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.
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:
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
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.
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
SNAPSHOT |
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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):
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.
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
The code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
All the individual rules themselves are set out in the following content section B and channel section C, as applicable
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or Channel | Key European legislation and clause |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
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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.
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
5. ICC FRAMEWORK FOR RESPONSIBLE MARKETING COMMUNICATIONS OF ALCOHOL
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)
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
From Section 2 of CAG (EN)
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
The above applies to commercial advertising in all media
2.4 Advertising in periodical publications etc.
From Section 3 of CAG
From Section 4 of CAG
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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).
3.1. Formatting of Health Messages
The information text referred to above shall be:
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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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
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
(Section 5.1. AAR)
(Section 5.2 AAR)
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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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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.
Advertiser/ Case
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KO versus Berntson Brands AB
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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
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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
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Advertiser/ Case |
KO versus Spendrups Bryggeriaktiebolag
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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 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)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
Identification and transparency (Art. 7)
Identity of the Marketer (Art. 8)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art.13)
Portrayal or imitation of persons and references to personal property (Art.14)
Exploitation of goodwill (Art.15)
Imitation (Art. 16)
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:
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:
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
D7 Responsibility
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2.2. ICC Framework for Responsible Environmental Marketing Communications
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
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:
2.5. European Commission/ MDEC guidance
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
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
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 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
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
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
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
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):
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:
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
SELF-REGULATION; the ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.2.3. Extracts from the ICC Code related to pricing
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of technical/ scientific data and terminology (Art. 9)
Use of 'free' and 'guarantee' (Art. 10)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art. 13)
Portrayal or imitation of persons and references to personal property (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Safety and health (Art. 17)
D1. Honest and truthful presentation
D2. Scientific research
D3. Superiority and comparative claims
D4. Product life-cycle, components and elements
D5. Signs and symbols
D6. Waste handling
D7. Responsibility
Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix.
Applicable self-regulation
Article 18.1. General principles
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
18.3. Avoidance of harm
18.4. Social values
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
Aggressive commercial practices
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
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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
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
STANDARD RULES
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)
SPONSORSHIP (Ch. 7 RTVA)
RADIO (Ch. 15)
Sponsorship on Radio
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
Clauses are from the Consumer Agency Guidelines
General clauses from CAG
Specific clauses from CAG
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)
CINEMA
Press, magazines, promotional literature, e.g. leaflets, brochures, etc.
OUTDOOR
The international association for OOH advertising is the World Out Of Home organisation (WOO); membership here
.............................................................................
Applicable Self-Regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Article B12 Media sponsorship
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
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)
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
SOCIAL MEDIA
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
E-COMMERCE
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
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Also be aware of:
The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation
The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market
The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)
Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth
And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry
And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
C1. Identification and transparency
C2. Identity of the marketer
C7. Marketing communications and children
C10. Respect for the potential sensitivities of a global audience
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Q&A: protecting privacy & confidentiality (EN)
Advokatfirman Delphi June 30, 2023
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
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
C22.1 Notice
C22.6 Children
Segments specifically designed to target children for IBA purposes should not be created
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
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022
Applicable regulation and opinion
Application of notice and choice provisions
C22.1. Notice
C22.2. User control
C22.5. Data security
C22.6 Children
C22.7. Sensitive data segmentation
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
STANDARD RULES
The Self-Regulatory code applied by RO is the ICC Advertising and Marketing Communications Code, which applies to commercial communications online
LEGISLATION
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
The 'Blacklist'
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):
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
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
Article C4. Presentation
Article C8. Respecting consumer wishes
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
General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:
19.1. Collection of data and notice
19.2. Use of data
Personal data should be:
19.3. Security of processing
19.4. Children’s personal data
19.5. Privacy policy
19.6. Rights of the consumer
19.7. Cross-border transactions
Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked Code
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an E-commerce context
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
Section 2: Commercial communications
Article 6
Article 7
Unsolicited commercial communication
EU guidance documents
The same principle that applies in paid space also applies in non-paid 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
Alcohol Advertising Recommendations Section 2.6.
TikTok is not included in the above; their rules are here
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)
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
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
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:
Article 7 of the ICC Code. Identification and transparency
Article 8. Identity of the marketer
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:
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
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. 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
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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
Article 7 of the ICC Code. Identification and transparency
Article 8. Identity of the Marketer
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
OTHER GUIDANCE
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
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.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Telemarketing is no longer in our remit
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
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:
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
OVERVIEW
LEGISLATION
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:
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
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
Article C4. Presentation
Article C8. Respecting consumer wishes
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)
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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As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
The following rules, taken from the Consumer Agency Guidelines linked above, are not necessarily specific to Event Sponsorship/ Field Marketing, but may be applied
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Situations that should not be associated with alcohol consumption
Gift Prohibition
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The European Sponsorship Association (ESA) may also be able to help/ inform
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)
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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
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
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:
In particular:
Information should include, where relevant:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause
The remaining articles are
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
A2: Terms of the offer
Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product
A3: Presentation
A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)
A4: Administration of promotions
Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations
In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
3 relevant clauses extracted
C3: The offer
C4 : Presentation
C17: Substitution of products
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
The 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
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
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:
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
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:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No. 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’).
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
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/
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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:
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
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 EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
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
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: 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
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925