This database posted March 2024
Sector updates and cases
Ontario iGaming: New Amendments
Bennett Jones March 19, 2024
Latest decisions Ad Standards April 12, 2024
Cases Chatime (discrimination), Nang (health & safety), Donohues (health & safety)
Class Actions And The Rise Of The Machine
Webinar recording Tyr LLP April 15, 2024
Supreme Court and IP Addresses' privacy
Burnet Duckworth & Palmer April 17, 2024
U.S. SEC Climate Disclosure Rules and the Impact on Canadian Businesses
Beveridge & Diamond PC Lex April 5, 2024
Influencer Marketing: Legal Implications for Canadian Content Creators and Advertisers
Aird & Berlis LLP | Aird & McBurney/ Lex March 27, 2024
CSSB Releases Draft Standards: One Step Closer to Mandatory Sustainability Reporting in Canada
Fasken March 20, 2024
Privacy of IP Addresses: Understanding the Supreme Court Ruling in R. v. Bykovets
McCarthy Tétrault/ Lex March 6, 2024
Canada's regulatory regime is pretty familiar in the sense that it has a strong authority in Ad Standards (EN; FR), whose July 2019 Code of Advertising Standards and Interpretation guidelines form the key self-regulatory influence with a backdrop of federal consumer protection legislation in the Competition Act, together with provincial equivalents (which we address later), not unlike the US framework. There's 'good citizen' behaviour from some industries, such as the Beer Industry's Responsible Advertising and Marketing Code (March 2020) and Spirits Canada's Code of Responsible Advertising and Marketing (2018) FR, albeit alcohol advertising is also subject to legislation. Ad Standards offer pre-clearance in a number of the more sensitive categories and it's mandatory for food ads primarily directed to children. Check Mark feature here and Complaint case summaries are here.
So it's a recognisable landscape but with some important wrinkles, if landscapes have wrinkles, such as some particular arrangements for French-speaking Quebec (see below) and, unusually, some relatively broad environmental rules, in the sense that there's no environmental code per se (though there are self-regulatory guidelines - see No. 3 in the link - and upcoming developments from the statutory authority described here by Blakes and a sensitive attitude from the authorities to what is as much a high profile issue in Canada as it is elsewhere. Perhaps predictably in the Canadian cultural environment, that sensitivity extends into matters of representation and diversity. The Association of Canadian Advertisers publish a Diversity and Representation Guide (2021).
This October 2023 Advertising & Product Regulatory from Gowling LLG is an extremely helpful overview and includes e.g. a section (9) on Quebec where there are particularly tight rules on food advertising to kids especially. Likewise, Prohibited and Controlled Advertising in Canada from Miller Thomson/ Lex of March 2020 sets out some significant restrictions in the jurisdiction. The same company forms the content of Chambers and Partners' Advertising & Marketing 2023 Canada, last updated October 2023 and their checklist may also be helpful. Also worthy of note in this necessarily brief summary is the Competition Bureau's Advertising do's and don'ts and Deceptive Marketing Practices. The Competition Bureau is 'an independent law enforcement agency that protects and promotes competition ... We enforce the Competition Act, Consumer Packaging and Labelling Act .... and will not hesitate to take action when business is not carried out in ways that are truthful, fair and legal. We work to protect and promote competition by...ensuring truth in advertising...'
There are at least two heavyweight influences in what is a high profile issue among Canada's marketing weaponry. The first from Ad Standards' Influencer Marketing Disclosure Guidelines (Update Fall 2023), which points to broader but relevant clauses in its general code linked above - clauses related to accuracy and clarity (1), disguised advertising techniques (2) and testimonials (7) - and sets out more specific requirements from both advertisers and influencers in conveying where there is a 'material connection' (the same expression used in the Competition Bureau's provisions linked below, so the two authorities are on the same page). Extracting from Ad Standards' Disclosure guidelines: 'Hashtags that have been recognized as clear and widely accepted include: #ad, #sponsored, #XYZ_Ambassador, #XYZ_Partner (where “XYZ” is the brand name).
As we have indicated, the above guidelines include a link to Volume 4 of the Competition Bureau's Deceptive Marketing Practices Volume 4 Influencer Marketing. This is also an extensive work which sets out the legal framework, provides checklists for both advertisers and influencers and points to the guidelines above, as well as The International Consumer Protection Network (ICPN) Online Reviews and Endorsement Guidelines. For a helpful summary of the two sets of rules and some additional requirements by sector and medium (e.g. YouTube), read New guidelines for influencer marketing #FullDisclosure from Smart & Biggar/ Lex November 30, 2023. Influencer marketing: How to keep your practices compliant from Miller Thomson/ Lex February 12, 2024 is more focused on the advertiser's compliance in light of updated guidelines. Finally, Influencer Marketing Research 2023 from Ad Standards is solid consumer research on the consumer perspective. The image below is an extract from the Competition Bureau's Vol 4.
Section 12 of the Code of Advertising Standards addresses advertising to children (defined under the CCFBA below as under 13 but in the Broadcast code, also below, as under 12): 'Advertising that is directed to children must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm.' Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act (emphasis ours).
Canada's system starts with pre-clearance of food commercials under the provisions of the Food and Drugs Act and the Canadian Food Inspection Agency's Food Labelling for Industry (CFIA Industry Labelling Tool). "The Code for the Responsible Advertising of Food and Beverage Products to Children (CCFBA; May 2023) sets rules for advertisers of food and beverage products, requiring a responsible approach to child audiences. The CCFBA starts with a prohibition: unless the food or beverage product in question meets specific nutrition criteria, the advertising may not be primarily directed to children. A companion document - the Guide for the Responsible Advertising of Food and Beverage Products to Children - helps advertisers understand its intended scope and application, and informs Ad Standards in its interpretation of the CCFBA. Advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in Appendix A (the “Restriction”)." Scope is extracted here; a child is defined as under 13; the code also prohibits advertising in elementary or middle schools. Ads that might reasonably be seen as primarily directed to children must be pre-cleared by Ad Standards.
Food advertising is also regulated under the The Food and Drug Act (EN; FDA) and the Safe Food for Canadians Act (SFCA); both measures provide broad rules, e.g. under Part I (3) of the FDA the prohibition of advertising 'any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1.' The SFCA provides inter alia 6 (1) 'It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.' Bill C-252 An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children) prohibits the advertising of 'prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.' Current (March 2024) status is second reading in the Senate.
Canada: Back to school essentials: Do’s and don’ts of advertising food to children in Canada
Baker McKenzie September 28, 2023
Blake's Bulletin on the CCFBA July 18, 2023, from which:
in 2016, the federal Minister of Health launched the Healthy Eating Strategy, a key component of which was to restrict food and beverage advertising to children. The same year, the Minister introduced Bill S-228, an Act to amend the Food and Drugs Act, which aimed to prohibit food and beverage marketing directed at children in the belief that these advertisements contribute to child obesity in Canada. Bill S-228 faced significant pushback on the basis that there was no evidence that exposure to specific types of food advertising contributes to obesity in children, and ultimately failed to be adopted in 2019 prior to the 2019 Canadian federal election. See above act amending the FDA.
Proposed policy on food advertisements directed to children in Canada
Miller Thomson/ Lex June 9, 2023
Includes Policy update on restricting food advertising primarily directed at children: Overview from Health Canada June 2023.
The picture on regulation of environmental claims is a little blurred at the time of writing (March 2024). The twin spokes of regulation - self-regulatory and statutory - are in the first instance not fully developed (only in the sense that there are no specific environmental claims rules per se - but solid 'general' rules that protect consumers from misleading claims of any kind) and in the second, rules are in evolution, more of which later in this section. So Ad Standards' Interpretation Guidelines #3 December 2021 states: 'When evaluating complaints involving environmental claims that allegedly are misleading or deceptive, Standards Council may, in exercising its judgment, take into account the guidance of the Competition Bureau (available here) and, where relevant, the ICC Framework for Responsible Environmental Marketing Communications (November 2021).
Historically, Standards Council has also referred to the Canadian Standards Association Special Publication PLUS 14021 (GRS note: the publication appears to be available only when accessed from within Canada) Environmental claims: A guide for industry and advertisers. This may continue to be a reference for Standards Council in the case of advertising in market prior to this update to Interpretation Guideline #3.
As of December 2021, the Competition Bureau's position on Environmental claims and greenwashing is the linked paper. Per commentary below, this references the archived Environmental claims: A guide for industry and advertisers. 'The Guide may not reflect the Bureau’s current policies or practices and does not reflect the latest standards and evolving environmental concerns. The guide will remain available for reference, research and recordkeeping purposes, but it will not be altered or updated as of the date of archiving.'
Bill C-59 (link is to the charter statement Feb 1, 2024; the bill is here): An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023. The bill had its first reading November 30, 2023. See Blake's Bulletin of the same date. Division 6 of Part 5 – Measures Related to Competition would include several amendments to the Competition Act, one of which is 'Representations of a product’s benefits for the environment': ...The amendments would add, to the existing section dealing with representations to the public, a new form of reviewable conduct: a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effect of climate change that is not based on an adequate and proper test.'
The proposed amendment would seek to protect consumers, competitors, and the proper functioning of the market, against the harms of untested representations about a product’s benefits for protecting the environment or mitigating the effects of climate change. Requiring persons to adequately test their environmental claims improves the functioning of the market by improving the reliability of information provided to consumers and preventing persons from relying on untested claims to gain a market advantage. The amendment would not impose a requirement that testing prove the representation with absolute certainty. Instead, it requires “adequate and proper” testing of the claim. Furthermore, the amendment would not establish a criminal offence: if a person is found to have engaged in reviewable conduct for the purpose of this amendment, only civil or administrative proceedings would be available.
Increased scrutiny on greenwashing in Canada ushers in changing regulations
DLA Piper April 18, 2024
Marketing's dirty laundry ̶ greenwashing, climate washing and the growing legal risks of environmental marketing
Baker McKenzie/ Lex June 7, 2023. From which, a bit of contextual history:
'Historically, advertisers relied on the detailed enforcement guidelines (Environmental claims: A guide for industry and advertisers) published by the Competition Bureau of Canada ("Bureau"), originally developed together with the Canadian Standards Association, which provided extensive guidance on the use of individual environmental claims. However, concurrently with a major greenwashing enforcement action, those enforcement guidelines were formally archived in 2021. The Bureau has made clear that these guidelines no longer reflect its current enforcement position due to changes in standards and evolving environmental concerns. Since then, the Bureau has only made statements that give high-level guidance, such as, companies should ensure that the precise environmental benefits of a product are described.'
Green branding or greenwashing? Regulatory considerations
Smart & Biggar April 28, 2023. Covers all the bases.
From the Code of Advertising Standards 6. Comparative Advertising: Advertisements must not, unfairly, discredit, disparage or attack one or more products, services, advertisements, companies or entities, or exaggerate the nature or importance of competitive differences. and 9. Imitation: No advertiser shall imitate the copy, slogans or illustrations of another advertiser in such a manner as to mislead the consumer.
Ad Standards' library provides Guidelines for the Use of Comparative Advertising, albeit published 2012
New Guidance from the Federal Court regarding Comparative Advertising Claims in Canada from Bereskin & Parr LLP August 4, 2023 reports on the Energizer v Gillette case of July 2023, which is an important case but not necessarily dealing directly with comparative advertising per se as it concerned a) trademark infringement reviewed under the Trademarks Act section 22 No person shall use a trademark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto and b) the use of sticker labels on Duracell batteries. The judge also referred to the Competition Act section 52 when assessing whether a claim was 'false or misleading'. This provides - at least - interesting reading on how the courts interpret those provisions; see under the linked 'New Guidance' commentary the para headed 'false and misleading claims.' Section 7 of the Trademarks Act provides (in part): 'No person shall (a) make a false or misleading statement tending to discredit the business, goods or services of a competitor; (b) direct public attention to his goods, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his goods, services or business and the goods, services or business of another;'
The Competition Act is the principal statute that covers marketing and advertising practices, as well of course as a great deal else, and equivalent to the UCPD in the EU or the FTC Act in the U.S. False or misleading representations are criminalised under 52 (1) 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.' Additionally, section 74.01 addresses a civil, reviewable offense of a slightly different form of misrepresentation, one related to a 'performance claim' a statement, warranty or guarantee of the performance, efficacy or length of life of a product that is not based on an adequate and proper test thereof versus section 52's 'materially misleading' claim. It's as well also to be aware of The Trademarks Act, discussed above under the Comparative Advertising header.
Some commentary
Canadian Advertising Law: 2023 Year in Review.
Blake, Cassels & Graydon/ Lex Jan 10, 2024. Addesses Bill c-59 above
2023 Year in Review: Advertising, Marketing and Regulatory Law
Bereskin & Parr LLP February 21, 2024
Canada's new Online Harms Act: what you need to know
Osler Hoskin & Harcourt LLP March 1, 2024
Competition Law and the Environment: Update
McCarthy Tétrault LLP Feb 14, 2024
The Food and Drug Act 'An Act respecting food, drugs, cosmetics and therapeutic devices.'
PART I General Prohibited advertising. 3 (1) 'No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1. Prohibited claims - animal testing 16.3 (1) No person shall make a claim on the label of or in an advertisement for a cosmetic that is likely to create an impression that the cosmetic was not tested on animals after the day on which this section comes into force unless the person has evidence that no such testing occurred after that day.'
There's a system of marketing authorisations for some food types.
Advertisers and agencies will generally look to the Federal Competition Act and the Code of Advertising Standards for advertising rules, but it's as well at least to be aware of provincial legislation as, similar to the US framework, local rules can be the first port of call if a suit is filed. Most if not all of the provinces administer their own consumer protection legislation and, for example, Ontario introduced in October the new Consumer Protection Act 2023; see Gowling WLG December 2023 commentary here. We don't set out provisions, however, as the Competition Act is broad and there's a strong self-regulatory authority and a less litigious environment versus the US. Additionally, much of the legislation is devoted to e.g. contract law and pricing regulation - important marketing issues but not directly ad related. State authorities, such as the Alcohol and Gaming Commission of Ontario, publish comprehensive Liquor Advertising Guidelines.
Legislative assemblies of Canadian provinces and territories
Provincial Statutes & Legislation
CHANNEL (I.E. PLACEMENT) RULES
Personal Information Protection and Electronic Documents Act (PIPEDA - S.C. 2000, c. 5)
Current federal privacy law; see below for developments. Taylor Wessing commentary here
Canada's Anti-Spam Law (S.C. 2010, c. 23) about which:
Cookie Consent in Canada Cassie November 2022 and
Website cookies in Canada: is consent required? DLA Piper April 2020
Supreme Court rules reasonable expectation of privacy in IP address
Dentons/Lex March 20, 2024
Proposed changes to federal privacy legislation
On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA), (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.
Canadian Radio-television and Telecommunications Commission (CRTC), from which:
Alcohol: Broadcasters can advertise alcoholic beverages, but must follow the 'New regulatory framework governing the broadcast of alcoholic beverages advertising' (Public Notice CRTC 1996-108) GRS note: the preceding linked paper is archived on the web. The CRTC also expects broadcasters that carry advertising for alcoholic beverages to report annually on how many alcohol-education messages they broadcast;
Drugs, medications and condoms: Health Canada has standards for advertising these products;
Ad clearance: advertising clearance is the process of previewing commercials to make sure they meet applicable standards. Advertising Standards Canada provides the service, but clearance is only mandatory for children’s advertising;
False and misleading ads: Broadcasters must meet the Canadian Association of Broadcasters’ Code of Ethics on advertising. If you think an ad is false or misleading, contact Advertising Standards Canada or the Competition Bureau at Industry Canada.
QUEBEC
https://en.wikipedia.org/wiki/Quebec
DLA Piper Global Influencer guide Coke's aspirational claims are not actionable FKK&S/ Lex November 20, 2022 Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan Proposal for a Directive on Green Claims Cheat sheet EU Digital Acts April 23, 2023 Green Initiatives mainly in Europe April 2023 Our assembly of some key EU 'green' requirements A brief guide to EU institutions. April 25, 2023 Self-regulation globally. FKK&S April 27, 2023 EASA Influencer Disclosure pan-Europe July 2023 |
EU Influencer Legal Hub. Posted October 2023 EASA update Green Claims Directive Dec 2023 ICC Responsible Green Marketing Comms Jan 2024 CNIL fines Yahoo! €10 million over cookies policy 2023 Privacy Year in Review. Troutman Pepper Feb 1 IAB Europe Guide to Quality February 2024 IAB Cookie Readiness report February 2024 CJEU rules on IAB's TCF. Hunton March 8, 2024 Google's 2023 Ad Safety Report March 2024 |
General
GALA Ad law conference April 16, 2024
Topics AI, Environmental and Global ad law
DMA fully applicable. Wiggin/ Lex March 14, 2024
IAB Europe Implementation Guidelines for DSA
EC Influencer sweep results Feb 14, 2024
Digital advertising & adtech under DMA & DSA Dentons
How Will the Digital Services Act Impact Brands Online?*
William Fry December 12, 2023
Environmental
EU and UK Climate Disclosure and Anti-Greenwashing Regimes
Morgan Lewis. Financial sector. April 10, 2024*
Directive Empowering Consumers for Green Transition in force
Taylor Wessing March 21, 2024
CSDDD here to stay. Schoenherr March 20, 2024
Is offsetting off the cards in the EU? Lewis Silkin 18 Jan, 2024
Sustainability reporting across borders.* Clifford Chance October 17, 2023
Green Claims Directive update Wiggin/ Lex March 21, 2024
Original EC press release here; EASA update Feb 2024 here
Proposal for a Directive on empowering consumers for the green transition
Above March 30, 2022. EASA update Jan 2024. Osborne Clarke Jan 31, 2024
AI
AI Regulatory Developments in the EU, US, and at the UN
Pearl Cohen Zedek Latzer Baratz. April 1, 2024
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
Tech Accord to Combat Deceptive Use of AI in 2024 Elections
Baker McKenzie Feb 21, 2024
EU and AI regulatory outlook. Osborne Clarke 18 Jan, 2024*
EASA update Dec 2023 AI Regulation
AI's Failing Grade. Mark Scott Politico June 29, 2023*
UK vs EU Approach to Regulating AI. Baker Mckenzie/ Lex June 14, 2023
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Data/ privacy
Data Protection update - February 2024. Stephenson Harwood/ Lex
CJEU rules on IAB's TCF. Hunton March 8, 2024
EDAA launches new solution to DSA ad transparency requirements
'Pay or ok' challenged as ad-free subscription models under scrutiny*
DAC Beachcroft February 7, 2024
EASA Jan 2024 update on the Commission's cookie pledge and GDPR
Google Chrome starts blocking data tracking cookies. BBC Jan 4, 2023
The Future Of Behavioral Advertising In Europe And The United States*
InfoLawGroup LLP/ Lex. November 20, 2023
Children
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
* Recommended read
ICAS releases 2022/2023 Global SRO Database and Factbook
Above from ICAS December 2023
Advertising, Media and Brands Global Compliance Challenges
Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA
Chambers Global Practice Guide Advertising & Marketing 2022
Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland
DLA Piper's Advertising Laws of the World August 31, 2022. '13 key jurisdictions.'
Data
Global Privacy: Year in Review and a Look Forward, 2023-2024
Morgan, Lewis & Bockius LLP. Asia & ME, UK & EU, US
DLA Piper's Data Protection Laws of the World Handbook 2023 edition
Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively
The code is structured in two main sections: General Provisions and Chapters. General Provisions set 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 and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). 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
All the individual rules themselves are set out in the following content section B and channel section C, as applicable
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 clause |
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 |
Directive 2002/58/EC on privacy and electronic communications:
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://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
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
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Directive 2019/2161 sets 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, 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.
1. SELF-REGULATION
The Code of Advertising Standards (July 2019)
Interpretation guidelines
Influencer Marketing Disclosure Guidelines (Fall 2023)
The Food and Beverage Advertising Code (May 2023)
2. LEGISLATION
The Competition Act
The FDA and SFCA
Provincial legislation
1. Accuracy and Clarity
In assessing the truthfulness and accuracy of a message, advertising claim or representation under Clause 1 of the Code the concern is not with the intent of the sender or precise legality of the presentation. Rather the focus is on the message, claim or representation as received or perceived, i.e. the general impression conveyed by the advertisement.
(a) Advertisements must not contain, or directly or by implication make, inaccurate, deceptive or otherwise misleading claims, statements, illustrations or representations.
(b) Advertisements must not omit relevant information if the omission results in an advertisement that is deceptive or misleading.
(c) All pertinent details of an advertisement must be clearly and understandably stated.
(d) Disclaimers and asterisked or footnoted information must not contradict more prominent aspects of the message and should be located and presented in such a manner as to be clearly legible and/or audible.
(e) All advertising claims and representations must be supported by competent and reliable evidence, which the advertiser will disclose to Ad Standards upon its request. If the support on which an advertised claim or representation depends is test or survey data, such data must be reasonably competent and reliable, reflecting accepted principles of research design and execution that characterize the current state of the art. At the same time, however, such research should be economically and technically feasible, with regard to the various costs of doing business.
(f) The advertiser must be clearly identified in the advertisement, excepting the advertiser of a “teaser advertisement” as that term is defined in the Code.
2. Disguised Advertising Techniques
No advertisement shall be presented in a format or style that conceals the fact that it is an advertisement.
3. Price Claims
(a) No advertisement shall include deceptive price claims or discounts, unrealistic price comparisons or exaggerated claims as to worth or value. "Regular Price", "Suggested Retail Price", "Manufacturer’s List Price" and "Fair Market Value" are deceptive terms when used by an advertiser to indicate a savings, unless they represent prices at which, in the market place where the advertisement appears, the advertiser actually sold a substantial volume of the advertised product or service within a reasonable period of time (such as six months) immediately before or after making the representation in the advertisement; or offered the product or service for sale in good faith for a substantial period of time (such as six months) immediately before or after making the representation in the advertisement.
(b) Where price discounts are offered, qualifying statements such as "up to", "XX off", etc., must be in easily readable type, in close proximity to the prices quoted and, where practical, legitimate regular prices must be included.
(c) Prices quoted in advertisements in Canadian media, other than in Canadian funds, must be so identified.
4. Bait and Switch
Advertisements must not misrepresent the consumer’s opportunity to purchase the goods and services at the terms presented. If supply of the sale item is limited, or the seller can fulfill only limited demand, this must be clearly stated in the advertisement.
5. Guarantees
No advertisement shall offer a guarantee or warranty, unless the guarantee or warranty is fully explained as to conditions and limits and the name of the guarantor or warrantor is provided, or it is indicated where such information may be obtained.
6. Comparative Advertising
Advertisements must not, unfairly, discredit, disparage or attack one or more products, services, advertisements, companies or entities, or exaggerate the nature or importance of competitive differences.
7. Testimonials
Testimonials, endorsements or other representations of opinion or preference, must reflect the genuine, reasonably current opinion of the individual(s), group or organization making such representations, and must be based upon adequate information about or experience with the identified product or service and must not otherwise be deceptive.
8. Professional or Scientific Claims
Advertisements must not distort the true meaning of statements made by professionals or scientific authorities. Advertising claims must not imply that they have a scientific basis that they do not truly possess. Any scientific, professional or authoritative claims or statements must be applicable to the Canadian context, unless otherwise clearly stated.
9. Imitation
No advertiser shall imitate the copy, slogans or illustrations of another advertiser in such a manner as to mislead the consumer.
10. Safety
Advertisements must not without reason, justifiable on educational or social grounds, display a disregard for safety by depicting situations that might reasonably be interpreted as encouraging unsafe or dangerous practices, or acts.
11. Superstitions and Fears
Advertisements must not exploit superstitions or play upon fears to mislead the consumer.
12. Advertising to Children
Advertising that is directed to children must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm. Child-directed advertising in the broadcast media is separately regulated by the Broadcast Code for Advertising to Children, also administered by Ad Standards. Advertising to children in Quebec is prohibited by the Quebec Consumer Protection Act.
13. Advertising to Minors
Products prohibited from sale to minors must not be advertised in such a way as to appeal particularly to persons under legal age, and people featured in advertisements for such products must be, and clearly seen to be, adults under the law.
14. Unacceptable Depictions and Portrayals
It is recognized that advertisements may be distasteful without necessarily conflicting with the provisions of this Clause 14; and the fact that a particular product or service may be offensive to some people is not sufficient grounds for objecting to an advertisement for that product or service.
Advertisements shall not:
(a) condone any form of personal discrimination, including discrimination based upon race, national or ethnic origin, religion, gender identity, sex or sexual orientation, age or disability;
(b) appear in a realistic manner to exploit, condone or incite violence; nor appear to condone, or directly encourage, bullying; nor directly encourage, or exhibit obvious indifference to, unlawful behaviour;
(c) demean, denigrate or disparage one or more identifiable persons, group of persons, firms, organizations, industrial or commercial activities, professions, entities, products or services, or attempt to bring it or them into public contempt or ridicule;
(d) undermine human dignity; or display obvious indifference to, or encourage, gratuitously and without merit, conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.
1. Elements of Humour and Fantasy
2. Advertising to Children
3. Environmental claims
4. Alleged Infractions of Clauses 10 or 14: Motor Vehicle Advertising
5. Testimonials, Endorsements, Reviews
6. Scope of “government advertising”, “political advertising” and “election advertising”
7. Gender Portrayal Guidelines (ARCHIVED) Extract Since the themes identified in the document may still help advertisers to identify potential issues applicable to gender portrayal in advertising, the Gender Portrayal Guidelines are archived and not withdrawn at this time
'This guide is the property of Ad Standards and may not be reproduced, in whole, or in part, without prior permission from Ad Standards.'
These are significant, recent and comprehensive guidelines so it's recommended that you click on the link above .
The code is principally designed to frame requirements for advertising food and beverages to children: Advertising for a food or beverage product may not be primarily directed
to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in
Appendix A (the “Restriction”). We don't reproduce the appendix here as it's relatively complex and covers a number of different food types. Other restrictions (spelt out in full in the code) are:
1. No Advertising in Schools
2. No Product Placement/Restricted Product Integration
3. No Urging Children to Buy
'It is Ad Standards’ expectation that all advertising for food and beverages that could reasonably be considered to be primarily directed at children will be submitted for pre-clearance.'
The Competition Act
https://laws-lois.justice.gc.ca/eng/acts/c-34/FullText.html
False or misleading representations under 52 (1) 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.' It's as well also to be aware of The Trademarks Act, which will be referenced and interpreted in comparative advertising cases.
Bill C-59 had its first reading November 30, 2023. See Blake's Bulletin of the same date. Division 6 of Part 5 – Measures Related to Competition would include several amendments to the Competition Act, one of which is 'Representations of a product’s benefits for the environment': ...The amendments would add, to the existing section dealing with representations to the public, a new form of reviewable conduct: a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effect of climate change that is not based on an adequate and proper test.'
The Food and Drugs Act
'An Act respecting food, drugs, cosmetics and therapeutic devices'
https://laws-lois.justice.gc.ca/eng/acts/f-27/FullText.html
Amendment to the above
Bill C-252 An Act to amend the Food and Drugs Act (prohibition of food and beverage marketing directed at children) prohibits the advertising of 'prescribed foods that contain more than the prescribed level of sugars, saturated fat or sodium in a manner that is primarily directed at persons who are under 13 years of age.' Current status is second reading in the Senate
The Safe Food for Canadians Act (SFCA); both measures (the FDA and SFCA) provide broad rules, e.g. under Part I (3) of the FDA the prohibition of advertising 'any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1.' The SFCA provides inter alia 6 (1) 'It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.'
Provincial legislation
Most if not all of the provinces administer their own consumer protection legislation and, for example, Ontario introduced in October the new Consumer Protection Act 2023; see Gowling WLG December 2023 commentary here. We don't set out provisions, however, as the Competition Act is broad and there's a strong self-regulatory authority and a less litigious environment versus the US. Additionally, much of the legislation is devoted to e.g. contract law and pricing regulation - important marketing issues but not directly ad related. State authorities, such as the Alcohol and Gaming Commission of Ontario, publish comprehensive Liquor Advertising Guidelines.
Legislative assemblies of Canadian provinces and territories
Provincial Statutes & Legislation
SELF-REGULATION; the 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
2.2.3. Extracts from the ICC Code related to pricing
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of technical/ scientific data and terminology (Art. 9)
Use of 'free' and 'guarantee' (Art. 10)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art. 13)
Portrayal or imitation of persons and references to personal property (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Safety and health (Art. 17)
D1. Honest and truthful presentation
D2. Scientific research
D3. Superiority and comparative claims
D4. Product life-cycle, components and elements
D5. Signs and symbols
D6. Waste handling
D7. Responsibility
Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix.
Applicable self-regulation
Article 18.1. General principles
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
18.3. Avoidance of harm
18.4. Social values
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
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
Aggressive commercial practices
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
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').
......................................................................................
2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
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
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 red 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
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 Media sponsorship
This section covers the digital media space in broad. More specific headers such as email, marketer's own websites, cookies and OBA etc. follow
.................................
The Competition Act includes under Section 52.01 False or misleading representation - sender or subject matter information (1) 'No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message. (2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.'
On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA) replacing PIPEDA, (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.
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
Also be aware of:
The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation
The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market
The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)
Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth
And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry
And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
C1. Identification and transparency
C2. Identity of the marketer
C7. Marketing communications and children
C10. Respect for the potential sensitivities of a global audience
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Privacy issues should be reviewed with specialist advisors
Online privacy, tracking, and cookies
Guidance for businesses doing e-marketing
Guidelines for obtaining meaningful consent
Ten tips for a better online privacy policy and improved privacy practice transparency.
'It’s time to move': Google on Global Ads on cookie deprecation, privacy regulation, AI
Campaign Asia February 29, 2024
Consent Rules Apply to Broader Range of Tracking Technologies
McDermott Will &Emery January 18, 2024
EASA Jan 2024 update on the Commission's cookie pledge and GDPR
New EDPB guidelines on the scope of the ‘cookie rule’. DLA Piper Nov 22, 2023
Guidelines here. This is re technical scope
'Reject All' button in cookie consent banners - An update from the UK and the EU
Reed Smith LLP/ Lex November 8, 2023
Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*
Covers interplay between the AI act, the DSA and GDPR
Files prior to the above date here
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
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
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
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
The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
Applicable regulation and opinion
Application of notice and choice provisions
C22.1. Notice
C22.2. User control
C22.5. Data security
C22.6 Children
C22.7. Sensitive data segmentation
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 Competition Act includes under Section 52.01 False or misleading representation - sender or subject matter information (1) 'No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent a false or misleading representation in the sender information or subject matter information of an electronic message. (2) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, knowingly or recklessly send or cause to be sent in an electronic message a representation that is false or misleading in a material respect.'
'At the federal level, spam and other electronic threats are regulated by Canada’s anti-spam legislation (CASL) and related provisions in the Personal Information Protection and Electronic Documents Act (PIPEDA) and the Competition Act. PIPEDA, the federal private-sector privacy law, applies to the collection, use and disclosure of personal information in the course of commercial activities and contains restrictions relating to electronic address harvesting and e-marketing.' (From the OPC - Office of the Privacy Commission) and their Guidance for businesses doing e-marketing (January 2020). Other PIPEDA compliance help from the OPC is here;
General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:
19.1. Collection of data and notice
19.2. Use of data
Personal data should be:
19.3. Security of processing
19.4. Children’s personal data
19.5. Privacy policy
Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented
19.6. Rights of the consumer
Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:
19.7. Cross-border transactions
Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an e-Commerce context
- 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
Section 2: Commercial communications
Article 6
Article 7
Unsolicited commercial communication
EU guidance documents
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); 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
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) 2018
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Guidance: ICC Guidance on Native Advertising here
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
Applicable Self-regulation and legislation
Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above
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)
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
This website was created to provide international rules on marketing communications; it does not claim authority on specific sales promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that may affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal.
..................................................
From the Canadian Code of Advertising Standards
From the Competition Act (EN)
Promotional contests 74.06 A person engages in reviewable conduct who, for the purpose of promoting, directly or indirectly, the supply or use of a product, or for the purpose of promoting, directly or indirectly, any business interest, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, or otherwise disposes of any product or other benefit by any mode of chance, skill or mixed chance and skill whatever, where (a) adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning; (b) distribution of the prizes is unduly delayed; or (c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.
Deceptive notice of winning a prize 53 (1) No person shall, for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product, send or cause to be sent by electronic or regular mail or by any other means a document or notice in any form, if the document or notice gives the general impression that the recipient has won, will win, or will on doing a particular act win, a prize or other benefit, and if the recipient is asked or given the option to pay money, incur a cost or do anything that will incur a cost.
Non-application (2) Subsection (1) does not apply if the recipient actually wins the prize or other benefit and the person who sends or causes the notice or document to be sent (a) makes adequate and fair disclosure of the number and approximate value of the prizes or benefits, of the area or areas to which they have been allocated and of any fact within the person’s knowledge that materially affects the chances of winning; (b) distributes the prizes or benefits without unreasonable delay; and (c) selects participants or distributes the prizes or benefits randomly, or on the basis of the participants’ skill, in any area to which the prizes or benefits have been allocated.
Drip pricing (1.1) For greater certainty, the making of a representation of a price that is not attainable due to fixed obligatory charges or fees constitutes a false or misleading representation, unless the obligatory charges or fees represent only an amount imposed by or under an Act of Parliament or the legislature of a province.
From the Competition Bureau 'Misleading representations and deceptive marketing practices'
The table below extracts relevant practices from the original shown in the link
Practice | Section | Description |
False or mis leading represent ations |
section 52 & para 74.01(1)(a) | It is against the law to make materially false or misleading representations to promote a product, service or business interest. A representation is “material” if the general impression it conveys leads someone to take a particular course of action, like buying or using a product or service. A “representation” refers to any marketing material, including online and in-store advertisements, direct mail, social media messages, promotional emails, and endorsements, among other things. |
Drip pricing | sub-sec 52(1.3) sub-sec 74.01(1.1) | Drip pricing involves offering a product or service at a price that is unattainable because consumers must also pay additional charges or fees to buy the product or service. Subsections 52(1.3) and 74.01(1.1) confirm that offering a price that a customer cannot actually attain because there are mandatory fixed additional (non-governmental) charges or fees is a false or misleading representation. |
Ordinary selling price | sub-secs 74.01 | A price cannot be referred to as the ordinary price when it is inflated to create the illusion of offering a better deal. |
Bait and switch | section 74.04 | Bait and switch selling is when a product is advertised at a “bargain price” but the product is not available for sale in reasonable quantities. |
Deceptive prize notices | section 53 | It is a criminal offense to send prize notices that give recipients the general impression that they have won (or will win) a prize but requires them to pay a fee or incur a cost to collect their prize unless they have actually won the prize and the sender makes specific disclosures and satisfies certain other requirements. |
Promotion contests | section 74.06 | Contest organizers must: disclose the number and approximate value of prizes and information relating to the chances of winning. They cannot unduly delay the distribution of prizes, and must choose the participants and award the prizes either randomly or on the basis of skill. |
Do any specific rules apply to advertising featuring prices?
Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
Must promotional prize competitions be registered with a state agency or authority?
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.
ICC Advertising and Marketing Communications Code (EN), 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
A1: Principles governing sales promotions
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
A3: Presentation
A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)
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:
A5: Safety and suitability
A6: Presentation to consumers
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:
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:
The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
3 relevant clauses extracted
C3: The offer
C4 : Presentation
C17: Substitution of products
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
The ICAS Global Factbook of Self-Regulatory Organizations 2019
EASA (European Advertising Standards Alliance)
EASA membership
http://www.easa-alliance.org/members
Link to Best Practice Recommendations
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)
Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)
http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
EASA Best Practice Recommendation on Influencer Marketing
KEY NATIONAL LEGISLATION
The Competition Act. '1.1 The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.' For our purposes, the specific relevance of the act is under Section 52(1), which states: 'No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever knowingly or recklessly make a representation to the public that is false or misleading in a material respect.'
laws-lois.justice.gc.ca/eng/acts/c-34/FullText.html
The Food and Drug Act R.S.C., 1985, c. F-27 'An Act respecting food, drugs, cosmetics and therapeutic devices.' Part I General Prohibited advertising. 3 (1) 'No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A.1. Prohibited claims - animal testing 16.3 (1) No person shall make a claim on the label of or in an advertisement for a cosmetic that is likely to create an impression that the cosmetic was not tested on animals after the day on which this section comes into force unless the person has evidence that no such testing occurred after that day.'
laws-lois.justice.gc.ca/eng/acts/f-27/FullText.html
Privacy
Personal Information Protection and Electronic Documents Act (PIPEDA - S.C. 2000, c. 5. Assented to 2000-04-13). 'An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act.' This is the current federal privacy law; see below for developments.
laws-lois.justice.gc.ca/eng/acts/p-8.6/FullText.html
On 16 June 2022, the Canadian government introduced Bill C-27, which aims to introduce three new pieces of legislation: (i) the Consumer Privacy Protection Act (CPPA), (ii) the Personal Information and Data Protection Tribunal Act, and (iii) the Artificial Intelligence and Data Act (AIDA). The CPPA would introduce more severe penalties for non-compliance, enhance the Privacy Commissioner’s authority to oversee compliance, and create a right to request deletion of personal information. AIDA would create a framework for regulating the design, development, and use of certain artificial intelligence systems (taken from Chambers 2023 Canada) and New rules for a new era from Gowling WLG here. The bill at the time of writing (March 2024) is still in committee; see schedule here.
Canada's Anti-Spam Law (S.C. 2010, c. 23) An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (S.C. 2010, c. 23)
laws-lois.justice.gc.ca/eng/acts/E-1.6/FullText.html
The Canadian Code of Ad Standards. From definitions: "Advertising" and "advertisement(s)" are defined as any message (other than those excluded from the application of this Code), the content of which message is controlled directly or indirectly by the advertiser expressed in any language and communicated in any medium (except those listed under Exclusions - see below) to Canadians with the intent to influence their choice, opinion or behaviour. Application: the Code applies to "advertising" by (or for): advertisers promoting the use of goods and services; entities seeking to improve their public image or advance a point of view, whether or not the advertising is for a commercial purpose; and governments, government departments and crown corporations
Excluded from the terms “advertising” and “advertisement(s)” (as defined in this Code) are messages from an “entity” that/who has no “material connection” with the entity that makes, distributes, markets or advertises the product or service featured in the advertising or advertisement(s) (This exclusion reference will be in relation to the issue of Influencer Marketing, where a 'material connection' triggers disclosure requirements). Excluded Media: the following media are excluded from the application of the Code: foreign media (namely media that originate outside Canada and contain the advertising in question) unless the advertiser is a Canadian person or entity; and packaging, wrappers and labels. Importantly, the code includes 'Interpretation Guidelines' that 'enhance industry and public understanding of the interpretation and application of the Code’s 14 clauses'. The Interpretation Guidelines can be found here and cover issues such as humour, ads to children, pricing, environmental claims etc. An additional key element of the code is Influencer Marketing Disclosure Guidelines from Fall 2023. The code in English:
adstandards.ca/code/the-code-online/
Beer Industry's Responsible Advertising and Marketing Code (March 2020). 'The Responsible Advertising and Marketing Code (the Code) applies to all Beer Canada member activities undertaken to advertise and market their products. As responsible brewers, our members want to ensure that any commercial communication is directed only to those of legal purchase age and carried out in a socially responsible manner. Beer Canada represents over 50 Canadian brewing companies that account for 90% of beer made in Canada. As a statement of principles and best practices, the Code is intended to complement, support and enhance federal and provincial/ territorial alcohol advertising and marketing rules as well as those codes administered by Ad Standards (Advertising Standards Canada). The Code applies to all forms of brand marketing and commercial communication for all member products that contain alcohol, or are de-alcoholized or nonalcoholic beer product. '
Spirits Canada's Code of Responsible Advertising and Marketing (2018). Scope: the Code applies to all activities undertaken to advertise and market distilled spirits. Spirits Canada Members are encouraged to ensure all the beverage alcohol products they represent in Canada including maltbased, cider or wine also comply with the Code. These activities include brand advertising, consumer communications, promotional events, packaging, labels, and sales materials. The provisions of the Code apply to every type of print and electronic media, including the internet, and any on-line or digital communication, used to advertise or market beverage alcohol. These provisions also apply to every type of promotional or marketing activity or event, including all product placements (e.g. movies, television programs, music videos, video games) and sponsorships.
acrobat.adobe.com/id/urn:aaid:sc:VA6C2:8ff70225-4976-458c-9b2c-702eabfbd98d (FR)
ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: 'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.'
Translation of the code into several languages can be found here
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.
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 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
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