Cars

 

Uploaded November 2018.

See individual countries for updates.

Belgium

A. Overview

Sector

SECTION A OVERVIEW

 

Updates

WLTP values

JEP review March 2020

Links refreshed Dec 2020

One-pager summary Jan 2021

Links reviewed September 2021

ICC Environmental framework 2021 (Nov)

Mercedes 'greenwashing' case August 2022

Tesla is fined millions of dollars for false advertising

Above from Electrek January 2023 re Korean market

Range Rover Sport ruling (FR) Feb 2023. Image here

New Febiac Car Advertising Code March 2023 (FR)

Above applicable May 1, 2023. Translation here

CCD II proposal plenary vote September 2023 (EN)

EASA Update CCD October 2023 (re car finance)

Reviewed November 2023; 2 links renewed

 

New Febiac Car Advertising Code March 2023 (FR) (EN)

Applicable May 1, 2023

Key changes electricity consumption statements for all-electric cars and additional environmental  provisions under a new article 5bis

 

CONTEXT AND SCOPE  

 

Belgium is one of the relatively few countries to deploy a specific car code, in this case co-driven by the Belgian motor trade association and the Self-Regulatory Organisation JEP. Belgium is subject to Energy Data Directives, so these two influences form the ‘spine’ of car marcoms regulation in this country. Rules that apply to all sectors, cars included, are shown under the General tab below. Marketing communications (marcoms) are defined in a self-regulatory context - the ICC Advertising and Marketing Communications Code (EN) is applied by JEP in Belgium - as including ‘advertising as well as other techniques, such as promotions, sponsorships and direct marketing, and should be interpreted broadly to mean any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ JEP’s remit was extended in February 2017 to include PoS and leaflets and brochures, and all forms of digital media.

 

SAFETY

 

Safety and responsibility rules are found in the self-regulatory Code on Advertising (EN 2023) (FR 2023) for Motor Vehicles and their parts and accessories from Febiac the Belgian Motor Trade Association and JEP, the Jury for Ethical Practice, the industry self-regulatory organisation - SRO. Articles 6 and 10, concerning safety aspects and children respectively, were amended in 2014. The Febiac Code states that car marcoms must not violate provisions from the Belgian Highway Code (the 1975 Royal Decree, as amended). Clauses are set out in our following content section B.

 

ENVIRONMENT

 

There are significant environmental stipulations within the Febiac Code, which also provides detail on the implementation of the Fuel Consumption and CO2 (FC&CO2) requirements including specifications on font size and formatting. More general guidance relating to advertising and the environment is contained in the Environmental Advertising Code (EN). Information on recycling practices and results are required by the Royal Decree of March 2004 (EN), which implements in part Directive 2000/53/EC on End-of-Life vehicles. This information on recycling practices and progress is required on ‘Promotional literature’ -  defined as ‘printed materials and web pages that are used for the direct or indirect purpose of promoting new cars’. The information is generally found on manufacturers’ websites. Details in our content section B under point 2. 3. More broadly, advertisers and agencies should be very aware of the sensitivity of environmental claims in this sector especially. See, for example, the Mercedes 'greenwashing' case from Mexico, August 2022. The 2023 version of the Febiac Advertising Code (EN) carries a new article 5 bis which addresses environmental claims specifically. 

 

Also relevant in this context is Chapter D - Environmental Claims - of the ICC Advertising and Marketing Communications Code, together with the ICC Framework for Responsible Environmental Marketing Communications 2021, updated and issued in November 2021. Appendix I carries a handy environmental claims checklist.

 

ENERGY DATA

 

As with all member states, there are specific rules in Belgium for stating FC&CO2 data per the EU Directive 1999/94/EC, transposed in Belgium by the Royal Decree of 5th September 2001 (FR). These rules apply to marcoms content in all print media including leaflets, brochures and showroom displays (referred to as promotional literature), as well as other ‘printable promotional material’ such as CD-ROMs and websites. WLTP values only from 2020. Full information in English in our following content section B and by channel in section C. In January 2021, following a series of complaints mainly relating to environmental claims and CO2 and fuel consumption statements, the Communication Centre asked its members quickly to raise awareness in the sector by sharing the one-pager in the appendix (FR) with a summary of the rules to be observed. Unofficial translation here. The 2023 version of the Febiac Advertising Code carries a new requirement to include electricity consumption in kWh/100 km; see article 5 of the linked code. A new article 5 bis addresses environmental claims specifically. 

 

CREDIT

 

Proposal for a Directive of The European Parliament and of the Council on consumer credits

 In May 2023, IMCO published proposed CCD II on which provisional agreement has been reached. Plenary vote September 2023

 

Agencies/ clients will be aware of the mandatory ‘Standard Information’ that is a statutory requirement in credit advertising as a function of the Consumer Credit Directive 2008/48/EC, applying to ‘any advertising concerning credit agreements which indicates an interest rate or any figures relating to the cost of the credit to the consumer’. These elements, if required to be present, and other aspects of financial promotions such as restricted expressions, should be reviewed/ finalised by national practitioners and advisors. In other words, check credit advertising with your lawyers.

The rules for advertising of consumer credit agreements in Belgium (applicable to all media), are originally from the Consumer Credit Act 12 June 1991 (EN), which implemented Directive 2008/48/EC via the Act of 13 June 2010. Provisions from the Consumer Credit Act are now in Book VII of the Code on Economic Law (FR): Credit advertising which includes an interest rate or any figures relating to the cost of the credit must set out ‘Standard Information’ by way of a representative example. All credit advertising must include a warning statement in either French or Dutch Attention, emprunter de l'argent coûte aussi de l'argent. (Watch out, borrowing money also costs money). Formatting requirements for both the standard information and warning statement are from the Royal Decree 21 June 2011 (EN). The law also prohibits some expressions/ statements in credit advertising; our following content section B for details.

 

CHANNEL RULES

 

Generally, the rules that are referenced above and set out in detail in the content section B apply in all channels/ media. Energy data requirements, however, have some very specific formatting requirements by medium, and are not required in television and radio, though some manufacturers include the data. Environmental information on ELV (End-of-Life vehicles) is required ‘on printed materials and web pages that are used for the direct or indirect purpose of promoting new cars.’ Full channel specs are in our section C below.

 

GENERAL RULES 

 

It is important that the rules for all product sectors, shown below under the General tab, are also observed; adjudications against car 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 Communications Code (EN) which is administered by JEP as the 'base' code in Belgium, the French, Dutch or German translations being applied according to the region. In legislation, Book VI of the Economic Law Code (ELC) delivers in Belgium consumer protection rules from two European directives - background note here and English translation of key provisions from the ELC here.

 

 
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General

SECTION A OVERVIEW

 

Updates since May 2022 (slimmed)

New JEP Influencer rules May 2022 (EN)

Law of 8th May 2022 (FR) transposing 2019/2161

CommToZero platform and guidelines (EN)

Chambers Advertising & Marketing 2022 (Nov)

Above includes review of Belgian law & practice

EU green claims regulation December 2022

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023

New Detergents Code (FR) Feb 2023

Greenwashing in advertising. Liedekirke Feb 16, 2023

Proposal for a Directive on Green Claims. March 22, 2023

European Commission press release on the above here 

New Febiac Car Advertising Code March 2023 (FR)

Above applicable May 1, 2023. Translation here

New Food code effective June 1, 2023

EN translation of the above here

Key changes in ad rules Lydian/Lex June 16, 2023

Q&A: online advertising in Belgium
Agio Legal/Lex. September 29, 2023

McDonald's 'sustainable beef' ruling (NL)

Above Nov 15, 2023. Curiously uncertain

CJEU rules on IAB's TCF. Hunton March 8, 2024

 

ISSUES/ NEWS 

 

Greenwashing and consumer protection: new European and Belgian rules ahead
Lydian/ Lex March 14, 2024

How brands and influencers can both succeed online (EN) Novagraaf. Jan 3, 2024

Influencer marketing: Wat moet je weten over reclamewetgeving? (NL) Novagraaf Group. 27 October 2023

What do you need to know about advertising law? Includes VRM's Content Creator Protocol (NL) for the Flemish region 

 

SELF-REGULATION

 

The advertising SRO JEP applies and administers the ICC Advertising and Marketing Communications Code (EN). Applicable ICC Code in French here and Dutch here. The code is structured in two sections: General Provisions and Chapters. The former are fundamental principles and other broad concepts that apply to all marketing in all media. Chapters apply to specific marketing areas:

 

Sales Promotion (A)

Sponsorship (B)

Direct Marketing and Digital Marketing Communications (C) and

Environmental Claims (D)

 

JEP also deploy sectoral codes such as the Covenant on Advertising and Marketing of Alcoholic Beverages, the Advertising Code for Foods (Fevia), Motor Vehicles (Febiac) - the latter two updated April 2023, see individual sector databases or 'Updates' above - for Cosmetic and Hygiene products (Detic), all of which are referenced and translated in their respective sectors on the WikiRegs website. Other rules relevant to this General sector are:

 

Rules on the depiction of people* FR-NL / EN

Rules on humour in advertising FR-NL / EN

2022 Influencer marketing guidelines FR-NL / EN

2019 Native Advertising Code FR-NL / EN

 

*In this context, the UBA Unstereotype Communication Charter has some influence. The original version is here in French. An unofficial English translation of the key clauses is here.

 

LEGISLATION IN MARCOMS 

 

Financial watchdog tightens rules on crypto advertising. Baker McKenzie/ Lex March 28, 2023

 

Book VI of the Economic Law Code (ELC) delivers in Belgium consumer protection rules from two European directives - background note here and English translation of key provisions from the ELC here. The Belgian authorities have partly extended protection to B2B transactions. Provisions can be found in the ELC translation linked earlier, articles VI. 103.1 and following, or clauses in English in our content section B. See Belgium adopts law implementing the Omnibus Directive from DLA Piper May 31, 2022 regarding transposition of the 2019/2161 consumer protection modernisation 'Omnibus' Directive, which was via the Law of 8th May 2022 (FR) amending Books I, 6 and 15 of the ELC. Articles 10, 29 and 30 deliver the requirements most relevant for our purposes, on price reductions, international marketing and consumer reviews and search rankings respectively. The equivalent articles from the Directive, so that the original intention is clear, are 2 (price reductions) and 3 (international marketing, search rankings and consumer reviews). There are some significant implications in e-Commerce, explained in the DLA Piper article linked above. 

 

The government department FPS Economy (EN) is the 'keeper' of the ELC and publishes a number of recommendations/ guidelines, including:

 

Content creators/ Influencers (FR )

Unfair practices in advertising (FR 2019)

Environmental claims guidelines (FR 2022; ENS5)

 

Channel rules 

 

Privacy issues should be reviewed with specialist advisors

 

The General Data Protection Regulation 2016/679 (GDPR) applied across Member States from 25 May 2018. The European Commission page on GDPR is hereOn 10/01/2018 the national Law of 3rd Dec 2017 replaced the Privacy Commission with the Data Protection Authority (DPA). The Law of 30 July 2018 (FR), the ‘Framework Act’, on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data. More information in relevant channels in section C. IAB Europe Transparency and Consent Framework is here and from May 2020 their Guide to the Post Third-Party Cookie Era. In February 2022, EU regulators ruled that TCF transgresses GDPR; story here. In February 2023 the Belgian DPA approved plans to fix; CJEU decision pending. Update from lawyers Heuking hereEuropean Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here.

 

Direct electronic communications

 

Provisions affecting (direct) electronic marcoms are under Chapter 3 (arts. 110-115) of Book VI Economic Law Code (ELC, as above) which part-implements article 13 of the e-Privacy Directive 2002/58/EC. The rest of article 13 is transposed via article 13 of Book XII ELC and articles 1 and 2 of the Royal Decree of 4 April 2003 FR-NL / EN. Together, these set out the consent and information rules required in the opt-in/ soft opt-in regime that generally prevails across member states. The obligations for  Information Society Service Definition any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service providers are from articles 6, 12 and 13 of Book XII ELC EN, which implements the e-Commerce Directive 2000/31/EC, requiring that certain supplier and promotional information is made easily available (normally, via a link) to consumers. Rules are spelt out in our channel section C under Email/ SMS, or see the linked files. Can I Send Marketing E-Mails Without Consent (Opt-In) To Former Customers? a blog from Timelex/ Mondaq March 2023 is a helpful run-through of the law's requirements and conditions. 

 

AV

 

Audiovisual media falls under the competence of the three Communities: Flemish, French and German-speaking. Rules on broadcasting in the form of media decrees all implement (slightly differently) the AVMS Directive 2010/13/EU (AVMSD). Amendments to the AVMSD were established by Directive 2018/1808 and transposed in Belgium by the Decree on Audiovisual Media Services and Video Sharing Services of 4 February 2021 (FR) which extends scope online and specifically to video sharing platforms where there are new rules requiring identification of commercial communications. Rules by channel are set out in full in section C, and AV content rules for Belgium are in section B. Content rules in the directive amendments are not significantly changed, though there is some potential pressure on food advertising to children in particular. The directive's new rules are here.

The Flemish media regulator considers that the above decree brings AV content from vloggers and influencers into scope; they have published in December 2021 the Content Creator Protocol (NL) which sets out three themes: commercial communication on social media, commercial communication and content aimed at minors and prohibition of violent and hate speech. Helpful article on the issue (in English) from DLA Piper here and ERGA's 2021 Analysis and recommendations concerning the regulation of vloggers is the definitive regulators' view on scope. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media; we wait to see if others will follow suit.

 

USE OF LANGUAGE

 

http://www.g-regs.com/downloads/BEUseofLanguage.pdf

 

SPECIFIC CLAIM AREAS
Environment

 

Greenwashing and consumer protection: new European and Belgian rules ahead
Lydian/ Lex March 14, 2024

EASA update on below October 18, 2023

Proposal for a Directive on Green Claims. March 22, 2023

European Commission press release on the above here 

Helpful summary and commentary here from GALA/Lex also March 22

 

Self-reg: the Code of Environmental Advertising FR - NL / EN from the Commission for Environmental Labelling and Advertising is administered and applied by JEP as a cross-sectoral code and supplements Chapter D Environmental Claims of the ICC Code (EN). Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (2021).

 

Legislation/ EC guidance: the use of environmental claims in advertising may be assessed against Book VI ELC EN; for a complete picture, refer to the December 2021 Guidance on the interpretation and application of Directive 2005/29/EC, section 4.1. Sustainability. Helpful in this context and specific to Belgium is Greenwashing in advertising: status quo and expected developments from Liedekirke/ Lex February 16, 2023. This points to, inter alia, Environmental claims guidelines (FR 2022; unofficial translation of key section 5 here) from the government department FPS Economy (EN). According to the earlier linked article, their 'actual impact has yet to be demonstrated' and 'in practice, the fight against greenwashing in Belgium is mainly conducted before Jep.'

 

The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. An industry-wide coalition involving CC-JEP members announced in September 2022 the CommToZero (EN) platform, 'aiming to cut the sector's carbon emissions and greenwashing and to promote a better and more sustainable consumer behaviour'. Part of this initiative is a Belgian version (EN) of the WFA Global GuidanceOn 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

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising with legal advisors

 

Legislation is from two sources: The Royal Decree of 30 June 1996 (as amended) on the Price Indication of Products & Services FR-NL, implementing the Product Price Directive (PPD) 98/6/EC, and  Book VI ELC, which delivers UCPD 2005/29/EC. The first Directive is referenced in the CJEU Citroën/ZLW case here, which ruled that prices must be ‘final’, and include the ‘unavoidable and foreseeable components of the price.’ Similarly, article 99 of Book VI ELC requires that an ‘Invitation to purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase should state ‘the price inclusive of taxes’ and any additional/ potential charges. Article 100 carries requirements for ‘promotional’ pricing. Guidance is from Commission Notice on the application of Article 6a of Directive 98/6/EC, which relates to the amends made to the PPD in the form of new promotional pricing rules, extracted from the amending Directive 2019/2161 here and transposed by the Law of 8th May 2022 (FR) amending Books I, 6 and 15 of the ELC - article 10 delivers the requirements on price reduction announcements and 'faithfully reflects' the directive.

 

Self-regulation: General Provisions of the ICC Code include some requirements relating to price: article 5, which refers to the requirement for a ‘total’ price, and 18.4 in the context of children and teens. Full information from legislation and self-regulation is under 3.2 Pricing in the following content section B.

 

 

 

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Read more

International

SECTION A OVERVIEW

 

Updates since Nov 2022 (slimmed; others below)
 

DLA Piper Global Influencer guide 

Coke's aspirational claims are not actionable

Frankfurt Kurnit Klein & Selz PC November 20, 2022

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023

Proposal for a Directive on Green Claims. March 22, 2023

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. Posted April 25, 2023

Self-regulation globally. FKK&S April 27, 2023

EASA Influencer Disclosure pan-Europe July 2023

Meta to switch to "consent" mechanism in Europe?

Re ad targeting. DLA Piper August 2, 2023

EU Influencer Legal Hub. Posted October 2023

EASA update Green Claims Directive Dec 2023

ICC Responsible Green Marketing Comms Jan 2024

CNIL fines Yahoo! €10 million over cookies policy
DAC Beachcroft February 7, 2024; refs other EU

2023 Privacy Year in Review. Troutman Pepper Feb 1

IAB Europe Guide to Quality February 2024

IAB Cookie Readiness report February 2024

CJEU rules on IAB's TCF. Hunton March 8, 2024

 

 

ISSUES/ NEWS/ COMMENTARY
Overspill links here (to follow)

 

General

DMA fully applicable. Wiggin/ Lex March 14, 2024

IAB Europe Implementation Guidelines for DSA 

EC Influencer sweep results Feb 14, 2024

Digital advertising & adtech under DMA & DSA Dentons

Key Digital Regulation & Compliance Developments

Updates across board. Morrison Foerster Feb 2, 2024

EASA Jan 2024 update on DSA and DMA 

How Will the Digital Services Act Impact Brands Online?*

William Fry December 12, 2023

 

Environmental

Directive Empowering Consumers for Green Transition in force
Taylor Wessing March 21, 2024

CSDDD here to stay. Schoenherr March 20, 2024

CSRD update. A&L Goodbody/Lex Jan 30, 2024

Is offsetting off the cards in the EU? Lewis Silkin 18 Jan, 2024

Sustainability reporting across borders.* Clifford Chance October 17, 2023

Green Claims Directive update Wiggin/ Lex March 21, 2024

Original EC press release here; EASA update Feb 2024 here

Proposal for a Directive on empowering consumers for the green transition

Above March 30, 2022. EASA update Jan 2024. Osborne Clarke Jan 31, 2024

 

AI

AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024

Tech Accord to Combat Deceptive Use of AI in 2024 Elections

Baker McKenzie Feb 21, 2024

EU and AI regulatory outlook. Osborne Clarke 18 Jan, 2024*

EASA update Dec 2023 AI Regulation 

AI's Failing Grade. Mark Scott Politico June 29, 2023*

UK vs EU Approach to Regulating AI. Baker Mckenzie/ Lex June 14, 2023

EU AI Act: first regulation on artificial intelligence. June 2023

Visual summary of the EU's AI Act's risk levels here 

 

Data/ privacy

Data Protection update - February 2024. Stephenson Harwood/ Lex

CJEU rules on IAB's TCF. Hunton March 8, 2024

EDAA launches new solution to DSA ad transparency requirements

'Pay or ok' challenged as ad-free subscription models under scrutiny*
DAC Beachcroft February 7, 2024

EASA Jan 2024 update on the Commission's cookie pledge and GDPR

Google Chrome starts blocking data tracking cookies. BBC Jan 4, 2023

The Future Of Behavioral Advertising In Europe And The United States*
InfoLawGroup LLP/ Lex. November 20, 2023

 

Children

Kids and Teens Online Safety and Privacy Roundtable

Baker Mckenzie July 26, 2023. Canada UK and USA. Video

EU: Two Key Decisions Highlight Issues When Handling Children's Data

Collyer Bristow/Lex 21 June, 2023

 

* Recommended read

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

ICAS releases 2022/2023 Global SRO Database and Factbook 

Above from ICAS December 2023

Advertising, Media and Brands Global Compliance Challenges

Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA

Chambers Global Practice Guide Advertising & Marketing 2022

Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland

 DLA Piper's Advertising Laws of the World August 31, 2022. '13 key jurisdictions.'

 

Data

Global Privacy: Year in Review and a Look Forward, 2023-2024
Morgan, Lewis & Bockius LLP. Asia & ME, UK & EU, US 

DLA Piper's Data Protection Laws of the World Handbook 2023 edition

Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively

 

1. SELF-REGULATION
1.1 The ICC Code
 
This International sector provides largely self-regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2018, underpins much of self-regulation worldwide.
 
Most countries feature national advertising self-regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide several translations of their code; ICAS, the International Council for Advertising Self-Regulation, list most if not all of the providers of self-regulation around the world. 
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of advice and good practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between paid and unpaid communications. These documents are placed and linked in relevant channels within the text in each country.
 
1.3 Structure and scope of the ICC Code

 

The code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

All the individual rules themselves are set out in the following content section B and channel section C, as applicable

 

Children

 

  • Article 18 of the General Provisions of the ICC Code covers children and teens at some length. Additionally, article C7 from the chapter Digital Marketing Communications addresses marketing communications and children
  • Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 
  • On the home page of this website, you'll find a complete Children's sector with the rules spelt out country by country 

 

1.4 Sector and channel rules 

 

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.

 

2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European directives and their national implementation in the sector and general rules shown elsewhere on this website. In this international context, we show only the most immediately relevant directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the self-regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere. A valuable June 2021 piece from Simmons and Simmons/ Lexology Media law and regulation in European Union focuses largely on the AVMS Directive and its amendment by Directive 2018/1808.

 

The issue with European rules is that it can be difficult to understand which regulation applies to which marketing technique or process, especially as some directives apply to several marketing tools. The table below provides an overview; the marcoms-relevant rules are set out in content section B and channel section C, as applicable.
 
European Directives in marketing

 

Issue or Channel Key European legislation and clause
Cookies
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
Electronic coms. Consent and Information 
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

Data Processing 

Regulation 2016/679/EU on the processing of personal data (GDPR) 

https://eur-lex.europa.eu/eli/reg/2016/679/oj

 

 

THE OMNIBUS DIRECTIVE

 

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.

 

 

 

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B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below.
Cars, like any other sector, must also observe the general advertising rules that cover misleadingness, decency, safety etc. The principal source of those rules in Belgium’s case is the ICC Advertising and Marketing Communications Code, the English version of which is here. The general rules are spelt out under the General tab below .

 

1. SAFETY

 

1.1. Safety symbol

1.2. Safety clauses

1.3. Highway Code issues

1.4. Children

1.5. Responsibility and etiquette
 

2. ENVIRONMENT


2.1. Environmental context
2.2. Environmental claims
2.3. Environmental information (End-of-Life vehicles)
2.4. Fuel Consumption and CO2 Emissions (Energy data)

 

3. CREDIT


3.1. Standard information
3.2. Warning message
3.3. Specific Prohibitions

 

4. PRICING. See general rules

 

 

 
  • Febiac Code (EN 2023) on advertising for motor vehicles, and their components and accessories, as amended March 2023
  • Highway Code; Royal Decree on the policing of road traffic and the use of public roads 1st Dec 1975 (as amended) Dutch version here; French version here. The most relevant clauses are translated below
  • 23/01/2002 Law on the advertising of motor vehicles (FR). This short and low-profile law requires ‘In order to promote road safety, any advertising for motor vehicles must carry a warning on the driver's responsibility regarding safe driving.’ (Art. 3). The state reserves the right to define the means by which this is done. The safety symbol below is taken to be the industry response

 

1.1. Safety symbol

 

Presumably in response to the above, Febiac (The Belgian Automotive Federation) recommended to their members in 2002 to include the following slogan, and optionally the symbol, in their advertising:

 

'Give priority to safety'; French: donnons priorité à la sécurité; Dutch: geef voorrang aan veiligheid

 

 

Use of the symbol does not comprise a rule in the Febiac code, so it is not an obligation. Inclusion of the slogan and optionally the symbol is considered to be best practice by Febiac. The recommendation is often implemented in print, but not always observed in other media. See examples here (press, first line of text) and here (poster) – both in French. Press ad in Dutch here. These are relatively old and it’s not too clear the extent to which this requirement still applies. We are in touch with Febiac to check.

 

1.2. Safety clauses

 

  • Advertising must not describe or display by text, sound or image, a behaviour on the road network in contravention of the rules of the Highway Code or safety requirements, except in the context of promoting the active and passive safety attributes of the vehicles and their components or accessories, in accordance with article 2 of this Code
  • Under no circumstances may advertising encourage such behaviour (Art. 6 Febiac Code)

 

1.3. Highway Code issues

 

  • Relevant provisions from the Highway Code in the context of car marcoms include but are not limited to Article 10/ 11 on Speed/ speed limits and article 35.1.1 on seat belts and child restraints. In this regard, marcoms should observe the following:
     
    • It is forbidden to encourage or cause a driver to travel at excessive speed (Art. 10.4 Highway Code)
    • The speed limit in urban areas is 50km/hr, although higher or lower speed limits may be imposed as indicated by road signs (Art. 11.1 Highway Code)
    • Outside cities, the speed limit is:
       
  • 2. 90km/hr: on four lane public roads with at least 2 lanes flowing in each direction, divided by road markings; and other public roads (Art. 11.2.2 HC); Changed to 70 for Flanders as regards so-called “Flemish regional roads” 
  • The driver and passengers travelling in motor vehicles must wear a seat belt in seats fitted with one
  • All children under 18 years of age and less than 1.35 m in height must be transported with an appropriate child restraint system (the safety belt itself only offers adequate protection for children taller than 1.35 m). Note Definition An appropriate child restraint system is determined by weight: Group 0 car beds suitable for babies up to 10kg; Group 0 +, babies up to 13kg – rearward facing baby seats; Group 1: children weighing 9-18kg must use car seats facing forwards which are usually held in by 5 straps; Groups 3 (15-25kg) and 4 (22-36kg) are usually combined and covers a booster seat whereby the child must travel in an adapted car seat using a normal seat belt. Taken from JeSuisPour.be
  • Children under 18 years of age may not be transported using a rearward-facing child-restraint system in a passenger seat protected by a front air bag, unless the air bag has been deactivated or it has been automatically deactivated in a sufficient manner (Art. 35.1.1 HC)
  • On motorways and national roads, the driver of a broken-down vehicle which ended up in a location where stopping and parking are forbidden must wear a fluorescent/ reflective safety jacket/ vest as soon as he/ she leaves the vehicle (Art. 51.4 HC)
 

Further safety clauses from the Febiac Code

 

Marcoms must not:

 

  • Make a case for speed, particularly top speed, or imply its appeal. The same applies to power, acceleration, braking power or any other characteristic of a vehicle where speed is a factor. Power, maximum speed, acceleration capability and other measurable data concerning the vehicle can be included in the list of technical data in catalogues and brochures and in press articles; this applies to every aspect of the advertising message: text or spoken message, or the visual element (Art. 1 Febiac Code)
  • Use the power reserve of the engine or braking options to encourage greater speed, but may be presented as safety factors, with a view to helping drivers to develop a sense of responsibility (Art. 1 Febiac Code)
  • Present or illustrate active and passive safety properties of the vehicles and their components or accessories in a way that would suggest that they allow the rules of prudence and road safety to be broken (Art. 2 Febiac Code)
  • Show or use images of or references to races, rallies etc. unless they are unequivocally the vehicles and their parts or accessories just as they are used and seen during the race. It must be clearly stated that production vehicles are not designed for use in day-to-day traffic as if they were competition and rally cars.(Art. 3 Febiac Code)​

 

1.4. Children

 

  • See Highway Code references above re seat belts/ child restraints
  • Children may appear in a commercial in order to recommend behaviour that improves safety or for the purpose of promoting safety-related or comfort-related features. Children may also appear in a commercial in a family context (Art. 10 Febiac Code)
  • On the above bullet point, see the Seat adjudication from March 2013 (FR). Note that the clause was amended in May 2014 to add the final sentence (‘Children may also appear etc.’), so this ad censured by the SRO in 2013 would probably be acceptable under the 2014 version of the provision (this point provided by the SRO, JEP)
  • Under no circumstances may children be referred to in advertising that is related in any way, directly or indirectly, to hazardous or 'sportsmanlike' behaviour (Art. 10 Febiac Code)
  • When children, or any other occupant, are shown in a motor vehicle, they must always be using the safety devices required by law (seatbelts, age-related booster seats, airbags, etc.), unless it is indisputably evident that the vehicle is not part of the traffic/ contributing to road traffic (Art. 10 Febiac Code) Counsel interpretation is that this infers that it must be obvious that the vehicle is not in motion or transit; the vehicle is off the road with the keys out of the ignition

 

1.5. Responsibility and etiquette

 

  • Advertising may never portray careful behaviour when driving a car or using a component or accessory in a disparaging or demeaning way (Art. 8 Febiac Code) 
  • Any display or description of or reference to disrespectful or aggressive behaviour towards other road users must be excluded from advertising(Art. 7 Febiac Code)
  • Describe or display in the text, sound or image any driving behaviour in contravention of the Highway Code or safety requirements, except in the context of promoting the active and passive safety qualities of vehicles and components or accessories in compliance with Article 2 of this Code. In no case may advertising encourage such behaviour (Art. 6 Febiac Code also referenced earlier)
  • All information contained in advertising relating to driving or the use of components or accessories as well as complying with road safety rules and respect for other road users must be presented positively (Art. 9 Febiac Code)

 

 

2.1. Environmental context

 

From article 4 of the Febiac Code on advertising for motor vehicles, unofficial translation here

 

  • Advertising must not encourage excessive behaviour that could harm the environment
  • Advertising may use a location that obviously has nothing to do with the road network to demonstrate or describe the characteristics of a vehicle, component or accessory, provided that when using either text or image:

 

  • The private nature of the location is made obvious, or that 
  • The location is obviously not accessible to ordinary road users, or that
  • It is clear that permission has been given for the location to be used in that way

 

2.2 Environmental Claims 

 

Clause immediately below added in the March 2023 version of the Febiac Code 

 

  • Advertising must not use slogans or absolute statements that are likely to mislead the consumer as to the properties and characteristics of the vehicle in relation to its effects on the environment, in accordance with the requirements of the ICC Code. On the other hand, a message indicating that elements of the vehicle contribute to limiting the environmental impact is likely to introduce an acceptable note provided that this can be substantiated (Art. 5bis Febiac Code 2023)

 

More general, as opposed to car-specific, rules are provided in the Environmental Advertising Code (FR), EN translation here, key clauses below: see full code

 

  • Advertising must be designed so as not to exploit the concerns of society as a whole on environmental issues, or exploit any lack of knowledge in this field (Art. 1)
  • When the qualities or benefits of a product or service in terms of effects on the environment depend on conditions or specific terms of consumption or use, advertising must indicate those, otherwise the advertiser must be able to demonstrate that the consumer information is accurate (Art. 5)
  • References to the effects on the environment cannot suggest they apply to more stages of the life cycle of the product or service or more properties of the product or service than is the case and must clearly indicate at what stage of the product cycle or to which property they apply (Art. 6)
  • Expressions, statements or absolute slogans such as, for example, "good for the environment," "environmentally safe ", ... implying a product or service has no impact on the environment any stage in its life cycle are prohibited, without evidence established under Article 14 of this Code (Art. 7)
  • If the advertisement refers to the absence or reduced proportion of ingredients or elements with an effect on the environment and that compared to the same category of products or services available previously on the market, that which has been reduced must be clearly identified. Any replacement elements should provide a significant reduction in pollution of the environment that must be proved in accordance with Article 14 (Art. 8)
  • Scientific or environmental terminology is acceptable provided it is relevant and easily understood by consumers. All confusion on the topic must be avoided (Art.10)
  • Advertising cannot suggest false superiority or disparage other products or services that are similar in terms of effects on the environment. Environmental superiority over competitors can only be claimed if a significant advantage can be demonstrated (Art. 12)
  • The advertiser must be able to justify with certainty and without delay any statement, indication, illustration or presentation referring to effects on the environment. To be valid, the evidence must, if challenged, be approved by an organisation or person accepted by the parties concerned, provided it is deemed necessary by the supervisory body of the Code (Art.14)

 

 

 

End-of-Life vehicles

 

  • Royal Decree of 19 March 2004 laying down product standards for vehicles (Arts 1(7), 5, and 7; and Annex III) translation here
  • This decree implements in part the Directive 2000/53/EC on End-of-Life Vehicles (ELV) relevant article 9 (2)
     

Online

Every manufacturer and/ or importer must publish online information on: (Art. 5 (1a-d) RD2004)

 

  • The design of vehicles and their components with a view to their recoverability and recyclability (at the very least this information is brand-specific)
  • The environmentally-friendly treatment of end-of-life vehicles, in particular regarding the removal of all fluids and dismantling
  • The development and optimisation of ways to reuse, recycle and recover end-of- life vehicles and their components
  • The progress achieved with regard to recovery and recycling to reduce the waste to be disposed of and to increase the recovery and recycling rates

 

This information must be set out according to the minimum requirements listed in Annex III; see link under header above (Art. 5(3) RD2004). BMW example here:
http://www.bmw.be/fr/topics/Recycling/bmw-recycling.html

 

Promotional literature

Promotional literature is defined as printed materials and web pages that are used for the direct or indirect purpose of promoting new cars available on the market in Belgium (Art. 1(7) RD2004). All promotional literature must clearly include the following statement (Art. 7 RD2004):
 

  • “Environmental Information (RD 19/03/04): (the website address for the brand or type of vehicle displayed)”, so that potential buyers or lessees can have prior knowledge of the information listed above (per Art. 5)
  • In French: “Informations environnementales (AR 19/03/04): [website address]” AR = Arrêté royal; in Dutch: “Milieu-informatie (KB 19/03/04): [website address]” KB = Koninklijk besluit 
     

Printed material example; print ad in French here and here

 

 

  • Royal Decree 05/11/2001 (EN) implementing Directive 1999/94/EC on the availability of consumer information on fuel economy and CO2 emissions for consumers in the marketing of new passenger cars; the linked translation of the Decree does not carry amends relating to the labels at points of sale. Law carrying the amendment in French here
  • WLTP values only from September 2019, per Decree here (FR) emanating from Commission Recommendation 2017/948
  • Self-regulatory Febiac Code (EN 2023) on advertising for motor vehicles

 

The Royal Decree requires fuel economy and CO2 emissions of new passenger cars to be provided or displayed in 4 ways. We deal primarily with the fourth, Promotional Literature definition here All printed matter used in the marketing advertising and promotion of vehicles to the general public. It includes, as a minimum, technical manuals, brochures, ads in newspapers magazines and trade press and posters  and other promotional material definition here Definition any printable media used when selling, advertising, and promoting cars to the public. This includes, as minimum, CD-ROMs and web pages with a Belgian domain name that refer to models offered on the Belgian market. In practice, this refers to manufacturer websites, but note that the Febiac Code also applies the information requirements to online banner ads and other IMU’s in which the information is accessible via a link within the banner ad, which must contain the official fuel consumption and CO2 emissions data for the passenger car to which it refers, in line with requirements of Annex IV (Art. 7 RD2001, as amended); the Febiac Code supplements the Decree with additional measures on the specifications and implementation of information requirements; details below. This information must meet the following minimum requirements:

 

  • It must be easy to read and no less prominent than the main information featuring in the promotional literature or in the reproductions or images obtained from other promotional material
  • It must be easy to understand, even when read quickly
  • Data relating to official fuel consumption must be provided for all models covered by the promotional material or in the reproductions or images obtained from other promotional material
  • If the promotional material covers more than one model, the option exists to display either the official fuel consumption for all models covered or the range between the least efficient and most efficient model (i.e. the highest and lowest official fuel consumption figures from the model range; note that the Febiac Code - see below - also requires the min. and max. values from the range of CO2 emissions to be stated; this is regarded as best practice). Example ad here
  • Fuel consumption is expressed in litres per 100 kilometres (l/100 km), with an accuracy to within one decimal point
  • If the promotional literature or other promotional material only reference the make/ brand and not a particular model, fuel consumption figures are not required (note: the same applies to CO2 emissions; the Decree is not clear on this. The Directive is)
  • The presence of other indications, symbols or inscriptions relating to fuel consumption or CO2 emissions which do not comply with the requirements set out in the Decree is prohibited if it is likely to cause confusion for the potential customer of a new passenger car (Art. 6/8 RD2001)

 

The March 2023 version of the Febiac Code includes the following under article 5:

 

Although the regulations do not require it, advertising for 100% electric vehicles (BEV) should as a matter of course state the electricity consumption of said vehicles and in the following form:
 
  • Electricity consumption in kWh/100 km (combined cycle, WLTP)
  • A value when the advertisement uses a single model or the minimum and maximum values when the advertising uses several models 
 
CO2 emissions must be stated in g CO2/km

 

Specifications from the Febiac Code (EN)

The Febiac Code provides more specific implementation of the Decree above, stipulating rules for the layout and size of the energy data to be used in the promotional material. It also includes additional provisions for online, which are set out later in channel section C, and which go beyond Directive 1999/94/EC. The average FC&CO2 data calculated in an official test cycle must be displayed (Art. 5 Febiac Code):

 

  • Horizontally in relation to the advertised message
  • Below the picture and separately from other text
  • In an easily readable font and arranged with normal spacing
  • So that it stands out clearly against the background
  • In a font size that is at least equal to the smallest size used for the text in the advert itself, with minimum sizes by format for each character (shown by medium in Section C Channel/ Targeting, or here for print and here for online

 

See example Audi ad here

 

 

Proposal for a Directive of The European Parliament and of the Council on consumer credits

 In May 2023, IMCO published proposed CCD II on which provisional agreement has been reached. Plenary vote September 2023

 

Agencies/ clients will be aware of the ‘Standard Information’ that is a statutory requirement in credit advertising as a function of the EU Consumer Credit Directive 2008/48/EC. These elements if present, and other provisions such as restricted expressions, should be reviewed/ finalised by national practitioners and advisors. In other words, check credit offers in advertising with your lawyers. Belgium is one of a few countries also to mandate a warning message for all forms of credit advertising

 

Legislation (applicable to all media):

  • From 01/04/2015 provisions from the Consumer Credit Act (CCA) were integrated into Book VII of the Code of Economic Law (CEL), Arts. 64 and 65 from Title IV. Translation here
  • Royal Decree 21 June 2011 (Abbrev. RD2011) amending various decrees on consumer credit. Translation of article 14 here

 

3.1. Mandatory ‘Standard Information


Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the following standard information (Art. 5 (1) CCA / Art. 64 (1) Bk7CEL):

  • The borrowing rate, fixed and/ or variable, together with information on any expenses/ charges included in the total cost of the credit to the consumer
  • The amount of credit
  • The annual percentage rate (APR) 
     
    • JKP - jaarlijkse kostenpercentage
    • TAEG - le taux annuel effectif global
       
  • The duration of the credit agreement
  • In the case of credit in the form of deferred payment for a specific product or service, the cash price and the amount of any down payment (i.e. advance payment), and
  • If applicable, the total amount payable by the consumer and the amount payable by instalments

 

Formatting requirements

  • The typeface (font) used for the Standard Information listed above (i.e. borrowing rate, credit amount, APR etc.) must be larger than the typeface used for other basic information (Art. 14 (1) RD2011)
  • If the marcom refers to an APR equal to 0%, zero, or a related promotional rate, the typeface used to indicate that statement can only be three times larger than the typeface used in advertising communicating the other standard information referred to in the opening paragraph above (such as credit costs/ interest rates)
  • If the marcom concerns a credit agreement where, due to the provision of a series of reduced repayment amounts, the APR is lower than when the repayment amounts are always set at an even level, the typeface used to indicate the APR and the repayment amounts can only be three times larger. (Note: the expression 'three times larger'* is ambiguous; for example, if the font size is 10, three times larger might mean 40 (one time larger is 20 etc.). The expression 'three times as large', however, implies comparison by division: 30 is three times as large as 10.) than the typeface used to convey the other standard information as referenced in the opening paragraph above i.e. such as credit costs (Art. 14 (2.2) RD2011)
  • The typeface used to indicate the highest repayment amount cannot be smaller than the typeface used for other repayment amounts (Art. 14 (2.2) RD2011). GRS note: this is to prevent an ad using a large font to state e.g. "only 100€ monthly repayment during first 23 months!” and then in a smaller font “and 7000€ for the 24th and last monthly repayment".

 

* For interpretation and application of this provision, seek legal advice

Example ads here: Print ad French and Print ad Dutch  (0% finance)

 

3.2. Warning message

 

Article 5 (2) CCA
N.B. The warning message must be included in any consumer credit advertising (Art. 64 (2) Bk7 CEL)

In French: “Attention, emprunter de l'argent coûte aussi de l'argent”;
In Dutch: “Let op, geld lenen kost ook geld”
(Watch out, borrowing money also costs money)

 

Formatting requirements (Art. 14 (3) RD2011)

 

  • The font size of the warning message must be a minimum of 4% of the height of the advertising space and a minimum font size value of 7 points
  • When the marcom refers to the inexpensive or beneficial nature of a credit agreement or encourages a new credit drawdown, without any reference to an interest rate or credit costs, the typeface/ font used to illustrate the warning message must be at least the same size as the typeface/ font of the text used in the marcom to indicate the special nature of the credit or the drawdown incentive
  • With Internet advertising, and where the warning message is only available via a link on a banner, the message on the linked web page must be shown only in a san serif face which is at least as large as the largest face on the banner (italics ours)

 

  • Here is an example of an ad where there is a credit cost but apparently no chance of including a visible warning message:
    http://www.g-regs.com/downloads/BEFiat500InternetBanner.jpg
  • Example print ads: French and Dutch (Note the credit warning message and how the standard information is larger than the other information. These ads also show 0% APR)

 

3.3. Specific prohibitions

 

Art. 6 CCA / Art. 65 Bk7CEL

 

Marcoms for credit agreements that specifically focus on the following are prohibited:

 

  • Encouraging consumers to redraw/ use credit when they cannot face their debts
  • Enhancing the ease or speed with which credit can be obtained
  • Encouraging the consolidation or centralisation of outstanding loans or which state that current credit agreements have little or no influence on the assessment of an application for credit

 

Also prohibited is any marcom for a credit agreement which:

 

  • Refers to an authorisation (a licence), a registration or an enrolment (i.e. refer to a licence or registration number for the credit lender or intermediary)
  • Referring to the maximum annual percentage rate or the legality of applied rates, gives the impression that these rates are the only ones which can be applied; any reference to the maximum annual percentage rate legally permitted and to the legally permitted maximum lending rate must be made unequivocally, legibly and conspicuously or where appropriate audibly, and must accurately state the maximum APR legally permitted
  • Indicates that a credit agreement can be concluded without information that assesses the consumer’s financial situation
  • States an identity, address or aspect other than that provided to the SPF Economie, P.M.E., Classe moyennes et Energie by the advertiser as part of the process of approval, registration, or enrolment
  • When indicating a type of credit, uses a different description than that used in this Act’s designation
  • States attractive rates without indicating the specific or restrictive conditions to which the advantage of these rates is subject
  • Indicates with words, signs or symbols that the value of credit is made available in cash
  • Mentions the word “Free Credit” or a similar expression, other than the statement or indication of the APR (Note therefore that the statement “0% APR” is permitted, subject to the formatting conditions outlined in the Royal Decree of June 2011 linked above, i.e. the font for “0% APR” must be three times larger than the font used in the advert to describe the other standard information referred to in Art. 5, s. 1, para. 1 CCA, meaning interest rate or figures relating to the cost of credit)
  • Promotes an act which must be considered a breach or violation of this Act or its decrees

 

 

 

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SEE THE GENERAL TAB BELOW FOR THE RULES THAT AFFECT ALL PRODUCT SECTORS, CARS INCLUDED

 

General

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

1. SELF-REGULATION

1.1. JEP General Code (from the ICC Code)

1.2. JEP Rules/ recommendations

1.2.1. Depiction of people

1.2.2. The use of humour in advertising

 

2.  LEGISLATION

2.1. Misleading Commercial Practices

2.2. Unfair B2B Commercial Practices

2.3. Content of audiovisual commercial communications 

 

3.  SPECIFIC CLAIM AREAS

3.1. Environmental claims

3.2. Pricing

 

4. ADJUDICATIONS 

 

 

1.1. The JEP General Advertising Code, which is a direct transposition of the ICC Advertising and Marketing Communications Code, will apply; extracts below 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

 

Social responsibility (Art. 2)

 

  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition

 

Decency (Art. 3)

 

  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned

 

Honesty (Art. 4)

 

  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:

 

  • Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
  • The value of the product and the total price to be paid by the consumer
  • Terms for delivery, exchange, return, repair and maintenance
  • Terms of guarantee
  • Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
  • Compliance with standards
  • Official recognition or approval, awards such as medals, prizes and diplomas
  • The extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Such substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code
 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
 

Identity of the marketer  (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty
  • The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called ‘teaser’ advertisements)

 

 

Comparisons (Art. 11)

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected
 
  • 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; 12. Denigration; 13. Testimonials; 14.Portrayal of people and property; 15. Exploitation of goodwill; 16. Imitation; 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 Sales Promotion, Sponsorship, Direct Marketing and Digital Marketing Communications, Environmental Claims in Marketing Communication
  • Where the rules are channel-related, they are shown in our following Channel Section C

 

 

 

1.2.1. Rules on the depiction of people ENNL-FR

 

1. Every advertisement should be prepared with a due sense of social responsibility and cannot be such as to impair public confidence in advertising (Art. 1 ICC Code)

2. Advertisements should not contain statements or visual presentations which offend prevailing standards of decency (Art. 2 ICC Code)

 

  • Depending on the feeling/ sensitivity of society at a given time, the public audience exposed to the advertising, the social or cultural contexts, and its evolution as well as the validity (currency/ relevance), it is desirable that the advertising does not devalue or abuse the human being which, by spreading an image infringing their dignity and decency, is likely to shock or even offend the public. In this regard, it is appropriate to pay attention to the tone of the messages and their visual presentation
  • The representation of the human body in whole or in part cannot be of an indecent or obscene nature. Special care must be taken when the representation (depiction) of the human body is unrelated to the product and its objective and subjective characteristics. When advertising uses nudity, particular efforts shall be made to ensure that its representation cannot be regarded as demeaning and alienating

 

3. Advertisements should not condone any form of discrimination, including that based upon race, national origin, religion, sex or age, nor should they in any way undermine human dignity (Art. 4.1 ICC Code). Thus, the following should be avoided:

 

  • Generating contempt, disrepute or ridicule regardless of the ethnic, social, professional, economic or demographic group to which a person belongs
  • Exploiting, promoting or developing pejorative (disparaging / derogatory) comparisons based on the sex, age, race, nationality, social or professional status of individuals. Advertising cannot ignore the skills, aspirations and roles of various human and social categories.
  • Likewise, endorsing the idea of the inferiority or the superiority of a person because of their affiliation to a social group, or even promoting, directly or indirectly, feelings or behaviours of exclusion, intolerance or racism, should be avoided

 

4. Advertisers must be aware at all times to changing moral values and avoid contributing to the perpetuation (protraction/ continuance) of social prejudices or stereotypical images that run contrary to changing conditions in society (societal development) or ideas accepted by large segments of the population

 

  • This is why using stereotypes, referring to characters intended to be representative of a social, ethnic group etc. must make particular efforts to comply with the principles developed in these Guidelines
  • It is necessary to avoid inducing a sense of submission or dependence devaluing the individual/ human being or presenting in a complacent manner a situation of domination or exploitation of a person by another

 

5. Advertisements should not appear to condone or incite violence, nor to encourage unlawful or reprehensible behaviour (Art. 4.3 ICC Code)

 

  • Gratuitous use of violence, direct or implied and any incitement to violence whether physical or psychological should be avoided. The concept of violence covers at least all illegal, unlawful and reprehensible activities provided for in current legislation. Direct violence translates into (results in) the representation of the act of violence itself; implied violence means an atmosphere, indeed a context resulting in an act of violence; psychological violence includes, in particular, dominating behaviour patterns and harassment (psychological or sexual)
  • Advertising shall not under any circumstances trivialise violence through statements or presentations

 

1.2.2. Rules on humour in advertising (1992) ENNL-FR

 

  • As in any communication, humour is not in itself objectionable. However, since advertising is a communication with a commercial purpose, humour is subject to restrictions distinct from those found in other areas, such as editorial content in the media, or in the world of entertainment
  • Moreover, the use of humour (in written form, audio, visual, or graphic) never absolves the author or creator of the message from legal or ethical responsibility. Advertising cannot be made which is contrary to the law or rules of advertising ethics
  • So, humour must not lead to:

 

  • Deception/ misleadingness about measurable and verifiable facts
  • Denigrating or discrediting:
     
    • A product or service
    • A person or group of people
    • An institution or organisation
    • Moral, religious, philosophical or political convictions
       
  • Use of disparaging/ derogatory references or indications based on the gender, age, race, nationality, social or economic status of individuals
  • The incitement of reprehensible behaviour in terms of safety, health or social responsibility
  • The use of caricature or parody therefore requires caution and requires a case-by-case assessment. The use of prior copy advice from JEP in sufficient time before production and dissemination of the advertising is highly recommended

 

 

 

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation. In December 2021, the European Commission issued Guidance on the interpretation and application of Directive 2005/29/EC

 

2.1. Core rules

 

  • The key law is Book VI of the Economic Law Code FR-NL: ‘Market Practices and Consumer Protection.’ English translation of key provisions here
  • See article 97 for misleading actions and misleading omissions, the latter of which includes rules relating to an 'invitation to purchase' Definition 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 
  • ​Article 100 represents the ‘Blacklist’. These are the provisions transposed from annex I of the Directive 2005/29/EC that set out market practices that are ‘in all circumstances considered unfair’
  • Articles 5 and 6 from e-Commerce Directive 2000/31/E, found in articles 6 and 12 Book XII of Code of Economic Law EN, set out information requirements in an e-Commerce context

 

2.2. Comparative advertising

 

  • Under Article 17 (1), comparative advertising shall be permitted when it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI
  • ‘Comparative advertising’ means any advertising that, explicitly or implicitly, identifies a competitor or goods or services offered by a competitor (Art. I.8 (14) from Chapter 4 of Book I Definitions of the ELC) 

 

 

Article 17 (Chapter V) of Book VI. Comparative advertising

 

1. Comparative advertising shall be permitted when the following conditions regarding the comparison are met:
 

  1. it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI; English translation of the relevant section here
  2. It compares goods and services meeting the same needs or intended for the same purpose
  3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
  4. It does not create confusion among businesses, between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor
  5. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
  6. For goods with designation of origin, it relates in each case to goods with the same designation
  7. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
  8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name


2. All comparative advertising which does not respect the conditions laid down in § 1 shall be prohibited

 


Unfair B2B commercial practices; see Chapter 2, Book VI Arts. 105-109

Belgium has extended the scope of its legislation to B2B transactions only for certain banned practices from Annex 1 of UCPD

http://www.g-regs.com/downloads/BEGenB2BUnfPractices.pdf

 

 

2.3. Content of audiovisual commercial communications

 

 

  • The Audiovisual Media Service Directive 2010/13/EU in its original form regulated European broadcast media; as the media landscape has developed and ‘digitised’, so has the directive, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platforms in particular
  • in this section we set out only the commercial communication content rules. The Directive continues to regulate e.g. AV media sponsorship, product placement, commercial communication minutage, programme sourcing etc. Where the rules affect commercial communications we show them in our following Channel Section C
  • Much of the regulation is aimed at broadcasters, social media platforms and VOD providers, versus advertisers/ agencies. Nevertheless, it is a significant influence in the European media landscape for all brands; the recent amends referenced above are important for the media platforms they cover and as a result the advertising that appears in that media
  • The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The translations we show below are unofficial and non-binding. These are not significantly changed versus former iterations – amends were largely to scope, i.e. where the rules apply. Key changes to Content rules in the Directive are here 
  • Belgium’s AV regulatory set-up is complex; media is a cultural matter and therefore under the supervision of individual French, Dutch or German-speaking regions. The media authorities in each region have in the past transposed directives somewhat differently. In this case, the law linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities’ (from a helpful blog on the subject from lawyers Baker McKenzie). We are not clear where the federal and regional rules ‘meet’; seek specialist advice if uncertain, albeit observing the Directive’s rules should keep you in good stead

 

 

Book II, Title III
(note: aimed at broadcasters/ providers)

 

Art. 2.3-1

 

Programmes and commercial communications may not be transmitted that:

 

  1. Transgress laws, decrees and regulations or are counter to the general interest
  2. Offend human dignity
  3. Contain public incitement to commit a terrorist offense as referenced in article 137 of the Criminal Code
  4. Promote a current of thought, belief or opinion that constitutes a threat to democracy, human rights and fundamental freedoms guaranteed by the Constitution or the European Convention on Human Rights or seek to undermine the good faith of the public
  5. Are inclined to deny, minimise, justify or approve of the genocide committed by the German National Socialist regime during World War II, as well as any other form of genocide
  6. Constitute offenses relating to racism and xenophobia referenced in the law of July 30, 1981 to repress certain acts inspired by racism and xenophobia
  7. Constitute offenses related to child pornography, within the meaning of article 383 bis of the Criminal Code

 

 

Art. 2.3-2

 

  • All providers of video sharing services must take appropriate measures to protect the user from user-generated programmes and videos encountering the situations referenced in article 2. 3-1
  • Other provisions related to video-sharing services are found in this section of the Decree but are not directly related to content of commercial communications; see Section C/3 Online Commercial Communications 

 

 

Book II, TITLE IV
Women's rights, equality and non-discrimination

 

Art. 2.4-1

 

Programmes and commercial communications may not be transmitted that:

 

  1. Undermine respect for equality between women and men or contain or promote discrimination or incitement to discrimination, hate, or violence based on sex or similar criteria which are in particular pregnancy, motherhood, sex change, gender expression, gender identity or including incitement to violence against women and domestic violence
  2. Comprise or promote discrimination or incite discrimination, hatred or violence, in particular on the grounds of nationality, assumed race, skin colour, ancestry or national origin or ethnicity, age, sexual orientation, religious or philosophical belief, disability, marital status, birth, wealth, political belief, language, current or future state of health, a physical or genetic characteristic, social background or membership of a union

 

 

BOOK V
Commercial communication

 

Title I general provisions includes definitions not shown here

 

Title II. Commercial communications in linear and non-linear services

 

  • Art. 5.2-1. Commercial communication must not transgress laws, decrees, regulations and European directives as well as the regulations of the advisory committee of the Audiovisual Council (CSA) referenced in Article 9.1.2-1, sections 1 and 2, and approved by the Government, which regulate advertising in general or advertising for certain products or services
  • Art. 5.2-2. In addition to compliance with the provisions of Book II, Titles 3 and 4 (see above), commercial communication may not:

 

  1. Encourage behaviour prejudicial to health or safety, in particular by promoting violent behavior
  2. Encourage behaviour prejudicial to the protection of the environment
  3. Contravene the rules on literary, artistic and industrial property and the right of personal portrayal
  4. Contain references to a specific person or institution, of statements or declarations from them, without their permission or that of their dependents
  5. Be about attachment to a religious or philosophical belief

 

  • Art. 5.2-3. Commercial communication must not cause physical, mental or moral detriment to minors and in particular in this context must meet the following criteria for their protection:

 

  1. It cannot encourage excessive consumption of food products and drinks containing trans fatty acids, salt, sodium or sugars, the regular intake of which is not recommended for health; the Advisory Board of the CSA drafts and updates one or more codes of conduct allowing the establishment of proven guidelines on the basis of best practice designed to ensure compliance with this point
  2.  It must not directly encourage minors to buy or hire a product or service by exploiting their inexperience or credulity
  3. It must not directly encourage minors to persuade their parents or third parties to buy the products or services concerned
  4. It must not exploit the special trust that minors have in their parents, teachers or other persons
  5. It must not unreasonably show minors in a dangerous situation

 

Art. 5.2-4

 

  1. Commercial communication must be easily identifiable as such. It must be clearly separated from programmes or programme sequences by clearly identifiable optical or acoustic means
  2. Any direct or indirect reference in the commercial communication of the programme or programme sequence likely to create confusion as to the commercial nature of the communication is prohibited
  3. Commercial communication must not use subliminal techniques
  4. The volume of commercial communication spots, as well as the announcements that precede and follow them, must not intentionally fluctuate, by whatever means, with respect to the rest of the programmes
  5. Surreptitious commercial communications are prohibited
  6. The second sentence of § 1 is not applicable to sponsorship, virtual advertising and product placement. The second paragraph is not applicable to sponsorship and self-promotion

 

 

 

3.1. Environmental claims

 

Self-Regulation

 

  • The Advertising Code in Belgium is a direct transposition of the ICC Code; in particular, Chapter D Environmental Claims in Marketing Communications
  • The Code of Environmental Advertising FR-NL / EN (CEA) mirrors the principles and provisions in the ICC Code 
  • ICC Framework for Responsible Environmental Marketing Communications 2021 provides 'added guidance on some established environmental claims and additional guidance on some emerging claims'. Appendix I carries an Environmental Claims Checklist

 

3.1.1. Key provisions

 

We set out below only the clauses from the most significant of several national self-regulatory influences, the Code of Environmental Advertising (CEA), which closely reflects the ICC Code’s Chapter D:

 

  • Advertising must be designed so as not to exploit the concerns of society as a whole on environmental issues, or exploit any lack of knowledge in this field
  • Advertising may not encourage, nor appear to endorse or promote, behaviour or actions that conflict with the protection of the environment, especially under the law or self-regulatory codes
  • Advertising may not contain a claim, designation (sign/ mark/label), illustration or representation that is likely to mislead directly or indirectly on the properties and characteristics of a product or service related to its environmental impact
  • When advertising refers to the contribution of a company or group of companies to environmental protection, the reference to products, services or particular actions/ practices cannot give the impression without justification (substantiation) that they are representative of the entire activity of a company or group of companies
  • When the qualities or benefits of a product or service in terms of environmental impact depend on conditions or special rules for consumption or use, advertising must specify them or failing that, the advertiser must be able to demonstrate/ provide evidence that the consumer information is provided
  • References to environmental impact cannot give the impression they apply to more stages of the life cycle of the product or service or to more properties of the product or service than is actually the case and must clearly indicate the stage of the product cycle or the property to which they apply
  • Expressions, claims/ statements or absolute slogans such as, for example, ‘good for the environment’ (FR: bon pour l'environnement NL: milieuvriendelijk) ‘environmentally/ ecologically safe’ (FR: écologiquement sûr NL: ecologisch veilig), ... implying that a product or service has no impact/ effect on the environment whatever the stage of its life cycle, are prohibited, without evidence established under Article 14 of this Code
  • If the advertisement refers to the absence or a reduced proportion of ingredients or elements having an effect on the environment compared with the same category of products or services previously placed on the market, it must be clearly stated what has been reduced. Possible replacement elements must bring a significant reduction in environmental damage, which will have to be proved/ substantiated in accordance with Article 14
  • Advertising can use scientific reasoning or findings on environmental impact only if they comply with the standard of proof as set out in Article 14
  • Scientific or environmental terminology is acceptable provided it is relevant and easily understood by consumers. Any confusion on this point must be avoided
  • Testimonials or certificates can only be used to support arguments referring to environmental impact if their content is in line with the state of development of science or technology in this area, given the composition of the product or service and market conditions at the time of their use
  • Advertising cannot suggest false superiority or disparage other products or services that are similar in terms of environmental impact. Environmental superiority over competitors can only be claimed if a significant advantage can be demonstrated
  • Signs or symbols on environmental impact cannot be misleading or cause confusion about their meaning. These signs or symbols must not falsely imply official approval
  • The advertiser must be able to justify/ substantiate with certainty and without delay any claim, designation (name/ mark/ label), illustration or representation referring to environmental impact. To be valid, the evidence must, in the case of a challenge, be approved by an organisation or person accepted by the parties concerned, provided it is deemed necessary by the supervisory body of the Code (i.e. JEP)

 

Legislation/ EU/ ISO

 

3.1.2. Channel-specific

 

The AVMS Directive 2010/13/EU carries an environmental claim provision under Article9/ iv: audiovisual commercial communications shall not: encourage behaviour grossly prejudicial to the protection of the environment. This provision is transposed in the February 2021 Decree on audiovisual media services and video sharing services under article 5.2.-2 in Book V, Title II, losing the word ‘grossly’ along the way

 

3.1.3. EU guidance

 

  • 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’). Section 4.1. covers Sustainability, environmental claims at 4.1.1, from which: 'The coordinated screening of websites ('sweep') that the Commission and national consumer authorities carried out in 2020 confirmed the prevalence of vague, exaggerated, false or deceptive green claims', with some half of 'green claims' lacking evidence

 

 

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors

 

3.2.1. Channel-specific

 

a) TV/ Radio

 

  • Price statements should not be such as not to cause children to minimise the real value of the product or service. No advertising aimed at children should imply that the product or service is within the reach of any family budget (Point 6 CSA’s Advice Note FR)
  • Commercial communications may not contain elements that are aimed at misleading the consumer as regards: the price or the way in which the price is calculated, as well as the conditions subject to which the goods are delivered or services are provided (Art. 60.1.2 FlMD EN)

 

b) Online/ e-commerce

 

  • Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included Art. 6 (2) Book XII of Code of Economic Law (EN)

 

3.2.2. Self-Regulation; from General Provisions of the ICC Code

 

  • Marcoms should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them. Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget (Art. 18.4 Children and Young People, ICC Code)
  • The term 'free', e.g. 'free gift' or 'free offer', should be used only:
     
    • Where the offer involves no obligation whatsoever; or
    • Where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • In conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer (Art. 7: use of 'free', ICC Code)
       
  • Marcoms should be truthful and not misleading. Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to: the value of the product and the total price to be paid by the consumer (Art. 5: Truthfulness, ICC Code)

 

Legislation/ case law

 

  • Product Pricing Directive 98/6/EC (PPD) implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL; the PPD was amended by Directive 2019/2161, adding rules re promotional pricing extracted here. Guidance from the Commission on the application of this new article 6a is here. The rules were required to be in force in member states by 28 May, 2022
  • Belgium eventually transposed via the law of 8th May 2022 (FR) amending Books 1, 6 and 15 of the CEL (Code of economic Law), which faithfully transposed the directive's rules 
  • Case law CJEU Citroën/ZLW case C‑476/14
  • Book VI of the Economic Law Code (FR / NL) Market Practices and Consumer Protection; English translation of key provisions here (Arts. 99 and 100)

 

3.2.3. Key points

 

  • Where advertising states the price of a product, the selling price should be stated; selling price is defined in the PPD linked above as the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Art. 2a, PPD)
  • The Directive was referenced in the Citroën/ZLW case C‑476/14 where it was ruled: ‘As a final price, the selling price must necessarily include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the ‘pecuniary consideration for the acquisition of the product concerned’ (para. 37, Citroën case)
  • On promotional pricing, from article 6a of the directive, now transposed in Belgium in the law of 8th May 2022, which amends the CEL: '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.’;

 

3.2.4. Misleading action

 

  • 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 in relation to: the price or the manner in which the price is calculated, or the existence of a specific price advantage (italics ours) even if the information is factually correct, and in either case it causes or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 97.4 Book VI CEL)

 

3.2.5. Misleading omission/ Invitation to Purchase

 

In the case of an invitation to purchase, Definition commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. I.8 (23) Book I CEL) it will be regarded as a misleading omission if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits:

 

  • 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
 

 

Adjudications from JEP are here. There's a search facility on these pages

A high profile decision on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld

 

 

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

International

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

 

  1. SELF-REGULATION; the ICC Code

1.1. General provisions

Includes key legislation and ICC framework
Includes key legislation and ICC framework
 
  1. THE LAW 

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

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

1.1 General provisions 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful;
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
  • No communication should be such as to impair public confidence in marketing.

 

Social responsibility (Art. 2)

 
  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering;
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior;
  • Marketing communications should not play on superstition.
 

Decency​ (Art. 3)

 
  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
 

Honesty (Art. 4)

 
  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading;
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
     
    • characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact;
    • the value of the product and the total price to be paid by the consumer;
    • terms for delivery, exchange, return, repair and maintenance;
    • terms of guarantee;
    • copyright and industrial property rights such as patents, trade marks, designs and models and trade names;
    • compliance with standards;
    • official recognition or approval, awards such as medals, prizes and diplomas;
    • the extent of benefits for charitable causes.

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code.

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
 

Use of technical/ scientific data and terminology (Art. 9)

 

  • Marketing communications should not
     
  • misuse technical data, e.g. research results or quotations from technical and scientific publications;
  • present statistics in such a way as to exaggerate the validity of a product claim;
  • use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity.

 

 

Use of 'free' and 'guarantee' (Art. 10)

 

  • The term "free", e.g. “free gift” or “free offer”, should be used only
     
    • where the offer involves no obligation whatsoever; or
    • where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer.
       
  • Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that;
  • The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal;
  • Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not;
  • The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous.

 

Comparisons (Art. 11)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected.

 

Denigration (Art. 12)

 

  • Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule.

 

Testimonials (Art. 13)

 

  • Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
  • Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used.

 

Portrayal or imitation of persons and references to personal property (Art. 14)

 

  • Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved.

 

Exploitation of goodwill (Art. 15)

 

  • Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution;
  • Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent.

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time.

 

Safety and health (Art. 17)

 

  • Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards;
  • Instructions for use should include appropriate safety warnings and, where necessary, disclaimers;
  • Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk;
  • Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary;
  • Such health and safety warnings should be made clear by the use of pictures, text or a combination of both.

 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)
  • Note that there is no equivalent 'environmental claims' section under The Law header below; authorities generally apply the UCPD's misleading actions or omissions clauses when cases come before them. Additionally, the EC guidance document linked below contains specific sustainability claims guidance under section 4.1. There are, meanwhile, a raft of measures emerging from the legislative process in the EU that we have set out in the Overview Section A

 

D1. Honest and truthful presentation

 

  • Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge;
  • Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry;
  • An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments;
  • Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made;
  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.

 

D2. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence;
  • Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology);
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence.

 

D3. Superiority and comparative claims

 

  • Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose;
  • Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative;
  • Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging.

 

D4. Product life-cycle, components and elements

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis;
  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement;
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted;
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code.

 

D5. Signs and symbols

 

  • Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification.

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described.

 

D7. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23).

 

 

Additional guidance

 

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

 

  • Special care should be taken in marketing communications directed to or featuring children or teens
     
    • Such communications should not undermine positive social behaviour, lifestyles and attitudes;
    • Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them;
    • Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them.

      For rules on data protection relating specifically to children’s personal data see article 19

      For other specific rules on marketing communications with regard to children:

       
    • with respect to direct marketing and digital marketing communications see chapter C, article C7;
    • within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications.

 

 

18.2. Inexperience and credulity of children

 

Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:

 

  1. When demonstrating a product’s performance and use, marketing communications should not
     
    1. minimise the degree of skill or understate the age level generally required to assemble or operate products;
    2. exaggerate the true size, value, nature, durability and performance of the product;
    3. fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described.
       
  2. While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
  3. Marketing communications directed to children should be clearly distinguishable to them as such.
 

18.3. Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic.

 

18.4. Social values

 

  • Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect;
  • Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values;
  • Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them;
  • Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget;
  • Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved.

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page 

 

Applicable self-regulation and legislation 

 
  • ICC Framework for Responsible Food and Beverage Marketing Communications here (EN)
  • The EU Pledge, enhanced July 2021 effective Jan 2022
  • Regulation 1924/2006 on nutrition and health claims made on foods
  • Regulation 432/2012 establishing a list of permitted health claims on food 
  • Regulation 1169/2011 on the provision of food information to consumers
  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page of this website 

 

Applicable self-regulation and legislation 

 

 

Legislation 

 

Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

 

  1. it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;
  2. it shall not link the consumption of alcohol to enhanced physical performance or to driving;
  3. it shall not create the impression that the consumption of alcohol contributes towards social or sexual success;
  4. it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
  5. it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
  6. it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.

 

 

2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD) 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)

 

Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here

 

Guidance 

 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA

 

Article 6. Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

(a) the existence or nature of the product;

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;

(e) the need for a service, part, replacement or repair;

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;

(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.

 

2.   A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

 

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:

 

(i) the commitment is not aspirational but is firm and is capable of being verified, and

(ii) the trader indicates in a commercial practice that he is bound by the code.

 

(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.

 

 

Article 7. Misleading omissions

 

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

 

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

 

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.

 

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

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;

(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.

 

4a.  When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.

 

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

 

6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.

 

 

ANNEX I

 

Commercial practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

1. Claiming to be a signatory to a code of conduct when the trader is not.

2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.

3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.

4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product (bait and switch).

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.

9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.

10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).

11a.  Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.

13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.

16. Claiming that products are able to facilitate winning in games of chance.

17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

23b.  Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.

23c.  Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.

 

Aggressive commercial practices

 

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.

28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

  • there is no prize or other equivalent benefit, or
  • taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.

 

 

 

2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.

 

Article 3

 

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

2.   Member States may decide not to apply paragraph 1 to:

 

  • products supplied in the course of the provision of a service;
  • sales by auction and sales of works of art and antiques.

 

3.   For products sold in bulk, only the unit price must be indicated;

4.   Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.

 

Article 4

 

1.   The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;

2.   The unit price shall refer to a quantity declared in accordance with national and Community provisions.

 

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

 

Article 5

 

1.   Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.

2.   With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.

 

Article 6a

 

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

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

 (d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.

 

Article 7

Misleading omissions

 

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

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.

 

Annex I

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product ('bait and switch').

 

 

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

 

 

2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:

http://www.g-regs.com/downloads/ICCPricingextracts.pdf

 

 

 

2.2.4.The AVMS Directive and amend 

 

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

 

  1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited;
  2. audiovisual commercial communications shall not use subliminal techniques;
  3. audiovisual commercial communications shall not;

 

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

 

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

 

  1. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 (see pt. 1.5 above).

 

The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4

 

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C: TV & RADIO/ AV

 

  • The safety, responsibility, environmental, and credit provisions shown in section B above apply in television, as do the general advertising rules from JEP that apply to all sectors and media
  • The channel rules that apply to all product sectors, cars included, are set out under the General tab below. Included are e.g. rules for sponsorship and for product placement 
  • Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 content section B above 
  • Credit advertising of any form must include the warning message; see point 3 content section B, which also sets out additional provisions on e.g. restricted expressions
  • FC&CO2 data are required for all print media including notably leaflets, brochures and posters or displays in showrooms; some manufacturers may include the data in audiovisual communications
  • The AVMS Directive 2010/13/EU and its amending Directive 2018/1808 is implemented by the Decree of 4th February 2021 (FR). Article 5-2.2 in Book V Title II states that commercial communications must not encourage behaviour prejudicial to health or safety, or prejudicial to the protection of the environment. This is a rule that applies to all sectors and extends beyond broadcast into online and in particular video-sharing platforms as a result of the directive's amends; included here because of car marcoms relevance
  • The Febiac Code (EN 2023) provides the key content rules for car marcoms in Belgium (excluding those for credit)

 

 

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

General

SECTION C: TV & RADIO/ AV

 

 

CONTEXT AND KEY SOURCES

 

  • The European media landscape is undergoing significant change and its regulation is changing with it; the Audiovisual Media Service Directive (AVMSD) 2010/13/EU in its original form regulated European broadcast media, as that’s where ‘audiovisual’ media was; as media has digitised, so has the scope of the AVMSD, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platform services (VSPS) in particular
  • For the purposes of this section – TV/Radio/VOD – not a great deal has changed as a result of the directive’s amends to the channel issues that the section covers, i.e. those for product placement, sponsorship etc. Amends are largely to do with scope and with new rules for VSPS, shown under our later Online Commercial Communications header
  • The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The content rules from the decree are shown in our earlier content section B and, as above, do not change significantly, albeit more generally there are new pressures on self-regulatory systems. Key changes to content rules in the directive are shown here; see articles 4a and 9 for references to self-regulation in food and in alcohol
  • Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. The media authorities in each region have a record of transposing directives somewhat differently. In this case, the 2021 Decree linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie)
  • We are getting confirmation of where the federal and regional rules ‘meet’ and which jurisdictions prevail; seek specialist advice if uncertain (and the authorities are below), albeit observing the directive’s rules should keep you in good stead and they are anyway to a large extent ‘covered’ by self-regulatory measures, especially in matters of misleadingness, not addressed in AVMSD rules

 

MEDIA AUTHORITIES AND SOME RULES/ LAWS 

 

Note: we no longer check and translate the individual community decrees/ rules/ decisions

 

Per above, there are four authorities in Belgium:

 

  1. Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles for the French-speaking community
  2. Vlaamse Regulator voor de Media (VRM) for the Flemish-speaking community and
  3. http://www.medienrat.be/ for the German speaking community
  4. Belgian Institute for Postal Services and Telecommunications – BIPT – for the bilingual Brussels-Capital Region. Background In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities, Flemish and French; in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services on the territory of the bilingual Brussels-Capital Region and from the link

 

Their rules are from:

 

  • Décret coordonne sur les services de médias audiovisuels (FR; CSA August 2018) applicable to the French-speaking community in Belgium
  • Fifth management contract RTBF 2019-2022 FR, applicable to RTBF, the public broadcasting service of Belgium's French-speaking community; the latest contract includes requirements for 'health messages' in commercial communications for'HFSS' foods; see our Food sector on the home page or Section E links of this database  
  • Flemish Media Decree of 27 March 2009 as amended April 2021 on radio and television broadcasting applicable to the Flemish region NL / EN (non official translation of the Act from VRM updated 04.03.2021; does not include April 2021 amends)
  • Applicable to the German-speaking community, the Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021 DE). Transposes the amends from the AVMS Directive 2018/1808. Art. 32 under Chapter 4 for new rules for video-sharing platforms. Art. 12 for the ‘standard’ rules re identification, the environment etc., art. 17 for the protection of minors and arts. 19 and 20 for product placement and sponsorship
  • Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region FR-NL (EN translation of relevant provisions); the act is a direct transposition of the AVMS Directive
  • The above is the latest region-specific act; it is our understanding that the applicable rules will now be from the Decree of 4 February 2021 (FR) referenced above
  • Some of the authorities publish separate advice notes on various subjects; the CSA (French-speaking authority) for example publish product placement and sponsorship rules 
  • The content rules specifically for TV/ Radio and VOD in Belgium reflect in broad terms the requirements of article 9 of the AVMS Directive 2010/13/EU, though some communities have interpreted these more aggressively, especially with regard to children; the rules in the German/ Flemish/ French communities are shown together in a table here albeit these do not reflect the latest (minor) amends to content of commercial communications in the AVMS Directive from Directive 2018/1808, as shown in the Decree of 4th February linked above

 

 

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International

SECTION C TV/AV AND RADIO

 

 

EASA Jan 2024 update on the AVMSD

 

APPLICABLE SELF-REGULATION AND LEGISLATION

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

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

LEGISLATION KEY CLAUSES 

 

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

 

Article 9

 

1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 

 

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Read more

2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The safety, responsibility, credit, and environmental rules for cars that are set out in content section B apply in this channel, except those rules specific to broadcast 
  • The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found beneath the sector rules in content section B
  • The Febiac Code (EN 2023) provides the key content rules for car marcoms in Belgium (excluding those for credit)
  • Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 content section B, which also sets out additional provisions on e.g. restricted expressions
  • Credit advertising of any form must include the warning message; see point 3 content section B above 
  • FC&CO2 requirements apply to print media; some advertisers extend compliance across all media

 

 PRINT
Press, magazines, promotional literature, e.g. leaflets, brochures, etc.

 

  • The safety, responsibility, credit and environmental rules for cars set out in section B above will apply
  • The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found under the Sector rules in content section B
  • Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘standard information’. See point 3 content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - standard information and warning message - are here and under Point 3 content section B, which also sets out additional provisions on e.g. restricted expressions
  • The environmental information on End-of-Life Vehicles set out under Point 2.3 in the content section B should appear in ‘Promotional Literature’

 

FC&CO2 data

 

  • Specifications and formatting for print are under point 2.4 in the content section B above and assembled in summary here
  • When referring to a car brand/ make and not to a specific model, FC&CO2 data do not need to be included
 
OUTDOOR

 

  • The credit requirements set out in above content section B apply to all media; note that credit advertising which includes an interest rate or any figures relating to the cost of the credit must set out ‘Standard Information’ by way of a representative example
  • A warning statement 'Attention, emprunter de l'argent coûte aussi de l'argent.' (Watch out, borrowing money costs money) must be included in any form of credit advertising. Section B for details, and formatting requirements here
  • The safety, responsibility, and environmental provisions, including FC&CO2 data, for cars set out in section B will apply, together with the rules for all sectors, cars included
  • Formatting and spec for FC&CO2 data is linked above under the print heading
  • The Febiac Code (EN 2023) provides the key content rules for car marcoms in Belgium, excluding those for credit

 

 

 

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General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

The content rules set out in our earlier Section B are applicable to all of the channels in this section, except those rules that are specific to broadcast and to online

 

CINEMA

 

  • There are no general channel rules that are specific to cinema according to our research. There are targeting restrictions in some product categories such as alcohol, and food and soft drinks. See those categories for details. If the advertising content may be judged to be in some way inappropriate for children, check with JEP or the contractor for a view on potential restrictions
  • Brightfish Belgium is the SAWA (Screen Advertising World Association) representative in Belgium. Contact them directly for any further information on cinema advertising in Belgium: http://www.brightfish.be/
 

PRINT

 

  • There are no self-regulatory channel rules that are specific to print. As with cinema, some targeting restrictions will apply in more sensitive sectors
  • General content rules will apply, in particular in this context (because of the prevalence and growth of ‘native’ advertising in print) Article 7 of the ICC Code (EN) Identification of advertising, a key principle running through the Journalistic Codes 
  • JEP’s 2019 Native Advertising Code (EN) applies when deploying the native technique. The key rule is: where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used. Full information and guidelines in the linked code

 

OUTDOOR

 

  • Advertising/ marcoms content is subject to the rules set out in our earlier section B, except for those rules that are specific to broadcast and online

 

 

The international association for OOH advertising is the World Out Of Home Organisation WOO; membership list here

 

 

 

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International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable self-regulation and legislation 

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)

 

Refer to Content Section B for provisions; of particular relevance below:

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

 

Legislation key clauses 

 

Annex I of the UCPD 

 

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

Article B12 Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This particular section provides the broad picture for the commercial digital environment. More specific channel rules 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, in owned and (some) earned space as well as paid

 

STANDARD RULES 

 

  • The content rules shown in section B for safety, responsibility, the environment, and credit apply online, except those rules specific to broadcast/ audiovisual 
  • Related to the above point, the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 is implemented by the Decree of 4th February 2021 (FR). Article 5-2.2 in Book V Title II states that commercial communications must not encourage behaviour prejudicial to health or safety, or prejudicial to the protection of the environment. This is a rule that applies to all sectors and extends beyond broadcast into online and in particular video-sharing platform services (VSPS) as a result of the Directive's amends
  • VSPS are required under the terms of the Directive/ Decree (Book V) that commercial communications, where these are known to exist, must be identified by the user who uploads videos and by the service to the end user
  • The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found beneath the sector rules in content section B
  • The general channel rules, i.e. those that apply to all product categories, cars included, are shown below under the General tab. Note that these include statutory consent and information requirements in some channels/ media
  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 content section B, which also sets out additional provisions on e.g. restricted expressions
  • The environmental information on End-of-Life vehicles set out under Point 2.3 in our content section B should appear in ‘web pages.’ Full requirements are here; most manufacturers appear to observe this rule on their websites

Fuel Consumption and CO2 emissions (WLTP values only)

 

  • The Royal Decree extends FC&CO2 data requirements to 'other promotional material', defined as any printable media used when selling, advertising, and promoting cars to the public. This includes CD-ROMs and web pages with a Belgian domain name, essentially referring to manufacturer websites. The Febiac Code (EN 2023) provides specifics for websites, and extends requirements to online banner ads. Formatting requirements from the code are in summary as follows:
  • FC&CO2 data must be included on web pages displaying details of the technical characteristics (engine) of the vehicle shown
  • On a website for a make of car, a summary page must include a table (or similar) showing all of the figures relating to FC&CO2 data for the vehicle range. This information must be clear and easy to print. The summary page must make it easier to compare the different makes and models
  • Visitors must be able to access this comparative table from each page of the website simply by clicking on a tab, menu or any other link
  • For banners, pop-ups or skyscrapers (IMUs, interactive marketing units) and other advertising formats on websites unrelated to the make of car, it is necessary to make sure that fuel consumption and CO2 emission figures are also clearly legible or directly accessible by a click taking the user to a page where all the relevant information is displayed and can be printed. Example ad here (with link)
  • If the printable media (website, CD-ROM etc.) only refer to the make/ brand and not to any particular model, fuel consumption figures are not required; the same will apply to CO2 emissions
  • The 2023 version of the Febiac Code (EN) includes a requirement to state electricity consumption in advertising for 100% electric cars; see article 5

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section provides the regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment. The definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’. 

 

SELF-REGULATION

 

  • Chapter C of the ICC Code (EN): Direct Marketing and Digital Marketing Communications 
  • ICC Guide for Responsible Mobile Marketing Communications
  • 2022 JEP Influencer Marketing Guidelines (EN)
  • JEP’s 2019 Native Advertising Code (EN) applies when using the native technique. The key rule is: Where the commercial purpose of the communication is not immediately and clearly apparent from the content and/ or context, an explicit identifier must be used. Full information and guidelines in the linked code
  • Commercial communications online, as defined under ‘Context’ above, are subject to the content rules set out in our earlier section B. Principal self-regulatory sources are the ICC Code (EN) deployed in Belgium as the ‘General’ code
  • Note that while self-regulation is the principal force especially in the content of commercial communications, in this channel context the influence of legislation is significant for its consent and information requirements; see the legislation header later in this section

 

INFLUENCER MARKETING 

 

Communication Centre Recommendation for Influencers (EN)

 

The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them

 

The Flemish Media Regulator published in December 2021 the Content Creator Protocol (NL) which sets out new rules for vloggers/ influencers. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media

 

LEGISLATION

 

  • The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to Video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to content rules in the directive are shown here and the decree’s content rules are set out under our content section B, point 2.3
  • VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to those users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
  • Book XII of the Code of Economic Law: ‘Law of the electronic economy’ FR-NL / EN (extracts). Implements the e-Commerce Directive 2000/31/EC, requiring that supplier and promotional information is made easily available to consumers. See below for provisions 
  • Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ (Art. 99 sect. 5 inter alia; Book VI applies in large part) FR - NL / EN key provisions. The law transposes the UCPD and the MACAD. It applies across all channels and is here for the record
  • The General Data Protection Regulation, if processing personal data; privacy issues should be reviewed with specialist advisors 
  • The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation (the Digital Services Act) on the advertising industry; due in force 1 January 2024
  • Q&A: online advertising in Belgium. Agio Legal/Lex. September 29, 2023

 

Information requirements from legislation

 

Article 12 Book XII and Q.16 Spamming Q&A

 

These requirements apply to all commercial communications that are part of or that constitute information society services 

 

  • Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, and including its presentation.  If this is not the case, it shall contain the word: ‘advertising’ (reclame/ publicité) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
     
    • The word ‘advertising’ is only required if the advertising nature is not immediately clear. This assessment is made on a case-by-case basis according to the circumstances
    • For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain the word 'advertisement'
    • On the other hand, the more the advertising banner adopts a similar design to the non-advertising elements of the site, the less likely this banner will be considered 'identifiable' as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from just informative messages, if it wants to avoid having to mention the word 'advertising' (Q. 16, Point 1 in FPS Economy: Spamming Q&A)
       
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
  • Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions to take advantage of the offer/ participate should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
     
    • The explanatory memorandum states: "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)

 

Article 6 Book XII 

 

Note: this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’

 

  • § 1. In addition to other legal and regulatory information requirements, every service provider shall ensure that the recipients of the service and competent authorities have easy, direct and permanent access to at least the following information:

 

  1. the name or the trade name of the service provider
  2. geographic address at which the service provider is established
  3. contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
  4. where applicable, the business number (i.e. business registration number)
  5. in the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. regarding regulated professions:

 

  1. the trade association or professional body to which the service provider is registered
  2. the professional title and the state where has been granted
  3. a reference to the applicable professional rules and means to access them

 

  1. where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in Article 50 of the Code on VAT
  2. codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically

 

 

  • § 2. Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included

 

GDPR

 

Privacy issues should be reviewed with specialist advisors 

 

  • Processing personal data (that which can identify an individual) may occur across a number of online channels: as those channels may also be subject to specific privacy rules it's not always clear which rules to follow when the GDPR definition of 'data processing' Defined as any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Art.4 GDPR can 'cross' various marketing techniques/ channels
  • We show the specific channel rules in the media that follow (and some above), but point out that GDPR may also need to be observed if processing personal data. Advisors will determine which/ both to follow
  • In the event that consent is the basis for lawful processing under GDPR then the definitive guidance is from the Article 29 Working Party (now the European Data Protection Board) Guidelines on consent under Regulation 2016/679 (May 2020)
  • The national DPA’s Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR) provides national guidance. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
  • IAB Europe Transparency and Consent Framework is here. See references to compliance in our section A Overview
  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

Meta and self-regulation December 2023 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

 

  • Directive 2002/58/EC on privacy and electronic communications
  • 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 

 

Self-regulatory clauses 

 

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

 

C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

C2. Identity of the marketer

 

  • The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
  • At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
 

C7. Marketing communications and children

 

  • Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
  • Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
  • Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children

 

C10. Respect for the potential sensitivities of a global audience

 

  • Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

Directive 2018/1808 amending the AVMS Directive 

 

  • 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  

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  •  There are no car-specific cookie rules; see rules under the General tab below for the cookie laws and OBA rules that apply to all sectors. Statutory consent and information requirements apply to cookies  

 

OBA

 

  • The car sector does not attract rules that are particular to OBA/Cars but OBA, like any other car advertising, is subject to the rules for safety, responsibility, the environment, and credit (see below) set out in our earlier content section B
  • The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found under the sector rules in content section B
  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 content section B, which also sets out additional provisions on e.g. restricted expressions
  • FC&CO2 data requirements apply as follows, If a model is featured: for banners, pop-ups or skyscrapers (i.e. IMUs-Interactive Marketing Units) and other advertising formats on websites unrelated to the make of car, it is necessary to make sure that fuel consumption and CO2 emission figures are also clearly legible or directly accessible by a click taking the user to a page where all the relevant information is displayed and can be printed (Febiac Code, article 5)

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES`
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 
Bird&Bird's Global Cookie Review of Winter 2022 includes a clear and complete summary of rules from Belgium

 

Legislation, authority and guidance

 

Privacy issues should be reviewed with specialist advisors

 

  • The Law of 3rd Dec 2017 (FR) replaced the Privacy Commission with the Data Protection Authority (DPA/APD, Autorité de protection des données). The Law of 30 July 2018 (FR) on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data
  • The Electronic Communications Act 13th June 2005 ‘ECA’ Article 129 FR / NL transposed the requirements of Article 5.3 of the e-Privacy Directive 2002/58/EC, as amended by article 2 (5) of the 'Cookie' Directive 2009/136/EC; following amends from the December 2021 law (FR) that established the European Electronic Communications Code, cookie provisions are now under article 10/2 of the 2018 law linked above, known as the Belgian Data Protection Act
  • The key EU guidance in this context, generally followed by the DPA, is Guidelines on Consent under Regulation 2016/679 (May 2020)
  • The latest and most relevant national recommendation from the DPA is Recommendation 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR). This is consistent with GDPR and EDPB; their cookie guidance is here (FR)
  • IAB Europe published in May 2020 their Guide to the Post Third-Party Cookie Era  and in July 2021 Guide to Contextual Advertising
  • This January 2022 article Another cookie enforcement case from CMS Belgium via Lexology is a valuable re-cap of the reality of cookie legislation and enforcement in Belgium, with some reference to the rather dusty proposals for new e-Privacy regulations from the EU, not expected to come into force until 2023 or even later
  • Google says the cookie is here to stay until 2024, July 27, 2022. Google has also published key actions for advertisers to take to prepare for a cookieless future as longer-term solutions for more advanced privacy-safe technology are still in development. Read the Privacy-Safe Growth Playbook here
  • RE above, see Privacy Sandbox next steps. May 18, 2023
 

Key provisions 

  • Under article 10/2 of the Belgian Data Protection Act linked above, cookies may only be stored or accessed on an individual’s terminal equipment provided the individuals have consented after having received 'clear and precise information regarding the purposes of the processing' and their rights with regard to processing of their data, i.e. informed consent
  • Cookies are exempted from the requirement of informed consent where the cookie is used for the sole purpose of sending a communication over an electronic communications network, or the cookie is 'strictly necessary' for the provision of a service explicitly requested by the user

 

ONLINE BEHAVIOURAL ADVERTISING (OBA)

 

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising

William Fry September 8, 2023. Connected with Meta news below

Privacy rules for targeted advertising in the UK and EU. Reed Smith August 2023

EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

 

  • OBA, like any other advertising, is subject to the general rules set out in the earlier content section B, and any sector-specific content rules. Principal source of general rules is the ICC Advertising and Marketing Communications Code (EN)
  • Article 29 Working Party (now the EDPB - see below) Opinion 2/2010 on OBA is a bit ancient, but may be significant
  • Key profiling guidance is from the European Data Protection Board, in the context of GDPR rules: Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679, linked here;
  • From the national DPA Recommandation 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR). Profiling is covered from Para 93
 

Self-regulation of OBA/ IBA

 

  • Chapter C ICC Advertising and Marketing Communications Code: Direct Marketing and Digital Marketing Communications; Article C22 Provisions for Interest-Based Advertising (IBA). Note that the ICC have re-named OBA as IBA 
  • Full IBA/ OBA provisions from the chapter have been placed in a back-up file here; alternatively, see the linked ICC Code above 

 

 

A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA).  The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

NEWS/ COMMENTARY

 

'It’s time to move': Google on Global Ads on cookie deprecation, privacy regulation, AI

Campaign Asia February 29, 2024

Consent Rules Apply to Broader Range of Tracking Technologies

McDermott Will &Emery January 18, 2024

EASA Jan 2024 update on the Commission's cookie pledge and GDPR

New EDPB guidelines on the scope of the ‘cookie rule’. DLA Piper Nov 22, 2023

Guidelines here. This is re technical scope 

'Reject All' button in cookie consent banners - An update from the UK and the EU

Reed Smith LLP/ Lex November 8, 2023

Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*

Covers interplay between the AI act, the DSA and GDPR 

Files prior to the above date here 

 

1. COOKIES

 

Applicable legislation, self-regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

 

 

Article 29/EDPB Working Party documents

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 04/2012 on Cookie Consent Exemption here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
  • Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR here

 

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

 

Legislation

 

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

 

  • Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

 

GDPR

 

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

 

2. OBA 

 

EDAA launches new solution to DSA ad transparency requirements

EDPB ban on Meta processing personal data for behavioural advertising

DAC Beachcroft/ Lex December 6, 2023. EDPB here

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023

European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

  • Any third party participating in OBA should adhere to principles of notice and user control as set out below
  • Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
  • The following guidance provides further clarification for how these principles apply to OBA

 

C22.1. Notice

  • Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
  • Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
  • Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices

 

C22.2. User control

  • Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)

 

C22.5. Data security

  • Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
  • Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent

 

C22.6 Children

  • Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent

 

C22.7. Sensitive data segmentation

  • In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information

 

 

Opinion/ guidance 

 

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

 

European self-regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

STANDARD RULES 

 

  • While there are no rules for cars specific to (direct) electronic communications, requirements for safety, responsibility, the environment, and credit (see below) all apply to commercial content in this channel
  • The content rules that apply to all product sectors, i.e. the 'general' content rules, should also be observed. These can be found beneath the sector rules in content section B

 

CREDIT 

 

  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 of our content section B, which also sets out additional provisions on e.g. restricted expressions
 
ENVIRONMENTAL DATA 

 

  • The environmental Information re End-of-Life vehicles set out under Point 2.3 in the content section B should appear in ‘Promotional Literature’, so it is not required in this context
  • Similarly for FC&CO2 data, the law and self-regulation does not cover email, SMS etc. specifically. If a car model is featured in commercial communications, it would probably be appropriate to include data, as ‘other promotional material’ could reasonably be interpreted to include e.g. email
  • The legality of sending commercial electronic communications to customers and potential customers is covered for all sectors, cars included, under the General tab below. Rules include statutory consent and information provisions in this channel 

 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

The content rules set out in our earlier section B apply, except those rules that are exclusive to broadcast channels, together with any sector-specific rules 

 

APPLICABLE LEGISLATION, GUIDANCE AND SELF-REGULATION 

 

  • The General Data Protection Regulation, if processing personal data
  • Book XII of the Economic Law Code (ELC): ‘Law of the Electronic Economy’ EN extracts, FR. Provides e-Commerce rules transposed from Directive 2000/31/EC
  • Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications; articles 1 and 2 and commentary EN
  • Book VI of the Economic Law Code: ‘Market Practices and Consumer Protection’ extracts EN also art. 103 (3) re harassment

 

Guidance and commentary

 

 

Self-regulation

 

KEY CLAUSES FROM LEGISLATION 

 

Electronic mail is defined as ‘any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.’ (Art. 2.2 Book XII ELC) 

 

B2C/ B2B: Opt-in system; unsolicited email commercial communications

 

  • Electronic mail may not be sent for marketing purposes without the free, prior, specific and informed consent of the recipient (Art. 13 (1) Book XII ELC. Also inferred from article 110 (2) Book VI ELC

 

Two exceptions to the opt-in principle (Art. 15 RD 2003)

 

The prior, free, specific and informed consent of the recipient is not required if the recipient is:

 

  1. An existing customer or client (natural or legal persons; so applicable to B2C / B2B), in which case the following conditions must be met:
     
  1. The sender has obtained the electronic contact details of its customers in the context of the sale of a product or the provision of a service, and in compliance with the privacy laws (Art. 1 (1a) RD2003)
  2. The electronic contact information is used exclusively in relation to similar products or services, which the sender itself provides (Art. 1 (1b) RD2003). See conditions in linked file
  3. The customers are given the opportunity to object, free of charge and in an easy way, to use of their electronic contact details for marketing purposes, upon collection of these details (Art. 1 (1c) RD2003). They will also need to be given the opportunity to opt out at each subsequent message (as per Art. 13 (2) Book XII)
     
  1. A legal person (i.e. B2B) and the e-mail address used for the mailing is of an impersonal nature (Art. 1 (2) RD2003); applicable to generic email addresses such as ‘info@, ‘contact@.... Where the email address is personal e.g. firstname.surname@company.be, it is regarded as an individual’s address, regardless of whether used for business or personal purposes, and requires consent (Commentary RD 2003)

 

INFORMATION REQUIREMENTS

 

Article 12 Book XII ELC for commercial communications by email

 

  • The commercial communication must be clearly and immediately identifiable as such upon receipt. If this is not the case, it must contain the word: ‘advertising’ (‘reclama/ publicité’ in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable as such (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
  • Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
  • Article 6, Book XII (EN) shows information that must be made available in an Information Society Service (e-Commerce) context; this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’.

 

Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase

 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications
  • General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:

 

Article 19 ICC Code: Data protection and privacy

 

  • When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations

 

19.1. Collection of data and notice

  • When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

19.2. Use of data

Personal data should be:

 

  • collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
  • adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
  • accurate and kept up to date
  • preserved for no longer than is required for the purpose for which the data were collected or further processed

 

19.3. Security of processing

  • Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

 

19.4. Children’s personal data

  • When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
  • Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
  • Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
  • Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
  • Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
  • For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7
 

19.5. Privacy policy

Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

 

19.6. Rights of the consumer

Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

 

  • opt out of direct marketing lists
  • opt out of interest-based advertising
  • sign on to general direct preference services
  • require that their personal data not be made available to third parties for their marketing purposes; and
  • rectify incorrect personal data which are held about them

 

  • Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

 

19.7. Cross-border transactions

  • Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

 

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code 

 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an e-Commerce context

 

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

 

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

 

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

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

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

  1. Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
  2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

 

Article 7

Unsolicited commercial communication

 

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

 

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

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s covered. Advertising is defined in the applicable ICC Code as ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’

 

STANDARD RULES

 

  • The 'virtual showrooms' that most manufacturers and dealers deploy in this sector are not fully addressed here, as those are as much subject to trading and distance-selling regulations as they are to marcoms rules per se
  • Nevertheless, marketers' own marcoms on their own websites will be subject to the rules set out in content section B for safety, responsibility, credit, the environment etc.
  • The content rules that apply to all product sectors, i.e. the 'General' content rules, should also be observed. These are beneath the sector rules in content section B
  • Clearly, much of any website will not be commercial communication as defined; the data under the General tab below explains more fully what is and isn't in remit 

  • Also significant from the general channel rules below are the consent and information requirements that apply to direct electronic communications/ e-commerce; these rules can apply when website/ owners are in dialogue with consumers/ users and potential users 

  • The AVMS Directive 2010/13/EU and its amending Directive 2018/1808 is implemented by the Decree of 4th February 2021 (FR). Article 5-2.2 in Book V, Title II states that commercial communications must not encourage behaviour prejudicial to health or safety, or prejudicial to the protection of the environment. This is a rule that applies to all sectors and extends into online and in particular video-sharing platforms (VSPS) as a result of the directive's amends; included here because of car marcoms relevance

  • There is a new requirement of VSPS under Title V of Book V of the Decree and article 28 of the 2018 Directive that those who upload videos must be made aware that they are required to point out the existence of commercial communications, if any, and the VSPS in turn must make the service’s users aware that that is the case, where the service is aware (article 28b of the Directive)

 

CREDIT RULES 

 

  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 in our content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 content section B, which also sets out additional provisions on e.g. restricted expressions

 

FC&CO2 DATA AND ELV

 

From the Febiac Code (EN 2023) on energy data in this context:
Information about fuel consumption and CO2 emissions must be included on web pages displaying details of the technical characteristics (engine) of the vehicle shown

 

  • On a website for a make of car, a summary page must include a table (or similar) showing all of the figures relating to fuel consumption and CO2 emissions for the vehicle range. This information must be clear and easy to print. The summary page must make it easier to compare the different makes and models.
  • Visitors must be able to access this comparative table from each page of the website simply by clicking on a tab, menu or any other link
  • Summary showing rules here:
    http://www.g-regs.com/downloads/BEOnlineFCCO2dataB.pdf
  • If the printable media (website, CD-ROM etc.) only refer to the make/ brand and not to any particular model, fuel consumption figures are not required; the same applies to CO2 emissions

 

  • The Environmental Information re End-of-Life vehicles under Point 2.3 in the above content section B should appear in ‘Promotional Literature’, defined as printed materials and web pages that are used for the direct or indirect purpose of promoting new cars available on the market in Belgium (italics ours); most manufacturers appear to observe this rule on their websites

 

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. The ICC Code definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA DMC Best Practice linked below. 

 

 

APPLICABLE LEGISLATION AND GUIDANCE
(and some self-reg guidance)

 

  • The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to content rules in the Directive are shown here and the Decree’s content rules are set out under our content section B, point 2.3.
  • The Flemish media regulator considers that the above decree brings AV content from vloggers and influencers into scope and published in December 2021 the Content Creator Protocol (NL). Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish (i.e. the Dutch-speaking region) AV media
  • VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
  • If  processing personal data, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors 
  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here
  • The national DPA Recommendation No. 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
  • Book XII of the Code of Economic Law; Articles 6, 12 EN; this section of the ELC transposes the E-Commerce Directive 200/31/EC and part of the E-Privacy Directive 2002/58/EC; provisions set out below 
  • Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ extracts EN; transposes UCPD 2005/29/ECOn 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’)
  • JEP's 2018 Influencer marketing guidelines; Section 4 - application of the rules - set out below 
  • EASA best practice recommendation on influencer marketing 2023 and DMC Best Practice 2023 - the latter some help on exemptions to remit pps.11/12

 

GENERAL INFORMATION REQUIREMENTS 

 

Article 6, Chapter 3: Information and transparency; Book XII CEL

 

Every service provider Definition Provider of an Information Society Service, in turn defined as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service must render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name or the trade name of the service provider
  2. Geographic address at which the service provider is established
  3. Contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where applicable, the business registration number
  5. In the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. Regarding regulated professions 
     
    1. The trade association or professional body to which the service provider is registered;
    2. The professional title and the state where has been granted
    3. A reference to the applicable professional rules and means to access them

 

  1. Where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in article 50 of the code on VAT
  2. Codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically  

 

INFORMATION IN ADVERTISING 
(Art. 12, Book XII)

 

  • Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: 'advertising' ('reclame / publicité') in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII)
  • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)

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Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase

 

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

 

VIRAL

 

Defined by EASA in their DMC Best Practice as  ‘Any advertising that propagates itself. In a digital media context it can be defined as a marketing technique that seeks to use pre-existing social networks to produce increases in brand awareness.’

 

CASE LAW AND UGC

 

  • In a Commercial Court decision in Huy (30/06/2008) where an online dating site had a specific section on the site called "Make Some Noise" inviting users to enter email addresses of their friends in return for a higher popularity-rating, it was held that prior consent would have to be obtained (in accordance with Art. 13 (1) Book XII CEL) and that the collection of data for such purposes would have to comply with the Data Protection Act, i.e. fair processing information
  • Once created, sponsored or endorsed by the marketer (the original content may have been user-generated i.e. UGC), content is subject to the rules set out in our content section B, except those for broadcast, primarily from the ICC Advertising and Marketing Communications Code (EN)

 

 

INFLUENCER MARKETING 

 

Communication Centre Recommendation for Influencers (EN)

 

The document linked above, published April 2022 by the Communication Centre/ JEP and an update on the 2018 Online Influencer Guidelines, sets out the rules/ guidance on Influencer Marketing: when commercial communications qualify as such, what kinds of identification are required and how to apply them

 

 

 

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International

 

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 ‘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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

ICC Advertising and Marketing Communications Code (EN); Chapter C Direct Marketing and Digital Marketing Communications

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2023

 

Standard rules

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
 
LEGISLATION

 

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

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
Directive 2000/31/EC on e-Commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 
Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by community law, member states which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, member states shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

  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:

 

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

 

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

 
Directive 2018/1808 amending the AVMS Directive 

 

  • 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  

 

GUIDANCE

 

EU Guidance/ opinion documents

 

 
 
2.2.5. Marketer-owned digital properties
 
As established in the previous sections, all marketing communications, as defined by the ICC Code, fall within the remit of SR systems. It is not, however, always immediately apparent to what extent content on marketer-owned digital properties may constitute marketing communications and thus fall within the remit of the SROs. It should never be automatically assumed that a marketer-owned digital property is a marketing communication in its entirety. The actual content of the marketer-owned digital property must be reviewed to determine that which is marketing communication content and that which is not. For this purpose the following criteria establish whether or not the content, or part of the content of a marketer-owned digital property constitutes a marketing communication:
 
  • Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
  • Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
  • Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
  • Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

  1. INSTAGRAM 
  1. TWITTER:
  1. YOUTUBE: advertiser friendly content guidelines here:
  1. SNAPCHAT:
  1. GOOGLE +
  1. TIK TOK

 

 

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7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s Online Native Advertising Guidance provides some categories of native ads, some good practice recommendations, and a summary of EU rules. The ICC’s Guidance on Native Advertising is linked and also shown under the General tab below. The Belgian Advertising Council, the not-for-profit industry body organising and funding JEP’s activities, publish a guidance document on native advertising (FR). All linked documents provide rules or guidance that apply to all product categories. Sector-specific rules are immediately below

 

CAR RULES IN THIS CHANNEL 

 

  • The ‘native’ form of advertising is like any other car advertising or any sector’s advertising - it’s subject to the content rules; the key general rule, spelt out under the General tab below, is that of identifiability/ disclosure
  • The content rules for credit, the environment, responsibility, and safety apply. The general content rules set out below the sector-specific rules in content section B also apply
  • As the car sector creates a lot of 'content' and this may well be deployed using the native technique, advertisers/ agencies should be aware that new rules stemming from the amendment of the AVMS Directive by Directive 2018/1808 bring video-sharing platforms (VSPS) in particular into scope. Two potential issues arise: first, that AVMS rules related to safety and the environment, both of which may be relevant to the car sector, now apply to a number of online platforms including VSPS and second, that there are new commercial communication identification rules for VSPS. These are set out under article 28b of the earlier linked Directive, transposed in Belgium by the Decree on Audiovisual Media Services and Video Sharing Services of 4 February 2021 (FR)

  • Vloggers/ Influencers can constitute an 'audiovisual media service'; definitive view from the regulator group ERGA here 

 

CREDIT 

 

  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See Point 3 content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 Content Section B above, which also sets out additional provisions on e.g. restricted expressions
 
FC&CO2 DATA

 

  • The same applies to energy data (if a model is featured); FC&CO2 data is required in print if a car model is featured. Online native per se is not identified in requirements, but the scope according to the Febiac code includes: ‘for banners, pop-ups or skyscrapers (i.e. IMU’s – interactive marketing units) and other advertising formats on websites unrelated to the make of car, it is necessary to make sure that fuel consumption and CO2 emission figures are also clearly legible or directly accessible by a click taking the user to a page where all the relevant information is displayed and can be printed.’
  • If promotional literature or ‘printable media’ refer to the car make/ brand and not to any particular model, fuel consumption figures are not required. Note: while not specified in the law, the same exemption will apply to CO2 emissions

  • The Febiac Code (EN 2023) provides the key content rules for car marcoms in Belgium, excluding those for credit

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016  How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identification. If it’s advertising, defined in the ICC Code as ‘’any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’, then like any other advertising, it’s subject to the rules set out in our content section B, except those rules applying to broadcast

 

SELF-REGULATION

 

 

Key passages from the Native Advertising Code (link; EN)

 

A1) Context and use of Identifiers

 

  • The commercial nature of native advertising and related communications must, in accordance with article 7 of the ICC Code, be instantly and clearly identified by the target group. The question of whether this requirement is satisfied will have to be examined on a case-by-case basis, taking into account the specific circumstances, since the general impression given by the communication in question is key. In some cases, it already appears immediately from the content and / or from the context of the native advertising that it is a commercial communication. The criteria that can be considered in this regard include the following:

  1. (Audio) visual characteristics of the communication contributing to clear identification of its commercial nature. Example: A commercial communication on a web page of a medium uses the (audio) visual characteristics of the featured brand or clearly departs from the medium's usual layout
  2. Characteristics of the content of the communication contributing to clear identification of its commercial nature Example: A commercial communication with an obvious call to action. Where the commercial purpose of the communication is not immediately and clearly apparent from the content and / or context, an explicit identifier must be used.

 

A2) Use of identifiers

 

  • There are different identifiers that help instantly to identify the commercial nature of a communication.
  • The terms that can be used as an identifier are, for example:

 

« Annonce »

« Publicité »

« Publireportage »

« Advertorial »

« Promotion »

« Proposé par (…)»

« Réalisé en étroite collaboration avec (…) »

« Powered by (…) »

 

  • This list is not exhaustive and the clarity of each identifier must be assessed on a case-by-case basis in combination with other factors likely to make a commercial communication identifiable. In particular, the following criteria may be taken into account:

 

  1. Use of the logo or the (audio) visual features of the brand. To allow a clear identification of commercial content, an identifier may be combined with the advertiser's logo and other characteristics of the brand
  2. The language of the identifier. An identifier in the target audience's language facilitates identification
  3. The positioning of the identifier. The identifier is preferably positioned where it is sufficiently visible such that the consumer can immediately identify that it is commercial content
  4. The (audio) visual characteristics of the identifier. The identifier must be sufficiently visible (if applicable, audible). A contrasting colour and sufficient size is recommended, taking into account the characteristics of the medium in which the content appears
  5. The duration of appearance of the identifier. The consumer must have enough time to absorb the identifier and recognise that this is commercial content
  6. The communication's target market. Particular attention should be paid to the comprehensibility of the identifier used when the target group is children or young people
  7. The accompanying text. An identifier can also be accompanied by brief text (for example via use of a "mouseover") in order to clarify the nature of the advertising and to explain that there is a commercial relationship between the medium and the advertiser

 

A3) Reference to native advertising

 

  • Not just the native ad content itself, but additionally the references to that content must also be identifiable as commercial communication. That can take the form of, for example, summaries of the content appearing on other pages of the website. The consumer must be clearly informed that this is commercial content before clicking on the advertising
 

 

LEGISLATION

 

  • Book VI of the Code of Economic Law: 'Market Practices and Consumer Protection'; key extracts EN  (Article 100 (11) and (22) Book VI CEL)

  • Book XII of the Code of Economic Law EN (Art. 12)

 

All media

 

  • The following misleading commercial practices shall in all circumstances be considered unfair (and thus prohibited under Art. 95) where they have as their object:

    • Using editorial content in the media to promote a product where a business has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (Art. 100(11) Book VI);

    • Falsely claiming or creating the impression that the business is not acting for purposes relating to its professional activity, or falsely representing itself as a consumer (Art. 100 (22) Book VI)

 

Online

 

  • Advertising which is part of or constitutes an information society service shall comply with the following conditions: immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: “advertising” (“reclame / publicité”) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)

    • The word "advertising" is only required if the advertising nature is not immediately clear at the first receipt and at the first sight; the advertisement must therefore contain the word "advertisement" only if it cannot be distinguished as such from its reception. In principle, therefore, it is not mandatory systematically to include "advertising"

    • Assessment should be made on a case-by-case basis according to the circumstances of the case (the text indicates "given its overall effect and including its presentation"). For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain "advertisement"

    • On the other hand, the more the advertising banner adopts a similar design to the non-advertising site, the less likely it will be considered identifiable as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from purely informative messages, if the inclusion of ‘advertising’ is to be avoided (Q. 16; Point 1: FPS Economy Q&A)

  • The natural or legal person on whose behalf the advertising is made shall be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code (EN) 2018

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Guidance: ICC Guidance on Native Advertising here

IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here

And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.' 

 

Standard rules

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

 

Self-regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)

 

Legislation 

 

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

 

 

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8. Telemarketing

Sector

 

 

 

Following feedback, we no longer cover Telemarketing 

 

General

 

 

Following feedback, we no longer cover Telemarketing 

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

 

  • The content rules for cars (safety, responsibility, credit, the environment etc.) set out in section B, together with the general advertising rules, will apply
  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 content section B, which also carries additional provisions on e.g. restricted expressions
  • The Environmental Information on End-of-Life vehicles set out under Point 2.3 in the content section B above should appear in ‘Promotional Literature’
  •  As FC&CO2 data requirements apply to all print media including brochures, leaflets etc., If a model is featured, the requirements set out in content section B will apply to Direct Mail. Energy data formatting requirements for this channel are here
  • The Febiac Code (EN 2023) provides the key content rules for car marcoms in Belgium, excluding those for credit
  • The legality of sending commercial communications to customers and potential customers is covered for all sectors under the General tab below; rules include statutory consent and information requirements 

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

Privacy issues should be reviewed with specialist advisors

 

  • Direct Mail in most countries, Belgium included, is based on opt-out consent (Code of Economic Law Book VI (EN), art. 110), i.e. permissible unless the recipient objects 
  • Addressed mail cannot be sent to those registered to the Robinson list, Belgium’s version now managed by BAM, the Belgian Association of Marketing
  • The rules set out in our earlier content section B apply to commercial communications in direct postal mail, except those rules identifying broadcast or digital channels; the principal set of regulations is the ICC Advertising and Marketing Communications Code (EN)
  •  Other content rules include statutory information from the Code of Economic Law Book VI (EN), the large part of which applies. In this DM context, the commercial communication often constitutes an  'invitation to purchase' Definition Where goods or services are offered with reference to their characteristics and price in such manner appropriate to the communication medium used that an average consumer can conclude the transaction in which case other information, set out below, must be provided (ELC Book VI, art.99)
  • The data processing ‘behind’ DM, if it involves personal data Definition ‘Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person Art. 4 (1) GDPR may be subject to the GDPR
  • If applicable (check with advisors), the core GDPR articles on Information to be provided to data subjects and their right to object are assembled here. These provisions include a right to object ‘at any time’ and the information that must be provided to ‘data subjects’.

 

 

APPLICABLE LEGISLATION AND SELF-REGULATION

 

 

1. Self-regulation

 

  • Chapter C Direct Marketing from the ICC Advertising and Marketing Communications Code; the rules shown below are applicable to direct postal mail
  • Opt-out Register: Robinson List / Mail Preference Service (MPS) applicable only to B2C; operated by BAM; not binding 

 

 

2. Legislation

 

  • Code of Economic Law Book VI; transposes the UCPD 2005/29/EC
  • The General Data Protection Regulation 2016/679 (GDPR) on personal data processing applies across Member States
  • The Law of 30 July 2018 (FR) on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data

 

 

1.1. KEY SELF-REGULATORY PROVISIONS

 

Chapter C Direct Marketing and Digital Marketing Communications ICC Code. The full chapter is extracted from the ICC Code here

 

 

Article C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

 

Article C2. Identity of the marketer

 

  •  The identity of the marketer and/or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return. At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
 
 

Article C8.  Respecting consumer wishes

 

  • Marketers should respect a consumer’s wish not to receive direct marketing communications by e.g. signing on to a preference system or utilizing another system, such as mailbox stickers. Marketers who are communicating with consumers internationally should, where possible avail themselves of the appropriate preference service in the markets to which they are addressing their communications and respect consumers’ wishes not to receive such communications (see also General Provisions, article 19, data protection and privacy)

 

 

2.1. KEY PROVISIONS FROM LEGISLATION 

 

2.1.1. Invitation to purchase

 

Article 99, Book VI Code of Economic Law (EN)

 

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

 

 

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

 

 

2.1.2. B2C: Opt-out

 

  • Individual subscribers can opt-out from direct mail advertising using:

 

  • The Robinson List/ Mail Preference Service which allows all ‘natural persons’ i.e. individuals/ consumers, to register their details for free, for an indefinite period of time, to indicate that they do not wish to receive unsolicited addressed postal mail for direct marketing purposes referenced by Art. 110 Code of Economic Law
  • If applicable according to specialist advice, their right to object to processing for direct marketing purposes under the GDPR (Art. 21.3; key articles here)

 

 

Key points of Robinson list

 

  • It does NOT cover or apply to (CPP Recom):

 

  • Unaddressed mail such as that to 'The Occupier' or door-to-door advertising (mail drops); so applies only to addressed mail
  • Promotional mail sent to an individual in the context of and at the address of their professional role (i.e. B2B); only ‘natural persons’ can register, not companies
  • Addressed promotional mail to a party’s own customers or individuals who, after their inclusion in the Robinson list, expressed the desire to receive such mail

 

 

 

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International

SECTION C: DIRECT POSTAL MAIL

 

 

Applicable Self-regulation and legislation 

  • National 'Robinson lists' or opt-out lists
  • The General Data Protection Regulation 2016/679 for the processing of personal data
  • Directive 2005/29/EC on unfair commercial practices (UCPD) 

 

Standard rules

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

 

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

 

 

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Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

 

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

 
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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

 

STANDARD RULES 

 

  • There are no official channel rules specifically for car sponsorship of events in Belgium
  • Any associated promotional material should observe the rules for cars specifically and advertising generally, the former set out in the content section B, the latter under the General tab in content section B 
  • The channel rules set out here are specific to the car sector; the channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, sponsorship rules from the ICC, found under Chapter B of the ICC Advertising and Marketing Communications Code (EN)

 

CREDIT

 

  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 of our content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above – Standard Information and Warning Message - are here and under point 3 of our content section B which also sets out additional provisions on e.g. restricted expressions

FC&CO2 DATA

 

  • FC&CO2 data is mandatory in print material, which might accompany sponsorship, when a car model is featured
  • If the material only refers to the make/ brand, which is sometimes the case in e.g. some forms of sponsorship, and not to any particular model, fuel consumption figures are not required; the same will apply to CO2 emissions

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

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

  • Sponsorship material associated with an event, i.e. collateral material such as leaflets, brochures etc. is subject to the General Advertising Rules (EN) from the ICC/ JEP
  • The general sponsorship rules, i.e. those that cover issues of respect of the sponsored property, ambushing, data capture etc. and that apply to all product categories are from the code linked above; clauses follow. For scope, definitions etc., see the linked code, chapter B
 

 B1  PRINCIPLES GOVERNING SPONSORSHIP

 
  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
 

 B2  AUTONOMY AND SELF-DETERMINATION

 
  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfils the obligations set out in the sponsorship agreement
 

 B3   IMITATION AND CONFUSION

 
  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
 

 B4   'AMBUSHING' OF SPONSORED PROPERTIES

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

 B5  RESPECT FOR THE SPONSORSHIP PROPERTY AND THE SPONSOR

 
  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position which might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
  • The sponsored party should not obscure, deform or bring into disrepute the image or trademarks of the sponsor, or jeopardise the goodwill or public esteem associated with them
 

 B6   THE SPONSORSHIP AUDIENCE

 
  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
 

 B7  DATA CAPTURE/ DATA SHARING

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

 B8  ARTISTIC AND HISTORICAL OBJECTS

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

 B9  SOCIAL AND ENVIRONMENTAL SPONSORSHIP

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

 B10  CHARITIES AND HUMANITARIAN SPONSORSHIP

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

 B11  MULTIPLE SPONSORSHIP

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

 B12  MEDIA SPONSORSHIP

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

B13  RESPONSIBILITY

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

 

 

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

 

 

 

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International

SECTION C: EVENTS/ SPONSORSHIP

 

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

 

Self-regulation

 

  • Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below 
  • ICC Advertising and Marketing Communications Code (EN): Chapter B Sponsorship

 

B1: Principles governing sponsorship

 

  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

 

B2: Autonomy and self-determination

 

  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement

B3: Imitation and confusion

 

  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

 

 B4: 'Ambushing' of sponsored properties

 

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

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

B6: The sponsorship audience

 

  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

 

B7: Data capture/ data sharing

 

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

 

B8: Artistic and historical objects

 

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

 

B9: Social and environmental sponsorship

 

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

 

B10: Charities and humanitarian sponsorship

 

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

 

B11: Multiple sponsorship

 

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

 

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below

 

STANDARD RULES 

 

  • Promotional material should observe the content rules for cars (safety, responsibility, credit, the Environment etc.) set out in Section B above, together with the rules for all sectors, Cars included, under the General tab in Content Section B
  • The Febiac Code (EN 2023) provides the key content rules for car marcoms in Belgium (excluding those for credit)
  • Note that the channel rules set out here are specific to the car sector; the channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, some significant statutory requirements when running promotions or competitions, or when communicating price in a promotional context

CREDIT

 

  • Credit rules apply to all media. Any marcom for a credit agreement which mentions an interest rate or any figures relating to the cost of the credit to the consumer must include in a clear, concise, prominent, and if need be, audible way, by means of a representative example, the ‘Standard Information’. See point 3 in our content section B
  • Credit advertising of any form must include the warning message; formatting requirements for both of the above - Standard Information and Warning Message - are here and under Point 3 in our content section B, which also carries additional provisions on e.g. restricted expressions
 
FC&CO2 DATA

 

  • When SP communication features a car model in printed promotional material, then the energy data requirements set out in section B will apply. FC&CO2 data is not required in television and radio, though some manufacturers may include it
  • Formatting requirements for energy data in print material are here, and in online marcoms here

 

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

As this website was created to provide international rules on marketing communications, we do not claim authority on specific national Sales Promotions (SP) legislation, especially retail legislation. However, when we find relevant rules in the course of what is extensive research, we will include them in this section. We check, for example, the national Self-Regulatory Codes and Consumer Protection legislation for anything that impacts SP, and we include below the general (i.e. non sector-specific) rules from the International Chamber of Commerce (ICC) which provide at least a solid start for SP rules internationally. Promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors

 

SELF-REGULATION

 

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

 

Extracts from the code:

 

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
 

A4 Administration of promotions 

 

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

 

In particular:

 

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

 

A5 Safety and suitability

 

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

 

A6 Presentation to consumers

 

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

 

INFORMATION REQUIREMENTS

 

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

 

Information should include, where relevant:

 

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

 

Information in prize promotions 

 

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

 

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

 

LEGISLATION

 

  • Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players, referred to as 'Gaming Act' hereafter EN (translation from Gaming Commission)
  • Lotteries Act of 31 December 1851 FR - NL
  • Penal/ Criminal Code; Articles 301 to 304 of the Criminal Code determine the cases in which the organisation of lotteries and related activities are infringements FR - NL
  • Royal Decree of 9 February 2011 establishing the Code of Ethics for telecommunications FR - NL / EN key provisions. Chapter 10, S. 4 Articles 57–71 re premium rate services 
  • Book VI of Code of Economic Law FR - NL Extracts EN. Title IV Prohibited practices: Art 100 (19) and Art. 103 (8) for some competition requirements/ prohibitions. Key clauses shown below 
  • Book XII of Code of Economic Law FR - NL. Extracts EN. Art. 12 points 3 & 4 re promotional offers and conditions; clauses shown under the para below 
  • Product Pricing Directive 98/6/EC (PPD) implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL; the PPD was amended by Directive 2019/2161, adding rules re promotional pricing extracted here. Guidance from the Commission on the application of this new article 6a is here. The rules were required to be in force in member states by 28 May, 2022
  • Belgium eventually transposed via the law of 8th May 2022 (FR) amending Books 1, 6 and 15 of the CEL (Code of Economic Law), which faithfully transposed the directive's rules 

 

Commercial practices regarded as unfair in all circumstances

 

Misleading commercial practices

 

  • Bait advertising: making an invitation to purchase: Definition means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase (Art. 1.8 (23) Book I ELC) products at a specified price without disclosing the existence of any reasonable grounds the business may have for believing that it will not be able to offer for supply or to procure another business 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 (Art. 100 (5) Book VI ELC)
  • Bait and switch: making an invitation to purchase products at a specified price and then, with the intention of promoting a different product:

     
    • Either refusing to show the consumer the product proposed
    • Or refusing to take orders for it or deliver it within a reasonable time
    • Or demonstrating a defective sample of it (Art. 100 (6) Book VI CEL)

       
  • 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
  • Claiming that products are able to facilitate winning in games of chance 
  • 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 
  • Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
  • Describing a product as 'gratis' (gratuity / gratis), 'free' (à titre gracieux / voor niets), 'without charge' (sans frais / kosteloos) or similar if the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item 
    (All above from art. 100 CEL)

 

Aggressive commercial practices

 

  • Creating the false impression that the consumer has already won, or will win, whether or not by accomplishing a formality, a prize or other equivalent benefit
     
    • When in fact either there is no prize or other equivalent benefit
    • Or accomplishing any formality in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. 103 (8) Book VI CEL)
 

Online advertising for promotional offers and promotional competitions

 

  • Advertising which is part of or constitutes an information society service shall comply with the following conditions (Art. 12 Book XII):
     
    • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
    • The explanatory memorandum states "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)

 

Prize draws

 

Promotions in which the winner is chosen on the basis on an element of chance (promotional games of chance)

 

  • Such promotions are permitted unless they constitute a “game of chance”, which are only permitted subject to a licence, or a “lottery”, which is prohibited under Article 1 Lotteries Act, subject to exceptions shown below
  • This is a complicated area: both 'games of chance' and 'lotteries' are defined so broadly that promotional games of chance in Belgium are regarded as prohibited

 

 

 

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International

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B.

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

ICC Advertising and Marketing Communications Code (EN), Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Directive 98/6/EC on the Prices of Products offered to Consumers

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

  • All sales promotions should deal fairly and honourably with consumers
  • All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
  • The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
  • The terms and conduct of all sales promotions should be transparent to all participants
  • All sales promotions should be framed in a way that is fair to competitors and other traders in the market
  • No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

 

A2: Terms of the offer

 

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

 

A3: Presentation

 

A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)

 

A4: Administration of promotions

 

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

 

In particular:

 

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

 

A5: Safety and suitability

 

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

 

A6: Presentation to consumers

 

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

 

 

Information requirements

 

Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:

 

  • Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • Main characteristics of the promotional items offered
  • Any time limit on taking advantage of the promotional offer
  • Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. in the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • The value of any voucher or stamp offered where a monetary alternative is available
  • Any expenditure involved, including costs of shipping and handling and terms of payment
  • The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)

 

Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.

 

Information in prize promotions

 

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

 

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

 

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

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

C3: The offer

 

  • The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion

 

C4 : Presentation

 

  • Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
  • Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
  • Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase

 

C17:  Substitution of products

 

  • If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer

 

 

LEGISLATIVE CLAUSES

 

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

 

 

Directive 98/6/EC on the Prices of Products offered to Consumers (PPD)

 

Article 1

 

The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

 

Article 3

 

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

 

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

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

 

  1. For products sold in bulk, only the unit price must be indicated
  2. 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

 

 

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D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 
COPY ADVICE 

 

Copy advice is available in the early stages of advertising development, on the basis of a script and/ or storyboard, or for the finished advertisement. An online copy advice request form is available on JEP’s website.

 

 

Fee

 

  • Advice provided by the SRO Secretariat:
     
    • Members of the Belgian Advertising Council 150€ + VAT
    • Non-members of the Belgian Advertising Council 300€ + VAT
       
  • Advice provided by the SRO Jury:
     
    • Members of the Belgian Advertising Council 250€ + VAT
    • Non-members of the Belgian Advertising Council 500€ + VAT

 

 

COMPLAINTS HANDLING 

 

  • JEP handles complaints from the public i.e. consumers, consumer organisations, public authorities and professional associations
  • Competitor complaints are not within JEP's remit
  • Fee: No charge
  • Complaints must be submitted via an online form or in writing
  • File a complaint in Dutch/ in French
  • View decisions in Dutch/ in French

 

 

CLEARANCE 

 

Must be made direct to Broadcaster 

TV and VOD

Allow 3-5 days 

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

http://www.easa-alliance.org/

 

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)

http://www.easa-alliance.org/sites/default/files/EASA%20Common%20Principles%20and%20Operating%20Standards%20of%20Best%20Practice.pdf

 

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 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on Online Behavioural Advertising

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Online%20Behavioural%20Advertising_0.pdf

 

EASA Best Practice Recommendation on Influencer Marketing

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

 

 

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E. Links

Sector

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION 
 
 
Directive 1999/94/EC of the European Parliament and of the Council of 13 December 1999 relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars. Article 6: The Member States shall ensure that all promotional literature contains the official fuel consumption and the official specific CO2 emission data of the passenger car models to which it refers in accordance with the requirements of Annex IV. Article 2 (9) ‘promotional literature’ means all printed matter used in the marketing, advertising and promotion of vehicles to the general public. It includes, as a minimum, technical manuals, brochures, advertisements in newspapers, magazines and trade press and posters;
 
Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC. Article 4 (1), Standard information to be included in advertising: Any advertising concerning credit agreements which indicates an interest rate or any figures relating to the cost of the credit to the consumer shall include standard information in accordance with this Article. This obligation shall not apply where national legislation requires the indication of the annual percentage rate of charge in advertising concerning credit agreements which does not indicate an interest rate or any figures relating to any cost of credit to the consumer within the meaning of the first subparagraph.
 

Commission Recommendation (EU) 2017/948 of 31 May 2017 on the use of fuel consumption and CO2 emission values type-approved and measured in accordance with the World Harmonised Light Vehicles Test Procedure when making information available for consumers pursuant to Directive 1999/94/EC of the European Parliament and of the Council:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2017.142.01.0100.01.ENG&toc=OJ:L:2017:142:TOC

 

 

NATIONAL LEGISLATION


Car-specific and related

 

Royal Decree (RD) of 5th September 2001 relating to the availability of consumer information on fuel economy and CO2 emissions for consumers in the marketing of new passenger cars. This decree implements the EU Directive 1999/94/EC setting out the rules on communicating fuel consumption and CO2 emissions data in all forms of printed promotional and informational material. Amended by RD 03/09/2004 and by the Decree of 17 December 2017, which introduced WLTP values, 'transposing' Commission Recommendation 2017/948Consolidated text (FR):
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2001090565&table_name=loi
An English translation of the relevant clauses is here (does not incorporate amends):

http://www.g-regs.com/downloads/BEFuelConsumptionandEmissions2001D.pdf

 

ELV

 

Royal Decree of 19 March 2004 laying down product standards for vehicles. Relevant articles: 1(7), 5, 7, and Annex III. This Decree implements articles 4, 8 (1) and 9 (2) of Directive 2000/53/EC on end-of-life vehicles. Article 5 of the Decree requires manufacturers to publish information online in relation to the recycling of vehicles. This information must comply with the minimum requirements outlined in Annex III. Article 7 requires promotional literature used in the marketing of a new vehicle to include a link to this information via the following statement: “Environmental Information (RD 19/03/2004): [enter website address of manufacturer]”). Dutch:

http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=nl&la=N&cn=2004031941&table_name=wet
French version of the law:

http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2004031941&table_name=loi
An English translation of the key clauses is here:
http://www.g-regs.com/downloads/BEEnvironmentalInfoD.pdf
An example of the arrangement in a 'live' ad is shown here

 

Highway Code

 

Royal Decree of 1st December 1975 (as amended) setting down general regulations on the policing of road traffic and the use of public roads. The Highway Code contains the Belgian traffic regulations.
http://wegcode.be/index.php?option=com_content&view=category&id=48&Itemid=48
Title II Rules for use of the public highways. The Highway Code contains the Belgian traffic regulations. This law implements the Directive on the compulsory use of safety belts for adults and specific seating and safety belts systems for children under 150 cm (Directive 2003/20/EC). It also establishes maximum speed limits, driving practices and road signage:
French: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=1975120131&table_name=loi 
Dutch: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=nl&la=N&cn=1975120131&table_name=wet  
New legislation on speed limit change in Flanders for ‘Flemish Regional Roads’ here:
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=1975120131&table_name=loi
and
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2015103021&table_name=loi

 

 

Consumer protection legislation

 

The Act on Market Practices and Consumer Protection (MPCP) 2010 amended 2012 The MCPC has been repealed, and by the law of 21 December 2013, its relevant provisions incorporated in Book VI of the Code on Economic Law, effective 31-5-14 (see below). The rules (therefore) implement the EU Misleading and Comparative Advertising Directive and its update, the Unfair Commercial Practices Directive 2005/29/EC. Relevant clauses now in the Code cover such issues as “an invitation to purchase” (which is relevant to Car advertising; see rules under the General tab below) and some pricing rules (also relevant, and also below)

 

CEL

 

28 February, 2013 Code of Economic Law, key clauses entered into force 31/5/2014:
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2013022819&table_name=loi
Translation of Book VI including article 17, which provides comparative advertising rules; article 99, section 4, covers ‘invitation to purchase’:
http://www.g-regs.com/downloads/BEEconomicCodeBookVIwithArt17.pdf

 

 

Credit

 

The Consumer Credit Act 12 June 1991; articles 5 and 6. The Consumer Credit Directive 2008/48/EC was implemented into Belgian Law by the Act of 13th June 2010, which amended the Consumer Credit Act of 12th June 1991. N.B: on 01/04/2015 the Consumer Credit Act was repealed and the provisions on consumer credit were integrated into Book VII “Payment and Credit Services” of the Code of Economic Law (CEL); Articles 5 and 6 of the Decree, subject to minor amendments, can be found in Articles 64 and 65 respectively of Book VII (see below). Any advertising for credit must carry the warning message. English translation of key clauses showing transposition into Book VII CEL:
http://www.g-regs.com/downloads/BEConsumerCreditC.pdf

 

CEL Credit

 

28 Feb 2013 Code of Economic Law: Book VII “Payment and Credit Services”. Entry into force: 01/04/2015. Relevant Section articles 64-66; Title IV Credit Agreements; Chapter I, Consumer Credit; Section I, Promotion of Credit; Sub-section I Advertising.
French: Code de droit économique. Livre VII : Services de paiement et de crédit :
http://www.ejustice.just.fgov.be/cgi_loi/loi_a1.pl?language=fr&la=F&cn=2013022819&table_name=loi&&caller=list&F&fromtab=loi&tri=dd+AS+RANK&rech=1&numero=1&sql=(text+contains+(%27%27))#Art.VII.1
Dutch: Wetboek van economisch recht:
Boek VII: Betalings en kredietdiensten
English translation of articles 64-66:
http://www.g-regs.com/downloads/BEConsumerCreditEconomicLaw.pdf

 

 

21st June 2011 Royal Decree. As set down by the Code of Economic Law Book Vii (formerly the Consumer Credit Act 12th June 1991), this Decree determines the formatting requirements for the standard information in Credit advertising per Article 64, Section 1, para. 2 and the warning statement referenced in Section 2. The provisions address the font size to be used relative to the font size of other basic information within the advertising, and for some specific claims. Relevant article 14:
http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2011062105&table_name=loi
English translation of Article 14:
http://www.g-regs.com/downloads/BEJune2011DecreeReFormatConsCreditC.pdf

 

Authority

 

Federal Public Service (FPS) Economy, SMEs, Self-Employed and Energy 
http://economie.fgov.be/en/ (EN)
Refer to FR/NL versions for regulations and comprehensive coverage of topics. General link for FPS guidance documents:
http://economie.fgov.be/fr/entreprises/Guidance/#.WbFOjLpuKM9
October 2016 guidance from the FPS on how to apply credit advertising rules to Car credit:
http://economie.fgov.be/fr/binaries/Publicite_credit_consommation_secteur_automobile__tcm326-276689.pdf

 

 

Channel legislation

 

Audiovisual media

 

The Media Decrees issued by the three Communities, along with the Federal Broadcasting Act, all implement the AVMS Directive 2010/13/EU. The Acts outlined below contain specific regulations for advertising on radio and television; special rules for commercial communication directed at minors for certain products (such as alcohol and medicines) and for certain types of advertising (such as teleshopping or virtual advertising in the case of the French Community).. Related to car marcoms, albeit not specifically but applying to all sectors, the Directive Art. 9 (1) (c3/4) states that audiovisual commercial communications must not encourage behaviour ‘prejudicial to health or safety’, or encourage ‘behaviour grossly prejudicial to the protection of the environment.’ The above has been implemented in the Decrees of the French/ Flemish/ German communities, which are set out below under the General tab.

 

The Decree on audiovisual media services and video sharing services of 4 February 2021 transposes amends made to the AVMS Directive by Directive 2018/1808.  The content rules from the Directive do not change significantly (it is primarily scope that is extended). The 2021 Decree ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish-, French- and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie). Commercial communication content rules are shown under Book II, Titles III and IV and Book V, Title II. Book V also carries the rules for Video-sharing platform services (VSPS) which include the requirement that commercial communications, where these are known to exist, must be identified by the user who uploads and by the service to the end user. The rules apply to all sectors but as they include provisions for commercial communications relevant to the environment (article 5-2.2 of the Decree), we include the legislation in this car sector. FR:

https://www.csa.be/wp-content/uploads/2021/03/Nouveau-decret-SMA-du-4-fevrier-2021-Publication-au-MB.pdf

 

 

SEE THE GENERAL TAB BELOW FOR THE LEGISLATION THAT AFFECTS ALL PRODUCT SECTORS, CARS INCLUDED

 

INDUSTRY CODES AND REGULATORS

 

Code on advertising for motor vehicles and their components and accessories (as amended March 2023)This code was established by the car manufacturers association FEBIAC and is managed by JEP, the Belgian advertising Self-Regulatory Organisation (SRO). This is a voluntary code covering marcoms rules on safety, the environment, and social responsibility. In particular, it also interprets the Fuel Consumption/ CO2 labelling legislation in detail, including specifications such as minimum font heights, horizontal descriptions, levels of contrast etc. March 2023 amends include the provision under articler 5 that electricity consumption figures must be provided in advertising of all-electric vehicles (despite this not being an official requirement). Article 5 bis adds some environmental rules.
https://www.jep.be/wp-content/uploads/2023/04/FEBIAC-Reclamecode-2023.pdf (Dutch)
https://www.jep.be/wp-content/uploads/2023/04/FEBIAC-Code-de-publicite-2023.pdf (French)
Unofficial, non-binding English translation:
http://www.g-regs.com/downloads/BECarsFebiac2023EN.pdf

 

Febiac

 

Febiac is the Belgian federation of the Automobile and Cycle Industries, which represents the Belgian manufacturers and importers of passenger cars, commercial vehicles, motorcycles and bikes) and their suppliers.
http://www.febiac.be/public/home.aspx

 

Environment

 

The Code of Environmental Advertising 1998; Articles 1 to 14
http://economie.fgov.be/fr/binaries/code_fr_tcm326-63197.pdf
http://www.jep.be/sites/default/files/rule_reccommendation/milieu_fr.pdf
The Dutch and French versions of this code can also be found here:
http://www.jep.be/media/pdf/intersectoriele_code/milieu_nl.pdf
http://www.jep.be/media/pdf/code_intersectoriel/milieu_fr.pdf
And an English translation here:

http://www.g-regs.com/downloads/BEEnvironmentalAdvertisingCode.pdf

 

The Code above is based on the ICC Code that was applicable at the time and the former JEP Environmental Code, which it replaced. It is now supplemented by the more recent Chapter D (Environmental claims in marcoms) of the ICC Advertising and Marketing Communications Code; see below. Belgium/ JEP apply the ICC Code

 

ICC

 
ICC Advertising and Marketing Communications Code 2018 (EN):
 
Chapter A  Sales Promotion 
Chapter B  Sponsorship 
Chapter C  Direct Marketing and Digital Marketing Communications 
Chapter D  Environmental Claims in Marketing Communications
 
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 (EN)
The ICC’s Guidance on Native Advertising Is in English here:
 
Other ICC Codes and guidance are shown under the General tab below

 

 

 

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General

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION 

 

GDPR

 

Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018:

https://eur-lex.europa.eu/eli/reg/2016/679/oj

 

This is the FAQ from UBA, the advertiser organisation in Belgium:

https://www.ubabelgium.be/fr/news-insights/detail/2017/05/30/GDPR-Frequently-Asked-Questions

 

European Data Protection Authority

Article 29 Working Party/ EDPB





The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

Five more recent and significant documents:

 

 

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:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance:  On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’), updating the 2016 version.

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', does not require very significant changes as far as most commercial communication is concerned, it does set out some important new information requirements under the UCPD, pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes significant information requirements relating to e.g. search rankings and consumer reviews, which do not directly impact this database. Helpful explanatory piece from A&L Goodbody via Lexology hereProvisions are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021XC1229(06)&from=EN

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS and video-sharing platforms in particular. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.

Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

e-Privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

e-Privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

e-Commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

The Digital Services Act

 

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

 

The Digital Markets Act

 

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

 

 

NATIONAL LEGISLATION 

 

Channel legislation

 

The Decree on audiovisual media services and video sharing services of 4 February 2021 transposes amends made to the AVMS Directive by Directive 2018/1808.  The content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on Self-Regulatory systems; key changes to Content rules in the Directive are shown here - see article 4a and 9 for references to Self-Regulation in Food and in Alcohol. The 2021 Decree ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie). Commercial communication content rules are shown under Book II, Titles III and IV and Book V, Title II. Book V also carries the rules for Video-sharing platform services (VSPS) which include the requirement that commercial communications, where these are known to exist, must be identified by the user who uploads and by the service to the end user. FR:

https://www.csa.be/wp-content/uploads/2021/03/Nouveau-decret-SMA-du-4-fevrier-2021-Publication-au-MB.pdf

 

Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. Links to the authorities and some of their regulations below

 

Flemish community

Authority  Vlaamse Regulator voor de Media (VRM)

 

Decree of 27th March 2009 on radio and television broadcasting (Decreet betreffende radio-omroep en televisie); regulates commercial communications including advertising, teleshopping, sponsorship, and product placement in all Dutch-speaking radio and TV channels; applicable to those broadcasters established either in the Flemish speaking region or the bilingual Brussels-Capital region, where those activities are exclusively linked to the Flemish Community i.e. in Dutch. The Decree applies to commercial broadcasters and in part also to the Flemish public broadcaster VRT and to video-sharing platforms (article 176 +) following 2021 amends. Consolidated version updated to April 29, 2021 here (Dutch). Unofficial translation of the act from VRM updated 04.03.2021; does not include April 2021 amends transposing Directive 2018/1808:

https://www.vlaamseregulatormedia.be/sites/default/files/act_on_radio_and_television_broadcasting_040321.pdf

 

The Flemish media regulator considers that the Decree amends above bring AV content from vloggers and influencers into scope; they published in December 2021 the Content Creator Protocol (NL) which sets out three themes: Commercial communication on social media, commercial communication and content aimed at minors and prohibition of violent and hate speech. Helpful article on the issue (in English) from DLA Piper here. The protocol is obviously only applicable to Flemish AV media.

 

French community

Authority: Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles

 

Coordinated Decree on audiovisual media services. Version of 21 August 2018. Regulates commercial communications for all French-speaking radio and TV channels: TV/ Radio advertising, interactive, split screen and virtual advertising, sponsorship, teleshopping and self-promotion, and product placement. The provisions apply to commercial and public (RTBF) broadcasters, although the RTBF management contract supplements this Decree with more aggressive rules (see below). Consolidated text: 

https://www.csa.be/document/decret-coordonne-sur-les-services-de-medias-audiovisuels-version-consolidee-par-le-csa-au-21-aout-2018/ 

English translation of key provisions (previous decree of July 2016):

http://www.g-regs.com/downloads/BE_CSADecree_EN.pdf

 

CSA Recommendation on product placement (17/12/2009). Stipulates four explicit conditions on product placement and offers a mechanism for identifying programmes which contain product placement, i.e. PP logo and following phrase: “le programme qui suit contient des placements commerciaux de produits, marques ou servicesFR

CSA Code of ethics on audiovisual advertising directed at children FR (Art.11/12)

Alcohol advertising in the French community (2007) FR

 

Public Service Broadcaster: Radio Télévision Belge Francophone (RTBF)

https://www.rtbf.be/


RTBF management contract 2019-2022. The management contract with the Government of the Federation Wallonia-Brussels (French speaking Community) includes a chapter (IV) with measures on commercial communication, such as conditions for product placement, the prohibition of advertising and sponsorship of children's programmes on TV, Radio and VOD. This latest contract includes a requirement under article 73 that commercial communications for ‘drinks with added sugar, salt, or artificial sweeteners or processed food (boissons avec ajouts de sucres, de sel, ou d’édulcorants de synthèse ou de produits alimentaires manufacturés) must carry sequentially and equally ‘health messages’ as follows:

 

Pour votre santé, mangez au moins cinq fruits et légumes par jour
Pour votre santé, pratiquez une activité physique régulière
Pour votre santé, évitez de manger trop gras, trop sucré, trop salé
Pour votre santé, évitez de grignoter entre le repas

 

Consolidated version:

https://www.csa.be/wp-content/uploads/documents-csa/contrat_de_gestion_RTBF.pdf

 

German community

Authority: http://www.medienrat.be/

 

The Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021). Transposes the amends from the AVMS Directive 2018/1808. Article 32 under Chapter 4 for new rules for video-sharing platforms, article 12 for the ‘standard’ rules re identification, the environment etc., article 17 for the protection of minors and articles 19 and 20 for product placement and sponsorship. 

http://medienrat.be/files/Mediendekret 2021-BS-120421.pdf (DE)

 

Bilingual Brussels-Capital region

Authority: 

 

Belgian Institute for Postal Services and Telecommunications BIPT. In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities (the Flemish Community and the French Community): in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services in the territory of the bilingual Brussels-Capital Region. 

 

Federal Broadcasting Act: Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region. Regulates broadcasting activities in the bilingual Brussels region that cannot be linked exclusively to the French Community or the Flemish Community. At Federal level, BIPT (Belgian Institute for Postal Services and Telecommunications) is the national regulatory authority. Relevant Section Chapter 2 Section 1: Arts. 14-16 provisions applicable to all AVMS providers; Section 2: Arts. 22-25 specific provisions for TV broadcasters. This is the latest region-specific act as far as we are aware; it is our understanding that the applicable rules will now be from the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR) referenced above 

FR: http://www.ejustice.just.fgov.be/eli/loi/2017/05/05/2017040323/justel

NL: http://www.ejustice.just.fgov.be/eli/wet/2017/05/05/2017040323/justel

English translation of relevant provisions:

http://www.g-regs.com/downloads/BE_BrusselsCapital_AVMS_EN.pdf

 

 

Privacy and electronic communications: cookies

 

Law of 13 June 2005 on Electronic Communications, as amended by Law of 10th July 2012 (Wet betreffende de elektronische communicatie/ loi relative au communications électronique). Entry into force 30/06/2005. This Act implemented the EU 'Telecoms Package', the regulatory framework for electronic communications consisting of five Directives; see here. The law imposes privacy and data protection obligations in electronic communications; in particular article 129 regulates the use of cookies, implementing article 5 (3) of the E-Privacy Directive 2002/58/EC as amended by Directive 2009/136/EC, the ‘Cookie Directive’. Cookies can only be stored or accessed on individuals’ computers provided that the individuals have consented after having been informed about the purposes of the data processing and their respective rights.  Consent is not required for cookies that are used for the sole purpose of transmitting a communication over a network, or strictly necessary for the provision of a service requested by the user; the GDPR may (also) apply in the context of processing personal data. Consolidated act:

FR:  http://www.ejustice.just.fgov.be/eli/loi/2005/06/13/2005011238/justel

NL: http://www.ejustice.just.fgov.be/eli/wet/2005/06/13/2005011238/justel

 

Data Protection

 

Law of 8 December 1992 on the protection of privacy in relation to the processing of personal data. Known as the Data Protection Act (DPA) or ‘Privacy Act’, implemented the Data Protection Directive 95/46/EC (now repealed) following an amendment via the Act of 11 December 1998. The Act will apply to most marketing activities (including electronic) where there is likely to be processing and use of personal data. Whilst the Act does not prohibit the use of personal data for the purposes of direct marketing, it provides individuals with the right to object to the processing of their personal data for direct marketing purposes (Arts 9 (c) and 12(1) DPA). Consolidated Law:

FR:

http://www.ejustice.just.fgov.be/eli/loi/1992/12/08/1993009167/justel

NL:

http://www.ejustice.just.fgov.be/eli/wet/1992/12/08/1993009167/justel

Unofficial translation as of July 2013: 

http://www.gregsregs.com/downloads/BE_PrivacyAct_08.12.1992_EN.pdf

Summary:

http://www.gregsregs.com/downloads/BE_DataProcessingSummary.pdf

 

REPEALED JULY 2018

 

The arrival of GDPR

 

The Law of 3rd Dec 2017 replaced/ renamed the Privacy Commission with the Data Protection Authority (DPA); which will have the necessary powers to enforce the GDPR and be able to impose a wide range of sanctions (Article 100, Law of 03/12/2017)

https://www.gegevensbeschermingsautoriteit.be/sites/privacycommission/files/documents/Loi 3 DECEMBRE 2017.pdf

The Law of 30 July 2018 on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data:

www.ejustice.just.fgov.be/eli/loi/2018/07/30/2018040581/justel

 

Authority and guidance 

 

The Data Protection Authority.  Autorité de protection des données, Gegevensbeschermingsautoriteit. Established by the Law of 3rd December 2017

https://www.dataprotectionauthority.be/professional

Recommandation No 01/2020 du 17 janvier 2020 relative aux traitements de données à caractère personnel à des fins de marketing direct. Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent:

 

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq.'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR. News story here.

 

Electronic communications: e-Commerce and opt-in

 

Book XII of Code of Economic Law: 'Law of the electronic economy'. Entry into force 31/05/2014. (Boek XII: Recht van de elektronische economie / Livre XII: Droit de l'économie électronique). Book XII codifies and in doing so repeals the Law of 11 March 2003 on certain legal aspects of the information society, which implemented the E-Commerce Directive 2000/31/EC, and also part-implemented the E-Privacy Directive 2002/58/EC (Art. 13 (1) and (4) of Book XII). Book XII requires ‘easy, permanent and direct’ access to some service provider information, and specifies identifiability of Information Society Service advertising and e.g. conditions for promotional offers. It also establishes an opt-in regime where unsolicited emails may be sent only with prior, free, specific and informed consent of the recipient (Art. 13, Book XII). The exception to this prohibition (soft opt-in) is set out in Royal Decree of 4th April 2003;  see below. Relevant section Chapter 4 Advertising; articles 12-15. The provisions apply to both natural and legal persons i.e. B2C and B2B. Book XII:

http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0410 (FR)

http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel#LNK0409 (NL)

http://www.g-regs.com/downloads/BEEconomicCodeBookXII_WRedit.pdf (EN)

 

Electronic communications: soft opt-in

 

Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications. Entry into force 28/05/2003. (Koninklijk besluit tot reglementering van het verzenden van reclame per elektronische post/ Arrêté royal visant à réglementer l'envoi de publicités par courrier électronique). The decree complements the provisions on e-mail advertising in Chapter 4 (Articles 13 and 14) of Book VI Economic Law Code, implementing Article 13 (2) from the E-Privacy Directive. The decree establishes two exceptions to the opt-in principle established in Article 13 (1) of Book VI Economic Law Code. Prior consent is not required from existing customers where certain conditions are met nor from legal persons (businesses) where the electronic contact details are of an impersonal nature (e.g. info@...). The Decree also clarifies the way in which marketers must respect the right of the recipient to opt out, requiring them to maintain and update opt-out lists/ registers. A legal commentary on Articles 1 and 2 of the Decree is also provided. Translation of articles 1 and 2, in addition to legal commentary is here: 

http://www.g-regs.com/downloads/BE_RD_4thApril2003_emailadvertising_commentary.pdf

Royal Decree:

FR: http://www.ejustice.just.fgov.be/eli/arrete/2003/04/04/2003011238/justel

NL: http://www.ejustice.just.fgov.be/eli/besluit/2003/04/04/2003011238/justel

 

Guidance relevant to privacy/ direct marketing

 

Federal Public Service: Economy, SMEs, Self-employed and Energy (abbrev. FPS Economy – as above). Monitors goods and services market in Belgium; responsible for contributing to the development, competitiveness and sustainability of the goods and services market, ensuring the position of the Belgian economy at the international level, promoting trade by fair economic relations in a competitive market, collecting, processing and disseminating economic information. It is the supervisory authority for the Code on Economic Law.

http://economie.fgov.be/en

FPS Economy brochure

 

Spamming FAQ. Q&A brochure presenting the rules applicable to unsolicited commercial communications by e-mail:

https://economie.fgov.be/fr/themes/line/commerce-electronique/spam/questions-frequemment-posees

 

Consumer protection: unfair commercial practices 

 

Book VI of the Economic Law Code: 'Market Practices and Consumer Protection' (Boek VI: Marktpraktijken en consumentenbescherming/ Livre VI: Pratiques du marché et protection du consommateur) Entry into force 31/05/2014. Implements amongst others Directive 2006/114/EC on misleading and comparative advertising, the Unfair Commercial Practices Directive 2005/29/EC (UCPD) and E-Privacy Directive 2002/58/EC. In the context of UCPD, Articles 104-109 regulate some practices between businesses and Articles 92-103 regulate unfair consumer commercial practices ​including those that are regarded as misleading or aggressive in all circumstances, aka the Blacklist. Article 13 of the E-Privacy Directive is part-transposed in Chapter 3 (Arts. 110-115) of Book VI, which regulates the sending of unsolicited commercial communications, excluding those via e-mail which are provided for in Book XII and the Royal Decree 4th April 2003. Applies to B2C and B2B. Book VI was amended by the Law of 8th May 2022 (FR) which introduced provisions from Directive 2019/2161 related principally (for our purposes) to promotional pricing, international marketing and e-commerce; explanatory piece here in English from CMS Law. Consolidated text of the ELC:

FR: http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0092

Extracts in English (does not include 2022 amends): 

http://www.g-regs.com/downloads/BEEconomicCodeBookVIwithArt17_WRedit.pdf

 

 

SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

https://iccwbo.org/wp-content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf (EN)

https://iccwbo.org/wp-content/uploads/sites/3/2023/06/ICC-Advertising-and-Marketing-Code-Dutch-INT.pdf (NL)

https://iccwbo.org/wp-content/uploads/sites/3/2023/06/ICC-Advertising-and-Marketing-Communications-Code-FRENCH.pdf (FR)

 

Chapter A.  Sales Promotion

Chapter B . Sponsorship

Chapter C.  Direct Marketing and Digital Marketing Communications

Chapter D.  Environmental Claims in Marketing Communications

 

Additional ICC guidance and frameworks

(non-exhaustive)

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 

http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC rules themselves under chapter C - provisions for Interest-based advertising - we have extracted here

https://iccwbo.org/news-publications/policies-reports/icc-resource-guide-for-self-regulation-of-online-behavioural-advertising/

Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising

https://iccwbo.org/news-publications/policies-reports/mobile-supplement-icc-resource-guide-self-regulation-interest-based-advertising/

ICC Guide for Responsible Mobile Marketing Communications

https://iccwbo.org/news-publications/policies-reports/icc-guide-responsible-mobile-marketing-communications/

 

 

 

Other codes administered by JEP

 

The Code of Environmental Advertising 1998. Articles 1 to 14 (Code de la publicité écologique / Milieureclamecode). This code is from the Commission for Environmental Labelling and Advertising, which sat within the Consumer Affairs Council, the main advisory body on the issues of consumption and consumer protection. The Consumer Affairs Council delivers its advice to the Ministry of Consumer Protection and the Economy Ministry, and has legislative and executive powers on consumer issues. The code replaced an Environmental Code produced by JEP, the SRO for Belgium and is based on the ICC code applicable at the time. It now supplements the more recent Chapter E Environmental claims, of the ICC Code. The Code is administered by JEP.

FR - NL / EN

People and humour

 

  • Rules on the depiction of people: FR / NL / EN
  • Rules on humour in advertising: FR / NL / EN

 

JEP (Jury voor Ethische Praktijken inzake reclame (JEP)/ Jury d’Ethique Publicitaire). Jury of Advertising Standards – also translated as Jury for Ethical Practices in Advertising or Advertising Ethics Jury - JEP is the Self-Regulatory Organisation (SRO) for the advertising sector in Belgium and was created in 1974 by the Belgian Advertising Council (Raad voor de Reclame / Conseil de la Publicité, as of June 2020 Centre de la Communication). JEP’s mission is “to ensure fair, truthful, and socially responsible advertising.” The Jury composition is equally split between the advertising sector and civil society. JEP handles complaints from consumers, consumer organisations, public authorities and professional associations; competitor complaints are not within their remit, which is is determined by the Jury Regulations, and not by the legal and SR definitions of concepts such as ‘advertising’, ‘marcom’, ‘commercial communication’, etc. JEP’s areas of competence are translated here, see relevant case here.

http://www.jep.be/

Native

 

Code on Native Advertising and Related Commercial Communications. Code en matière d’identification des publicités natives et communications commerciales connexes. Published in January 2019, this code sets out what constitutes native advertising, provides the context of the ICC rules, and lists acceptable 'Identifiers'

 

Influencer marketing 

 

Published May 2022 by the Communication Centre, sets out the rules/ guidance on the issue of Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required:

https://www.jep.be/wp-content/uploads/2022/04/influencers_FR.pdf (FR)

https://www.jep.be/wp-content/uploads/2022/04/influencers_NL.pdf (NL)

http://www.g-regs.com/downloads/BEGenInfluencersMay2022EN.pdf (EN)

 

 

INDUSTRY ASSOCIATIONS

 

UBA

 

The United Brands Association, formerly the Union Belge des Annonceurs, the Association of Belgian Advertisers. The UBA Unstereotype Communication Charter has some influence:

www.mediaspecs.be/wp-content/uploads/2019/01/UBA-Charter-Unstereotype-Communication-FR-.pdf (FR)

www.g-regs.com/downloads/BEGenUBAStereotypeCharter.pdf (EN key clauses)

 

EASA

 

European Advertising Standards Alliance. ‘EASA has a network of 41 organisations representing 27 advertising standards bodies (aka Self-Regulatory Organisations) from Europe, and 14 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising Self-Regulatory systems, as set out in the Best Practice Model and EASA's Charter.’

http://www.easa-alliance.org/

Membership

http://www.easa-alliance.org/members

Best Practice Recommendations

 

Digital Marketing Communications (2023)

Online Behavioural Advertising (2021)

Influencer Marketing (2023)

 

 BAM

 

The Belgian Association of Marketing; from their website: 'the largest marketing trade association in Belgium. BAM is an open community that brings the members, initiatives and expertise of STIMA, BDMA and IAB Belgium together into one place to provide a unique knowledge exchange platform.'

https://www.marketing.be/home

IAB Europe

 

How to Comply with EU Rules Applicable to Online Native Advertising
IAB Transparency and Consent Framework:

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq.'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates GDPR. News story here.

 

WFA

 

World Federation of Advertisers (WFA) Guide for Marketers: Five things every brand owner should know about the General Data Protection Regulation: 

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

ESA

 

European Sponsorship Association: from their website:ESA’s mission is to inspire, unite and grow the sponsorship industry for the benefit of its members. ESA does this through education, guidance, representation, the recognition of excellence and the sharing of best practice and performance.’

https://sponsorship.org/

 

 

 

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Read more

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.'

https://iccwbo.org/wp-content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf (EN)

Translation of the code into several languages can be found here

 

Additional guides and frameworks (all EN)


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC Guidance on Native Advertising 

 

ICC toolkits

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'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

https://icas.global/about/

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 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. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

http://www.easa-alliance.org/

 

Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

https://www.easa-alliance.org/publications/easa-best-practice-recommendations-digital-marketing-communications/

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2021): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/

 

EASA Best Practice Recommendation on Influencer Marketing 2023. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR networks and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

https://www.easa-alliance.org/publications/best-practice-recommendation-on-influencer-marketing-guidance_v2023/

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

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.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018

https://eur-lex.europa.eu/eli/reg/2016/679/oj 

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016:

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

More recent documents:

 

 

 

Key Directives in marketing communications

 

Privacy/ cookies

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘e-Privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

e-Privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

e-Commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance:
December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. 

 

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). 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). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

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

 

 

 

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