PRODUCT PLACEMENT 
(Art. 48 of the LD)

• Permitted in cinematographic works (feature films released initially in the cinema), films and series made for TV, sports, and light entertainment programmes
• Prohibited in children’s programmes
• Placement may occur in return for payment or take place free of charge in exchange for certain goods and services, such as production props and prizes, with a view to their inclusion in a programme. 
• Programmes that contain product placement must not:

• Influence editorial independence of the programme
• Directly encourage purchase or rental of goods or services
• Give undue prominence to the product
• Viewers must be informed of the existence of Product Placement via an alert/ warning at the start and end of the programme, and when resuming after an advertising break

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:

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

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

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

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

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

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

Article 4a is found here 

2.1 Key clauses legislation and authority guidance

   Invitation to purchase and advertising identification

• If the communication constitutes an ‘Invitation to Purchase' Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase certain information must be provided, especially that related to price. Article 22 of the Consumer Code LD 206/2005 applies. This is a transposition of UCPD 2005/29/EC article 7 here
• 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 (Art. 22.3 LD 206/2005)

Article 23 Consumer Code; Commercial practices which in all circumstances are misleading

• m)...........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)
• aa) Falsely claiming or creating the false impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely passing oneself off as a consumer

Information requirements; from e-Commerce law LD 70/2003 (EN), Article 8

1. In addition to the information obligations stipulated for specific goods and services, marketing communications that constitute an information society service (Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services) or form an integral part thereof must contain specific information, from first dispatch, clearly and unequivocally, aimed at indicating:

1. That this is a marketing communication
2. The individual or corporation on behalf of which the marketing communication is effected
3. That this is a promotional offer with discounts, prizes or gifts and the relative conditions of access and
4. That this concerns promotional contests or games, if permitted, and their terms of participation

Additionally, the service provider must make company information 'easily, directly and permanently accessible to the recipients of the service and competent authorities.' See Art. 7 LD 70/2003 for required information

• Commercial communication content rules as established in the AVMS Directive amended by Directive 2018/1808 are not significantly changed - the Directive's content rule changes are here - but they now apply to VSPS, which platforms must also provide a facility for those posting to declare where their video includes commercial communication, where known; the platform is required to advise users accordingly
• The rules referenced above are found in Chapter III, article 43 of the legislative decree linked in the header above. This text is currently available only in Italian, albeit apparently unchanged from its previous home the Italian AVMS Code, and faithful to the Directives
• Per above ERGA guidance, vloggers/ influencers may constitute an 'audiovisual media service.'

Influencer Marketing: review by competition authority

The Italian Competition Authority AGCM on Influencer Marketing practices; press release July 2017 here (IT) includes a number of proposed identifiers 

The authority remains active on the issue of influencer marketing and has opened proceedings November 2023 against Meta/ Instagram (IT)

Following brands in social media 

Garante guidelines on promotional activity/ marketing and the fight against spam, July 4 2013 Doc. No. 2542348 IT, GRS trans EN; Garante trans EN Doc. No. 4304228. Clause 6.1 ‘Social spam' 

Note: the Consent rules referenced in this documentation and below may now be impacted by lawful processing rules from the GDPR. Garante have not, however, withdrawn documentation from their website, or adapted it accordingly. As this (communication by brands in social media) is highly sensitive territory, it’s best to review the position with specialist advisors

• Privacy regulations will apply to communications sent through social media, for instance through private messages on Facebook or through Skype, WhatsApp or Messenger
• However, DPA Decision No. 2542348 on Direct Marketing and Prevention of Spam states that if a person is a fan or a follower of a brand name, product or service on a social network such as a Facebook page or a Twitter account, it may be implied that the person consented to the delivery of marketing communications concerning that brand, product or company. The consent can be inferred from the context of the subscription. Such marcoms must cease when the person unregisters/ unsubscribes from the page or unfollows the account/ page
• In any other case, the use of personal data taken from users’ profiles on social networks in order to send promotional messages constitutes unlawful processing of personal data, if carried out without the prior consent of the persons concerned

​

Directive 2002/58/EC; Article 13

Unsolicited communications

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

* Now repealed; GDPR applies 

General information to be provided

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

Article 6

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

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

Article 7

Unsolicited commercial communication

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

• 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

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

EASA Digital Marketing Communications Best Practice Recommendation. This document:

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

Self-regulation

• OBA, as with any other advertising, is ‘in remit’, i.e. subject to the IAP Code, and all the rules set out in content section B with the exception of the broadcast rules
• From the Digital Marcoms section of the IAP Digital Chart (EN): “On the basis of another key EASA document, the ‘Best Practice Recommendation on Online Behavioural Advertising’, and the ‘IAB Europe EU Framework for Online Behavioural Advertising’, since November 2015 the IAP has also intervened/ taken action against so-called online behavioural advertising (or OBA for short). The link is to the IAP’s description (in Italian) of its role on OBA

First 2 paras of this link:

• The IAP can intervene to protect consumers/ public, as well as to ensure compliance with the IAP Code, and even applied against so-called OBA, in compliance with the self-regulatory principles and rules by operators who adhere to the IAB Europe EU Framework
• Many web operators have in fact committed themselves to the IAB Europe Framework to identify the OBA through a special icon, placed within the ad, which refers to precise information and allows users to disable the receipt of OBA ads
• The above refers to the European Self-Regulatory programme for OBA, administered by 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 to http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling. OBA segments may not be created for children (under 13)

ICC

• OBA rules are under Chapter C, Article 22 of the ICC Advertising and Marketing Communications Code. We have extracted the rules here
• The ICC's Resource Guide For Self-Regulation of Online Behavioural Advertising (OBA); as a Resource Guide, it doesn't tell you the rules per se, but provides an explanation of the global framework available for OBA self-regulation, a checklist from existing OBA self-regulatory implementations, and links to further resources
• And finally, here is the ICC's Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising 

GDPR

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

Meta must limit data for personalised ads

BBC October 4, 2024. Hunton Oct 15

EDAA launches new solution to DSA ad transparency requirements

EDPB ban on Meta processing personal data for behavioural advertising

DAC Beachcroft/ Lex December 6, 2023. EDPB here

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

Applicable regulation and opinion

• ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
• Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
• Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act
• Provisions for Interest-based Advertising (IBA/OBA). These can be found under the 2024 ICC Advertising and Marketing Communications Code Chapter C, article C17 
• OBA, like any other advertising, is subject to content rules. In this context, the principle source of international rules is the ICC Code linked above 

Article 29 Working Party* documents

• Opinion 2/2010 on online behavioural advertising here
• Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here 
• Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679

*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

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

GUIDELINES 

Garante document Guidelines on Marketing and against Spam - 4 July 2013 [4304228]

From the Garante summary document ‘NO to Spam, YES to Consumer-Friendly Marketing’

PROMOTIONAL OFFERS AND SPAM 

• Promotional offers require prior consent. To send promotional messages and advertising via automated systems (pre-recorded calls, emails, faxes, SMS or MMS) the recipients´ prior consent must be obtained (opt-in requirement). This consent must be specific, free, informed and recorded in writing
• Tighter controls must be in place on marketing companies. Clients commissioning marketing campaigns must be vigilant as appropriate to prevent spamming from contractors, sub-contractors or other entities they have entrusted with contacting prospective customers
• Consent is necessary to use data on the Internet or social networks. The recipients´ specific consent is required before sending promotional messages to users of Facebook, Twitter and other SNS e.g. by posting such messages on the users´ virtual billboards – or to users of other messaging and VoIP services that are increasingly widespread such as Skype, WhatsApp, Viber, Messenger, etc. The fact that a data happens to be available on the Net does not mean that it may be used freely to send automated promotional messages or for any other 'viral' or 'targeted" marketing purposes
• 'Grapevine' marketing does not require consent. Consent is unnecessary for emailing or texting promotional offers to friends in a personal capacity (i.e. for the so-called 'grapevine' marketing)

SIMPLIFIED RULES FOR COMPLIANT COMPANIES 

• Promotional emails to own customers. It is OK to email promotional messages to one´s own customers regarding goods or services that are similar to those they have already purchased (this is the so-called "soft spam")
• Brand/ company "Fan" promotions. Companies and firms may send promotional messages to their 'followers' on SNS if these followers have clearly stated when signing in to the company´s page that they are interested in or give their consent to receiving such promotional messages on  a given brand, product or service
• Obtaining consent once for multiple activities. It is enough to obtain consent once for all marketing activities, such as sending ads or performing market surveys. The consent provided to receive automated promotional messages (emails, SMS-texting) also applies to such messages when sent via paper mail or through operator-assisted phone calls. Where a company plans to collect users´ personal data to then disclose or transfer such data to other companies for promotional purposes, it may obtain the users´ consent once and such consent will apply to all the third parties that are referred to in the specific information notices to be provided to users'

AGGRESSIVE COMMERCIAL PRACTICE 

• 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, without prejudice to Art. 130 of Legislative Decree No. 196 of 30 June (Art. 26 (1c) Consumer Code EN)​

​

Directive 2002/58/EC; Article 13

Unsolicited communications

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

* Repealed; GDPR applies 

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

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

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

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

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

7. 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)
8. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

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

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

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

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

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

LEGISLATION AND GUIDELINES 

• Mandatory information that Information Society Service Providers (ISSPs)Definition Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services must ensure is easily, directly and permanently accessible by recipients Art. 7 LD 70/2003 (EN)
• Provisions related to Unsolicited Communications and consent requirements from section 130 of the Data Protection Code (EN) will apply
• Consumer Code (CC) LD 206/2005 (EN) applies to business-to-consumer commercial practices, as defined under article 18. The decree carries the rules from the UCPD 2005/29/EC and covers content-related issues such as misleading acts and omissions, including e.g. 'invitation to purchase' (art. 22). Sanctions and distance selling rules, the latter particularly applicable to this channel, have been extracted and are shown here (EN)
• The Consumer Code linked above in English carries the clauses related to search rankings, consumer reviews, and consistency of international campaigns, requirements established by Directive 2019/2161 and transposed (a little late) by LD No. 26 of March 7, 2023 (IT)
• LD 208/2121 (IT) carries the rules from the AVMS Directive and its amending Directive 2018/1808; scope is extended into video-sharing platforms in particular. Whether the rules apply in this (Marketers own website) context will depend on whether the site constitutes or includes an audiovisual media service. Vlogging/ influencer activity may anyway be in scope. See ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers 
• The definitive guidance on Consent under GDPR is this WP29 Explanation Article 29 Working Party is or was the board of Data Protection Authorities around the EU; now replaced by the European Data Protection Board (EDPB) document: Guidelines on consent under Regulation 2016/679
• EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)
• In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA. The 'Digital Sector' is under 4.2 and includes e.g. Influencer marketing, user reviews etc.

VIRAL

Clause 6.2 Garante Guidelines on Marketing and against Spam, July 4 2013 EN:

• "Viral" marketing is a marketing mechanism exploiting the communication potential of a bunch of direct recipients to convey a message to a substantial number of end-users. It evolved from the "grapevine" approach, from which it differs because the marketers´ intention to initiate a promotional campaign is unquestionable from the start. Like a virus, the message containing the concept, product or service that may prove interesting to a user is conveyed by that user to other contacts, who in turn pass it on to yet other contacts, and so on
• "Viral marketing" is usually referred to Internet users that suggest or recommend certain products or services to other users. Of late, this marketing technique is being used increasingly for products that are not directly related to the Internet; however, the channel used for conveying messages remains the web community where communication is fast, free and friendly
• To facilitate dissemination, marketers offer incentives, bonuses or other benefits to the recipients, who accept in exchange to forward (sometimes to email or text) the marketing message to other recipients
• Where the above activity is performed via automated tools for marketing purposes, it may be a type of spam if the principles and rules set out above fail to be complied with as part of the legislation in force – with particular regard to Sections 3, 11, 13, 23 and 130 of the Code
• At all events (Note: In any event?), the Code does not apply if a user, having received a marketing message, forwards such message on a purely personal basis - to recommend a given product or service to own friends - via automated tools. Conversely, the Code does apply to the processing of data performed by a user that forwards or discloses such a marketing message to multiple recipients after obtaining their personal data (phone numbers, email accounts) from either public directories or the Web

SOCIAL MEDIA 

Garante Guidelines on Marketing and against Spam, July 4 2013 Doc. No. 2542348 IT; Garante trans EN Doc. No. 4304228. Clause 6.1: Social Spam' 

EDPB guidelines 8/2020 on the targeting of social media users here; adopted April 2021 (EN)

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

Unsolicited communications

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

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

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

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

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

EU Guidance/ opinion documents

• Opinion 15/2011 on the definition of consent here 
• GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
• Guidelines 8/2020 on the targeting of social media users adopted April 2021

• Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
• Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
• Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
• Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

1. FACEBOOK

• https://www.facebook.com/policies/ads (also includes references to Instagram)
• branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content

2. INSTAGRAM 

• https://help.instagram.com/116947042301556/?helpref=hc_fnav&bc[0]=368390626577968&bc[1]=835763516568404
• https://www.facebook.com/policies/brandedcontent/

3. TWITTER:

• https://business.twitter.com/en/help/ads-policies/introduction-to-twitter-ads/twitter-ads-policies.html
• https://business.twitter.com/en/help/troubleshooting/how-twitter-ads-work.html
• Promotions/ contests on Twitter:
  https://help.twitter.com/en/rules-and-policies/twitter-contest-rules

4. YOUTUBE: advertiser friendly content guidelines here:

• Ad Policy Overview
• Adult content in ads
• Advertisers' Live Streaming Programmes

• Paid product placements and endorsements
• Advertising on YouTube Kids
• Age targetting and ads 
• Youtube’s contest policies and guidelines
• Homepage advertiser Guidelines
• Tell a friend
• Unbranded ads or Brand Channels

5. SNAPCHAT:

• https://www.snap.com/en-GB/ad-policies/
• Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules

6. GOOGLE +

• Promotions/ Contests:
  https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html
•  For advertising on the Google network:
  https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336  /
  https://support.google.com/adwords/answer/6316?hl=en-GB​

7. TIK TOK

• Advertising guidelines

6) In-feed units

• In-feed units that have the nature of a marketing communication must make this evident through the insertion of labels in such a position and form as is suited to ensuring they are clearly visible. Here are some examples:

“Pubblicità/Advertising”, “Promosso da … brand/Promoted by … brand”

“Sponsorizzato da … brand/Sponsored by … brand”

“Contenuto Sponsorizzato/Sponsored content”

 “Post Sponsorizzato/Sponsored post”

“Presentato da … brand/Presented by … brand”

• Including in combination with specific graphic effects, such as for example the insertion of frames and/or drop-shadows and/or highlighting of the text or shading

7) Paid search units

• Paid search units must clearly show their marketing nature through a graphic separation of content from so-called organic search-related content, along with a descriptor that explicitly informs users that the content is of a promotional nature (such as, for example, “Pubblicità/Advertising”), placed close to the sponsored search result, and in such a manner as to be visible and evident

8) Recommendation widgets

• Promotional content disseminated as recommendation widgets must make its nature as marketing communication evident through the adoption of one of the following methods:

• An indication that the box contains sponsored content
• An indication alongside individual items of content featuring the name or the logo of the advertiser and an indication of the content being sponsored

• If the content is developed by a “technology provider” (the party that developed the widget), as well as stating the above information, it is also necessary to state its origin and mention the supplier’s name

LEGISLATION

'Blacklist': Article 23 (1) (m) and (aa) Consumer Code LD 206/2005 EN 

Misleading omission: article 22(1), (2) and 22 (5) Consumer Code 

The Blacklist

Relevant extracts from the list of commercial practices which in all circumstances are misleading 

• Without prejudice to the provisions of the AVMS Code EN (LD 177/ 2005, requires that broadcast commercial communications are readily recognisable) 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) (Art. 23 (1) (m))
• Falsely claiming or creating the false impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely passing oneself off as a consumer (Art. 23 (1) (aa))

Misleading omission

• Article 22 (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, thereby causing or being likely to cause the average consumer to take a transactional decision that they would not have taken otherwise
• Article 22 (2): it shall also be regarded as a misleading omission when… a trader… 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 they would not have taken otherwise
• Under Article 22 (5): information requirements under e-Commerce Law (LD 70/2003) will be regarded as material; article 8 (1) of LD 70/2003 states: marketing communications that constitute an information society service or form an integral part thereof must contain specific information, from first dispatch, clearly and unequivocally, aimed at indicating a) that this is a marketing communication. This will apply to online communications

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

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

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

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

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

Guidance

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

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B5.  Respect for the sponsorship property and the sponsor

• Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property

• The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them

B6. The sponsorship audience

• The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party

• This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

B7.  Data capture/ data sharing

• If personal data is used in connection with sponsorship, the provisions of article 19 are applicable

 B8.  Artistic and historical objects

• Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
• Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

B9.  Social and environmental sponsorship

• Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
• Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
• Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications

 B10.  Charities and humanitarian sponsorship

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

B11. Multiple sponsorship

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

B12.  Media sponsorship

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

B13. Responsibility

• As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
• Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

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

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

 B4: 'Ambushing' of sponsored properties

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

B5: Respect for the sponsorship property and the sponsor

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

B6: The sponsorship audience

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

B7: Data capture/ data sharing

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

B8: Artistic and historical objects

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

B9: Social and environmental sponsorship

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

B10: Charities and humanitarian sponsorship

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

B11: Multiple sponsorship

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

Key Points/ obligations for promoters

• Scope: Any activity related to the promotion must be carried out in Italy (Art. 1 DPR); in the case of online prize promotions, the server on which the competition is run/ which collects the entries must be located on Italian territory
• Prize competitions and operations can only be carried out by industries that manufacture or commercialise the products or services being promoted, or by a consortium of such industries (Art. 5 (1) DPR)
•  Non Italian companies (whose headquarters are not based in Italy) will be obliged to appoint a specifically designated fiscal representative, resident in Italy, to conduct/ organise the prize contest or operation (Art. 5(2) DPR)
• The Promoter can appoint a promotional agency to fulfil the relevant requirements, e.g. completing the documents and issuing the insurance/ security policy for the promotion (Art. 5 (3) DPR)
• The winner must be selected either in the presence of an Italian Notary or an Officer of the Chamber of Commerce (so as to guarantee public faith in accordance with Art. 20 LD 112/1998). If the method used for the awarding of the prizes requires technical knowledge (i.e. where winners are selected electronically), the notary must be supported by an appropriate expert (Art. 9 (1) DPR)
• Money cannot be offered as a prize (Art. 4 DPR)
• Be aware that there are tax implications for sales and promotions, and specialist advice should be sought
• Prior notification of the prize contest and operation is required to the Ministry of Economic Development (Exec. Decree 2010/19313)

Prize contest/ competition

• Cannot last for more than one year from commencement date (Art. 1 (3) DPR)
• The prior notice, in addition to the competition rules (terms and conditions) and a bank guarantee/ security equal to the aggregate value of the prizes must be filed with the Ministry of the Economic Development at least 15 days prior to the start of the contest/ competition via an online facility at www.impresa.gov.it  (Exec. Decree 2010/19313 and Art. 7 (1a) DPR)
• In addition to providing a guarantee equal to 100% of the prizes offered, promoters cannot deduct VAT on the prizes of promotions and must pay  tax equal to 25% of the value of the prizes awarded (Art. 30 DPR 600/1973)
• Prize winners should receive their prizes within 180 days of the closure of the promotion (Art. 7 (3) DPR)
• In case of Online Prize Promotions, the server collecting the entries must be located in Italy. If the server is abroad, the registrations must be reflected real time from the external server to the Italian server
• Further information here

Prize operation

• Cannot last for longer than five years from their commencement date (Art. 1 (3) DPR)
• Prior notice to the Ministry of Economic Development just has to be given prior to the start of the operation (no time limit) along with a bank security equal to 20% of the general value of the prizes (Art. 71b DPR)
• Notification should be made via the Prema online service at www.impresa.gov.it
• A notarised declaration of the terms and conditions (including details of promoters, duration, territorial scope, methods of implementation, nature, approximate value of prizes, term of delivery) should be held in the company’s registered office for a period of 12 months following the conclusion of the operation (Art. 10 (3) DPR)
• The prizes must be issued within 6 months from the conclusion of the prize operation or the date of their request (Art. 1(3) DPR)
• Further details here

SELF-REGULATION 

From the IAP Self-Regulation Code of Marketing Communication (EN)

Article 20. Special sales

• Marketing communication relating to special sales of any kind, in particular promotional sales, should clearly specify the additional benefit deriving from the purchase, as well as the duration of the offer. The duration of the offer does not need to appear on the packaging

Article 21. Prize promotions

• Marketing communication relating to prize promotions involving competitions or premium operations, should provide consumers with clear and simple information on eligibility to participate, closing dates and prizes; for competitions the information should include the number and total value of prizes, the procedure for awarding prizes and the media to be used for publicising the results

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

A2. Terms of the offer 

• Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product

​

A4. Administration of promotions 

• Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers' reasonable expectations.

In particular:

• The availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. If delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made
• Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request
• Complaints should be efficiently and properly handled

A5. Safety and suitability 

• Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
• Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

A6. Presentation to consumers 

• Complex rules should be avoided
• Rules should be drawn up in language that consumers can easily understand
• The chances of winning prizes should not be overstated

Information requirements 

• Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase

Information should include, where relevant:

• Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
• Main characteristics of the promotional items offered
• Any time limit on taking advantage of the promotional offer
• Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. In the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
• The value of any voucher or stamp offered where a monetary alternative is available
• Any expenditure involved, including costs of shipping and handling and terms of payment
• The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
• Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause

Information in prize promotions 

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

• Any rules governing eligibility to participate in the prize promotion
• Any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
• Any restriction on the number of entries
• The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
• In the case of a skill contest, the nature of the contest and the criteria for judging the entries
• The selection procedure for the award of prizes
• The closing date of the competition
• When and how the results will be made available
• Whether the consumer may be liable to pay tax as a result of winning a prize
• The time period during which prizes may be collected
• Where a jury is involved, the composition of the jury
• Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

A2: Transparency and terms of the offer

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

A3: Presentation

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

A4: Administration of promotions

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

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

A5: Safety and suitability

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

A6: Presentation to consumers

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

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

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

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

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

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

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

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

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

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

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

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

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

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

Article 4

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

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

Article 5

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

Article 6a

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