Advertising Rules Worldwide
Alcohol
Uploaded November 2018.
See individual countries for updates.
Sweden
A. Overview
Sector
SECTION A
Updates
Sector reviewed by RO Feb 2020
Links refreshed Sept 2020
WIM Reference Dec 2020
SNS rules May 2021
IARD Influencer Global standards Sept 2021
International context October 2021
Wine Communication Standards 2022
Advertisers/ agencies should be aware of two influences that may have an impact on regulation of their business/ advertising. In the context of Europe’s ‘Beating Cancer Action Plan’, there may be some impact on self-regulation of alcohol advertising. The second is the WHO's Global Alcohol Action Plan 2022-2030. The board requested 'a technical report on the harmful use of alcohol related to cross-border alcohol marketing, advertising and promotional activities, including targeting youth and adolescents.' That report from May 2022 is here. The January 2022 draft action plan is here.
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NATIONAL SNAPSHOT |
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LEGISLATION
The establishing legislation and defining context is the 2010 Alcohol Act (EN), Alkohollag 2010:1622 (SW). The act regulates the manufacture, import/ export, selling and marketing of alcohol, defined as over 2.25% ABV. It allows content-controlled marcoms for alcohol brands below 15%ABV to be placed in print and some limited online and direct marketing presence, but bans Radio and TV. From Chapter 7, S1:
- Any marketing that is permitted must observe ‘particular moderation’
- Advertising and other marketing measures may not be insistent, intrusive or encourage the use of alcohol
- Marketing may not be directed to or depict children or young people who have not yet reached the age of 25
Further specific content rules from the act are: ‘images in commercial advertisements for alcohol may only show the product, or the raw materials included in the product, individual packaging or trademarks and other comparable distinctive marks. The text must give a factual, balanced and reliable portrayal of the marketed alcoholic drink – for example its origins, raw materials, characteristics and use.’
HEALTH WARNINGS AND GUIDELINES
There is an additional requirement to include in print advertising a series of health warnings to particular formatting, shown in the linked document. To complement/ interpret the legislation are two forms of guidance, which overlap to some extent. The first and the more ‘official’ is from the Swedish Consumer Agency, a consumer authority with statutory powers, who publish Alcohol Advertising Guidelines (EN), (SW). The second is solid industry guidance in the form of Alcohol Advertising Recommendations (SW) (EN). The Recommendations are established by trade associations for all the alcohol sectors (Beer, Wine, Spirits) and by the association of Swedish advertisers, and administered by AGM, the Inspectorate.
CHANNEL OVERVIEW
- Alcohol Advertising is prohibited on TV and Radio
- There is no mention of the use of advertising in cinema in any of the regulatory sources we have checked (which is all of them). According to the Self-Regulatory Organisation RO, it is not permitted on account of the general rule that particular moderation must be observed when marketing alcoholic beverages to consumers
- Print is allowed for products under 15% ABV, provided that it does not occupy more 2,100 column millimetres (tabloid format); this does not apply to publications supplied only at the point of sale. Health Messages must be included in advertising in ‘periodical publications'; see print section below and Content Section B
- Some online advertising is permitted as referenced above; see Online Commercial Communications in Section C
- Direct Postal Mail (DPM) is permitted under certain conditions; see below
- Outdoor advertising: ‘The main rule is that outdoor advertising of alcohol is incompatible with the requirement of particular moderation’. There is some limited presence allowed at ‘points of sale and manufacture.’
- The marketing of alcoholic drinks (where this is permitted) may only occur in cases where at least 70% of the recipients of the information are 25 or over
- The Content rules set out in our following Section B, which severely restrict what can be shown in advertising, apply to all channels including those online, except that Health Messages are stipulated only for periodical publications (including online editions)
ONLINE AND DIRECT CHANNELS
As above, some marketing is permitted on own websites; age verification is required, and on those pages containing the marketing of alcoholic drinks, the applicable age limit must be clearly stated. The same content provisions (essentially, only the product and relevant ingredients can be shown) apply online. For ‘Direct’ advertising: ‘The main rule is that it is incompatible with the requirement of particular moderation to market alcoholic beverages through direct marketing. However, on the express request of the consumer, such marketing is considered permissible. Notwithstanding the above, addressed mailshots are permitted provided that: 1. The advertisement is addressed to persons over 25 years old, 2. The advertisement is communicated in sealed and opaque envelopes, 3. It is clear that the letter contains alcohol advertising, and 4. The content of the shipment meets the requirement of special moderation. Regular direct mail from the grocery trade, comprising a variety of goods, may include the marketing of beverages whose alcoholic strength does not exceed 3.5% ABV, provided that the advertising complies with the requirement of particular moderation.’ From the Consumer Agency Alcohol Advertising Guidelines 2016, S6.
All of the above points derive from a mix of the Alcohol Act, Sections 1-7 and Consumer Agency Guidelines (CAG); further information by medium is in the Channel Section C below.
ADJUDICATIONS
There are two main sources of advertising rulings in Sweden. The conventional source is the Self-Regulatory Organisation (SRO), in this case RO, who normally carry out the SRO adjudication function either via their leadership or, for more complicated cases or those without precedent, via their jury RON. In the case of Alcohol, however, RO take a back seat to the Consumer Agency (KO), essentially the Ombudsman, ‘a government agency whose task is to safeguard consumer interests.’ The KO, or others, will bring proceedings against advertisers considered to have breached the terms of the Alcohol Act in this instance (more broadly, the Marketing Act). There is now a two-step system, Instead of the single instance Marketing Court system. First step is Patent- och marknadsdomstolen (the Patent and Market Court) and the second step is Patent- och marknadsöverdomstolen (the Court of Appeal). The PMÖD decisions can be found here. Another source, the trade association inspectorate AGM referenced earlier, does not appear to provide multiple rulings; the link is to the Decisions tab on their website.
GENERAL RULES
While the conditions for alcohol advertising are very specific in Sweden, it's important that the rules for all product sectors, shown below under the General tab, are also observed; adjudications against Alcohol advertising may well come from general misleadingness or taste and decency rules, for example. The principal source of rules for all advertising content is the ICC Advertising and Marketing Communication Code, on which RO bases its decisions. Equally important in this context is the Marketing Act 2008:486, which transposes UCPD 2005/29/EC and provides the legislative cornerstone of marketing rules in Sweden.
General
SECTION A OVERVIEW
Updates since June 2022
ICC Environmental Framework in Swedish
Sambla loans ruled discriminatory June 2022
Commercial re above here (link may expire)
BMW iX environmental claim ruled misleading
Ad re above is here (SW) July 2022 ruling
Google says cookie here to stay until 2024
July 27, 2022
Directive 2019/2161 transposed here (SW)
Environmental claims: the use of ‘Ecolabels’
Above from lawyers Vinge/ Lex October 2022
Acne Bags ruling as objectifying; ad here
Cutlery colonialism corrected November 2022
Lufthansa case (SW) November 2022
EU green claims regulation December 2022
Ro's update on 2022 decisions Jan 2023
Net zero claim misleading. Feb 21, 2023
More from Advokatfirman Lindahl April 11
Proposal for Green Claims Directive. March 22, 2023
Proposed fossil fuel ad ban March 2023 (SW)
Motion linked above; Ro commentary here (SW)
Controlled advertising in Sweden. Wistrand/ Lex
Use of superlatives. Vinge/ Lex July 10, 2023
1.1 Million Euro fine for Profiling
Härting Rechtsanwälte/ Lex July 4, 2023
Q&A: protecting privacy & confidentiality (EN)
Advokatfirman Delphi June 30, 2023
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THE SRO’S GENERAL RULES
The Swedish Self-Regulatory Organisation (SRO) is Reklamombudsmannen (RO), more formally the Advertising Ombudsman. RO assess complaints according to rules from the International Chamber of Commerce (ICC) Advertising and Marketing Communications Code, which is linked here and here (SW), the latter of which is obviously the applicable code in Sweden. Rules are available from the linked document above; the most important are spelt out in our content section B below.
THE MARKETING ACT
The other significant influence on advertising rules in Sweden is statutory: the Marketing Act 2008:486 (EN), which in Sweden provides the cornerstone of communications legislation, provides rules from the Unfair Commercial Practices Directive 2005/29/EC. The Act also transposes other European marketing/ privacy legislation such as Directive 2000/31/EC on information society services (e-Commerce), and Directive 2002/58/EC on the protection of privacy in electronic communications, meaning that a number of European marketing eggs are in a single Swedish basket. There's a helpful Q&A on misleading advertising practices in Sweden from Wistrand via Lexology here (EN; March 2023) and Prohibited and controlled advertising in Sweden from Wistrand here (EN; also March, 2023). Relevant rules are shown in our content section B and channel section C below, as applicable. The transposition of Directive 2019/2161 (the 'Omnibus Directive') introduces new rules into the Marketing Act and the Price Information Act, amongst others less relevant to this database. The government's bill here (SW) amends the Price Information act under Article 2.2 for promotional pricing rules and the Marketing Act under 2.4 for criteria in search rankings and the legitimacy of consumer reviews (sections 12b and 12c respectively). Transposition is faithful to the Directive.
APPLYING THE RULES
Day-to-day application of the rules is by RO, per the normal self-regulatory process. However, there is an additional procedure in Sweden: if the case arouses the interest of the Swedish Consumer Agency, a significant influence in marketing regulation, adjudication is via the Patent and Market Courts. A complaint can be taken to court by the Consumer Agency as well as by competitors or a group of consumers/ traders/ workers. For some perspective, here are The Market Court's decisions from 2000 to 31 August 2016; these are in Swedish, but there's a translation facility on the site which provides the gist. The Consumer Agency publishes a number of guidance papers in marketing and advertising; some of these are shown in our content and channel sections below. The general advertising and promotional environment in Sweden is somewhat restrictive and conservative.
NATIVE AND INFLUENCER
The ICC’s Guidance on Native Advertising (EN) is based on the ICC Code itself, drawing on articles 7 and 8 (Identification and Identity), B1 and C1 (Sponsorship and Digital communications respectively). Clauses from the guidance are set out in full in channel section C. The Marketing Act’s (EN) Section 9 similarly requires clarity that advertising is advertising: ‘All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing’. In May 2016, the Nordic Consumer Ombudsmen jointly published their ‘Position on Hidden Marketing’ (SW / EN), and the Swedish representative also publishes Guidance on Marketing in Social Media (SW / EN) video here (SW), which covers Influencers primarily, requiring that influencer posts are very clear that they are paid for - the likes of 'in collaboration with' don't cut it. See below and our channel section C for more.
Two key cases
The first case in Swedish courts about ad identification in social media - the ‘Kissie case’ re a well-known Swedish blogger and influencer Alexandra Nilsson - is linked here in Swedish; English commentary here from Lexology. According to RO, the court set a high standard, in line with RO's decisions. Among the rulings are that it must be clear when a post has been paid for and the identification itself must also be clear - i.e. its position within the post/ blog must be prominent. See pps 42 and 43 of the linked case, unofficially translated here. This case is likely to result in new rules being issued, probably by the Consumer Agency. A second significant case regarding Influencer posts on behalf of an eyewear company, and whether all posts versus contracted posts qualify as marketing communications, is here courtesy of AWA/ Lex.
ENVIRONMENT
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here
Helpful summary and commentary here from GALA/Lex also March 22
Proposed fossil fuel ad ban March 2023 (SW). Parliamentary motion from Social Democrats referred Dec 2022
Swedish Court forbids “net-zero” claims based on climate compensation. Bird&Bird LLP/ Lex Feb 21, 2023
Lufthansa case (SW) November 2022 re carbon offsetting
This is, as you might imagine, a high profile issue in Sweden. Guidance on environmental claims in advertising is from the Swedish Consumer Agency (link is to the relevant section in Google English; translated properly in our content section B under point 2.3); the guidance draws on the principles within Chapter D - Environmental claims in marcoms - of the ICC Code. Also providing guidance is The ICC framework for responsible environmental marcoms (November 2021, in Swedish here and commentary from Ro newsletter here), which includes an environmental claims checklist under Appendix I. The Nordic Consumer Ombudsmen 'Use of Ethical and Environmental-related Claims in marketing' is here in Swedish and translated here. The definitive guidance at the EU level is the December 2021 Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive; section 4.1.1 for environmental claims. The Ro newsletter of October 2021 included this brief review of 'greenwashing' (SW) together with some recent cases and in December 2021 an Innocent juice case (SW) was published: complaint upheld because of insufficient evidence of the environmental benefits shown in the commercial, an English version of which is here (the commercial is now removed; this pressure group video includes what appears to be a large part of it). There is a detailed segment on environmental claims in our following content section B. The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.
PRICING
Generic pricing rules applicable to all advertising are from the Marketing Act (EN) in Sections 10 and 12 and the Price Information Act - English translation here - which requires the trader to provide accurate and clear pricing information on products; in particular Sections 7-10 must be observed when marketing a product with a stated price, also as per Section 2, the Swedish Consumer Agency’s regulations on price information KOVFS 2012:1, guidance here (links are to the Swedish originals; details and translations where required are in our later Content Section B). The Marketing Act Section 12, which transposes the pricing elements of the Unfair Commercial Practices Directive 2005/29/EC, deals with the rules when communicating an ‘Invitation to Purchase’. Again, details in Content Section B. The European position provides amendments from the Directive 2019/2161, which established in the Product Pricing Directive 98/6/EC a new article 6a which sets out provisions for reduced/ promotional pricing. Transposition in Sweden is via the government bill here (SW) under article 2.2. Commission guidance for the application of the article is here.
CHILDREN
There’s a common perception that advertising to children is entirely prohibited in Sweden. Not the case, though it is a particularly sensitive issue that should be treated with some care. Clearly, children are protected from sectors that they are not permitted to use, such as alcohol (advertising is prohibited to those under the age of 25), or gambling which may not be aimed at under 18s. Meanwhile, the rules for all product sectors are that advertising on television may not appeal to children under 12, according to The Radio and TV Act 2010:696 (EN unamended version, SW amended version here). A separate rule from the Marketing Act Section 7, applicable in all media, requires that advertising may not exhort those under the age of 18 to buy advertised products or persuade their parents or other adults to buy advertised products for them. The Swedish Consumer Agency’s Guidance on marketing aimed at children and young people is an important influence in this context. A document that shows the original Swedish with a translation is here. The rules on communicating to children are covered in depth in a separate sector available from the home page of this website.
STEREOTYPING
Gender portrayal in Sweden is highly sensitive and subject to special criteria. The ICC Code article 2 (part): ‘Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation’ is supplemented by RO with further criteria under three topics (original Swedish here):
- Advertising that objectifies: advertising that portrays people as sex objects, for example via clothing, pose and context, in a way that can be considered to be degrading. What is considered to be degrading is influenced, among other things, by whether the person has a connection to the product and how and where the advertising has been shown;
- Stereotyping in advertising: advertising that portrays people in stereotypical gender roles and which can be considered to describe or convey a degrading presentation of women or men;
- Advertising that is degrading in any other way and therefore is obviously gender discriminatory.
There’s an example case here (SW) re the Suit Supply company. The ad is here.
See also the Sambla loans case re 'older craftsmen' here; commercial here
CHANNEL RULES
As well as what you can say, there are rules for where you can say it, to whom, and when, and the information that must by law be included in, for example, some electronic communications. These rules apply to all products. Our Channel Section B sets them out by medium; this para is a brief summary with links to the regulations and guidance documents.
As above under the Children sub-head, the Radio and TV Act 2010:696 (EN) prohibits appeal to children ('Advertising ……may not aim to capture the attention of children under the age of twelve’), and sets out other rules on advertising, sponsorship and product placement in broadcasting, in line with the AVMS Directive 2010/13/EU. Directive 2018/1808 extends the scope of the AVMSD to e.g. video-sharing platforms; the Swedish transposition 2020:875 of this is here. Consent and Information rules in the use of cookies and electronic communications is regulated by Sections 19-21 of the Marketing Act (EN) and the Electronic Communications Act ECA - law No. 2003:389 (EN), implementing the E-Privacy Directive 2002/58/EC. The Act on Electronic Commerce 2002:562 (SW) implemented the E-commerce Directive 2000/31/EC, which requires that ‘Information Society services’ provide certain information - details in our Channel Section C, or see the linked document. The Swedish Consumer Agency publish a number of advertising guidelines, the most significant of which in this context is their Guidance on Marketing In Social Media (SW / EN), also linked earlier. Details in Channel Section C with other rules on, for example, Native advertising and Marketers' own websites.
GDPR
Privacy issues should be reviewed with specialist advisors
1.1 Million Euro fine for Profiling. Härting Rechtsanwälte/ Lex July 4, 2023
The General Data Protection Regulation 2016/679 (GDPR) applied directly in all EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. The European Commission page on GDPR is here. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and should have been transposed into member states’ legislation by 6 May 2018. Nationally, the former Personal Data Act 1998:204 is repealed, and replaced by Law 2018:218 (SW), which ’complements’ the GDPR with some supplementary provisions. Personal data processing issues occur across multiple channels, and in each case lawful processing rules from the GDPR may apply. The Swedish Authority for Privacy Protection is Integritetsskyddsmyndigheten (IMY); the article linked above suggests some flexing of muscles. See our section C for more information on rules by channel.
International
SECTION A OVERVIEW
Overspill links here (to follow)
General
Digital Services Act takes effect for large online platforms. Aug 25, 2023. EASA update Sept
EASA Influencer Disclosure pan-Europe July 2023
Council adopts new rules on markets in crypto-assets (MiCA). 16 May, 2023
The ICLG Consumer Protection Report 2023. 17 jurisdictions
What's Going on With Self-Regulation Globally? Frankfurt Kurnit Klein & Selz PC/ Lex
Environmental
Greenwashing - existing toolkit, EU developments and the role of trade marks
Freshfields Bruckhaus Deringer/ Lex. August 30, 2023
ICLG's Consumer Protection Laws and Regulations. Published April 2023, posted later
Jurisdictions inc. UK, France, Germany and Italy applying consumer protection law to environmental claims
ESG Laws Across the World. Squire Patton Boggs July 3, 2023
Proposal for a Directive on Green Claims. March 22, 2023
EC press release on the above here, GALA here, Status The parliamentary committees ENVI and IMCO are jointly in charge of the report on this draft directive. The report is to be tabled before 6th-7th November – date of the committee session where it will be discussedSeptember 20, 2023
Proposal for a Directive on empowering consumers for the green transition
Above March 30, 2022. Will impact UCPD. Status Sept 2023. Cooley Sept 22, 2023
Claims based on carbon offsetting. Slaughter & May/ Lex July 13, 2023
AI
The state of AI regulation in the UK and EU.
Penningtons Manches Cooper August 3, 2023
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
Mark Scott Politico: a global AI rulebook and digital policy making data rules. 20th April, 2023*
Data/ privacy
The role of data for competition in online advertising. Hausfeld LLP/ Lex. Sept 15, 2023*
TikTok fined €345 million by Irish DPC. Burges Salmon/ Lex Sept 20, 2023
European Union: Targeted advertising on social networks: Is consent mandatory?
Haas Avocats September 19, 2023 (EN)
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023. Connected with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
The Data Act - Unlocking the EU's Data Economy. William Fry August 4, 2023
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
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
From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
* Recommended read
Advertising, Media and Brands Global Compliance Challenges
Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA
Top 10 issues for 2023 GALA/ Lex. Feb 23 2023. U.S., global
Top 10 Advertising and Marketing Issues for 2023
Global, USA. Davis & Gilbert/ Lex January 24, 2023
Marketing & advertising tips, traps and trends for 2023
Canada and EU. Smart & Biggar/ Lex Jan 2023
December 2022: ICAS publishes 2021 Factbook and Global SRO Database
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
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
DLA Piper's Data Protection Laws of the World Handbook 2023 edition
2023 Top Privacy Issues: New Laws & Expanded Enforcement. GALA/ Lex Jan 2023. U.S. & EU
Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively
1.1 The ICC Code
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
- Article 18 of the General Provisions of the ICC Code covers children and teens at some length. Additionally, article C7 from the chapter Digital Marketing Communications addresses marketing communications and children
- Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020)
- On the home page of this website, you'll find a complete Children's sector with the rules spelt out country by country
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.
European Regulations and Directives
| 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:
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| Electronic coms. Consent and Information |
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13
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E-commerce; related electronic communications
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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
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| 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
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| 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.
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Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
B. Content Rules
Sector
SECTION B
This section is longer than most. To help navigate it, some of the text is 'anchored' and linked to respective headings immediately below
2. CONSUMER AGENCY GUIDELINES (CAG)
4. ALCOHOL ADVERTISING RECOMMENDATIONS
4.4. Alcoholic light drinks
5. ICC FRAMEWORK FOR RESPONSIBLE MARKETING COMMUNICATIONS OF ALCOHOL
1. THE ALCOHOL ACT
The core clauses of the Act, i.e. in this context those that relate to marcoms, are translated here. We have set out immediately below only the key clause, as the Act is spelt out and interpreted/ complemented below by the Consumer Agency Guidelines (CAG). Particular moderation must be observed when marketing alcoholic beverages to consumers. Advertising or other marketing measures may not be insistent or intrusive or encourage the use of alcohol. Marketing may not be particularly directed at or portray children or young people under the age of 25 (Chapter 7, Section 1)
Adjudication
An adjudication (SW) in the case of the Consumer Ombudsman (KO) against Berntson Brands AB (Jägermeister), with regard to the interpretation of ‘particular moderation’, ruled against the use of ‘a fire show’ in Gothenburg but allowed Jägermeister branded ‘banners, cars and car roof boxes’. The Court held that the use of the banners complied with the requirement of ‘particular moderation’. The same conclusion was drawn in relation to the use of the branded cars and car roof boxes since they were not considered to be intrusive, or seek to encourage consumption. The Consumer Ombudsman (the plaintiff) failed to provide any research showing that a ban on branded cars would discourage misuse
2. CONSUMER AGENCY GUIDELINES
2.1 Marketing Content and Design
From Section 2 of CAG (EN)
- 2.1 In accordance with the Alcohol Act, particular moderation must be observed in all marketing of alcoholic beverages to consumers. Advertising and other marketing measures may not be insistent, intrusive, or encourage the use of alcohol
- 2.2 The requirement for the use of particular moderation includes all marketing aimed at consumers, including the selection of media, packaging and labeling, the content and design of the advertising, as well as specific marketing methods
- 2.3 In accordance with the Alcohol Act, marketing may not be directed towards or depict children or young people who have not yet reached the age of 25
- The assessment of whether marketing is designed in such a way as to attract children or young people should be based on an overall review. This means that the actual products being marketed, the manufacturer’s presentation as a whole, and the context in which the marketing occurs should be taken into consideration. Symbols or scenarios that can be connected especially with, or which attract children or young people under the age of 25, may not be used
Alcohol marketing, except ‘passive’ selling of alcoholic beverages, should only occur in events, such as festivals, where the target group or at least 70% of participants are expected to be over 25 years old
- 2.4 Persuasive or particularly active marketing is deemed to encourage the use of alcohol and is not permitted
- 2.5 Marketing should not attract particular attention. The extent of the marketing, the typography, layout, size and location of the marketing shall be assessed according to the degree of moderation
- Marketing that constitutes a dominant element in the environment, such as an eye-catching poster or extensive product exposure, is not permitted
- 2.6 Marketing should be limited to relevant facts regarding the product and its characteristics, presented in as objective form as possible without undue elements that are unrelated to alcoholic beverages. Marketing should avoid acting on emotions or moods
- 2.7 Marketing should not be associated with situations such as driving, sports, violent situations, weapons, drugs, pregnancy, school, or work where, according to generally accepted opinion, alcohol consumption should not occur. This applies to the design of the marketing as well as the context in which it occurs
- 2.8 Marketing should not imply or give the impression that alcohol consumption improves physical or mental ability, furthers educational or social, sexual and professional success or resolves issues such as loneliness or sadness
- 2.9 Alcohol consumption and alcoholic beverages should not be presented as being of particular importance in connection with festivals or seasons
2.2 Presentation in text specifically
- 2.10 Production in text shall comply with the requirements of the Swedish law on particular moderation. Value statements, which are irrelevant in the objective presentation of relevant facts relating to the product, are not consistent with the requirement for particular moderation. Text should focus on informing about the product, for example by indicating origin, raw materials, properties, usage or description of taste
- Grades and awards stated in other than text form may be consistent with the requirement of particular moderation depending on, inter alia, the nature of the grades or distinctions and how they are presented
2.3 Presentation of images specifically
- 2.11 In accordance with the Alcohol Act, commercial advertising may only include reproduction of:
- The product or raw materials in the product
- Individual packs, or
- The trademark or equivalent marks
The above applies to commercial advertising in all media
- 2.12. Images on packaging or labels, for example, may have content other than those specified in 2.11, provided that the image meets the requirement of particular moderation
2.4 Advertising in periodical publications etc.
From Section 3 of CAG
- 3.1 In accordance with the Alcohol Act, it is prohibited to use newspaper advertisements in the marketing of alcoholic beverages that contain more than 15% alcohol by volume
- Publications that are only provided at the point of sale of alcoholic beverages that contain over 15% by volume alcohol may, however, contain press advertisements for such beverages under the Swedish Alcohol Act. It should be possible for such a publication to be sent to a consumer after the consumer has expressly ordered it. The order should state that the consumer is aware that the publication contains such press advertisements
- 3.2 Under the Swedish Alcohol Act, an advertisement may not be bigger than 2,100 column millimetres (tabloid format). The advertisement must also clearly indicate the alcohol content of the beverage marketed but may not present a high alcohol content as a positive feature
- 3.3 According to the Alcohol Act, the advertisement may not conflict with good practice via the context in which it occurs. The advertising technique must not mislead the consumer. An advertisement must not contain false or deceptive information on alcohol, alcohol consumption or the effects or other properties of alcohol. In addition, an advertisement may not conflict with good practice via the context in which it occurs
2.5 Alcohol Information texts
- 3.4 In accordance with the Swedish Alcohol Act, press advertisements must reproduce an information text on the harmful effects of alcohol. The texts to be used, as well as their format, are stated in the Alcohol Ordinance (2010:1636). Note – these are separately provided under point 3. HEALTH MESSAGES below
2.6 Marketing on the Internet
From Section 4 of CAG
- When marketing on the Internet, Section 2 should be observed as regards both the technical design and the content of the advertisement. Marketing on the Internet also means marketing in social media, apps and the like
- The website's homepage should clearly state if it includes the marketing of alcoholic beverages. On the pages containing such marketing, the applicable age limit for the purchase of those marketed beverages should also be clearly stated
- Advertising designed to attract particular attention, such as pop-ups, may not be used
- Advertisements on websites that are to be regarded as a supplement to a periodical publication under the Swedish Freedom of the Press Act ('online edition') should be designed in accordance with the regulations on advertisements in periodical publications; see section 3 (point 2.5 above)
- Other stipulations for Internet marketing, such as age-checking, are placed under the Channel Section C that follows
2.7 Risk of confusion in the marketing of light alcoholic beverages (<2.25 % ABV) and alcoholic beverages
- 8.1 In accordance with the Alcohol Act, the marketing of alcoholic light beverages in a commercial advertisement must be such that it cannot be mistaken for marketing of alcoholic beverages. However, this does not apply when the marketing of alcoholic beverages that contain no more than 15% by volume alcohol is permitted
- The marketing of alcoholic beverages containing no more than 15% by volume of alcohol may not be designed in such a way that it can be confused with beverages with a higher ABV, in accordance with the Alcohol Act
- Although alcoholic strength should always be stated in marketing, such a task should not in itself be sufficient to prevent the risk of confusion. Instead, the determining factor should be that the content and design of the marketing, when briefly looked at, does not produce associations with beverages with high alcohol contents
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3. HEALTH MESSAGES
The following information texts shall be used in advertisements in the cases referred to in Chapter 7, Section 7 of the Swedish Alcohol Act 2010:1622 (SW) (EN)
The information texts outlined below can be found in Section 13 of The Ordinance 2010:1636. The ordinance contains regulations that are linked to/ annexed to the Alcohol Act (2010: 1622).
- Alkohol kan skada din hälsa (Alcohol can harm your health)
- Alkohol är beroendeframkallande (Alcohol is addictive)
- Alkohol kan orsaka nerv- och hjärnskador (Alcohol can cause damage to nerves and the brain)
- Alkohol kan orsaka skador på lever och bukspottskörtel (Alcohol can cause damage to the liver and pancreas)
- Alkohol kan orsaka hjärnblödning och cancer (Alcohol can cause cerebral haemorrhage and cancer)
- Varannan förare som omkommer i singelolyckor i trafiken är alkoholpåverkad (Half of drivers who die in road traffic accidents involving just one vehicle are under the influence of alcohol)
- Hälften av alla som drunknar har alkohol i blodet (Half of all people who drown have alcohol in their blood)
- Alkohol i samband med arbete ökar risken för olyckor (Alcohol at work increases the risk of accidents)
- Alkoholkonsumtion under graviditeten kan skada barnet (Alcohol consumption during pregnancy can damage the child)
- Barn som får alkohol hemma dricker sig berusade oftare än andra barn (Children who are given alcohol at home drink to intoxication more frequently than other children)
- Att börja dricka i tidig ålder ökar risken för alkoholproblem (Starting to drink at an early age increases the risk of alcohol problems)
3.1. Formatting of Health Messages
The information text referred to above shall be:
- Printed in bold Helvetica font
- Printed with a font size that means that the text covers the greatest possible proportion of the area reserved for it
- Reproduced in black ink on a white background
- Centred in the area in which the text is printed
- Surrounded by a black frame that does not infringe on the area reserved for the information text
- Placed horizontally and such that it is easy to read and
- Cover at least 20% of the area of the advertisement
If advertising is repeated, the various information texts must be used alternately and, if possible, with equal frequency (Alcohol Act, Section 7)
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4. ALCOHOL ADVERTISING RECOMMENDATIONS (AAR)
These recommendations, from the Association of Swedish Advertisers and Alcohol Trade Industry associations, echo both the Alcohol Act and the Consumer Agency Guidelines, but provide also some valuable additional commentary. We have not shown those clauses that directly overlap with the Alcohol Act and CAG, and many of the recommendations anyway apply to channel and are therefore shown in Section C. The clauses that are shown below are from the 2018 version of the Recommendations, which have been unofficially translated
4.1 Communication in text
(Section 3.2. AAR)
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The marketing of alcoholic beverages should be focused on providing factual and informative elements and give a balanced and valid presentation of the marketed product. This means that communication in the form of e.g. details of the product price, origin, raw materials, use with food that conventionally suits, is compatible with the moderation requirement
Comment: Alcoholic beverages may be placed in a context as long as it is a responsible one
- This means that alcoholic beverages can be part of a meal without it being a necessary accessory. Information such as recipes for suitable dishes should be considered permissible as well as e.g. drinks recipes
- Direct consumer calls-to-action are not compatible with the moderation requirement
- Negative communication such as a play on emotions and mood risk transgressing the requirement of moderation
Comment: Meaning e.g. to give alcoholic drinks as a gift for a holiday or to “celebrate love” through alcohol consumption
- Value statements, assessments and certificates must be used with caution and in accordance with the Marketing Act and with the ICC advertising rules. Information from Reviewers should be meaningful, balanced and up to date
Comment: Information about how others rated a product, e.g. descriptions, reviews or grades, is for many people relevant and important knowledge in the choice of a product. However, it is important that these reviews are designed responsibly if they are to be used in marketing
- Marketing must not, by its design, be associated with situations when according to generally accepted opinion, alcohol consumption should not occur e.g. sports (exercise as well as spectator), work, pregnancy or traffic (driving a vehicle that the average consumer might normally be considered to be driving)
Comment: The rule aims to prevent marketing being linked to the consumption of alcohol in the workplace, in connection with driving a car, or during pregnancy
- Marketing must not claim or give the impression that alcohol consumption increases physical or mental ability, promotes social or sexual success or resolves problems such as loneliness or sadness
- Alcohol consumption should not be made out to be of particular importance during holidays or seasons or that it otherwise enhances an experience
Comment: It may be communicated that alcoholic drinks are suitable for e.g. Christmas food but it must not be stated that alcohol consumption e.g. "puts gold on the Christmas table". Descriptions such as Christmas aquavit, October party beers, Easter beers etc. are permitted. It should not be conveyed that alcohol consumption is associated / has a natural connection with a certain season (e.g. Spring and consumption of rosé wine)
4.2. Communication in visuals
(Section 3.3. AAR)
- According to the Alcohol Act, images in commercial advertising for alcohol may only show an item or commodities included in the product, the individual packaging or the brand or similar feature. This applies to all types of commercial advertising for alcoholic beverages of any medium covered
4.3. Designation of Origin etc.
(Section 3.4. AAR)
- According to the Alcohol Act, the use of incorrect or misleading designations of origin by which the beverage directly or indirectly is stated to be manufactured in a region of a foreign state is prohibited. This is the case even if the true origin is stated, or if the term is used only in translation or accompanied by terms such as species, variety, type, replication or similar expression. The provision was created because of Sweden's international obligations in trade and is primarily aimed at countering unfair competition
- In accordance with good business practice, geographical indications of origin on alcoholic beverages must always be reserved for the original products and cannot be assigned to others. An alcoholic beverage should not be described as "genuine" as it risks diminishing confidence in designations of origin or labeling in general. Also, it is not compatible with good business practice to use another product's good commercial reputation without permission
- Comment: The starting point is that the marketed product should be able to stand on its own legs. It is therefore not allowed to write e.g. mini-Amarone or that in advertising for another product state that the manufacturer also does e.g. and Amarone. However, there is no obstacle to two different products appearing in the same advertisement and that they are described as e.g. Amarone and Ripasso respectively
4.4. Marketing of alcoholic light drinks
(Section 5.1. AAR)
- According to the Alcohol Act, marketing in commercial advertising aimed at consumers and relating to alcoholic light drinks must not be confused with the marketing of alcoholic beverages. This means that the ad must be labeled so that it clearly indicates which product is being marketed. An indication of the alcoholic strength is not in itself sufficient to ensure that there is no likelihood of confusion
- Therefore, in all advertising, the alcoholic content of the beverage and, for example, the name light beer, class I, or light cider must appear at least once and in such a form that the whole message can easily be read / perceived. The trademark, in the case of a spoken message or a message in the form of a song/ jingle, must be immediately followed by clarification that an alcoholic light drink is being referred to, by stating the name, for example the drink's alcohol content, the name low-alcohol beer, class I, low-alcohol cider or light drink
- Advertising must not include a disparaging assessment of alcohol-free drinks
4.5. Prohibition of confusion between Alcoholic Beverages
(Section 5.2 AAR)
- The Alcohol Act contains a ban on confusion in the marketing of alcoholic beverages below 15% ABV and alcoholic beverages containing more than 15% ABV. This means that the ad must be labeled so that it is clearly stated which product it is that is being marketed. If these are different types of products (e.g. vodka / rum and mixed drinks), the likelihood of confusion is reduced. If the products also have, in whole or in part, different names then there should normally be no likelihood of confusion - especially if there are alcohol content or other clarifications such as e.g. product description
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5. ICC FRAMEWORK FOR RESPONSIBLE MARKETING COMMUNICATIONS OF ALCOHOL
The ICC Framework for responsible marketing communications of alcohol ‘helps to interpret the fundamental global standards of the ICC Advertising and Marketing Communications Code to offer more specific guidance on issues unique to this sector.’ The Framework is linked here as much for the record as for practical application as the specific national rules are applicable and clearly more aggressive and prescriptive.
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6. ADJUDICATIONS
Below are brief references to three cases under the auspices of the forerunner to the Patent and Market Courts (EN), from proceedings brought by the Consumer Agency KO.
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Advertiser/ Case
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KO versus Berntson Brands AB
|
| Issue |
The company Berntson Brands AB marketed the German alcohol brand Jaegermeister, by performing a fire show in Gothenburg and using banners, cars and car roof boxes marked with the Jaegermeister brand. |
| Ruling |
The Market Court held that the fire show transgressed the ‘particular moderation’ requirement and the company was therefore prohibited from using such marketing methods. However, the Consumer Ombudsman was unsuccessful in showing that the banners would have constituted a dominating element or been intrusive. Therefore, the Court held that the use of the banners complied with the requirement of ‘particular moderation’. The same conclusion was drawn in relation to the use of the branded cars and car roof boxes since they were not considered to be intrusive, or seek to encourage consumption (Roschier blog) |
| Link (SW) |
http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2014-4.pdf
|
|
Advertiser/ Case
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KO versus The Wine Company Hawesko GmbH |
| Issue |
KO had been made aware of unsolicited direct mail advertising to consumers. They regarded the marketing method as incompatible with the requirements of the Alcohol Act on particular moderation. TWC (subsidiary) did not share that opinion and claimed that the alleged marketing was designed in accordance with the Alcohol Advertising Recommendations (from the trade association inspectorate AGM, referenced in our text above) |
| Ruling |
Marketing in this way is not necessarily in conflict with the requirement of particular moderation. Neither the letter nor the information on the wines provided, which is limited to information on the names of the wines, geographical origin, producers and prices, and, in the case of certain wines, a customary description of the nature of the wine and the indication of the food that the wine may suit In this context, it is considered to have contributed to maintaining or increasing consumption of alcohol or contributing to the use of these goods in a manner incompatible with public health protection. The court finds against KO and orders TWC costs are paid |
| Link (SW) |
http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2015-7.pdf
|
| Advertiser/ Case |
KO versus Spendrups Bryggeriaktiebolag
|
| Issue |
Spendrups, which brews Heineken under license, offered buyers of a six pack Heineken beer to get a DVD with movie sequences from the Champions League, i.e. a ‘combination offer’ |
| Ruling |
According to the Market Court, Combination offers do not automatically mean that marketing is in violation of the Alcohol Act. An assessment must instead be made in the context of whether the individual offer meets the particular moderation requirement of the Alcohol Act. The offer connects alcohol with sports, promoting the idea of drinking beer while watching sport. The slogan Spendrups used as well as the illustration of a beer can in the light of a stylised football further reinforce this connection in an immoderate manner. The Court finds against Spendrups. |
| Link (SW) |
http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2011-5.pdf
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General
SECTION B CONTENT RULES
-
GENERAL RULES
1.1. The ICC Code of Advertising and Marketing Communication Practice (ICC Code)
2.1. Chapter D, ICC Code of Advertising and Marketing Communication Practice
2.2. ICC framework for responsible environmental marketing communications
2.3. Guidance from the Swedish Consumer Agency
2.4. Nordic Ombudsmen Guidance
2.5. European Commission Guidance
3.1. Marketing Act 2008:486 Sections 10 and 12
3.2. The Price Information Act
3.3. Section 2, Swedish Consumer Agency’s regulations on price information
3.4. The Competition Act (2008:579)
3.5. The ICC Code of Advertising and Marketing Communication Practice
1. GENERAL RULES
Key extracts from the ICC Code (EN) that applies in Sweden to all product categories are below
Basic Principles (Art. 1)
- All marketing communications should be legal, decent, honest and truthful
- All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
- No communication should be such as to impair public confidence in marketing
Social responsibility (Art. 2)
- Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
- Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
- Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
- Marketing communications should not play on superstition
Decency (Art. 3)
- Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned
Honesty (Art. 4)
- Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
- Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account
Truthfulness (Art. 5)
- Marketing communications should be truthful and not misleading
- Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
- Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
- The value of the product and the total price to be paid by the consumer
- Terms for delivery, exchange, return, repair and maintenance
- Terms of guarantee
- Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
- Compliance with standards
- Official recognition or approval, awards such as medals, prizes and diplomas
- The extent of benefits for charitable causes
Substantiation (Art. 6)
- Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Such substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code
Identification and transparency (Art. 7)
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
Identity of the Marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty
- The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called ‘teaser’ advertisements)
Comparisons (Art. 11)
- Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected
Denigration (Art. 12)
- Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule
Testimonials (Art.13)
- Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant. Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used
Portrayal or imitation of persons and references to personal property (Art.14)
- Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved
Exploitation of goodwill (Art.15)
- Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution. Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent
Imitation (Art. 16)
- Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects
- Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time
Other main articles from the General Provisions of the Code are:
9. Use of technical/ scientific data and terminology
10. Use of free and guarantee
17. Safety and Health
18. Children and young people
19. Data protection and privacy
20. Transparency on cost of communication
21. Unsolicited products and undisclosed costs
22. Environmental behaviour
Chapters from the Code are:
Chapter A: Sales Promotion
Chapter B: Sponsorship
Chapter C: Direct Marketing and Digital Marketing Communications
Chapter D: Environmental Claims in Marketing Communications
Where the rules are channel-related, they are shown in our following Channel Section C
The translation above does not include amends to the Marketing Act brought about by the transposition of Directive 2019/2161, delivered in a government bill here under article 2.4. The key clauses, which relate to the integrity of consumer reviews and the criteria for search rankings, do not directly impact ad content, except for new pricing provisions (2.2. in the bill) which are shown below under point 3, or in this article extracted from the Directive
Misleadingness
Section 10 of the act, which is the seminal piece of marketing/ advertising legislation in Sweden, transposing the Unfair Commercial Practices Directive 2005/29/EC, covers misleading marketing as follows:
- In the course of marketing a trader may not make any incorrect statement or other representation that is misleading with respect to the trader’s own or another person's business activity
- The first paragraph applies in particular to representations that concern:
- The product’s existence, nature, quantity, quality and other distinguishing characteristics
- The product’s origin, uses and risks such as impact on health or environment
- Customer service, processing of complaints and method and date of manufacture or supply
- The product’s price, basis for calculating the price, special price advantages and payment terms
- The qualifications, position on the market, commitments, trademarks, trade names, distinctive symbols or other rights of the trader or of another trader
- Awards or distinctions awarded to the trader
- Terms of delivery for the product
- Service needs, spare parts, exchange or repairs
- The trader’s commitment to comply with codes of conduct, and
- The consumer’s rights under law or other regulation
- A trader may not omit material information when marketing his own or another person's business activity. Misleading omission also refers to cases where the material information is provided in an unclear, incomprehensible, ambiguous or other inappropriate manner
Invitation to purchase
Finally in this coverage of general rules, if your advertising or ‘commercial communication’ constitutes an ‘invitation to purchase’ Definition ‘Indicating characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase’ Art. 2 (1) UCP Directive certain material information must be included, as transposed in the Marketing Act Section 12:
- Marketing is misleading if in a representation the trader offers consumers a specific product with a stated price without clear presentation of the following material information:
- The product’s distinguishing characteristics to the extent appropriate to the media and product
- Price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)
- The identity and geographical address of the trader
- Terms and conditions of payment, delivery, performance and processing of complaints if these deviate from normal practice in the industry or for the product in question
- Information concerning the right of withdrawal or the right to cancel a purchase which must be supplied to the consumer by law.
- Marketing is also misleading if the trader in a representation offers consumers several specific products at a common price, without the offer containing material information under points 1-5 of the first paragraph
The environment is a particularly sensitive issue in Sweden, and there are a good number of guidances and frameworks that are influential. The key rules in this context, however, are those from Chapter D of the ICC Code applicable in Sweden, and its connected ‘Framework’ (November 2021; EN). Extracts from Chapter D are below; the revised framework is a significant addition to the regulatory line-up. Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' It's in Swedish here.
2.1. Chapter D, ICC Advertising and Marketing Communications Code
Scope
This chapter applies to all marketing communications containing environmental claims, i.e. any claim in which explicit or implicit reference is made to environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature as well as via telephone or digital or electronic media such as e-mail and the internet. All are covered by this chapter. The chapter draws from national and international guidance, including, but not limited to, certain provisions of the International Standard ISO 14021 on ‘Self-declared environmental claims,’ relevant to the marketing communication context, rather than technical prescriptions. Definitions of terms are not included here but are available from the link below
http://www.g-regs.com/downloads/ICCChapterDEnvironmentalClaims2018.pdf
D1 Honest and truthful presentation
- Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge.
- Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry
- An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be re-assessed with regard to relevant developments
- Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact – or only a positive impact – on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made
- Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package
- A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling
D2 Scientific research
- Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence
- Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 6 of the Code - Use of technical/scientific data and terminology)
- An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence
D3 Superiority and comparative claims
- Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose
- Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative
- Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging
D4 Product life-cycle, components and elements
- Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life-cycle analysis
- When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement
- Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted
- Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant (See example) or background level. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code
D5 Signs and symbols
- Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as falsely to suggest official approval or third-party certification
D6 Waste handling
- Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned (or such other standard as may be defined by applicable local law). If not, the extent of availability should be accurately described
D7 Responsibility
- For this chapter, the rules on responsibility laid down in the General Provisions apply; see article 23
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2.2. ICC Framework for Responsible Environmental Marketing Communications
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
- The Swedish Consumer Agency is Konsumentverket 'KO - a government agency that exists for consumers.' Their report on Advertising With Environmental Claims (SW) summarises environmental claims activity in different sectors; the study ‘will form the basis of the Agency's supervision of the area’.
- More straightforward are the rules they publish on their website, translated in the bullet points below:
- Marketing must be responsible
- The average consumer cannot be expected to have deep technical and environmental knowledge
- The accuracy of statements must be capable of verification, especially for products that are environmentally harmful. Judgments 2004:4, 2004:12 and 2011:12, which can be found in the linked document below (borrowed from our Cars database), provide relevant rulings from the Market Court:
http://www.g-regs.com/downloads/SWBilGuidanceEnvironmentb.pdf (EN) - Only those environmental claims may be used which can be substantiated with current, evidence-based documentation
- General claims must be shown to be valid after an overall assessment of the environmental effects
- Vague and non-specific claims, such as ‘environmentally friendly’ should be avoided
- There should not be any doubt about whether the environmental claim relates to the product itself or the packaging
- Free from "irrelevant" substances claims should not be made, namely that the product lacks substances that in general have nothing to do with the product area/ field. For example, claiming that a product is 'chlorine free' must not be made where the chlorine in the product has been replaced by another equally problematic substance
- Environmental signs and symbols should only be used in marcoms where the source of those signs is clearly indicated and there is no likelihood of confusion over their meaning
2.4. Nordic Ombudsmen guidance
Guidance of the Nordic Consumer Ombudsmen; use of ethical and environmental-related claims in marketing in Swedish here:
And translated here:
http://www.g-regs.com/downloads/SWGenNordicOmbudsmenEnvironmental_.pdf
This is a fairly lengthy document so it has not been set out below. It provides some useful guidance and references if you are uncertain about what you can and can’t do when making environmental claims or statements, though the territory it covers is based on the ICC Code and the Marketing Act. The Guidance makes the point as follows:
- 2.1. Special requirements regarding marketing or product characteristics, labeling or the like may be determined by special legislation. This may concern, for example, environmental legislation, legislation on chemical products, ecologically produced products, foodstuffs etc. If so, special legislation applies. This guidance applies only to the assessment that may be made in accordance with the Marketing Act
2.5. European Commission/ MDEC guidance
- The Market Court has referenced: Environmental Claims. Report from the Multi-Stakeholder Dialogue. The Report was presented at the European Consumer Summit 18-19 March 2013
- Also relevant, and presumably a follow-up, albeit not a formal interpretation of community law, is the Compliance Criteria on Environmental Claims (2016) from the 'Multi-stakeholder Dialogue on Environmental claims.'
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Definitive Commission guidance is from Section 4.1.1. Environmental claims from the December 2021 Commission Guidance on application of the UCPD
Developments at a European level are that Directive 2019/2161 amends to the Product Pricing Directive 98/6/EC are in the form of a new article 6a that provides rules for price reduction announcements, including those in advertising. Transpositions in Sweden are in the March 2022 government bill here (SW) under article 2.2, entry into force July 1. Commission guidance (from 2021) on the application of article 6a is here
Generic pricing rules applicable to all advertising:
3.1 Marketing Act 2008:486 Sections 10 and 12 of the Act
- Section 10: In the course of marketing a trader may not make any incorrect statement or other representation that is misleading with respect to the trader’s own or another person's business activity - applies in particular to representations which concern 4) the product’s price, basis for calculating the price, special price advantages and payment terms
- Section 12: Marketing is misleading if in a representation the trader offers consumers a specific product with a stated price without clear presentation of the following material information: 2. price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)
- The Marketing Act also transposes under Section 8: ‘Misleading marketing as specified in points 1-23 of Annex I to Directive 2005/29/EC are always to be regarded as unfair.’ Points 5 and 6 of the Annex referenced are as follows:
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')
3. 2. The Price Information Act
English translation here; provisions require the trader to provide accurate and clear pricing information on products; in particular sections 7-10 must be observed when marketing a product with a stated price, as referenced in Section 12 (2) Marketing Act
- Section 7: Price information for goods shall be provided by details of the price and unit price of the goods. For products other than goods, the price information (indication) shall be provided by details of the price of the product. The Government or the authority appointed by the Government may also prescribe that unit prices shall be indicated for such products. If the price of a product cannot be indicated, the trader shall instead provide a price indication by stating the basis on which the price is determined
- Section 8: A unit price need not be indicated if, owing to the nature or purpose of the product, it may be assumed that the indication of a unit price would not be relevant or if such an indication would possibly cause confusion
- Section 9: Only a unit price needs to be indicated for goods that are not pre-packed and which are measured in the presence of the customer
- Section 10: The price information shall be correct and clear. If charges and other costs may be added, this shall be indicated specially. The price information shall be provided in writing if the consumer cannot obtain the information in some other equivalent way. Price information shall be provided in such a way that it clearly indicates to the consumer the product to which the (price) information relates
3. 3 Section 2, Swedish Consumer Agency’s regulations on price information KOVFS 2012:1(SW). Guidance here (SW)
When a given product is marketed with a quoted price, the price information should be provided pursuant to §§ 7-10 Price Information Act 2004:347
3.4. The Competition Act (2008:579)
in the context of Anti-competitive cooperation between companies; agreements between undertakings shall be prohibited that directly or indirectly fix purchase or selling prices or any other trading conditions (Art. 1). Unofficial English translation of the act here
Article 10 (Sect. I of the Code) Use of ‘Free’ and ‘Guarantee: The term “free”, e.g. “free gift” or “free offer”, should be used only:
- where the offer involves no obligation whatsoever; or
- where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
- in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer
Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that. The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal.
Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not. The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous
Sales Promotions article A2
- 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
Direct marketing article C14. Prices and credit terms
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Any information needed by the consumer to understand the cost, interest and terms of any other form of credit should be provided, either in the offer or when the credit is offered
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Whether payment for the offer is on an immediate sale or instalment basis, the price and terms of payment should be clearly stated in the offer, together with the nature of any additional charges (such as postage, handling, taxes, etc.) and, whenever possible, the amount of such charges
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In the case of sales by instalment, the credit terms, including the amount of any deposit or payment on account, the number, amount and periodicity of such instalments and the total price compared with the immediate selling price, if any, should be clearly shown in the offer
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Unless the duration of the offer and the price are clearly stated in the offer, prices should be maintained for a reasonable period of time
Gender portrayal in Sweden is subject to special criteria. The ICC Code article 4 (‘Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation’) is supplemented by Ro with further criteria on three topics (original Swedish here):
- Advertising that objectifies: advertising that portrays people as sex objects, for example via clothing, pose and context, in a way that can be considered to be degrading. What is considered to be degrading is influenced, among other things, by whether the person has a connection to the product and how and where the advertising has been shown
- Stereotyping in advertising: advertising that portrays people in stereotypical gender roles and which can be considered to describe or convey a degrading presentation of women or men
- Advertising that is degrading in any other way and therefore is obviously gender discriminatory
Day-to-day application of the rules, in this case reviewing complaints, is by RO, per the normal self-regulatory process. Ro adjudicate in two ways:
- More regular or conventional cases are reviewed by experienced executives at RO
- Via the RO Jury (RON). Cases that are complicated or deal with a subject that has never been reviewed before are referred to the RO Jury (RON)
As this data is concerned with General versus sector rules, we do not set out individual cases, as there is too much ground to cover. Note, however, that there is particular sensitivity towards, and a strong lobby presence around, gender portrayal in Swedish advertising. The link below shows an example adjudication (in this case not upheld; the link is to a Swedish language website, there's a translation facility on the website which will provide the gist):
http://reklamombudsmannen.org/eng/uttalande/dominos-pizza
But in this ‘Suit Supply’ case upheld; ad here
There is an additional procedure in Sweden: if the case arouses the interest of the Swedish Consumer Agency, adjudication is via the Patent and Market Courts. For some perspective, here are The Market Court's decisions from 2000 to 31 August 2016; these are in Swedish, but there is a translation facility on the site, which should provide the gist of the decisions
International
SECTION B CONTENT RULES
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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)
- All marketing communications should be legal, decent, honest and truthful;
- All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
- No communication should be such as to impair public confidence in marketing.
Social responsibility (Art. 2)
- Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
- Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering;
- Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior;
- Marketing communications should not play on superstition.
Decency (Art. 3)
- Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
Honesty (Art. 4)
- Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
- Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
Truthfulness (Art. 5)
- Marketing communications should be truthful and not misleading;
- Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
- characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact;
- the value of the product and the total price to be paid by the consumer;
- terms for delivery, exchange, return, repair and maintenance;
- terms of guarantee;
- copyright and industrial property rights such as patents, trade marks, designs and models and trade names;
- compliance with standards;
- official recognition or approval, awards such as medals, prizes and diplomas;
- the extent of benefits for charitable causes.
Substantiation (Art. 6)
- Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code.
identification and transparency (Art. 7)
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
identity of the marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
Use of technical/ scientific data and terminology (Art. 9)
- Marketing communications should not
- misuse technical data, e.g. research results or quotations from technical and scientific publications;
- present statistics in such a way as to exaggerate the validity of a product claim;
- use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity.
Use of 'free' and 'guarantee' (Art. 10)
- The term "free", e.g. “free gift” or “free offer”, should be used only
- where the offer involves no obligation whatsoever; or
- where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
- in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer.
- Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that;
- The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal;
- Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not;
- The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous.
Comparisons (Art. 11)
- Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected.
Denigration (Art. 12)
- Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule.
Testimonials (Art. 13)
- Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
- Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used.
Portrayal or imitation of persons and references to personal property (Art. 14)
- Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved.
Exploitation of goodwill (Art. 15)
- Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution;
- Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent.
Imitation (Art. 16)
- Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects;
- Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time.
Safety and health (Art. 17)
- Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards;
- Instructions for use should include appropriate safety warnings and, where necessary, disclaimers;
- Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk;
- Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary;
- Such health and safety warnings should be made clear by the use of pictures, text or a combination of both.
- An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)
- Note that there is no equivalent 'environmental claims' section under The Law header below; authorities generally apply the UCPD's misleading actions or omissions clauses when cases come before them. Additionally, the EC guidance document linked below contains specific sustainability claims guidance under section 4.1. There are, meanwhile, a raft of measures emerging from the legislative process in the EU that we have set out in the Overview Section A
D1. Honest and truthful presentation
- Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge;
- Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry;
- An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments;
- Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made;
- Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.
D2. Scientific research
- Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence;
- Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology);
- An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence.
D3. Superiority and comparative claims
- Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose;
- Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative;
- Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging.
D4. Product life-cycle, components and elements
- Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis;
- When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement;
- Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted;
- Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code.
D5. Signs and symbols
- Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification.
D6. Waste handling
- Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described.
D7. Responsibility
- For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23).
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
- Articles 18 and 19 ICC Code; see above or here
- ICC Statement on code interpretation and ICC reference guide on advertising to children here
- ICC toolkit: Marketing and advertising to Children (2017) here
- Framework for Responsible Food and Beverage Marketing Communications here
- WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children
- For amalgamated ICC Code children’s provisions, from general provisions, data protection, and Digital Marketing Communications:
http://www.g-regs.com/downloads/ICCChildrenCollection2018.pdf
Article 18.1. General principles
- Special care should be taken in marketing communications directed to or featuring children or teens
- Such communications should not undermine positive social behaviour, lifestyles and attitudes;
- Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them;
- Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them.
For rules on data protection relating specifically to children’s personal data see article 19
For other specific rules on marketing communications with regard to children:
- with respect to direct marketing and digital marketing communications see chapter C, article C7;
- within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications.
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
- When demonstrating a product’s performance and use, marketing communications should not
- minimise the degree of skill or understate the age level generally required to assemble or operate products;
- exaggerate the true size, value, nature, durability and performance of the product;
- fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described.
- While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
- Marketing communications directed to children should be clearly distinguishable to them as such.
18.3. Avoidance of harm
- Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic.
18.4. Social values
- Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect;
- Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values;
- Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them;
- Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget;
- Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved.
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
- ICC Framework for Responsible Food and Beverage Marketing Communications here
- The EU Pledge, enhanced July 2021 effective Jan 2022
- Regulation 1924/2006 on nutrition and health claims made on foods
- Regulation 432/2012 establishing a list of permitted health claims on food
- Regulation 1169/2011 on the provision of food information to consumers
- Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
- ICC Framework for responsible marketing communications of alcohol here
- The International Alliance for Responsible Drinking (IARD) ‘Guiding Principles and Digital Guiding Principles
- In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
- World Federation of Advertisers; Responsible Marketing Pact (RMP) here
- Directive 2010/13/EU, the Audiovisual Media Services Directive (consolidated following amends from Directive 2018/1808)
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
- it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;
- it shall not link the consumption of alcohol to enhanced physical performance or to driving;
- it shall not create the impression that the consumption of alcohol contributes towards social or sexual success;
- it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
- it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
- it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
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:
- there is no prize or other equivalent benefit, or
- taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
- products supplied in the course of the provision of a service;
- sales by auction and sales of works of art and antiques.
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
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').
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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
- Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
- audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited;
- audiovisual commercial communications shall not use subliminal techniques;
- audiovisual commercial communications shall not;
- prejudice respect for human dignity;
- include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
- encourage behaviour prejudicial to health or safety;
- encourage behaviour grossly prejudicial to the protection of the environment.
- all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited;
- audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages;
- audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited;
- audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.
- 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 (see pt. 1.5 above).
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
C. Channel Rules
1. TV/Radio/VOD
Sector
- Under Section 7 (2) of the Swedish Alcohol Act, the advertising of alcoholic drinks on/ in radio or TV programmes, including such TV broadcasts via satellites covered by the Radio and TV Act 2010:696 (EN), is prohibited
- Similarly, neither Product Placement nor Sponsorship is allowed
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General
SECTION C: TV & RADIO/ AV
STANDARD RULES
- The content rules set out in section B apply; the self-regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Content rules from the Marketing Act (MA; EN) pertain in all channels; any channel rules from the MA are shown in the relevant sections below
- Commercial advertising in TV broadcasts, Teletext, and on-demand TV must not be designed to attract the attention of children under the age of 12 (Radio & TV Act RTVA; EN. Chap. 8, s. 7)
- Programmes (TV or On-demand TV) primarily aimed at children under 12 years of age must not be surrounded or interrupted by advertising (Chap. 8, ss 3 & 7). Nor may these programmes contain product placement (RTVA Chap. 6, s. 2)
- Must not feature individuals or characters who play a prominent role in children’s programmes (s.8) or people who play a prominent role in programmes that primarily involve news or news commentaries (s.9 RTVA)
The Radio and TV Act linked above is the GRS translation of the unamended act. Directive 2018/1808, which amends the AVMS Directive to extend its scope into e.g. video-sharing platforms; extract from recital 3: 'Channels or any other audiovisual services under the editorial responsibility of a provider can constitute audiovisual media services in themselves, even if they are offered on a video-sharing platform which is characterised by the absence of editorial responsibility. In such cases, it will fall to the providers with editorial responsibility to comply with Directive 2010/13/EU'. The Radio and TV Act has been duly amended and is in Swedish here. Commercial content rules are essentially unchanged; what's changed is where they are applied
PRODUCT PLACEMENT (Ch. 6 RTVA)
- Permitted only in films, TV series, sports and light entertainment programmes
- Prohibited in programmes directed at children under 12 years of age
- Must not directly encourage purchase or rental of goods or services
- Product placement must be indicated at the beginning and at the end of the programme, as well when the programme resumes after an interruption for advertising
- This indication must be a neutral notification that there is product placement and of the goods/ services which have been placed in the programme
SPONSORSHIP (Ch. 7 RTVA)
- Prohibited in news or news commentary programmes
- Must not influence editorial independence
- Must not directly encourage purchase or rental of goods or services
- The sponsored programme must show a message communicated at the beginning or end of the programme (or both) which indicates who has contributed to the financing
- The message should contain the name, logotype or other mark of the sponsor. The message may not contain sales promotion features
- If only part of a programme is sponsored, the sponsorship message should be communicated at the beginning or at the end of that part
- In every case, sponsorship messages require that the integrity and value of the programme, or the rights of the holders of rights have not been violated
- In the case of TV broadcasts, sponsorship messages can also be communicated in sports events with extended breaks
- The sponsorship identification may be communicated on a split screen (in cases referenced in ss 4-6)
RADIO (Ch. 15)
- Individuals who play a prominent role in radio broadcasts that primarily involve news or news commentaries may not appear in advertising (s.4)
Sponsorship on Radio
- Radio programmes that mainly concern the news or contain news commentary may not be sponsored (s.8)
- The media services provider of a sponsored radio programme is required to indicate who has contributed to the financing. Such a message should be communicated in an appropriate manner at the beginning and at the end of the programme or at one of these times
- The sponsorship message should not contain sales promoting features (s.10)
International
SECTION C TV/AV AND RADIO
- These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
- For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
- The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below
Article B12: Media sponsorship
- The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
- Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
- Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
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:
- Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
- Audiovisual commercial communications shall not use subliminal techniques
- Audiovisual commercial communications shall not:
- Prejudice respect for human dignity
- Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
- Encourage behaviour prejudicial to health or safety
- Encourage behaviour grossly prejudicial to the protection of the environment
- All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
shall be prohibited - Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
- Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
- Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
2. Cinema/Press/Outdoor
Sector
CINEMA
- Not permitted for alcohol brands. RO, the advertising SRO, have confirmed that marketing in cinemas is not permitted according to the general rule that particular moderation must be observed when marketing alcoholic beverages to consumers
- The fact that the word 'cinema' is not mentioned may have its background in the situation that, until 2003, all forms of alcohol advertising were banned in Sweden, but with the decision of the Swedish Market Court in the so-called 'Gourmet-case', it became permitted under certain conditions
- The Gourmet Case: Konsumentombudsmannen. v. Gourmet International Products Aktiebolag:
SW: http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom03.05.pdf
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PRINT
Press, magazines (and some print)
- 3.1 In accordance with the Alcohol Act, it is prohibited to use newspaper advertisements in the marketing of alcoholic beverages that contain more than 15% alcohol by volume
- Publications that are only provided at the point of sale of alcoholic beverages that contain over 15% by volume alcohol may, however, contain press advertisements for such beverages under the Swedish Alcohol Act. It should be possible for such a publication to be sent to a consumer after the consumer has expressly ordered it. The order should state that the consumer is aware that the publication contains such press advertisements (see also DM section)
- 3.2 Under the Swedish Alcohol Act, an advertisement may not be bigger than 2,100 column millimetres (tabloid format). The advertisement must also clearly indicate the alcohol content of the beverage marketed but may not present a high alcohol content as a positive feature
- 3.3 According to the Alcohol Act, the advertisement may not conflict with good practice via the context in which it occurs. The advertising technique must not mislead the consumer. An advertisement must not contain false or deceptive information on alcohol, alcohol consumption or the effects or other properties of alcohol. In addition, an advertisement may not conflict with good practice via the context in which it occurs
Clauses are from the Consumer Agency Guidelines
- The general content rules, i.e. those that cover all sectors, alcohol included, also apply. See the General tab below
ALCOHOL INFORMATION TEXT
Health Messages
- 3.4 Press advertisements must reproduce an information text on the harmful effects of alcohol. The texts to be used, as well as their format, are stated in the Alcohol Ordinance 2010:1636 – see below
- 2.3 Marketing may not be directed towards or depict children or young people who have not yet reached the age of 25
- Alkohol kan skada din hälsa (Alcohol can harm your health)
- Alkohol är beroendeframkallande (Alcohol is addictive)
- Alkohol kan orsaka nerv- och hjärnskador (Alcohol can cause damage to nerves and the brain)
- Alkohol kan orsaka skador på lever och bukspottskörtel (Alcohol can cause damage to the liver and pancreas)
- Alkohol kan orsaka hjärnblödning och cancer (Alcohol can cause cerebral haemorrhage and cancer)
- Varannan förare som omkommer i singelolyckor i trafiken är alkoholpåverkad (Half of drivers who die in road traffic accidents involving just one vehicle are under the influence of alcohol)
- Hälften av alla som drunknar har alkohol i blodet (Half of all people who drown have alcohol in their blood)
- Alkohol i samband med arbete ökar risken för olyckor (Alcohol at work increases the risk of accidents)
- Alkoholkonsumtion under graviditeten kan skada barnet (Alcohol consumption during pregnancy can damage the child)
- Barn som får alkohol hemma dricker sig berusade oftare än andra barn (Children who are given alcohol at home drink to intoxication more frequently than other children)
- Att börja dricka i tidig ålder ökar risken för alkoholproblem (Starting to drink at an early age increases the risk of alcohol problems)
FORMATTING OF HEALTH MESSAGES
The information text referred to above shall be:
- Printed in bold Helvetica font
- Printed with a font size that means that the text covers the greatest possible proportion of the area reserved for it
- Reproduced in black ink on a white background
- Centred in the area in which the text is printed
- Surrounded by a black frame that does not infringe on the area reserved for the information text
- Be placed horizontally and such that it is easy to read and
- Cover at least 20% of the area of the advertisement
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OUTDOOR
General clauses from CAG
- 2.5 Marketing should not attract particular attention. The extent of the marketing, the typography, layout, size and location of the marketing shall be assessed according to the degree of moderation
- Marketing that constitutes a dominant element in the environment, such as an eye-catching poster or extensive product exposure, is not permitted
Specific clauses from CAG
- 6.2 The main rule is that outdoor advertising of alcohol is incompatible with the requirement of particular moderation
- Points of sale and manufacture for alcoholic beverages, and marketing in direct connection with such points of sale/ manufacture are excluded from the concept of outdoor advertising. Direct connection should be understood as, for example, a sign, poster or the like mounted on a facade or freestanding signage placed within a few metres of the entrance
- Individual packs and trademarks or equivalent marks may appear on distribution vehicles and similar means of transport for alcoholic beverages
- Advertising in the form of trademarks for alcoholic beverages may, in certain circumstances, also occur on vehicles that are necessary for the trader’s business, and associated materials
- An overall assessment in each individual case will establish whether the use of the trademark should be allowed. The assessment should take into account, inter alia, the use of the vehicle or equipment, and the context in which the trader has an interest in using his trademarks, and in relation to Swedish public health policy
Guidance from the AAR
2.4 Outdoor advertising, advertising at sales and manufacturing sites, etc
- There is no general prohibition on outdoor advertising, but the key issue is whether the advertising is considered to be a dominant element of the environment or not. Factors that are important for the assessment are e.g. size, design, colours, location, lighting, scale or whether the marketing took place in a place where the average consumer might reasonably expect alcohol advertising
- This means that traditional outdoor advertising, such as large sites, is normally prohibited as it generally constitutes a dominant element of the environment and is then considered to be intrusive. Advertising for alcoholic beverages made at, or in connection with, manufacturing or sales locations for alcoholic beverages or visitor centres for such activities are normally permitted (unless such placement is a dominant element of the environment)
- The advertising must be placed in or in the immediate vicinity to the venue (e.g. a sign on the façade, or located a few metres from the entrance). Marketing that confronts passers-by should be somewhat more restrained
Comment: Visitor centre, alcoholic beverage manufacturing or selling point is a place where the average consumer can expect to be exposed to alcohol advertising. Advertising is also permitted on vehicles used in e.g. the sale or distribution of alcoholic beverages or otherwise within the framework of such activities. Such marketing should comply with the requirement of special moderation and in the image only reproduce the brand or individual pack(s)
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General
SECTION C: CINEMA, PRINT, OUTDOOR
CINEMA
- The Content rules in Section B above apply to the Cinema channel, except those specifific to Broadcast. While the prohibition of advertising to children applies technically to television only, according to the Self-Regulatory Organisation RO “The prohibition on advertising to children specified for TV may possibly affect the design of cinema commercials to children.”
- The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Rules from the Marketing Act (EN) also apply
Press, magazines, promotional literature, e.g. leaflets, brochures, etc.
- The Content rules in Section B above apply to Print, except those specific to Broadcast
- The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Rules from the Marketing Act (EN) also apply
OUTDOOR
- The Content rules in Section B above apply to Outdoor media, except those specific to Broadcast
- The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Rules from the Marketing Act (EN) also apply
- This story appeared in the UK trade press June 2018: Stockholm to ban sexist ads from city streets. It is not clear whether the threat to remove 'offending' posters is carried out; what is clear is that there is an aggressive attitude from the authorities towards what might be considered to be ‘sexist’ advertising
The international association for OOH advertising is the World Out Of Home organisation (WOO); membership here
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International
SECTION C: CINEMA, PRINT, OUTDOOR
Applicable Self-Regulation and legislation
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These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
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For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
- The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
- In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)
Refer to Content Section B for provisions; of particular relevance below:
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
Identity of the marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').
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
- The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
- Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
- Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
3. Online Commercial Communications
Sector
CONTEXT
This section sets out the broad rules for the online environment generally. Under later headers, more specific channels are covered e.g. email, marketers’ own websites, and OBA. As the boundaries online can be less clear, and as space online is often advertiser-owned, the identification of advertising becomes critical, as advertising is subject to the rules in owned and (some) earned space as well as paid. The definition of advertising therefore matters. The Swedish Marketing Act defines marketing as including ‘all statements, regardless of medium, that have a commercial purpose and which are subject to purely commercial circumstances.’ The ICC Code, which applies in Sweden, defines advertising as: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’
KEY RULES
- Alcohol advertising online in Sweden is heavily restricted in terms of both content and placement; principal source of rules/ guidance is the Consumer Agency Guidelines (CAG); the linked file shows the Swedish rules with an English translation
- 4.1. When marketing on the Internet, Section 2 should be observed as regards both the technical design and the content of the advertisement. Marketing on the internet also means marketing in social media, apps and the like
- 4.2. The website's homepage should clearly state if it includes the marketing of alcoholic beverages. On the pages containing such marketing, the applicable age limit for the purchase of those marketed beverages should also be clearly stated
- 4.3. Marketing should only take place on sites where the target audience or at least 70% of the visitors consist of persons over 25 years of age. Only on such websites should marketing that leads via links to websites with alcohol advertising occur. When using different ad networks and the like, it is the responsibility of the advertiser to ensure that marketing does not end up on sites other than those referenced above (see also our later header Marketers' Own Websites)
- 4.4. Websites that sell alcohol or focus primarily on alcohol promotion should check the visitor's age before he/ she is given the opportunity to access the site's content. This check should be undertaken using the most appropriate technology available
- 4.5. Paragraphs 4.2-4.4 do not cover grocery retailers' websites which, in addition to marketing for, inter alia, foodstuffs, contain marketing for beverages with an alcoholic strength of not more than 3.5% ABV
- 4.6. Advertising designed to attract particular attention, such as pop-ups, may not be used
- 4.7. Advertisements on websites that are to be regarded as a supplement to a periodical publication under the Swedish Freedom of the Press Act ('online edition') should be designed in accordance with the regulations on advertisements in periodical publications; see section 3 (see CAG; the principal issues beyond the established alcohol norm of ‘particular moderation’ are that only product under 15% ABV may be advertised, and that health messages must be included
IARD
The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers manufacturers, publish Digital Guiding Principles (DGPs) to supplement their Guiding Principles. The scope of the DGPs is “relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.” Members are here. In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
General
SECTION C: ONLINE COMMERCIAL COMMUNICATIONS
CONTEXT
This section sets out the rules for the commercial online environment. Below this, specific channels such as email, marketers’ own websites, and OBA are covered. As the boundaries online can be less clear, and as space online is often advertiser-owned, the identification of what is advertising is significant, as advertising is subject to the rules in Owned and (some) Earned space as well as Paid. The definition of advertising is therefore important: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’ Is from the applicable ICC Advertising and Marketing Communications Code
KEY RULES
- All of the Content rules set out in Section B apply online, except those specific to Broadcast
- The Self-Regulatory code on which RO bases its decisions is the ICC Advertising and Marketing Communications Code, which applies to commercial communications online. Rules from the Marketing Act (EN) also apply
- Non paid-for channels in Sweden, such as marketers’ own websites and SNS spaces, are also ‘in remit’ i.e. covered by the rules. Specifics are covered later in this section, but the principle applied in paid space also applies in unpaid or owned space: if it’s a marketing communication, it’s covered
- The key Self-Regulatory document that guides Digital Marketing Communications (DMCs) in Europe is the European Advertising Standards Alliance's (EASA) DMC Best Practice. While it is not per se binding in Sweden, it’s based on the ICC code and includes some helpful guidance on what techniques are in remit in, for example, marketers’ own websites. The guidance is also referenced in that section below; in brief, both Viral and UGC are considered to be in remit only when endorsed by the marketer
- The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; in force 1 January 2024
SOCIAL MEDIA
- The most topical issues are those to do with Social media/ Native/ Blogging. Rules/ guidance are shown under Marketers’ Own websites and Native. Meanwhile, the most important guidance for social media usage, aside from the ICC rules that apply online and are linked above, are those from the Swedish Consumer Agency. The organisation publishes a number of guidance documents which can be found here (SW). In this context, the most significant is their Guidance on Marketing in Social Media (EN). See our Section A Overview for a recent case
-
The EASA Best Practice Recommendation on Influencer Marketing is not binding, but it is helpful guidance on how European regulators should approach this rapidly developing marketing technique
- The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
E-COMMERCE
- ‘The E-commerce Act and the Distance and Off-Premise Contracts (DAL) are important laws that you should know when selling goods and services over the Internet’ (Swedish Consumer Agency; link is to relevant section)
- E-commerce guidance is also shown under Marketer’s Own Websites, and Electronic Communications; the Swedish Consumer Agency summary of requirements is here (SW); the E-commerce and Distance Contract acts are shown in our Links Section E
International
SECTION C: ONLINE COMMERCIAL COMMUNICATIONS
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
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels, online included
- The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
- Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below
- ICC Guide for Responsible Mobile Marketing Communications
- EASA Best Practice Recommendation on Digital Marketing Communications 2015
- EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments
- Directive 2002/58/EC on privacy and electronic communications
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Directive 2000/31/EC on electronic commerce
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Regulation 2016/679/EU on the processing of personal data (GDPR)
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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
- Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
- Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
- Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
- Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided
C2. Identity of the marketer
- The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
- At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
C7. Marketing communications and children
- Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
- Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
- Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
- Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children
C10. Respect for the potential sensitivities of a global audience
- Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions
Directive 2002/58/EC; Article 13
Unsolicited communications
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
- Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
* Now repealed; GDPR applies
General information to be provided
- In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
- In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
- The commercial communication shall be clearly identifiable as such
- The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
- Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
- Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
Article 7
Unsolicited commercial communication
- In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
- Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
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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
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For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
- Working Document 02/2013 providing guidance on obtaining consent for cookies here
- Opinion 15/2011 on the definition of consent here
- May 2020 Guidelines on Consent under Regulation 2016/679 here
EASA Digital Marketing Communications Best Practice Recommendation. This document:
- Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
- Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
- Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
- Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
- Identifies forms of digital content which lie outside of SRO’s remit under all circumstances
4. Cookies & OBA
Sector
COOKIES
- There are no alcohol-specific cookie rules; see rules under the General tab below for the Cookie laws that apply to all sectors, Alcohol included
- Clearly, the way in which cookies are deployed will need to pay attention to the rules that require the avoidance of U25s, and the prohibition of ‘intrusive’ commercial communications according to the Alcohol Act and the Consumer Agency Guidelines
OBA
- The Guidelines/ Recommendations linked above do not address OBA specifically; consideration might be given as to whether OBA per se might be considered to be ‘intrusive’ and therefore not permitted; it may be appropriate to consult local legal advice
- Additionally, the deployment of cookies, whether third party or otherwise, per clauses above, should obviously be mindful of the requirement to avoid U25s. Guidance in the AAR under Social Media implies the responsibility of where an advertisement is served is the responsibility of the advertiser (‘those who advertise also have a responsibility regarding how the advertisement is disseminated (5.4 AAR)
- The Content rules set out in Section B (both the Sector rules and the General rules) will apply in the same way to OBA as to other forms of advertising; if the advertising happens on a periodical online site, then it would need to carry Health Messages
- The rules relating to third party cookies in the context of OBA are shown under the General tab below; these include statutory Consent and Information requirements
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General
SECTION C: COOKIES AND OBA
Q&A: protecting privacy & confidentiality (EN)
Advokatfirman Delphi June 30, 2023
- The Electronic Communications Act (SW) implemented the 'Cookie Directive' 2009/136/EC in Sweden
- Data Protection in Sweden pre GDPR was primarily the domain of the Personal Data Act 1998:204, which was repealed and replaced by the new Data Protection Act 2018:218 (SW)
- The key EU guidance in this context is Guidelines on consent under Regulation 2016/679 (May 2020). From pt. 7: 'The EDPB notes that the requirements for consent under GDPR are not considered to be an ‘additional obligation’, but rather as preconditions for lawful processing. Therefore, the GDPR conditions for obtaining valid consent are applicable in situations falling within the scope of the e-Privacy Directive.'
- IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era and in July 2021 Guide to Contextual Advertising
- From ICAS' March 2022 newsletter: Google has published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here
Privacy issues should be reviewed with specialist advisors
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
- EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
- GDPR lawful processing rules may apply if data processing identifies individuals (see above). Definitive profiling guidance is from the Article 29 Working Party, now the European Data Protection Board here
- Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation; effective 19 January 2022
- OBA, like any other advertising, is subject to the general rules set out in our earlier Content Section B, and any sector-specific rules
- We make the assumption that the great majority of behavioural advertising is via ad networks, that they will deploy cookies of various types, the relevant versions of which in this context are therefore third-party cookies; (see IAB Europe's Guide to the Post Third-Party Cookie Era)
- The key guidance in Sweden was from the PTS (Post and Telecom Authority; Post- och telestyrelsen, PTS), which ‘removed its guidance on consent’ and referenced the EU guidance that we show in the introduction to this section, in Swedish here
From the ICC Code Chapter C, Direct Marketing and Digital Marketing Communications, article C22 provisions for OBA; extracts only
https://www.g-regs.com/downloads/ICCCode2018OBAbrefFN9.pdf
Application of notice and choice provisions
- Any party participating in IBA should adhere to principles of notice and user control as set out below. Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for IBA purposes is vital. The following guidance provides further clarification for how these principles apply to IBA
C22.1 Notice
- Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices. Such notice should include clear descriptions of the type of data and purpose for which it is being collected and information on how consumers may exercise choice with regard to the collection and use of the data for IBA purposes. Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices.Examples of how third parties, and where applicable website operators can provide notice of the collection of data for IBA purposes include mechanisms like an icon that links to a disclosure either in or around the advertisement delivered on the web page where data for IBA purposes is collected or somewhere else on the web page; or through a web link to an industry-developed website(s) where third parties are individually listed
C22.2 User control
- Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for IBA. Such choice should be available via a link from the notice mechanisms described in footnote 9. (Footnote 9 reads: "The term ’minor’ refers to those below the legal purchase age, i.e. the age at which national legislation permits the purchase or consumption of such restricted products. In countries where purchase age and consumption age are not the same, the higher age applies. For the purpose of this Article, in countries where there is no legal purchase or consumption age minors are defined as those below the age of 18. The meaning of this term has been derived from the definition provided in the ICC Framework for Responsible Marketing Communications of Alcohol." This is clearly an error. We have been in touch with the ICC)
C22.6 Children
Segments specifically designed to target children for IBA purposes should not be created
- From EASA’s Best Practice Recommendation on OBA: “In addition to the privacy notice on their own websites, third parties are required to provide an ‘enhanced notice’ to consumers whenever they are collecting or using data for OBA purposes on a website that is not operated by them. The purpose of the enhanced notice is to provide the web user with information about the identity of the company that is delivering the ad and about the fact that the ad is targeted based on previous web viewing behaviour.”
- A good number of companies and organisations in Europe are supporters of and engaged in the European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance EDAA http://www.edaa.eu. The OBA Icon
- which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
International
SECTION C: COOKIES AND OBA
Decoding the DSA. Simple and clear explanation from EACA of what the legislation means for agencies
EU and US reach a deal to let data flow across the Atlantic. Politico July 10, 2023
ChatGPT transgresses GDPR: European authorities investigate (FR; Haas)
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
Report of the work undertaken by the Cookie Banner Taskforce. (EN) From the EDPB Jan 2023
Guidance extracted from the above here courtesy of Stevens & Bolton LLP/ Lex
Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)
From Reed Smith LLP/ Lex May 2022
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
- E-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
- The introduction of the GDPR 2016/679 from May 25, 2018
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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
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And in July 2021 the Guide to Contextual Advertising
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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
- Working Document 02/2013 providing guidance on obtaining consent for cookies here
- Opinion 04/2012 on Cookie Consent Exemption here
- Opinion 15/2011 on the definition of consent here
- May 2020 Guidelines on Consent under Regulation 2016/679 here
- Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR here
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
- Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)
GDPR
- The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules apply. GDPR/ privacy issues should be overseen by legal advisors
The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022
Applicable regulation and opinion
- ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
- Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
- Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act, around the practice
- Provisions for Interest-based Advertising (IBA/OBA). These have been extracted from the 2018 ICC Advertising and Marketing Communications Code Chapter C and uploaded here; selected key rules below
- OBA, like any other advertising, is subject to Content rules. in this context, the principle source of international rules is the ICC Code linked above
Application of notice and choice provisions
- Any third party participating in OBA should adhere to principles of notice and user control as set out below
- Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
- The following guidance provides further clarification for how these principles apply to OBA
C22.1. Notice
- Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
- Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
- Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices
C22.2. User control
- Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)
C22.5. Data security
- Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
- Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent
C22.6 Children
- Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent
C22.7. Sensitive data segmentation
- In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information
Article 29 Working Party* documents
- Opinion 2/2010 on online behavioural advertising here
- Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here
- Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
- A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
- EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here
5. Emails & SMS
Sector
- The Content rules, both Sector and General rules, set out in Section B apply, except that the requirement for health messages is applied specifically to print periodicals (including online editions)
- In the context of the associated data processing and transmission of electronic communications (where permitted), clearly U25s should be avoided
- In the same context, the General tab underneath this section shows the statutory Consent and Information requirements that apply to all product sectors
Consumer Agency Guidelines re Direct marketing
- 6.1. The main rule is that it is incompatible with the requirement of particular moderation to market alcoholic beverages through direct marketing. However, on the express request of the consumer, such marketing is considered permissible.
Alcohol Advertising Recommendations
Section 2.5.
- Direct advertising means marketing that is directly offered to individual consumers through e.g. flyers, SMS, e-mails, letters, etc. Direct advertising includes messages in social media that are directly sent to individuals (direct messages) but not sponsored posts that are reproduced in the stream (feed)
- In the case of e-mail, the subject line of the email should be compared with the outer packaging of direct mail (It should be clear from the outer packaging that the consignment contains alcohol advertising). For the direct advertising method that is deployed, relevant NIX (opt out) registers and other relevant advertising blocks must be respected. The same applies to the provisions of the Marketing Act on unpublished advertising. These include that direct mail, e-mail, SMS and MMS and other similar methods require the individual recipient's opt-in
- Direct advertising that is specifically ordered by the recipient may be sent provided that at the time of ordering, he / she declared to be of such age that he / she can buy the alcoholic drinks to which the advertisement refers
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General
SECTION C: DIRECT ELECTRONIC COMMUNICATIONS
STANDARD RULES
- All of the Content rules set out in Section B apply online, including any sector-specific rules, except those rules for Broadcast channels
-
The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code, which applies to commercial communications online
- Content and channel rules from the Marketing Act (EN) also apply online. See our Content Section B above
LEGISLATION
- In the case of data processing that identifies individuals, lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
- See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here
- The arrival of GDPR into the regulatory framework might cause some uncertainty regarding consent issues in the context of direct electronic communications and the E-Privacy Directive. The key EU guidance in this context is 'Guidelines on consent under Regulation 2016/679' (May 2020). From pt. 7: 'The EDPB notes that the requirements for consent under GDPR are not considered to be an ‘additional obligation’, but rather as preconditions for lawful processing. Therefore, the GDPR conditions for obtaining valid consent are applicable in situations falling within the scope of the e-Privacy Directive.'
- The Marketing Act 2008:486 (EN) implements, among others, the marcoms elements of Directive 2002/58/EC on Privacy and Electronic Communications, from which:
- Unsolicited advertising, Section 19 of the Marketing Act. ‘A trader may, in the course of marketing to a natural person use electronic mail, a telefax or automatic calling device or any other similar automatic system for individual communication that is not operated by an individual, only if the natural person has consented to this in advance. Where a trader has obtained details of a natural person’s electronic address for electronic mail in the context of a sale of a product to that person, the consent requirement stipulated in the first paragraph shall not apply, provided that:
1. The natural person has not objected to the use of the electronic address for the purpose of marketing via electronic mail
2. The marketing relates to the trader’s own similar products and
3. The natural person is clearly and explicitly given the opportunity to object, simply and without charge, to the use of such details for marketing purposes, when they are collected and in conjunction with each subsequent marketing communication.’
The above ‘soft opt-in’ does not apply to SMS/MMS
- Section 20. In marketing via electronic mail the communication shall at all times contain a valid address to which the recipient can send a request that the marketing cease. This also applies to marketing to a legal person (B2B)
The 'Blacklist'
- Section 4 of the Marketing Act applies Annex I of the Directive 2005/29/EC in Swedish law. The Government has published the relevant annex in the Swedish Code of Statutes. Annex I is the ‘Blacklist’ - 31 commercial practices in all circumstances considered unfair. No. 26 of the list is ‘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 (1) and 2002/58/EC.’
Invitation to Purchase
Defined in UCPD 2005/29/EC as ‘a commercial communication that indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase.’ From Section 12 of the Marketing Act (Implementing UCPD):
- in a representation where the trader offers consumers a specific product with a stated price the following material information must be provided:
1. The product’s distinguishing characteristics to the extent appropriate to the media and product
2. Price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)
3. The identity and geographical address of the trader
4. Terms and conditions of payment, delivery, performance and processing of complaints if these deviate from normal practice in the industry or for the product in question
5. Information concerning the right of withdrawal or the right to cancel a purchase, which must be supplied to the consumer by law
- Failure to clearly present the information listed under Section 12 will be regarded as misleading marketing. Marketing will also be deemed misleading if the trader in a representation offers consumers several specific products at a common price, without the offer containing material information under points 1-5 in the bullet point above
- When assessing whether a representation is misleading under Section 10, third paragraph (omitting material information), ‘the limitations in time and space of the means of communication used may be taken into account, as well as the measures taken by the trader to provide the information in some other way’ (Section 11, Marketing Act)
SELF-REGULATION: ICC Code
From Chapter C, Direct Marketing and Digital Marketing Communications, key extracts only; the full set of articles from the Chapter is here
Article C1. Identification and transparency
- Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
- Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body.
- Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
- Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided
Article C4. Presentation
- Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
- When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
- Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
- Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
- Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase
Article C8. Respecting consumer wishes
- Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilizing another system, such as mailbox stickers. Marketers who are communicating with consumers internationally should, where possible avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such communications (see also General Provisions, article 19, data protection and privacy)
- Direct marketing sent electronically should include a clear and transparent mechanism enabling the consumer to express the wish not to receive future solicitations
National
The Self-Regulatory Organisation RO apply the ICC Advertising and Marketing Communication Code in Sweden, as above. From a more local source, The Swedish Direct Marketing Association (SWEDMA) publishes a series of Codes for different aspects of Direct Marketing
International
SECTION C: DIRECT ELECTRONIC COMMUNICATIONS
- For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
- Chapter C of the ICC Code (full Code linked above): Direct Marketing and Digital Marketing Communications
- General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
- Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below
- Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
- GDPR may apply if processing personal data; check privacy issues with specialist advisors
- See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here
General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:
- When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations
19.1. Collection of data and notice
- When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter
19.2. Use of data
Personal data should be:
- collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
- adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
- accurate and kept up to date
- preserved for no longer than is required for the purpose for which the data were collected or further processed
19.3. Security of processing
- Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures
19.4. Children’s personal data
- When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
- Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
- Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
- Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
- Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
- For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7
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.:
- opt out of direct marketing lists
- opt out of interest-based advertising
- sign on to general direct preference services
- require that their personal data not be made available to third parties for their marketing purposes; and
- rectify incorrect personal data which are held about them
- Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9
19.7. Cross-border transactions
- Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended
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
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
- Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an E-commerce context
- In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
- The name of the service provider
- The geographic address at which the service provider is established
- 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
- 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
- Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
- 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
- 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)
- In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
Section 2: Commercial communications
Article 6
- Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
- The commercial communication shall be clearly identifiable as such
- The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
- Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
- Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
Article 7
Unsolicited commercial communication
- In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
- Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
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EU guidance documents
- Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
- Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 - November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here
- Opinion 15/2011 on the definition of consent here
- May 2020 Guidelines on Consent under Regulation 2016/679 here
6. Own Websites & SNS
Sector
CONTEXT
The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s subject to the rules. The definition of advertising is therefore important: the two key sources are here ICC & MA The ICC definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ The Swedish Marketing Act defines marketing as including ‘all statements, regardless of medium, that have a commercial purpose and which are subject to purely commercial circumstances.’Clearly, not all communications on owned websites are commercial communications, or advertising. In this context, the best source of exemptions is EASA’s Digital Marketing Communications Best Practice Guide. Exemptions include, for example, User Generated Content, unless it has been endorsed by the marketer. The same principle applies to viral communications
MARKETING ON OWN WEBSITE
Alcohol Advertising Recommendations Section 2.6.
- The first page of the website should clearly state that the site contains alcoholic beverages. Access to the site requires active age verification. The age limit should be 20 years
- Alcoholic beverages and brands should be kept separate from content that does not constitute marketing of alcoholic beverages. This also applies to the page on which the visitor lands directly after the landing page or the landing page from a banner or similar
- Comment: Pages that deal exclusively with the company and its operations, but which do not promote individual alcoholic beverages, are exempted from the limitations in design since they are not about the marketing of alcoholic beverages
- On individual pages of the website, which do not contain alcoholic beverages but, for example, advertisements for water and soft drinks, where there are links that lead to other pages with alcoholic beverages, It should be made clear at that point that the link leads to such alcohol marketing
Consumer Agency Guidelines
Extracts from Section 4
- 4.1 CAG. When marketing on the Internet, Section 2 should be observed as regards both the technical design and the content of the advertisement. Marketing on the internet also means marketing in social media, apps and the like
- 4.2 The website's homepage should clearly state if it includes the marketing of alcoholic beverages. On the pages containing such marketing, the applicable age limit for the purchase of those marketed beverages should also be clearly stated
- 4.3 Marketing should only take place on sites where the target audience or at least 70% of the visitors consist of persons over 25 years of age. Only on such websites should marketing that leads via links to websites with alcohol advertising occur. When using different ad networks and the like, it is the responsibility of the advertiser to ensure that marketing does not end up on sites other than those referenced above
- 4.4 Websites that sell alcohol or focus primarily on alcohol promotion should check the visitor's age before he/ she is given the opportunity to access the site's content. This check should be undertaken using the most appropriate technology available
- 4.5. Paragraphs 4.2 - 4.4 do not cover grocery retailers' websites which, in addition to marketing for, inter alia, foodstuffs, contain marketing for beverages with an alcoholic strength of not more than 3.5% ABV
- 4.6 Advertising designed to attract particular attention, such as pop-ups, may not be used
ALCOHOL ADVERTISING POLICIES FROM SOCIAL MEDIA PLATFORMS
https://www.g-regs.com/downloads/EUSocialMediaAdPoliciesAlcohol_SW.pdf
TikTok is not included in the above; their rules are here
IARD
The International Alliance for Responsible Drinking (IARD), which organisation includes most major alcohol producers manufacturers, publish Digital Guiding Principles to supplement their Guiding Principles. The scope of the DGPs is 'relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.' Members are here. In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
General
SECTION C: MARKETERS' OWN WEBSITES
CONTEXT
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. Advertising is defined by the ICC Code, which is applicable as the general advertising code in Sweden, as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ This section also includes commentary/ guidance on social media and blogging/ influencers specifically, as well as some E-commerce rules. See our earlier Section A Overview for recent case law relating to Influencers and identification
STANDARD RULES
- All of the Content rules set out in Section B apply to marketers’ own marcoms on their own website(s), except those specific to Broadcast. The definition of a marketing communication is therefore important – see above
- Exemptions, i.e. those communications that do not qualify, are set out in the EASA Digital Marketing Communications Best Practice document: while the document is not binding, it’s the best source for understanding exemptions. Those include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications
- The Self-Regulatory code on which RO base their decisions is the ICC Advertising and Marketing Communications Code (the ICC Code, as linked above under Context) which applies to commercial communications online
- Content and channel rules from the Marketing Act (EN) also apply online. See our Content Section B for key extracts. The translation of the Marketing Act linked here does not incorporate revisions introduced as a result of the transposition effective July 1, 2022 of the 2019/2161 Directive (the Omnibus Directive). Provisions, transposed by the government bill here (SW), include that platforms must make available the criteria deployed for search rankings and also confirm the integrity of consumer reviews
- Re above, the Price Information Act is also affected by the 2019/2161 Directive; see Content Section B for new rules on price promotions - extracted Directive article here (EN)
- Websites devoted to products or services that are subject to age restrictions such as Alcoholic Beverages, Gambling and Tobacco products should undertake measures to restrict access by minors (Art. C7, ICC Code)
E-COMMERCE
From the Law 2002: 562 (SW) on electronic commerce and other information society services which implemented Directive 2000/31/EC, the E-Commerce Directive. Key requirements in an E-commerce context here (EN)
We have been unable to trace where the additional clauses from the Directive in the linked document (under 'here' above) are specifically implemented in Swedish law. RO advise us that they are ‘covered’ under Sections 12 Material information and 10 Misleading omission respectively of the Marketing Act. The linked MA document is a translation, within which the links to the original MA in Swedish are volatile. This worked at the time of writing
SOCIAL MEDIA/ BLOGS
- An important regulatory influence in marketing generally and social media specifically is the Swedish Consumer Agency. The organisation publishes a number of guidance documents which can be found here (SW). In this context, the most significant is their Guidance on Marketing in Social Media (EN)
- The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
Nordic Consumer Ombudsmen guidance
The Nordic Consumer Ombudsmen's position on marketing through social media; in Swedish:
Translated here
The Nordic Consumer agency’s position on covert marketing; in Swedish
Translated here
LEGISLATION AND SELF-REGULATION: IDENTIFICATION
Section 9 of The Marketing Act:
- All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing. The party responsible for the marketing shall also be clearly indicated. However, this does not apply to representations whose sole purpose is to attract attention ahead of follow-up representations (note: this latter sentence exempts teaser advertising)
Article 7 of the ICC Code. Identification and transparency
-
Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
Article 8. Identity of the marketer
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. 'teaser' ads)
Swedish Advertisers' Guide to Successful Influencer Marketing; January 2019
The document sets out a checklist of how to work with Influencers. It includes some guidance on the regulatory issues; key clause in this context is the first bullet point:
- That the influencer commits to follow the Consumer Agency's social media guide (SW) and the ICC Advertising and Marketing Communication rules
- While the link above takes you to a legitimate document, the most recent Consumer Agency Guidelines on Marketing in Social Media is here
- The most recent review of this text (March 2020) indicates that the Swedish Advertisers document is now behind a pay/ membership wall
International
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 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 2015
- For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
- Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
General information to be provided
- In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
- In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
Article 6
- The commercial communication shall be clearly identifiable as such
- The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
- Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
- Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
- In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
- Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')
- 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
- 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
- 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
- In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
- the main characteristics of the product, to an extent appropriate to the medium and the product
- 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
- 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
- the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
- for products and transactions involving a right of withdrawal or cancellation, the existence of such a right
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
-
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
- Opinion 15/2011 on the definition of consent here
- GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
- Guidelines 8/2020 on the targeting of social media users adopted April 2021
- Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
- Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
- Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
- Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms
- https://www.facebook.com/policies/ads (also includes references to Instagram)
- branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content
- https://help.instagram.com/116947042301556/?helpref=hc_fnav&bc[0]=368390626577968&bc[1]=835763516568404
- https://www.facebook.com/policies/brandedcontent/
- TWITTER:
- https://business.twitter.com/en/help/ads-policies/introduction-to-twitter-ads/twitter-ads-policies.html
- https://business.twitter.com/en/help/troubleshooting/how-twitter-ads-work.html
- Promotions/ contests on Twitter:
https://help.twitter.com/en/rules-and-policies/twitter-contest-rules
- YOUTUBE: advertiser friendly content guidelines here:
- Paid product placements and endorsements
- Advertising on YouTube Kids
- Age targetting and ads
- Youtube’s contest policies and guidelines
- Homepage advertiser Guidelines
- Tell a friend
- Unbranded ads or Brand Channels
- SNAPCHAT:
- https://www.snap.com/en-GB/ad-policies/
- Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules
- GOOGLE +
- Promotions/ Contests:
https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html - For advertising on the Google network:
https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336 /
https://support.google.com/adwords/answer/6316?hl=en-GB
- TIK TOK
7. Native Advertising
Sector
CONTEXT
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. Category-specific rules are immediately below. The key regulatory issue is obviously that of identification as advertising; the principal clauses related to that issue are set out under the General tab below
KEY RULES
- The Alcohol Act, the Consumer Agency Guidelines and the Alcohol Advertising Recommendations stipulate that alcohol advertising, where it is allowed - in limited print and online channels and in very restricted form – must not be ‘intrusive or targeted/ insistent or encourage the use of alcohol.’
- Advertising in print periodicals must also be accompanied by Health Messages
- The rules under the General tab below cover the issue of identifiability of advertising; these rules should be observed by all sectors, Alcohol included
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General
SECTION C: NATIVE ADVERTISING
CONTEXT
Native advertising is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. The key issue is obviously that of advertising Identifiability, covered extensively in Self-Regulation and Legislation set out below
- The ‘Native’ form of advertising is like any other advertising - it’s subject to the Content rules, in this context the ICC Advertising and Marketing Communications Code, applied in its Swedish version by Ro, the Self-Regulatory Organisation
- The Marketing Act (linked below) also applies
- The key general rule is that of identifiability/ disclosure. From the linked Code above:
Article 7 of the ICC Code. Identification and transparency
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
Article 8. Identity of the Marketer
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”
The ICC’s Guidance on Native Advertising includes:
1. Consumers should be able to recognise when something is an ad. This principle is covered in Articles 9 (of the main ICC Code; article shown above), B1, and D1 as follows:
Article B1 (in part): Sponsorship should be recognisable as such. Article D1 (in part): The commercial nature of product endorsements or reviews created by marketers should be clearly indicated and not be listed as being from an individual consumer or independent body.
2. The identity of the advertiser should be easily ascertainable. This principle is covered by Articles 10 (of the main ICC Code; article shown above) and 12, as follows: Article B12: Media Sponsorship (in part): Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/ or at the end of the programme or publication content. This also applies to online material.
3. Disclosures should be prominent and understandable to consumers. This principle is covered in section 3 as follows: Article 3: Honesty: Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge. Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account
LEGISLATION
- The Marketing Act (EN) covers the same identification issue under Section 9: ‘All marketing shall be formulated and presented in such a way that it is clear that it is a matter of marketing. The party responsible for the marketing shall also be clearly indicated. However, this does not apply to representations whose sole purpose is to attract attention ahead of follow-up representations’ (note - i.e. teaser advertising)
- Annex I of the UCPD 2005/29/EC - the 'Blacklist' of Commercial Practices considered 'unfair in all circumstances' - is passed into Swedish law under the Swedish Code of Statutes. The two relevant articles are:
- 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
OTHER GUIDANCE
- Consumer Ombudsmen in the Nordic countries agreed to coordinate their efforts against hidden/ covert advertising in social media; guidance is expressed in their document ‘The Nordic Consumer Ombudsmen's position on hidden marketing’’
https://www.konsumentverket.se/globalassets/publikationer/produkter-och-tjanster/reklam-och-marknadsforing/vagledning-nordisk-standpunkt-om-dold-marknadsforing-konsumentverket.pdf - Translated here:
http://www.g-regs.com/downloads/SWGenNordicHiddenMarketingB.pdf - IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers
RULING
One of Sweden’s major newspapers teamed up with a telecom operator who finances a particular section of the newspaper under the title ‘The Digital Life’. This section and all of its material, including promotions of products which the telecom operator was about to launch, appear as the newspaper’s editorial content; the only disclosure of the commercial nature of the presented material is the discrete appearance of the text ‘in collaboration with’ followed by the telecom operator's trademark. The Swedish Consumer Agency assessed that the practice was in breach of Point 11 of Annex I UCPD. Case reference: Ärenden 2016/53 and 2015/1000:
http://diabasweb.kov.se/arenlist.asp
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International
SECTION C: NATIVE ADVERTISING
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 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.'
- For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels; the Native technique is no different in that if it's advertising, it's subject to the rules
- These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
Identification and transparency (Art. 7)
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
Identity of the marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
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
8. Telemarketing
Sector
Telemarketing is no longer in our remit
General
Following feedback, we no longer cover Telemarketing
International
Following feedback, we no longer cover Telemarketing
9. Direct Postal Mail
Sector
- Direct Postal mail material, where allowed, must observe the Content rules set out earlier in Section B - both Sector and General rules, the latter shown beneath the Sector rules
- Channel rules that apply to all product sectors, Alcohol included, are shown below under the General tab; these include statutory Consent and Information requirements
Section 6 Consumer Agency Guidelines. Direct marketing
6.1 The main rule is that it is incompatible with the requirement of particular moderation to market alcoholic beverages through direct marketing. However, on the express request of the consumer, such marketing is considered permissible. Notwithstanding the above, addressed mailshots are permitted provided that:
- The advertisement is addressed to persons over 25 years old
- The advertisement is communicated in sealed and opaque envelopes
- It is clear that the letter contains alcohol advertising, and
- The content of the shipment meets the requirement of special moderation
Regular direct mail from the grocery trade, comprising a variety of goods, may include the marketing of beverages whose alcoholic strength does not exceed 3.5% ABV, provided that the advertising complies with the requirement of particular moderation
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Section 2.5. Alcohol Advertising Recommendations
- Definition in this context: Direct advertising means marketing that is directly offered to individual consumers through e.g. flyers, SMS, e-mails, letters, etc. Direct advertising includes messages in social media that are directly sent to individuals (direct messages) but not sponsored posts that are reproduced in the stream (feed)
- 2.5.1. Unaddressed Direct Mail. The only unaddressed direct mail that is accepted is conventional mailbox advertising/ mailing from the grocery store. When such advertising covers a number of different products, it may also include the marketing of such alcoholic beverages sold there
- 2.5.2. Addressed Direct Mail not expressly ordered by the recipient) Advertising may only be sent to persons who have reached the age of 25
- The advertising must be distributed in such a way that it requires deliberate action by the recipient to access its content. It should therefore be distributed in sealed envelopes and opaque outer packaging
- It should be clear from the outer packaging that the consignment contains alcohol advertising
- (In the case of e-mail, the subject line of the email should be compared with the outer packaging of direct mail.) For the direct advertising method that is deployed, relevant NIX (opt out) registers and other relevant advertising blocks must be respected. The same applies to the provisions of the Marketing Act on unpublished advertising. These include that direct mail, e-mail, SMS and MMS and other similar methods require the individual recipient's opt-in
- Direct advertising that is specifically ordered by the recipient may be sent provided that at the time of ordering, he / she declared to be of such age that he / she can buy the alcoholic drinks to which the advertisement refers
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General
SECTION C: DIRECT POSTAL MAIL
OVERVIEW
- All of the Content rules set out in Section B apply to DM marcoms (marcoms are ‘any form of communication produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour'), except those rules prohibiting appeal to children in broadcast advertising
- This section does not address ‘mail drops’ as in the delivery of unaddressed leaflets, flyers etc., though those may remain subject to advertising content rules. These paragraphs cover addressed mail (including those addressed to ‘the occupier’ etc.) in ‘hard’ form
- The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code. Content and channel rules from the Marketing Act also apply in DM. See our Content Section B
- The Data Processing legislation that applies before transmission is not shown here; be aware that if Data Processing includes personal data (that which identifies an individual) then it may be subject to the GDPR, directly applicable in all member states. Swedish legislation complements the GDPR with the new Data Protection Act 2018:218 (SW), which repeals and replaces the former Personal Data Act 1998:204
- The following rules address the required information in the communication, the opt-out process, and consumer consent in order to send it
LEGISLATION
- Section 21 of the Marketing Act provides for Opt-out consent: ‘A trader may use methods for individual distance communication other than those referred to in Section 19 (electronic systems), unless the natural person has clearly objected to the use of such methods’
- Direct mail marketing is therefore allowed to individual subscribers unless they have clearly objected to receiving advertising; applicable to B2C and not to B2B. The opt-out principle should apply to B2B in absence of regulation, but legal advice should be sought in the event of uncertainty
- Section 4 of the Marketing Act applies Annex I of the Directive 2005/29/EC in Swedish law. The Government has published the relevant annex in the Swedish Code of Statutes. Annex I is the ‘Blacklist’ – 31 commercial practices in all circumstances considered unfair. No. 26 of the list is ‘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.’
Invitation to purchase
Defined in EU legislation UCPD 2005/29/EC as ‘a commercial communication that indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase.’ DM can include this kind of advertising, hence the rules below. From Section 12 of the Marketing Act, which implements the UCPD, among others:
- In a representation where the trader offers consumers a specific product with a stated price the following material information must be provided:
1. The product’s distinguishing characteristics to the extent appropriate to the media and product
2. Price and unit price stated as stipulated in Sections 7-10 of the Price Information Act (2004:347)
3. The identity and geographical address of the trader
4. Terms and conditions of payment, delivery, performance and processing of complaints if these deviate from normal practice in the industry or for the product in question
5. Information concerning the right of withdrawal or the right to cancel a purchase, which must be supplied to the consumer by law
- Failure to clearly present the information listed under Section 12 will be regarded as misleading marketing. Marketing will also be deemed misleading if the trader in a representation offers consumers several specific products at a common price, without the offer containing material information under points 1-5 in the bullet point above
SELF-REGULATION
The ICC code
Rules applicable to 'Direct Marketing and Digital Marketing Communications' (scope includes non-digital) from Chaper C of the ICC Advertising and Marketing Communications Code are here. Key extracts (there are 22 articles in Chapter C) are:
Article C1. Identification and transparency
- Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
- Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
- Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided
Article C4. Presentation
- Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
- When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
- Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment. Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
Article C8. Respecting consumer wishes
- Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilizing another system, such as mailbox stickers. Marketers who are communicating with consumers internationally should, where possible avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such communications (see also General Provisions, article 19, data protection and privacy)
- Direct marketing sent electronically should include a clear and transparent mechanism enabling the consumer to express the wish not to receive future solicitations
SWEDMA
The Swedish Direct Marketing Association is a well-established and respected trade association, publishing a number of codes that reflect accurately relevant legislation. Some of those codes can be found here (SW)
International
Applicable Self-Regulation and legislation
- National 'Robinson lists' or opt-out lists
- The General Data Protection Regulation 2016/679 for the processing of personal data
- Directive 2005/29/EC on unfair commercial practices (UCPD)
Standard rules
- For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
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
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Legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
- the main characteristics of the product, to an extent appropriate to the medium and the product
- 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
- 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
- the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
- for products and transactions involving a right of withdrawal or cancellation, the existence of such a right
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
- In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors
Guidance
Guidelines on consent under Regulation 2016/679 (May 2020)
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10. Event Sponsorship/ Field Marketing
Sector
- Any associated sponsorship material should observe the Content rules for Alcohol specifically and advertising generally, the former set out in the Content Section B, the latter under the General tab in the same section. More specific provisions follow
- Note that the Channel rules set out here are specific to the Alcohol sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, Sponsorship rules from the ICC Advertising and Marketing Communications Code, Chapter B
- Given the nature of the Alcohol regulatory environment in Sweden, sponsorship by alcohol producers is likely to be a sensitive issue, especially at any event that may be attended by a significant proportion of under 25s. Interestingly, an adjudication (SW) in the case of the Consumer Ombudsman (KO) against Berntson Brands AB (Jägermeister), with regard to the interpretation of ‘particular moderation’, ruled against the use of ‘a fire show’ in Gothenburg but allowed Jägermeister branded ‘banners, cars and car roof boxes’. See Point 6. Adjudications, Content Section B
- The Court held that the use of the banners complied with the requirement of ‘particular moderation’. The same conclusion was drawn in relation to the use of the branded cars and car roof boxes since they were not considered to be intrusive, or seek to encourage consumption. The Consumer Ombudsman failed to provide any research showing that a ban on branded cars would discourage misuse
Tastings; Section 7, Consumer Agency Guidelines
- 7.1 The arrangement of tastings of alcoholic drinks in public events, for example at wine fairs and similar events, is permitted when the conditions set out in Chapter 8, Section 6 (those conditions are either that the organiser has a permanent serving permit or the wholesaler obtains temporary authorisation) of the Alcohol Act are fulfilled.
The sampling shall be accompanied by the condition that the gift requirements in Chapter 7, Section 2 of the Alcohol Act are observed. (‘Anyone who manufactures, sells or acts as an agent for the sale of alcoholic beverages may, in his operations, supply such beverages as a gift only in the form of product samples. Such beverages may not be supplied as gifts in connection with the marketing of services or the sale of products other than alcoholic beverages.’) - 7.2 Producers of alcoholic beverages from raw materials produced on their own farm may offer tasting of the self-produced beverages when the conditions set out in Chapter 8, Section 7 of the Alcohol Act are fulfilled (those conditions are, basically, that anyone who produces alcoholic beverages from raw materials produced on their own farm and who has a permanent serving permit is entitled to, after notification to the municipality, offer tasting at the manufacturing site, or obtain special permission to do so)
The sampling shall be accompanied by a condition that the gift requirements in Chapter 7, Section 2 of the Alcohol Act (as above) are observed. - 7.3. Systembolaget (https://www.systembolaget.se/vart-uppdrag/) may, according to Chapter 8, Section 1 of the Alcohol Act, arrange for the tasting of alcoholic drinks for the public according to the guidelines of the agreement between the state and the company.
The following rules, taken from the Consumer Agency Guidelines linked above, are not necessarily specific to Event Sponsorship/ Field Marketing, but may be applied
- 2.7 Marketing should not be associated with situations such as driving, sports, violent situations, weapons, drugs, pregnancy, school, or work where, according to generally accepted opinion, alcohol consumption should not occur. This applies to the design of the marketing as well as the context in which it occurs
- 2.3 In accordance with the Alcohol Act, marketing may not be directed towards or depict children or young people who have not yet reached the age of 25. The assessment of whether marketing is designed in such a way as to attract children or young people should be based on an overall review. This means that the actual products being marketed, the manufacturer’s presentation as a whole, and the context in which the marketing occurs should be taken into consideration. Symbols or scenarios that can be connected especially with, or which attract children or young people under the age of 25, may not be used.
Alcohol marketing, except ‘passive’ selling of alcoholic beverages, should only occur in events, such as festivals, where the target group or at least 70% of participants are expected to be over 25 years old - 2.4 Persuasive or particularly active marketing is deemed to encourage the use of alcohol and is not permitted
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Section 2.7 AAR
Situations that should not be associated with alcohol consumption
- The marketing of alcoholic beverages must not, in the context in which it occurs, be associated with situations where, according to generally accepted opinion, alcohol consumption should not occur. It means, for example, sports (exercise as well as spectator), work, pregnancy, or traffic (driving a vehicle that the average consumer might normally be considered to be driving)
- Comment: The rule aims to prevent marketing in connection with the consumption of alcohol in the workplace, in connection with driving a car or during pregnancy
- Marketing should therefore not occur e.g. on a website with information for pregnant women, in newsletters from trade unions or in motor magazines. The fact that alcoholic beverages are not to be linked to sports follows, among other things, a ruling in the Market Court. However, the judgment does not prohibit the sale of alcoholic beverages in connection with / at sporting events
Section 4.6. AAR
Gift Prohibition
- According to the Alcohol Act, it is not allowed to give alcoholic beverages as a gift when marketing services or other goods. However, anyone who manufactures, sells or facilitates the sale of alcoholic beverages may, in their transfer, submit such beverages as a gift in the form of sample goods
- Product samples may only be given to licensees (restaurateurs, wholesalers, etc.) who are entitled to purchase the product directly from the person submitting the product sample and only for the purpose of the recipient to assess the product in question. Product samples may also be given to beverage writers in and for their journalistic activities
- Comment: A beverage writer refers to a person, publication, blog or similar who regularly writes and responsibly writes or otherwise communicates about food and drink. Beverage writer replaces in the Recommendation the description wine journalist as was used by the authorities when in the mid-1990s they approved that samples of products be given to "wine journalists". The word choice aims to follow the principle set by the authorities while reflecting the development of available information that has taken place since then
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General
SECTION C: EVENTS/ SPONSORSHIP
- Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc., is subject to the rules set out in our Content Section B, except those rules specific to Broadcast media; the applicable Self-Regulatory Code in Sweden is the ICC Advertising and Marketing Communications Code (EN)
- The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from Chapter B of the ICC Code linked above; clauses follow. For scope, definitions etc., see the linked Code
- All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
- Sponsorship should be recognisable as such
- The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
- There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
- Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement
- Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
- No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage. The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public
- Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
- The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
- The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
- This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
- If personal data is used in connection with sponsorship, the provisions of article 19 are applicable
- Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
- Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
- Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
- Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
- Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications
- Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
- Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
- The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship
- The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
- The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
- Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
- Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
- As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
- Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship
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The European Sponsorship Association (ESA) may also be able to help/ inform
International
Self-Regulation
- Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below
- ICC Advertising and Marketing Communications Code 2018: Chapter B Sponsorship
B1: Principles governing sponsorship
- All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
- Sponsorship should be recognisable as such
- The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
- There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
B2: Autonomy and self-determination
- Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement
B3: Imitation and confusion
- Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
B4: 'Ambushing' of sponsored properties
- No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage
- The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public
B5: Respect for the sponsorship property and the sponsor
- Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position that might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
- The sponsored party should not obscure, deform or bring into disrepute the image or trade- marks of the sponsor, or jeopardise the goodwill or public esteem associated with them
B6: The sponsorship audience
- The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
- This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
B7: Data capture/ data sharing
- If an individual’s data are used in connection with sponsorship, the provisions of article 19 are applicable
B8: Artistic and historical objects
- Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
- Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
B9: Social and environmental sponsorship
- Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship.
- Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
- Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications
B10: Charities and humanitarian sponsorship
- Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
B11: Multiple sponsorship
- Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity
- In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
- The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship. The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
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11. Sales Promotion
Sector
CONTEXT
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. In this context, the principal source of rules is the Consumer Agency Guidelines (CAG), supported by the Alcohol industry's Alcohol Advertising Recommendations (AAR)
KEY RULES
- Promotional material, where it is allowed, should observe the Content rules for Alcohol, together with the General rules, set out earlier in Section B
- Note that the Channel rules set out here are specific to the Alcohol sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory requirements when running promotions or competitions, or when communicating price in a promotional context
- Alcohol consumption and alcoholic beverages should not be presented as being of particular importance in connection with festivals or seasons (CAG 2.9)
- If sales promotion activity appears in periodical publications, as defined, it should include the health messaging referenced under Content Section B and the Print rules earlier in this Channel section
- 6.3 CAG. The main rule is that the promotion measures set out below are not consistent with the requirement of particular moderation. However, rules for different events and exceptions to the main rule are set out below
SPECIFIC RULES
6.3.1 Gifts
- It is not permitted to hand out gifts in connection with the promotion of alcoholic beverages. However, at a manufacturing site, trade fair or similar, gifts of insignificant value may be given. The gift should have a natural connection with alcoholic beverages
6.3.2 Alcoholic beverages as a gift
- It is not permitted to give or offer alcoholic beverages for advertising purposes, either to create goodwill or to promote sales in some other way. However, at the opening of fairs, galleries and the like, organisers can offer alcoholic beverages. In accordance with the Alcohol Act, it is forbidden to provide alcoholic beverages as gifts in conjunction with the marketing of services or goods other than alcoholic beverages. Alcoholic beverages in the form of a sample may, in accordance with the Alcohol Act, only be given to a license holder (restaurant owners, wholesalers etc.)
6.3.3 Competitions
- Competitions that, for example, mean that a consumer must buy alcoholic beverages to participate, or competitions with alcoholic beverages as prizes, are prohibited
However, competitions that are not linked to purchase, or that promote the consumption of alcoholic beverages in some other way, are permitted
6.3.4 Volume discount, coupon offers or comparative offers
- The usual price differentiation between different pack sizes, such as smaller and larger bottles, bottles and bag-in-boxes, single glasses and full bottles are permitted.
Regular discounts at a venue under "Happy Hour" and similar may be applied. In the case of such discounts on alcoholic beverages, discounts on dishes and soft drinks should also be made available.
Normal offers from the grocery retail trade for beverages with alcohol content not exceeding 3,5% ABV are permitted
6.3.5 Combination offers
- Combination offers where the additional item has an insignificant value in relation to alcoholic beverages is allowed, provided that the marketing effort as a whole is consistent with the requirement for particular moderation. However, the combination offer should not be designed in such a way as to encourage the consumer to increase his/ her purchase of alcoholic beverages in order to obtain the additional offer. Alcoholic drinks can be acceptable as additional products if the drink represents a part of a meal and alcohol-free alternatives are offered at the same time. However, the combination offer may not be designed to attract consumers to increase their purchase of alcoholic beverages. For example, a combination offer may not be designed as 'two for the price of one', 'one free' or the like
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Tastings
See Event Sponsorship/ Field marketing
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AAR Chapter 4 Promotional measures in the promotion of alcoholic beverages
- Sales promotion measures are often aimed at increasing consumption, and they therefore run the risk of contravening the requirement of moderation. When assessing a particular measure, all circumstances must be taken into account, e.g. the target audience of the offer, the context in which it is presented, as well as the design and presentation of the offer
4.1 Competition
- Competitions are permitted provided that no purchase of alcoholic beverages is required in order to participate and that the prizes/ winnings cannot be in the form of alcoholic beverages
4.2 Combination Offer
- When purchasing alcoholic beverages, the additional product can be offered at no extra cost or at a special price if the value thereof is in reasonable proportion to the price of the alcoholic beverage. According to good business practice, the additional product (the value of the additional product / of a discount on the price for it) should amount to a maximum of 20% of the price for the main product, or in any case, a maximum of SEK 99
- Comment: In practice, sports-related additional products are considered to be prohibited
- Alcoholic beverages can be accepted as additional products only if the beverage represents part of a meal and alcohol – free alternatives are offered at the same time. In the case of such an offer, the price of the alcoholic beverages must comply with the requirements of the Alcohol Act regarding reasonable supplements etc.
4.3 Gifts
- Gifts are allowed provided the value of the gift is low and it must not be alcoholic. The gift should have a natural connection with alcoholic beverages. Gift giving should be done at a visitor centre, at a place of manufacture or point of sale for alcoholic beverages, otherwise they risk contravention of the moderation requirement
4.4 Discounts etc.
- As a general rule, discounts, coupon offers etc. are not allowed. However, the usual price difference between different packaging sizes (for example smaller and larger bottles, bottles and bag-in-boxes, individual glasses and whole bottles) should be considered permissible
- However, customary discounts such as "Happy hour", "Beer of the month" and similar at the point of sale may occur. Such discount may not be designed according to "two for the price of one", "on sale" or similar. In such a discount of alcoholic beverages, discounts of dishes as well as non-alcoholic beverages should be made
- Quantity discount, brand offer discounts and the like can be accepted for the sale of alcoholic beverages containing a maximum of 3.5% by volume within the framework of normal price activities in the grocery trade
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General
SECTION C: SALES PROMOTIONS
CONTEXT
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below
- Sales promotional material is required to observe the Content rules set out in our Section B, including broadcast rules (that prohibit appeal to children) in the event that a promotion is in that channel
- This piece from Wistrand via Lexology ‘Prohibited and controlled advertising in Sweden’ includes guidance/ regulatory background for e.g. lotteries and promotional contests
LEGISLATION
Pricing is obviously relevant to Sales Promotions. In March 2022, in force July 1,the Swedish government published a bill here (SW) transposing the 'Omnibus Directive' 2019/2161, which inter alia amended the Product Price Directive. Provisions from that include new promotional pricing rules, set out in the article extracted from the Directive here and transposed under article 2.2 of the Swedish bill
- Annex I of the Unfair Commercial Practices Directive 2005/29/EC, transposed in Section 4 of Sweden’s Marketing Act (EN; does not include 2019/2161 amends), sets out the commercial practices ‘in all circumstances considered unfair’. Shown below are only the most relevant practices for this SP context:
- 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
- 14. Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products
- 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
MORE LEGISLATION
The E-Commerce Directive 2000/31/EC is part-implemented in Sweden by the Law 2002: 562 (SW) on electronic commerce and other information society services
The Directive carries two additional requirements, not shown in the Swedish law linked above and not explicit in the Marketing Act, under Article 6 of the Directive:
C) Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
D) Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
We have been unable to trace where these clauses are specifically implemented in Swedish law. RO advise us that they are ‘covered’ under sections 12 (Material information) and 10 (Misleading omission) respectively of the Marketing Act (EN). The Information requirements under the Self-Regulatory ICC Code Chapter A below are more specific:
SELF-REGULATION
From Chapter A, Sales Promotion, of the ICC Advertising and Marketing Communications Code. Extracts:
- 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
- Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers' reasonable expectations
In particular:
- The availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. If delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made
- Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request
- Complaints should be efficiently and properly handled
- Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
- Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children
- Complex rules should be avoided
- Rules should be drawn up in language that consumers can easily understand
- The chances of winning prizes should not be overstated
- Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase
Information should include, where relevant:
- Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
- Main characteristics of the promotional items offered
- Any time limit on taking advantage of the promotional offer
- Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. In the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
- The value of any voucher or stamp offered where a monetary alternative is available
- Any expenditure involved, including costs of shipping and handling and terms of payment
- The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause
- Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
- Any rules governing eligibility to participate in the prize promotion
- Any costs associated with participation, other than for communication at or below standard rate (mail, telephone and other devices)
- Any restriction on the number of entries
- The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
- In the case of a skill contest, the nature of the contest and the criteria for judging the entries
- The selection procedure for the award of prizes
- The closing date of the competition
- When and how the results will be made available
- Whether the consumer may be liable to pay tax as a result of winning a prize
- The time period during which prizes may be collected
- Where a jury is involved, the composition of the jury
- Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used
The remaining articles are
International
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 2018, 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
- All sales promotions should deal fairly and honourably with consumers
- All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
- The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
- The terms and conduct of all sales promotions should be transparent to all participants
- All sales promotions should be framed in a way that is fair to competitors and other traders in the market
- No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute
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:
- the availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. if delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made;
- defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request;
- complaints should be efficiently and properly handled
A5: Safety and suitability
- Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
- Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children
A6: Presentation to consumers
- Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated
Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:
- Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
- Main characteristics of the promotional items offered
- Any time limit on taking advantage of the promotional offer
- Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. in the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
- The value of any voucher or stamp offered where a monetary alternative is available
- Any expenditure involved, including costs of shipping and handling and terms of payment
- The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
- Any rules governing eligibility to participate in the prize promotion
- Any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
- Any restriction on the number of entries
- The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
- In the case of a skill contest, the nature of the contest and the criteria for judging the entries
- The selection procedure for the award of prizes
- The closing date of the competition
- When and how the results will be made available;
- Whether the consumer may be liable to pay tax as a result of winning a prize
- The time period during which prizes may be collected
- Where a jury is involved, the composition of the jury
- Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used
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
- The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion
C4 : Presentation
- Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
- When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
- Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
- Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
- Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase
C17: Substitution of products
- If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer
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
- 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
- Member States may decide not to apply paragraph 1 to:
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
- For products sold in bulk, only the unit price must be indicated
- 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
- 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
- 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
- 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
- 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
D. Advice & Clearance
General
SECTION D SRO SERVICES
The Advertising Ombudsman can be reached via e-mail ro@reklamombudsmannen.org; their website in English can be found at http://www.reklamombudsmannen.org/eng/
Specific copy advice is recently available in Sweden. RO does not pre-clear
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
International
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
E. Links
Sector
SECTION E SOURCES/ LINKS
2010 Alcohol Act Chapter 1 Definitions, Chapter 7 Marketing (Alkohollag 2010:1622). This law regulates the manufacture, import/ export, selling and marketing of alcohol in Sweden. Inter alia, It allows alcohol marcoms for alcoholic beverages below 15% ABV to be placed in press and magazines, severely restricts marcoms content to a single pack and reproduction of the goods or commodities/ ingredients within them, requires Health Messages to be included in print periodical advertising, and bans marcoms on radio and TV; some online presence is permitted, some very limited outdoor activity, and some forms of direct advertising (see Consumer Agency Guidelines). The act forms the basis of the Consumer Agency Guidelines and Alcohol Advertising Recommendations. Swedish text:
http://www.notisum.se/rnp/sls/lag/20101622.htm
An English translation of the relevant clauses is here:
http://www.g-regs.com/downloads/SWAlcoholActEN.pdf
2010 Alcohol Ordinance (Alkoholförordning 2010:1636). Articles 13 and 14 relate to the Health Messages required in the Alcohol Act referenced above (Section 7, Chapter 7). The Ordinance sets out the ‘health messages’ or Information texts’ that must be used in alcohol advertising in periodical publications and their online editions, together with specific formatting requirements. Text from the latest version of the Ordinance in Swedish:
An English translation of the relevant clauses is here:
http://www.g-regs.com/downloads/SWAlcoholOrdinanceInformationTextsEASAUpdate2020.pdf
Statutory authority guidance
The Consumer Agency's general advice on marketing of alcoholic beverages to consumers; KOVFS 2016:1 issued on August 31, 2016 (Konsumentverkets allmänna råd för marknadsföring av alkoholdryck till konsumenter). The Swedish Consumer Agency establishes these general guidelines in line with the provisions on marketing in the Alcohol Act 2010:1622, Chapter 7, and with the Marketing Act 2008: 486. These guidelines are extensive, essentially representing the alcohol marcoms rules in Sweden, though the AMG’s Alcohol Advertising Recommendations (see below) are supportive and offer more practical guidance:
English translation here:
http://www.g-regs.com/downloads/SWAlcConsAgencyGuidelines2016B.pdf
The Marketing Act referenced in the entry above is shown under the General tab below; a translation that includes recent updates is here:
http://www.g-regs.com/downloads/SWMktingActTransupdate.pdf
Adjudications
The Patent and Market Court and the Patent and Market Court of Appeal are specialised courts that came into being on September 1, 2016. The Court of Patent Appeals and the Market Court ceased to exist on the same date. Essentially, the two courts hear all cases and matters in the country relating to intellectual property law, competition law and marketing law. Patent and Market Court at Stockholm District Court is:
http://www.stockholmstingsratt.se/Om-tingsratten/Patent--och-marknadsdomstolen/
Rulings from the Court of Appeal:
https://www.domstol.se/patent--och-marknadsoverdomstolen/avgoranden/ (SW)
Rulings from the Market Court (up to end August 2016):
http://avgoranden.domstol.se/marknadsdomstolen/externsearch
Channel legislation
2010 Radio and Television Act (Radio-och tv-lag 2010:696). This law implements the EU Television Without Frontiers Directive, as updated by the Audiovisual Media Services Directive 2010/13/EU. The act lays down the rules on programming, licenses and all forms of audiovisual marcoms on TV and radio. Alcoholic beverages may not use advertising, product placement or sponsorship on TV and/ or Radio. (TV channels that broadcast from other countries, for example Kanal5 or Eurosport, are not subject to the Act). Swedish text:
English version:
http://www.radioochtv.se/Documents/Styrdokument/Radio%20and%20Television%20Act.pdf
Alcohol Advertising Recommendations 2018; (Rekommendation avseende reklam för alkoholhaltiga drycker och alkoholhaltiga lättdrycker). Adopted by the Swedish Advertisers Association, Swedish Brewers and Swedish Spirits and Wine suppliers. These recommendations expand on the rules provided by the Consumer Agency. The guidance, managed and implemented by the Inspectorate AGM, is important additional guidance on alcohol advertising in Sweden, based on the Alcohol Act and sometimes reflecting precisely the Consumer Agency Guidelines, but more helpful in practical terms:
http://alkoholgranskningsmannen.se/wp-content/uploads/2018/06/Rekommendationerna-2018.pdf
Unofficial English translation:
http://www.g-regs.com/downloads/SWAlcSwAdvertisersReco2018.pdf
RO
The Self-Regulatory Organisation in Sweden is Reklamombudsmannen (RO). From RO: ‘The main task of RO is to review commercial advertising and make sure advertising standards are kept high by self-regulating the industry. RO also inform and educate the public, the industry and the authorities about marketing ethics. RO uses the guidance of the Advertising and Marketing Communication Code from the International Chamber of Commerce when assessing advertising. Specific copy advice is available; RO does not pre-clear advertising, and does not assess alcohol advertising which is under the management of AGM referenced above.
ICC
The ICC Framework for Responsible Marketing Communications of Alcohol tailors the standards of the ICC Advertising and Marketing Communications Code (also shown below under the General tab), which applies in Sweden. Specific national alcohol marcoms rules are significantly more prescriptive and aggressive
IARD
The International Alliance for Responsible Drinking IARD: http://www.iard.org
IARD is a not-for-profit organisation dedicated to addressing the global public health issue of harmful drinking. Its members are leading international beer, wine, and spirits producers. IARD is the Secretariat of the Beer, Wine and Spirits Producers’ Commitments to Reduce Harmful Drinking.
‘Guiding Principles: Self-Regulation of Marketing Communications for Beverage Alcohol’ were published in November 2011. They highlight the underlying global values in responsible advertising and marketing practices across beverage alcohol industry sectors and form a basis for developing new codes or assessing existing codes in diverse markets. To supplement the Guiding Principles, Digital Guiding Principles (DGPs) were launched in September 2014. The scope of the DGPs is ‘relevant to all branded alcohol beverage digital marketing communications (paid and unpaid), including but not limited to advertising and marketing communications on websites such as social network sites and blogs, as well as mobile communications and applications, where the content of those communications is under the control of alcohol beverage companies’ marketers.’
In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
WIM
Wine in Moderation. ‘The roots:
- A single global message to reduce harm and inspire moderation when drinking wine
- Tailored by each culture and community where it is introduced
- A social responsibility program launched in 2008 by the European wine sector to demonstrate social responsibility and managed by the WiM Association.
Wine in moderation is for all wine producers and wine professionals who want to responsibly present, sell and serve wine’
Wine Communication Standards
‘These standards are established as a set of basic principles and criteria to comply with the law and with good faith and good business practices. They do not seek to replace relevant national laws or codes of conduct but do provide best practice guidelines for application by national self-regulatory bodies responsible for sector and company codes. Wine sector representative associations and/or individual companies are recommended to cooperate with the respective national self-regulatory bodies or other appropriate independent organisations for the adaptation, effective implementation and compliance monitoring at national level of these Standards.’ Document subject to copyright. Refer back to Wine in Moderation.
https://www.wineinmoderation.eu/medias/2537/WIM-communication-standard-update2022.pdf
General
SECTION E SOURCES/ LINKS
GDPR
Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018.
https://eur-lex.europa.eu/eli/reg/2016/679/oj
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Five more recent, significant documents:
- Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them
- Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
- Guidelines on consent under Regulation 2016/679 (May 2020)
-
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
- Guidelines 8/2020 on the targeting of social media users adopted April 2021
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No. 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
- are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
- are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’).
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity. discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
E-privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
E-privacy Regulation draft (10 February 2021)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
The Marketing Act
The Marketing Act SFS 2008:486 (Marknadsföringslagen - MFL); entry into force 01/07/2008. This act, highly influential in marketing/ advertising in Sweden, implements the Unfair Commercial Practices Directive 2005/29/EC and some provisions of the ePrivacy Directive, and aims to prevent marketing that is unfair to consumers and traders (Section 1). It incorporates rules from Misleading and Comparative Advertising Directive (MCAD) 84/450/EEC now codified in the form of 2006/114/EC, sets out general rules on commercial communications and ‘invitations to purchase’ and covers B2C and B2B relationships. Relevant sections are 9, 19, 20, 20a, 21 which incorporate provisions of Article 13 E-Privacy Directive (as amended by 2009/136/EC) concerning the use of unsolicited advertising via email. Consolidated text, including the amends referenced in the italicised para below introduced by 2022:656 and effective September 1, 2022:
English version of 2008:486 (not up to date; last updated 03/01/2011)
http://www.government.se/content/1/c6/05/03/14/6c7aa374.pdf
Updated, but not including amends related to the 2019/2161 Directive:
http://www.g-regs.com/downloads/SWMktingActTransupdate.pdf
In March 2022, the Swedish government published a bill 2021/22:174 linked here (SW) Ett moderniserat konsumentskydd (Modernised consumer protection) which established the transposition of the 'Omnibus' Directive 2019/2161. The Marketing Act is the recipient for the amends the Directive made to the UCPD which for our purposes were three, essentially: the requirement to make available search ranking criteria, that traders ensure that consumer reviews originate from consumers who have actually used or purchased the product and the prohibition of '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.’ (from the Directive). The government bill sets out these amends under article 2.4. with detail thereafter.
Price
The Price Information Act (SFS 2004:347 Prisinformationslag). This act requires that consumers be given accurate and clear pricing information on products. The Marketing Act states in Section 12 (2) that where a product is marketed with a stated price, the price and unit price must be expressed as stipulated in Articles 7-10 of the Price Information Act. This provision has been confirmed by the regulatory authority – the Swedish Consumer Agency – whose guidance on price information is in the form of Regulation KOVFS 2012:1 (Section 2). In March 2022, the Swedish government published a bill 2021/22:174 linked here (SW) Ett moderniserat konsumentskydd (Modernised consumer protection) which established the transposition of the 'Omnibus' Directive 2019/2161. That Directive amended the Product Price Directive 98/6/EC to introduce new promotional pricing rules in article 6a here which require that '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.' (from the Directive; extract only). The Price Information Act is amended accordingly, under article 2.2. of the government bill. The link below includes the amends under section 7a, in force September 1, 2022.
Unofficial, non-binding English translation here; does not include 2022 amends
TV and radio
Radio and Television Act (SFS 2010:696). This Act implements the Audiovisual Media Service (AVMS) Directive 2010/13/EU. It applies to Broadcasters established in Sweden (Sect. 3 (1)). Specific provisions are for product placement (Ch. 6), sponsorship (Ch. 7) and commercial communications (Ch. 8). Provisions for radio advertising are covered in Chapter 15; the Act also covers on-demand TV. Provisions exceed the AVMS Directive in as much as advertising ‘may not aim to appeal to children under the age of twelve’; programmes primarily aimed at children U12 may not be surrounded or interrupted by advertising (Ch. 7, 8 (3) & Ch. 6 (2)). Consolidated text (Swedish):
GRS translation of key provisions:
http://www.g-regs.com/downloads/SERadio_TVActTSc.pdf
This act was amended effective November 2020 by SFS 2020:875 in order to address the amends to the AVMSD by Directive 2018/1808 (see above, or the linked file). Amended act here in Swedish:
Broadcast authority
The Swedish Broadcasting Authority (Myndigheten för Radio och TV). Formed 1 Aug 2010 by merging the previous agencies the Broadcasting Commission and the Swedish Radio and TV Authority. The Authority make decisions regarding licenses, fees and registration for radio and television, as well as supervising radio and television broadcasts, on-demand services and teletext.
http://www.radioochtv.se/Tillstand-och-registrering/Regler-om-tillstand/
Data processing
Data Protection pre-GDPR (see above) was primarily the domain of the Personal Data Act 1998:204, which was repealed and replaced by the new Data Protection Act 2018:218 (SW). In force 25 May 2018. Lag (2018:218) med kompletterande bestämmelser till EU:s dataskyddsförordning. The Data Protection Authority Datainspektionen makes it clear that the new law complements GDPR but does not replace any of its aspects. The new law has not been translated; original Swedish here:
Data authority
National regulatory authority: Datainspektionen. The Data Protection Authority (DPA) is a public authority, a central government agency which reports to the Ministry of Justice. Its principal task is to protect the individual's privacy in the information society.
http://www.datainspektionen.se/ and in English:
http://www.datainspektionen.se/in-english/
....................................................................................
Electronic communications
The Electronic Communications Act 2003:389 (Lag om elektronisk kommunikation - LEK) Issue 12/06/2003. Entry into force 25/07/2003. The ECA applies to electronic communication services and networks, including internet and telecommunication services and networks. The Act implements the E-Privacy Directive 2002/58/EC; an amendment in the form of Act 2011:590, implemented the Citizens Rights Directive 2009/136/EC, also known as the Cookie Directive. Entry into force 01/07/2011 (transitional provisions). Section 18 transposes Article 5 (3) E-Privacy Directive, courtesy of 2009/136/EC amendment. Consolidated text:
E-commerce
Act on electronic commerce and other information society services SFS 2002:562 (E-handelslagen) Issued 06/06/2002. Entry into force 01/07/2002. The law implements the Electronic Commerce Directive 2000/31/EC, laying down a minimum level of information required from Information Service providers. Relevant articles 8 and 9:
There’s a summary of requirements of the E-commerce act from the Swedish Consumer Agency here:
The Nordic Consumer Ombudsmen position on trade and marketing on the internet; October 2015 (SW):
Distance selling
Act 2005:59 on Distance and Off-Premises Contracts (Lag (2005:59) om distansavtal och avtal utanför affärslokaler). This law implements Directive 2002/65/EC concerning the distance marketing of consumer financial services. Amendment 2014:14 in part implements the Consumer Rights Directive 2011/83/EC by changing the name of the Act (Distance and Doorstep Sales Act) to its current title and replacing Chapter 2 (Distance contracts for goods and non-financial services) as well as repealing Chapters 4 (Doorstep Contracts) and 5 (Common Provisions).
Translation of relevant sections in Chapter 3 here:
http://www.g-regs.com/downloads/SWActDistandOPContracts.pdf
The Swedish Consumer Agency provides E-commerce guidance here:
https://www.konsumentverket.se/for-foretag/olika-saljkanaler/regler-nar-du-saljer-pa-internet/
A Government Agency which answers to the Ministry of Finance. Its Director-General is also the Consumer Ombudsman (Konsumentombudsmannen, KO). The Agency, along with others, is tasked with implementing the Government's consumer policy. It is responsible for reviewing marketing and advertising for whether it is misleading or unfair. Consumer law is from the Consumer Agency’s Statute Book Konsumentverkets författningssamling KOVFS. The KOVFS consists of regulations and general guidelines; the regulations are binding whilst the guidelines only guide. The Agency can take those to court who do not meet requirements, and can take measures against misleading advertising and other forms of marketing; unfair contract terms; incorrect price information; dangerous products and services etc.:
http://www.konsumentverket.se/
Children
The Swedish Consumer Agency’s Guidance on marketing aimed at children and young people. A document with the original Swedish together with an English translation is here:
http://www.g-regs.com/downloads/SWChConsAgGuidelinesChildren.pdf
The original Swedish document is here:
Social Media/ Infuencers
The Swedish Consumer Agency Guidelines on marketing in social media:
http://www.g-regs.com/downloads/SWConsAgencySocMediaGuidelines2020.pdf
Environmental claims
Guidance of the Nordic Consumer Ombudsmen, of which the Swedish Consumer Agency is a member; use of ethical and environmental-related claims in marketing. In Swedish here:
And translated here:
http://www.g-regs.com/downloads/SWGenNordicOmbudsmenEnvironmental_.pdf
Covert marketing
From the introduction: ‘It is important that consumers are not exposed to hidden marketing. Therefore, this is an area that is strongly prioritised by the Nordic Consumer Ombudsmen. Over the next few years, the Nordic Consumer Ombudsmen will share experiences and discuss developments in this area at Consumer Ombudsmen meetings that take place every six months. This position, which expresses the Nordic Consumer Ombudsmen's opinion of advertising identification rules, has been developed to inform companies about how to act in order not to contravene the ban on hidden advertising’. Translation from the Finnish website here:
Translation showing the original Swedish document together with an English translation:
http://www.g-regs.com/downloads/SWGenNordicHiddenMarketingB.pdf
Social media
The Nordic Consumer Ombudsmen's position on marketing through social media. From the Introduction: ‘The position is technology neutral and applies regardless of how the social media is made available. When business people are marketing through social media, the general marketing rules should be followed. The following sections deal with the rules that traders should be especially aware of when marketing through social media.’in Swedish:
Translated here:
http://www.g-regs.com/downloads/SWGenNordicOmbudsmenSocialMedia.pdf
Environment
From the introduction: ‘In recent years, focus has been directed towards additional societal considerations and values, as well as those environmental impacts associated with production, sales and marketing. Environmental issues can take in child labour, working environment, the relationship between rich and poor countries, support for charity purposes etc. The Nordic Consumer Ombudsmen have therefore considered that there is a need for new guidance about environmental issues in marketing, which includes ethical claims or statements such as those used in the marketing of companies or products.’ Translation including the original Swedish:
http://www.g-regs.com/downloads/SWGenNordicOmbudsmenEnvironmental_.pdf
E-commerce
The position of the Nordic Consumer Ombudsmen on trading and marketing on the Internet; October 2015. This document has not yet been translated:
Industry guidance and codes: RO
The Self-Regulatory Organisation in Sweden is Reklamombudsmannen (RO). From RO: ‘The main task of RO is to review commercial advertising and make sure advertising standards are kept high by Self-Regulating the industry. RO also inform and educate the public, the industry and the authorities about marketing ethics. RO uses the guidance of the Advertising and Marketing Communications Code from the International Chamber of Commerce (ICC Code) when assessing advertising'. Specific copy advice is available; RO does not pre-clear advertising. Individuals, companies and other organisations may file a complaint against commercial advertising that might be in breach. RO and their Jury/ Opinion Board (RON) review the advertising against the Code. Only commercial advertising aimed at the Swedish market can be assessed and not older than six months. Decisions are published on the RO website (English translation facility), as well as in newsletters and press releases, many of which receive significant attention. The ICC Code in Swedish is here:
https://cms.iccwbo.org/content/uploads/sites/3/2019/07/icc-2019-marketing-code-swe.pdf
ICC
ICC Advertising and Marketing Communications Code 2018:
https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf
General Principles
Chapter A. Sales Promotion
Chapter B. Sponsorship
Chapter C. Direct Marketing and Digital Marketing Communications
Chapter D. Environmental Claims in Marketing Communications
Additional ICC guidance and frameworks
(non-exhaustive)
The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.'
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
In Swedish:
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf
ICC Guide for Responsible Mobile Marketing Communications
The ICC’s Guidance on Native Advertising
https://cdn.iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
EASA
European Advertising Standards Alliance. ‘EASA has a network of forty-one organisations representing twenty-seven advertising standards bodies (aka Self-Regulatory Organisations) from Europe and 14 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter.’
Membership
http://www.easa-alliance.org/members
Best Practice Recommendations
Online Behavioural Advertising
Digital Marketing Communications
Influencer Marketing (2023)
Swedish Advertisers’ Association
https://www.annons.se/swedish-association-for-marketing-and-advertising
This advertiser trade body is a member of the WFA (see below). It appears to have placed guidelines etc. behind a membership wall
Environmental claims: ISO
ISO 14021: 1999 Environmental labels and declarations. Self-declared environmental claims. Published in 1999 to provide guidelines for the use of self-declared claims. ISO 14021 covers environmental claims about products made under the sole responsibility of the businesses concerned, i.e. self-declared environmental claims. It establishes general requirements for any environmental claims and seeks to ensure the relevance and sincerity of such claims. It also defines the requirements for the 12 most common self-declared environmental claims In addition to the twelve selected claims, the standard provides general requirements for all self-declared environmental claims (18 in total such as - a self-declared environmental claim shall be accurate and not misleading, be substantiated and verifiable, be relevant to that particular product etc.). A specific symbol selected in the standard is the Mobius Loop which applies to the product or packaging and is used with claims of recyclable and recycled content. The ISO Standard 14021 document can be purchased on the www.iso.org site:
http://www.iso.org/iso/catalogue_detail?csnumber=23146
SWEDMA
Swedish Direct Marketing Association (in Swedish): SWEDMA is the trade association for companies engaged in direct or interactive marketing in Sweden. Swedma also manages the Opt-out registers NIX-Adresserat and NIX-Telefon, in addition to the Ethics Board for Direct Marketing
Direct postal mail
Addressed Direct Mail rules; updated August 2012:
http://media.swedma.se/etiska_regler_adr_rev201208.pdf (SW)
Translation of the above:
http://www.g-regs.com/downloads/SWAddressedDMCodeEN.pdf
Unaddressed Direct Mail rules (not translated):
http://media.swedma.se/etiska_regler_odr_rev201208.pdf (SW)
An agreement between the National Consumer Agency and Swedma establishes that the distribution of unaddressed direct commercial mail does not include households that have made it clear that they do not wish to receive advertising, by the sign on the door or otherwise; material must be clearly identifiable as advertising, as must its source.
Consumer email rules; updated August 2013
http://media.swedma.se/etiska_regler_epost_b2c_2013.pdf (SW)
English translation:
http://www.g-regs.com/downloads/SWEDMAemailb2cEN.pdf
Marketing to businesses by email (B2B) rules; updated April 2013
http://media.swedma.se/etiska_regler_epost_b2b_2013.pdf (SW)
English translation:
http://www.g-regs.com/downloads/SWEDMAEmailb2bEN.pdf
IAB Sweden
IAB Sweden is ‘the networking and knowledge platform for interactive advertising and digital marketing in Sweden’:
Mina cookies website (administered by IAB Sweden):
IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)
WFA
This is the GDPR Guide for Marketers from the WFA (World Federation of Advertisers):
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
ESA
The European Sponsorship Association is at:
International
SECTION E SOURCES/ LINKS
ICC
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.' Platform:
https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/
Downloaded:
Translation of the code into eleven languages is here
Additional guides and frameworks
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 documents
ICC Guidance on Native Advertising (May 2015).
https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility. It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.
ICC toolkits
- ICC Toolkit: Marketing and Advertising to Children (2017)
https://iccwbo.org/publication/icc-toolkit-marketing-advertising-children/ - Summary and Toolkit for Advertising Agency/ Marketer:
http://www.codescentre.com/about-you/advertising-agency-views.aspx
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 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 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. 2016): 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:
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
EASA Best Practice Recommendation on Influencer Marketing 2018. 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 network5 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 European Interactive Digital Advertising Alliance (EDAA)
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
- Not to advertise food and beverages to children under 13 years, except for products which fulfil the EU Pledge common nutrition criteria;
- No marketing or advertising in primary schools, except where specifically requested by, or agreed with, the school administration for educational purposes;
- To abide by the International Chamber of Commerce (ICC) Code of Advertising and Marketing Communication Practice; and the ICC Framework for Responsible Food and Beverage Marketing Communications in all marketing communications.
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Channel Regulations and Directives
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
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.
- Working Document 02/2013 providing guidance on obtaining consent for cookies WP 208 (02.10.2013)
- Opinion 04/2012 on Cookie Consent Exemption WP 194 (07.06.2012)
- Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising WP 188 (08.12.2011)
- Opinion 15/2011 on the definition of Consent WP 187 (13.07.2011)
- Opinion 2/2010 on online behavioural advertising WP 171 (22.06.2010)
- Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
- Guidelines on Consent under Regulation 2016/679 May 2020
- Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679. February 2018
- Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR, in particular regarding the competence, tasks and powers of data protection authorities Adopted on 12 March 2019
Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
e-Privacy Regulation draft (10 February 2021)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Commercial practices
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: In 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
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
Food Regulations
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
Audiovisual media
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