 1223/2009 deals largely with product formulation, the core marcoms-related provision being from 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 AND EUROPEAN SELF-REGULATORY CODES

 

The Dutch Self-Regulatory Organisation SRC, responsible for the ’DAC’ Dutch Advertising Code (EN), include within that the Cosmetic Products Advertising Code (EN 2023) (NL 2023), provisions from which are set out in our following content section B. The code, which reflects Cosmetic Europe’s Guiding Principles on Responsible Advertising and Marketing Communication (EN; June 2020) was originally developed by the national cosmetics association NCV and is adopted and administered by SRC. As with all of SRC's regulation, the cosmetics code is closely aligned with European and national legislation. Also helpful from Cosmetics Europe is Cosmetic Product Claims & Advertising: Compendium of applicable legislation, self-regulation, best practices and guidance (September 2020)

 

3. GENERAL (ALL SECTORS) MARCOMS RULES 

 

It's important that the rules for all product sectors, shown in full below under the General tab, are also understood; adjudications against cosmetics advertising frequently come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the Dutch Advertising Code (EN). Also important in this context is SRC’s Sustainability Advertising Code (EN) which from February 2023 replaced the Environmental Advertising Code. Also significant in this territory is the ACM's (Authority for Consumers and Markets, per above) Guidelines Sustainability Claims (EN, NL here). Consumer protection/ marketing legislation in the Netherlands is provided by articles 193a-193j (EN / NL Jan 2023) Book 6 of the Dutch Civil Code, which prohibits various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 regulate comparative advertising from Directive 2006/114/EC. The earlier linked translation of Book 6 does not include the amends resulting from the Omnibus Directive 2019/2161 provisions related to search rankings and consumer surveys inter alia. Requirements are transposed in the DAC under article 8 and shown here. More in the following content section B and primarily under the General tab below.

 

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). Statutory regulation of Dutch AV media is from the 2008 Media Act (NL, Jan 2023). This act carries the content and channel rules from the AVMS Directive 2010/13/EU, recently amended by Directive 2018/1808 to extend scope into video-sharing platforms in particular, which are covered under Chapter 3a of the act. Content rules are not significantly changed - brief paper showing the Directive's amends is here;
  • While the Influencer rules that follow apply to all sectors and are therefore shown under the General tab below, as cosmetics brands are active in this territory, the following seems pertinent: in May 2022, the media authority CvdM issued Influencer rules (NL; EN summary hereInfluencers/ 'video uploaders' now deemed to come into scope of the Media Act; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons. Also see the SRC's Code below under the Online header.

 

PRIVACY

 

Data Protection is under the auspices of the independent authority Autoriteit Persoonsgegevens AP Personal data processing is now under the GDPR regime with the GDPR ‘implementing’ act in the Netherlands here (NL). The Telecommunications Act NL / EN (key clauses) Article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Details in channel section C, largely under the General tab.

 

ONLINE 

 

There are 7 channel codes within the DAC. That which may be most relevant to the cosmetics sector is the Social Media and Influencer Advertising Code (EN 2022), which covers the issue of e.g. bloggers, vloggers and/ or online content creators and their ‘Relevant Relationship’, i.e. that between the advertiser and the ‘distributor’ in return for payment or any benefit, and the various forms of disclosure that must be applied to the relationship. See above reference to CvdM Influencer rules. 

 

 

 

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General

SECTION A OVERVIEW

 

Updates since Sept 2022 (slimmed)

ACM case H&M & Decathlon (EN) Sept 2022

Influencer rules assembled by DDMA Oct 2022 (NL)

Shell CO2 offset ruling Jan 2023 SRC newsletter (NL)

Media Act January 2023 link (NL)

Sustainability Advertising Code (NL) Feb 1, 2023 

EN translation of the above here Feb 7, 2023

ACM Sustainability Guidelines (EN) June 2023

Commentary on above CMS/ Lex July 11, 2023

ACM: Clear Information on Sustainability Aug 28, 2023 (EN)

Taylor Wessing on the above and ACM guidelines Nov 6, 2023

AFM Sustainability Claims Guidelines October 2023

ING environmental advertising ruling (NL); vid here (EN)

Primark, Arla foods smackdown Taylor Wessing 

Above re green claims February 2, 2024

DLA Piper Environmental Advertising Claims Guide 

Above from August 7, 2024 includes The Netherlands

Advertising, Marketing & Promotion Comparative Guide

Hoogenraad Haak July 2, 2024. Inc Netherlands 

Mineral Sunscreen Spray ruling Aug 7, 2024 (NL)

MSC Cruises Environmental Claims. Oct 2, 2024 (EN)

Above from Maritime Exec. SRC 30/9 ruling here (NL)

Recent rulings of the Advertising Code Commission (NL)
Above from Bureau Brandeis October 4, 2024

SRC Newsletter (NL) November 7, 2024

 

ISSUES/ NEWS

 

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

The Hague world’s first city to ban fossil fuel-related ads

The UK Guardian September 13, 2024

Netherlands Media Authority fines influencer for the first time (EN)
CMS Netherlands July 17, 2024

ACM intensifies supervision of greenwashing (EN)
Maverick. June 6, 2024. Good round-up

 

SELF- REGULATION

 

Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN, which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General section contains a body of rules with which all advertising should comply. The special codes apply to advertising for specific products and services, or using specific channels; see channel header below. There is also the:

 

Children/ Young People Advertising Code (EN) and the

Sustainability Advertising Code (NL; EN Feb 2023)

 

CONSUMER AND BUSINESS PROTECTION LEGISLATION

 

Articles 193a-193j (EN; not up to date - see later entry in this para/ NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (NL / EN; amend to art. 194 here) of Section 4 regulate comparative advertising as derived from Directive 2006/114/EC. These rules are accurately reflected in the DAC referenced and linked above - see Table of Concordance under Annex 2. The Act of 30 March 2022 (NL) amends articles 193c to g of Book 6 of the Civil Code in connection with the implementation of Directive 2019/2161, providing new clauses related to search rankings and consumer reviews, also expressed in the Dutch Advertising Code (EN) under article 8. See Fake Reviews; Really Misleading from Hoogenraad & Haak advocaten/Lex March 23, 2023 which includes a significant ruling from SRC/ ACC. The statutory authority ACM - see below - is also aggressive in this space: ACM takes action against fake reviews from Bird&Bird September 23, 2024 has some examples.

 

There is a particularly active competition authority in The Netherlands; the recent work of ACM Authority for Consumers and Markets is discussed here (NL) by Maverick Advocaten/ Lex September 13, 2022. Also see environmental claims header below: 'greenwashing' is very much in the ACM's sights.

 

SELF-REG CHANNEL (I.E. PLACEMENT) RULES

 

The 7 channel codes from the DAC are: 

Code for distribution of advertisements by e-mail EN

Social Media and Influencer Advertising Code 2022 NL / EN 

Letterbox advertising, door2door sampling and direct response advertising EN

Advertising Code for the use of the postal filter 2021 EN

Code for the distribution of unaddressed printed advertisements EN and

Field Marketing Advertising Code NL (2023) EN (2023)

 

Rules from these are set out under the relevant headers in our channel section C

 

AV LEGISLATION AND AUTHORITY/ INFLUENCERS

 

Statutory regulation of Dutch audiovisual media in the Netherlands is from the 2008 Media Act (NL, Jan 2023). The linked act includes amends brought about by the 2018/1808 Directive which amends the AVMS Directive 2010/13/EU, ‘in view of changing market realities’ meaning inter alia that video-sharing platforms are now in scope of the Media Act (Chapter 3a; NL). There was some debate about the application of the rules as they relate to an ‘on-demand audiovisual media service’ and whether this definition ‘catches’ vloggers. In May 2022, the Media regulator CVDM issued New rules for video uploaders (NL summary) effective July 1, 2022. These require that influencers who are active and have more than 500,000 followers/ subscribers must register with CVDM no later than July 15 and with the Dutch SRO and NICAM. An overview of the rules is here (NL, non-binding translation here). A registration check is on the CVDM website and can be found from the preceding link. Influencer rules are 'bundled' by channel here (NL)

 

CHANNEL - DIRECT ELECTRONIC COMMUNICATIONS 

 

The Telecommunications Act (NL link is to the May 2022 version incorporating amends that prohibit unsolicited calls and abolish the 'do not call me' register) NL / EN (key clauses only) article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user. Tracking cookies are presumed to entail the processing of personal data under the DPA, meaning prior unambiguous consent of the user is required. There may also be implications from the introduction in May 2018 of the GDPR. See below. 

 

Requirements for information society services and sending of online commercial communications per Directive 2000/31/EC can be found in articles 15d and15e Book 3 Dutch Civil Code EN / NL (Nov 2022). The translated file does not reflect the latest NL link, but the clauses referenced remain in force.

 

DATA PROCESSING/ PRIVACY

 

Privacy Sandbox news and updates

DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024

 

Privacy issues should be reviewed with specialist advisors 

 

From May 25 2018, the Dutch Personal Data Protection Act was repealed in the light of Regulation 679/2016, the General Data Protection Regulation (GDPR), which repeals Directive 95/46/EC which the Dutch act transposed. The European Commission page on GDPR is here. The GDPR 'implementing' act in the Netherlands is here (NL). The Authority Autoriteit Persoonsgegevens AP supervises processing of personal data; their advice on the introduction of the GDPR is here, albeit only in Dutch at this point. Purely commercial interest also a legitimate interest? courtesy of Stibbe/ Lex July 27, 2022 reports on a significant exchange between AP and the Council of State on the subject of legitimate interest and a 'wrongly imposed' €575,000 fine on VoetbalTV.

 

SPECIFIC CLAIM AREAS 
Pricing

 

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

The case is here; Pinsent Oct 4 commentary here 

Directive 2019/2161/EU has promotional pricing rules under art. 2; see below (and above)

 

When a price is mentioned in advertising, the final/ total price should be indicated, including VAT and all other price components; see recent ‘Scooter’ case EN. The basis of this ruling was from the UCPD (per above, under consumer protection), as reflected in article 193 of the Dutch Civil Code EN. In the Netherlands, the Product Pricing Directive 98/6/EC is implemented in the Product Pricing Decree PPD NL (Jan 2023) / EN (key clauses inc. 2022 amends). Also known as the Price Labelling Regulations, they apply to advertising (Art. 5.1 PPD). With amendments from the Directive 2019/2161, the 98/6 Directive incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing, commission guidance for the application of which is here. The ACM (Authority for Consumers and Markets) addresses the issue of new rules on promotional pricing in their news item of 27/5/22 here (NL), which states that rules will come into force 'later this year' (see decree entry above); commentary on the decree, which came into force January 1 2023, is here (EN) from Maverick Advocaten NV/ Lex Feb 1. The ACM also has a note on price promotions EN and advertised prices of new cars EN and both the Dutch Advertising Code, supplemented by the SRC Check on Unfair Advertising, and the Civil Code Book 6, Section 3A, include further pricing provisions such as use of the term ‘free’ and ‘Bait and Switch’ advertising. See our following content section B for details, or the linked files.

 

Environmental claims

 

Sustainability ad code: a year's lessons Stibbe Sept 26, 2024 (NL)

Ads from Greenpeace & Weerribben Zuivel deemed misleading 

Baker McKenzie September 16, 2024 (EN)

The risks & pitfalls of sustainability ads in the Netherlands
Baker McKenzie September 16, 2024 (EN)

ACM intensifies supervision of greenwashing 
Maverick. June 6, 2024. Good round-up

Greenwashing in the spotlight - recent developments in the Netherlands

Another good round-up. Freshfields Bruckhaus Deringer April 25, 2024

 

Key legal and self-regulatory measures

The use of environmental claims in advertising may be assessed against general misleadingness legislation articles 193a-j from Book 6 of the Civil Code (EN; does not incorporate new clauses here) on unfair commercial practices (EN) and Section A (EN) of the DAC, articles 7 and 8. See also December 2021 Commission Guidance on application of the UCPD for such claims, section 4.1.1. From a specific self-regulatory perspective, the SRC’s 2023 Sustainability Advertising Code (NL / EN) applies. This is supplemented by the SRC Check: Environment and Sustainability (NL), as well as the SRC Checklist. Additional guidance on environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021), which includes an environmental claims checklist. Our following content section B for details of all of the above, or see the linked files.

 

ACM and AFM activity

The ACM (Authority for Consumers and Markets, per above) publish Guidelines Sustainability Claims (EN 2023 version; NL here), on which CMS Netherlands comment in a July 2023 article here (EN). According to Maverick Advocaten NV June 2021, ACM has asked more than 170 companies in the energy, dairy and clothing sectors to check the accuracy of their product range against the guidelines. In September 2022, clothing retailers H&M and Decathlon agreed to remove or adjust all environmental claims from their clothes and websites 'and make donations of 400,000 euros and 500,000 euros respectively to different sustainable causes to compensate for their use of unclear and insufficiently substantiated sustainability claims.' Case report from the ACM in English here and commentary from GALA here. From Stibbe/Lex January 2023 Key developments in sustainability claims in 2022 is a very good round-up of ACM activity, together with some EU context. More of ACM activity, this time in the delivery business requiring DHL and PostNL to adjust their sustainability claims (EN October 10, 2024). AFM, the authority for financial markets, published Guidelines on Sustainability Claims (EN) in October 2023 for financial institutions and pension providers.

 

SRO rulings

This August 2021 ruling (NL) from SRC against Shell is instructive; context and commentary from Jones Day here (in English), and this April 2022 ruling (NL) versus KLM's 'carbon zero' claims, which was found to have lacked sufficiently strong evidence for an 'absolute' claim, is also significant and is separately followed up in the courts under UCPD; June 2023 update here and see March 2024 entry above under Issues/ news. This case (NL) about Albert Heijn's bananas being CO2 neutral demonstrates the danger of unsupported statements. Finally, this Shell CO2 offset ruling Jan 2023 SRC newsletter (NL) to book-end the August 2021 equivalent. Not quite finally, as Chewing Gum Argument: Natural Gum Or Not? from Hoogenraad/ Haak March 23, 2023 sets out the case of Perfetti vs. Benbits with the SRO ruling and a judgement in the Amsterdam District Court. The Advertising Code Committee and Sustainability Advertising October 22, 2024 from Baker McKenzie is worth a quick read for context.

 

Global measures

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. This latter has been 'diligently developed with SROs and other associations.' On 7 October 2021, Google launched a new monetisation policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here. The ICC's Advertising and Marketing Communications Code addresses under Chapter environmental claims. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including The Netherlands. 

 

 

 

 

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Read more

International

SECTION A OVERVIEW

 

Updates since Nov 2022 (slimmed)
 

DLA Piper Global Influencer guide 

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

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

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

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

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

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

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

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

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here 

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific 

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

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

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

* Recommended read 

New ICC Code September 19, 2024

Press release here and key changes here 

 French trans November 7, 2024, SW here

 

ISSUES/ NEWS/ COMMENTARY

 

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

REP November 20, 2024

TEMU challenged by CPC network (FR)

EC Digital Fitness Check published Oct 3, 2024

Lewis Silkin on above here (scroll down)

Recycling claims mislead consumers:

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

 

AI

The AI Convention CSC Sept 12, 2024 here

EASA newsletter update AI legislation Aug 2024

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

AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024

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

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

 

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

 

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

Greenwashing in the EU, France and the UK 

Addleshaw Goddard/ Lex November 11, 2024

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

Stichting Milieudefensie v. Shell. Freshfields November 6, 2024

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

The UK Guardian September 13, 2024

 

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

 

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

 

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

 

More lawyer commentary

 

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

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

Formosan Brothers October 4, 2024

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

Katjes 'Climate Neutral' & Green Claims Globally

Herbert Smith Freehills/ Lex July 10, 2024

 

Corporate & financial reporting and due diligence

 

CSDDD FAQs Proskauer October 4, 2024

FAQs on the implementation of the EU corporate sustainability reporting rules

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

 

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

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

  

INFLUENCER MARKETING 

 

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

 

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

 

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

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

 

The USA

 

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

 

Guides Concerning the Use of Endorsements and Testimonials in Advertising

Disclosures 101 for Social Media Influencers 

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

 

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

 

India 

 

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

 

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

 

The latest ICC Code was published September 18, 2024 

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

Lawyer commentary 

Kids and Teens Online Safety and Privacy Roundtable

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

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

Collyer Bristow/Lex 21 June, 2023

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

THE DMA AND DSA IN EUROPE

 

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

 

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

Quinn Emanuel/ Lex October 10, 2024

 

DATA/ PRIVACY 

 

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

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

 

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

Data Protection update - August 2024. Stephenson Harwood/ Lex

Above covers Australia, China, EU, UK, USA

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

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

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

EDAA launches new solution to DSA ad transparency requirements

 

THE OMNIBUS DIRECTIVE

 

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

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

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

 

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

 

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

 

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

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

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

 

 

 

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Read more

B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

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

 

The Cosmetics Advertising Code was amended Jan 2023. The NL versions linked in these pages take you to the correct code. An unofficial English translation is here

From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising. The Dutch version is linked; an unofficial English translation is here

 

  1. 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)

 

  1. THE SRC COSMETICS PRODUCTS ADVERTISING CODE

 

  1. GENERAL RULES with relevance to cosmetics

3.1. DAC key clauses

3.2. DAC Sustainability code

3.3. DAC Children and minors

3.4. Comparative advertising

3.5. Legislation in marketing communications in the Netherlands

 

  1. COSMETICS EUROPE

4.1. Image honesty

4.2. Social responsibility

4.3. Children and young people

 

 

1. THE CPR 1223/2009 AND CLAIMS REGULATION 655/2013

 

1.1. The CPR 1223/2009

 

  • The CPR carries one key article specific to claims in marketing communications - Article 20. From that: 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.’
  • 3. The responsible person may refer, on the product packaging or in any document, notice, label, ring or collar accompanying or referring to the cosmetic product, to the fact that no animal tests have been carried out only if the manufacturer and his suppliers have not carried out or commissioned any animal tests on the finished cosmetic product, or its prototype, or any of the ingredients contained in it, or used any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products
  • The article also requires: ‘the Commission shall adopt a list of common criteria for claims which may be used in respect of cosmetic products, in accordance with the regulatory procedure with scrutiny referred to in Article 32(3) of this Regulation, taking into account the provisions of Directive 2005/29/EC.’ (Note: that’s the Unfair Commercial Practices Directive which we cover later and below under the General tab. All that’s being said here is that the nature of the common criteria should be consistent with ‘horizontal’ provisions in the UCPD)

 

1.2. The Claims Regulation 655/2013

 

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

 

  1. Claims that indicate that the product has been authorised or approved by a competent authority within the Union shall not be allowed
  2. The acceptability of a claim shall be based on the perception of the average end user of a cosmetic product, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors in the market in question
  3. Claims which convey the idea that a product has a specific benefit when this benefit is mere compliance with minimum legal requirements shall not be allowed

 

2. Truthfulness

 

  1. If it is claimed on the product that it contains a specific ingredient, the ingredient shall be deliberately present
  2. Ingredient claims referring to the properties of a specific ingredient shall not imply that the finished product has the same properties when it does not
  3. Marketing communications shall not imply that expressions of opinions are verified claims unless the opinion reflects verifiable evidence

 

3. Evidential support

 

  1. Claims for cosmetic products, whether explicit or implicit, shall be supported by adequate and verifiable evidence regardless of the types of evidential support used to substantiate them, including where appropriate expert assessments
  2. Evidence for claim substantiation shall take into account state of the art practices
  3. Where studies are being used as evidence, they shall be relevant to the product and to the benefit claimed, shall follow well-designed, well-conducted methodologies (valid, reliable and reproducible) and shall respect ethical considerations
  4. The level of evidence or substantiation shall be consistent with the type of claim being made, in particular for claims where lack of efficacy may cause a safety problem
  5. Statements of clear exaggeration which are not to be taken literally by the average end user (hyperbole) or statements of an abstract nature shall not require substantiation
  6. A claim extrapolating (explicitly or implicitly) ingredient properties to the finished product shall be supported by adequate and verifiable evidence, such as by demonstrating the presence of the ingredient at an effective concentration
  7. Assessment of the acceptability of a claim shall be based on the weight of evidence of all studies, data and information available depending on the nature of the claim and the prevailing general knowledge the end users

 

4. Honesty

 

  1. Presentations of a product’s performance shall not go beyond the available supporting evidence
  2. Claims shall not attribute to the product concerned specific (i.e. unique) characteristics if similar products possess the same characteristics
  3. If the action of a product is linked to specific conditions, such as use in association with other products, this shall be clearly stated

 

5. Fairness

 

  1. Claims for cosmetic products shall be objective and shall not denigrate the competitors, nor shall they denigrate ingredients legally used
  2. Claims for cosmetic products shall not create confusion with the product of a competitor

 

6. Informed decision-making

 

  1. Claims shall be clear and understandable to the average end user
  2. Claims are an integral part of products and shall contain information allowing the average end user to make an informed choice
  3. Marketing communications shall take into account the capacity of the target audience (population of relevant Member States or segments of the population, e.g. end users of different age and gender) to comprehend the communication. Marketing communications shall be clear, precise, relevant and understandable by the target audience

 

 

1.3. Guidelines/ best practice for ‘free from claims’

 

From the Technical document on cosmetic claims agreed by the Sub-Working Group on Claims (version of 3 July 2017, also 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.”

 

1.4. Guidelines/ best practice for hypoallergenic claims

 

From Annex IV Technical document on cosmetic claims  (version of 3 July 2017, as 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:

 

  • Identified as sensitizers by the SCCS or former committees assessing the safety of cosmetic ingredients
  • Identified as skin sensitizers by other official risk assessment committees
  • Falling under the classification of skin sensitizers of category 1, sub-category 1A or sub-category 1B, on the basis of new criteria set by the CLP Regulation18
  • Identified by the company on the basis of the assessment of consumer complaints
  • Generally recognized as sensitizers in scientific literature
  • For which relevant data on their sensitizing potential are missing

 

- The use of the claim 'hypoallergenic' does not guarantee a complete absence of risk of an allergic reaction and the product should not give the impression that it does

- Regarding the use of human data in risk assessment of skin sensitisation, including ethical aspects, reference should be made to the SCCS “Memorandum on use of Human Data in risk assessment of skin sensitisation”, SCCS/1567/15, 15 December 2015

- The companies should consider whether consumers, in the respective country, understand the claim 'hypoallergenic'. If necessary, further information or clarification regarding its meaning should be made available

 

1.5. Other claims - ‘natural’ and ‘organic’

 

  • As it stands, the terms ‘natural’ and ‘organic’ are not specifically regulated under cosmetics rules, although Article 20 CPR and the Common Criteria still apply as they do to all types of cosmetic product claims, whether natural/ organic or otherwise; the claim must not mislead and must be capable of substantiation. Horizontal legislation will also apply, per UCPD 2005/29/EC as transposed into Dutch law in the form of the Civil Code; see 3.5 below
  • Non-mandatory source (soft law): Natural cosmetics guidelines approved by the Council of Europe expert committee on cosmetics, which provides conditions of use of ‘natural’ claims. Despite dating back to September 2000, the guidelines continue to have some relevance in the absence of specific replacements in European law
  • That absence is part explained here: Clarification of the absence of European harmonised standard for natural and organic cosmetics from the DG Sanco (EC Health and Consumer Protection Department) pages 16/10/2015. The bottom line of that explanation is that an International Organization for Standardization (ISO) standard for natural and organic cosmetics was in the process of development. That process has now completed and been published, but findings/ conclusions do not include claims related to the terms ‘natural’ and ‘organic’
  • Cosmetics Claims: When can you claim Natural, Organic, Vegan and Non-GMO? from the Obelis Group March 2022 is helpful: from that: It is essential to highlight that there is no official regulation nor harmonized criteria on the definitions of ‘natural’, ‘organic’, and ‘vegan’. Therefore, while cosmetic product claims have to comply with the above legislation (regulations 1223/2009 & 655/2013), there is no precise interpretation of how these claims apply to products without being considered misleading. ISO 16128-2, to which this piece refers, is here 
  • There are two ‘private’ (non profit) associations who provide standards: Cosmos-Standard, and NaTrue. Further background to those organisations and their publications, and more on all of the above, has been assembled here

 

 

 

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:

 

  • Products should contain protection against all dangerous UV radiation
  • An indication of the efficacy of sunscreen products should be simple, unambiguous, and meaningful; and it should be based on standardised, reproducible criteria
  • Labels and claims should provide sufficient information to help consumers choose the appropriate product and apply it correctly

 

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:

 

  • Claims which should not be made in relation to sunscreen products
  • Precautions to be observed including application instructions
  • Minimum efficacy standard for sunscreen products in order to ensure a high level of protection of public health
  • Simple and understandable labelling to assist in choosing the appropriate product

 

Prohibited claims

 

No claim should be made that implies the following characteristics (point 5):

 

  • 100% protection from UV radiation (such as ‘sunblock’, ‘sunblocker’ or ‘total protection’);
  • No need to re-apply the product under any circumstances (such as ‘all day prevention’)

 

Efficacy claims

 

  • Claims indicating the efficacy of sunscreen products should be simple, unambiguous and meaningful and based on standardised, reproducible criteria (point 11)
  • Such claims need to be verified by the respective testing methods as outlined in Point 10 and subsequently standardised by ISO and published by European Standardisation Organisation (CEN)
  • Claims indicating UVB (Burn) and UVA (Aging) protection should be made only if the protection equals or exceeds the levels set out in Point 10, which provides for the minimum degrees of protection:

 

  • For UVB Protection Claims: SPF (Sun Protection Factor) rating must be at least 6
  • For UVA Protection Claims (including Broad Spectrum claims): a UVA protection factor should be at least 1/3 of the labelled SPF; second criterion a critical wavelength of 370 nm, as obtained in application of the critical wavelength testing method.

 

 

Cosmetics Europe related guidelines and recommendations

 

 

1.7. Animal testing (absence of)

 

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.

 

 

 

The Cosmetic Products Advertising Code is amended from January 2023. The NL versions linked take you to the correct code. An unofficial English translation is here.

Clauses will be set out below when the SRC translation is available. Meanwhile, see the linked codes (NL version below)

 

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/ (NL)

 

 

3.1. Key general clauses

 

  • Like any other sector, cosmetics marcoms must comply with the general ad rules as well as the specific cosmetics rules that have been set out above. General rules are shown in full under the General tab below. The most significant source is Section A – Dutch Advertising Code (DAC; EN). Key clauses from Section A related to misleadingness are found under article 8 (it is these provisions which e.g. some bonus conditions etc. may transgress)
  • Article 8.3 was amended late 2022 to add provisions from the Omnibus Directive 2019/2161 which address consumer surveys and search rankings:

 

  • d. When, within a website, consumers are provided with the possibility to search for products offered by different dealers, general information on the main parameters determining the ranking of products presented as a result of this search and the relative importance of those parameters, must be made available in a specific section of the online interface that is directly and easily accessible from the page where the results are presented
  • e. When an advertiser provides access to consumer reviews of products, whether and how is ensured that the published reviews originate from consumers who have actually used or purchased the product, must be explained

 

 

  • Rule 8.4 covers the requirements for an ‘invitation to purchase’ (essentially meaning when the ad provides everything a consumer needs to make a purchase) at some length; see the DAC (EN) if this is an issue for you
  • Also significant is article 11 on recognisable advertising: 11.1 An advertisement shall be recognisable as such by virtue of its layout, presentation, content or otherwise, taking into account the public for which it is intended

 

3.2. Sustainability claims

 

Sustainability Advertising Code (NL; Feb 2023)

An unofficial English translation is here 

 

3.3. DAC Children and minors

 

Code for Advertising directed at Children and Young People (EN)

 

3.4. Comparative advertising

 

Dutch Advertising Code Art.13

 

13. Comparative advertising is defined as any form of advertising in which a competitor, or goods or services provided by a competitor, are mentioned explicitly or implicitly. Comparative advertising is permitted - as far as the comparison is concerned- provided it:

 

  1. is not misleading according to the spirit of the Dutch Advertising Code
  2. Compares products or services that meet the same demands or are intended for the same purpose
  3. Compares objectively one or more essential, relevant, checkable and representative characteristics of these goods or services, such 13 as price
  4. Does not lead to the advertiser being confused with a competitor, or the brands, trademarks, other distinguishing characteristics, goods or services of the advertiser being confused with those of a competitor
  5. Does not harm the good name or make disparaging remarks about the brands, trademarks, other distinguishing characteristics, goods or services, activities or circumstances of a competitor
  6. Concerns in the case of products with a designation of origin, products with the same designation
  7. Leads to no unfair advantage resulting from the familiarity of a brand, trade name or other distinguishing characteristics of a competitor or the origin designation of competitive products; and
  8. Does not present goods or services as an imitation or copy of goods or services with a protected trademark or protected trade name. Any comparison that refers to a special offer shall indicate clearly and unambiguously the end and, should the special offer not yet apply, the beginning of the period during which the special price or other specific conditions apply, or state that the special offer continues as long as stocks last or services can be provided

 

 

3.5. Legislation in marketing communications in the Netherlands

 

  • The Dutch Advertising Code is relatively unusual in European self-regulation in that it very closely reflects legislation, word for word in most casesNevertheless, it's important to be aware of the statutory requirements as e.g. misleading environmental statements or comparative advertising cases can end up in the courts
  • The Dutch Civil Code (EN; NL Jan 2023) provides the principal statutory requirements in marcoms content issues under Section 6.3.3A Unfair commercial practices, articles 193a-j. Misleading and comparative advertising rules are under article 194. These requirements are transposed from the Unfair Commercial Practices Directive 2005/29/EC and include (under article 193g) the 'blacklist' of commercial practices that covers e.g. transparency provisions and some promotional rules 
  • Article 193e provides rules for advertising that constitutes 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 reflected in article 8.4 of the DAC
  • While the marcoms rules in the EN files linked above remain applicable, they do not include translations of the provisions related to consumer surveys, search rankings and replication of international advertising campaigns, which were introduced into the articles 193c to g of Book 6 of the Civil Code in transposition of the Omnibus Directive 2019/2161
  • Provisions are spelt out under the General tab below and anyway incorporated into the DAC under article 8.3 - see above under point 3.1. The latest (Jan 2023) Dutch version of Book 6 is here and to save you scrolling, article 193c is here
  • The Dutch Civil Code Book 3 (EN) carries the requirements of the e-Commerce Directive 2000/31/EC relating to information that should be included in an e-Commerce context. See articles 15d and 15e. While the full translation does not reflect the latest NL version of November 2022, the referenced articles in English remain in force
  • Other legislation in marcoms are primarily channel related or shown under the general rules below, albeit pricing provisions from the Product Pricing Decree may be significant for advertisers and agencies; key clauses in English here 

 

4. COSMETICS EUROPE


https://cosmeticseurope.eu/files/8716/0015/1562/Charter_and_Guiding_Principles_on_Responsible_Advertising_and_Marketing_Communications_-_1st_Revision.pdf

Or the file can be downloaded here. Also valuable is:

https://cosmeticseurope.eu/files/9516/0015/5200/Compendium_of_applicable_legislation_self-regulation_best_practices_and_guidance.pdf

 

Cosmetics Europe is a particularly active and respected trade association. Its code/ charter linked above recognises and reflects both self-regulatory (the ICC Code) and legislative influences such as the UCP Directive 2005/29/EC as well as the Cosmetics Product Regulation 1223/2009. The great majority of major advertisers will be members of the CE, therefore it’s important at minimum to be aware of these provisions. Some of the more high profile/ sensitive regulatory areas are shown below (footnotes omitted); best to read the full code as it has some significant new rules on contemporary cultural issues

 

2.2. Social responsibility

 

2.2.1. General principles. All cosmetic advertising and marketing communication shall comply with general provisions, concerning:

 
  1. Denigration: cosmetics advertising and marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule
  2. Discrimination: cosmetics advertising and marketing communications should respect human dignity and diversity. It should not incite or condone any form of discrimination, including that based upon ethnic group, national origin, religion (or no religion), gender, age, disability, lifestyle choice or sexual orientation
  3. Exploitation of credulity and inexperience: cosmetics advertising and marketing communications should not be framed so as to abuse the trust of consumers or exploit their lack of experience or knowledge
  4. Humour may be used in advertising and marketing communications in such a manner that it does not stigmatize, humiliate or undermine any person, group of persons or beliefs
  5. Lifestyle choices: cosmetic advertising and marketing communications should not be denigrating or judgmental regarding lifestyle choices that consumers choose to make
  6. Play on fear: cosmetics advertising and marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  7. Play on superstition: Marketing communications should not play on superstition
  8. Portrayal of gender: cosmetics advertising and marketing communications should not contain any sexually offensive material and should avoid any textual material or verbal statements of a sexual nature that could be degrading to those that associate themselves with any type of gender identity. Furthermore, advertising and marketing communications should not be hostile toward any gender identity
  9. Offensiveness: any statement or visual presentation likely to cause profound or widespread offence to those likely to be reached by it, irrespective of whether or not it is directly addressed to them, is not acceptable. This includes the use of shocking images or claims used merely to attract attention
  10. Taste and Decency: cosmetics advertising and marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned
  11. Violence: cosmetics advertising and marketing communications should not appear to condone or incite violent, unlawful or anti-social behaviour
  12. Safety and health: cosmetics advertising and marketing communications should not without reason, justifiable on educational or social grounds, contain any visual presentation or any description of dangerous practices or of situations which show a disregard for safety or health. Models used in advertisements and post-production techniques should not appear to promote a preferred body image of extreme thinness.
 

2.2.2. Specific principles related to respect for the human being

 
Given the possible impact that cosmetics advertising and marketing communication may have on the self-esteem of consumers, the following should be taken into consideration when using models of any gender in advertising:
 
 
  1. Do not focus on bodies and parts of bodies as objects when not relevant to the advertised product
  2. Do not stage nude models in a way that is demeaning, alienating or sexually offensive. When using nudity, the media used and the intended as well as potential audience should be considered. This also applies to any way a model may be dressed, where this may be offensive in certain cultural contexts
 

Vulnerable populations

 
  • Advertising could consider promoting the concept of hygiene and sanitary benefits of cosmetic products to children and teens, in particular sun protection products, oral care products, and cleaning products (including soap, shampoos and teenage acne coverups)
  • Advertising of decorative cosmetics and perfumes should not incite children to overuse of such products
  • Advertising of cosmetic products, including images, should not promote early sexualisation of young people
  • Advertising in social media platforms, smartphone applications or games that children or teens may be attracted to or targeted by should be considered very carefully in terms of the effects they may have.

 

Image honesty

 
Digital techniques may be used to enhance the beauty of images to convey brand personality and positioning or any specific product benefit. However, the use of pre- and post-production techniques such as styling, re-touching, lash inserts, hair extensions, etc., should abide by the following principles:
 
 
  1. The advertiser should ensure that the illustration of a performance of an advertised product is not misleading (see Product claim substantiation)
  2. Digital techniques should not alter images of models such that their body shapes or features become unrealistic and misleading regarding the performance achievable by the product
  3. Pre- and post-production techniques are acceptable provided they do not imply that the product has characteristics or functions that it does not have. For example, the following cases would not be considered misleading:
  • Using obvious exaggeration or stylized beauty images that are not intended to be taken literally
  • Using techniques to enhance the beauty of the images that are independent from the product or effect being advertised
 
 

Influencer recommendations 

 
The above recommendations are linked as they are relatively lengthy and also significant as this is sensitive territory for cosmetics marketing especially

 

 

 

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

General

SECTION B CONTENT RULES

 


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

 

1. SELF-REGULATION

1.1. Section A General rules, Dutch Advertising Code

Good taste and decency

Unfairness and misleadingness

Invitation to purchase

Identifiability

Comparative advertising 

Aggressive advertising

Blacklist: annex 1 and 2

 

1.2. Section C of the Dutch Advertising Code

Deleted by SRC as of Jan 2023

Use of ‘comparable retail value’

Superlatives, guarantees

The term ‘recommended price’

Advertising for branches

Pictures of the product 

 

1.3. Advertising Checker service from SRC

 

2. LEGISLATION

2.1. Comparative advertising

2.2. Misleading commercial practices

2.3. Invitation to purchase

2.4. The Blacklist

 

3. SPECIFIC CLAIM AREAS

3.1. Pricing

3.2. Environmental claims

 

1. SELF-REGULATION

 

Note: where the English version of the Dutch Advertising Code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full code in English is linked here 

 

 Section A. General rules

 

  • Definition of Advertising (Art. 1): any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising. Explanation of Art. 1 in full

 

Good taste and decency

 

  • Advertising must be in accordance with the law, the truth, good taste and decency (Art. 2. Explanation)
  • Advertising must not contravene the public interest, public order or good morals (Art. 3)
  • Advertising must not be gratuitously offensive or constitute a threat to mental and/or physical public health (Art. 4)
  • The form and content of advertising must not undermine confidence in advertising (Art. 5)
  • Without justifiable cause, advertising must not arouse feelings of fear or superstition (Art. 6)
     
  • This ruling, which did not uphold a complaint about a Zeeman underwear commercial, is good context
  • As is this December 2021 ruling for a G-Star jeans commercial, also not upheld 
 

 Unfairness and misleadingness

 

  • Advertising must not be unfair. Advertising is considered to be unfair if it contravenes the requirements of professional diligence, and if it materially distorts or is likely to materially distort the economic behaviour of the average consumer reached, or targeted, as regards the product. Misleading and/ or aggressive advertising is considered to be unfair in all cases (Art. 7. Explanation)
  • When assessing whether or not an advertisement is misleading, account must be taken of all its characteristics and circumstances, the factual context, the limitations of the communication medium, and the intended audience (Art. 8.1)
  • Any advertising which contains incorrect/ false information, or information that is unclear or ambiguous for the average consumer in respect of one or more of the elements as listed in points a - g hereunder, and causes or is likely to cause the average consumer to take a transactional decision that he would not have otherwise taken, is considered to be misleading (Art. 8.2):

 

  1. The existence or nature of the product
  2. The main features of the product, such as availability, benefits, risks, execution, composition, accessories, customer service and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose (suitability for use), usage, quantity, specification, geographical or commercial origin, expected results, or the results and essential characteristics of tests and controls performed on the product
  3. The extent of the obligations of the advertiser, the motives for advertising and the nature of the sales process, any statement or symbol related to direct or indirect sponsorship, or recognition/ approval of the advertiser or the product
  4. The price or the way in which the price is calculated, or the existence of a specific price advantage
  5. The need for a service, spare part (component), replacement or repair
  6. The nature, characteristics and rights of the advertiser or his agent, like for example his identity, his assets, qualifications, status, approval, affiliation, connections; ownership of industrial, commercial or intellectual property rights, or his prizes, awards and distinctions
  7. The legal rights of the consumer, including the right of replacement or refund, or the risks he might run/ face

 

  • Advertising is also regarded as misleading if 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 the following (Art. 8.3. Explanation Where the medium used for advertising involves limitations of space or time, these limitations as well as measures taken by the advertiser to make the information available to consumers by other means, shall be taken into account when deciding whether information has been omitted. Essential information consists, among other things, of all information the advertiser has to provide pursuant to the law)
     
    1. Marketing of a product in a way that could lead to confusion with a competitor’s products, trademarks, trade names and other distinguishing marks
    2. Non-compliance by the advertiser with a code of conduct by which he has undertaken to be bound, insofar as the commitment/ obligation is capable of being verified and the advertiser indicates (in advertising) that he is bound by the code of conduct
    3. Omitting, keeping hidden, or providing in an unclear, unintelligible, ambiguous or untimely manner, essential information that the average consumer needs in order to make an informed transactional decision
    4. When, within a website, consumers are provided with the possibility to search for products offered by different dealers, general information on the main parameters determining the ranking of products presented as a result of this search and the relative importance of those parameters, must be made available in a specific section of the online interface that is directly and easily accessible from the page where the results are presented
    5. When an advertiser provides access to consumer reviews of products, whether and how is ensured that the published reviews originate from consumers who have actually used or purchased the product, must be explained.

 

​Above clauses d and e added May 2022 in transposition of Directive 2019/2161

 

Invitation to purchase

 

(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)

 

  • In case an advertisement serves as an invitation to purchase, which does not relate to a distance contract or off-premises contract, the following information shall be supplied:

 

  1. The main characteristics of the product, to an extent appropriate to the medium and the product
  2. The geographical address and the identity of the advertiser, in particular, his trading/ business name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. The price including 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/ costs cannot reasonably be calculated in advance, the fact that such additional charges/ costs may be payable
  4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. For products and transactions involving a right of withdrawal/ revocation or cancellation, the existence of such a right

 

Invitation to purchase in relation to a distance or off premises contract

http://www.g-regs.com/downloads/NLGenDACArt8I2Pexp.pdf

 

  • The methods of advertising which are considered misleading under all circumstances are set out in Annex 1 (EN) of the Dutch Advertising Code (Art. 8.5. Explanation The methods of advertising referenced in Annex 1 of the Dutch Advertising Code are misleading under all circumstances. Therefore, it is not necessary to consider whether they are misleading for the average consumer, or if the economic behaviour of the average consumer is materially distorted or is likely to be materially distorted)
  • Testimonials, commendations or expert statements that are used in advertising must be based on the truth and must be in line with the latest accepted scientific views (Art. 9)
  • In advertising intended for the general public, scientific terms, statistical data and quotations shall be used with the utmost care in order to prevent/ avoid confusion of ideas. If use is made of statistics that are valid only within certain limits, such limits shall be stated clearly (Note: e.g. where statistics are based on provisional figures or for a certain period of time, these qualifications should be mentioned, otherwise it could be misleading). No technical terms, descriptions, illustrations or pictures that are manifestly intended to suggest in a quasi-scientific or misleading manner the presence of non-existent properties of goods or services, shall be used (Art. 10)

 

 Identifiable advertising 

 

  • Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
  • Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2 Explanation The term audio-visual media particularly refers to programmes broadcast on radio and TV. Subliminal techniques refer to techniques that employ inserted images and/ or sounds of very brief duration in an attempt to influence viewers or listeners, possibly without their knowledge or ability to perceive them)

 

Comparative advertising EN (Art. 13)

 

Aggressive advertising (Art. 14. Explanation Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)

 

  • Aggressive advertising is prohibited. An advertisement is considered to be aggressive in the event that, taking into account all its features and circumstances, the factual context, the limitations of the communication medium and the intended audience, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product, by means of intimidation/ harassment, coercion, including the use of physical violence, or undue influence, which thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 14.1)
  • The methods of advertising which are considered aggressive under all circumstances are listed in Annex 2 of the Dutch Advertising Code
  • At the request of the Advertising Code Committee or the Board of Appeal the advertiser must demonstrate the accuracy or fairness of the advertisement, should this be disputed for good reasons (Art. 15)
  • The Dutch Advertising Code must not only be applied according to the letter of its provisions but according to its spirit as well (Art. 16)
  • In the case of Special Advertising Codes, the General Section of the Dutch Advertising Code shall remain fully in force (Art. 17)
  • Companies as well as consumers have the right to submit a complaint about violations of the Dutch Advertising Code with the Advertising Code Authority (SRC). This means that where in this part of the General Code reference is made to consumers, corporate bodies are also covered (Art. 18)

 

Blacklist: Annex 1 and 2

 

Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances. The following blacklist clauses are added in the DAC, having been transposed May 2022 as a result of Directive 2019/2161 amends

 

  1. 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
  2. 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
  3. 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.

 

1.2. Section C of the DAC: General recommendations

 

This section was deleted from the DAC January 2023

 

The topics below are set out in full here (EN)

 

Use of words ‘comparable retail value’

Superlatives, guarantees

Use of the term ‘recommended price’

Advertising for branches

Pictures of the product 

 

1.3. Advertising Checker Service from the SRC

 

Context

 

This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc. that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information it may be best to check the Dutch version linked above

 

Taste and decency

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

Recognition of advertising

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

For guidance on identifiability across several issues/ channels, including example cases

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

Unfair advertising

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

A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair

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

 

Information requirements

Last updated by SRC 10/10/2017 NL

Key extracts in English here:

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

 

2. LEGISLATION

 

While advertising regulation is largely a self-regulatory system, legislation is influential in channel especially, but also in content. Issues of unfair commercial practices and comparative advertising can end up in the courts, so it’s best to know what the laws say, albeit they are largely echoed in self-regulation, in the Netherlands in particular

 

Applicable legislation

 

  • Articles 193a - 193j, Section 3A, Book 6 Civil Code: EN (trans does not include clauses transposed from Directive 2019/2161, available separately here / link to NL version Jan 2023). Covers unfair commercial practices, including e.g. misleading advertising and is the principal marketing legislation derived in part from the Unfair Commercial Practices Directive 2005/29/EC. Incorporates the ‘Blacklist’ of practices that are 'misleading in any circumstances' which now carries provisions related to search rankings and consumer surveys from the 2019 Directive linked above; clauses shown below
  • Articles 194 -196, Title 3, Section 4, Book 6 Civil Code (linked above; amend to art. 194 hereMisleading and comparative advertising; B2B and B2C with the exception of article 193a (2d). Similarly to the construct of Section 3A above, these rules derive from MACAD, the Misleading and Comparative Advertising Directive 2006/114/EC
  • Articles 15d, paras 1&2, and 15e para 1. Book 3 Dutch Civil Code: EN / NL (2022) covers material Information requirements in an e-Commerce context and in this case transposed from the e-Commerce Directive 2000/31/EC. The translation linked earlier does not reflect the latest NL version but the clauses concerned are anyway unchanged. We have not set those out below; see the linked files

 

2.1. Comparative advertising (Art. 194a Book 6 CC (EN))

 

1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor

2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:

 

a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g

b. It compares goods or services meeting the same needs or intended for the same purpose

c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price

d. it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor

e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor

f. For products with designation of origin, it relates in each case to products with the same designation

g. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products

h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name

 

3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply

 

2.2. Misleading commercial practices (Article 193c Book 6 CC)

 

  • A commercial practice is misleading if information is provided which is actually incorrect or which deceives or is likely to deceive the average consumer, whether or not by means of an overall presentation of the information, like with respect to (Art. 193c (1a-g):

 

  • The existence or the nature of the product
  • 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
  • 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
  • The price or the way in which the price is calculated, or the existence of a specific price advantage
  • The need for a service, part, replacement or repair
  • 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
  • The consumer's rights, including the right to repair or replace the supplied asset or the right to a price reduction, or the risks he may face

 

which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken

 

  • Paragraph 2 of the same article, found in the link to Book 6 above, provides a 'confusion with competition' clause and a code of conduct clause. Additionally, the English translation is not up-to-date with amendments from Directive 2019/2161 one of which is under this article 193c in the Jan 2023 version of Book 6 (NL): Also misleading is: 'marketing of a good in one Member State, whereby the good is presented as identical to a good marketed in other Member States, while the composition or characteristics of that good differ significantly, unless justified by legitimate and objective factors'

2.3. Misleading purchase invitation (Art. 193e Book 6 CC)

 

In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: 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 if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):

 

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

 

In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the 2023 NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 

 

2.4. The commercial practices ‘Blacklist’ EN / NL (Jan 2023)

 

  • Article 193g sets out commercial practices which are misleading in all circumstances (and therefore unfair under Article 193b (3a) Book 6 CC)
  • Art. 193i lists commercial practices which are aggressive under all circumstances (and therefore unfair under Article 193b (3b) Book 6 CC)
  • The EN version of Book 6 linked above is out of date regarding amendments from Directive 2019/2161, some shown elsewhere in this section 
  • Regarding the blacklist in particular, four clauses have been added:  

 

 

  1. providing search results in response to a consumer's online query without clearly identifying a paid advertisement or payment made specifically to rank products higher
  2. re-selling events tickets to consumers if the trader has obtained them by using automated means to circumvent any set limits on the number of tickets a person may purchase or other rules applicable to the purchase of tickets;
  3. stating that product reviews are submitted by consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that those reviews are actually from such consumers;
  4. posting or causing the posting of false consumer reviews or recommendations or misrepresenting consumer reviews or social media endorsements in order to promote products

 

3.  SPECIFIC CLAIM AREAS

 

3.1. Pricing


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

 

Applicable self-regulation

 

  • Dutch Advertising Code Section A (EN) General 
  • SRC Check for Unfair Advertising and Information Obligations - Total Price
  • Advertising Code Committee Case Kia Picanto 2012/00088 EN
  • Chairman’s Decision ‘Scooter’ Case No. 2017/00281 EN

Applicable legislation and guidance

 

Note:  the Decree under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC relating to the requirement for total/ final prices to be stated. With amendments from the Directive 2019/2161, the PPD incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing. The ACM - the Dutch consumer protection authority - has May 2022 news here (NL) and this March 2022 article from Maverick Avocaten is helpful

 

  • European Commission guidance for the application of article 6a of the Directive referenced above (PPD) is here
  • The Product Pricing Decree NL / EN (both links reflect Jan 2023 legislation) is the implementation in the Netherlands of the Product Price Directive (PPD) 98/6/EC; see article 5 of the decree in particular. Article 5a is the transposition from the PPD of new promotional pricing rules 
  • Dutch Civil Code Book 6 NL / EN (the EN trans is out of date regarding amendments from Directive 2019/2161 shown above under 2.2. to 2.4 inc. but the price-related articles we reference in this point remain applicable); title 3, Section 3A Unfair Commercial Practices articles 193b (3a); 193c (1d); 193d (1-4); and 193e (c); amend to art. 194 here
  • ACM Authority for Consumers and Markets Price Promotions note EN, albeit dated December 2016
  • Case law: Court of Justice of the European Union (CJEU) C‑476/14 (Citroën/ZLW) Judgement and AG Opinion 

 

Self-regulatory clauses

 

  • Art. 8.3 DAC: Advertising is also regarded as misleading if 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 the following:
  1. Omitting, keeping hidden, or providing in unclear, unintelligible, ambiguous or untimely manner essential information which the average consumer needs in order to make an informed transactional decision
  • Art. 8.4 DAC In the case of an invitation to purchase in advertising, which does not relate to a distance contract or off-premises contract, the following material information must be provided:
  1. The price including taxes, or where the nature of the product means that the price cannot reasonably be determined beforehand, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these costs cannot reasonably be calculated in advance, the fact that such additional costs may be payable
  • In case the medium used for advertising has its limitations in space or time, these limitations as well as the measures taken by the advertiser to supply the information in another way, will be taken into account when deciding whether information has been omitted. Essential information consists among other things of all information the advertiser has to provide pursuant to the law (explanation of article 8.3)

 

New article 8.6 Price reduction; transposed from the Directive 2019/2161 which amended the Product Pricing Directive 98/6/EC


Advertisements that mention a price reduction for a particular product, always state the lowest price that the advertiser has applied for that product prior to the promotion during a period of at least thirty days before the discount takes effect. The foregoing does not apply to goods that deteriorate or expire rapidly, for products that have been on the market for less than thirty days and for price reductions that are progressively increased, in accordance with the Product Price Indication Decree.

 

Example case: Kia Picanto EN. Extracts below

 

  • In May 2012, the Board of Appeal (CVB) of the Advertising Code Committee made an important ruling on the stated price of a Kia Picanto in a TV commercial and on the Kia website as “from” and “available from” €7,995. The complaint was that the car could not be bought for that price; there were mandatory additional costs amounting to c. €700
  • The Board ruled that this advertising constituted an invitation to purchase, which must always state the “total price” i.e. a price in which all costs are included in so far as these costs (1) can be determined in advance (2) are unavoidable and (3) are not apparent from the context of the advertisement
  • The entry-level price excluded “ready-for-use” (delivery) costs, as well as other admin charges and recycling fees. The Board ruled that these costs would have been known at the time of publication, and so should have been included in the advertised price. Because the delivery costs were considerable, and led to a "significantly higher purchase price" compared to the price quoted, the average consumer may have been enticed to make a purchase decision that he would not otherwise have taken
  • The total price not being shown was ruled to be a misleading omission under Article 8.3 (c) DAC in connection with Article 8.4 (c). The Appeal Board therefore considered the advertising to be unfair in the sense of article 7. The article Advertising shall not be dishonest. Advertising is considered to be dishonest if it contravenes the requirements of professional commitment, and if it substantially disrupts or may disrupt the economic behaviour of the average consumer reached, or targeted, as regards to the product. Misleading and/ or aggressive advertising is considered to be (by any means) dishonest

 

The Chairman’s scooter

 

The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of art. 8.4c DAC in conjunction with article 2b of the Prices Act and article 3 paragraph 1 of the Product Pricing Decree (EN)

 

Comparing prices

 

  • See article 13c and final paragraph of that article of the DAC Section A 
  • SRC Check Advice Unfair Advertising

 

Other types of pricing deception within the DAC; Annex I

 

  • Bait Advertising/ Limited Supply Offer: Offering products for a specified price without disclosing the existence of any reasonable grounds the advertiser may have for suspecting that he might not be able to supply, nor have another advertiser/ trader supply, these products or similar products at that price, for a period that is, and in quantities that are, reasonable, taking into account the product itself, the range/ scale of the advertising campaign for this product and the price offered (Pt. 5, Annex I DAC). See SRC Check advice here
  • Bait and Switch: Offering a product for a specified price and subsequently:

 

  • Refusing to show the consumer the offered product; or
  • Refusing to accept an order or refusing to deliver the product within a reasonable term; or
  • Showing a defective example of the product

 

        With the intention to promote another product (Point 6 (a-c), Annex I DAC)

 

  • Free: Describing a product as “gratis” (gratis); “free” (voor niets); “without charge/ complimentary” (kosteloos) or similar if the consumer has to pay anything other than the inevitable cost of responding to the offer and collecting or paying for delivery of the product (point 19, Annex I DAC). See SRC ‘Checker’ advice on ‘Free’ here:
    http://www.g-regs.com/downloads/NlGenSRCCheckFreeNote.pdf (EN)

 

Case law 

 

Key points from case C‑476/14 Citroën/ZLW):

 

  • Where an advertisement mentions the price of a product, the selling price must be stated; this means the final price including VAT and include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (para. 37 Citroën case). Other price components = integral parts of the final price (para. 23)

3.2. ENVIRONMENTAL CLAIMS

 

Self-regulation

 

  • Code for Environmental Advertising; Special Advertising Code, Section B: Dutch Advertising Code NL / EN
  • Sustainability Advertising Code (NL; SRC EN translation here) applicable from February 1, 2023 and replacing the Code for Environmental Advertising
  • SRC Check: Environment and Sustainability: NL

 

SRC Check: Environment and sustainability

 

The SRC are the Self-Regulatory Organisation in The Netherlands. The ‘Check’ system helps guide agencies and advertisers through the various codes. It has not yet been formally translated. The extracts below have been translated by GRS, the owners of this website. As is always the case, the applicable rules are anyway those in the original Dutch. The file here is the full Check section on Environment and sustainability. Read it if you want further background and help on environmental claims:

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

The original:

http://www.checksrc.nl/check/milieu_en_duurzaamheid/

Adjudication: File No. 2017/00812; 20/12/2017

Link no longer active; summary below

 

  • Coca-Cola published an ad “Our packaging is 100% recyclable”
  • Greenpeace filed a complaint that the advertising was misleading, in violation of Arts 2,3, and 10 of the Environmental code, and overstating something that was not unique (PET bottles are always 100% recyclable)
  • Also that CC was inferring that its bottles were 100% recycled, and that the recyclability of the packaging was of little value in practice because much packaging isn't recycled
  • The complaint was dismissed. The strapline "Our packaging is 100% recyclable" was not a suggestion by Coca-Cola of any positive differentiation from its competitors. Coca-Cola was not suggesting that its packaging was made entirely from recycled materials, as consumers appreciate the difference between recyclable and recycled
  • The Committee ruled that there were sufficient facilities available for recycling Coca-Cola packaging, so this was not simply a theoretical possibility under article 10

 

ACM Is the Dutch consumer and markets authority, a stautory body. This is a significant document from an organisation empowered to take action against companies they consider to be in breach. The linked document (above) contains some explanations of the core 'rules of thumb' below, the legal context and some relevant cases. Clauses in italics are the amends from the 2021 version. Helpful commentary from CMS Netherlands here

 

  • Rule of thumb 1: Use correct, clear, specific, and complete sustainability claims
  • Rule of thumb 2: Substantiate your sustainability claims with facts, and keep them up-todate
  • Rule of thumb 3: Make fair comparisons with other products or competitors 
  • Rule of thumb 4: Describe your future sustainability ambitions in concrete and verifiable terms
  • Rule of thumb 5: Make sure that visual claims and labels are useful to consumers, not confusing

 

European Commission guidance

 

Commission Guidance on the application of the UCPD December 2021; section 4.1.1. Environmental claims. This is an important document with definitive guidance on the application of the most important European legislation for this commercial communications context

 

Comparisons

 

Comparative environmental claims should be assessed under the criteria from the Directive on Misleading and Comparative Advertising MACAD Article 4 / Article 194a Book 6 Civil Code EN / Article 13 Dutch Advertising Code (EN). These criteria apply to advertising that compares the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things:

 

  • Not be misleading within the meaning of the UCPD (EN)
  • Compare goods or services meeting the same needs or intended for the same purpose 
  • Objectively compare one or more material, relevant, verifiable and representative features of those goods and services

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

 
  1. THE LAW 

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

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive 


 

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

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

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

 

Social responsibility (Art. 2)

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

Marketing communications should not:

 

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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

Truthfulness (Art. 5)

 

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

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

 

Substantiation (Art. 6)

 

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

 

 

Identification clauses

 

identification and transparency (Art. 7)

 

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

 

identity of the marketer (Art. 8)

 

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

 

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

 

 

Promotional terms/ dark patterns 

 

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

 

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

 

NEW ARTICLE

Presentation of the offer (Art. 11)

 

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

 

NEW ARTICLE
 Automatic renewals (Art.12)

 

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

 

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

 

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

 

Comparative and competitive 

 

Comparisons (Art. 14)​

 

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

 

Exploitation of goodwill (Art. 15)

 

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

 

Imitation (Art. 16)

 

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

 

 

Denigration (Art. 17)

 

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

 

Testimonials/ Influencers 

 

Testimonials (Art. 13)

 

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

 

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

 

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

 

 

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

 

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

 

Children/ teens 

 

NEW ARTICLE

Children and teens (Art. 20)

 

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

 

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

 

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

 

Safety and health (Art. 21)

 

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

 

NEW ARTICLE

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

 

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

 

 

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

 

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

 

D2. Honest and truthful presentation

 

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

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

 

D 2.2 Vague or general, non-specific claims 

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

 

D 2.2 Qualifications

 

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

 

D3. Scientific research

 

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

 

D4. Comparisons

 

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

 

 

D5. Product life-cycle

 

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

Article D6 – Claims regarding components and elements

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

 

D7. Certifications, signs and symbols 

 

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

 

D6. Waste handling

 

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

 

D9. Responsibility

 

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

 

 

Additional guidance

 

 

 

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

We have not set out individual clauses below, therefore. 

 

Applicable self-regulation 

 

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

 

 

 

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

 

Applicable self-regulation and legislation 

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

 

 

 

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

 

Applicable self-regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

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

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

 

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

 

Guidance 

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product;

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

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

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

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

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

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

 

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

 

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

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

 

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

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

 

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

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

 

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

 

 

ANNEX I

 

Commercial practices which are in all circumstances considered unfair 

Marcoms-relevant only; see Empco amends below

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

Article 6a

 

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

 

 

2.2.2. Extracts from UCPD re pricing

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

 

2.3.The AVMS Directive and amend 

 

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

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

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

 

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

 

Article 1

Amendments to Directive 2005/29/EC

 

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

 

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


 

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


 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

(1) the following point is inserted:

 

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

(2) the following points are inserted:
 

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

(3) the following point is inserted:

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

 

(4) the following points are inserted:
 

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

 

2.5. The Green Claims Directive 

 

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

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C: TV & RADIO/ AV

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An English translation should be available by February 8

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

TV AND RADIO AND VOD

 

  • The content rules set out in our earlier section B apply in this channel; principal cosmetics rules are from the SRC’s Cosmetic Products Advertising Code (EN) (see above) and from the EU Regulations set out in section B
  • The general content rules under the General tab in content section B, i.e. those rules that apply to all sectors, should also be observed. The principal set of general rules is from the DAC (EN)
  • The standard rules from the AVMS Directive 2010/13/EU that apply to broadcast and some online commercial communications are found in the Dutch Advertising Code and shown below under the General tab as they apply to all sectors, cosmetics included; they are also transposed in the Media Act 2008 (NL), the principal source of AV marcoms legislation in the Netherlands 
  • The channel (i.e. placement) rules that apply to all product sectors, cosmetics included, e.g. rules for sponsorship and for product placement, are set out under the General tab below 

 

 

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General

SECTION C: TV & RADIO/ AV

 

 

KEY RULES AND SOURCES 

 

  • The content rules shown in our earlier section B apply to these channels; the principal source of rules is the Dutch Advertising Code (DAC; EN)
  • The DAC is the official repository for content rules transposed from the AVMS Directive; under the terms of the Media Act 2008 (NL, Jan 2023) articles 3.6 and 2.92 for commercial and public broadcasters respectively, broadcasters are required to be affiliated with the DAC
  • The latest English version of the DAC does not reflect the amendments to content rules, albeit not really significant in this context, that Directive 2018/1808 provided to the AVMS Directive; content amends to the directive are shown here. It does now
  • The principal channel  (i.e. placement) rules in this context are from the Media Act 2008 implementing aspects of the AVMS Directive and its amendment Directive 2018/1808, e.g. rules on sponsorship and product placement 
  • There is some uncertainty around the Act’s 2020 provisions transposed from the amending Directive, the purpose of which was to recognise and address a media landscape shaped by ‘the ongoing convergence of television and internet services’ (recital 1, 2018/1808 Directive). This uncertainty manifests itself especially with regard to Influencers/ vlogging, as they can fall under the definition of a ‘media service on demand’. See this helpful piece from Field Fisher Netherlands here and a significant article from the DDMA (Data Driven Marketing Association of the Netherlands) counsel here (NL)
  • An important view on the above issue is from the regulator group ERGA whose December 2021 paper Analysis and recommendations concerning the regulation of vloggers carries an annex with national examples, which includes the Netherlands (5)
  • Meanwhile, the Dutch Media Authority (CVDM; link is to the page on the amended Media Act) supervises compliance with the Media Act 2008, issuing regulations/ guidelines related to the Act's requirements. These are linked below in their respective contexts and for our (advertising) purposes address principally product placement and sponsorship, essentially unchanged in the amended Media Act, in part because these elements are unchanged in the revised Directive
 

COMMERCIAL CHANNELS
Incorporates TV and Radio and On-demand

 

  • Arts 3.6 - 3.14 Media Act 2008 (NL March 2022) sets out the base rules for advertising/ teleshopping, 3.15 - 3.19 for sponsorship and 3.19a-c for product placement 
  • Dutch Media Authority (CVDM) regulations (these look dated but remain on the CvDM website as at January 2022):

 

CVDM Policy on advertising, commercial media organisations 2012 (EN)

CVDM Policies sponsoring commercial media organisations 2012 (EN)

CVDM regulation on product placement by commercial media institutions 2014 (EN)

 

The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here and they anyway reflect the amends to the Media Act separately conveyed

https://www.cvdm.nl/uploader/meer-weten

 

PUBLIC CHANNELS 

 

Summary

 

STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the independent agency handling advertising on Public Broadcasting's television, radio and online outlets. Advertising rules are applicable to all their media services including, for example, websites or media services on demand (Art. 2.98 Media Act). STER is affiliated to the SRC self-regulatory advertising authority and is legally obliged to observe the Dutch Advertising Code (Art. 2.92 Media Act)

 

  • Advertising is permitted, but with less frequency than on commercial channels
  • Product placement is prohibited for public broadcasting services (Art. 2.88b (3b))
  • Sponsorship is allowed in public broadcasting services under strict conditions, limited to, for example, arts and sports programmes (Arts 2.107-2.108)
  • As with commercial broadcasting, rules are a combination of requirements from the Media Act and the Media Authority’s (CVDM) regulations:

 

CVDM Policy rules on advertising for public media institutions 2019 (NL) (EN)

CVDM Policy rules for sponsorship, public media institutions 2018 (NL) (EN)

Checking for updates per above commercial amends 

 

 

 

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International

SECTION C TV/AV AND RADIO

 

 

EASA Jan 2024 update on the AVMSD

 

APPLICABLE SELF-REGULATION AND LEGISLATION

 

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

 

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

 

Article B12: Media sponsorship

 

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

LEGISLATION KEY CLAUSES 

 

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

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 

 

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2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An English translation should be available by February 8

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

  • We have been unable to trace any rules specific to Cosmetic products in these channels; the Cosmetics content rules set out in Section B, primarily from the SRC’s Cosmetic Products Advertising Code (EN) (see above) together with the advertising rules for all sectors from the DAC (EN) will apply

 

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General

SECTION C: CINEMA, PRINT, OUTDOOR

 

     

  CINEMA

 

  • Content rules set out in our earlier section B apply in cinema; the key set of rules is the Dutch Advertising Code (EN)
  • Under this ‘General’ tab, the cinema medium does not attract specific channel (i.e. placement) rules. Some regulation-sensitive product categories, such as alcohol, are subject to cinema-specific rules. See sector tabs on the WikiRegs home page
  • SAWA is the Screen Advertising World Association: http://www.sawa.com/.

 

PRINT

 

  • See Direct Postal Mail entries later in this channel section for mailshots/ print advertising in mail
  • Content rules set out in our earlier section B will apply; the key set of rules is the Dutch Advertising Code (EN)
  • Under this ‘General’ tab, the print medium does not attract specific channel rules. Some regulation-sensitive product categories, such as cars and alcohol, do have print-specific requirements. See sector tabs on the WikiRegs home page

 

OUTDOOR

 

  • Content rules set out in our earlier section B will apply
  • Under this ‘General’ tab, the outdoor medium does not attract specific channel rules. Some regulation-sensitive product categories, such as alcohol and gambling, do carry outdoor-specific requirements. See sector tabs on the home page of this website

 

 

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

 

 

 

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International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable self-regulation and legislation 

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below with 2024 amends)

 

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

 

Identification and transparency (Art. 7)

 

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

 

Identity of the marketer (Art. 8)

 

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

 

Legislation key clauses 

 

Annex I of the UCPD 

 

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

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

 

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Article B12 ICC Code Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

CONTEXT 

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channels such as email, OBA etc. follow

 

CORE RULES

 

  • While the cosmetics sector does not attract specific separate online rules, as this is a channel in which the sector will be active, we set out below some of the key rules that apply to all sectors. See under the General tab below for more
  • As the SRC and other regulators cover online marcoms (including marketers’ own websites and other online space under their control, such as social network sites) the content rules for cosmetics that are set out in section B apply to digital channels; principal cosmetics rules are from the SRC’s Cosmetic Products Advertising Code (EN) (see above) and the European Regulations 1223/2009 and 655/2013 for the ‘common criteria’ with which a cosmetic claim must comply
  • General content rules, i.e. those for all sectors, also apply. Principal source is the DAC (EN)
  • If the message online is a marketing communication, defined in the DAC as “...any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising”, it’s covered by the rules
  • SRC’s Social Media and Influencer Advertiser Code (EN 2022) is a key self-regulatory channel influence for online marcoms, covering the issue of e.g. bloggers, vloggers and/ or online content creators and their ‘Relevant Relationship’, i.e. that between the advertiser and the ‘distributor’ in return for payment or any benefit, and the various forms of disclosure that must be applied to the relationship. The code was amended July 2022 in light of the CvDM rules outlined below 
  • The code stipulates that advertising via bloggers, vloggers and content creators must be clearly recognisable as such. If a vlogger is paid by an advertiser or has received another advantage from the advertiser, this must be explicitly stated. However, if a vlogger decides to buy a product and pay attention to it, without any involvement of an advertiser (not even afterwards), then it is not advertising according to the applicable laws and regulations. More of the code is shown under the General tab below, and especially under the Marketers Own Websites header
  • While the Influencer rules that follow apply to all sectors and are therefore shown under the General tab below, as cosmetics brands are active in this territory, the following seems pertinent: in May 2022, the media authority CvdM issued Influencer rules (NL; EN summary hereInfluencers/ 'video uploaders' now deemed to come into scope of the Media Act; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons

 

IDENTIFIABILITY 

 

  • It’s a fundamental requirement of the law and Self-Regulation that advertising is identifiable as such, whether offline or online. The rule is covered by various sources, the most pertinent in this context the SRC’s article 11.1 from the DAC: 'An advertisement shall be recognizable as such by virtue of its layout, presentation, content or otherwise, taking into account the public for which it is intended.' More on Identifiability under the General tab below

 

INFORMATION REQUIREMENTS ONLINE 

 

  • Information requirements for online commercial communications are relatively complex because they can come from a variety of sources, primarily legal (though the SRC in the case of the Netherlands has this territory well covered) and cover a number of scenarios:  

 

  1. For marketing/ commercial communications that represent 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 and which do not relate to a distance contract. Requirements from the UCPD 2005/29/EC are transposed in Article 193e from Book 6 of the Dutch Civil Code (EN) or, with a translation that includes new clauses here from the Omnibus Directive 2019/2161 related to search rankings and consumer surveys, under article 8 of the DAC
  2. For electronic marketing communications that form part of, or constitute, an information society service Definition A ‘service of the information society’ is understood as any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the service without parties having been simultaneously present at the same placedirect electronic communications e.g. emails/ SMS. Rules are from article 15e (1) Book 3 Civil Code from the e-Commerce Directive 2000/31/EC, or spelt out below under the General tab
  3. The Telecommunications Act NL / EN article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Communications must include a) The true identity of the party on whose behalf the communication is made and b. a valid correspondence address or number to which the recipient can direct a request for such communication to cease
  4. The link here will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. We have translated some requirements by Group or ‘Column’ under the general tab below
  5. These rules apply to all sectors cosmetics included. General tab for full information

 

GUIDANCE 

 

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT 

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment The DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’  The impact of GDPR is shown under individual channel sections; in broad, when processing personal data lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors

 

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  • Per the introduction above, online advertising is subject to the rules set out in content section B. The key set of rules is from the Dutch Advertising Code (EN). A significant issue in online’s less structured environment is the identification of advertising, hence in this case opening with recognisability rules, but if it’s advertising, it’s in remit and therefore subject to all the rules

 

RECOGNISABILITY: SELF-REGULATION

 

  • Article 11.1 DAC: An advertisement shall be recognisable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended
  • SRC Check Recognisability NL: on the Internet, an advertisement must be easily identifiable as such. When content on websites is specifically associated with a particular product, advertising will usually be involved. Under no circumstances may the consumer be misled, for example by giving the impression that it is an ‘official‘ newsflash/ message. See case 2011/00311 

 

RECOGNISABILITY: LEGISLATION

 

  • Article 15e (1) Book 3 Civil Code (EN) from the e-Commerce Directive 2000/31/EC: Where commercial communications form part of, or constitute, an information society service Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the service without parties having been simultaneously present at the same placethe one who has instructed to use this way of communication must ensure that: 

 

  1. The commercial communication is clearly recognisable as such
  2. That his identity can be deduced from the commercial communication
  3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them
  4. That unrequested commercial communication, sent electronically, is clearly and unambiguously recognisable as such as soon as it is received by the recipient

 

  • The Dutch Civil Code Book 6 (EN; not up-to-date with May 2022 clauses; see section A Overview and section B Content), home of some commercial communication rules from the Unfair Commercial Practices Directive 2005/29/EC, includes misleading omission rules under article 193d; under article 193g - Commercial practices which are misleading in all circumstances - point v: 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; and k: 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’)
  • The Media Act (NL; Jan 2023), since its amendment as a result of Directive 2018/1808 bringing video sharing platforms into remit, is interpreted to include Influencers/ 'video uploaders' in its scope. The media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022 which require Influencers with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protetction measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration was by July 15, 2022

 

 INFORMATION REQUIREMENTS 

 

  • Dutch Advertising Code Arts 8.2, 8.3c and 8.4 for specific '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 requirements 
  • The above linked code in English does not include May 2022 rules set out in the NL version under article 8.3. and transposed from the 2019/2161 Directive requiring consumer reviews to be verified and search results to be transparent. The clauses in English are shown here  
  • SRC Check Information Obligations NL. The link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. We have also translated requirements by Group or ‘Column’, as below:

 

  1. General advertising, without price/ product
    http://www.g-regs.com/downloads/NLGenSRCCheckCol1.pdf
  2. Non digital offers (not specific to this context but to show how the versions differ)
    http://www.g-regs.com/downloads/NLGenSRCCheckCol2.pdf
  3. Digital offer (webshop)
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pdf
  4. Medium/ product
    http://www.g-regs.com/downloads/NLGenSRCCheckCol4b.pdf

 

OTHER MEASURES BY CHANNEL AND RE CONTENT CREATORS

 

  • Social Media and Influencer Advertising Code EN / NL. This code, amended July 2022 for more specific Influencer Marketing provisions in light of new rules from the media authority (CvDM; see above) sets out terms so that advertising via bloggers, vloggers and content creators generally, is clearly recognisable as such. Some clauses are set out under the Marketers’ Own Websites header following in this channel section C, or see the linked files
  • SRC Checklist: Social Media NL; EN. Social media information obligations SRC Check NL; Social media recognisability SRC Check NL
  • Social code: YouTube NL / EN The code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority CvdM
  • The SRC published in January 2021 What are the rules for fair and transparent advertising on TikTok? (NL)

 

Regulatory authorities

 

 

 INFORMATION REQUIREMENTS FROM LEGISLATION

 

  • Art. 15d Book 3 Civil Code (EN) from the e-Commerce Directive 2000/31/EC: Accessibility of data and information. See the linked file for requirements or under the Marketers’ Own Websites header later in this channel section C. Note: the information must be made ‘directly, easily and permanently accessible.’

  • The Telecommunications Act NL / EN Article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent. See provisions from the linked files or under the email header later in this channel section C. If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors

  • Article 193e from Book 6 of the Dutch Civil Code (EN) on 'Invitation to Purchase' covers information requirements for this type of advertising. Provisions are almost word-for-word per the DAC article 8.4 referenced above,  as both sources derive from the UCPD 2005/29/ECIn May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 

  • The Media Act (NL March 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider
  • Reference the above, in May 2022 the media authority CvdM published rules (NL) for 'video uploaders' as they are now considered to be in scope of the Media Act. Influencers with more than 500k followers/ subscribers and who post more than 24 videos in a calendar year must register with CvdM and with the SRC
  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024

 

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

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

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

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

Meta and self-regulation December 2023 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

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

Logan & partners/ Mondaq November 28, 2023

 

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

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

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

  •  

THE DSA AND DMA 

 

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

 

Self-regulatory clauses 

 

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

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

 

C2. Identification and transparency

 

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

 

Article C3 – Presentation of the offer
 

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

 

C2. Identity of the marketer

 

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

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

Privacy issues should be reviewed with specialist advisors

 

  • There are no cookie rules particular to cosmetic Products. The general cookie rules, applicable to all sectors, cosmetics included, are shown below under the General tab
  • Similarly, the cookies  - first or third party  - specifically deployed in OBA are addressed under the General tab. If processing personal data Definition Means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person Art. 4 GDPR lawful processing rules from the GDPR may apply. More under the General tab below
  • OBA is like any other advertising in the sense that it is subject to the self-Regulatory and statutory rules set out in our earlier content section B
  • See the General tab below for details of the self-regulatory initiative for OBA, which is underpinned by the IAB Europe OBA Framework and the EASA Best Practice Recommendation. The European Interactive Digital Advertising Alliance (EDAA) is the non-profit organisation based in Brussels responsible for enacting key aspects of the self-regulatory initiative for Online Behavioural Advertising (OBA) across Europe

 

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General

SECTION C: COOKIES AND OBA

 

 

 

COOKIES

 

Privacy Sandbox news and updates
DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024

The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 
Privacy Sandbox next steps May 18, 2023

 

  • Key statutory provision: article 11.7a Telecommunications Act (TA) NL / EN implements article 5.3 of the e-Privacy Directive 2002/58/EC, amended by Directive 2009/136/EU, aka the cookie clause
  • When cookies identify individuals, then GDPR 2016/679 lawful processing rules may apply (the above linked Telecoms Act clauses have been amended to reflect/ recognise GDPR). Privacy issues should be reviewed with specialist advisors
 

Guidance

 

 

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

EU Rules on Online Targeted Advertising Covington Burling Aug 2022 on existing targeting rules and DSA (in force January 2024)

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

Effective 19 January 2022

 

 

Self-regulation

 

  • OBA, as with any other advertising, is ‘in remit’, i.e. subject to the DAC (EN) and the other rules set out in content section B
  • Refer to the International tab for details of the self-regulatory initiative for OBA, which is underpinned by the IAB Europe OBA Framework and the EASA Best Practice Recommendation OBA 2021. The European Interactive Digital Advertising Alliance (EDAA) is the non-profit organisation responsible for enacting key aspects of the self-regulatory initiative for online behavioural advertising (OBA) across Europe
  • EDAA’s principal purpose is to licence the ‘OBA Icon’ to companies involved in online behavioural advertising across Europe; the OBA icon is a consumer-facing, interactive symbol that links consumers to an online portal, www.youronlinechoices.eu, where they can find easy-to-understand information on the practice of OBA as well as a mechanism for exercising informed choice; if they wish, consumers may ‘turn off’ OBA from some or all companies

 

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

NEWS/ COMMENTARY

 

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

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

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

Third party cookie plans for Chrome. WFA view here 

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

 

1. COOKIES

 

Applicable legislation, self-regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

Meta must limit data for personalised ads

BBC October 4, 2024. Hunton Oct 15

EDAA launches new solution to DSA ad transparency requirements

EDPB ban on Meta processing personal data for behavioural advertising

DAC Beachcroft/ Lex December 6, 2023. EDPB here

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

 

Applicable regulation and opinion

 

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European self-regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

DIRECT ELECTRONIC COMMUNICATIONS
e.g. Emails and SMS

 

  • The content rules for cosmetic products set out in our earlier section B apply in this channel, except for those rules that identify broadcast channels. The SRC’s Cosmetic Products Advertising Code (EN; 2015 code - see above) applies, with the EU regulations set out in section B 
  • The general content rules under the General tab in content section B, i.e. those rules that apply to all sectors, should also be observed. The principal set of rules is from the DAC (EN)
  • The channel (i.e. placement) rules for all sectors, cosmetics included, are shown below under the General tab. These include some significant statutory consent and information rules. In (very) brief, rules for direct electronic communications in the Netherlands do not depart significantly from the European ‘opt-in/ soft opt-in’ regime established by the e-Privacy Directive 2002/58/EC
  • If processing data that constitutes personal data, then lawful processing rules from the GDPR apply; privacy issues should be reviewed with specialist advisors
  • The other notable influence in this context is the e-Commerce Directive 2000/31/EC transposed in the Netherlands into Art. 15e (1) Book 3 Civil Code (EN). These rules require that specific information is provided by an ‘Information Society Service‘. Details under the General tab below
  • The DAC also carries a section on Email/SMS/MMS; linked here and also shown under the General tab below
 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

KEY RULES AND THEIR SOURCE 

 

  • Marketing communications via email/ SMS/ MMS are subject to the content rules set out in section B; the principal rules are from the Dutch Advertising Code (EN)
  • In this channel rules context, the main regulatory issues are from self-regulation and legislation that deals with consent and information requirements. The Code linked above is comprehensive and reflects legislation closely, so the provisions below are largely self-regulatory, though there is a collection of statutory requirements at the base of this page
  • If data processing involves personal data (that which identifies individuals), then lawful processing rules from the GDPR may apply
  • If applicable (check with advisors), the core GDPR articles on Information to be provided to data subjects and their right to object are assembled here 

 

SELF-REGULATION

 

Email code from section B of the Dutch Advertising Code EN / NL. Key points from the code (below as EC):

 

  • Opt-in consent: email advertising is in principle permitted if the recipient of the e-mail advertising has actively granted permission in advance to the database owner (1.3a EC)
  • Soft opt-in: email advertising is also in principle permitted if the database owner has obtained the email address within the scope of a sale to or donation by the recipient and is used for offering similar products or services (including asking for donations by idealistic or charitable institutions), as long as no use is made of the possibility to unsubscribe in the same way as meant in article 5 of this code (the Right to Object). The obligation will not be met solely by including either a provision in the General Terms and Conditions or a privacy statement (1.1a EC)

 

Identification 

 

  • Advertising by email must be clearly identifiable as such by layout, presentation, content or otherwise (Art. 2.1 EC)
  • The advertiser shall take care that the database owner identifies himself in each email in such a way that he is easily and actually accessible to the recipient of the email by means of the contact data of the database owner. At least his name, postal address and contact data shall be specified or an active link shall refer to these data(Art. 2.2 EC) Note: Contact details also means phone number, from case 2017/00361 in which a name, address and email address was not considered sufficient
  • The database owner must include his label in the 'From' field. At the same time, his email must contain an active reply-address in the Reply to - field, where a response will be received (Art. 2.3 EC)

 

The right to object

 

  • The advertiser must ensure that the recipient is given the opportunity, in each message, to object (to the database owner), free of charge and in a simple electronic way, to the use of his email address for the distribution of advertising messages. (Art. 5.1 EC)
  • This right of objection must be made possible in a simple, clear and preferably uniform manner. The database owner must ensure that the request is actioned immediately (Art. 5.1 EC)
  • The recipient must be given the opportunity in every instance to opt-out - as per Art. 5.1 - of receiving advertising messages for the label, product, or service for which the email address was compiled. The opt-out may cover several or all labels, products or services (Art. 5.2 EC)

 

Note: In the old B2B Email code, opt-in was not required for e-mails sent to generic addresses (i.e. info@ or sales@). No mention of this exemption in the new Email code. SRC (the Self-Regulatory Organisation for the Netherlands) state it no longer applies, meaning opt-in required for these addresses

 

LEGISLATION

 

As the self-regulatory email code is comprehensive, clauses from legislation are not spelt out in this section

 

  • The Telecommunications Act (NL; May 2022) article 11.7, which deals with cookie regulation and establishes the opt-in principle from the e-Privacy Directive 2002/58/EC; key clauses EN
  • Book 6 of the Civil Code (EN; amend to art. 194 here) carries the rules from the UCPD 2005/29/EC including misleadingness provisions and e.g. ‘invitation to purchase’ informational requirements (article 193e); this translation does not carry the May 2022 rules transposed from the 2019/2161 Directive relating to the veracity of consumer surveys and the transparency of search results; the Jan 2023 Book 6, Section 3A is here in Dutch and the relevant clauses are in English here 
  • Articles 15d and 15e of Book 3 of the Civil Code (EN) also carry identification and informational requirements, in this case in the context of e-Commerce, transposed from Directive 2000/31/EC 
  • As above, if data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors if uncertain
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

 

 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

Directive 2000/31/EC: Article 5
General information to be provided in an e-Commerce context

 

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

 

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

 

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

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

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

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

 

Section 2: Commercial communications
Article 6

 

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

 

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

 

 

Article 7
Unsolicited commercial communication

 

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

 

  • Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
  • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
    http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
  • November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • Opinion 15/2011 on the definition of consent here 
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
 
 
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6. Own Websites & SNS

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

  • These spaces are in remit in the Netherlands; that means that marketing communications, as defined in the DAC definition extracted here “any form of public and/or systematic direct or indirect commendation of goods, services and/or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising are covered by the rules
  • Exemptions include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications; the best source for understanding exemptions in this context is the EASA’s Best Practice in Digital Marketing Communications; pps 10/11
  • So the rules set out in content section B apply to marketing communications, as defined, on marketers’ own websites; principal sources are the SRC’s Cosmetic Products Advertising Code (EN) (see above) together with the EU Regulations 1223/2009 and 655/2013 for the ‘common criteria’ with which a cosmetic claim must comply and, for general rules applicable to all sectors, the DAC (EN)
  • There are no channel rules specific to owned websites and cosmetics that we have been able to trace. The bullet points Immediately below represent a snapshot of some of the key regulatory influences that apply to all sectors in this channel. For full information, see the General tab below
  • Significant rules from legislation for this channel are those for e-Commerce, transposed from Directive 2000/31/EC and found nationally under Art. 15e (1) Book 3 Civil Code (EN)
  • In this context, the core self-regulatory rules are from the SRC’s Social Media and Influencer Advertising Code (EN 2022) set out below under the General tab. The code explains how to disclose a 'relevant relationship' with content creators, e.g. bloggers/ vloggers/ influencers. The code was amended July 2022 in light of the CvdM rules outlined below
  • While the Influencer rules that follow apply to all sectors and are therefore shown under the General tab below, as cosmetics brands are active in this territory, the following seems pertinent: in May 2022, the media authority CvdM issued Influencer rules (NL; EN summary hereInfluencers/ 'video uploaders' now deemed to come into scope of the Media Act; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons.
  • ‘SRC Check’ for Information Obligations NL. The preceding link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. The specific ‘column’ requirements for digital offers/ webshops are more formally translated here:
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pdf
  • All of the references above apply to all sectors, cosmetics included, and are therefore shown in full under the General tab below together with other rules and guidelines applicable to this channel

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.

 

In the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 

 SELF-REGULATION

 

  • The Dutch Advertising Code (EN) applies; in particular in this context articles 8.2, 8.3c; Invitation to Purchase in relation to a distance contract, article 8.4 (f-s). article 11, Recognisable advertising
  • In May 2022, new clauses were introduced under article 8.3 of the DAC that transpose requirements from Directive 2019/2161 that address the transparency of search results and the veracity of consumer reviews. These provisions were also placed in legislation - in Book 6 of the Civil Code. Translations from the SRC are now completed; the relevant clauses can be found in the DAC linked above under article 8
  • ‘SRC Check’ for Information Obligations NL. The preceding link will take you to the SRC Check service, which sets out Information requirements according to the ad and the channel. The automatic translation facility provides a pretty solid gist. The specific ‘column’ requirements for digital offers/ webshops are more formally translated here:
    http://www.g-regs.com/downloads/NLGenSRCCheckCol3.pd
  • EASA’s Best Practice Recommendation Digital Marketing Communications 2023 establishes some exemptions in this context, such as User-Generated Content (unless endorsed by the marketer), under section 2 of the linked document
  • ACM, the Authority for Consumers and Markets, and the Dutch Data Protection Authority AP, have combined to produce a joint ruling on ‘Tell-a-friend’ systems on websites here (EN)
  • Email Code 2012 EN; from section B of the Dutch Advertising Code S.1.5; clauses set out in the earlier email header or from the linked code 
  • Social Media and Influencer Advertising Code 2019 (SMAC) EN / NL; set out below. Explains disclosures on 'relevant relationship' with content creators. Influencer Marketing: Active Monitoring Mandatory! from GALA/ Lex October 2021 reports that advertisers can't rely on a contractual arrangement with influencers to protect themselves, but that they must 'make an active effort to ensure that the influencer complies with the rules'
  • Social Code YouTubers NL / EN. This is a code written by YouTubers for YouTubers 

 

 

LEGISLATION

 

See linked documents for clauses. These are not set out below 

 

  • Article15d Book 3 Civil Code EN requires ‘Providers of Information Society Services’ Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the serviceto make available to users certain information about the operator and its services; transposed from the e-Commerce Directive 2000/31/EC; clauses shown below 
  • Article 193e from Book 6 of the Dutch Civil Code (EN) on Invitation to Purchase Definition 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
  • In May 2022, Paragraphs 2 and 3 have been added to the above article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 
  • If communicating with users, then personal data may be processed, which may require observation of the GDPR; equally, consent to marketing communications from the Telecommunications Act Article 11.7 (EN), which deals with cookie regulation and establishes the opt-in principle, may apply; check with advisors
  • The Media Act (NL, March 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider
  • Building on the above, the media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration was by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022
 

1.1.  Social Media and InfluencerAdvertising Code 2022 EN

 

Explanation

https://www.reclamecode.nl/social-toelichting/ (NL)

Advice tool

https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)

Guidance document

https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf (NL)

FAQs

https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)

 

Note July 2022: we are not sure whether the above have been amended in light of the update to the code itself

 

Key clauses article 3: disclosure and identifiability of ‘Relevant relationship’

 

  1. Advertising via social media must, in line with Article 11 NRC, be clearly recognisable as such 
  2. If a Distributor has a Relevant Relationship with the advertiser, this must be explicitly stated in the advertisement
  3. The requirements referred to in points a and b can be met in any event if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/ or presentation. The content and nature of the Relevant Relationship is in any event clearly recognisable if it is formulated in accordance with the suggestions in the explanation to this article (see file linked above for explanation; it's a bit lengthy to place here)

 

Manipulation ban

 

  • Modifying posts or other communications on social media in such a manner that the average consumer may be misled is prohibited (Art. 4a SMAC)
  • b. If the advertiser modifies, or has another party modify, posts or other communications on social media in order to recommend a product, service or activity, either from the advertiser or from a third party, the advertiser must disclose this in a clear and accessible manner (Art. 4b SMAC)
  • c. If posts or other communications on social media are modified, selected or compared within the context of recommending a product, either from the advertiser or from a third party, the advertiser must do everything necessary to clearly disclose the nature of the Relevant Relationship (Art. 4c SMAC)
  • The advertiser is furthermore prohibited from systematically creating and/ or using false or non-existent identities in bulk to communicate about a product and/ or service through social media. The use of fake likes and fake followers is also not allowed (Art. 4d SMAC)

 

Teasers

 

Teasers are permitted except when the teaser causes or is likely to cause the average consumer to make a decision about a transaction that he would not otherwise have made

 

Children

 

If there is advertising via social media aimed at children, the Children's and Youth Advertising Code applies in full in addition to this code and the DAC (Art. 5 SMAC)

 

Duty of care

 

1.  The Advertiser must:
 
a. Make the Distributor aware of the contents of this code;
b. Require the Distributor working on his instructions to comply with the relevant law and regulations, including the Dutch Advertising Code as well as this Code
c. If the Distributor is permitted to use third parties: to draw the Distributor’s attention to the fact that such third parties must also comply with the obligations referred to in b
d. Actively endeavour to hold the Distributor to the obligations cited in b. and c. and actively to take measures against transgressions referenced in b. and c
 
2. The Advertiser cannot excuse himself/ herself from the obligations referenced in 1 based simply on the fact that the Distributor does not respect the instruction
3. If the Advertiser has complied with the obligations above, the Advertiser has made the best efforts that can reasonably be expected to ensure that Distributors comply with the rules
4. The Advertiser and Distributor each bear their own responsibility for compliance with Articles 3, 4 and 5 of this Code. When a complaint is accepted, the Advertising Code Committee and, on appeal, the Board of Appeal, can designate the party to which non-compliance with this Code can be attributed

 

Example case (Identification)

 

https://www.reclamecode.nl/cases-uit-de-praktijk-van-de-nederlandse-reclame-code/chips-maken-bij-de-boer/

 

YouTubers Code NL / EN website:

 

www.desocialcode.nl

 

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The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)

 

 

 

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International

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

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

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

 

Standard rules

 

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

 

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

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
Directive 2000/31/EC on e-Commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 
Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by community law, member states which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, member states shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

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

 

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

 

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

 
Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

  1. INSTAGRAM 
  1. TWITTER:
  1. YOUTUBE: advertiser friendly content guidelines here:
  1. SNAPCHAT:
  1. GOOGLE +
  1. TIK TOK

 

 

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7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

KEY RULES

 

  • There are no native rules particular to cosmetic products. The general native rules, applicable to all sectors, cosmetics included, are shown below under the General tab. The key rule in this context is that of identification of advertising from article 11.1 of the DAC (EN) ‘An advertisement shall be recognizable as such by virtue of its layout, presentation, content or otherwise, taking into account the public for which it is intended.’
  • One of the commercial practices that comprise the ‘Blacklist’ from the UCPD 2005/29/EC, i.e. commercial practices that are ‘unfair/ misleading in all circumstances’, is transposed into Book 6 of the Dutch Civil Code (EN) article 193g, clause k: ‘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’)
  • Otherwise, native is like any other advertising in the sense that it is subject to the self-regulatory and statutory rules set out in our earlier content section B. Principal sources are the SRC’s Cosmetic Products Advertising Code (see above) together with the EU Regulations 1223/2009 and 655/2013 for the ‘common criteria’ with which a cosmetic claim must comply and, for 'general' rules applicable to all sectors, the DAC (EN)

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier content section B, primarily those from the Dutch Advertising Code (EN - translation does not include May 2022 clauses here)

 

SELF-REGULATION 

 

  • Article 11 Recognisability of advertising. Dutch Advertising Code (DAC) Section A (EN)
  • Art. 8.5 DAC; Annex 1 points 10 and 21
  • SRC Check: Unfair advertising
  • Case example: file number 2014/00327 NL, re an article on www.voetbalzone.nl about football matches and winning chances, which turned out to be advertising for Unibet, while it was presented as editorial content

 

Identifiable/ recognisable as advertising (Art. 11)

 
  • Advertising must be identifiable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended (Art. 11.1)
  • Advertising in audio-visual media must be clearly distinct from the rest of the programming by optical and/ or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it. The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited (Art. 11.2)

 

SRC Check: Unfair advertising - always unfair: Blacklist NL

 

  • Advertising in editorial articles (Native). An advertorial should also be easily recognisable as advertising. If advertising is paid for and not recognisable as advertising, that is by definition a violation of number 10 of the blacklist of Annex 1 of the DAC (see below). If the word 'advertorial' (advertorial) or 'advertisement' (advertentie) is sufficiently clear with the piece, or the consumer is otherwise sufficiently clearly informed that the piece contains advertising, then it is permitted
 

Blacklist: Misleading under all circumstances and thus unfair advertising under Article 7 DAC

 

  • Annex 1: Advertising is considered misleading under all circumstances in the event of:
     
    • 10. Using editorial content in the media to promote a product, where the advertiser has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)
    • 21. Falsely claiming or creating the impression that the advertiser is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

LEGISLATION

 

As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause

 

  • Article 15 (e) (1) Book 3 Civil Code; requirements for online commercial communications EN
  • Article 193g (k) and (v) Book 6 Civil Code. Blacklist, i.e. circumstances in which a commercial practice is misleading and therefore an unfair commercial practice, under article 193b (3a) Book 6 CC) EN / NL (May 2022). The EN translation of Book 6 does not include new clauses in the blacklist and some other articles related to commercial practices. As these are not directly related to native advertising we don't show them here but they can be found under Content Section B, point 2
  • Article 193d misleading omission; Book 6 Civil Code per links immediately above; see note also above 

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code (EN 2024)

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

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

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

 

Standard rules

 

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

 

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

 

Identification and transparency (Art. 7)

 

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

 

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

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

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

 

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

KEY RULES

 

  • Opt-out applies to direct postal mail in The Netherlands; companies are able to carry out marketing activities by postal mail provided they subscribe to the opt-out register and cleanse/ match their lists against the register to ensure that they do not contact users who have registered an objection
  • The content rules in our section B above apply to DPM, as do the general content rules set out below the sector-specific rules. Principal sources are the SRC’s Cosmetic Products Advertising Code (see above) together with the EU Regulations 1223/2009 and 655/2013 for the ‘common criteria’ with which a cosmetic claim must comply and, for 'general' rules applicable to all sectors, the DAC (EN)
  • There are no rules specific to the cosmetics sector and direct mail; the channel rules that apply to all sectors, found under the General tab below, apply. These include, for example, rules on commercial communications that constitute an ’Invitation to Purchase', often the case in DPM. Rules are from article 8.4 of the DAC, which closely reflects the law set out in the Dutch Civil Code Book 6 (EN), article 193e
  • There are two specific codes for direct mail (addressed), both from the DAC/ SRC and set out under the General tab below, as they apply to all sectors, cosmetics included:

 

The Advertising Code for use of the Postal Filter 2021 (EN) and

The Code for Letterbox Advertising, Door-to-Door Sampling, and Direct Response Advertising (EN)

 

  • If processing personal data, lawful processing rules from the GDPR may apply; privacy issues should be reviewed with specialist advisors

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

Includes unaddressed door-to-door

 

  • Content of commercial communications via Direct Postal Mail and other form of distribution shown below is subject to the rules of the Dutch Advertising Code (EN) and other statutory content rules set out in our earlier content section B except where those are online-specific 

SELF-REGULATION

 

  • Letterbox advertising, door-to-door sampling and direct response advertising code Abbrev. LDDR. Most relevant in this context is letterbox advertising, defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
  • Advertising code for the use of the postal filter 2021 EN / NL
  • Flowchart for sending Direct Mail (addressed advertising via postal mail) here
  • Code for the distribution of unaddressed printed advertisements 'Sticker Code' SC  EN / NL

 

Addressed Direct Postal Mail - definitions and terms 

 

  • Checklist for sending direct mail (addressed advertising mail): Post Filter Code Flowchart (as above)
  • Letterbox advertising: all advertising material which is distributed via the mail box or post box and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) Note: applies to direct mail (addressed) or door-to-door (unaddressed); unaddressed door-to-door is covered separately below
  • Direct response advertising: all advertising in which the goods, services or information offered can be obtained directly from the provider by means of a written, electronic or telephone response (Art. 1c LDDR)

 

  • Advertising is addressed if the address of the recipient (post office box or home address) and city is stated. It is not important whether a name is included in an address; printed advertising that is addressed to “the occupant of” a specific address is therefore still considered to be 'addressed' (Taken from explanation of Art. 1.1.d. SC)
  • Identification: The advertiser must be identified in such a way that he/ she is easily recognisable to the recipient and effectively contactable/ accessible by the recipient. The name and address of the advertiser/ client must be stated in the offer, for which it is not sufficient to state the PO Box number (Art. 2 LDDR)

 

Content of the offer

 

  • The goods and/ or services that are offered shall be depicted and/ or described clearly and truthfully (Art. 3 LDDR)
  • Every offer must contain a brief, simply worded summary of the rights and obligations attached to acceptance of the offer, in particular: the cash price, the costs and conditions for paying in instalments, any postal charges/ shipping costs and other conditions such as whether or not the offer is on approval without obligation, so that the recipient knows exactly what is being offered and what his rights and obligations are should he accept the offer (Art. 4 LDDR)
  • For vouchers/ coupons, discount vouchers, and savings/ currency stamps, the advantage or reduction for the recipient must be easily identifiable and verifiable by him, and the offer's term of validity must be indicated, as well as any other restrictions (Art. 5 LDDR)
  • Right to object: Should the recipient state in writing that he does not want addressed advertising, the advertiser shall ensure that this wish is honoured unconditionally, as soon as possible and in any case within a period of three months of receipt of the request (Art. 14 LDDR)

 

Advertising code for the use of the Postal Filter (PFC)

 

  • Businesses that send unsolicited addressed advertising material by post must comply with this code, which forms part of the Dutch Advertising Code; unsolicited advertising material, with the exception of market research, which is addressed (whether or not with name/ surname, so will apply to material addressed as “resident of”) and physically sent by post to a person with whom the advertiser does not have an existing relationship - is permitted (without the need for obtaining prior consent from the individual) provided that:

 

  • The recipient has not opted-out of receiving advertising material by registering on the Postal Register or via an heir/ directly concerned person on the National Register of Deceased Persons via www.postfilter.nl (Art 2/3 PFC)
  • Prior to making use of addresses from prospects Definition A person with whom an Advertiser does not have an existing customer relationship and whose contact data has been used by an Advertiser, either directly or via a third party (Art. 1.8 PFC) in order to send direct mail, the advertiser must always check the Postal Register and National Register of Deceased Persons. It is prohibited to contact a prospect whose personal data has been recorded in either register (Art. 5.1 and 5.2 PFC)
  • Consultation of such registers must take place no longer than a maximum of 6 weeks before the direct mail is sent (Art. 5.3 PFC)

 

  • If the recipient is an existing customer and has not previously opted-out, direct mail can be sent without having to consult the National Postal Register; if the existing customer is registered, direct mail (addressed advertising mail) can still be sent. The National Register of Deceased Persons should still be consulted; if a deceased person is registered, it is not permitted to send direct mail (addressed advertising mail). See Flowchart
  • The recipient of any commercial communication should be notified of his right to object. This may include a reference to the National Register of Deceased Persons or the Postal Filter (see Flowchart/ Art. 7 PFC)

 

Unaddressed advertising and free local papers

 

  • Letter box/ mailbox advertising, door-to-door sampling and direct response advertising code (abbrev. LDDR); most relevant in this case is letterbox advertising Definition Defined as all advertising material which is distributed via the mail box or post box, whether by direct mail (addressed) or door-to-door (unaddressed), and is not an integrated part of another medium such as newspapers or magazines (Art. 1a LDDR) EN / NL
  • Code for the distribution of unaddressed printed advertisements; Sticker Code ‘SC’ EN / NL

 

LEGISLATION

 

As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause

 

  • Art. 193i (c) Book 6 Civil Code EN / NL (May 2022) which prohibits making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media (italics ours) except in circumstances and to the extent justified under national law to enforce a contractual obligation. The English translation linked here is not up-to-date; see note below
  • The same legislation provides rules in the event of communications that constitute an ‘Invitation to Purchase’ (often the case in postal mail). See article 193e. In May 2022, Paragraphs 2 and 3 have been added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 
  • In the event that data processing identifies individuals, then lawful processing rules from the GDPR apply. GDPR/ privacy issues should be reviewed with specialist advisors

 

 

 

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International

SECTION C: DIRECT POSTAL MAIL

 

 

Applicable self-regulation and legislation 

 

Standard rules

 

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

 

 

Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

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

 

 

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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

KEY RULES

 

  • We have been unable to trace any rules specific to cosmetics products in the Events Sponsorship and Field Marketing channel
  • Associated sponsorship/ event material should observe the content rules set out in our earlier section B. The SRC’s Cosmetic Products Advertising Code (see above) and the DAC (EN) cover most of the ground
  • The DAC Field Marketing Code (EN) is shown below under the General tab as it applies to all product sectors. See the link for the full code, which applies to advertising relating to sale and promotion off-premise
  • Chapter B of the ICC Advertising and Marketing Communications Code (EN) carries some sponsorship rules that provide at least a solid base of requirements in the channel

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

NEWS/ ISSUES

 

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

The IP Dos And Don'ts Of The Olympic And Paralympic Games

Novagraaf March 14, 2024

France: Juridische dos en don'ts voor de Olympische en Paralympische spelen in Parijs 2024

Novagraaf February 16, 2024

Netherlands: Ambush Marketing: Harmless Fun Or Harmful IP Infringement?

Novagraaf February 15, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush (EN). Lewis Silkin 25 Jan, 2024

Revised SRC field marketing code July 2023; see below. EN translation here

 

SELF-REGULATION 

 

The DAC Field Marketing Code 2023 is linked below (EN)

http://www.g-regs.com/downloads/NLGenCodeFMAug2023EN.pdf

And in the original Dutch here:

https://www.reclamecode.nl/nrc/code-voor-fieldmarketing-cfm/ (2023)

This code applies to advertising relating to sale and promotion off-premise

 

EVENT SPONSORSHIP

 

  • There is no sponsorship code per se in the Netherlands, though some elements of sponsorship activities are covered above
  • Sponsorship material should observe the content rules set out in our earlier section B
  • Some product categories, such as alcohol, will be restricted to adult audiences by general clauses on the avoidance of minors. See relevant sectors on the Wikiregs home page
  • The ICC Sponsorship Code is a solid ‘catch-all' for sponsorship activity nationally and internationally. This is set out in Chapter B of the ICC Advertising and Marketing Communications Code (EN); articles are under the following headers 
 

 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

B12.  Media Sponsorship

B13. Responsibility

 

 

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The European Sponsorship Association (ESA) may also be able to help/ inform

 

 

 

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International

SECTION C: EVENTS/ SPONSORSHIP

 

 

Pilot Project Relaxes Olympic Games' Rule For Participating Brands

Marks & Clerk July 19, 2024 

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

Squire Patton Boggs july 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

 

Self-regulation

 

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

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

 

B3: Imitation and confusion

 

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

 

 B4: 'Ambushing' of sponsored properties

 

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

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

B6: The sponsorship audience

 

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

 

B7: Data capture/ data sharing

 

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

 

B8: Artistic and historical objects

 

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

 

B9: Social and environmental sponsorship

 

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

 

B10: Charities and humanitarian sponsorship

 

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

 

B11: Multiple sponsorship

 

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

 

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

The Cosmetic Products Advertising Code is amended from January 2023. Any NL versions linked take you to the correct code. An unofficial English translation is here

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that might affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal

 

KEY RULES

 

  • We can trace no promotional rules specific to the cosmetic sector; Cosmetics Europe ‘acknowledges’ the ICC Code, Chapter A of which covers sales promotions for all sectors and channels
  • Associated promotional material should observe the rules set out in our content section B, together with the content rules shown under the General tab in section B. The principal sources of rules are the SRC’s Cosmetic Products Advertising Code (see above) together with the EU Regulations 1223/2009 and 655/2013 for the ‘common criteria’ with which a cosmetic claim must comply and, for general rules applicable to all sectors, the DAC (EN)
  • The Channel rules that apply to all product categories also apply. There are some important ‘price promotion‘ rules, for example, from the Dutch Civil Code Book 6 (EN), article 193g in particular, replicated in Annexes 1 and 2 of the DAC (EN), and a Code of Conduct for Promotional Games of Chance (EN). Details under the General tab below

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT 

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail and SP administration legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included 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. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.

 

SOME STANDARD RULES 

 

  • Sales promotional material should observe the rules set out in our earlier content section B; principal source of rules is the Dutch Advertising Code (EN)
  • Price Promotions ACM note: promotions must be genuine promotions EN
  • The Field Marketing Code, updated July 2023, carries rules related to promotional activities, especially those off-site NL / EN

 

LEGISLATION 

 

  1. Code of Conduct for Promotional Games of Chance (Gedragscode Promotionele Kansspelen) NL / EN 
  2. Information obligations: Article 15e Book 3 Dutch Civil Code EN / NL (Nov 2022); sets out rules in e-Commerce re recognisability and the provision of e.g. promotional conditions
  3. Blacklist: Article 193i (h) Book 6 Civil Code: commercial practices which are aggressive in all circumstances EN / NL (Jan 2023). Covers some other promotional aspects in e.g. pricing and (separately) the abuse of the promise of prizes. The English translation of Book 6 does not include some clauses transposed May 2022 from the Directive 2019/2161. See our content section B under point 2

1. Promotional Games of Chance 
Includes prize promotions such as prize draws/ sweepstakes

 

  • Under Article 1 Betting and Gaming Act (BGA), games of chance are defined as those that ‘provide an opportunity to compete for prizes or premiums if the winners are designated by means of any calculation of probability over which the participants are generally unable to exercise a dominant influence, (italics ours) unless a licence has been granted therefore, under this law’. The player does not have to place a stake; the law does not differentiate between games of chance with or without monetary stakes
  • So the BGA takes a ‘prohibited unless licensed’ approach (Art. 1); a licence must be granted for all types of games of chance unless they comply with the Code of Conduct for Promotional Games of Chance. If the Code is not observed, then the games are unlawful under the BGA. See Preamble of Code of Conduct; points 1 and 2

 

A promotional game of chance must:

 

  • Promote a product, service or organisation and must not form a standalone service (preamble; Point 4)
  • Be free to enter, with the exception of communication costs of up to €0.45 per participant (Arts 3.1, 3.2)
  • Be temporary with up to 20 draws being permitted annually, per good, service or organisation (Art. 2) More than one winner may be designated in any one draw (Explanation of Art. 1)
  • Involve prizes or premiums with a total value not exceeding EUR100,000 per promotional game per year (Art. 4.1)
  • Require minors to get permission from a parent or legal guardian to participate (Art. 6.4)
  • Not gather any personal details of minors, nor permit these to be gathered, without verifiable permission from a parent of the minor, unless that is necessary to request the minor to provide contact details of his/her parent for the purpose of gaining permission for distributing prizes or premiums (Art. 6.3)
  • Make sure the general conditions (T&Cs) for games (see Art. 7.2) are made available to participants and potential participants free of charge and easily available (Art. 7)
  • Not have as its sole purpose the collection of personal data of the participants.  It has to be for product, service, or brand promotion; the collection of the personal data of participants can only be an additional benefit (Notes accompanying Art. 1)
  • Ensure the marketing (invitation to participate) as well as the terms and conditions are not misleading, incomplete or give rise to false expectations in the participants (Art. 5.1)
  • Contain the name of the product, service or organisation to be promoted (Art. 5.1)
  • Take care not to encourage excessive participation in the promotional games of chance organised by the supplier (Art. 5.2)

 

Notes accompanying Article 5: Promotion Definition Every form of promotion, whether direct or indirect, of the public profile of an organisation or the sales of goods or services (Art. 1.6)

Promotion may not be misleading in any way. Some examples of what may be misleading include the following:

 

  1. The suggestion that the recipient is already the winner of a prize, for example by means of reporting the name of the recipient in an excerpt from the list of winners
  2. The use of imitations of cheques or other valuable papers, without inclusion of the printed word ‘specimen’ or other indication that its use involved an example of no value whatsoever
  3. The suggestion that the recipient had a greater chance of receiving a prize than other participants, for example by providing another name together with the printed word ‘loser’
  4. Stating in large print that the recipient is already a prize winner, while it appears from the general conditions that the recipient only has a chance at winning a prize
  5. Not depicting the chance of the recipient winning in a sufficiently fair light by giving the impression that the recipient has already won a prize, while this is not refuted in the mailing itself, but only in the appendix or appendices or the regulations; and
  6. By designating every recipient of a sweepstake as ‘winner’ (‘everybody wins’ method), whereby only one prize of minimal value will be awarded

2. Information obligations when using commercial communications (Art. 15e Book III DCC)

 

1. Where commercial communication forms a part of a service of the information society or makes out such a service itself, the one who has instructed to use this way of communication has to ensure:
 

  1. That the commercial communication is clearly recognisable as such
  2. That his identity can be deduced from the commercial communication
  3. That the commercial communication, as far as it encloses promotional offers, competitions or games, contains a clear and unambiguous indication of the nature and the conditions which have to be met to qualify for them (italics ours)

 

3. Blacklist/ Commercial practices considered unfair in all circumstances (Art. 193g Book 6 Civil Code):

 

  • 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 supply 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
    Art. 193g Book 6 Civil Code (EN)
  • The English translation of Book 6 does not include some clauses transposed May 2022 from Directive 2019/2161. See our content section B under point 2
 

SELF-REGULATION 
Advertising contests and promotions 

 

Under the Dutch Advertising Code, Section B (Special Codes): c. Contests: advertisements for prize promotions and contests in print and electronic media must contain at least the following information:

 

  • The name and address of the organiser of the promotion or contest
  • The number of prizes available with a description from which their monetary value is known or can be easily derived
  • The submission deadline
  • Any exclusions or disqualifications from participation
  • The date and manner in which the results will be announced; and
  • In the event special conditions apply to be able to participate in the contest, a short description of those conditions

 

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​Annex II Dutch Advertising Code EN; SRC Check Unfair advertising NL echoes the Blacklist rules shown above under point 3. Rule are shown under the linked Annex 2 document

 

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From the ICC Advertising and Marketing Communications Code (EN), Chapter A. Key headers are 

 

Article A2. Terms of the offer
Article A4. Administration of promotions
Article A5. Safety and suitability
Article A6. Presentation to consumers​
 
 

 

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International

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

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

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

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

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

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

Clauses are from the 2024 edition of the Code 

 

A1: Principles governing sales promotions

 

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

 

A2: Transparency and terms of the offer

 

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

 

A3: Presentation

 

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

 

A4: Administration of promotions

 

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

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

 

A5: Safety and suitability

 

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

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

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

 

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

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

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

 

Information in prize promotions

 

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

 

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

 

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

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

Article 6a

 

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

 

 

 

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D. Advice & Clearance

General

SECTION D

 

ADVICE 

 

 

The Self-Regulatory Organisation SRC Stichting Reclame Code provides copy advice for a standard fee to advertisers, for example to those who have to adapt or withdraw an advertisement, to ensure that the amended advertisement complies with the decision of the Advertising Code Committee and/ or Board of Appeal. This advice is available only to advertisers who pay their annual financial contribution to the SRC. Advertisement copy advice is informal and non-binding; access is provided at: http://www.checksrc.nl/copy_advies. SRC also offers training on the rules of the DAC; you can check their website for the current offer or if you want a tailor-made training, you can contact the Compliance department of the SRC.

 

Besides Copy Advice and Training, SRC offers advertisers two websites (in Dutch) with explanations of the advertising rules: (1) www.checkdereclamecode.nl and (2) www.checksrc.nl. The first site offers a practical tool that makes it possible to check an advertisement or a campaign on the basis of a few simple questions. The second site offers advertisers the opportunity to go into a little more depth on specific subjects, such as misleading advertising, rules for children, and identification of advertising.

 

 

CLEARANCE 

 

Pre-clearance is mandatory for Alcohol advertising on radio and television and in cinemas. Requests should be e-mailed to STIVA (the alcohol industry body) advies@stiva.nl and consist of a script, storyboard or video. Cost is €350 ex VAT; advice within 5 working days. Otherwise: 

 

Direct to broadcaster

Allow 3-5 days TV/VOD

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

International

SECTION D: SRO SERVICES

 

The ICAS Global SRO database

https://icas.global/srodatabase/

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E: LINKS/ SOURCES

 

 

EUROPEAN LEGISLATION

 

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 1223/2009, 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

The European Commission pages on Cosmetics are here:
https://ec.europa.eu/growth/sectors/cosmetics/legislation_en
 Their statements on borderline products: 
https://ec.europa.eu/growth/sectors/cosmetics/products/borderline-products_en

       

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 cosmetics19/9/2016

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/eli/reco/2006/647/oj

 

 

European legislation applicable to all sectors

 

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.

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

 

European Data Protection Authority

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.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 Commission to The European Parliament and The Council on product claims made based on common criteria in the field of cosmetics - linked above.

https://eur-lex.europa.eu/eli/dir/2005/29/oj

 

 

National legislation

 

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

 

Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Wrongful/ unlawful acts; Section 3A Unfair Commercial Practices. Section 3A was inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets ACM.

NL: https://wetten.overheid.nl/BWBR0005289/2023-01-01

In English (does not include provisions from transposition of Omnibus Directive 2019/2161 related to search rankings, consumer surveys and replication of international campaigns) 

http://www.dutchcivillaw.com/civilcodebook066.htm

 

Book 6 Dutch Civil Code Title 3, Section 4 Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other acts into line with Directive 2005/29/EC.  

NL: https://wetten.overheid.nl/BWBR0005289/2023-01-01

English translation of Book 6 Dutch Civil Code. The file linked below does not include amendments via the act of March 29 2016, which includes three new paras after article 194(1). 

http://www.dutchcivillaw.com/civilcodebook066.htm

 

e-Commerce

 

Book 3 Dutch Civil Code, articles 15d and 15e (e-Commerce Directive). Act of 13th May 2004 implemented the e-Commerce Directive 2000/31/EC; article 1c of Act of 13/05/2004 inserted article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly)

NL: https://wetten.overheid.nl/BWBR0005291/2022-11-04

English version Book 3 (not consistent with the above but the referenced articles in English remain in force):

http://www.dutchcivillaw.com/civilcodebook033.htm

e-Privacy

 

Telecommunications Act (TelecommunicatiewetNL / EN. Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7 (2/3). Article 11.7a implements Article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) of the Telecommunications Act to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies. The cookies that fall under this exception provide information about the quality and/ or effectiveness of a provided service and are only exempt if they have little or no impact on the user’s private life (Art. 11.7a (5) TA). Explanatory memorandum NL.

 

 

Data protection

 

National GDPR implementation

 

Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming) (‘UAVG’). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals 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 GDPR):

http://wetten.overheid.nl/BWBR0040940/2018-05-25

 

 

SELF-REGULATION

 

Industry codes

 

Stichting Reclame Code (SRC); the Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Code. Advertisers can use the step-by-step checker at www.checksrc.nl, which helps the advertiser to ascertain whether their advertising message complies with the Dutch Advertising Code (DAC). The site offers the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, and Check SRC, as above:

https://www.reclamecode.nl/over-src/

 

The Dutch Advertising Code (Nederlandse Reclame Code - NRC) 

https://www.reclamecode.nl/nrc/ (NL)

The latest English version:

https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en

Section A General as linked above; blacklist in annexes 1 and 2 of Section A

Selected Special Advertising Codes from Section B of the Dutch Advertising Code are linked below (all EN):

 

The Cosmetic Products Advertising Code is amended from January 2023. An unofficial English translation is here.

https://www.reclamecode.nl/nrc/reclamecode-cosmetische-producten-rcp/

 

Cosmetic Products Advertising Code (EN 2023)

The Code for Letterbox Advertising, Door-to-Door Sampling, and Direct Response Advertising

Advertising Code for Use of the Postal Filter 2021

Code For Distribution Of Advertisements By E-Mail 2012

  Code For Environmental Advertising

 Sustainability Advertising Code (NL; Feb 2023. EN Feb 2023)

Code for Social Media and Influencer Advertising (2022)

 

European trade association

 

Cosmetics Europe (CE) European Charter and Guiding Principles on Responsible Advertising and Marketing Communication. June 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.'

https://cosmeticseurope.eu/files/8716/0015/1562/Charter_and_Guiding_Principles_on_Responsible_Advertising_and_Marketing_Communications_-_1st_Revision.pdf

See also Cosmetic Product Claims & Advertising: Compendium of applicable legislation, self-regulation, best practices and guidance (September 2020)

 

 

National trade association

 

NCV (Dutch Cosmetics Association) is the association of manufacturers and importers of cosmetics, or products for personal care. The Association represents the common interests of Dutch cosmetic industry both at national and international level. Approximately 100 companies are members of the association. Members are manufacturers (full members), ingredient suppliers and suppliers of services (associate members). NCV is a member of Cosmetics Europe whose rules are set out on this website:

http://www.ncv-cosmetica.nl/nl/.

 

EASA

 

The European Advertising Standards Alliance (EASA) published in December 2018 Best Practice Recommendation on Influencer Marketing

And EASA’s Best Practice Recommendation on Digital Marketing Communications includes some guidance on exemptions from the Self-Regulation remit in marketer-owned digital properties under pps 10/11

 

ICC

 

The International Chamber of Commerce (ICC) Advertising and Marketing Communications Code. The ICC Code underpins much of self-regulation worldwide:

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

 

 

 

 

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General

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force on 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:

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

 

Five more recent, significant papers in the GDPR context:

 

 

Commercial practices: UCPD


Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

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

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
​Guidance: on 17 December 2021, the European Commission adopted Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.

 

The Omnibus Directive 

 

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

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

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

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

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.

Article 28b addresses video-sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states were required to have transposed into national law by 19th September 2020. 

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

 

e-Privacy

 

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

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

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

e-Privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

e-Commerce

 

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

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

 

The Digital Services Act

 

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

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

 

The Digital Markets Act

 

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

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

 

 

NATIONAL LEGISLATION

 

Consumer protection

 

Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Unlawful acts; Section 3A Unfair Commercial Practices inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Section 4 Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other Acts into line with Directive 2005/29/EC. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets ACM. Book 6 was further amended in May 2022 as a result of transposition of commercial practices provisions set out in Directive 2019/2161, which inter alia amended the UCPD Directive 2005/29/EC to introduce new rules related to transparency of parameters for search results and the integrity of consumer reviews. Articles 193c and 193e are amended together with additions to the 'blacklist' set out under article 193g.

NL: https://wetten.overheid.nl/BWBR0005289/2023-01-01

English translation below does not include amends via Act of March 29, 2016 consisting of three new paras under article 194; amend shown below the first link; neither does the translation include new clauses as outlined above as a result of amends from Directive 2019/2161. The key clauses are shown in English in a separate file here.

http://www.dutchcivillaw.com/civilcodebook066.htm

http://www.g-regs.com/downloads/NLGenDCCBk6Art194AmendsEN.pdf

 

Authority

 

ACM: Autoriteit Consument & Markt; Consumers and Markets Authority. The Consumer Authority, Competition Authority, and the Independent Post and Telecommunications Authority joined forces appropriately on April 1st 2013, creating a new regulator: the Netherlands Authority for Consumers and Markets. This merger has been authorised in the Establishment Act of the Netherlands Authority for Consumers and Markets (NL). ACM is an independent regulator that champions the rights of consumers and businesses, is charged with competition oversight, sector-specific regulation, and enforcement of consumer protection laws. Importantly in this context, the ACM publish Guidelines Sustainability Claims (EN 2023 version) which provides their 5 'rules of thumb' related to sustainability claims, included within which document is the legal context and relevant cases. This is a significant addition to the regulatory line-up for environmental claims. The ACM announcement of ‘Stricter Rules for Online Sellers’ (NL) May 27, 2022 includes reference to the new search and review rules from Directive 2019/2161 as well as plans for promotional pricing rules (see below).
https://www.acm.nl/en

 

Pricing

 

Product Pricing Decree.(Besluit prijsaanduiding producten). Decree of 21 May 2003 containing rules relating to the price indication of products to replace the Decree on the price indication of goods 1980 in connection with the adaptation to the system and terminology of the EC Directive on the stating of the price of products offered to consumers. Transposes the Product Pricing Directive (above under EU legislation):

https://wetten.overheid.nl/BWBR0015104/2023-01-01

Unofficial non-binding translation:

http://www.g-regs.com/downloads/NLProductPricingDecree2022ENb.pdf

 

Prices Act (Prijzenwet) Act of March 24, 1961, laying down rules on the prices of goods and services. This law provides intervention powers for the minister of Finance in the form of price-capping during extreme economic circumstances. It is also the vehicle, under article 2b, for further regulation of price reduction announcements, which is drawn from new promotional pricing provisions from Directive 2019/2161. Explanatory note March 2022 from Maverick Avocaten/ Lexology here.

https://wetten.overheid.nl/BWBR0002353/2022-05-28

 

Channel legislation

 

Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping, as well as online 'audiovisual media services', the implications of which are in debate. Chapter 3a (NL) brings video-sharing platforms into scope: article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)).

https://wetten.overheid.nl/BWBR0025028/2023-01-01 (NL)

 

Media Decree (Mediaregeling) 2008 NL. December 18, 2008, a ministerial regulation implementing rules of the Media Act 2008. Chapter II, Title 2.2.2 Advertising and Teleshopping Messages, Articles 10 and 11. The Media Regulation 2008 contains implementing rules related to articles in the Media Act 2008.

 

 

Regulatory authority

 

The Dutch Media Authority: Commissariaat voor de Media (CvdM). This body upholds the rules formulated in the Media Act and Media Decree. The CvdM is an independent administrative body responsible for audiovisual content and distribution matters. It grants licences to broadcasters, registers VOD services, and systematically monitors compliance with the rules on quotas, advertising and protection of minors. The CvdM can also develop policy rules for public and commercial media, and publishes brochures in relation to those (see below): https://www.cvdm.nl/english/   

 

  1. Regulation of Media Authority of 10 July 2012 on policy regarding the permissibility, recognition and delineation of advertising and teleshopping messages in the media offer commercial media institutions EN / NL Leg. website NL 
  2. Regulation of the Media Authority of 10 July 2012 concerning policy on commercial sponsorship, media institutions EN / NL Leg. website NL
  3. Regulation of the Media Authority of 18 November 2014 containing rules concerning product placement of commercial media institutions 2014 NL / EN Leg. website NL

 

The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here

https://www.cvdm.nl/uploader/meer-weten

 

Influencers/ 'video uploaders'

 

CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022.

 

Public broadcasting

 

  1. Regulation of the Media Authority of 17 May 2016 containing policy rules regarding sponsorship of public media institutions and rules regarding title/ heading sponsorship 2018 NL 
  2. Regulation of Media Authority concerning policies relating to the eligibility, recognition and delineation of advertising and teleshopping messages in the media provision of public media institutions 2019 NL 

 

CvdM re linked advertising 

 

Public Media Broadcasting: ‘Aanhakende’ (Tie-in/ Linked) Advertising Brochure Dutch Media Authority Version 1.1 June 2011 NL. Tie-in / linked advertising is when there is a deliberate reference to a commercial entity close to editorial that covers the same subject. The brochure provides examples of such advertising, which violates the Media Act Article 2.89, which prohibits avoidable expressions (advertising/ teleshopping excluded) that clearly lead to the purchase of products or services being promoted.

 

e-Commerce

 

Book 3 Dutch Civil Code, Articles 15d and 15e. The act of 13th May 2004 implemented the E-commerce Directive 2000/31/EC; Article 1C of Act of 13/05/2004 inserted Article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly) NL:

https://wetten.overheid.nl/BWBR0005291/2022-11-04#Boek3

English version Book 3:

http://www.dutchcivillaw.com/civilcodebook033.htm

 

e-Privacy

 

Telecommunications Act (Telecommunicatiewet). Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7 (2/3). Article 11.7a implements article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies (Art. 11.7a (5) TA). The amendment in May 2018 took account of the arrival of the GDPR, recognised in this legislation, and there was a further amendment in July 2021 that prohibits unsolicited calls to consumers and abolishes the Do Not Call Register.

https://wetten.overheid.nl/BWBR0009950/2023-06-01 (NL)

http://www.g-regs.com/downloads/NLTelecomsActJuly2021versionNoteEN.pdf (EN key clauses)

 

 

Data protection

 

National GDPR implementation and authority

 

Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming 'UAVG'). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC:

http://wetten.overheid.nl/BWBR0040940/2018-05-25

 

The Data Protection Authority (Autoriteit Persoonsgegevens - AP)

AP website (EN):

https://autoriteitpersoonsgegevens.nl/en

Guidance on advertising and direct marketing:
https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/internet-telefoon-tv-en-post/direct-marketing (NL)

 

 

SELF-REGULATION

 

 

Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.

 

 

Industry codes

 

The Dutch Advertising Code (Nederlandse Reclame Code - NRC) 

Section A: General EN; Blacklist in Annexes 1 and 2 EN

May 2022 clauses resulting from the transposition of Directive 2019/2161 in English here 

Section B: Special Advertising Codes (EN). A selection of these is below. See the linked ‘Section B’ for the full complement

Section C: General Recommendations:
https://www.reclamecode.nl/nrc_taxonomy/algemene-aanbevelingen/ (NL)
https://www.reclamecode.nl/nrc/general-recomendations/?lang=en (EN)

 

Social Media and Influencer Advertising Code 2022. This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved. The code was amended in July 2022 in light of new rules from the media authority CvDM (see above). 

https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/ (NL)

https://www.reclamecode.nl/nrc/advertising-code-for-social-media-influencer-marketing-rsm-2019/?lang=en (EN)

 

 

Full Dutch Advertising Code in English:

https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en

And in Dutch:

https://www.reclamecode.nl/nrc/

 

Social media

 

Social Code: YouTube. The code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority (Commissariaat voor de Media CvdM) following an investigation by CvdM, which concluded that 75% of popular vlogs on YouTube contained surreptitious advertising. The code was also discussed with other parties, including the Advertising Code Foundation (SRC - Stichting Reclame Code), Multi-Channel Networks (MCNs) and interest groups/ agencies.  Social Code: YouTube NL / EN. CvdM commentary:

https://www.cvdm.nl/nieuws/youtubers-ontwikkelen-hulp-commissariaat-media-code-om-transparanter-reclame/#

 

 

DDMA

 

Data Driven Marketing Association (DDMA). The DDMA is the trade organisation for data driven marketing & advertising in the Netherlands. DDMA represents the interests of users, service providers and media/ carriers of data driven marketing, both in the Netherlands and at a European level. The DDMA has 300 member organisations. http://www.ddma.nl/

Full list of DDMA Codes can be found here:

https://ddma.nl/juridisch/

 

DDMA codes are incorporated within the Dutch Advertising Code Section B

 

Opt-out registers 

 

Telemarketing: Dutch regulator ACM and Stichting Infofilter run the don’t-call-me register, from 1/10/2009. Article 11.7 (6-12) of the Telecommunications Act contains provisions related to opt-out registers. The Telemarketing Code within the Dutch Advertising Code also refers to the opt-out register and places the onus on the advertiser to inform the consumer in every conversation of the existence of the Do-not-call-registry. Companies cannot register i.e. no ‘legal persons’ https://www.bel-me-niet.nl/. The ACM enforces legislation on telemarketing.

 

Direct Mail:  Since 1st October 2009, Stichting Postfilter has been responsible for The National Post Register, which allows consumers to opt out of receiving unsolicited advertising mail. The Stichting Reclame Code oversees the enforcement of the rules. The Advertising Code for the Use of The Postal Filter also contains relevant provisions:

http://www.g-regs.com/downloads/DACPostalFilterCode2015.pdf

https://www.postfilter.nl/

 

 

INTERNATIONAL SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

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

 
ICC Advertising and Marketing Communications Code 2024:
 
Chapter A . Sales Promotion 
Chapter B . Sponsorship 
Chapter C . Direct Marketing and Digital Marketing Communications 
Chapter D . Environmental Claims in Marketing Communications
Chapter E. Children and Teens (2024 code)

 

Additional ICC guidance and frameworks 

(non-exhaustive)

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘resource guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here

https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/ (EN)

Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising 

https://iccwbo.org/news-publications/policies-reports/mobile-supplement-icc-resource-guide-self-regulation-interest-based-advertising/ (EN)

ICC Guide for Responsible Mobile Marketing Communications

https://iccwbo.org/news-publications/policies-reports/icc-guide-responsible-mobile-marketing-communications/

The ICC’s Guidance on Native Advertising Is in English here:

https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/ (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 recommendations 

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

Influencer Marketing (2023)

 

IAB NL/ Europe

 

From the national website (GT): ‘IAB is the trade association for digital advertising and marketing innovation. IAB accelerates digital growth and makes a structural contribution to the qualitative development of the market.’

https://www.iab.nl/

How to Comply with EU Rules Applicable to Online Native Advertising December 2016:

https://www.iabeurope.eu/wp-content/uploads/2016/12/IAB-Europe-Online-Native-Advertising-Guidance.pdf

IAB Transparency and Consent Framework:

https://iabeurope.eu/transparency-consent-framework/

 

WFA

 

From their website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':

https://www.wfanet.org/

This is the ‘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

 

ESA

 

The European Sponsorship Association can be found at:

www.sponsorship.org

 

 

FEDMA

 

Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:

http://www.fedma.org/index.php?id=30

 

 

 

 

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Read more

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website:  '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include:

 

  • greater clarity in the scope and application to different forms of marketing communications
  • the inclusion of coverage for the use of algorithms and AI in preparing and delivering marketing communications
  • taking account of recent social and technological developments and the inclusion of specific provisions from chapters which are widely applicable to all marketing communications
  • encouraging mindfulness regarding diversity and avoiding objectification stereotypes
  • new provisions concerning anti-corruption and not inciting or condoning hate speech and disinformation
  • improved indications regarding claims (including aspirational claims) and substantiation
  • addressing influencer marketing and the responsibility of influencers and creators
  • updated provisions regarding environmental advertising and environmental aspects of sustainability
  • clearer rules in a separate chapter regarding children, teens and minors

 

This Code revision has been informed by the latest industry rules and legal developments around the world, such as in the area of consumer protection, privacy and fair competition. The Code is designed to establish a sound ethical framework to govern marketing practices worldwide based on twin goals of fostering consumer fairness and trust, and the freedom of commercial communications.' The Code is organised into General Provisions and individual chapters Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E). Translation of the code is under way as at September 2024. Earlier translations of the former (2018) code can be found here.

https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)

 

 

Additional guides and frameworks (all EN)


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC Guidance on Native Advertising 

 

ICC toolkits

 

 

IAB Europe

 

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

http://www.iabeurope.eu/

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

https://www.iabuk.com/goldstandard

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

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

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

 

 

ICAS

 

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

https://icas.global/about/

 

EASA: European Advertising Standards Alliance

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

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

 

Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

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

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2021): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

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

 

EASA Best Practice Recommendation on Influencer Marketing 2023. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR networks and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

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

 

The European Interactive Digital Advertising Alliance (EDAA)

 

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

 

 

FEDMA

 

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

 

 

THE EU PLEDGE 

 

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

 

 

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

 

WFA

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

 

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

 

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

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

 

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

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

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

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

 

Article 29 Working Party/ EDPB

 

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

https://edpb.europa.eu/.

 

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

Article 29 Working Party archives from 1997 to November 2016:

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

More recent documents:

 

 

 

Key Directives in marketing communications

 

Privacy/ cookies

 

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

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

 

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

 

e-Privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

e-Commerce

 

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

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

 

Pricing

 

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

 

Commercial practices 

 

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

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

 

 

The Omnibus Directive 

 

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

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

 

Food Regulations

 

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

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

 

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

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

 

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

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

 

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

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

 

Audiovisual media 

 

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

 

 

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

 

 

 

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