European/ international news
A new path for Privacy Sandbox on the web July 22, 2024
Google re new third party cookie plans for Chrome. BBC here
The Empco Directive. Taylor Wessing June 27, 2024
Member States implement by March 27, 2026 to take effect by 27 September 2026
EU issues
Privacy Sandbox Update News and Updates
EDPB Opinion On Pay Or OK Consent Models By Large Online Platforms
Ambush marketing: what you need to know ahead of the European summer of sport
Taylor Wessing May 16, 2024
Council Influencer conclusions May 14, 2024
The Greenwashing Directive enters into force: transposition period begins
Liedekerke April 19, 2024
CJEU rules on IAB's TCF. Hunton March 8, 2024
EU issues
EASA Policy newsletter March 2024
Topics Finance, influencer marketing, green claims
Agreement reached on the EU Corporate Sustainability Due Diligence Directive
Clifford Chance March 28, 2024
JEP has launched a new communications campaign
EU issues
EC Influencer sweep results Feb 14, 2024
EDAA launches new solution to DSA ad transparency requirements Feb 17, 2024
EU issues
EASA Jan 2024 update on GDPR and Cookie Pledge
EASA Jan 2024 update on DSA and DMA
EASA Jan 2024 update on Empowering Consumers for the Green Transition
EU: EDAA Unveils New Advanced Advertising Transparency Programme
EU issues:
EASA update on CPC Influencer activity October 11, 2023
Green Glaims Directive update from EASA October 11, 2023
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023
Proposal for a Directive of The European Parliament and of the Council on Consumer Credits
In May 2023, IMCO published proposed CCD II on which provisional agreement has been reached. Plenary vote September 2023
New Food code effective June 1, 2023
EN translation of the above here
New Febiac Car Advertising Code March 2023 (FR)
Above applicable May 1, 2023. Translation here
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here
New rules on advertisements for virtual currencies in Belgium
Osborne Clarke. March 21, 2023
New Detergents Code (FR) Feb 2023
Upcoming EU Rules on Green Claims. Covington and Burling LLP/ Lex January 23, 2023
The European Parliament Adopts New Sustainability Reporting Rules. Jones Day November 22, 2022
Corporate Sustainability Reporting Directive (above) affects companies with 'substantial business activity in the EU.'
23/4/22. Big Tech companies to face new EU content rules. This is the news that the 'Trilogue' (consisting of representation from the European Commission, the Council of the European Union and the European Parliament) have reached agreement on the Digital Services Act, 'a landmark piece of legislation that aims to address illegal and harmful content by getting platforms to rapidly take it down.' The Council's press release is here
December 2021 EASA update on the progress of the Digital Services Act is here
Flemish Media Regulator published in December 2021 the Content Creator Protocol (NL)
December 2021 EASA update on the progress of the European Commission Beating Cancer Plan (BECA). The EC plan potentially impacts marketing/ advertising in both the Alcohol category and the Food and Beverages category
December 2021 EASA update on Empowering the Consumer for the Green Transition. The EC has delayed the tabling of this initiative until 30 March 2022. Their ‘sweep’ results checking sustainability claims are here
The Digital Services Act package
EASA's September 2021 update on the DSA here
And on the Better Internet for Children Strategy (BIK strategy) here
And on environmental claims and the new consumer agenda here
EU pages on the Farm to Fork strategy here
The EU’s Green Consumption Pledge Initiative focuses on 'non-food or mixed businesses with direct interaction with consumers'
And complements the EU Code of Conduct for Responsible Food Business and Marketing Practices, in force July 2021
EU issues: an update on the progress of the Digital Services Act is here, on the Farm to Fork strategy (see below) here, and on 'Green transition' here
News and recent jury decisions (FR)
Latest – and significant – news on the EU Farm to Fork strategy here; EU pages on the strategy here
In the context of Europe’s ‘Beating Cancer Action Plan’, there will be some impact on self-regulation regarding HFSS food advertising, alcohol advertising and Audiovisual Media Service Directive (AVMDS) provisions on commercial communications, similar to the above ‘Farm to Fork’ implications. This relates to the new clauses introduced by the 2018/1808 Directive
The EU’s Green Consumption Pledge Initiative focuses on “non-food or mixed businesses with direct interaction with consumers” and complements the EU Code of conduct for responsible business and marketing practices that will focus on the food sector. This is planned for June 2021
And the ‘green sweep’ - an EU review of websites that make environmental claims - finds that ‘in 42% of cases the claims were exaggerated, false or deceptive and could potentially qualify as unfair commercial practices under EU rules. ‘Greenwashing' has increased as consumers increasingly seek to buy environmentally sound products.’
FOOD: the EU's Farm to Fork strategy (EN) underlines that the Commission "will develop an EU Code of conduct for responsible business and marketing practice accompanied with a monitoring framework. The Code will be developed with all relevant stakeholders" in Q2 2021
CARS: Following a series of complaints mainly relating to environmental claims and CO2 and fuel consumption statements, the Communication Center is asking its members quickly to raise awareness in the sector by sharing the one-pager in the appendix (FR) with a summary of the rules to be observed. Unofficial translation here.
The Belgian advertisers association UBA, food association FEVIA, and retail federation COMEOS launched the Belgian Pledge 3.0 regarding food advertising to children, involving stricter nutritional criteria, a remit extension to online influencers, and as of 2021, a trial period with a complaints mechanism which will involve JEP as the independent adjudicator.
The European Commission presented the Digital Services Act (DSA) that proposes a set of new EU wide rules for digital services, including on online advertising. According to the Commission, “the new framework will rebalance the rights and responsibilities of users, intermediary platforms, and public authorities and is based on European values - including the respect of human rights, freedom, democracy, equality and the rule of law”. The proposal is available here and press release here. The European Parliament and EU Member States will soon start discussing the proposal in the ordinary legislative procedure. In the first week of January, the EU Member States will meet in the margins of the Internal Market Working Party to discuss the proposal
UBA Unstereotype Charter (EN) re diversity and inclusion in advertising. UBA is the United Brands Association, formerly the Union Belge des Annonceurs, the Association of Belgian Advertisers
New DETIC Code re Cosmetics
http://www.g-regs.com/downloads/BECosmeticCodeDETIC2020.pdf (EN)
ICAS, EASA and CONARED Statement on the Importance of Responsible Advertising and COVID-19
Updates since May 2022 (slimmed)
New JEP Influencer rules May 2022 (EN)
Law of 8th May 2022 (FR) transposing 2019/2161
CommToZero platform and guidelines (EN)
Chambers Advertising & Marketing 2022 (Nov)
Above includes review of Belgian law & practice
EU green claims regulation December 2022
Meta's Ad Practices Ruled Illegal under EU Law
New Detergents Code (FR) Feb 2023
Greenwashing in advertising. Liedekirke Feb 16, 2023
New Febiac Car Advertising Code March 2023 (FR)
Above applicable May 1, 2023. Translation here
New Food code effective June 1, 2023
EN translation of the above here
Key changes in ad rules Lydian/Lex June 16, 2023
Q&A: online advertising in Belgium
Agio Legal/Lex. September 29, 2023
McDonald's 'sustainable beef' ruling (NL)
Above Nov 15, 2023. Curiously uncertain
CJEU rules on IAB's TCF. Hunton March 8, 2024
More on the above from BCLP May 29, 2024
DMA implemented. Strelia May 7, 2024
DLA Piper Environmental Advertising Claims Guide
Above from Aug 7, 2024 includes Belgium
New ICC Code (EN) Sept 18, 2024
A new path for Privacy Sandbox on the web July 22, 2024
Influencers: the rules applicable to your social media marketing
Seeds of Law (formerly Peeters Law). May 22, 2024
Greenwashing and consumer protection: new European and Belgian rules ahead
Lydian/ Lex March 14, 2024
How brands and influencers can both succeed online (EN) Novagraaf. Jan 3, 2024
Influencer marketing: Wat moet je weten over reclamewetgeving? (NL) Novagraaf Group. 27 October 2023
What do you need to know about advertising law? Includes VRM's Content Creator Protocol (NL) for the Flemish region
The advertising SRO JEP applies and administers the ICC Advertising and Marketing Communications Code (EN 2024). Applicable ICC Code in French here and Dutch here (both 2018). The code is structured in two sections: General Provisions and Chapters. The former are fundamental principles and other broad concepts that apply to all marketing in all media. Chapters apply to specific marketing areas:
Sales Promotion (A)
Sponsorship (B)
Direct Marketing and Digital Marketing Communications (C) and
Environmental Claims (D)
JEP also deploy sectoral codes such as the Covenant on Advertising and Marketing of Alcoholic Beverages, the Advertising Code for Foods (Fevia), Motor Vehicles (Febiac) - the latter two updated April 2023, see individual sector databases or 'Updates' above - for Cosmetic and Hygiene products (Detic), all of which are referenced and translated in their respective sectors on the WikiRegs website. Other rules relevant to this General sector are:
Rules on the depiction of people* FR-NL / EN
Rules on humour in advertising FR-NL / EN
2022 Influencer marketing guidelines FR-NL / EN
2019 Native Advertising Code FR-NL / EN
Financial watchdog tightens rules on crypto advertising. Baker McKenzie/ Lex March 28, 2023
Book VI of the Economic Law Code (ELC) delivers in Belgium consumer protection rules from two European directives - background note here and English translation of key provisions from the ELC here. The Belgian authorities have partly extended protection to B2B transactions. Provisions can be found in the ELC translation linked earlier, articles VI. 103.1 and following, or clauses in English in our content section B. See Belgium adopts law implementing the Omnibus Directive from DLA Piper May 31, 2022 regarding transposition of the 2019/2161 consumer protection modernisation 'Omnibus' Directive, which was via the Law of 8th May 2022 (FR) amending Books I, 6 and 15 of the ELC. Articles 10, 29 and 30 deliver the requirements most relevant for our purposes, on price reductions, international marketing and consumer reviews and search rankings respectively. The equivalent articles from the Directive, so that the original intention is clear, are 2 (price reductions) and 3 (international marketing, search rankings and consumer reviews). There are some significant implications in e-Commerce, explained in the DLA Piper article linked above.
The government department FPS Economy (EN) is the 'keeper' of the ELC and publishes a number of recommendations/ guidelines, including:
Content creators/ Influencers (FR )
Unfair practices in advertising (FR 2019)
Environmental claims guidelines (FR 2022; ENS5)
Privacy issues should be reviewed with specialist advisors
A new path for Privacy Sandbox on the web July 22, 2024
Privacy Sandbox news and updates
The General Data Protection Regulation 2016/679 (GDPR) applied across Member States from 25 May 2018. The European Commission page on GDPR is here. On 10/01/2018 the national Law of 3rd Dec 2017 replaced the Privacy Commission with the Data Protection Authority (DPA). The Law of 30 July 2018 (FR), the ‘Framework Act’, on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data. More information in relevant channels in section C. IAB Europe Transparency and Consent Framework is here and from May 2020 their Guide to the Post Third-Party Cookie Era. In February 2022, EU regulators ruled that TCF transgresses GDPR; story here. In February 2023 the Belgian DPA approved plans to fix; CJEU decision pending. Update from lawyers Heuking here. European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here.
Provisions affecting (direct) electronic marcoms are under Chapter 3 (arts. 110-115) of Book VI Economic Law Code (ELC, as above) which part-implements article 13 of the e-Privacy Directive 2002/58/EC. The rest of article 13 is transposed via article 13 of Book XII ELC and articles 1 and 2 of the Royal Decree of 4 April 2003 FR-NL / EN. Together, these set out the consent and information rules required in the opt-in/ soft opt-in regime that generally prevails across member states. The obligations for Information Society Service Definition any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service providers are from articles 6, 12 and 13 of Book XII ELC EN, which implements the e-Commerce Directive 2000/31/EC, requiring that certain supplier and promotional information is made easily available (normally, via a link) to consumers. Rules are spelt out in our channel section C under Email/ SMS, or see the linked files. Can I Send Marketing E-Mails Without Consent (Opt-In) To Former Customers? a blog from Timelex/ Mondaq March 2023 is a helpful run-through of the law's requirements and conditions.
Audiovisual media falls under the competence of the three Communities: Flemish, French and German-speaking. Rules on broadcasting in the form of media decrees all implement (slightly differently) the AVMS Directive 2010/13/EU (AVMSD). Amendments to the AVMSD were established by Directive 2018/1808 and transposed in Belgium by the Decree on Audiovisual Media Services and Video Sharing Services of 4 February 2021 (FR) which extends scope online and specifically to video sharing platforms where there are new rules requiring identification of commercial communications. Rules by channel are set out in full in section C, and AV content rules for Belgium are in section B. Content rules in the directive amendments are not significantly changed, though there is some potential pressure on food advertising to children in particular. The directive's new rules are here.
The Flemish media regulator considers that the above decree brings AV content from vloggers and influencers into scope; they have published in December 2021 the Content Creator Protocol (NL) which sets out three themes: commercial communication on social media, commercial communication and content aimed at minors and prohibition of violent and hate speech. Helpful article on the issue (in English) from DLA Piper here and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media; we wait to see if others will follow suit.
http://www.g-regs.com/downloads/BEUseofLanguage.pdf
Greenwashing and consumer protection: new European and Belgian rules ahead
Lydian/ Lex March 14, 2024
EASA update on below October 18, 2023
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here
Helpful summary and commentary here from GALA/Lex also March 22
Self-reg: the Code of Environmental Advertising FR - NL / EN from the Commission for Environmental Labelling and Advertising is administered and applied by JEP as a cross-sectoral code and supplements Chapter D Environmental Claims of the ICC Code (EN). Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (2021).
Legislation/ EC guidance: the use of environmental claims in advertising may be assessed against Book VI ELC EN; for a complete picture, refer to the December 2021 Guidance on the interpretation and application of Directive 2005/29/EC, section 4.1. Sustainability. Helpful in this context and specific to Belgium is Greenwashing in advertising: status quo and expected developments from Liedekirke/ Lex February 16, 2023. This points to, inter alia, Environmental claims guidelines (FR 2022; unofficial translation of key section 5 here) from the government department FPS Economy (EN). According to the earlier linked article, their 'actual impact has yet to be demonstrated' and 'in practice, the fight against greenwashing in Belgium is mainly conducted before Jep.'
The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. An industry-wide coalition involving CC-JEP members announced in September 2022 the CommToZero (EN) platform, 'aiming to cut the sector's carbon emissions and greenwashing and to promote a better and more sustainable consumer behaviour'. Part of this initiative is a Belgian version (EN) of the WFA Global Guidance. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including Belgium.
Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising with legal advisors
Rules on Price Reduction Announcements in Practice: Necessary or Absurd?
Van Bael & Bellis September 2, 2024
Legislation is from two sources: The Royal Decree of 30 June 1996 (as amended) on the Price Indication of Products & Services FR-NL, implementing the Product Price Directive (PPD) 98/6/EC, and Book VI ELC, which delivers UCPD 2005/29/EC. The first Directive is referenced in the CJEU Citroën/ZLW case here, which ruled that prices must be ‘final’, and include the ‘unavoidable and foreseeable components of the price.’ Similarly, article 99 of Book VI ELC requires that an ‘Invitation to purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase should state ‘the price inclusive of taxes’ and any additional/ potential charges. Article 100 carries requirements for ‘promotional’ pricing. Guidance is from Commission Notice on the application of Article 6a of Directive 98/6/EC, which relates to the amends made to the PPD in the form of new promotional pricing rules, extracted from the amending Directive 2019/2161 here and transposed by the Law of 8th May 2022 (FR) amending Books I, 6 and 15 of the ELC - article 10 delivers the requirements on price reduction announcements and 'faithfully reflects' the directive.
Self-regulation: General Provisions of the ICC Code (EN 2024) include some requirements relating to price: article 5, which refers to the requirement for a ‘total’ price, and there's a full chapter (A) on sales promotions. More information from legislation and self-regulation is under 3.2 Pricing in the following content section B.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
Meta must limit data for personalised ads
BBC October 4, 2024
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
Google overturns 1.5 bil fine in EU ad case
AP News Sept 18, 2024. Stibbe here (EN) Oct 2
EASA Newsletter September 27, 2024
Google built an illegal monopoly. What happens next?
UK Guardian August 6th, 2024
AI
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
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
Standards for Claims of “Carbon Neutral” and “Climate Friendly”
Formosan Brothers October 4, 2024
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
The Green Claims Directive on its way to adoption
Freshfields Bruckhaus Deringer June 18, 2024
Directive Empowering Consumers for Green Transition in force
Taylor Wessing Mar 21, 2024 and Womble Bond Apr 11, 2024
CSDDD FAQs Proskauer October 4, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A) Sponsorship (B) Direct Marketing & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
Key rules are set out in the following content section B and channel section C, as applicable
Legal commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and self-regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or channel | Key European legislation and clauses |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
|
Electronic coms. Consent and Information |
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
1. SELF-REGULATION
1.1. JEP General Code (2024 ICC Code)
1.2. JEP Rules/ recommendations
1.2.2. The use of humour in advertising
2.1. Misleading Commercial Practices
2.2. Unfair B2B Commercial Practices
2.3. Content of audiovisual commercial communications
3. SPECIFIC CLAIM AREAS
1.1. The JEP General Advertising Code, which is a direct transposition of the ICC Advertising and Marketing Communications Code (EN 2024) will apply; extracts below; 2024 amends shown in italics
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
1.2.1. Rules on the depiction of people EN; NL-FR
1. Every advertisement should be prepared with a due sense of social responsibility and cannot be such as to impair public confidence in advertising (Art. 1 ICC Code)
2. Advertisements should not contain statements or visual presentations which offend prevailing standards of decency (Art. 2 ICC Code)
3. Advertisements should not condone any form of discrimination, including that based upon race, national origin, religion, sex or age, nor should they in any way undermine human dignity (Art. 4.1 ICC Code). Thus, the following should be avoided:
4. Advertisers must be aware at all times to changing moral values and avoid contributing to the perpetuation (protraction/ continuance) of social prejudices or stereotypical images that run contrary to changing conditions in society (societal development) or ideas accepted by large segments of the population
5. Advertisements should not appear to condone or incite violence, nor to encourage unlawful or reprehensible behaviour (Art. 4.3 ICC Code)
1.2.2. Rules on humour in advertising (1992) EN; NL-FR
While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation. In December 2021, the European Commission issued Guidance on the interpretation and application of Directive 2005/29/EC
2.1. Core rules
2.2. Comparative advertising
Article 17 (Chapter V) of Book VI. Comparative advertising
1. Comparative advertising shall be permitted when the following conditions regarding the comparison are met:
2. All comparative advertising which does not respect the conditions laid down in § 1 shall be prohibited
Unfair B2B commercial practices; see Chapter 2, Book VI Arts. 105-109
Belgium has extended the scope of its legislation to B2B transactions only for certain banned practices from Annex 1 of UCPD
http://www.g-regs.com/downloads/BEGenB2BUnfPractices.pdf
Art. 2.3-1
Programmes and commercial communications may not be transmitted that:
Art. 2.3-2
Art. 2.4-1
Programmes and commercial communications may not be transmitted that:
Title I general provisions includes definitions not shown here
Title II. Commercial communications in linear and non-linear services
Art. 5.2-3. Commercial communication must not cause physical, mental or moral detriment to minors and in particular in this context must meet the following criteria for their protection:
Art. 5.2-4
Self-regulation
We set out below only the clauses from the most significant of several national self-regulatory influences, the Code of Environmental Advertising (CEA), which closely reflects the ICC Code’s Chapter D:
Legislation/ EU/ ISO
The AVMS Directive 2010/13/EU carries an environmental claim provision under Article9/ iv: audiovisual commercial communications shall not: encourage behaviour grossly prejudicial to the protection of the environment. This provision is transposed in the February 2021 Decree on audiovisual media services and video sharing services under article 5.2.-2 in Book V, Title II, losing the word ‘grossly’ along the way
3.1.3. EU guidance
Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors
3.2.1. Channel-specific
a) TV/ Radio
b) Online/ e-commerce
3.2.2. Self-regulation; General Provisions of the ICC Code
Legislation/ case law
3.2.3. Key points
3.2.5. Misleading omission/ Invitation to Purchase
In the case of an invitation to purchase, Definition commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. I.8 (23) Book I CEL) it will be regarded as a misleading omission if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits:
Adjudications from JEP are here. There's a search facility on these pages
A high profile decision on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
.........................................................
Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
Note: we no longer check and translate the individual community decrees/ rules/ decisions
Per above, there are four authorities in Belgium:
Their rules are from:
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
The content rules set out in our earlier section B are applicable to all of the channels in this section, except those rules that are specific to broadcast and to online
CINEMA
OUTDOOR
The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
...........................................
Article B12 ICC Code Media sponsorship
European/ international issues
Commission's call for evidence on DSA minors protection guidelines; closes 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
CONTEXT
This section provides the regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment. The definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’.
SELF-REGULATION
Communication Centre Recommendation for Influencers (EN)
The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them
The Flemish Media Regulator published in December 2021 the Content Creator Protocol (NL) which sets out new rules for vloggers/ influencers. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media
LEGISLATION
Q&A: online advertising in Belgium. Agio Legal/Lex. September 29, 2023 provides a solid overview if you haven't had enough already
Information requirements from legislation
Article 12 Book XII and Q.16 Spamming Q&A
These requirements apply to all commercial communications that are part of or that constitute information society services
Article 6 Book XII
Note: this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’
Privacy issues should be reviewed with specialist advisors
Commission's call for evidence on DSA minors protection guidelines; closes 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
A new path for Privacy Sandbox on the web July 22, 2024
Privacy Sandbox news and updates
IAB Europe CJEU decision. Baker McKenzie April 10, 2024
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Bird&Bird's Global Cookie Review of Winter 2022 includes a clear and complete summary of rules from Belgium
Privacy issues should be reviewed with specialist advisors
Key provisions
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 September 8, 2023. Connected with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith August 2023
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
Effective 19 January 2022
Self-regulation of OBA/ IBA
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). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
Meta must limit data for personalised ads
BBC October 4, 2024
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
Applicable regulation and opinion
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
The content rules set out in our earlier section B apply, except those rules that are exclusive to broadcast channels, together with any sector-specific rules
Guidance and commentary
Self-regulation
KEY CLAUSES FROM LEGISLATION
Electronic mail is defined as ‘any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.’ (Art. 2.2 Book XII ELC)
B2C/ B2B: Opt-in system; unsolicited email commercial communications
Two exceptions to the opt-in principle (Art. 15 RD 2003)
The prior, free, specific and informed consent of the recipient is not required if the recipient is:
INFORMATION REQUIREMENTS
Article 12 Book XII ELC for commercial communications by email
Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
CONTEXT
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. The ICC Code definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA DMC Best Practice linked below.
APPLICABLE LEGISLATION AND GUIDANCE
(and some self-reg guidance)
GENERAL INFORMATION REQUIREMENTS
Article 6, Chapter 3: Information and transparency; Book XII CEL
Every service provider Definition Provider of an Information Society Service, in turn defined as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service must render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
INFORMATION IN ADVERTISING
(Art. 12, Book XII)
....................................................................
Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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
VIRAL
Defined by EASA in their DMC Best Practice as ‘Any advertising that propagates itself. In a digital media context it can be defined as a marketing technique that seeks to use pre-existing social networks to produce increases in brand awareness.’
CASE LAW AND UGC
INFLUENCER MARKETING
Communication Centre Recommendation for Influencers (EN)
The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
CONTEXT
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identification. If it’s advertising, defined in the ICC Code as ‘’any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’, then like any other advertising, it’s subject to the rules set out in our content section B, except those rules applying to broadcast
SELF-REGULATION
A1) Context and use of Identifiers
A2) Use of identifiers
« Annonce »
« Publicité »
« Publireportage »
« Advertorial »
« Promotion »
« Proposé par (…)»
« Réalisé en étroite collaboration avec (…) »
« Powered by (…) »
A3) Reference to native advertising
LEGISLATION
Book VI of the Code of Economic Law: 'Market Practices and Consumer Protection'; key extracts EN (Article 100 (11) and (22) Book VI CEL)
Book XII of the Code of Economic Law EN (Art. 12)
All media
The following misleading commercial practices shall in all circumstances be considered unfair (and thus prohibited under Art. 95) where they have as their object:
Using editorial content in the media to promote a product where a business has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (Art. 100(11) Book VI);
Falsely claiming or creating the impression that the business is not acting for purposes relating to its professional activity, or falsely representing itself as a consumer (Art. 100 (22) Book VI)
Online
Advertising which is part of or constitutes an information society service shall comply with the following conditions: immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation. If this is not the case, it shall contain the word: “advertising” (“reclame / publicité”) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
The word "advertising" is only required if the advertising nature is not immediately clear at the first receipt and at the first sight; the advertisement must therefore contain the word "advertisement" only if it cannot be distinguished as such from its reception. In principle, therefore, it is not mandatory systematically to include "advertising"
Assessment should be made on a case-by-case basis according to the circumstances of the case (the text indicates "given its overall effect and including its presentation"). For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain "advertisement"
On the other hand, the more the advertising banner adopts a similar design to the non-advertising site, the less likely it will be considered identifiable as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from purely informative messages, if the inclusion of ‘advertising’ is to be avoided (Q. 16; Point 1: FPS Economy Q&A)
The natural or legal person on whose behalf the advertising is made shall be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
................................................................
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Privacy issues should be reviewed with specialist advisors
APPLICABLE LEGISLATION AND SELF-REGULATION
1. Self-regulation
2. Legislation
1.1. KEY SELF-REGULATORY PROVISIONS
Chapter C Direct Marketing and Digital Marketing Communications ICC Code
Includes some 20 articles. For reasons of space, just a few below. Check the linked code
As defined in Article 24 (Code responsibility) of the General Provisions, whatever the nature of the activity, medium or technology, responsibility for data-driven, digital and direct marketing activities is shared by all the parties concerned, commensurate with their respective role in the process and within the limits of their respective functions. All parties concerned need to take into account that responsibility also applies to other participants in the data-driven marketing, digital marketing and direct marketing eco-system
including:
Article C2. Identification and transparency
Article C3. Presentation of the offer
Article C6. Respecting the wish not to receive communications
2.1. KEY PROVISIONS FROM LEGISLATION
2.1.1. Invitation to purchase
Article 99, Book VI Code of Economic Law (EN)
§ 4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
2.1.2. B2C: Opt-out
Key points of Robinson list
................................................................
Applicable self-regulation and legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
.................................................................
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
.................................................
......................................................................
The European Sponsorship Association (ESA) may also be able to help/ inform
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
Rules on Price Reduction Announcements in Practice: Necessary or Absurd?
Van Bael & Bellis September 2, 2024
CONTEXT
As this website was created to provide international rules on marketing communications, we do not claim authority on specific national Sales Promotions (SP) legislation, especially retail legislation. However, when we find relevant rules in the course of what is extensive research, we will include them in this section. We check, for example, the national Self-Regulatory Codes and Consumer Protection legislation for anything that impacts SP, and we include below the general (i.e. non sector-specific) rules from the International Chamber of Commerce (ICC) which provide at least a solid start for SP rules internationally. 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. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors
SELF-REGULATION
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
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.
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
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:
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
LEGISLATION
Commercial practices regarded as unfair in all circumstances
Misleading commercial practices
Aggressive commercial practices
Online advertising for promotional offers and promotional competitions
Prize draws
Promotions in which the winner is chosen on the basis on an element of chance (promotional games of chance)
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction
Copy advice is available in the early stages of advertising development, on the basis of a script and/ or storyboard, or for the finished advertisement. An online copy advice request form is available on JEP’s website.
Must be made direct to Broadcaster
TV and VOD
Allow 3-5 days
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
GDPR
Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. 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:
https://eur-lex.europa.eu/eli/reg/2016/679/oj
This is the FAQ from UBA, the advertiser organisation in Belgium:
https://www.ubabelgium.be/fr/news-insights/detail/2017/05/30/GDPR-Frequently-Asked-Questions
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Five more recent and significant documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', does not require very significant changes as far as most commercial communication is concerned, it does set out some important new information requirements under the UCPD, pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes significant information requirements relating to e.g. search rankings and consumer reviews, which do not directly impact this database. Helpful explanatory piece from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS and video-sharing platforms in particular. 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
Channel legislation
The Decree on audiovisual media services and video sharing services of 4 February 2021 transposes amends made to the AVMS Directive by Directive 2018/1808. The content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on Self-Regulatory systems; key changes to Content rules in the Directive are shown here - see article 4a and 9 for references to Self-Regulation in Food and in Alcohol. The 2021 Decree ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie). Commercial communication content rules are shown under Book II, Titles III and IV and Book V, Title II. Book V also carries the rules for Video-sharing platform services (VSPS) which include the requirement that commercial communications, where these are known to exist, must be identified by the user who uploads and by the service to the end user. FR:
Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. Links to the authorities and some of their regulations below
Flemish community
Authority Vlaamse Regulator voor de Media (VRM)
Decree of 27th March 2009 on radio and television broadcasting (Decreet betreffende radio-omroep en televisie); regulates commercial communications including advertising, teleshopping, sponsorship, and product placement in all Dutch-speaking radio and TV channels; applicable to those broadcasters established either in the Flemish speaking region or the bilingual Brussels-Capital region, where those activities are exclusively linked to the Flemish Community i.e. in Dutch. The Decree applies to commercial broadcasters and in part also to the Flemish public broadcaster VRT and to video-sharing platforms (article 176 +) following 2021 amends. Consolidated version updated to April 29, 2021 here (Dutch). Unofficial translation of the act from VRM updated 04.03.2021; does not include April 2021 amends transposing Directive 2018/1808:
The Flemish media regulator considers that the Decree amends above bring AV content from vloggers and influencers into scope; they published in December 2021 the Content Creator Protocol (NL) which sets out three themes: Commercial communication on social media, commercial communication and content aimed at minors and prohibition of violent and hate speech. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish AV media.
French community
Authority: Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles
Coordinated Decree on audiovisual media services. Version of 21 August 2018. Regulates commercial communications for all French-speaking radio and TV channels: TV/ Radio advertising, interactive, split screen and virtual advertising, sponsorship, teleshopping and self-promotion, and product placement. The provisions apply to commercial and public (RTBF) broadcasters, although the RTBF management contract supplements this Decree with more aggressive rules (see below). Consolidated text:
English translation of key provisions (previous decree of July 2016):
http://www.g-regs.com/downloads/BE_CSADecree_EN.pdf
CSA Recommendation on product placement (17/12/2009). Stipulates four explicit conditions on product placement and offers a mechanism for identifying programmes which contain product placement, i.e. PP logo and following phrase: “le programme qui suit contient des placements commerciaux de produits, marques ou services” FR
CSA Code of ethics on audiovisual advertising directed at children FR (Art.11/12)
Alcohol advertising in the French community (2007) FR
Public Service Broadcaster: Radio Télévision Belge Francophone (RTBF)
RTBF management contract 2019-2022. The management contract with the Government of the Federation Wallonia-Brussels (French speaking Community) includes a chapter (IV) with measures on commercial communication, such as conditions for product placement, the prohibition of advertising and sponsorship of children's programmes on TV, Radio and VOD. This latest contract includes a requirement under article 73 that commercial communications for ‘drinks with added sugar, salt, or artificial sweeteners or processed food (boissons avec ajouts de sucres, de sel, ou d’édulcorants de synthèse ou de produits alimentaires manufacturés) must carry sequentially and equally ‘health messages’ as follows:
Pour votre santé, mangez au moins cinq fruits et légumes par jour
Pour votre santé, pratiquez une activité physique régulière
Pour votre santé, évitez de manger trop gras, trop sucré, trop salé
Pour votre santé, évitez de grignoter entre le repas
Consolidated version:
https://www.csa.be/wp-content/uploads/documents-csa/contrat_de_gestion_RTBF.pdf
German community
Authority: http://www.medienrat.be/
The Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021). Transposes the amends from the AVMS Directive 2018/1808. Article 32 under Chapter 4 for new rules for video-sharing platforms, article 12 for the ‘standard’ rules re identification, the environment etc., article 17 for the protection of minors and articles 19 and 20 for product placement and sponsorship.
http://medienrat.be/files/Mediendekret 2021-BS-120421.pdf (DE)
Bilingual Brussels-Capital region
Authority:
Belgian Institute for Postal Services and Telecommunications BIPT. In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities (the Flemish Community and the French Community): in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services in the territory of the bilingual Brussels-Capital Region.
Federal Broadcasting Act: Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region. Regulates broadcasting activities in the bilingual Brussels region that cannot be linked exclusively to the French Community or the Flemish Community. At Federal level, BIPT (Belgian Institute for Postal Services and Telecommunications) is the national regulatory authority. Relevant Section Chapter 2 Section 1: Arts. 14-16 provisions applicable to all AVMS providers; Section 2: Arts. 22-25 specific provisions for TV broadcasters. This is the latest region-specific act as far as we are aware; it is our understanding that the applicable rules will now be from the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR) referenced above
FR: http://www.ejustice.just.fgov.be/eli/loi/2017/05/05/2017040323/justel
NL: http://www.ejustice.just.fgov.be/eli/wet/2017/05/05/2017040323/justel
English translation of relevant provisions:
http://www.g-regs.com/downloads/BE_BrusselsCapital_AVMS_EN.pdf
Privacy and electronic communications: cookies
Law of 13 June 2005 on Electronic Communications, as amended by Law of 10th July 2012 (Wet betreffende de elektronische communicatie/ loi relative au communications électronique). Entry into force 30/06/2005. This Act implemented the EU 'Telecoms Package', the regulatory framework for electronic communications consisting of five Directives; see here. The law imposes privacy and data protection obligations in electronic communications; in particular article 129 regulates the use of cookies, implementing article 5 (3) of the E-Privacy Directive 2002/58/EC as amended by Directive 2009/136/EC, the ‘Cookie Directive’. Cookies can only be stored or accessed on individuals’ computers provided that the individuals have consented after having been informed about the purposes of the data processing and their respective rights. Consent is not required for cookies that are used for the sole purpose of transmitting a communication over a network, or strictly necessary for the provision of a service requested by the user; the GDPR may (also) apply in the context of processing personal data. Consolidated act:
FR: http://www.ejustice.just.fgov.be/eli/loi/2005/06/13/2005011238/justel
NL: http://www.ejustice.just.fgov.be/eli/wet/2005/06/13/2005011238/justel
Data Protection
Law of 8 December 1992 on the protection of privacy in relation to the processing of personal data. Known as the Data Protection Act (DPA) or ‘Privacy Act’, implemented the Data Protection Directive 95/46/EC (now repealed) following an amendment via the Act of 11 December 1998. The Act will apply to most marketing activities (including electronic) where there is likely to be processing and use of personal data. Whilst the Act does not prohibit the use of personal data for the purposes of direct marketing, it provides individuals with the right to object to the processing of their personal data for direct marketing purposes (Arts 9 (c) and 12(1) DPA). Consolidated Law:
FR:
http://www.ejustice.just.fgov.be/eli/loi/1992/12/08/1993009167/justel
NL:
http://www.ejustice.just.fgov.be/eli/wet/1992/12/08/1993009167/justel
Unofficial translation as of July 2013:
http://www.gregsregs.com/downloads/BE_PrivacyAct_08.12.1992_EN.pdf
Summary:
http://www.gregsregs.com/downloads/BE_DataProcessingSummary.pdf
REPEALED JULY 2018
The arrival of GDPR
The Law of 3rd Dec 2017 replaced/ renamed the Privacy Commission with the Data Protection Authority (DPA); which will have the necessary powers to enforce the GDPR and be able to impose a wide range of sanctions (Article 100, Law of 03/12/2017)
The Law of 30 July 2018 on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data:
www.ejustice.just.fgov.be/eli/loi/2018/07/30/2018040581/justel
Authority and guidance
The Data Protection Authority. Autorité de protection des données, Gegevensbeschermingsautoriteit. Established by the Law of 3rd December 2017
https://www.dataprotectionauthority.be/professional
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq.'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR. News story here.
Electronic communications: e-Commerce and opt-in
Book XII of Code of Economic Law: 'Law of the electronic economy'. Entry into force 31/05/2014. (Boek XII: Recht van de elektronische economie / Livre XII: Droit de l'économie électronique). Book XII codifies and in doing so repeals the Law of 11 March 2003 on certain legal aspects of the information society, which implemented the E-Commerce Directive 2000/31/EC, and also part-implemented the E-Privacy Directive 2002/58/EC (Art. 13 (1) and (4) of Book XII). Book XII requires ‘easy, permanent and direct’ access to some service provider information, and specifies identifiability of Information Society Service advertising and e.g. conditions for promotional offers. It also establishes an opt-in regime where unsolicited emails may be sent only with prior, free, specific and informed consent of the recipient (Art. 13, Book XII). The exception to this prohibition (soft opt-in) is set out in Royal Decree of 4th April 2003; see below. Relevant section Chapter 4 Advertising; articles 12-15. The provisions apply to both natural and legal persons i.e. B2C and B2B. Book XII:
http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0410 (FR)
http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel#LNK0409 (NL)
http://www.g-regs.com/downloads/BEEconomicCodeBookXII_WRedit.pdf (EN)
Electronic communications: soft opt-in
Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications. Entry into force 28/05/2003. (Koninklijk besluit tot reglementering van het verzenden van reclame per elektronische post/ Arrêté royal visant à réglementer l'envoi de publicités par courrier électronique). The decree complements the provisions on e-mail advertising in Chapter 4 (Articles 13 and 14) of Book VI Economic Law Code, implementing Article 13 (2) from the E-Privacy Directive. The decree establishes two exceptions to the opt-in principle established in Article 13 (1) of Book VI Economic Law Code. Prior consent is not required from existing customers where certain conditions are met nor from legal persons (businesses) where the electronic contact details are of an impersonal nature (e.g. info@...). The Decree also clarifies the way in which marketers must respect the right of the recipient to opt out, requiring them to maintain and update opt-out lists/ registers. A legal commentary on Articles 1 and 2 of the Decree is also provided. Translation of articles 1 and 2, in addition to legal commentary is here:
http://www.g-regs.com/downloads/BE_RD_4thApril2003_emailadvertising_commentary.pdf
Royal Decree:
FR: http://www.ejustice.just.fgov.be/eli/arrete/2003/04/04/2003011238/justel
NL: http://www.ejustice.just.fgov.be/eli/besluit/2003/04/04/2003011238/justel
Guidance relevant to privacy/ direct marketing
Federal Public Service: Economy, SMEs, Self-employed and Energy (abbrev. FPS Economy – as above). Monitors goods and services market in Belgium; responsible for contributing to the development, competitiveness and sustainability of the goods and services market, ensuring the position of the Belgian economy at the international level, promoting trade by fair economic relations in a competitive market, collecting, processing and disseminating economic information. It is the supervisory authority for the Code on Economic Law.
FPS Economy brochure
Spamming FAQ. Q&A brochure presenting the rules applicable to unsolicited commercial communications by e-mail:
https://economie.fgov.be/fr/themes/line/commerce-electronique/spam/questions-frequemment-posees
Consumer protection: unfair commercial practices
Book VI of the Economic Law Code: 'Market Practices and Consumer Protection' (Boek VI: Marktpraktijken en consumentenbescherming/ Livre VI: Pratiques du marché et protection du consommateur) Entry into force 31/05/2014. Implements amongst others Directive 2006/114/EC on misleading and comparative advertising, the Unfair Commercial Practices Directive 2005/29/EC (UCPD) and E-Privacy Directive 2002/58/EC. In the context of UCPD, Articles 104-109 regulate some practices between businesses and Articles 92-103 regulate unfair consumer commercial practices including those that are regarded as misleading or aggressive in all circumstances, aka the Blacklist. Article 13 of the E-Privacy Directive is part-transposed in Chapter 3 (Arts. 110-115) of Book VI, which regulates the sending of unsolicited commercial communications, excluding those via e-mail which are provided for in Book XII and the Royal Decree 4th April 2003. Applies to B2C and B2B. Book VI was amended by the Law of 8th May 2022 (FR) which introduced provisions from Directive 2019/2161 related principally (for our purposes) to promotional pricing, international marketing and e-commerce; explanatory piece here in English from CMS Law. Consolidated text of the ELC:
FR: http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0092
Extracts in English (does not include 2022 amends):
http://www.g-regs.com/downloads/BEEconomicCodeBookVIwithArt17_WRedit.pdf
ICC
ICC Advertising and Marketing Communications Code 2024:
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf
Chapter A. Sales Promotion
Chapter B . Sponsorship
Chapter C. Direct Marketing and Digital Marketing Communications
Chapter D. Environmental Claims in Marketing Communications
Additional ICC guidance and frameworks
(non-exhaustive)
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC rules themselves under chapter C - provisions for Interest-based advertising - we have extracted here.
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
ICC Guide for Responsible Mobile Marketing Communications
Other codes administered by JEP
The Code of Environmental Advertising 1998. Articles 1 to 14 (Code de la publicité écologique / Milieureclamecode). This code is from the Commission for Environmental Labelling and Advertising, which sat within the Consumer Affairs Council, the main advisory body on the issues of consumption and consumer protection. The Consumer Affairs Council delivers its advice to the Ministry of Consumer Protection and the Economy Ministry, and has legislative and executive powers on consumer issues. The code replaced an Environmental Code produced by JEP, the SRO for Belgium and is based on the ICC code applicable at the time. It now supplements the more recent Chapter E Environmental claims, of the ICC Code. The Code is administered by JEP.
People and humour
JEP (Jury voor Ethische Praktijken inzake reclame (JEP)/ Jury d’Ethique Publicitaire). Jury of Advertising Standards – also translated as Jury for Ethical Practices in Advertising or Advertising Ethics Jury - JEP is the Self-Regulatory Organisation (SRO) for the advertising sector in Belgium and was created in 1974 by the Belgian Advertising Council (Raad voor de Reclame / Conseil de la Publicité, as of June 2020 Centre de la Communication). JEP’s mission is “to ensure fair, truthful, and socially responsible advertising.” The Jury composition is equally split between the advertising sector and civil society. JEP handles complaints from consumers, consumer organisations, public authorities and professional associations; competitor complaints are not within their remit, which is is determined by the Jury Regulations, and not by the legal and SR definitions of concepts such as ‘advertising’, ‘marcom’, ‘commercial communication’, etc. JEP’s areas of competence are translated here, see relevant case here.
Native
Influencer marketing
Published May 2022 by the Communication Centre, sets out the rules/ guidance on the issue of Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required:
https://www.jep.be/wp-content/uploads/2022/04/influencers_FR.pdf (FR)
https://www.jep.be/wp-content/uploads/2022/04/influencers_NL.pdf (NL)
http://www.g-regs.com/downloads/BEGenInfluencersMay2022EN.pdf (EN)
UBA
The United Brands Association, formerly the Union Belge des Annonceurs, the Association of Belgian Advertisers. The UBA Unstereotype Communication Charter has some influence:
www.mediaspecs.be/wp-content/uploads/2019/01/UBA-Charter-Unstereotype-Communication-FR-.pdf (FR)
www.g-regs.com/downloads/BEGenUBAStereotypeCharter.pdf (EN key clauses)
EASA
European Advertising Standards Alliance. ‘EASA has a network of 41 organisations representing 27 advertising standards bodies (aka Self-Regulatory Organisations) from Europe, and 14 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising Self-Regulatory systems, as set out in the Best Practice Model and EASA's Charter.’
Membership
http://www.easa-alliance.org/members
Best Practice Recommendations
Digital Marketing Communications (2023)
Online Behavioural Advertising (2021)
Influencer Marketing (2023)
BAM
The Belgian Association of Marketing; from their website: 'the largest marketing trade association in Belgium. BAM is an open community that brings the members, initiatives and expertise of STIMA, BDMA and IAB Belgium together into one place to provide a unique knowledge exchange platform.'
IAB Europe
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq.'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR. News story here.
WFA
World Federation of Advertisers (WFA) Guide for Marketers: Five things every brand owner should know about the General Data Protection Regulation:
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
ESA
European Sponsorship Association: from their website: ‘ESA’s mission is to inspire, unite and grow the sponsorship industry for the benefit of its members. ESA does this through education, guidance, representation, the recognition of excellence and the sharing of best practice and performance.’
ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include:
This Code revision has been informed by the latest industry rules and legal developments around the world, such as in the area of consumer protection, privacy and fair competition. The Code is designed to establish a sound ethical framework to govern marketing practices worldwide based on twin goals of fostering consumer fairness and trust, and the freedom of commercial communications.' The Code is organised into General Provisions and individual chapters Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E). Translation of the code is under way as at September 2024. Earlier translations of the former (2018) code can be found here.
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)
Additional guides and frameworks (all EN)
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC Guidance on Native Advertising
ICC toolkits
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2021): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing 2023. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR networks and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Channel Regulations and Directives
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
More recent documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Privacy/ cookies
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘e-Privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions were supposed to be transposed by November 2021 and in force in member states by May 2022; some delays but all in place end 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925