Gambling

 

Uploaded August/ September 2019.

See individual countries for updates.

 

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France

A. Overview

Sector

SECTION A OVERVIEW

 

Updates:

ARPP Review March 2020

Links refreshed Sept 2020

Reviewed Feb 2021

Some tweaks July 2021

ANJ consultation Sept 2021

Winamax ruling October 2021 FR

ARPP Digital Code in force Jan 2022 FR / EN

ANJ Guidelines and Recommendations (EN) Feb 2022

ANJ ban Winamax 'Tout pour la Daronne' (FR)

ANJ on operators' sports partnerships June 2022 (FR)

Arcom draft decision; consultation closes Sept 5, 2022

ARPP Gambling Code V2 (EN) effective Sept 1, 2022

DLA Piper World Gambling Laws Sept 2022; inc FR

ANJ guidelines on offers and bonuses (FR) 27/10/22

Announcement linked above, guidelines here (FR)

Commitment charters signed (FR) 7/11/22

Related Arcom decision (FR) published 7/11/22

Warning message extended to online July 2023 (FR)

Year in review: gambling law in France (EN)
Bird & Bird/ Lex May 10, 2024

Online casinos legalisation? Bird&Bird Oct 30, 2024

ICC Code French trans Nov 7, 2024

 

New ICC Code September 19, 2024

Press release here and key changes here 

French trans Nov 7, 2024

 

NEWS/ ISSUES 

 

JONUM: the new regime of web3 games (FR)

Haas Aug 28, 2024 on the impact of the SREN law 

Spain Supreme Court overturns gambling ad restrictions

igaming business April 10, 2024. Placed here for European context

 

 ANJ guidelines on offers and bonuses (FR) 27/10/22

Announcement linked above, guidelines here (FR)

Unofficial translation here

 

ANJ CONSULTATION OUTCOMES 

 

  • Original news from the ANJ (gambling authority) website here (FR), following concerns raised about operator advertising activities during the Euro 2020 tournament; background in English from Gambling Insider here
  • The regulator's stated objective was to put in place clear and 'fully operational' rules in September, ahead of the 2022 World Cup in Qatar. Following the consultation, the ANJ has established Recommendations and Guidelines (FR with background and link to downloadable pdf, or pdf here), which are based on the legislative framework provided by the Decree of November 4th 2020 (FR; see below);
  • Those recommendations/ guidelines have been translated here (all translations are non-binding and unofficial; only the original text in French applies). The provisions provide important interpretation of some of the key content clauses under the Internal Security Code, such as those related to excess, social success and chances of winning. Warning messages are covered under Recommendation 5 (see also in this context the Order of July 29, 2022 (FR) from the Ministry of Health (extended online July 2023);
  • The October 2022 ANJ guidelines on commercial communications that include 'financial reward' are linked above, setting out the rules on financial incentives/ bonusing; these, together with the four 'Commitment charters' (FR) of November 2022, which delivers industry commitments to 'moderate advertising pressure' in AV and radio, display and digital advertising and to promote responsible commercial communications, represent two significant restrictive pillars; 
  • The charter restricts advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire'). We assume that means 3 commercials for each 'screen' form. Media owners are engaged in the charters and will advise; The relevant charter, agreed by the outdoor advertising association UPE among other media associations, is here (FR);
  • Related to the commitment charters is the Arcom ‘deliberation’ No. 2022-73 of October 19, 2022 (FR), which updates a 2013 version and sets out the conditions for the dissemination of commercial communications in defined media (on-demand audiovisual media services, radio, television), paying particular attention to the protection of minors;
  • The above, together with the ANJ-inspired ARPP code (see below), represents the ANJ getting a firm grip on the industry after the authority blew the whistle following the Euro 2020 tournament (played 2021).

 

SCOPE AND CONTEXT

 

Gambling is defined by article L320-1 of France's Internal Security Code as 'any operation made available to the public, regardless of its designation, for the purpose of causing the hope of a gain whose realisation depends, even partially, on chance and in consideration for which the operator requires a financial contribution from participants.' This from the May 2024 A general introduction to gambling law in France courtesy of Bird and Bird LLP/ Lex. While the term ‘gaming’ is sometimes used by regulators in place of gambling, this text does not cover gaming per se where gaming is the act of playing (especially) video games, in some cases online. According to French legislation, three types of online gambling activities are permitted – sports betting, horse race betting and poker games. However, casino-style games, spread betting and betting exchange remain outside the scope of authorised online gambling activities, because policy makers consider that they encourage addictive behaviour. 

 

SELF-REGULATION

 

As is often the case in France (and in gambling), the regulatory environment is pretty strict from both the legal and self-regulatory perspective. Marcoms self-regulatory rules are in the form of the ARPP’s September 2022 Gambling Code, set out below in section B in English and available here in French and here in ARPP English; video here (FR; based on former code). The thrust of provisions, which have been developed as part of the ANJ consultation commitments, is about the protection of minors, responsible gambling statements, social responsibility, and ‘fair information’.

 

NATIONAL LEGISLATION & ANJ GUIDELINES

 

The role of legislation in this sector is perhaps more significant than in others due to the high profile and sensitivity of gambling and the presence of the statutorily authorised ANJ. While the ARPP Code will reflect legislation and a relationship with the ANJ, it's best also to be aware of statutory requirements, only the most relevant (to advertising) of which are below

 

  • The Order of April 9, 2021 (FR) sets out the legislative framework, i.e. which laws cover which issues, for the prevention of excessive or addictive gambling and the protection of minors. Article IV provides the promotional framework;
  • The core of gambling advertising legislation is contained within the Internal Security Code (ISC; FR), key content articles L320-12 & 13, D320-9 & 10; these are set out in English in our following content section B, albeit closely reflected in the ARPP code;
  • Ordinance 2019-1015 of 2 October 2019 (FR) reforming the regulation of gambling. This ordinance established the national gambling authority ANJ Autorité Nationale des Jeux, replacing Arjel and sets out provisions consolidated in the Internal Security Code and shown in our following content section B;
  • Decree 2020-1349 of 4 November 2020 (FR) grants the ANJ wider powers than the previous administration under articles 6-10, which allow oversight of operators’ communication plans/ promotional strategies and the power to force withdrawal of those plans if not compliant. The implementing decree also creates articles D320-9 &10 of the Internal Security Code addressing the protection of minors and other social responsibility requirements. Again, clauses in our section B or see the linked code;
  • While the above contain significant developments and repeal some of the marcoms elements, the ‘original’ law No. 2010-476 of 12 May 2010 (FR) 'on the opening to competition and regulation of the gambling and online games of chance sector' remains in force;
  • Warning messages are required in all advertising (articles L320-11 & 12 of the ISC); the Order of July 29, 2022 (FR) from the Ministry of Health carries the messages and their presentation format, spelt out in content section B. Example of ‘live’ advertising here for TV/ AV; extended by The Decree of July 11, 2023 (FR) on the warning message against excessive or addictive gambling that must appear on online commercial communications - in force 10 August 2023;
  • The gambling authority ANJ issued in February 2022 Guidelines and Recommendations (EN), which interpret some of the key content rules from the Internal Security Code and include some guidance on the warning message;
  • The above was followed in October 2022​ by ANJ guidelines on offers and bonuses (FR), unofficial translation here, which sets out the legal framework and provides interpretation of how and to whom commercial offers containing 'financial reward' should be communicated. 

 

Relevant provisions from the above are set out in our following content section B and channel section C, as applicable

 

EU RECOMMENDATION

 

Commission Recommendation 2014/478/EU on ‘common principles for the protection of consumers and players of online (italics ours) gambling services and for the prevention of minors from gambling online’ was published in July 2014. As a Recommendation, it is non-binding, but important. While much of the communications ground it covers is present in national legislation or self-regulation, it includes a provision that operators should include in their commercial communications “a clear ‘no underage gambling’ message indicating the minimum age below which gambling is not permissible.” This November 2021 report from City/ University of London, sponsored by EGBA, reviews implementation across member states.

 

CHANNEL/ PLACEMENT RULES FOR GAMBLING 

 

Ordinance2019-1015 of 2 October 2019 (FR), established in Article L320-12 of the Internal Security Code, prohibits commercial communications to minors, specifying print, online, audiovisual (as defined) cinema and sponsorship in those programmes /publications/services/events aimed at minors. The Decision of 19 October 2022 (FR) from the AV authority Arcom updates the 2013 version, extends scope into on-demand AV and sets out the ban on childrens programmes and any kind of appeal to minors in an 'on-demand audiovisual media services' space. Gambling operators have signed related 'commitment charters' for AV and radio, display and digital media that restricts activity to '3 screens a day'; ANJ press release hereHaas Avocats September 2022 Influencers and gambling: what legal obligations? spells out the issues in what is obviously sensitive territory. There are specific requirements for the way in which warning messages must appear in different channels; these are spelt out under the relevant header in our Channel Section C, or from articles D320-2 to D320-8 in the Internal Security Code (FR) or, better yet, the Order of July 29, 2022 (FR) from the Ministry of Health as linked above. See our following channel section C for full information. 

 

Influencers and gambling: what legal obligations? (FR)

Haas Avocats September 2022

 

CHANNEL RULES APPLICABLE TO ALL SECTORS

 

Online

 

The principal self-regulatory influence in online channels is ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR). The code covers various techniques/ formats online such as native advertising, OBA, brand content and some rules for Influencer marketing. This is Version 5; key changes from Version 4 are shown in the ARPP press release of December 2021 here. There's more under the General tab below as the rules, per above, apply to all sectors.

 

Data protection and privacy

 

Privacy issues should be reviewed with specialist advisors

 

The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. A table here sets out how GDPR relates to some marketing techniques and channels, and to other legislation that applies in marketing, though it is a somewhat broad and selective picture and subject to national differences in application. Member states, France included, tend to retain their legislation and add to it to ‘recognise’ GDPR, which anyway applies directly. France’s key developments in this context are via Law 2018-493 on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (FR) and transposing Directive 2016/680, which accompanies GDPR. (Direct) electronic marketing communications ‘beyond’ data processing are regulated primarily by the 2013 Mail and Electronic Communications Code (FR); English translation of the key article L34-5 here. Again, details under the General tab below.

 

GENERAL ADVERTISING RULES  (CONTENT)

 

Self-regulation

 

It’s important that the rules for all product sectors, gambling included, shown below under the General tab, are also observed; adjudications against gambling advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here), administered by ARPP as the 'base' code in France. The ARPP introduced in July 2016 'Portrayal and Respect of Human Beings', which does what it says on the tin (link is to an ARPP English translation). There are a number of other ARPP codes or 'Recommendations' that extend the base ICC code and that apply to all advertising, such as those covering identification, digital communications, food behaviours et al. See the ARPP English versions of their Codes, or the General tab of this database.

 

Legislation

 

Legislation for consumer protection in marketing is provided by the Consumer Code (FR), English translation of relevant articles here, which transposes the Unfair Commercial Practices Directive 2005/29/EC and covers misleading and aggressive marketing and advertising practices. Also transposed into the Consumer Code (CC) are provisions driven by the 'Omnibus' Directive 2019/2161 which require, in an e-Commerce context, information on search rankings and consumer reviews; promotional pricing also has some new rules under article L112-1-1 of the CC. Rules are spelt out under the General tab below or see the linked files. 

 

 

 

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General

SECTION A OVERVIEW

 

Updates since June 2022 (slimmed)

 

ARPP La RECO RAPIDO. June 2022

Video clips < a minute digital ad rules 

CNIL fines Total Energies 1mil Euros (EN)

Fiat 500 Red appeal rejected Aug 2022 (FR)

AI: ensuring GDPR compliance. CNIL Sept 2022

ARPP and Instagram launch “C’est Carré”. Dec 2022

Above re good practice in Influencer Marketing

EU green claims regulation December 2022

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

Regulation of Influencers Feb 10, 2023 Hogan Lovells

Green Claims Directive Proposal. March 22, 2023

Whether You Like It or Not. (EN) K&L Gates October 18, 2023

Above is helpful on the Influencers Act (FR) and follow-up 

More on Loi SREN from Field Fisher November 3, 2023 (EN)

To be or not to be a French influencer Bird&Bird Jan 31, 2024

Above in English March 26, 2024. Re dodging DGCCRF

Latest Haas update Feb 19 covers the ground, esp DSA (FR)

Orrick on the SREN law June 4, 2024 (EN) Law ici (FR)

Data Protection Update (FR) Haas June 13, 2024 and on 

The DGCCRF and the SREN law (FR) June 17, 2024

Advertising, Marketing & Promotion Comparative Guide

Bernard Hertz Bejot June 25, 2024. Includes France

CAOCAO ruling (FR) re responsibility claim Sept 2, 2024

New ICC Code (EN) September 19, 2024 FR here Nov 7

Advertising & the Environment ARPP review Oct 2, 2024

 

 

The 2024 ICC Code is subject to consultation in France, as it represents the 'base' of some 31 ARPP recommendations

Planned completion Summer 2025; formal launch (and translation) of the code was on November 4th

Meanwhile, copy advice is already deploying the 2024 version (EN) French version now here

 

RECENT/ MAJOR ISSUES

 

Proposition de loi No. 2129 (FR) Fast fashion bill 

B/g to above here (EN) courtesy Eversheds Sutherland 

CSRD: French PM's Declarations - Step Backwards?
Squire Patton Boggs October 25, 2024

Client Earth, Blackrock and the AMFRPC October 28, 2024

Lululemon Hit with Complaint Over Greenwashing
Hausfeld LLP/ Lex July 25, 2024. Ad here

LOI n° 2024-449 du 21 mai 2024 visant à sécuriser et à réguler l'espace numérique (FR)

Orrick June 4, 2024 on the above 'SREN' law (EN) inter alia enacts DSA, DMA

And helpful overview from Bird&Bird/ Lex August 29, 2024 here (EN) 

 

GENERAL ADVERTISING RULES IN FRANCE 

 

Set out below are the rules that affect all product sectors in France. While some sectors are subject to specific rules, they must also observe the ‘general rules’ that deal with e.g. misleadingness, social responsibility, decency, offence, etc. Some countries write their own codes that address those issues, others will deploy the established ICC Advertising and Marketing Communications Code (EN 2024), which applies directly in France. The French version of the code, obviously applicable in this context, is here (2024 code). Details are in English in our content section B, or see the linked code. The articles frequently referenced in adjudications are 2, Social and environmental responsibility and 5, Truthfulness. There's a helpful March 2023 round-up here of 'Prohibited and controlled advertising in France' from lawyers Bernard-Hertz-Béjot via Lex and another piece from them on misleading advertising in France, March 2021.

 

SRO AND CODES

 

The Self-Regulatory Organisation in France is the ARPP (Autorité de Régulation Professionnelle De La Publicité). As you might expect, there are a number of codes that are unique to France; they are all collected here in FR and in EN; the overall regulatory position is relatively intricate and certainly not short on rules. Supplementing the ‘base’ ICC Code are a number of sectoral codes such as those for cars, children, gambling etc. Those codes are shown in detail in the sectors we cover elsewhere, or they can be found on the ARPP website linked above. Trans-sector codes from ARPP are also significant influences in both content and channel rules; a selection is:

 

Portrayal of people

 

Code for the Portrayal and Respect of People (EN):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

In the original French (Recommandation Image et Respect de la Personne):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/

 

The code, introduced in 2016, covers aspects such as dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in content section B, or click above.

 

Children

 

A separate Children database is available from the home page of this website. Meanwhile, here is the core Article !8 Children and Young People (EN) from the ICC Code and the ARPP 'Recommandation Enfant' FREN. There are some provisions on child protection in the ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here); see clause 3. There are also references under point 1.6 (Safety) in the content section B that follows. K&L Gates LLP/ Lex bring to your attention 'French framework for “kidfluencers” - Yet another undertaking for online platforms', which describes the arrival and implications of Act No. 2020-1266 (FR) of 19 October 2020 on the commercial use of the image of children under 16 on online platforms. Under this act, which amends the French Labour Code, anyone (including parents) recording videos featuring children under 16 with the aim of making money on video sharing platforms must request the relevant public authority’s prior authorisation. More here from Klemchuk LLP/ Lex April 14, 2023.

 

Identification

 

Identification of advertising and marketing communications. Identification of the advertiser (EN)

In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):

 

The code is largely based on the (2018) ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below, and the ARPP Guidance on Influencer Marketing (Video EN sub-titled)

 

Native

 

The ICC’s Guidance on native advertising Is in French here

And in English here

The  Digital Advertising and Marketing Communications Code (EN; V5) also carries native advertising provisions

 

Influencer marketing

 

Influencer legislation & EU harmonisation

re DADDUE law. K&L Gates June 17, 2024

 Le Guide de bonne conduite pour Influenceurs et créateurs de contenu (FR)

Above from Ministre de l'Économie July 2023. Haas summary here (FR)

Parliament adopts a bill to regulate commercial influence (PR, FR) June 1, 2023. Law here (FR) 

Commentary here (FR) from Grant Thornton May 26, 2024. Code of Good Conduct here (FR)

 

ARPP

ARPP recommendations for influencer marketing

https://www.youtube.com/watch?v=8Jx4gr5bvH0 (EN sub-titles)

Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR). #ad, for example, is not permitted

The  Digital Advertising and Marketing Communications Code (EN; V5) also carries Influencer provisions

The Media Institute in collaboration with ARPP launched the Responsible Influencing Certificate in September 2021. More here (FR)

ARPP and Instagram launch “C’est Carré” to promote good practice in Influencer Marketing. December 2022

 

Safety

 

Safety Code: Dangerous behaviours and situations (EN)

In the original French (Recommandation Sécurité: Situations et Comportements Dangereux)

The code is particularly protective of children but helpful in describing situations that are permitted

Details in content section B or from the links above

 

Price

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/publicite-de-prix/ (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/ (EN)

This recommendation sets out the principles, qualifications and formatting by channel when including price in advertising. Details in content section B & channel section C

 

Sustainability (inc. beyond SRO)

 

News/ developments 

Greenwashing in the EU, France and the UK 

Addleshaw Goddard/ Lex November 11, 2024

20 compagnies aériennes épinglées pour greenwashing. Apr 30, 2024

Above re airlines and the EC/ CPC Consumer Protection Network

 

Fossil fuels ad ban; carbon and other claims
From 22nd August 2022, the 'advertising and promotion' (la publicité relative à la commercialisation ou faisant la promotion) of specified fossil fuels is prohibited; see section 8 of the Environmental Code, art. L229-61 (FR) from the 'Climate and Resilience Law'. Some acerbic August 2022 commentary from GALA here. The same law introduced a new section 9 in the Environmental Code on requirements and conditions for carbon claims such as 'carbon neutral', 'zero carbon', 'zero-carbon footprint', 'climate neutral', 'fully offset', '100% offset' or equivalent, applicable as of January 1, 2023. Key clauses are in English here, courtesy of Soulier Avocats. There are other significant environmental information measures aimed at 'waste-generating' products, which include a ban on terms such as 'environmentally friendly' or 'biodegradable' on products and packaging; details to be developed via decree in the coming months; see Better consumer information on the environmental qualities of products from Bird&Bird June 2022, Decree 2022-748 here (FR).

 

As further emphasis that environmental claims are high on the regulatory agenda, the Consumer Code - principal legislation in advertising content and incorporating transposition of the Unfair Commercial Practices Directive 2005/29/EC - was amended by the same 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) to include specific reference to environmental impact under CC article L121-2, which sets out how a product or service's 'essential characteristics' must not mislead. The full article can be found here in English and the Consumer Code is here in French. 

 

National and international codes and guidance 

ARPP's Sustainable Development Code in French here (V3) and English here 

Video here: https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/ (EN sub-titles)

Practical guide to environmental claims (FR) DGCCRF/ the Consumer Council May 2023. Bird & Bird here (EN)

 

Chapter D of the ICC Advertising and Marketing Communications Code (EN 2024) is devoted exclusively to environmental claims 

ICC Environmental framework 2021 'provides added guidance on some established environmental claims and additional guidance on some emerging claims.'

 DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including France

 

Commentary

ARPP's report on environmental advertising 2023/24 (FR)

Valuable for showing where advertisers go wrong; Eversheds here (EN)

The French regulatory arsenal against greenwashing. Taylor Wessing/Lex April 3, 2023

The above includes some rulings from ARPP

 

LEGISLATION IN ADVERTISING CONTENT

 

Consumer protection (in the marketing context) legislation is provided by the Consumer Code (EN; includes clauses effective May 28, 2022 from Directive 2019/2161), which transposes the Unfair Commercial Practices Directive 2005/29/EC, in December 2021 subject to new Guidance from the Commission. The code covers misleading marketing and advertising practices and e.g. sets out the rules for commercial communications constituting ‘an invitation to purchase’ and the comparative advertising rules; some promotional activities are covered in articles L121-35 to 41. Details in the following content section B. This legislation can apply in Influencer cases: see Influencers and the Consumer Code: the DGCCRF at attention (FR) from Haas/ Mondaq on a recent case brought under article LI21(3), covering failure to indicate 'true commercial intention,' albeit there is now (June 2023) specific Influencer legislation (see above under Issues/ News). Amends from the Climate and Resilience Law (FR) of August 2021 to article L121-2 of the CC incorporate specific reference to 'environmental impact' under 'essential characteristics' which must not mislead. Clauses in English are here. See above in the introductory paragraph reference to rules from the same Climate and Resilience Law on carbon offsetting and carbon neutrality claims in advertising, key clauses in English here and 'Communication on the environmental qualities of products: dos and don'ts' here from Dentons/ Lex Jan 2023 is very helpful in setting out the statutory coverage of various forms of environmental claims. Q&A: misleading advertising practices in France from Bernard-Hertz-Béjot March 28, 2023 has good coverage of these aspects and others more general. Les conditions juridiques de la mise en place d’une publicité comparative from Novagraaf July 25, 2024 sets out the issues for comparative advertising, referencing case law and the relevant clauses from the Consumer Code.

 

Omnibus Directive transposition

The Consumer Code (FR) now also carries the marketing-related clauses from the 'Omnibus' Directive 2019/2161, which have been transposed via Ordinance No. 2021-1734 (FR) of December 22, 2021. Article L.112-1-1 (of the CC) for promotional pricing (see Haas blog June 2023 on reference vs. comparative pricing (FR)), article L.121-2 for a new misleading practice in international 'dual marketing' rules The Directive's article 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.’and L.121-3 for the information now required in an e-commerce context re search rankings and consumer reviews, all effective May 28, 2022. Unofficial and non-binding translation of all the key clauses here. The ECJ judgement of September 24, 2024, finds on the '30 day' promotional pricing requirements from amends to the Product Pricing Directive by the Omnibus Directive; Pinsent on the case here October 4. Separately, state department FOD Economie October 2023 guidelines on reviews here (FR). 

 

Models in advertising

Legislation in the Public Health Code (PHC) is from article L2133-2 (EN) addressing retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.

 

CHANNEL (I.E. PLACEMENT) RULES
Self-regulation

 

The ICC content rules referenced above apply both offline and online; the online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code (FR V5 in force Jan 2022; EN here). The press release setting out the changes is here in English; scope of the code is here. Scope These rules apply to all advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The code includes a useful walk through the various techniques online such as In-game, apps, vlogs/ influencers, native advertising, brand content, OBA and retargeting. Full information in our channel section C as applicable, or see the linked code. 

 

Legislation in channel 

 

LOI n° 2024-449 du 21 mai 2024 visant à sécuriser et à réguler l'espace numérique (FR)

Orrick June 4, 2024 on the above 'SREN' law (EN) which inter alia enacts DSA, DMA

 

The influence of legislation in the placement of commercial communications across Europe is significant and covered by a series of Directives assembled here for background. The following paragraphs address their transposition into national legislation and application by channel, albeit details are in section C, so this is a 'snapshot.' Note that as of January 2023 any B2C advertising flyers or catalogues must be printed on recycled paper or paper produced from sustainably managed forests, courtesy of art. 48 LOI No. 2020-105 (FR)

 

Audiovisual

New sectorial rules for TV advertising in France (EN)
Bird & Bird LLP/ Lex April 15, 2024. Decree here (FR)

 

Decree 92-280 (FR, key clauses translated here) transposed the AVMS Directive and provides the core rules in spot advertising, programme sponsorship, and teleshopping. Two 2017 developments are the lifting of the prohibition (FR) on showing product etc. in TV programme sponsorship, and the introduction of a ban (FR) in and around children’s (U12) programmes for anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’. Amendments brought about by Directive 2018/1808 extending the scope of the AVMSD into e.g. video-sharing platforms are provided nationally in the Léotard Law (FR) via Ordinance 2020-1642 (FR). Details in channel section C, or see the linked files.

 

Direct electronic communications

Data processing under CNIL is regulated by the French Data Protection and Freedoms Act or FDPFA Act No. 78 -17 of 6 January 1978 (FR) as amended (see below), and electronic communications primarily by the 2013 Mail and Electronic Communications Code (FR), unofficial translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France.

 

e-Commerce

Rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN) (FR) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws are important in this context, setting out what must be included or made available in e-commerce communications (articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the Consumer Code). See above under the Legislation in Advertising Content header re amends to the Consumer Code brought about by the Ominibus Directive. There's a helpful June 2022 piece on the implications from Haas Avocats here (FR) and another (FR) from the same company June 2023. 

 

Data processing/ protection

Privacy issues should be reviewed with specialist advisors

 

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

EDPB data protection guide for small businesses in FR & DE

EDPB May 17, 2024

CNIL's Guide to personal data security: new 2024 editionCNIL March 26, 2024

 

The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. Member states, France included, tend to retain their legislation and add to it to ‘recognise’ GDPR. France’s key development in this context is via Ordinance No. 2018-1125 of December 12, 2018  (FR) on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (or the French Data Protection and Freedoms Act - FDPFA), and transposing Directive 2016/680, which accompanies GDPR. Helpful overview and commentary here (EN) from Data Guidance. The Data Protection Authority is CNIL, who publish some text in English. Their GDPR 'toolkit' is here in English; specific rules and guidelines are set out by channel in section C. The CNIL gives its position on the “cookieless” alternatives to third-party cookies from Nomos via Lexology October 2021 is a helpful look at how the CNIL is likely to handle alternative tracking and other technologies. The original paper from CNIL is here (FR). This 30 June 2022 announcement from CNIL regarding commercial prospecting and personal rights breaches that led to a fine of 1 million euros against Total Energies is instructive, as it explains the specifics of the case and the rules concerned (in English). The February 2022 'référentiel' on personal data processing from CNIL is here (FR); much of this courtesy of Haas Avocats.

 

 

 

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International

SECTION A OVERVIEW

 

Updates since Nov 2022 (slimmed)
 

DLA Piper Global Influencer guide 

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

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

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

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

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

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

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

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

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here 

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific 

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

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

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

* Recommended read 

New ICC Code September 19, 2024

Press release here and key changes here 

 French trans November 7, 2024, SW here

 

ISSUES/ NEWS/ COMMENTARY

 

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

REP November 20, 2024

TEMU challenged by CPC network (FR)

EC Digital Fitness Check published Oct 3, 2024

Lewis Silkin on above here (scroll down)

Recycling claims mislead consumers:

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

 

AI

The AI Convention CSC Sept 12, 2024 here

EASA newsletter update AI legislation Aug 2024

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

AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024

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

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

 

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

 

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

Greenwashing in the EU, France and the UK 

Addleshaw Goddard/ Lex November 11, 2024

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

Stichting Milieudefensie v. Shell. Freshfields November 6, 2024

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

The UK Guardian September 13, 2024

 

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

 

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

 

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

 

More lawyer commentary

 

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

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

Formosan Brothers October 4, 2024

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

Katjes 'Climate Neutral' & Green Claims Globally

Herbert Smith Freehills/ Lex July 10, 2024

 

Corporate & financial reporting and due diligence

 

CSDDD FAQs Proskauer October 4, 2024

FAQs on the implementation of the EU corporate sustainability reporting rules

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

 

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

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

  

INFLUENCER MARKETING 

 

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

 

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

 

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

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

 

The USA

 

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

 

Guides Concerning the Use of Endorsements and Testimonials in Advertising

Disclosures 101 for Social Media Influencers 

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

 

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

 

India 

 

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

 

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

 

The latest ICC Code was published September 18, 2024 

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

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

 

Children

 

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

 

Lawyer commentary 

Kids and Teens Online Safety and Privacy Roundtable

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

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

Collyer Bristow/Lex 21 June, 2023

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

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

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

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

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

Data Processing 

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

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

 

THE DMA AND DSA IN EUROPE

 

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

 

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

Quinn Emanuel/ Lex October 10, 2024

 

DATA/ PRIVACY 

 

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

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

 

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

Data Protection update - August 2024. Stephenson Harwood/ Lex

Above covers Australia, China, EU, UK, USA

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

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

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

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

EDAA launches new solution to DSA ad transparency requirements

 

THE OMNIBUS DIRECTIVE

 

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

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

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

 

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

 

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

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

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

 

 

 

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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

 

1. ARPP GAMBLING CODE
(V2 effective September 2022)

1.1. CPP ADVICE

1.2. 2015/2016 ARPP Review; adjudications

2. WARNING MESSAGES

3. STATUTORY GAMBLING CONTENT RULES

4. ANJ GUIDELINES AND RECOMMENDATIONS 

5. EUROPEAN RECOMMENDATION ONLINE GAMBLING

6. GENERAL ADVERTISING RULES

 

 

Some relatively recent developments 

 

  • February 2022: the ANJ established Recommendations and Guidelines (FR with background and link to downloadable pdf, or pdf here), which are based on the legislative framework and which 'clarify the meaning it intends to apply to the provisions of articles D. 320-9, D. 320-10' (of the Internal Security Code). Those guidelines are translated here; all GRS translations are non-binding and unofficial - only the original text in French applies;
  • Following the publication of the guidelines, the ANJ 'reviewed certain advertisements' and decided to ask Winamax to withdraw its commercial 'Tout pour la Daronne' (everything for mum) on the grounds that it transgressed article D 320-9/2 relating to social success;
  • October 2022: the ANJ published Guidelines and Recommendations on Financial Incentives FR / EN unofficial translation. Includes the legal framework for commercial communications that contain 'financial reward' and applies that to the industry activity together with some guidelines on transparency of the offer and recommendations on the volume, frequency and amount of financial incentive and how and to whom communications are conveyed. â€‹

 

1. ARPP GAMBLING CODE

 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/gambling-code-v2/ (EN)

 

The clauses below are taken directly from the ARPP English version of the Gambling Code or ‘Recommandation’ effective September 1, 2022. We have noted where the translation seems unclear. The current French version on which translations are based is the applicable code and that is here

 

Scope of the code

 

The scope of this code covers (cumulative criteria):

 

  • Gambling advertising Note Exception This Recommendation does not apply to advertising lotteries covered by the Consumer Code (Arts L121-36), nor to games of chance prohibited by the Internal Security Code (Art. L320-1) accompanied by monetary gains or in kind, wholly or partly based on the chance or uncertainty of an outcome, games accessible online or offline
  • Ad content promoting gambling, whatever their form and format, and regardless of their media

 

Only operators authorised to operate in France can broadcast advertising, or run advertising broadcast by someone else, that targets the French public, insofar as it concerns games allowed (permitted games). In addition to the provisions of the applicable laws and all ARPP Codes, gambling advertising, in no matter what form, whether it is hyperbolic or not, must follow these ethical rules

 

1. Identification, truthfulness, loyalty

 

The ICC Advertising and Marketing Communications Code states: 'the Marketing communication should be framed as not to abuse the trust of consumers’ or exploit their lack of experience or knowledge' article 4 of the 2018 code Clause 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.Singularly:

 

  1. Gambling Advertising should be clearly identified as such, regardless of the form in which it is shown. This identification can be done by all means, clearly noticeable and allowing the consumer not to mistake on the nature of the advertising;
  2. The advertiser who made the ad must be clearly identifiable. This identification must be readable and accessible to all consumers;
  3. For digital advertising communications, the provisions relating to the methods of identifying the advertisement and the advertiser contained in the ARPP’s Digital Advertising Communication Code shall apply;
  4. Ads for Gambling in any form whatsoever must be clear, honest and truthful;
  5. Advertising should enable the consumer to identify, directly or indirectly, that the ad comes from an advertiser which is officially authorized by the French authorities to commercialize the advertised game.

 

2. Protection of minors

 

In addition to complying with the ARPP Children’s Code, (link is to the current French version, ARPP translation here), Gambling advertising should not target minors, given the legal prohibitions to which they are subject. To this end, the advertising of Gambling should not, in any way whatsoever:

 

  1. Represent a young audience purchasing a gambling related product or in the act of gambling, even if they are accompanied by adult(s);

    In this sense, operators undertake to ensure that the persons appearing in the advertisements are over 25 years of age.

    However, the following are excluded from this rule:

    High-level sportsmen and women of legal age. These are members of a team, club or sports federation whose activity is professional, jockeys and drivers who take part in horse races.
    Operators who use influencers or content creators, within the framework of commercial collaborations, referred to in the practical sheet 'Communication by influencers and brands' of the ARPP’s 'Digital Advertising Communication' Code, undertake to respect the provisions contained in this sheet.

  2. Suggest that minors can play these games, nor present gambling as a leisure activity generally reserved for minors or specifically practiced by them, including in a family context;
  3. Use visual, audio, verbal or written elements, or personalities, characters, real or imaginary, making it specifically attractive to young audiences;
  4. Present gambling as a sign of the transition to adulthood;
  5. Present gambling as a gift a child can give or receive.

 

3. Social values

 

"All marketing communication should be made with a due sense of social and professional responsibility" (Art. 1 Basic principles of the ICC’s Advertising and Marketing Communications Code). Thus, gambling ads should not, in any way whatsoever:

 

  1. Undermine human dignity;
  2. Devalue efforts, work, education, compared to gambling;
  3. Present gambling as a livelihood activity rather than as entertainment;
  4. Present gambling as the motor of social success; the notion of social success covers sentimental and sexual success, fame, power, the admiration of others, and ostentatious signs of material wealth that would be excessive;
  5. Denigrate the public who do not play or, inversely, confer social superiority to those who play;
  6. Present the family or social relationships as secondary to the game;
  7. Encourage uncivil, violent or even illegal behaviour;
  8. Exploit feelings of fear or suffering;
  9. Convey a message contrary to the commonly accepted principles of sustainable development within the meaning of the ARPP 'Sustainable Development' Code, the content of which applies in all its provisions.

 

4. Responsible gambling

 

Gambling advertising should not promote, trivialize or encourage a practice of excessive play, immoderate or likely to put the player in financial, social or psychological peril. To this end, Gambling advertising should not, in any way whatsoever:

 

  1. Suggest that the player wins every time, or that the repetitiveness of the game will necessarily make him win or that increasing gambling frequency increases the probability of winning;
  2. Suggest that the player’s skill and experience will enable him to eliminate or greatly reduce any chance or uncertainty on which the win depends. Even in the case of sports or horse-racing pronostics (prognostics), where expertise may be involved, advertising must not lead people to believe that it will enable the player to win systematically;
  3. Associate repetitive game situations, uncontrolled, compulsive or excessive bets to (with) strong emotions;
  4. Represent behaviours of a compulsive gambler, as defined by medical authorities, in a positive way;
  5. Incite excessive risk-taking that would put the player in difficulty;
  6. Present the game as a way to recover gambling losses;
  7. Suggest that the game is a way to solve financial difficulties, temporarily or permanently;
  8. Present the game as an escape from facing personal, professional or psychological or social difficulties;
  9. Give the impression that excessive gambling losses could be without consequence, regarding the player’s situation;
  10. Present a credit offer at the same time as the presentation of a game.

 

Highlighting promotional offers must be done responsibly, for the sake of moderation, transparency and good consumer information, especially in terms of counterparty and/ or commitment expected from him (La mise en avant d’offres promotionnelles doit se faire de façon responsable, dans un souci de modération, de transparence et de bonne information du consommateur, notamment en matière de contrepartie et/ ou engagement attendu de sa part.)​

 

 

The CPP (Conseil Paritaire de la Publicité), mission here, is the ‘think-tank’ within, but independent from, ARPP. Its ‘brief’ to ARPP for the most recent Code for Gambling Advertising envisaged three objectives for the regulatory framework:

 

  • Protect the young audience
  • Promote the development of responsible gambling
  • Inform the player-consumer

 

Their advice/ brief is linked below. These are not rules per se, but can be helpful in understanding the context in which rules are developed, and therefore the ‘atmosphere’ around regulation of gambling advertising

 

https://www.cpp-pub.org/avis/avis-publicite-des-jeux-de-hasard/ (FR)

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

 

1.2. Adjudications/ rulings

 

  • There's a recent (October 2021) and significant ruling that concluded 'complaint unfounded' in a case against Winamax here. The complaint related to the use of the advertiser's (registered) selling line 'Grosse cote, gros gain, gros respect' in the context of Euros 2020. From the adjudication (unofficially translated): An ARPP / ANJ operational working group has been created and allows an exchange of expertise on practical cases. The ARPP was thus able to share its analysis on Winamax's communication in general and more specifically on the line 'Grosse côte, gros gain, gros respect.' The two bodies agreed on its compliance as the rest of the message does not communicate that gambling contributes to social success.' 

 

From the 2015/2016 ARPP Review of Gambling Advertising (FR)

 

Top line findings are that out of a total of 3,857 messages analysed, fifteen do not comply with the ARPP Gambling Recommendation, i.e. 0.4%. Of those fifteen:

 

  • Three messages contravened Identification rules (Art. 1.1a of the Gambling Code)
  • One message contravened social values (Art. 1.2)
  • Six messages contravened rules for protection of minors (Art. 1.3)
  • Five messages contravened rules for portrayal of responsible gambling (Art. 1.4) 

 

The advertising that transgressed minors’ rules included a reference to a quasi-superhero, and characters from ‘My Little Pony’:

http://www.g-regs.com/downloads/FRGamRulingMLP.png

 

 

 

And from the same review as linked above are two not particularly subtle examples of ‘responsible gambling’ transgressions:

 

http://www.g-regs.com/downloads/FRGamRespGamruling.png

https://www.g-regs.com/downloads/FRGamRespGamRuling2.png

 

 

 

Extended by The Decree of July 11, 2023 (FR) on the warning message against excessive or addictive gambling that must appear on online commercial communications - in force 10 August 2023;

 

 

  • Article D320-2 of the Internal Security Code (building on the legislative part and article L320-12), from the Decree 2020-1349 of 4 November, requires: any commercial communication for a gambling operator is accompanied by a warning message about the risks associated with gambling. This message, which must appear on each advertising or promotional medium, includes in particular the number of the online communication service of the public player assistance system set up under the responsibility of the national public health agency
  • To be presented in an accessible and easily readable manner, consistent with its public health context and clearly distinguishable from the advertising or promotional message that accompanies it
  • The way in which the messages should be incorporated by channel is covered under articles D320-2 to D320-8 of the ISC and the Ministry of Health Order of 29 July, 2022 (FR). Also see above ANJ Guidelines and Recommendations (Reco 5)
  • A Winamax commercial from this market is here, showing the July 2022 message as required by the MoH order linked above
  • All commercial communications for gambling operators are subject to the following unchangeable warning message:

​

- d'une taille au minimum de 39 % de la hauteur du cartouche pour les mots: 'LES JEUX D'ARGENT ET DE HASARD PEUVENT ÊTRE DANGEREUX : PERTES D'ARGENT, CONFLITS FAMILIAUX, ADDICTION…' 

- a size of at least 39% of the height of the title block for the words: 'GAMBLING AND BETTING CAN BE DANGEROUS: LOSS OF MONEY, FAMILY CONFLICTS, ADDICTION...'
- d'une taille d'au minimum 37 % de la hauteur du cartouche pour les mots: 'RETROUVEZ NOS CONSEILS SUR JOUEURS-INFO-SERVICE.FR (09 74 75 13 13 - APPEL NON SURTAXÉ)'
- a size of at least 37% of the height of the title block for the words: 'FIND OUR ADVICE ON PLAYERS-INFO-SERVICE.FR (09 74 75 13 13 - non premium rate)'

 

Radio

 

When advertising, sponsorship or promotional messages are broadcast, the message is transmitted immediately after the advertising, adapted as follows: 'Gambling and betting can be dangerous: loss of money, family conflicts, addiction… Find our advice on players-info-service.fr and on 09 74 75 13 13, non-surcharged call.'

According to this article (FR), radio operators will not sign the associated charter as this requirement discriminates against radio when the message can take up 50% of a commercial

 

 

 

The Internal Security Code incorporates under Book III, Title II several provisions from article 45 of Decree 2020-1349 of 4 November 2020 relating to the methods of regulation of the National Authority (FR). The key content rules are (translations are unofficial and non-binding; only the original French determines):

 

  • February 2022: the ANJ established Recommendations and Guidelines (FR with background and link to downloadable pdf, or pdf here), which are based on/ relate to the legislative framework and which 'clarify the meaning it intends to apply to the provisions of Articles D. 320-9 and D. 320-10' Those guidelines are translated here

 

Article D320-9

 

  • Any commercial communication for a gambling operator is prohibited:
     
  • When it encourages excessive gambling, trivialises or promotes such practice;
  • When it suggests that gambling contributes to social success;
  • When it contains unsubstantiated statements on the chances that players have to win or the winnings that they can expect;
  • When it suggests that gambling can be a solution to personal, professional, social or psychological difficulties;
  • When it presents the game as an activity that can earn a living or as an alternative to paid work.


Article D320-10

 

  • The following are prohibited in commercial communications for gambling:
     
  • Any depiction of minors or any representation of minors in a purchasing situation;
  • Any advertising encouraging minors to consider that gambling is a natural part of their leisure time;
  • Any depiction of personalities or characters pertaining to the world of minors;
  • Any advertising aimed at children or adolescents, or particularly attractive to them especially by way of visual, audio, verbal or written elements.

 

Article D320-2

 

  • Any commercial communication for a gambling operator is accompanied by a warning message on the risks associated with gambling. This message, which must appear on each advertising or promotional medium, contains in particular the number of the online communication service of the public player help system established under the responsibility of the national public health agency;
  • It is presented in an accessible and easily readable manner, consistent with its public health vocation and clearly distinguishable from the advertising or promotional message that accompanies it;
  • A decree from the Minister of Health specifies the content and the methods of posting and disseminating this message (see section on Warning Messages above).

 

Articles D320-3 to D320-8 cover layout requirements by channel and are shown by medium in our following Channel Section C

 

 

TV, radio, audiovisual media services rules 

 

The decision from the French audiovisual regulation authority (CSA) No. 2013-3 of January 22, 2013 on broadcasting conditions of authorised gambling advertising here (FR; our translation of key clauses below. Where there may be room for interpretation we have shown the original French, or see link) includes some content rules, as follows: 

Above repealed and updated by Arcom Délibération du 19 octobre 2022 (FR)

 

  • The Arcom decision/ resolution linked above repeals and replaces Délibération no. 2013-3 du 22 January 2013 and takes into account the guidelines and recommendations adopted on February 17, 2022 by the ANJ (see above); it applies to television, radio and 'on-demand audiovisual media services.' Extracts unofficially translated below 
  • The resolution pays particular attention to the protection of minors, defining the services and programmes presented as being aimed at minors and prohibiting gambling commercial communications within them and thirty minutes before and after them in the case of radio and television; those audiovisual media services with a 'space' for minors may not run gambling marcoms within that space
  • Identification of commercial communications and purpose. Commercial communications must clearly state that they offer a legally authorised gambling service. Similarly, the advertiser must be clearly identified at the outset of the communication
  • Protection of minors. Any portrayal of minors, whether or not they are in a purchasing situation, any showing of minors in a purchasing situation and any encouragement of minors to play games of chance and risk (à jouer à des jeux d’argent et de hasard) is prohibitedCommercial communications should not make games of chance and risk particularly attractive to minors by way of visual, audio, verbal or written elements, nor portray personalities, characters or heroes from the world of children or adolescents or with a particularly strong reputation among these audiences. Such a profile may be a function of the participation of the personality, character or hero of promotional activities (advertising, sponsorship, brand promotional events, etc.) specifically intended for minors, where such participation is concurrent with the dissemination of commercial communications for a gambling operator or took place in the year preceding it
  • Commercial communications must not imply that minors have the right to gamble or encourage minors to consider gambling as a natural part of their leisure time 

 

 

  • February 2022: the ANJ established Recommendations and Guidelines (FR with background and link to downloadable pdf, or pdf here), which are based on/ relate to the legislative framework provided by the Decree of November 4th 2020 (FR; see below).
  • Those guidelines and recommendations have been translated here. All translations are non-binding and unofficial; only the original text in French applies 
  • October 2022: the ANJ published Guidelines and Recommendations on Financial Incentives FR / EN unofficial translation. Includes the legal framework for commercial communications that contain 'financial reward' and applies that to the industry activity together with some guidelines on transparency of the offer and recommendations on the volume, frequency and amount of financial incentive and how and to whom communications are conveyed

 

 

EU Commission Recommendation 2014/478/EU on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online: this is a recommendation (and therefore non-binding) on responsible gambling advertising, with particular focus on minors (Chapter IV) and covering inter alia commercial communications (Chapter VIII) and sponsorship (Chapter IX)

​

 

6.1. All sectors

 

As referenced earlier, the general advertising rules that apply to all sectors, gambling included, are from the ICC’s Advertising and Marketing Communications Code. The applicable code in this context is that in French (2024). The English version is here. Chapters are:

 

A.  Sales Promotion

B.  Sponsorship

C.  Data-driven & Direct Marketing; Digital Marketing Communications

D.  Environmental Claims in Marketing Communications

E. Children and Teens (2024)

 

6.2. Notes and overlays/ titles

 

The full Code is in English here:

http://www.arpp.org/wp-content/uploads/2016/09/Notes_and_overlays.pdf

 

And in French here:

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Mentions-et-renvois-ARPP.pdf

 

6.3. Identification

 

Identification of advertising and marketing communications and the advertiser

http://www.arpp.org/wp-content/uploads/2016/09/Identification_Code.pdf (EN)

 

In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Identification-de-la-publicit%C3%A9-et-des-communications-commerciales-ARPP.pdf (FR)

 

The code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ARPP Guidance on Influencer Marketing (Video sub-titled)

 

6.4. Digital Advertising and Marketing Communications

 

  • The principal self-regulatory influence in online channels is ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR). The code covers various techniques/ formats online such as native advertising, OBA, brand content and some rules for Influencer marketing. This is Version 5; key changes from Version 4 are shown in the ARPP press release of December 2021 here. There's more under the General tab below as the rules, per above, apply to all sectors

 

6.5. Portrayal and Respect of People (EN)

 

http://www.arpp.org/wp-content/uploads/2016/09/Portrayal-and-respect-of-the-human-beings-Code.pdf

 

In the original French (Recommandation Image et Respect de la Personne):

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Image-et-respect-de-la-personne-ARPP.pdf

 

The Code, introduced in 2016, covers such aspects as Dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B under the General tab, or click above

 

 

  • The Unfair Commercial Practices Directive (UCPD) 2005/29/EC includes advertising in its scope. In France, the directive is implemented by the Consumer Code (Code de la Consommation; the link is to a May 2022 English translation of the key clauses)
  • While the Consumer Code is as much to do with marketing or trading as communicating, sub-section 2 articles L122-1 to L122-7 set out comparative advertising rules, articles L122-8 to L122-10 include rules on the identifiability and accessibility of competition terms and conditions, and email communications. Importantly, article L121-3 deals with an ‘Invitation to Purchase.’ Section 9 covers lotteries
  • Amends of the Consumer Code driven by the 'Omnibus' Directive 2019/2161 effective May 28, 2022 require, in an e-Commerce context, information on search rankings and consumer reviews; promotional pricing also has some new rules under article L112-1-1. Check under the General tab below for full information

 

 

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

General

SECTION B CONTENT RULES

 

 

 Notes

 

  • All advertising, in all media, must be in French (Loi Toubon). Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product
  • The core of the marcoms content rules in France is the ICC Code (EN 2024), applied in its French version (2024 translation) by ARPP. Around this, the regulator has created a number of specific proprietary codes on subjects of particular national import. As the ICC code also covers those issues more generally, we show both sets of rules as both apply. This makes for a rather lengthy and complex presentation, for which apologies (on behalf of the French)
  • The 2024 ICC Code is subject to consultation in France, as it represents the 'base' of some 31 ARPP recommendations. Planned completion Summer 2025; formal launch (and translation) of the code scheduled for November 4th. Meanwhile, copy advice is already deploying the 2024 version

  • Per above, France has a lot of rules, so this section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

1. SELF-REGULATION: GENERAL & SPECIFIC RULES

1.1. The ICC Code: key extracts 

1.2. Portrayal of people

1.3. Sustainability

1.4. Safety Code

1.5. Pricing: ARPP Code

1.6. Notes and overlays/ titles

1.7. Online channel/ digital

 

2. LEGISLATION IN FRENCH ADVERTISING

2.1. Invitation to purchase

2.2. Comparative advertising

2.3. Pricing regulations

2.4. Carbon claims

2.5. Other 'green' claims 

2.6. Broadcast content rules

2.7. Model shots

 

1. SELF-REGULATION: GENERAL & SPECIFIC RULES

 

1.1. The ICC Advertising and Marketing Communications Code 

Some key extracts from the ICC Code in English are set out below; 2024 amends shown in italics

To avoid great length, we show only the most commonly applied articles and some new ones 

 

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 and transparency (Art. 7/8)

 

  • 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.
  • 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”). Art. 8

​

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.

 

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.

 

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.

​

Other clauses and chapters

 

  • Chapters from the Code are Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E)
  • Where the rules are channel-related, i.e. more about placement than content, they are shown or referenced in our following channel section C
 

 

The full code is here in English

And here in French

 

Advertising must respect, no matter its form, the following principles:

1. Dignity and decency

 

  • Advertising must not be offensive, harmful, provocative or shocking by displaying images of human beings that offend their dignity or decency (Art. 1.1)
  • When nudity is used in an advertisement, it must not be degrading or alienating and must not reduce human to object (Art.1.2)
  • Any degrading or humiliating representation of human beings, in an explicit or implicit way, is prohibited, notably by the use of words, attitudes, postures, gestures, sounds, etc., that are detrimental to human dignity (Art. 1.3)

2. Stereotypes

 

  • Advertising must not reduce human beings, and especially women, to the role of an object (Art. 2.1)

  • Advertising must not condone the idea of inferiority of a person because of their gender, origin, belonging to a social group, sexual orientation or sexual identity, or any other criteria, notably by reducing the person’s role or responsibilities in society (Art. 2.1)
  • Advertising must not encourage, even indirectly, exclusion, or sexist, or intolerant feelings or behaviours (Art 2.3)

 

3. Ethnic or religious references 

 

  • Advertising must pay particular attention to avoid making any reference, even indirectly, to racism or sectarianism (Art. 3.1)
  • Any allusion, even humouristic, to a pejorative aspect or inferiority because of the belonging to an ethnic group or a religion is prohibited (Art.3.2)
  • Expression of stereotypes concerning ethnic groups, religious groups, etc., must be done with a high level of precaution (Art. 3.3)
  • Concerning actual religious references, rituals and Holy Scriptures should not be used in a way to ridicule or shock believers (Art. 3.4)

 

4. Submission, dependence, violence 

 

  • Advertising must not induce ideas of submission or dependence depreciating human beings, and especially women (Art. 4.1)
  • Any complacent presentation of domination and/ or exploitation of one person by another is forbidden (Art. 4.2)
  • Advertising must avoid all scenes of violence, direct or suggested, and must not encourage moral or physical violence. The notion of violence covers, at least, all illegal acts punishable by law (Art. 4.3)
  • Direct violence is the presentation of violent acts themselves. Suggested violence is conveyed by an atmosphere, a situation or a result of a violent act. Moral violence notably includes behaviours of domination and harassment (moral or sexual) (Art. 4.4)
  • Advertising must not, under any circumstances, trivialise violence through its messages, statements and presentations (Art. 4.5)
 

5. Image and other human characteristics

 

  •  “Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained” Article 14-1, ICC Code (Art.5.1)
  • It is forbidden to present a person in an advertisement by using either a voice double or image double without prior authorisation of the person or his beneciariesti (sic.) 5.2

 

1.5. Sustainability

 

See also the 2021 legislation under point 2 below 

The full ARPP code is here in English and here in French

 

  • The code was amended in April 2020, in force August. More recently, a video presentation of the code was published (in French, with English sub-titles). The changes, shown here (EN), are primarily to article 1 (formerly 9) and not hugely significant, though all new clauses should be read with care. In particular, there’s a ‘tweak’ to the clause related to cars in the environment. See article 1.1 (e) below  
  • Extracted below are the key clauses of the 2020 code. For scope, definitions etc. refer back to the code linked above
  • Note: without further specifications, the rules below pertain to the overall issue of sustainable development. When the rules apply only to the environmental component of sustainable development, it is specified as such
  • In addition to specific French and Community legislation, these advertisements need, no matter what form they take, to comply with the International Chamber of Commerce Advertising and Marketing Communications Code  (EN 2024) and the principles enshrined in Chapter D ‘Environmental Claims in Marketing Communications’ of the same Code) and with the following ethical rules:

 

1. Eco-citizen impacts 

 
  • Advertising must take place in a context of social responsibility by taking into account, in particular, the sensitivity of the social community at a given time and the context in which the advertising is disseminated
  • Without referring to the concept of sustainable development or any of its components, an advertisement must avoid conveying a message contrary to the commonly accepted principles of sustainable development. In this spirit:
 
  • 1.1 Advertising must prohibit any representation likely to trivialize or promote practices or ideas contrary to the objectives of sustainable development. By way of example:
 
  1. Advertising must ban any evocation or representation of behaviour contrary to the protection of the environment and the preservation of natural resources (waste or degradation of natural resources, damage to biodiversity, air, water or soil pollution, climate change, etc.), except in the case of denunciation
  2. Advertising may not directly or indirectly incite excessive consumption patterns or patterns contrary to the principles of the circular economy. In this respect, it must not encourage waste through the scrapping of a product or its degradation while it is still working and/or remains consumable, without taking into account – where possible – its durability, reuse, second life or recycling
  3. Advertising must avoid, in its discourse, minimizing the consequences of the consumption of products that may affect the environment
  4. Advertising must prohibit any representation or evocation of behaviour contrary to the recycling of products or their specific method of treatment
  5. The representation of a motor vehicle on a natural area is prohibited. On the other hand, its representation on a public or private road or area open to traffic, recognizable as such and clearly distinguished from the natural area is permitted (amended from the clause in the previous code, which read: The representation, in any form whatsoever, of motor vehicles in a natural environment should clearly position them on roads open to traffic)
  6. advertising must not appear to endorse working conditions which are contrary to social and human rights. For this reason, advertisements which appear to condone child labour, any form of discrimination, moral harassment, insufficient health and safety conditions are excluded
  7. Advertising must prohibit all statements or visual representations likely to generate irrational or unfounded fears
 
  • 1.2 Advertising must not discredit the principles and objectives, as well as advice or solutions, commonly accepted with regard to sustainable development. Advertising shall not detract from the purpose of environmental protection messages or measures taken in this area

 

2. Truthfulness of actions 

 

  • 2.1 Advertisements must not mislead the public about the actual actions of the advertiser or the properties of its products in terms of sustainable development 
  • 2.2 The actions of advertisers and the properties of their products in this area should be significant before a claim can be made 
  • 2.3 The advertiser must be able to support its sustainable development claims by means of evidence that is reliable, objective and verifiable at the time of advertising. For any message based on a scientific claim, the advertiser must be able to present the origin of the findings and methodology used for the calculation. Advertisements may not resort to demonstrations or scientific conclusions that do not conform to generally approved scientific findings 
  • 2.4 Advertisements cannot make a general sustainable development claim if the commitment of the advertiser does not cumulatively include the three pillars of sustainable development (see below) 

 

The three pillars

 

For businesses, sustainable development means in this sense to balance the following three pillars:

  • Environmental: impact of activities on the environment
  • Social/ societal: working conditions of employees, information policies, training, remuneration, subcontracting, existence and quality of relations with civil society, public health, etc.
  • Economic: relations with customers, suppliers, shareholders, etc.
 

3. Proportionality of messages 

 

  • 3.1 The advertisement must accurately express the action of the advertiser or the properties of its products, in accordance with the available and communicable evidence (*the term ‘and communicable’ is an amend/ addition to this article).The reality of these actions or properties may be assessed in the light of the different pillars of sustainable development, the different types of impacts and the various stages of a product's life-cycle 
  • 3.2 The advertising message must be commensurate with the scale of the advertiser’s action(s) in terms of sustainable development and the properties of the product(s) he/ she is promoting 
  • 3.3 In particular:

 

a. The advertisement should not be presented in such a way as to imply that it relates to more pillars of sustainable development, more stages of a product's life-cycle or more impacts than can be justified by the evidence;

b. The message should not unduly suggest a total lack of negative impact;

c. The presentation of action(s), product(s) at an experimental or project stage (prototype, R & D, investment ...) must be clearly presented as such and their scope should not be exaggerated 

 

4. Clarity/ qualifications of messages 

 

  • 4.1 The advertiser should add clear background information in the advertisement about the qualities the advertised activities or products claim to have 
  • 4.2 If the argumentation is only valid in a particular context, it should be presented clearly as such 
  • 4.3 When an explanation is necessary, it must be clear, legible or audible, and thus meeting the requirements of the Terms and References Code of the ARPP 
  • 4.4 In cases where this explanation is too long to be included in the advertisement, essential information must be included, together with a reference to some means of communication allowing the general public to obtain further information 
  • 4.5 Any messaging within an advertisement based on a scientific study must indicate the source 
  • 4.6 Any argumentation about a decrease of a negative impact or an increase of efficiency must be precise and accompanied by detailed figures, indicating the basis for the comparison 
 

5. Loyalty

 

  • 5.1 The advertising must not attribute exclusive virtues in terms of sustainable development to a product or an advertiser when competitor products or competitors have similar properties 
  • 5.2 An advertiser cannot claim that certain actions are exclusive to it if they are imposed on all by existing regulation. This does not rule out the possibility for an advertisement, for pedagogical purposes, to inform about the existence of regulation in order to promote its implementation 
  • 5.3 An advertisement should not unduly create a link between general corporate actions of an advertiser concerning sustainable development and the properties of a product 
  • 5.4 Concerning ecological claims:

 

a. An environmental claim should not emphasise the absence of a component, ingredient, characteristic, or impact (typified by formulations such as "without ...“, or "no …", or "…-free") that never affected the family of products or activities presented by the advertisement;

b. A claim that a product does not contain an ingredient or a specific component (typified by formulations such as "without …“, or "no …", or "…-free") should be used only in line with the rules of the competent authorities that define the maximum thresholds, or, failing that, under the conditions laid down in ISO 14021

c. A reduction of a negative impact should not be presented as a direct “recovery” of natural ecosystems

 

6. Signs, labels, logos, symbols, self-statements 

 

  • 6.1 Signs or symbols may be used only if their origin is clearly indicated and if there is no likelihood of confusion about their meaning. Further explanations regarding the meaning of these symbols should be made according to the conditions set by article 3.4 of this text 
  • 6.2 These signs should not be used in ways that suggest unfounded official approval or certification by a third party 
  • 6.3 The advertisement must not attribute a higher value to any signs, logos or symbols used in the ad than they actually have 
  • 6.4 The use of logos of associations, foundations or any other body should not create a misleading link between the partnership with these bodies and the properties of the product(s) or the action(s) presented 

 

7. Vocabulary

 

  • 7.1 The terms and expressions used must not mislead the public about the nature and scope of the product's properties or the advertiser’s actions in terms of sustainable development 
  • 7.2 When the terms and expressions used are already defined by a standard, they must be employed in a way that fits this definition 
  • 7.3 Where it would be impossible to justify general formulations (e.g., ecological, green, ethical, accountable, to preserve, fair, sustainable, etc.), advertising must make these claims relative by using formulations such as "helps to…" 
  • 7.4 Words, phrases or prefixes used must not unduly reflect a lack of negative impact of the product or activity of the advertiser 
  • 7.5 Technical vocabulary, scientific or legal, may be used if it is appropriate and used in a way that can be readily understood by those to whom the message is directed 

 

8. Visual or audible elements in an ad

 

  • 8.1 The visual or sound elements in an ad should be used in a manner proportionate to the ecological argumentation of the ad and the evidence that supports it.
  • 8.2 They should not be used in a way that suggests a guarantee of safety if this cannot be justified.
  • 8.3 Without excluding their use, the use of natural elements or evoking nature must not mislead the consumer about the environmental properties of the product or the actions of the advertiser.
  • 8.4 When an advertisement uses an environmental claim, it cannot assimilate directly a product that has a negative environmental impact to a natural element (e.g. a car like an animal, a plane covered in plants, etc.)

 

9. Complex systems 

 

Some recognised systems may be based on highly technical argumentations or complex schemes, whose benefits in terms of sustainable development are indirect (e.g., systems known as “green electricity”, “carbon offset”, “socially responsible investments”, etc.). When an advertisement refers to these types of systems:

 

  • 9.1 It should take care not to mislead the public about the true scope of the mechanism 
  • 9.2 If it uses simplified language for educational purposes it must provide the public with the necessary explanations, as per the conditions defined in article 3-4 of this Code 
  • 9.3 The advantage of using systems to indirectly compensate the negative impact of a product or an activity should not be referred to in the ad as being a direct quality of the product or activity

 

Additional ICC guidance

 

 

1.4. Safety

 

Safety Code: Dangerous Behaviours and Situations (EN) 

 

Context

 

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…. Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk. ICC Code, Article 21

(…)  Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic. ICC Code, Article 18.3 Avoidance of harm (Note - this article not in the 2024 code; see article 20, Children and Teens under General Principles and Chapter E for more 

 

The following rules must be respected in all commercial communications, in addition to law and regulation applicable to dangerous objects, products or behaviours:

 

1. General principles 

 

Commercial communications must not show dangerous or potentially dangerous behaviours or situations and must not encourage engagement in such behaviours and/ or situations:

 

  • Whether or not they are associated with the use of a product or an object
  • Whether or not the object or product is dangerous

 

The different cases must be assessed regarding the context of the advertisement, the persons presented, the graphic design used, the artistic world reproduced and the public targeted

 

Specific context

 

Certain dangerous behaviours can nevertheless be accepted, for example:

 

  • The presentation of a professional athlete or a sportsman, practicing his sport or his discipline, and identified as such in the advertisement
  • The presentation of figurines or imaginary characters;
  • The presentation of an unrealistic or clearly absurd context, making the behaviour impossible to replicate in real life;
  • The total or partial reproduction of a work, in the context of its promotion or exploitation (movies, series, documentary, reports, etc.)

 

2. Particular cases: children

 

  • Particular attention must be given to scenes portraying children or advertisements targeting children. The presence of a supervising adult can reduce the potentially dangerous nature of a presented situation.
  • Promotion of safety or health: If one of the assertive goals of the advertisement is to promote safety or health, it can be legitimate to show a dangerous situation or behaviour in order to condemn it. The denunciation of a dangerous behaviour or situation must be unambiguous, in order not to lead to the opposite result,

 

 

1.5. Pricing

 

The ARPP code is in French here

An ARPP English translation is here; key clauses below and in individual channels in the following section C

  • The price must be legible in normal reading conditions. Characters used must be:

 

  • Of a sufficient size
  • Normally spaced apart
  • In a font allowing an easy reading (without it being necessarily consistent throughout the advertising)
  • In a colour that contrasts with the background colour of the advertising, for instance, avoiding a light colour against a light background

 

  • When a sign accompanies the price and is used to make a reference to a related remark, the size of this sign next to the price must be large enough to be always legible under normal reading conditions (1.1)
  • The intelligibility of the price implies to use of a wording allowing the consumer to understand it without difficulty and in a non-erroneous way (1.2)
  • Thus, the presentation of the price (s) must allow the consumer: to link the price (s) presented with the product or service he / she will benefit for this amount of money, and to know whether there are conditions or restrictions (1.2)
  • When several prizes (prices) appear in the same advertisement, it is always possible to highlight one of these prices. In order to do so, the different prices may be presented with different font sizes, provided that they comply with the aforementioned principles of legibility, intelligibility, clarity and transparency (3.1)
  • The presentation of several prizes in an advertisement should not lead to any ambiguity for the consumer as to the relationship between the prices and the products or services to which they correspond (3.1)
  • The ‘TTC’ price (i.e. including taxes) must be included in advertisements targeted to consumers. When the price excluding tax is also indicated, the ‘TTC’ price shall not be less readable than the ‘HT’ (excluding taxes) price - in terms of font size, contrast, duration of exposure on the screen or positioning in the advertising (3.2)
  • In the case of an advertisement indicating a price  ‘starting from’, the price of the product or products represented must be perfectly legible and easily identifiable by the use by any appropriate means (character size, character colour, location, use of bold type, underlining etc. (3.6)

 

1.6. Notes and overlays/ titles

 

The full code is in English here

And in French here

  • We have not extracted the code here as it’s quite extended and fragmented
  • Section II shows specific rules concerning notes linked to a price; see links above  
  • Where rules are channel-specific we have included them in the relevant channel under Section C

 

1.7. Online Channel/ Digital

 

ARPP’S 2021/22 Digital Advertising and Marketing Communications Code (V5) in French here

And in English here

 

The code was announced in December 2021, in force January 1, 2022; key changes are shown in the press release here in English. The code covers inter alia Identification, Protection of children and teenagers, Compliance with good societal practice, User-generated content and 'Comfort of use.' It includes a list of applications which provides guidelines by channel/ techniques such as Promotional blogs/ Influencers, Native advertising, Behavioural advertising and retargeting, In-game advertising and Apps. As the code largely relates to channel issues, it is spelt out in the relevant sections in that section (C) below

 

See also Chapter C Direct Marketing and Digital Marketing Communications of the 2024 ICC Advertising and Marketing Communications Code, on whose principles the ARPP code above is based

 

2. LEGISLATION IN FRENCH ADVERTISING

 

The Consumer Code (CC; FR)

Key clauses in English here

 

The Consumer Code (CC), English translation of key clauses linked above, is the core legislation in business-to-consumer commercial communications, and the home of transposition of the Unfair Commercial Practices Directive 2005/29/EC. While many of the CC’s communication requirements will be reflected in self-regulation, it’s as well to be aware of the legal context. There are three relevant components below, but meanwhile the 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) incorporated specific reference to environmental impact under article L121-2 of the CC. Clauses in English from the linked document above

 

 

2.1. Invitation to purchase

 

If your ad or ‘commercial communication’ constitutes an ‘invitation to purchase’ - defined as “indicating 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” - article L121-3 of the Consumer Code requires that the following must be included:

 

  1. The main characteristics of the good or service
  2. The address and the identity of the trader
  3. The price, including tax and delivery costs that will be charged to the consumer, or, if this cannot be calculated in advance, the method of calculation used
  4. The arrangements for payment, delivery, performance and handling of consumer complaints, when they differ from those established in the professional sector concerned
  5. The existence of a right of withdrawal, should this be provided for by law

 

Guidance from the EC here (December 2021)

 

2.2 Comparative advertising

 

Les conditions juridiques de la mise en place d’une publicité comparative from Novagraaf July 25, 2024 sets out the issues for comparative advertising, referencing case law and the relevant clauses from the Consumer Code, shown below 

 

Article L122-1

 

Any advertising that makes a comparison between goods or services by identifying, implicitly or explicitly, a competitor or goods and services offered by a competitor is only legal if:

 

1. It is not false or likely to mislead

2.  It relates to goods or services fulfilling the same requirements or having the same objective

3. It objectively compares one or more essential, pertinent, verifiable and representative characteristics of these goods or services, one of which may be the price

 

Article L122-2 Comparative advertising may not:

 

1. Take unfair advantage of the reputation attached to a trademark, manufacturer’s brand or service mark, to a trade name or to other distinctive marks of a competitor or to the designation of origin as well as the protected geographical reference of a competing product

2. Lead to the discrediting or denigration of marks, trade names, other distinctive signs, goods, services, activity or situation of a competitor

3. Cause confusion between the advertiser and a competitor or between the advertiser’s marks, trade names, other distinctive signs, goods or services and those of a competitor

4. Present goods or services as an imitation or reproduction of goods or services with a protected mark or trade name

 

 

  • For products with a protected designation of origin or geographical reference, comparison is only authorised between products with the same reference or designation of origin (Art. L122-3)
  • The display of comparative statements as defined in articles L.122-1 and L.122-2 on packages, invoices, travel tickets, means of payment or tickets giving access to shows or sites open to the public is prohibited (Art. L122-4)
  • The advertiser on whose behalf the comparative advertising is being circulated must be in a position to prove, within a short time, the factual accuracy of the statements, references and presentations contained in the advertising (Art. L122-5)

  • The publication in the press of advertising as defined in articles L. 122-1 and L 122-2 does not give rise to the application of article 13 of the law of 29 July 1881 in the freedom of the press and article 6 of law no. 82-652 du 29 July 1982 on audiovisual communication (Art. L122-6)

 

2.3. Pricing regulations

 

Pricing regulation is from a number of sources in law; below are the most relevant:

 

  • The Consumer Code (FR/ EN) articles L112-1 to L112-4 and articles L121-2 and L121-3, the latter in the context of an invitation to purchase and transposing UCPD 2005/29/EC requirements in that respect; see 2.1 above. Article L121-4 points 5 to 7 carries promotional pricing rules (see also point below)
  • Article L112-1-1 effective May 28, 2022 carries the promotional pricing rules transposed from the Directive 2019/2161 which in turn amended the Product Pricing Directive 98/6/EC. The Directive's article is here; Commission guidance on the application of the article here
  • Decree of 16 November 1999 (FR) on advertising to the consumer of the selling price per unit of measurement of certain pre-packed products. This Decree transposes the Product Pricing Directive 98/6/EC. While this legislation seems most suited to ‘goods on shelves’ as it requires unit prices (the selling price, including VAT and all other taxes, for one kilogramme, one litre, one metre etc.), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. We can't trace in the French legislation an important definition for 'selling price'. That term is defined in the Directive as 'the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes.' The issue here is the inclusion of '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.' (from the Judgement linked, pt. 37). 
  • The DGCCRF (the competition/ markets authority) published in December 2018 Information on Prices (L’information sur les prix) which brings together a number of sources of rules

 

See also pricing from self-regulatory measures shown in full under point 1 above

ARPP Price Advertising Recommendations (FR)

An English translation is linked below; key clauses above under Pt. 1.7 and in individual channels

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

 

2.4. Carbon claims 

 

The Climate and Resilience Law (FR) introduced via Decree 2022-539 of April 13, 2022 (FR) on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code. The clauses concerned are in English here. These require substantial evidence to be made available in the event of a 'carbon neutral' or equivalent statement being made

 

2.5. Other 'green' claims 

 

Environmental claims are highly sensitive territory in most markets and especially in France. Both the self-regulatory body and the statutory authorities are très chaud on the issue

  • In addition to the above section on carbon and associated claims, there are other significant environmental information measures aimed at 'waste-generating' products, which include a ban on terms such as 'environmentally friendly' or 'biodegradable' on products and packaging; details to be developed via decree in the coming months; see Better consumer information on the environmental qualities of products from Bird&Bird June 2022, Decree 2022-748 here (FR)
  • The Consumer Code (CC) - principal legislation in advertising content and incorporating transposition of the Unfair Commercial Practices Directive 2005/29/EC - was amended by the 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021 - FR; art 10) to include specific reference to environmental impact under CC article L121-2, which sets out how a product or service's 'essential characteristics' must not mislead. The full article can be found here in English and the Consumer Code is here in French
  • There are two further directives on their way into national law: 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, though we suspect France will implement quickly. Basically, the Directive is an amendment of the UCPD: 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
  • 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 
  • See also the Practical guide to environmental claims (FR) published by DGCCRF (General Directorate for Competition Policy, Consumer Affairs and Fraud Control) and the Consumer Council May 25, 2023

     

2.6. General content rules in broadcast

 

From the consolidated version of Decree 92-280 of 27 March 1992 (EN) transposing Directive 2010/13/EU (the AVMS Directive, AVMSD)

 

Directive 2018/1808 amended the AVMSD to extend scope into e.g. video-sharing platforms. Provisions are applied in Law 86-1067 of September 30 1986 (the Léotard law) in French here. The commercial communications content elements of the directive’s changes, which are not significant, are shown here (EN). What is significant, however, is the pressure placed on self-regulatory systems with the addition of article 4a (shown in the linked file), which appears to require a more aggressive stance in HFSS and alcohol marcoms regulation in particular

 

  • Advertising must comply with the requirements of truthfulness, decency and respect for the dignity of the human person. Advertising may not undermine the good name of the state (Art. 3)
  • Advertising must be free from discrimination concerning race, gender, nationality, disability, age or sexual orientation; of any violent scenes and any incitement to behaviour prejudicial to health or safety of people and property, or protection of the environment (Art. 4)
  • Advertisements should not contain any element likely to offend viewers’ religious, philosophical or political beliefs (Art. 5)
  • Advertising in any form whatsoever should be designed to respect the interests of the consumer. All publicity comprising false or misleading claims, statements or presentations is prohibited (Art. 6)
  • Advertising must not cause moral or physical detriment to minors. To this end, it must not:

 

1. Directly encourage minors to buy a product or service by exploiting their inexperience or credulity

2. Directly encourage minors to persuade their parents or others to purchase the goods or services

3. Exploit or alter the special trust minors place in parents, teachers or other persons

4. Without justification show minors in dangerous situations (Art. 7)

 

  • There are some sector prohibitions in broadcast shown here (EN)

 

2.7. Model shots

 

Public Health Code article L2133-2 (EN) on retouched model shots: these must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. The ARPP Notes and Overlays Code (EN) should be observed in this context. The rule applies to all advertising.

 

 

 

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

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

​

 

STANDARD RULES 

 

  • All TV commercials must be pre-cleared by ARPP at final film stage: https://www.arpp.tv
  • The content rules set out in our earlier section B apply online, both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B. Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • The general channel (i.e. placement) rules also apply; these are set out under the General tab below and cover rules such as those for programme sponsorship and product placement; the prohibition on gambling marcoms in media aimed at young people extends to sponsorship and to product placement
  • The AV media authority Arcom in its Decision of 19 October 2022 (FR) prohibits commercial communications for gambling operators: 

 

  • On television and radio and audiovisual media services presented as aimed at minors (U18); definition of such programmes here (EN)
  • In the thirty minutes before and after such programmes

 

  • The Arcom decision/ statutory document linked above also carries a number of marcoms content rules on the protection of minors, social success, chances of winning etc.; none contradict those provided elsewhere
  • There are restrictions on the volume and concentration of gambling advertising in AV, radio. In October 2022, publishers signed 4 charters which restrict advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire').  Media owners are engaged in the charters and will advise; the charter document is here (FR) and shows the agreements by different media channels, including radio

 

WARNING MESSAGES

 

 

  • Article D320-2 of the Internal Security Code (building on the legislative part and article L320-12), from the Decree 2020-1349 of 4 November, requires: Any commercial communication for a gambling operator is accompanied by a warning message about the risks associated with gambling. This message, which must appear on each advertising or promotional medium, includes in particular the number of the online communication service of the public player assistance system set up under the responsibility of the national public health agency
  • To be presented in an accessible and easily readable manner, consistent with its public health context and clearly distinguishable from the advertising or promotional message that accompanies it
  • The way in which the messages should be incorporated by channel is covered under the Ministry of Health Order of 29 July, 2022 (FR); in AV, either a panel at the base of the screen (to a prescripted size) throughout the commercial or a full screen version at the denouement for 3 seconds 
  • A Winamax commercial from this market is here, showing the July 2022 message as required by the MoH order linked above, in the first version (base of screen)​

​

On radio

 

When advertising, sponsorship or promotional messages are broadcast, the message is transmitted immediately after the advertising, adapted as follows: 'Les jeux d'argent et de hasard peuvent être dangereux: pertes d'argent, conflits familiaux, addiction … Retrouvez nos conseils sur joueurs-info-service.fr et au 09 74 75 13 13, appel non surtaxé.' (Gambling and betting can be dangerous: loss of money, family conflicts, addiction… Find our advice on players-info-service.fr and on 09 74 75 13 13, non premium rate call.)

 

According to this article (FR), radio operators will not sign the associated charter as 'this requirement discriminates against radio when the message can take up 50% of a commercial.'

 

 

 

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General

SECTION C - TV/AV INC VOD & RADIO

 

 

New sectorial rules for TV advertising in France (EN)
Bird & Bird LLP/ Lex April 15, 2024. Decree here (FR)

 

KEY RULES AND SOURCES

 

  • For content of commercial communications, the ICC code representing the General Advertising Rules from ARPP (EN 2024) applied in the French translation (2024 code) to all product sectors and media, together with any sector-specific rules 
  • The key legislation in this channel context is Decree 92-280; the link is to a translation of the articles which cover broad requirements for e.g. ‘respect for the dignity of the human person’, discrimination, violence, religion, health and safety, environment etc. transposed from the AVMS Directive 2010/13/EU. See also point 2.4 of our earlier content section B
  • Law No. 2016-1771 of December 20, 2016 (FR) introduced an amend to the Léotard Law (FR), which prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12 and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV
  • The same Léotard law was amended by Ordinance 2020-1642 (FR) to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive into e.g. video-sharing channels. The product placement/ sponsorship rules in broadcast are unaffected; the 2018 Directive includes some minor changes in commercial communications' content requirements, shown here
  • Decree 2020-983 (FR) addresses the audiovisual advertising framework and its relationship with online competition by allowing ‘conventional’ broadcast advertising, subject to conditions, to deliver targeted advertising messages according to geographical or behavioural profile. The decree also relaxes the prohibition of cinema advertising (see above also). Helpful blog on the decree from Taylor Wesssing here 
    For advertising which includes price, either shown superimposed or in a moving banner, the duration of its visibility or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP Price Code 2/1.2. 1)
  • In radio commercials, price must be ‘easy to hear’ (ARPP Price Code 2/1.2. 5)
  • All TV commercials must be pre-cleared by ARPP at final film stage: https://www.arpp.tv

 

RULES FROM DECREE 92-280 (EN)

 

These rules are directed at the broadcaster rather than the advertiser, who is nevertheless impacted; product placement is from the CSA Decision of February 2010, amended in July 2012 (FR). The CSA is the French broadcasting authority, though it merged with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022

 

PRODUCT PLACEMENT

 

  • Allowed in feature films, TV films & series, and music videos, but not when those are made for children (Section IV, CSA Decision)
  • Must not give undue prominence to the product, service or brand (Section VI Formal Product Placement, ref. Article 14-1 of the law of 30 September 1986)
  • Must not influence the editorial independence of programmes
  • Must not directly encourage purchase or rental of the products or services of a third party, in particular by making special promotional references to those products or services or brands
  • Viewers must be clearly informed of the existence of product placement. Programmes containing product placement must be identified by the “P” pictogram for one minute at the beginning of the programme, for one minute when the programme resumes after each commercial break, and at the end of the programme for the duration of the closing credits
  • During the broadcast of a music video, the icon appears throughout its broadcast
  • During a period of two months from the date of the first broadcast of a programme with a product placement, the icon must appear for five seconds at the start of the broadcast programme in a banner accompanied by the following clearly legible sentence: “Ce programme comporte un placement de produit” (This programme contains product placement) Following the close of this banner, the icon appears in the manner as prescribed above (Section IX Transitional & Final Provisions)
 

PRICING IN AV (ARPP Price Recommendation)

 

  • For references appearing in fixed double exposure on the screen or within moving text (either a banner or non-materialised), the period of the display or the speed of movement of the text must allow the consumer to read all the information without having to wait for another broadcast of the advertising message
  • When the background of the message is not the same colour throughout the advertisement, depending on the script and the set, it is essential to check the perfect readability, in terms of contrast, for all remarks. If necessary, a banner will be materialized, with a single colour which will contrast with the colour of the characters chosen for the text appearing in the said banner
 

SPONSORSHIP (Decree 92-280)

 

  • News and political affairs programmes may not be sponsored (Art. 20)
  • The content and programming can in no circumstances be influenced by the sponsor in a manner likely to impair the responsibility and editorial independence of the company or the TV service (Art 18 (1))
  • They (programmes) must not directly encourage the purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those goods or services (Art. 18, as amended by Decree No. 2017-193 of February 15, 2017 (FR), which adds ‘directly’ to ‘encourage’ to be more in line with the AVMS Directive
  • Sponsored programmes must be clearly identified as such at the beginning, at the end of, or during the sponsored programme. This identification can take the form of the name, logo, or other symbol of the sponsor, in particular by means of a reference to its goods or services, or a distinctive sign, subject to the following conditions:

 

1) The mention of the sponsor during the course of a programme, except during an interruption of/ break in the programme, must remain brief and discreet, simply recalling the contribution made by the sponsor, and cannot become an advertising slogan or the presentation of the product itself or its pack

2) When the sponsorship is supporting a gameshow/ contest programme, the awarding of the sponsor's goods or services to individuals as prizes cannot be in the context of an advertising claim (Art. 18/III)

 

  • In the official sponsorship announcements, the mention of the sponsor must remain brief and discreet and be limited to a reminder of the contribution made by the sponsor (Art. 18/IV)

 

The last three bullet points above as amended by Decree No. 2017-193 of February 15, 2017 (FR)

 

RADIO SPONSORSHIP

 

Consolidated version of Decree 87-239 (EN key clauses) article 9

 

  • Only allowed on private radio channels
  • The service i.e. the broadcaster ‘must retain full control over the programming of these broadcasts’
  • Mention of the sponsor’s name, corporate name, trading name, and reference to distinctive signs usually associated with the sponsor, may occasionally appear within the sponsored programme

 

 

 

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Read more

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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Read more

2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

  • The content rules set out in section B apply in these channels – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under our content section B
  • Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • Gambling marcoms may not appear in any medium intended for minors per Article L320-12 of the Internal Security Code; in cinema, the term used is films ‘accessible to minors’
  • Warning messages must appear in these media; in cinema, per TV/AV either included in a banner, static or rolling, for the duration of the advertising, covering at least 7% of the height of the screen; or shown in a full screen for 3 seconds immediately following the advertising message (Ministry of Health Order of 29 July, 2022 (FR))
  • In print, in a horizontal space reserved for the text and covering at least 7% of the advertising surface (MoH order)
  • There are restrictions on the volume and concentration of gambling advertising in these media. In October 2022, publishers signed 4 charters which restrict advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire'). We assume that that means 3 commercials/ ads in total for each form of 'screen'. Media owners are engaged in the charters and will advise
  • Reference the charter above, in outdoor media the commitment from operators is also to avoid posting 'in the immediate vicinity of schools and addiction care buildings and to limit advertising at rail and metro stations. Contractors will make spaces available to the ANJ to deploy poster campaigns that aim to prevent the risk of excessive gambling.'
  • The relevant charter document, agreed by the outdoor advertising association UPE among other media associations, is here (FR)

 

 

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General

SECTION C - CINEMA, PRINT, OUTDOOR

 

 

APPLICABLE TO ALL 3 CHANNELS 

 

  • Specific sector rules above; the rules that follow apply to all product sectors
  • Content rules are from the general advertising rules from ARPP (EN 2024 ICC code), which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply; see our earlier content section B

 

CINEMA

 

  • For advertising which includes price, either shown superimposed or in a moving banner, the duration of its appearance or the speed with which the banner moves must allow all the information to be read in a single showing of the commercial (ARPP Price Recommendations 2/1.2.1)

 

PRINT

 

Price

 

  • Price advertising from ARPP; for press advertising: the size of the characters used in price-related details must be selected according to the format of the media and the advertisement. If a publication or advertisement is in a small format, the size of the selected characters is of key importance and should always enable the price-related details and references to be read in normal conditions (Art. 2/1.2.2 ARPP Price Recommendation)
  • When a reference to another page (as in catalogues, mail shots, etc.) is used, the way these references are used, notably in terms of position in the document, must be perfectly readable and clear (Art. 2/1.2.6)
  • The Recommendation linked above carries an article 2/2 that sets out pricing information requirements for ‘other advertising documents.’
 

Re-touching

 

  • In the event that a model’s images/ figures are adjusted, the term ‘photographie retouchée’ must be included in advertising. The way in which that should be done is provided by the ARPP’s Notes and overlays Recommendation (EN)

 

OUTDOOR

 

  • If including price, the font size of the remarks must be chosen according to the format of the billboard and its type of location (ARPP Price Recommendations 2/1.2.3)

 

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

 

 

Privacy issues should be reviewed with specialist advisors

 

We show in this section the rules for gambling marcoms in digital channels in France followed by some of the general rules - statutory and self-regulatory - for key online channels that apply to all product categories. The influence of legislation on digital commercial communications is significant, especially relating to issues of privacy

 

KEY RULES

 

  • Commercial communications prohibited in any medium intended for minors (Art. L320-12, ISC) FR
  • The content rules set out in section B apply online – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B. Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • Warning message in all commercial communications: rules are from a variety of sources, the most authoritative and recent of which is the Order of July 29, 2022 (FR) from the Ministry of Health (see our earlier content section B)
  • There are restrictions on the volume and concentration of gambling advertising in these media. In October 2022, publishers signed 4 charters which restrict advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire'). Media owners are engaged in the charters and will advise specifics; the charter document is here (FR) and shows the agreements by different media channels 
  • The digital charter includes specific provisions for the use of influencers including that they must not have appeal to minors, that their engagement must be in line with the processes recommended by the ARPP and that their communications must observe the ARPP July 2022 Gambling code 
  • The general channel (i.e. placement) rules also apply. These are set out below under the General tab. Principal source of rules in the online channel in all forms is the ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR).  Scope These rules apply to ‘All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and ‘All targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.’
  • The code includes a useful walk through the various formats/ techniques online such as In-game, brand content, sponsored links, native, OBA and influencer marketing
  • Influencers and gambling: what legal obligations? from Haas Avocats September 2022 spells out the issues in what is obviously sensitive territory

 

Some all-sectors rules in electronic communications 

 

  • There is extensive channel legislation applicable in electronic marketing communications, in three principle areas, covered in depth under the General tab. ‘Snapshot’ immediately below

 

  1. Data Processing: For the processing of personal data (that which can identify an individual), GDPR applied directly in all member states from May 2018. France ‘recognises’ GDPR via Law 2018-493 on Personal Data Protection (FR), amending the 1978 Information Technology, Data Files and Civil Liberties Act (FR) and transposing Directive 2016/680, which accompanies GDPR
  2. (Direct) electronic marketing communications are primarily regulated by the 2013 Mail and Electronic Communications Code (FR) - English translation of the key article L34-5 here (EN), implementing the e-Privacy Directive 2002/58/EC, which prohibits unsolicited commercial communications by fax, telephone or e-mails without a consumer’s prior consent
  3. In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN key clauses 2022) and the Law of 21 June 2004 on Confidence in the digital economy LECN; FR. If a marketing communication constitutes an ‘Invitation to Purchase’, article L121-3 of the Consumer Code applies
  4. Amends to the Consumer Code effective May 28, 2022 were driven by the 'Omnibus' Directive 2019/2161 which introduced requirements for information in an e-Commerce context related to search rankings and consumer reviews (article L121-3) and promotional pricing rules under article L112-1-1

 

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

NEWS/ COMMENTARY

 

Q&A: online advertising in France UGGC Avocats Sept 24, 2024

CNIL unveils its first answers for innovative and privacy-friendly AI (EN) October 16, 2023

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;

 

CONTEXT

 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as 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 subject to the rules online in owned and (some) earned space as well as paid. The definition of advertising is therefore important: the ARPP/ ICC definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. See Marketers’ Own Websites header below for specifics on owned space. In this channel context, the influence of legislation is significant, particularly in the use of personal data. The impact of GDPR, and national 'stand-alone' legislation, or that which applies EU Directives, is also shown under individual channel sections below

 

SOURCE OF RULES 

 

 

  • Content rules are from the General Advertising Rules (EN 2024 ICC Code) from ARPP, which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses inc. 2022 amends) also apply; see content section B

  • The key channel rules are from the ARPP’s December 2021 V5 Digital Advertising and Marketing Communications Code (EN; FR here); scope of the code is here. Scope All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and all targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.The code deals with various techniques online such as in-game, native and OBA. Rules for each of these are shown in the relevant sections below

  • Other significant channel rules in the online environment are from legislation; we reference GDPR lawful processing rules above in the introduction. The data protection authority is CNIL (EN home page); their GDPR 'toolkit' is here (EN) and their February 2022 reference text on personal data processing is here (FR)

  • The rules relating to consent and information requirements in electronic communications are from the 2013 Mail and Electronic Communications Code (FR) - English translation of the key article L34-5 here - which sets out the opt-in/ soft opt-in regime that applies in France

  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021 here (EN);

  • Some online channels are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Amends were transposed into the law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the directive's amends to commercial communication content requirements is here and notes on the scope changes here (both EN);

  • In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (CC; EN key clauses inc. 2022 amends) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws set out what must be included or made available in e-Commerce communications (articles L122-8 and L122-9 of the CC, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase' (art. L121-3 of the CC). Amends to the CC effective May 28, 2022 from the 'Omnibus' Directive 2019/2161 introduced further requirements for information in an e-Commerce context related to search rankings and consumer reviews under article L121-3 and promotional pricing rules under article L112-1-1;

  • The CC also carries the core statutory misleadingness rules, transposed from the Unfair Commercial Practices Directive 2005/29/EC. Unfair and misleading commercial practices are regulated under Articles L. 121-2 to L121-4, and aggressive commercial practices in Articles L121-6 and L121- 7. Comparative advertising is under articles L122-1 to L122-5;

 

PRICING

 

  • Special attention shall be given to the display time and the font size according to the diversity of formats, techniques and existing advertising media
  • In advertisements featuring remarks in a scrolling text, special attention shall also be paid to the scrolling speed and to its good contrast with the background colour
  • Where the format, technique or advertising medium does not allow the remarks to appear on the advertisement itself, they shall be made directly available by any other means (Art. 2/1.2.4 ARPP Price Recommendation)
  • See the Consumer Code linked above for promotional pricing rules effective May 28, 2022 under article L112-1-1, introduced by Ordinance 2021-1734 (FR)

 

INFLUENCER MARKETING

 

Video from ARPP (EN sub-titles)

ARPP recommendations for influencer marketing:

https://www.youtube.com/watch?v=8Jx4gr5bvH0

Key graphic, which explains how ID must be 'Immediate and explicit,' is here (FR); #ad, for example, is not permitted

 

The Digital Code referenced above also carries some Influencer rules, GRS (unofficial, non-binding) translation as follows:

 

Definition

 

  • An influencer (blogger, vlogger, creator, talent, etc.) is an individual who creates content, expressing a point of view or giving advice, in a specific area and with a style or treatment that is specific to him/ her and with which his/ her audience identifies
  • An influencer can act in a purely editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, distribution of advertising content, etc.)

​

Qualification & application

 

1. The influencer acts in collaboration with a brand: A commercial collaboration between an influencer and an advertiser with a view to the publication of content must in all cases be brought to the attention of the public by the influencer
2. Some collaborations can qualify as advertising; whether it is advertising is established when the following criteria are cumulatively met:
 
  • When the content is produced in the context of reciprocal commitments; statements by the influencer subject to payment or any other consideration such as, for example, the delivery of products or services for the benefit of the influencer
  • When the advertiser or their representatives approve the content before its publication
  • When the content of the influencer messaging is aimed at promoting the product or service (promotional statements, verbal or visual presentation for promotional purposes, etc.)
 
Consequence: When the advertising nature of the influencer messaging is established, all the ethical provisions of the ARPP, in addition, should be applied by all stakeholders (brands, their representatives, influencers, etc.)

 

Identification

 

  • For the identification of influencer communications made in collaboration with a brand (unless the identification is obvious), it is recommended that an explicit statement is added that establishes identification of same, in a way that does that immediately
  • This identification can be done by any means (in the audio, in the text connected with the content, by a statement in the video, etc.) as long as it is brought to the attention of the public whatever their means of access to the content

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

 

  • See also Article 20 de la loi n° 2004-575 pour la confiance en l’économie numérique du 21 juin 2004 (FR): 'toute publicité, sous quelque forme que ce soit, accessible par un service de communication au public en ligne, doit pouvoir être clairement identifiée comme telle. Elle doit rendre clairement identifiable la personne physique ou morale pour le compte de laquelle elle est réalisée'.  (Advertising in any form whatsoever accessible through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out)

 

Other guidance/ best practice 

 

The European Advertising Standards Alliance (EASA) published in May 2023 Best Practice Recommendation on Influencer Marketing (EN)

and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope

 

Le cadre juridique applicable au marketing d'influence (FR) published by Haas Avocats September 2022 is a valuable overview of the regulatory framework around Influencer marketing

The 2024 ICC code carries new provisions on Influencer Marketing under article 18

 

 
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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

 

 

Privacy issues should be reviewed with specialist advisors

 

COOKIES

 

  • While there are no rules particular to the gambling sector’s use of cookies, any form of targeting of minors is prohibited (ISC, L320-12; FR)
  • The general cookie rules, i.e. those that apply to all sectors gambling included, are shown below under the General tab
 

OBA

 

  • Gambling marcoms may not appear in any medium intended for minors (ISC, L320-12; FR)
  • OBA, like any other advertising, is subject to the content rules from our earlier section B, as well as the content and channel rules for all sectors, i.e. the general rules shown under the General tab in Section B
  • Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here); be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • Rules about the content and placement of the warning message are from a variety of sources, the most authoritative and recent of which is the Order of July 29, 2022 (FR) from the Ministry of Health; see our earlier Content Section B
  • There are restrictions on the volume and concentration of gambling advertising in these media. In October 2022, gambling operators signed 4 charters which restrict advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire'). We assume that that means 3 commercials/ ads in total for each form of 'screen'. Media owners are engaged in the charters and will advise
  • General channel (i.e. placement) rules, those that apply to all sectors gambling included, are primarily from the ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR); OBA specifics from this code shown below under the General tab, together with the self-regulatory programme from the EDAA
  • The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors 
  • The definitive consent guidance in the context of GDPR is the EDPB guidelines 5/2020; EN

 

 

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General

SECTION C: COOKIES AND OBA

 

 

ISSUES / NEWS 

 

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

Google re new third party cookie plans for Chrome 

Privacy Sandbox news and updates 

Practice guide for the security of personal data: 2024 edition (EN)
CNIL March 26, 2024 French version here. Haas here (FR)

French data agency fines Yahoo! €10 million over cookies policy
DAC Beachcroft February 7, 2024

 

COOKIES
Bird&Bird's Global Cookie Review of Summer 2023 includes a clear and complete summary of rules in France

 

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

 

  • The EU ‘Cookie Directive’ 2009/136/EC provisions are found under article 82 of the FDPFA, i.e. the 1978 French Data Protection and Freedoms Act (FR), extracts below. The linked file carries the amends from the GDPR-related Law 2018-493 (FR) on Personal Data Protection
  • IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising 
  • CNIL, France's Data Protection Authority, published their September 2020 guidelines here (FR); a significant article by Sidley Austin LLP via Lex: Developments in Cookie Regulation (EN) sets out the authority's position and points out its plan to audit websites for compliance with cookie regulations 
  • CNIL recommendations, versus guidelines, are here (FR). The distinction between the two papers is that the guidelines 'review and explain the law', and the recommendations 'propose practical arrangements for obtaining consent in accordance with the applicable rules.' The CNIL Q&A relating to both papers is here (FR); 
  • From the Bird&Bird review linked above: 'CNIL underlines that the consent provided for by these provisions (those in the Data Protection Act) refers to the definition and conditions set forth in Articles 4(11) and 7 of the GDPR. The consent must therefore be freely given, specific, informed and unambiguous, and the user must be able to withdraw it at any time. It must be as easy to withdraw as to give consent.'
  • The CNIL gives its position on the “cookieless” alternatives to third-party cookies here from Nomos via Lexology October 2021 is a helpful look at how the CNIL is likely to handle alternative tracking and other technologies. The original paper from CNIL is here (FR) 
  • Google says cookie here to stay until 2024 July 27, 2022. Google has also published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here
  • April 2022 UFMD (Union francaise du marketing direct & digital), with notable support from the likes of IAB and the ARPP, published a good practice guide on the use of advertising cookies; here in French 
  • And finally, Further Enforcement Actions by the French Data Protection Authority from Squire Patton Boggs/ Lexology December 2021 is a very good summary of some of the actions that have been taken by the CNIL and why. The key issues as the CNIL sees them are: 

 

  • Cookies subject to consent are automatically set on the user’s terminal before acceptance by the user, upon arrival on the site, thus without consent
  • Information banners are still not compliant because they do not allow refusing the setting of cookies as easily as accepting them
  • Information banners seem to offer the user a means of refusing cookies as easily as accepting them, but the actual proposed mechanism is not effective, because cookies subject to consent are still set even after the refusal expressed by the user.
 

INFORMATION REQUIREMENTS 
from the FDPFA, art. 82

 

  • Any subscriber or user of an electronic communication service shall be informed in a clear and comprehensive manner by the data controller or its representative, except if already previously informed, regarding:

 

  • the purpose of any action intended to provide access, by means of electronic transmission, to information previously stored in their electronic connection terminal device, or to record data in this device
  • the means available to them to object to such action

 

  • Such access or recording may only be carried out provided that the subscriber or user has explicitly expressed, after receiving said information, their agreement that may result from appropriate parameter settings in their connection device or any other system under their control

 

EXEMPTIONS

 

  • These provisions shall not apply if the access to data stored in the terminal device of the user or the recording of information in the terminal device of the user is:

 

  • either exclusively intended to enable or facilitate communication by electronic means; or
  • strictly necessary for the provision of an online communication service at the user’s express request

 

CONSENT REQUIREMENTS AND GUIDANCE 

 

 
OBA

 

Commentary

1 year after the DSA came into force, where are we? (FR)

From Haas July 24, 2024. Includes ref to LI targeting 

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. Connected with Meta news below

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

CNIL Fines Apple 8 Million Euros Over Personalized Ads. Hunton Andrews Kurth LLP January 6, 2023

The above is obviously a significant case; GDPR application 'versus' national law discussed

 

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

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

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

Effective 19 January 2022

 

Key rules 

 

  • OBA, like any other advertising, is subject to any product sector rules as well as the content and channel/ placement rules for all sectors, i.e. the general rules
  • Content rules are the General advertising rules from ARPP (EN 2024 ICC Code), which apply to all sectors and media. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply online; see our earlier content section B
  • Self-regulatory channel rules are primarily from the Digital Advertising and Marketing Communications Code (EN); OBA specifics from this code are shown later in this section, together with the self-regulatory programme from the EDAA 
  • Regarding cookie placement in this OBA context, the CNIL document ‘Cookies and other trackers’ linked above covers the issue under Article 2, from para 19
  • The CNIL reference the Article 29 Data Protection Working Party (now the European Data Protection Board) document ‘Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679.’

 

From ARPP’s Communication Publicitaire Numerique V5 (FR / EN):

 

9. Behavioural advertising and retargeting

 

1) Identification of the commercial nature of behavioral advertising

 

  • ​The commercial nature must be easily understood. Therefore, the use of a visible specific symbol, distinguishable from the message content and entirely legible, can help the consumer know about the behavioural nature of the digital advertising
  • It is further recommended to give the consumer access via a simple click on the aforementioned symbol to a dedicated space where the consumer can find out about the special features inherent in this type of advertising (nature of the data collected, terms of use for behavioural targeting purposes…)
  • This dedicated space must also offer the consumer clear information on the various options to refuse or accept the showing of behavioural advertising, in particular the terms: 

 

 
  • One-off or permanent acceptance of the placement of cookies or other tracking means (browser settings)
  • Deletion of browser cookies
  • Objection to behavioural advertising providers to the showing of any behavioral advertising 
 
2) Protection of children and teenagers
 
  • Professionals must not create specific targeting categories (interest segments) related to interests of children of 13 or under

 

 

OTHER SELF-REGULATION


EASA’s Best Practice Recommendation on OBA 2021

 

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A number of companies and organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by 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 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. OBA segments may not be created for children (under 13)

 

 

OTHER SIGNIFICANT INFLUENCES 

 

 

 

 

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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

 

 

KEY RULES 

 

  • The content rules set out in section B apply – both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B. Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • The general channel (i.e. placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in France reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and e-Commerce rules from 2000/31/EC. Specifics under the General tab below
  • Principal source of self-regulatory rules in the online channel in all forms is the ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR). The code is applicable to all sectors, so there's more under the General tab below, or see the linked code. Emails/ SMS/ MMS are included under point 5 of the 'applications list'
  • Gambling marcoms may not appear in any medium intended for minors (ISC, L320-12; FR)
  • The processing of personal data in this context may be subject to lawful processing rules from the GDPR; more below under the General tab. Privacy issues should be reviewed with specialist advisors 
  • The definitive consent guidance in the context of GDPR is the EDPB guidelines 5/2020
  • If a marketing communication constitutes an ‘Invitation to Purchase’, article L121-3 of the Consumer Code (EN key clauses 2022) applies. Amends to the Consumer Code effective May 28, 2022 were driven by the 'Omnibus' Directive 2019/2161 which introduced requirements for information in an e-Commerce context related to search rankings and consumer reviews (article L121-3) and promotional pricing rules under article L112-1-1. More below under the General tab
 
From the EU Recommendation (not binding, but significant)

 

  • 43. Commercial communications should not target vulnerable players in particular by making use of unsolicited commercial communications addressed to players who have self-excluded from gambling or have been excluded from receiving online gambling services on reasons of problem gambling (Commission Recommendation 2014/478/EU). Note: such a  ban applies in the French regime under the ISC, art. L320-9 inter alia

 

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

MARCOMS CONTENT RULES

​

  • The content rules set out in our earlier section B apply in this channel. The principal source of rules is the ICC Advertising and Marketing Communications Code (EN 2024) the French translation (2024 code) of which is administered in France by ARPP. Other trans-sector rules from the ARPP and advertising legislation from e.g. the Consumer Code (EN key clauses) also apply - see content section B

 

STATUTORY CONSENT AND INFORMATION REQUIREMENTS 

 

  • GDPR: issues arise from the introduction of the GDPR 2016/679: 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
  • The 2013 Mail and Electronic Communications Code, (FR) Article L34-5 (EN) implements the 2002 e-Privacy Directive 2002/58/EC, prohibiting unsolicited commercial communications by telephone or e-mails without a consumer’s prior consent. The legislation provides for opt-in/ soft opt-in. See linked L34-5 file for the specific clause  
  • In the context of e-Commerce, rules for commercial communications are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN) and the Law of 21 June 2004 on Confidence in the digital economy LECN (FR). These laws are important in this context, setting out what must be included or made available in E-commerce communications (articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN) and e.g. an ‘invitation to purchase (art. L121-3 of the Consumer Code)
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lex here 
 

From Article L34-5
Consent requirements

 

  • Use of automated calling systems, fax, or electronic mail for the purposes of direct marketing is prohibited unless prior consent has been obtained (i.e. opt-in)
  • Consent means any freely given, specific and informed indication of his or her wishes by which a person agrees that personal data relating to him/ her may be used for direct marketing purposes
  • There is an exception to this rule in cases where contact details for sending e-mail messages have been obtained in the context of a sale (‘soft opt-in’)
  • Within such an existing customer relationship the company who obtained the data from its customers may use them for the marketing of similar products or services to those it has already sold to the customer, and if the recipient is offered, in specific and unambiguous terms, the opportunity to refuse, at no cost to him/ herself, other than that related to the transmission of the refusal, in a simple manner, the use of his/ her personal details at the time they are collected and each time a marketing email is sent to him/ her if he/ she has not previously refused such exploitation
  • In all cases, the sending of direct marketing messages is prohibited unless accompanied by valid contact details that can be used by the recipient to send a request for such communications to be terminated, at no cost other than that related to the transmission of the request
  • It is also prohibited to conceal the identity of the person on whose behalf the communication is sent and to mention a subject or item unrelated to the proposed delivery or service

 

Key extracts from the Consumer Code (CC; EN)

 

Offers and promotions, 'Invitation to Purchase'

 

  • Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message. These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued (Art. L122-8)
  • The conditions applying to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)
  • 'Invitation to Purchase’ (often used in this channel): definition here Definition Commercial communication targeting the consumer, encouraging the latter to make a purchase, and mentioning the price and characteristics of the property or service offered information requirements are under article 121-3
  • Article L112-1-1 of the Consumer Code (linked above in English) effective May 28, 2022 transposes requirements from the Directive 2019/2161 related to promotional pricing - the rule applies to 'any announcement'
 

Key extracts from the LECN

 

Article 19; information required to be available

 

(e-Commerce is defined here as: the economic activity by which a person proposes or provides remotely and electronically the supply of goods or services; also included in the scope of e-commerce are services such as providing online information, commercial communications, and tools for searching, accessing and retrieving data, accessing a communication network or hosting of information, including when they are not paid for by those who receive them – art. 14 LECN)

 

Any person who undertakes the activity defined in Article 14 must ensure to recipients of the supply of goods or services the easy, direct and permanent access, using an open standard, the following information:

 

  1. In the case of a natural person, his/ her name and surname and, in the case of a legal person, the name of the business
  2. The address where it is established, its e-mail address, as well as telephone numbers facilitating effective contact
  3. Where it is subject to registration in the trade and companies Register, or to a trade directory, the registration number, the share capital and the address of its registered office
  4. If subject to value added tax and identified by an individual number pursuant to article 286 ter of the general tax code, its individual identification number
  5. Where its activity is subject to an authorisation scheme, the name and address of the relevant supervising authority
  6. If a member of a regulated profession, reference to the applicable professional rules, the professional title and the Member State where it has been granted, as well as the name of the professional body or order to which it is registered
    Any person who carries out the activity defined in Article 14 must, even in the absence of a contract offer, where it mentions a price, indicate it in a clear and unambiguous manner, and in particular if taxes and shipping fees are included. This paragraph applies without prejudice to the provisions governing deceptive marketing practices provided for in Article L. 121-1 of the Consumer Code, or the price information obligations provided for by the laws and regulations in force

 

Article 20; Transparency

 

  • Advertising in any form whatsoever accessible through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out
  • The preceding paragraph applies without prejudice to the provisions that restrict misleading marketing practices provided for under article L. 121-1 of the Consumer Code
 

SELF-REGULATORY REQUIREMENTS 

 

 

5a) Identification of advertising

 

  • The commercial nature of such advertising must be clearly apparent. For electronics (sic) mails, identification must be possible as soon as the consumer receives it, with no need to open the email
  • Two different kinds of emails can be identified:

 

  • The case where the commercial nature is obvious (e.g. the advertiser name appears in the message subject). In this case, it would not be necessary to provide additional identification elements
  • The case where the commercial nature of the message is not immediately visible. In this case, it is recommended to state in the mail subject or within the sender’s designation an explicit message enabling immediate identification of the commercial nature of the email

 

  • With regard to SMS or MMS, the identification must be explicit at the beginning of the message. The identification can be satisfied by all means noted above (the advertiser’s name appearing at the beginning of the message, for example). The identification must be clear enough to avoid any confusion with an electronic mail/SMS/MMS sent by a private contact

 

5b) Fair, truthful and honest advertising

 

  • Offer and sales conditions must be clearly specified and easily accessible. Consequently, legal notes and overlays must be accessible directly by any means, in particular:

 

  • On a mobile website, for a clickable mobile message (sent in the context of a direct marketing campaign)
  • Within a distinct SMS or MMS from the one conveying the advertising message (in particular by using the concatenation technique, i.e. technique allowing attachment of several SMS in order not to be limited by the number of characters)

 

  • The conditions must be legible or audible, and intelligible, without prejudice to compulsory provisions applicable to specific sectors

 

Pricing

 

  • The ARPP Price Recommendation (EN) sets out the rules for communication of price and price-related 'remarks' (e.g. conditions, limitations etc.). These rules apply online; see article 2/1.2

 

 

 

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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

 

​

CONTEXT

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’. The ARPP state in their Communication Publicitaire Digitale (EN) that the rules apply to ‘advertising communications, whatever their format, on advertisers’ own websites.’ Advertising is defined in the applicable ICC Code (EN 2024) as 'any form of marketing communications carried by the media, typically in return for payment or other valuable consideration’ and marketing communications as advertising as well as other techniques, such as promotions, sponsorships, direct marketing, data-driven marketing and digital marketing communications, and should be interpreted broadly to mean any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour. Likewise, when influencers create content for their own brands or products, or use affiliate links in their content, such content is marketing communications.'

 

KEY RULES 

 

  • The content rules set out in section B apply to marketing communications in this channel – both the gambling-specific and the general rules, i.e. those that apply to all sectors. Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • The general channel (i.e. placement) rules also apply; these include statutory consent and information requirements for unsolicited commercial communications. The regime in France reflects the applicable Directives 2002/58/EC in being opt-in / soft opt-in and e-Commerce rules from 2000/31/EC. Specifics under the General tab below
  • Principal source of self-regulatory rules in the online channel in all forms is the ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR). The code is applicable to all sectors, so there's more under the General tab below, or see the linked code. Scope includes advertisers' websites, and the 'applications list' includes several techniques/ formats applicable in this context
  • The definitive consent guidance in the context of GDPR is the EDPB guidelines 5/2020 (EN)
  • If a marketing communication constitutes an ‘Invitation to purchase’, article L121-3 of the Consumer Code (EN key clauses 2022) applies. Amends to the Consumer Code effective May 28, 2022 were driven by the 'Omnibus' Directive 2019/2161 which introduced requirements for information in an e-Commerce context related to search rankings and consumer reviews (article L121-3) and promotional pricing rules under article L112-1-1. More below under the General tab

 

Warning messages

 

  • Gambling warning messages must be included in marketing communications. Rules about their content and placement are from a variety of sources, the most authoritative and recent of which is the Order of July 29, 2022 (FR) from the Ministry of Health; see our earlier content section B

 

From the Commission Recommendation  (not binding, but significant)

 

  • 4. The following information should be displayed prominently on the landing page of the operator's gambling website and be accessible from all pages on the website:

 

  1. The company details, or other means that ensures the operator is identifiable and can be contacted, including: (i) company name; (ii) place of registration; (iii) e-mail address
  2. A ‘no underage gambling’ sign, which shows the minimum age below which gambling is not permissible
  3. A ‘responsible gambling’ message, which no more than one click away provides: (i) information that gambling can be harmful if not controlled; (ii) information about the player support measures on the website; (iii) self-assessment tests for the players to check their gambling behaviour
  4. A link to at least one organisation providing information and assistance in respect of gambling disorders

 

  • The terms and conditions of the contractual relationship between the operator and the consumer should be provided in a concise and legible manner. They should:

 

  1. Contain information at least about timeframes and limits regarding withdrawals from the player account, any charges concerning the player account transactions and a link to the applicable payout percentages for every game
  2. Be accepted and confirmed by the consumer during the registration process referred to in Section V
  3. Be made available by electronic means in a way that allows the consumer to store and retrieve them, and any changes communicated to the consumer

 

  • 6. Member States should ensure that information is available to the consumer about the rules concerning the games and bets available on the operator's gambling website
  • 7. Member States should ensure that the operator's gambling website displays the details of the gambling regulatory authority to show that the operator is authorised

 

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT 

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. subject to the rules. The ARPP state in their Digital Advertising and Marketing Communications Code (EN; in force Jan 2022) that the rules apply to ‘advertising communications, whatever their format, on advertisers’ own websites.’ Advertising is defined in the applicable ICC Code as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’

 

GENERAL RULES  

 

  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures to restrict access to such websites by minors (Art. C7, ICC Code)
  • Marketers' own marcoms on their own websites are subject to the product category/ sector rules set out above and in our earlier content section B. The General Advertising Rules (EN 2024 ICC Code) from ARPP, i.e. those that apply to all sectors, also apply to marketers’ own marketing communications (marcoms)
  • Exemptions are set out in the 2023 EASA Digital Marketing Communications Best Practice document: while this is not binding, it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications. See later (in this section) provisions on UGC from the ARPP

 

CONSENT AND INFORMATION REQUIREMENTS AND AVMSD RULES 

 

The core e-Commerce rules are shown in the preceding section for Emails/SMS, or see the linked documents below

 

  • Rules for commercial communication in an e-Commerce context are transposed from the e-Commerce Directive 2000/31/EC into both the Consumer Code (EN key clauses) and the Law of 21 June 2004 on Confidence in the digital economy (LECN). Articles L122-8 and L122-9 of the Consumer Code, and articles 19 & 20 of LECN. Also relevant are information rules for e.g. an ‘invitation to purchase’ under art. L121-3 of the Consumer Code
  • The Consumer Code also carries provisions from the UCPD 2005/29/EC, which are applicable in this context. See article L121-1 for misleading and aggressive commercial practices. Additionally, updates effective May 28, 2022 transposed from Directive 2019/2161 via Ordinance 2021-1734 (FR) carry some important e-Commerce related provisions that require information on search rankings and consumer reviews to be made available. New clauses also include 'promotional pricing' rules. See articles L112-1-1 for pricing and L121-3 for search and review information in the linked file above, or to make it even easier, here (EN)
  • The 2013 Mail and Electronic Communications Code (FR) Article L34-5 (EN) implements the e-Privacy Directive 2002/58/EC, prohibiting unsolicited commercial communications by telephone or e-mails without a consumer’s prior consent
  • In the event that data processing identifies individuals, then lawful processing rules from GDPR may apply. Privacy issues should be reviewed with specialist advisors
  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users, adopted April 2021, here
  • Some online channels/ platforms are also subject to rules from the AVMS Directive 2010/13/EU following amends from Directive 2018/1808 which extended scope into e.g. video-sharing platforms. Recital 3 of the directive also discusses e.g. ‘stand-alone parts of online newspapers featuring audiovisual programmes or user-generated videos where those parts can be considered dissociable from their main activity’. Amends were transposed into the national law of September 30, 1986 relating to freedom of communication (the Léotard law) by Ordinance 2020-1642 (FR) of December 21, 2020. Placement and content rules are not significantly changed: a summary of the directive's amends to commercial communication content requirements is here and notes on the scope changes here

 

SELF-REGULATION 

 

  • The ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022), largely to do with channel versus content rules, covers a number of different techniques that will often be deployed on owned websites. The most significant are below. See the linked code for full information 

 

Apps

Digital audio

Influencers and brands

Brand content

Email

 

INFLUENCER MARKETING 

 

Video from ARPP (EN sub-titles)

ARPP recommendations for influencer marketing:

https://www.youtube.com/watch?v=8Jx4gr5bvH0

 

The Digital code referenced above also carries some Influencer rules, GRS unofficial non-binding translation as follows:

 

Definition

 

  • An influencer (blogger, vlogger, creator, talent, etc.) is an individual who creates content, expressing a point of view or giving advice, in a specific area and with a style or treatment that is specific to him/ her and with which his/ her audience identifies
  • An influencer can act in a purely editorial context or in collaboration with a brand for the publication of content (product placement, participation in the production of content, distribution of advertising content, etc.)

 

Qualification & application

 

1. The influencer acts in collaboration with a brand: A commercial collaboration between an influencer and an advertiser with a view to the publication of content must in all cases be brought to the attention of the public by the influencer
2. Some collaborations can qualify as advertising; whether it is advertising is established when the following criteria are cumulatively met:
 
  • When the content is produced in the context of reciprocal commitments; statements by the influencer subject to payment or any other consideration such as, for example, the delivery of products or services for the benefit of the influencer
  • When the advertiser or their representatives approve the content before its publication
  • When the content of the influencer messaging is aimed at promoting the product or service (promotional statements, verbal or visual presentation for promotional purposes, etc.).
 
Consequence: When the advertising nature of the influencer messaging is established, all the ethical provisions of the ARPP, in addition, should be applied by all stakeholders (brands, their representatives, influencers, etc.)

 

Identification

 

  • For the identification of influencer communications made in collaboration with a brand (unless the identification is obvious), it is recommended that an explicit statement is added that establishes identification of same, in a way that does that immediately
  • This identification can be done by any means (in the audio, in the text connected with the content, by a statement in the video, etc.) as long as it is brought to the attention of the public whatever their means of access to the content

​

OTHER GUIDANCE

 

The European Advertising Standards Alliance (EASA) published in May 2023 Best Practice Recommendation on Influencer Marketing.

​

 

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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

 

 

CONTEXT

 

  • The ‘native’ form of advertising is like any other advertising – it’s subject to the content rules, in this context the ARPP Gambling Code (EN) and for general rules the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here) applied in its French version by ARPP
  • Other rules from content section B, such as those from the ANJ relating to bonusing and from the ARPP on portrayal of people, also apply. The big issue for native advertising, however, is obviously that of identifiability as a commercial communication and that is covered multiple times in legislation and self-regulation, both in gambling-specific and general terms. Especially in a sector as sensitive as gambling, it's important to be clear that an ad is an ad
  • Gambling marcoms may not appear in any medium intended for minors (ISC, L320-12; FR)

​

WARNING MESSAGES 

 

  • Gambling warning messages must be included in marketing communications. Rules about the content and placement of the warning message are from a variety of sources, the most authoritative and recent of which is the Order of July 29, 2022 (FR) from the Ministry of Health; see our earlier content section B for full information or click on the linked file

 

GAMBLING AND DIGITAL CODES

 

A reminder of the Identification rules from the ARPP Gambling Code (EN) set out in our content section B (the italicised text is an alternative translation where we judge the original  to be unclear)

 

  • Gambling advertising should be clearly identified as such, regardless of the form in which it is shown. This identification can be done by all means, clearly noticeable and allowing the consumer not to mistake on the nature of the advertising. (This identification can be done by any clearly noticeable means that makes immediately obvious to the consumer the advertising nature of the message)
  • The advertiser who made the ad must be clearly identifiable. This identification must be readable and (easily) accessible to all consumers.
  • Ads for gambling in any form whatsoever (Gambling advertising in any form) must be clear, honest and truthful
  • Advertising should enable the consumer to identify, directly or indirectly, that the ad comes from an advertiser that is officially authorized by the French authorities to commercialize the advertised game

 

  • Principal source of self-regulatory rules in the online channel in all forms is the ARPP’s Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022. FR). The code is applicable to all sectors, so there's more under the General tab below, or see the linked code. Scope includes advertiser's websites, and the 'applications list' includes Native advertising under point 8

 

LEGISLATION (ALL SECTORS)

 

See also General tab below

 

The Consumer Code (EN key clauses 2022) article L121.4 transposing the ‘blacklist’ of practices in all circumstances considered unfair from the Unfair Commercial Practices Directive 2005/29/EC includes: 11. ‘To use written content in the media to promote a product or service when this content has been financed by the professional himself, without clearly indicating this origin in the content or by the use of images or sounds clearly identifiable by the consumer.’

 

 

 

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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.'

 

KEY RULES 

 

  • The ‘Native’ form of advertising is like any other advertising – it’s subject to the content rules, in this context the ICC Advertising and Marketing Communications Code (EN 2024), applied in the French translation (2024 code) by ARPP, the Self-Regulatory Organisation. Other rules set out in content section B, relating e.g. to portrayal of people, environmental claims etc. also apply 
  • The key general rule is that of identifiability/ disclosure. From the linked code above:

 

7. Identification and transparency 

 

  • 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

 

8. Identity of the marketer

 

  • 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”)

​

The ICC’s Guidance on Native Advertising (EN) includes:

 

1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 9 (of the main ICC Code; article shown above), B1, and D1 as follows:

Article B1 (in part): Sponsorship should be recognisable as such. Article D1 (in part): The commercial nature of product endorsements or reviews created by marketers should be clearly indicated and not be listed as being from an individual consumer or independent body

 

2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 10 (of the main ICC Code; article shown above) and 12, as follows: Article B12: Media Sponsorship (in part): Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/ or at the end of the programme or publication content. This also applies to online material

 

3. Disclosures should be prominent and understandable to consumers. This principle is covered in section 3 as follows: Article 3: Honesty: 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

 

 

From the ARPP's Digital Advertising and Marketing Communications Code (EN; V5 in force Jan 2022)

 

8. Native advertising

 

Definition: Native advertising covers all advertising formats that adopt - or closely approximate - the design and usage features of the website on which they are placed and adapt themselves to the user experience

 

  • Identification of the commercial nature of advertising. The commercial nature must be identified, unambiguously, in a clear and immediate way
  • It is recommended to highlight the commercial nature of the content with a clear statement such as “advertising”, “sponsored by” or “in partnership with” ….
  • That statement must be legible or audible and intelligible in such a way as the commercial nature is immediately understood

 

LEGISLATION

 

The Consumer Code (EN key clauses inc. 2022 amends), which in this context is the principal consumer protection legislation in France, and includes transpositions from the Unfair Commercial Practices Directive 2005/29/EC and e-Commerce Directive 2000/31/EC, carries the following clauses in relation to Identity. Deemed misleading is:

 

  • To use written content in the media to promote a product or service when this content has been financed by the professional himself, without clearly indicating this origin in the content or by the use of images or sounds clearly identifiable by the consumer (Art. L121.4/ 11)
  • To falsely state or give the impression that the professional is not acting towards purposes that fall within the scope of his or her commercial, industrial, craft or self-employed practice, or to present himself or herself as a consumer (Art. L121.4/ 21)
  • Article L121-2 identifies misleadingness inter alia as: ‘3. When the person on behalf of whom the service is implemented is not clearly identifiable.’

 

Law No. 2004-575 (FR) on Confidence in the Digital Economy carries the e-Commerce 'Identification' rule under its article 20:

 

  • Advertising in any form whatsoever that can be accessed through an online public communication service must be clearly identifiable as such. It must make clearly identifiable the natural or legal person on whose behalf it is carried out

 

 

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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

 

 

KEY RULES

 

  • The content rules set out in section B apply to marketing communications in this channel – both the gambling-specific and the general rules, i.e. those that apply to all sectors. Principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for General rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations
  • The warning messages set out in our earlier Content Section B apply to all media; in the case of print, warning messages must be placed in a horizontal space reserved for the text and covering at least 7% of the advertising surface. Rules on placement and content are from various sources, the most authoritative and recent of which is the Order of July 29th 2022 (FR) from the Ministry of Health
  • While the rules don’t actually specify direct mail, the overarching ban on gambling commercial communications to minors will apply

 

General i.e. all sectors channel rules snapshot 

 

  • Direct Mail in most countries, France included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications; see General tab below for details as the rule applies to all sectors, Gambling included
  • If advertising constitutes an ‘invitation to purchase’ (often the case in Direct Mail) then article 121-3 of the Consumer Code (EN key clauses 2022) must be observed
  • The ‘Omnibus’ Directive 2019/2161 inspired several amends to the Consumer Code linked above. These inter alia relate to the e-Commerce environment and some are not necessarily directly relevant to DPM, albeit important to be aware of. Article L112-1-1 introduces promotional pricing requirements as a result of amends to Directive 98/6/EC, also shown in the Omnibus Directive linked earlier. More under the General tab below

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

 

CONTEXT

 

  • Content rules from our earlier section B apply to Direct Mail, both 'general' rules applicable to all sectors and sector-specific rules. Principal source of the former is the General Advertising Rules (EN 2024) from ARPP, the ICC Code, which applies to all product sectors and media/ channels. Other 'trans-sector' rules from the ARPP and legislation from e.g. the Consumer Code (EN key clauses), which largely addresses misleading and aggressive commercial practices derived from the Unfair Commercial Practices Directive 2005/29/EC, also apply in postal Direct Mail; see content section B;
  • The Consumer Code linked above also provides rules for commercial communications that constitute an ‘invitation to purchase’ (often deployed in direct mail) under article L121-3. See clauses below; 
  • This section does not address ‘mail drops’ as in the delivery of unaddressed leaflets, flyers etc., though those may remain subject to advertising content rules. These paragraphs cover addressed mail, including those addressed to ‘the occupier’ etc., in ‘hard’ form; (note recent rules, however, shown under 'The Law and the Robinson list')
  • Direct Mail in most countries, France included, is based on opt-out consent, i.e. the individual has to opt out otherwise he/ she may receive marketing communications.

 

THE LAW AND THE ROBINSON LIST

 

  • Consumer protection is from two principal sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications and 2) the ‘Robinson list’ or equivalent, an opt-out list of those who do not wish to receive marcoms. More recent requirements are shown under the final two bullet points in this section;
  • In the case of the first, the rules in France are provided by the 1978 French Data Protection and Freedoms Act (FDPFA - FR). The linked law is in French and includes the latest amends. An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here;
  • Law 2018-493 on Personal Data Protection (FR) amended the FDPFA in some aspects of data processing and reflects the GDPR 2016/679 in that regard. If data processing for a DM database involves personal data, GDPR rules may apply. Privacy issues should be reviewed with specialist advisors;
  • The National Postal Address Service (SNA) manage the Robinson list;
  • Lack of compliance with a statement/sign indicating that an individual or an entity does not want to receive non-dedicated advertisings at their place of residence or offices is punishable by a criminal fine up to €7,500 for a legal entity, courtesy of Loi n° 2020-105 relative à la lutte contre le gaspillage (waste) et à l’économie circulaire, as reported by Osborne Clarke May 2020. Placing ad papers on cars is punishable by the same fine;
  • The same law, in this case encoded in the Environment Code article L541-15-17 here (FR), requires that from January 2023 B2C advertising flyers or catalogues must be printed on recycled paper or on paper produced from sustainably managed forests.

 

 

Invitation to purchase and promotional pricing

 

  • As direct mail can include specific offers that may allow a transaction, content may be subject to rules from The Consumer Code (EN key clauses), which in France is the vehicle for transposing the Unfair Commercial Practices Directive 2005/29/EC;
  • Article L112-1-1 of the Consumer Code (linked above in English) effective May 28, 2022 transposes requirements from the Directive 2019/2161 related to promotional pricing - the rule applies to 'any announcement';
  • When making an ‘invitation to purchase’ in commercial communications, the following rule applies: ‘In any commercial communication targeting the consumer, encouraging the latter to make a purchase, and mentioning the price and characteristics of the property or service offered, the following information is considered to be substantial:

 

1. The main characteristics of the property or service

2. The address and identity of the trader

3. The price, including tax and delivery costs that will be charged to the consumer, or, if this cannot be calculated in advance, the method of calculation used

4. The methods used for payment, delivery, and execution and processing of consumer claims insofar as they differ from customary practice in the professional sector concerned

5. The existence of a right of withdrawal, should this be provided for by law.

From Art. L 121-3 CC.

 

SELF-REGULATION IN DM 

 

The above statutory provisions are supported/ complemented by rules from the ICC Advertising and Marketing Communications Code (EN 2024), which applies in France. From Chapter C of that code:  

 

  • Article C6 - Respecting the wish not to receive communications. Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilising another system. Marketers who are communicating with consumers internationally should avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such direct marketing communications (see also General Provisions, Article 22, Data protection and privacy).
  • Direct marketing sent electronically should include a clear and simple mechanism enabling the consumer to freely express the wish not to receive future solicitations

 

PRICING

 

  • The ARPP Price Recommendation (EN) sets out the rules for communication of price and price-related 'remarks' (e.g. conditions, limitations etc.). These rules will apply in DPM; see article 2/1.2.6.

 

 

 

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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

 

 

KEY RULES

 

  • Any associated promotional material will need to observe the rules set out in our earlier content section B; the ARPP Gambling Code (EN) and for general rules the ICC Advertising and Marketing Communications Code (EN 2018; 2024 code here) applied in its French version by ARPP, the Self-Regulatory Organisation 
  • Sponsoring the holding of events specifically intended for minors is prohibited (Art. L320-12, ISC; FR)
  • Any commercial communication for a gambling operator is accompanied by a warning message against the risks associated with gambling; in the case of print that might accompany event sponsorship, warning messages must be placed in a horizontal space reserved for the text and covering at least 7% of the advertising surface. Rules on placement and content are from various sources, the most authoritative and recent of which is the Order of July 29th 2022 (FR) from the Ministry of Health, which specifically includes sponsorship in its scope
  • General sponsorship rules, i.e. those that apply to all sectors gambling included, can be found under the General tab below. A valuable source of rules, spelt out below, is sponsorship chapter B of the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here

 

From Commission Recommendation 2014/478/EU

 

46. Member States should ensure that sponsorship by operators is transparent and that the operator is clearly identifiable as the sponsoring party

47. Sponsorship should not adversely affect or influence minors. Member States are encouraged to ensure that:

 

(a) No sponsorship is allowed of events designated for or mainly aimed at minors

(b) Promotional material of the sponsoring party is not used in merchandising designed for or mainly aimed at minors

 

  • 48. Member States should encourage sponsored parties to verify if the sponsorship is authorised, in accordance with national law, in the Member State where the sponsorship should take effect
 
 
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General

 

 

NEWS/ ISSUES

 

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

Sponsors of athletes in the Paris games (FR) 

Attention à la communication autour des jeux de Paris (FR)

Both above Grant Thornton May 3 and 19 February, 2024 respectively

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

Organisation and commercialisation of sports events in France (EN). Joffe & Associés September 2021

 

KEY RULES

 

  • Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the General Advertising Rules (EN 2024) from the ICC/ ARPP
  • Legislation from e.g. the Consumer Code (EN key clauses), which largely addresses misleading and aggressive commercial practices derived from the Unfair Commercial Practices Directive 2005/29/EC, also applies to marketing material in Event Sponsorship and Field Marketing; see content section B or the linked file 
  • The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from the ICC Code linked above. For scope, definitions etc., see Chapter B of the linked code. Main clauses follow below (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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The European Sponsorship Association (ESA) may also be able to help

 

 

 

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International

SECTION C: EVENTS/ SPONSORSHIP

 

 

Pilot Project Relaxes Olympic Games' Rule For Participating Brands

Marks & Clerk July 19, 2024 

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

Squire Patton Boggs july 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

 

Self-regulation

 

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

 

B1: Principles governing sponsorship

 

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

 

B2: Autonomy and self-determination

 

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

 

B3: Imitation and confusion

 

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

 

 B4: 'Ambushing' of sponsored properties

 

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

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

B6: The sponsorship audience

 

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

 

B7: Data capture/ data sharing

 

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

 

B8: Artistic and historical objects

 

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

 

B9: Social and environmental sponsorship

 

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

 

B10: Charities and humanitarian sponsorship

 

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

 

B11: Multiple sponsorship

 

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

 

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

​

CONTEXT

 

This website was created to set out the rules for international marketing communications and as such does not claim authority on the presentation of Sales Promotion (SP) rules. Nevertheless, when we find relevant provisions in the course of what is extensive research, we will include them in this section

 

STANDARD RULES 

 

  • SP marketing communication is subject to the content rules set out in our earlier content section B; principal source of rules for gambling marcoms is the ARPP Gambling Code (EN) and for general rules in France the ICC Advertising and Marketing Communications Code (EN 2024; FR 2024 code here
  • Be aware also of the ANJ's 2022 (February and October respectively) guidelines on commercial communications and bonusing, both files unofficial English translations. Especially the bonus/ incentives rules should be reviewed in this sales promotional context
  • Any commercial communication for a gambling operator is prohibited in media intended for minors (Art. L320-12, ISC; FR)

 

A reminder from Section B of some promotional-specific rules (non-exhaustive) from the Gambling code:

 

  • Highlighting promotional offers must be done responsibly, for the sake of moderation, transparency and good consumer information, especially in terms of the response and / or commitment expected from him/ her. (Note: in other words, the offer has to be clear in terms of what is expected from the consumer)
    (La mise en avant d’offres promotionnelles doit se faire de façon responsable, dans un souci de modération, de transparence et de bonne information du consommateur, notamment en matière de contrepartie et/ ou engagement attendu de sa part.)
  • The conditions governing the Gambling offers promoted in the messages disseminated electronically must be clearly defined and easily accessible either directly in the advertisement, or by direct access via a link

 

WARNING MESSAGES 

 

  • Any commercial communication for a gambling operator must be accompanied by a warning message against the risks associated with gambling. In the case of print, warning messages must be placed in a horizontal space reserved for the text and covering at least 7% of the advertising surface. Rules on placement and content are from various sources, the most authoritative and recent of which is the Order of July 29th 2022 (FR) from the Ministry of Health

 

SOME GENERAL RULES 

 

  • Some general channel rules for sales promotions in France, i.e. those that apply to all categories including gambling, can be found below under the General tab. These are sourced primarily from the Consumer Code (EN key clauses 2022) legislation, and from the ICC Advertising and Marketing Communications Code (EN 2018; 2024 code here), whose Chapter A carries SP rules applicable to all sectors. Full information under the General tab below
  • When sales promotional activity includes, as it frequently does, terms and conditions etc., the ARPP ‘Notes and overlays code’ linked below in the English version will be relevant. This sets out, for example, requirements of readability and understandability of conditions or qualifications, and provides guidance by medium: 
    https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/
  • If a marketing communication constitutes an ‘invitation to purchase’, article L121-3 of the Consumer Code (EN) applies. Amends effective May 28, 2022 were driven by the 'Omnibus' Directive 2019/2161 which introduced requirements for information in an e-Commerce context related to search rankings and consumer reviews (article L121-3) and - especially significant in this context - promotional pricing rules under article L112-1-1. More below under the General tab

 

 
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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. 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 a lottery and are generally illegal. See Loterie publicitaire et jeu-concours: les pièges à éviter from Haas Avocats Jan 2023.

Some general rules for sales promotions in France, i.e. those that apply to all sectors, can be found below. These are sourced from the Consumer Code law (key extracts below), and the General Advertising Rules (EN 2024) from ARPP/ ICC that apply in France. The specific ICC sales promotion rules are Chapter A of the code. Key extracts below under self-regulation. Finally, SP material should also observe the content rules set out in section B

 

LEGISLATION

 

Article L.121-4 of the Consumer Code (EN) is supplemented by clause 23 explained here (EN) by Osborne Clarke.

Re above, see under 'Definition of a new misleading practice.' 

Loterie publicitaire et jeu-concours: les pièges à éviter (FR; Haas Avocats Feb 2023)

See Guide to sales operations with bonuses/ premiums (FR) from Haas Avocats August 2022

And Haas blog June 2023 on reference vs. comparative pricing (FR) 

Extracts from the Consumer Code (EN key clauses inc. 2022 amends):

 

From Article L121-4. Considered a misleading commercial practice is:

 

  • 5. To offer to sell products or provide services at a specified price without disclosing the existence of reasonable grounds that 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 services or equivalent products or services at that price for a period that is and in quantities that are, reasonable given the product or service, and the scale of advertising of the product or service and the proposed price;
  • 6. To offer to sell the products or provide the services at an indicated price and then:

 

a) Refuse to present the advertised item to consumers;

b) Or refuse to take orders concerning these products or services or deliver or supply them within a reasonable time frame

c) Or present a flawed sample of a product or service with a view to promoting an alternative product or service

 

  • 7. To falsely state that a product or service will only be available for a very limited period of time and will only be available under special conditions for a very limited period of time in order to secure an immediate decision and deprive consumers of the opportunity of having sufficient time to make a soundly based decision

 

Offers made by electronic means

 

Also from the Consumer Code (EN key clauses; FR)

 

  • Advertising approaches made by electronic mail and, in particular, offers such as discounts, premiums, gifts or promotional games must be clearly and unequivocally declared on receipt or, if this is technically impossible, in the body of the message (Art. L122-8)
  • These messages must state an address or electronic means enabling the addressee to send a request for the advertising to be discontinued
  • The conditions applying to the possibility of benefiting from promotional offers or participating in promotional games or competitions when these offers, games or competitions are made by electronic mail, must be clearly stated and easily accessible (Art. L122-9)
  • Articles L. 122-8 and L. 122-9 also apply to advertising, offers, competitions or games sent to professionals (i.e. B2B)

 

Article L112-1-1 effective May 28, 2022 represents the transposition of promotional pricing rules from Directive 2019/2161, itself amending the Product Price Directive 98/6/EC. Clauses in English, applicable to 'any announcement' are:

 

  • I. Any announcement of a price reduction shall indicate the previous price charged by the trader before the application of the price reduction.
    This previous price corresponds to the lowest price applied by the trader to all consumers during the last thirty days preceding the application of the price reduction.
    As an exception to the second paragraph, in the event of successive price reductions during a determined period, the previous price is that applied before the application of the first price reduction.
    Clause I does not apply to price reduction announcements relating to perishable products liable to rapid deterioration
  • II. These provisions do not apply to activities where a trader compares the prices he/ she presents with those of other traders

 

​See Haas blog June 2023 on reference vs. comparative pricing (FR)

 

SELF-REGULATION

 

See the ICC Advertising and Marketing Communications Code (EN 2024), Chapter A

Clauses are set out under the International database, or click on the link above

 

PRICING

 

The ARPP’s Price Recommendation may be relevant in a sales promotional context. In English (ARPP translation):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/

 

 

 

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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: SRO SERVICES

 

ARPP announce March 2022 that advertisers/ agencies must consult pre national campaigns with environmental claims

More here (FR) and key extracts unofficially translated hereSee also additional opening entry above re Consumer Code changes & new rules re carbon offsetting and neutrality

 

COPY ADVICE

 

  • ARPP (Autorité de Régulation Professionnelle de la Publicité, the French advertising Self-Regulatory Organisation) provides non-binding advice free of charge across all media i.e. television, press, radio, outdoor, Internet, etc., and within 48 hours for its members. This service is not available to non-members of the ARPP. More information can be found here
  • Any advertiser, advertising agency or media company can submit its non-finalised project to the legal experts of ARPP provided they are a member. The project can take various forms: storyboard, script, poster or half-finalised film etc. and all types of media can be reviewed: TV, press, radio, public boards, internet. Copy advice requests and the enclosures must be sent through the online submission system ARPP.PRO

 

CLEARANCE

 

All television advertising needs to be pre-cleared by the ARPP. The procedure is as follows:

 

  • Each advertisement must be sent to the ARPP via the dedicated website:
    http://www.arpp-pub.org/ARPP-PRO,931.html
  • Identification form: the advertisement must be accompanied by an identification form, fully completed and paid for. ARPP members benefit from a preferential rate. This document is the identity card of the advertisement and includes the name of the advertiser, of the product, the title of the spot, its length, its nature (original creation, new version or declination of the spot already broadcast), the date of its first broadcasting…. An identification number will be given to the advertisement. That number will be used throughout the ad’s existence and will help its identification and research by the different archiving organisations (INA …). Link to purchase forms

 

A preferential rate of 38 euros* per advertisement is available to ARPP members, whereas non-members pay 207 euros. The pre-clearance process takes a maximum of 48 hours. Copy advice requests and the enclosures must be sent through the new online submission system ARPP.PRO. More information can be found here (FR) or here (EN). * These fees are probably out of date 

 

CLEARANCE SPECIFICS

 

5-10 clear working days for TV/VOD/Online/Sponsorship (incurs fees)

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

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International

SECTION D: SRO SERVICES

 

The ICAS Global SRO database

https://icas.global/srodatabase/

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

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

 

EASA Digital Marketing Communications Best Practice Recommendation 

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

 

EASA Best Practice Recommendation on Online Behavioural Advertising

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

 

EASA Best Practice Recommendation on Influencer Marketing

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

 

 

 

 

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E. Links

Sector

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION 

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 2018.

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en

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. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

 

 

European Data Protection Authority


Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

 

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):

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

Guidance (2021):

https://ec.europa.eu/info/sites/default/files/c_2021_9320_1_ucpd-guidance_en.pdf

 

 

European Communication and Recommendation

 

In March 2011 the European Commission launched a consultation on online gambling services. In particular, the Commission asked for views on online commercial communication, sales promotions, direct marketing and sponsorship. Following its consultation, the Commission adopted the Communication Towards a comprehensive European framework on online gambling in October 2012, which set out the commission’s action plan for the next two years. Key objectives of the action plan included ensuring protection of minors and enhancing responsible advertising. The Commission Recommendation on ‘principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online’ was published in July 2014. This is a Recommendation (not legally binding) on responsible gambling advertising, which aims to ensure that operators advertise in a socially responsible manner and provide key information to consumers. It also requires strict protection for minors.

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014H0478

On 27 November 2015, gambling regulatory authorities of EEA Member States signed a cooperation arrangement to enhance administrative cooperation.

 

 

More EU legislation is shown under the General tab below

 

 

National gambling legislation

 

French Gambling Act No. 2010-476 of 12 May 2010 on the opening to competition and regulation of the gambling and games of chance online sector. (LOI No. 2010-476 du 12 mai 2010 relative à l'ouverture à la concurrence et à la régulation du secteur des jeux d'argent et de hasard en ligne). This act represents the establishment of the legal regime for online gambling in France; it remains in force but heavily amended under the regime below:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000022206487&dateTexte=20190711

 

Loi PACTE

 

https://www.gouvernement.fr/action/pacte-le-plan-d-action-pour-la-croissance-et-la-transformation-des-entreprises (FR)

 

Plan d'Action pour la Croissance et la Transformation des Entreprises PACTE (Action Plan for Business Growth and Transformation) in May 2019, which was the foundation for the government to put in hand some reforms of gambling regulation, which first came in the form of:  

 

Ordinance 2019-1015 of 2 October 2019 reforming the regulation of gambling; entered into force 1st January 2020. This ordinance established the national Gambling Authority ANJ, (Autorité Nationale des Jeux) replacing Arjel, privatised the operator of the national lottery Française des Jeux, and confirms marcoms provisions that are now consolidated in the Internal Security Code (see below) under the Legislative part Book III, Title II

https://www.legifrance.gouv.fr/loda/id/JORFTEXT000039167499/2021-02-01/ (FR)

 

Decree 2020-1349 of 4 November 2020 on the regulation methods of the National Gambling Authority (Décret 2020-1349 du 4 novembre 2020 relatif aux modalités de régulation de l'Autorité nationale des jeux). This decree also ‘implanted’ article 45 provisions into the Internal Security Code, for our purposes consolidated under Book III, Title II of the regulatory part of the code and largely concerned with the layout of warning messages by medium and some specific content measures under articles D320-9 and D320-10, the latter focused on protection of minors

https://www.legifrance.gouv.fr/loda/id/LEGIARTI000042500943/2020-11-07/

 

Internal Security Code

Code de la sécurité intérieure

 

This is obviously a significant piece of legislation covering a wide variety of national life and business and now also the home of gambling regulatory measures. The core is from the legislative part of the act, articles L320-1 to L320-18 under Book III, Title II, created by the 2019-1015 ordinance above. State policy is spelt out under article L320-3. Article L320-12 provides for warning messages and the protection of minors. The regulatory part of the act delivers the warning messages rules/ application and some specific content and child protection measures from Decree 2020-1349 under articles D320-1 to D320-10

https://www.legifrance.gouv.fr/codes/id/LEGISCTA000039182522/2020-01-01

 

Regulatory authority ANJ

 

Autorité National des Jeux (The National Gambling Authority). From their website: 'With Article 137 of the Pacte Act on the privatisation of La Française des Jeux and the Order of October 2, 2019 reforming gambling regulation, the legislator broadened the scope of intervention of the new Gambling Authority (ANJ) by giving it the status of an independent administrative authority'. Since the reform of the regulation of gambling in 2020, all operators must submit their promotional strategy annually for approval to the National Gaming Authority. The latter examines it with regard to the objectives of the State policy on gambling and more particularly, the prevention of excessive or addictive gambling and the protection of minors.'

https://anj.fr/english

 

In February 2022, the ANJ published Lignes directrices et recommandations sur la publicité des jeux d’argent et de hasard (Guidelines and recommendations for the advertising of games of chance and risk). Related press release is here (EN). Brought about as a result of public and stakeholder consultation following what appeared to be excessive operator activity during the Euro 2020 tournament (played in 2021), this is a significant document with implications for both content and presence of advertising. From the press release: 'The guidelines cover the content of communications that are prohibited because they may encourage excessive gambling: communications banalizing (trivialising) gambling, those containing unsubstantial claims about the chances of winning or equating gambling with a change in social status or an alternative to paid work, etc.; content prohibited because it could encourage minors to gamble: prohibition of advertisements featuring a minor, which would encourage minors to consider gambling as a natural part of their leisure time, or those depicting personalities from the world of minors, etc. The recommendations aim to limit the pressure of advertising messages on each media channel, to encourage responsible practices by influencers and ambassadors, to reinforce the protection of minors and excessive gamblers and, finally, to improve prevention messages.' These 'rules' (albeit provisions are technically non-binding) extend the requirements set out in the Decree of 4th November 2020 relating to the prevention of addictive/ problem gambling and the protection of minors. Warning messages (under Recommendation 5) are required to be more prominent via the deployment of a yellow 'cartridge' to carry the messages and its increased presence in advertising. 'Implementation mechanisms' include an updating of ARPP's Gambling code and 'the complete system should be operational on September 1, 2022, before the FIFA World Cup in November-December 2022.' The 'synthesised' document, i.e. that which carries both guidelines and recomendations, is immediately below in French, followed by a link to an unofficial, non-binding GRS translation.

https://anj.fr/sites/default/files/2022-02/Synth%C3%A8se%20lignes%20directrices%20et%20recommandations.pdf (FR)

http://www.g-regs.com/downloads/FRGAMANJcom2022C003bonusesENb.pdf (EN)

 

In October 2022, the ANJ published Communication No. 2022-C-003 du 20 Octobre 2022 Portant Adoption De Lignes Directrices et de Recommandations Relatives aux Offres Commerciales des Operateurs de Jeux D’argent et de Hasard Comportant une Gratification Financiere  (Guidelines and Recommendations Relating to Commercial Offers from Gambling and Betting Operators that include a Financial Incentive). The document sets out the legal framework relating to commercial communications that contain 'financial reward' and applies that to the industry activity together with some guidelines on transparency and recommendations on the volume, frequency and amount of bonusing/ financial incentive and how and to whom those are conveyed. 

https://anj.fr/sites/default/files/2022-10/Communication%202022-C-003%20Gratifications.pdf (FR)

Unofficial and non-binding English translation:

http://www.g-regs.com/downloads/FRGamANJGuidesRecsFeb2022ANJENb.pdf

 

 

Channel legislation (Gambling)

 

Resolutions from the French audiovisual regulation authority (CSA, as of January 2022 Arcom) on broadcasting conditions of authorised gambling advertising provide recommendations and directions for advertising gambling on TV:

 

Resolution No. 2013-3 of January 22, 2013 on broadcasting conditions of authorised gambling advertising: 

https://www.csa.fr/Arbitrer/Espace-juridique/Les-textes-reglementaires-du-CSA/Les-deliberations-et-recommandations-du-CSA/Recommandations-et-deliberations-du-CSA-relatives-a-d-autres-sujets/Deliberation-du-22-janvier-2013-relative-aux-conditions-de-diffusion-des-communications-commerciales-en-faveur-des-operateurs-de-jeux-d-argent-et-de-hasard

This confirms and clarifies the Resolution immediately above and also confirms that gambling rules apply to advertising, sponsorship and product placement.

The above is repealed and replaced by the Decision of 19 October 2022 (FR) from the AV authority Arcom and sets out the conditions for the dissemination of commercial communications in defined media (on-demand audiovisual media services, radio, television), paying particular attention to the protection of minors. The (statutory) document defines prohibited AV media and sets out content rules on e.g. characters with a strong appeal to minors; there are no big surprises in those rules, which reflect the ANJ’s February 2022 guidelines and recommendations and also incorporate warning message requirements in AV media. 

 

Warning messages

 

Arrêté du 29 juillet 2022 relatif au message de mise en garde contre le jeu excessif ou pathologique. From the Ministry of Health, this order sets out the content and placement rules for the warning message that is separately required by law (The Internal Security Code, article D320-2). The 'unchangeable' message must read 'Les jeux d'argent et de hasard peuvent être dangereux : pertes d'argent, conflits familiaux, addiction… Retrouvez nos conseils sur joueurs-info-service.fr (09 74 75 13 13 - appel non surtaxé)'. The annex sets out requirements by medium, font to be used, space to be opccupied etc.

ELI: https://www.legifrance.gouv.fr/eli/arrete/2022/7/29/SPRP2222141A/jo/texte

 

Charter

 

The charters of good conduct signed between TV advertisers in January 2011 can be found in French in the Appendix of the CSA report on the consequences of gambling advertising, from October 2011. The charter covers volume and frequency of Gambling advertising, rather than content. The downloaded report is here (in French):

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

Four charters have been signed by gambling operators in October 2022 for AV and radio, display and digital media; ANJ press release here. The charters restrict advertising weight to 3 advertising ‘screens’ daily ('à limiter de 4 à 3 les publicités pour les jeux d’argent et de hasard par écran publicitaire'). The display charter requires that operators avoid placement of posters near schools and addiction treatment centres, that sites are made available to the authority for addiction prevention postings and that metro and rail station activity is limited.

 

 

Consumer protection legislation (all sectors)

 

Consumer Code (Code de la Consommation). This is the cornerstone of consumer protection marketing legislation in France, transposing the Unfair Commercial Practices Directive 2005/29/EC of 11th May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy. Key articles relating to misleadingness are L.121-2 to L.121-4, and aggressive commercial practices are defined in articles L.121-6 and L.121-7; translated into English here, or shown in our Content Section B. The comparative advertising elements in articles L122-1 to L122-5 are taken from the Misleading and Comparative Advertising Directive (MCAD) 2006/114/EC, itself codified from the original Misleading Advertising Directive 84/450/EEC. Some promotional activities are covered in L122-8 to 10. Amends to the Consumer Code effective May 28, 2022 were driven by the 'Omnibus' Directive 2019/2161 which introduced requirements for information in an e-Commerce context related to search rankings and consumer reviews (article L121-3) and promotional pricing rules under article L112-1-1. Transposition was via Ordinance 2021-1734 (FR).

http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006069565

English translation inc. 2022 key clauses:

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

 

 

Other national channel legislation applicable to all sectors, gambling included, is shown below under the General tab. Statutory rules include those for consent and information requirements in electronic communications

 

 

SELF-REGULATION

 

Industry codes

 

ARPP is the French advertising Self-Regulatory Organisation (SRO) - Autorité de Régulation Professionnelle de la Publicité. Their General Advertising Code (FR 2024) is taken directly from the ICC Advertising and Marketing Communications Code, which underpins much of advertising self-regulation worldwide. The 2024 code is in English here. The ARPP Gambling Code in French, revised effective September 1, 2022:

www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-jeux-argent-v2/

And in English:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/gambling-code-v2/

 

The ARPP also publish a number of specific Codes or ‘Recommendations’ on various topics. Links to some of the most relevant to gambling are shown below (in English); others are shown under the General tab below

 

Children:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/ (EN)

Notes and overlays:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/ (EN)

Identification of advertising and marketing communications:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-de-la-publicite-et-des-communications-commerciales/

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/identification-of-advertising-and-marketing-communications-identification-of-the-advertiser-code/ (EN)

Digital Advertising: Applies to all advertising communicated electronically other than broadcast, including advertising, whatever the format, on the advertiser’s own websites. This is Version 5, in force January 1, 2022: 

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/digital-advertising-and-marketing-communications-code/ (EN)

Image and Respect for the Person:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/ (EN)

 

ICC

 

ICC Advertising and Marketing Communications Code 2024:

https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)

https://iccwbo.org/wp-content/uploads/sites/3/2024/10/ICC_2024_MarketingCode_FRE.pdf (FR)

The ICC’s Guidance on Native Advertising Is In French here:

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

And in English here:

https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/

 

 

 

 

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General

SECTION E: LINKS/ SOURCES

 
EUROPEAN LEGISLATION

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force in May 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. The French Data Protection Authority CNIL (see later in this section for details), provide a Guide for Processors here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

 

European Data Protection Authority


Article 29 Working Party/ EDPB





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

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 documents:

 

 

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 a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’)

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. Transposition in France is primarily, for our purposes, by Ordinance No. 2021-1734 of December 22, 2021, shown below under national legislation.
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 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 are required to have transposed into national law by 19th September 2020. 

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

 

 

e-Privacy

 

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

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

 

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

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

 

 

e-Privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

 

e-Commerce

 

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

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

 

The Digital Services Act

 

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

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

 

 

The Digital Markets Act

 

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

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

 

 

NATIONAL LEGISLATION

 

Toubon

 

1994 Toubon Law on the use of French language (Loi Toubon)articles 1 and 2This law imposes the use of the French language in work, public administration, instructions for use of products, commercial offers and guarantees, and in advertising. Exceptions are allowed for commonly used product names and well-known foreign specialties, for protected foreign names, expressions that are commonly used, as well as corporate names, commercial names or signage. Trademarks can be used without being translated. However, messages that have been registered with the trademark must be translated if they inform the consumer about a characteristic of the product:

http://www.dglf.culture.gouv.fr/droit/loi-gb.htm  (in English!)

 

Consumer protection

 

Consumer Code (Code de la Consommation). The Consumer Code carries the Unfair Commercial Practices Directive 2005/29/EC of 11 May 2005 via the Law 2008-776 of 4th August 2008 on Modernisation of the Economy. Articles L121-1 to L121-5 of the Code cover misleading commercial practices; L121-3 sets out the specific rules for commercial communications making ‘an invitation to purchase.’ Articles L122-1 to L122-6 set out comparative advertising rules. Requirements for promotions in electronic communications are found under L122-8 to L122-10. Some pricing rules are under L112-1 to L112-4. Act No. 2014-344 of 17 March 2014 transposed EU Directive 2011/83/EU into the Consumer Code; the Directive largely addresses distance selling and off-premise contracts, rights of redress etc. Ordinance 2021-1734 (FR; see below) is the vehicle that transposes various marketing-related rules from Directive 2019/2161 which itself inter alia amends Directives 98/6/EC, the Product Pricing Directive and the UCPD 2005/29/EC. Clauses affect e-Commerce information requirements related to consumer reviews and search rankings (article L121-3) and, separately, promotional pricing rules which are shown under article L112-1-1. The version of the Consumer Code applicable from May 28, 2022 is here:

https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006069565/LEGISCTA000032220945/#LEGISCTA000041598964 (FR)

An unofficial and non-binding translation of most of the articles relevant to this database, including those effective May 28, 2022, is here:

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

                                                                                                

 

Ordinance No. 2021-1734 of December 22, 2021 transposing Directive 2019/2161 of the European Parliament and of the Council of November 27, 2019 as regards to better enforcement and modernisation of EU consumer protection rules. Ordonnance n° 2021-1734 du 22 décembre 2021 transposant la directive 2019/2161 du Parlement européen et du Conseil du 27 novembre 2019 et relative à une meilleure application et une modernisation des règles de l'Union en matière de protection des consommateurs. In this context, amends the Consumer Code; the product pricing amends are under Section 2 of the ordinance and Section 3 carries consumer review and search ranking information requirements as well as the addition under misleading actions: 'When an item is presented as being identical to an item marketed in one or more other Member States, even though it has a different composition or characteristics”. The latter amends are to article L121-2 of the Consumer Code. Provisions are in force May 28, 2022.

https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000044546235 (FR)

 

The 'Climate and Resilience Law' (Law 2021-1104 of August 22, 2021; art 10) established specific reference to environmental impact under article L121-2 of the Consumer Code, which covers how a product or service's 'essential characteristics' must not mislead. 

https://www.legifrance.gouv.fr/eli/loi/2021/8/22/TREX2100379L/jo/texte

 

Consumer authority

 

The Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) is the public body that enforces the Consumer Code: 

https://www.economie.gouv.fr/dgccrf

 

Sustainability 

 

The Environmental Code

 

The Climate and Resilience Law (Loi 2021-1104 FR) introduced via Decree 2022-539 of April 13, 2022 on carbon offsetting and carbon neutrality claims in advertising a new Section 9 in the French Environmental Code which requires that claims such as 'carbon neutral' and equivalent are permitted only if 'the advertiser makes readily available to the public the following: 1. A greenhouse gas emissions assessment report that incorporates the direct and indirect emissions of the relevant product or service; 2. The process by which the greenhouse gas emissions of the relevant product or service are first avoided, then reduced and finally offset. The greenhouse gas emissions reduction trajectory is described using quantified annual progress targets; 3. The methods for offsetting residual greenhouse gas emissions that comply with minimum standards defined by decree.' LOI No. 2020-105 (FR) du 10 février 2020 relative à la lutte contre le gaspillage et à l'économie circulaire (the fight against waste and the circular economy, though the fight is against only the first of those) also places marketing-related clauses into the Environmental Code including, for example, that as from 1 January 2023 B2C advertising flyers or catalogues must be printed on recycled paper or on paper produced from sustainably managed forests. Helpful May 2020 summary in English here from Osborne Clarke.

Decree No. 2022-539 of April 13, 2022 on carbon offsetting and claims of carbon neutrality in advertising

https://www.legifrance.gouv.fr/eli/decret/2022/4/13/TRER2209794D/jo/texte

Section 9 Environmental Code:

https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006074220/LEGISCTA000043960254/#LEGISCTA000043960254

The clauses concerned are in English here (translation borrowed from Soulier Avocats/ Mondaq May 2022)

https://www.g-regs.com/downloads/FREnvCodeMay2022EN.pdf

 

 

Privacy legislation and regulator’s guidance

 

Data processing

 

Act No. 78-17 of 6 January 1978. Loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés. Formally, the 1978 Information Technology, Data Files and Civil Liberties Act, known as the French Data Protection and Freedoms Act (FDPFA)The 1978 act is the core and principal national data protection statute (pace GDPR) in France and established the CNIL (Commission Nationale de l’Informatique et des Libertés, the Data Protection Authority; see below). An English translation of the FDPFA, as amended up to a 2014 amendment, from the CNIL website is here:

http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf

The consolidated version of the Act, including the amends from Law 2018-493 on Personal Data Protection (FR) and Ordinance 2108-1125 of December 12, 2018, which is the ‘vehicle’ that recognises GDPR, is in French here:

https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee
There have been many amendments to the DPA over the years; significant in this context is Ordinance No. 2011-1012 of 24 August 2011 on electronic communications, which set out cookie provisions from Directive 2009/136/EC. See below. The Ordinance is in French here:   

http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id

 

Cookies/ data protection

 

France implemented the EU Cookies Directive 2009/136/EC, which amended the E-Privacy Directive 2002/58/EC, by Order/decree No. 2011-1012, of 24 August 2011 on electronic communications (see above). This amends the Consumer Code, and the Postal and Electronic Communications Code as well as the Data Protection Act. Relevant specific provisions re Cookies: article 37 of the Ordinance found in Chapter III Changes to Law No. 78-17 of 6th January 1978; amends Article 32II of the FDPFA to provide the rules for information and consent, together with some exemptions:

http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000024502658&categorieLien=id

An English translation of the DPA (including the Ordinance update) is here:
http://www.cnil.fr/fileadmin/documents/en/Act78-17VA.pdf

The version of the DPA that includes amends from Law 2018-493 on Personal Data Protection, which is the ‘vehicle’ that recognises GDPR, is here (in French):

https://www.cnil.fr/fr/loi-78-17-du-6-janvier-1978-modifiee

 

Electronic communications

 

Mail & Electronic Communications Code, Article L34-5 (Code des postes et des communications électroniques): This Code is a cornerstone for the regulation of commercial electronic communications; the specific article L34-5 implements the E-Privacy Directive 2002/58/EC and concerns unsolicited commercial communications by fax, telephone or e-mail, which are subject to ‘freely given, specific and informed’ consent, unless direct marketing concerns related goods/ services to an existing customer whose data has been correctly obtained at the time of the sale, and who is given a simple and no-cost opportunity to opt out to the use of his/ her personal data. Consolidated version in force Feb 2019:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070987&dateTexte=20190213

Translation of article L34-5: 

http://www.g-regs.com/downloads/FRMail_E-CommsL34-5.pdf

 

e-Commerce and privacy

 

Act No. 2004-575; the Law of 21 June 2004 on Confidence in the digital economy, ‘LECN’ (Loi pour la Confiance dans l'économie numérique). The law inter alia implemented article 13 (unsolicited communications) of the E-Privacy Directive 2002/58/ECnow codified under Article L.34-5 of the Mail and Electronic Communications Code (see above). LECN also part-implemented the E-Commerce Directive 2000/31/EC on certain legal aspects of information society services. LECN articles 19 and 20 address the information and Identification requirements in e-commerce communications. Provisions from this Directive are also found in the Consumer Code (EN) which covers promotional offers/ games and their conditions, from Article 6 of the Directive, under articles L122-8 and L122-9. Consolidated version of the LECN is here: 

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000801164
 

Personal Data Authority

 

The CNIL (Commission Nationale de l’Informatique et des Libertés) National Commission for Data Protection: from its website is ‘an independent administrative body that operates in accordance with the data protection legislation of 6th January 1978 as amended on 6th August 2004’. Its role is to ‘protect privacy and freedoms in the digital world, to inform, advise & sanction, having the power to impose significant fines on data controllers who breach the law’:

https://www.cnil.fr/en/home

‘Cookies and Other Trackers’ (EN) ‘The purpose of this document is to describe the practical modalities for obtaining consent in accordance with the applicable rules, to propose concrete examples of user interface, and to present best practices that go beyond the legal requirements.’ See also Cookies and other tracking devices: the Council of State issues its decision on the CNIL guidelines 29 June 2020

The CNIL GDPR: September 2017 Guide for processors is here:

https://www.cnil.fr/sites/default/files/atoms/files/rgpd-guide_sous-traitant-cnil_en.pdf (EN)

And their 2018 Guide ‘Security of Personal Data’ is here, also in English:
https://www.cnil.fr/sites/default/files/atoms/files/cnil_guide_securite_personnelle_gb_web.pdf

2021 Annual Report:

https://www.cnil.fr/sites/default/files/atoms/files/cnil_-_42e_rapport_annuel_-_2021.pdf

 

 

National Channel legislation and regulation

 

Decree No. 92-280 on advertising, sponsorship and tele shopping (amended 2011). Articles 18-20 for Sponsorship, 21+ for tele-shopping. This decree contains a number of general advertising content provisions and implements the rules from the AVMS Directive  2010/13/EU updating the Television Without Frontiers Directive on advertising, sponsorship and tele-shopping. A 2017 amendment from Decree No. 2017-193 of February 15, 2017 (FR) amended article 18 on the programme sponsorship regime to be more in line with the AVMS Directive; amendment effective January 2018. Decree 92-280 is here:

http://www.legifrance.gouv.fr/affichTexte.do;jsessionid=FD29AF8EAFEEAF0078720A084AB27E51.tpdjo10v_3?cidTexte=LEGITEXT000006078905&dateTexte=20120727 (FR)

An English translation of the relevant clauses is here:

http://www.g-regs.com/downloads/FRDec92-280AdvSponsC.pdf

 

Product placement


Decision No. 2012-35 of 24 July 2012, by the French Audiovisual Authority CSA on product placement. Implements Directive 2007/65/EC of the European Parliament and of the Council of 11th December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions concerning the pursuit of broadcasting activities; article 3g of the Directive addresses product placement. The CSA decision is here:

https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000021920619

 

Radio sponsorship

 

Consolidated version of Decree 87-239 of 6th April 1987, updated 1989, on rules for private radio stations on advertising and sponsorship (Décret 87-239 du 6 avril 1987, mis à jour en 1989, sur les règles dans les radios privées sur la publicité et le parrainage) Article 9 of this Decree allows sponsorship on private radio stations:

http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000882734 
English translation of the key clauses is here:

http://g-regs.com/downloads/FRPrivateRadioSponsB.pdf

 

Advertising to children/ young people

 

LAW No. 2016-1771 of December 20, 2016 (FR) LOI No. 2016-1771 du 20 décembre 2016 relative à la suppression de la publicité commerciale dans les programmes jeunesse de la télévision publique introduced an amend to the Léotard Law; the amend  prohibits advertising of anything other than generic messages for goods or services relating to children's health and development, or campaigns of ‘general interest’, in programmes primarily intended for children under 12  and for 15 minutes before and after such programmes; effective January 2018. Applicable to public service TV France TV: The Léotard law, version from January 2018, article 53:

https://www.legifrance.gouv.fr/affichTexteArticle.do;jsessionid=3CA8F29980E9B092E202044635B7726C.tplgfr27s_1?idArticle=LEGIARTI000033662943&cidTexte=JORFTEXT000000512205&categorieLien=id&dateTexte=20180101

 

 

AVMS Directive amends implemented

 

The same Léotard law as linked above was amended by Ordinance 2020-1642 (FR) to implement the amends of Directive 2018/1808 which extended the scope of the AVMS Directive. Chapter II articles 59 to 61 of the Léotard law carry the special provisions applicable to video-sharing platforms, inter alia bringing these platforms into the scope of rules for audiovisual commercial communications and requiring that users are informed of commercial communications within posts. Additionally and significantly, article 14 transposes the requirements of article 4a of the AVMS Directive (shown here) relating to HFSS food advertising and requiring that the CSA ‘develop recommendations for improving the self-regulation of the advertising sector.’

https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000512205/2021-03-11/

 

‘Addressable’ TV advertising

 

Decree 2020-983 of 5th August 2020 with amends to the television advertising regime (Décret n° 2020-983 du 5 août 2020 portant modification du régime de publicité télévisée). Entered into force 7th August. This decree addresses the audiovisual advertising framework and its relationship with online competition by allowing ‘conventional’ broadcast advertising, subject to conditions, to deliver targeted advertising messages according to geographical or behavioural profile. The decree also relaxes the prohibition of cinema advertising. Helpful blog on the act from Taylor Wesssing here 
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042211231

 

Regulatory authority 

 

ARCOM from January 2022

 

The CSA is the Conseil Supérieur de l’Audiovisuel. Established under article 4 of Loi No. 86-1067 du 30 septembre 1986 relative à la liberté de communication (Loi Léotard), their 'three essential missions' are to inform, protect, and regulate. From their website: Many texts relating to audiovisual law are regulatory in nature and constitute implementing decrees in particular for the law of September 30,1986. Whole sections of radio, television and SMAD (on demand) services and, consequently, of CSA monitoring are governed by regulatory provisions. This is the case, for example, with most of the advertising and sponsorship requirements or those relating to the distribution and production of audiovisual and cinematographic works.' The CSA merges with HADOPI into a single body ARCOM (Autorité de régulation de la communication audiovisuelle et numérique), effective January 1, 2022 via Law no. 2021-1382 of 25 October 2021 relating to regulation and protection of access to cultural works in the digital age. CSA Advertising-related texts can be found at this link:

https://www.csa.fr/Reguler/Espace-juridique/Les-textes-de-references/Decrets-et-arretes/Decrets-et-arretes-relatifs-a-la-publicite

 

 

Model shots

 

Article L2133-2 of the PHC addresses retouched model shots, which must include a declaration in the advertising ‘Photographie retouchée’. The accompanying Decree 2017-738 of May 4, 2017 (FR) requires that execution is accessible, clearly distinguished and visible. Consolidated version of the PHC as at March 2019:

https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006072665&dateTexte=29990101&categorieLien=cid

 

Decree No. 2017-738 of May 4, 2017 relating to commercial photographs of models whose body appearance has been modified. Per above reference under the PHC, the Decree identifies the types of communication covered by this requirement and defines the terms and conditions for the presentation of the term ‘retouched photograph’ (photographie retouchée) and specifies responsibilities.

https://www.legifrance.gouv.fr/eli/decret/2017/5/4/AFSP1703011D/jo/texte

 

 

SELF-REGULATION

 

ARPP/ Industry codes

 

ARPP is the advertising Self-Regulatory Organisation (SRO) Autorité de Régulation Professionnelle de la Publicité. From their website: ‘The ARPP recommendations constitute the ethical framework for advertising in France. They are based on the ICC Advertising and Marketing Communications Code (ICC Code), and reinforced, according to their themes, by charters of commitments signed by representatives of the business community, ARPP and public authorities. Their development brings together, through the associated bodies of the ARPP, all the representatives of both society and business.’ The ARPP General Advertising Code (FR - 2024 code) is taken directly from the ICC Code, which underpins much of advertising self-regulation worldwide. The English version of the 2024 Code is here. All the ARPP Codes are shown in French in the ARPP Guidance document here:

https://www.arpp.org/code-arpp/

The Jury de Déontologie Publicitaire JDP is attached to the ARPP but acts as an independent authority, handling complaints concerning advertising: Opinions/ rulings of the JDP here:

http://www.jdp-pub.org/avis/

The ARPP publish a number of specific codes or 'Recommendations' (see first para) on various topics. Some of the most significant are shown below:

 

Price

 

ARPP Recommendation on Price Advertising 2017 (Recommandation publicité de prix). Based on the principles of the ICC Advertising and Marketing Communications Code, this Recommendation sets out by channel the rules for communicating prices and their qualifications/ limitations:

https://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Publicit%C3%A9-de-prix-ARPP.pdf

An ARPP English translation is here:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/advertising-prices-code/

 

Sustainability

 

ARPP Recommendations on Sustainable Development (ARPP Recommandation Développement Durable, en vigueur depuis 1er août 2020) :

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/developpement-durable/

The ARPP English version, only slightly easier to understand, is here:
https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/sustainable-development-code/

Video here (EN sub-titles): 

https://www.arpp.org/actualite/recommandation-arpp-developpement-durable-v3-disponible-en-motion-design/

 

Portrayal of people

 

The ARPP introduced in July 2016 an update of ‘Portrayal and Respect of Human Beings’:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/portrayal-and-respect-of-the-human-b%c2%adeings-code/ (EN)

The Code or ‘Recommendation’, introduced in 2016 and based on the ICC Code, covers such aspects as Dignity and decency, stereotypes, and ethnic or religious references. The full code is set out in Content Section B, or click above. In the original French (Recommandation Image et Respect de la Personne):

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/image-et-respect-de-la-personne/

 

Children

 

2004 ARPP Children Recommendation (Recommandation Enfant Juin 2004). This Code applies to all marcoms disseminated in France, whatever their form, and involves marcoms that portray children and that are aimed at them. Rules are under Transparency, Social Responsibility, Decency, Violence, Safety, Integrity, The Young Consumer, Games and Videos, and Interactive Media. The original ARPP Code is here in French:

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/enfant/

The ARPP English version is here:

http://www.arpp.org/nous-consulter/regles/regles-de-deontologie/childrens-code/

Our translation is here: 

http://www.g-regs.com/downloads/FRARPPEnfantFR-ENb.pdf

 

Identification

 

Identification of advertising and marketing communications. Identification of the advertiser. The Code is largely based on the ICC Code and shows extracts from that. There is a specific requirement for ‘advertorial’ in print. See also the ICC Native Guidance below this entry:

http://www.arpp.org/wp-content/uploads/2016/09/Identification_Code.pdf (EN)

In the original French (Recommandation Identification de la Publicité et des Communications Commerciales):

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-Identification-de-la-publicit%C3%A9-et-des-communications-commerciales-ARPP.pdf (FR)

 

Native

 

This guidance is also largely based on the iCC Code articles 7 and 8 and B1 and C1 (Sponsorship and Digital respectively). In French here:

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

And in English here:

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

Online channels

 

The ICC content rules above apply online; the online channel in various forms is covered by ARPP’s Digital Advertising and Marketing Communications Code. The link is to the ARPP translation of the code of December 2021; in French this is the Communication Publicitaire Numerique, version 5 in force January 1, 2022. The press release which sets out the changes is here in English. These rules apply to ‘All advertising and marketing communications addressed electronically, other than those broadcast on radio and television services and ‘All targeted advertising and marketing communications matching that definition, whatever the format, including those published on advertisers’ websites.’ The code includes a useful walk through the various techniques online such as in-game, sponsored links, native, OBA and brand content.

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/recommandation-communication-publicitaire-numerique/ (FR)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/digital-advertising-and-marketing-communications-code/ (EN)

 

Influencers

 

ARPP recommendations for 'influencer marketing’ (in FR, EN sub-titles):

https://www.youtube.com/watch?v=8Jx4gr5bvH0

The ARPP Digital Advertising and Marketing Communications Code also carries rules on Influencer marketing

http://www.g-regs.com/downloads/FRGenComPubNumV5Dec2021EN.pdf 

See also:
https://www.arpp.org/actualite/observatoire-marketing-influence-2019/ (FR)

 

Safety

 

Safety Code: Dangerous Behaviours and Situations:

http://www.arpp.org/wp-content/uploads/2017/01/Safety-Code-dangerous-behaviours-and-situations.pdf (EN)

In the original French (Recommandation Sécurité: Situations et Comportements Dangereux) :

http://www.arpp.org/wp-content/uploads/2016/08/Recommandation-S%C3%A9curit%C3%A9-situations-et-comportements-dangereux.pdf (FR)

The Code is particularly protective of children but helpful in describing situations that are permitted.

 

Qualifications/ notes

 

Notes and Overlays Code:

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/notes-and-overlays-code/

In the original French: (Recommandation Mentions et Renvois)

https://www.arpp.org/nous-consulter/regles/regles-de-deontologie/mentions-et-renvois/

The Code sets out in some detail and by channel the formatting/ readability required of notes relating to pricing in particular, and some other claims. Details in Content Section B.

 

Crypto

 

ARPP's Crypto-Assets code (EN) in force October 2023. FR version of four financial codes

 

INTERNATIONAL CODES AND GUIDANCE 

 

ICC

 

ICC Advertising and Marketing Communications Code 2024:

https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)

 

Chapter A: Sales Promotion

Chapter B : Sponsorship

Chapter C : Direct Marketing and Digital Marketing Communications

Chapter D : Environmental Claims in Marketing Communications

Chapter E: Children and Teens 

 

ICC guidance and frameworks 

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here

https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/

Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising

https://iccwbo.org/news-publications/policies-reports/mobile-supplement-icc-resource-guide-self-regulation-interest-based-advertising/ 

The ICC’s Guidance on Native Advertising Is in French here:

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

And in English here:

https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/


 

OTHER TRADE ASSOCIATIONS

 

IAB France/ Europe

 

IAB France. From their website: 'An association created in 1998 whose mission is threefold: to build the online communications market, to promote its use, and to optimise its efficiency.'

https://www.iabfrance.com/

Members are here:

https://www.iabfrance.com/article/les-membres

How to Comply with EU Rules Applicable to Online Native Advertising:
IAB Transparency and Consent Framework:
 

WFA

 

The ‘GDPR Guide for Marketers’ from the WFA (World Federation of Advertisers): 

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

EASA

 

The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is 'the European voice for advertising self-regulation.' The following link provides members:

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

 

Best Practice Recommendations

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

Influencer Marketing (2023)

 

FEDMA

 

Federation of European Direct and Interactive Marketing (FEDMA). FEDMA is the principal source of knowledge of the DM channel across Europe:

http://www.fedma.org/index.php?id=30

 

ESA

 

The European Sponsorship Association can be found at: 

www.sponsorship.org

 

 

 

 

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International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

ICC Advertising and Marketing Communications Code 2024. In September 2024,&