Updates
WLTP values
SRC review March 2020
Media Act amends Dec 2020
NRC links Jan 2021
Media Act updates August 2021
AFM download link amended Oct 2021
ICC Environmental framework 2021 (Nov)
Credit links refreshed Jan 2022
Media Act updates March 2022 (NL)
CvdM Influencer rules May 2022 (NL)
EN summary of the above here
Updated Social Media and Influencer Code
Above is unofficial EN translation. NL here
Tesla is fined millions of dollars for false advertising
Above from Electrek January 2023 re Korean market
Sustainability Advertising Code (NL) Feb 1, 2023
EN translation of the above here Feb 7, 2023
General rules header expanded March 16, 2023
Updated Field Marketing Code July 2023
Above applicable to all sectors NL / EN
CCD II proposal plenary vote September 2023 (EN)
EASA Update CCD October 2023 (re car finance)
Links reviewed Dec 2023; 2 links renewed
Dutch Supreme Court rules EVs falling short of claimed range are non-conforming
CMS Netherlands/ Lex July 11, 2024
From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising.
The Dutch version is linked; an unofficial English translation is here.
The Netherlands follows the pattern of most EU markets, with the three main factors in Car marcoms - Safety, the Environment, and Credit - forming the core of the market’s regulatory agenda. The self-regulatory regime features both a Car Code (EN) and an Environment Code (EN). The former is unusual in as much as it extends energy data requirements into the online environment. Credit advertising that includes ‘any figures relating to the cost of the credit’ must include a ‘warning message’, which carries some very specific formatting requirements. As online advertising frequently includes earned and owned space, the identification of advertising within that space is important: In the Netherlands, advertising is defined as ‘any form of public and/or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as Advertising.’ (Art. 1 Dutch Advertising Code (EN), Section A). ‘Advertising’ includes e.g.: teleshopping, telemarketing, sponsorship, product placement, packaging, labeling, direct marketing and buzz marketing.
The self-regulatory authority Stichting Reclame Code (SRC) manages the Dutch Advertising Code (DAC; EN) which contains the Code for Passenger Cars (EN) (NL) requiring that ‘Advertising shall not appeal to or elicit aggressive, environmentally unfriendly or unsafe traffic behaviour’ (Art. 3), ‘the use of terms that commend the car as an absolutely safe product shall be avoided in advertising messages (Art.4), and that ‘speed, acceleration and engine power shall not be used as arguments to promote sales’ (Art. 1). Full provisions are set out in content section B.
As with many countries, the authorities in the Netherlands do not specifically state that marcoms must observe the Highway Code, but the self-regulatory code requires observance of the law (art.2 of the DAC) and common sense suggests that the rules of the road should be observed in car advertising, notwithstanding that any breach in advertising will be judged on its context and intent. Nevertheless, the following might be regarded as minimum:
Detail in section B, showing regulations from the two main traffic acts, Road Traffic Act 1994 (EN key clauses) and Traffic Regulations & Road Signs 1990 (EN key clauses)
The Dutch Advertising Code (EN) also contains the Sustainability Advertising Code (NL; Feb 2023; unofficial EN translation here). All advertising in this sector must conform to this code and the Car code above, in addition to the general advertising rules contained within Section A of the Dutch Advertising Code linked above. More on those under the General tab below. Relevant in this context albeit more from an international perspective is Chapter D - Environmental Claims - of the ICC Advertising and Marketing Communications Code, together with the ICC Framework for Responsible Environmental Marketing Communications 2021 (EN), updated and issued in November 2021. Appendix I carries a handy environmental claims checklist. The ACM (Authority for Consumers and Markets) publish Guidelines Sustainability Claims (EN, NL here); it is important that these guidelines are understood - the ACM is very active in this territory.
The Decree on labelling the energy consumption of passenger cars (EN) implements Directive 1999/94/EC on the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars, applicable only to print media. Commission Recommendation 2003/217/EC extends these information requirements to ‘promotional material distributed by electronic means’ (i.e. to include web pages and digital media such as DVD’s/CD-ROMs); as a Recommendation it is non-binding and it has not formally been adopted in the Netherlands, but you should at least be aware of it. The self-regulatory Code for Passenger Cars (EN) contains provisions in line with Annex III (Provisions on promotional literature) of the Decree and includes requirements for online media as well as specifying sizes and formats of FC&CO2 data, set out by channel in section B of this website. NB A recent decision (July 2017) from the Advertising Code Committee requires that it is made clear that the energy data figures are the official data, or that a disclaimer is included that the official figures are not achievable in reality. From April 2020 all relevant new car advertising will be required to display WLTP figures.
Management of End-of-Life Vehicles Decree (EN) of 24 May 2002 implementing Directive 2000/53/EC requires that information on a car model’s recycling and waste management practices and progress is included in the ‘promotional literature’ for the sale/ marketing of new vehicles.’ There is not much evidence of widespread compliance with this Decree, which technically would apply to e.g. press advertising. Most manufacturers will probably carry the information on their websites.
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’. This information if present, and other aspects of credit advertising such as restricted expressions, should be reviewed/ finalised by national practitioners and advisors. In other words, check credit offer advertising with your lawyers.
Directive 2008/48/EC has been implemented in the Netherlands via the Act of 19 May 2011 (NL) by way of a new chapter in the Dutch Civil Code (Book 7, Title 2A; EN). The Further Regulation on the Supervision of the Conduct of Financial Corporations (EN key clauses), arising from article 53 (7) of the Decree on Market Conduct Supervision of Financial Corporations (EN key clauses), contains the rules for the inclusion of a warning phrase and symbol in credit advertising across all media (art. 2.2). Specific formatting/ sizes of the message are required; these are shown in our channel section C by medium. Downloads from the Financial Markets Authority here.
As pricing provisions apply to all sectors, rules are placed under the General tab below. The Consumer Authority (EN) pays close attention to car advertising and prices, and has a clear view about which costs should be included in a car’s price, per this explanation on their website (NL).
The two key issues for the car sector in channel / media are the energy data and credit stipulations, specifically in terms of formatting in each medium. The requirements in the Netherlands for energy data are relatively unusual in Europe in as much as the Code for Passenger Cars (EN) requires data in online media, as well as specifying sizes and formats for all channels (except TV and Radio). Credit advertising is similarly prescribed, with the warning symbol required to be present in particular form. Details shown in each channel under our following section C.
The rules that apply to all sectors, cars included, should also be observed, as adjudications against car advertising frequently derive from e.g. misleadingness or social responsibility rules. These 'general' rules are shown under the General tab below; the principal source of rules is the Dutch Advertising Code (DAC; EN). As the car sector may be active in Influencer Marketing, advertisers/ agencies should be aware of May 2022 Influencer rules (NL; EN summary here) from the media authority CvdM. As a result of amends to the Media Act (NL Jan 2023), Influencers/ 'video uploaders' are deemed to come into scope; in the first instance only those Influencers with more than 500k followers/ subscribers and who post more than 24 videos annually are required to register with CvdM and with the advertising SRO and also with NICAM, the latter for child protection reasons. In light of this development, the Dutch SRO amended their Social Media and Influencer Code (EN) effective July 1, 2022.
While advertising largely operates under a self-regulatory system, and the codes in The Netherlands are particularly well aligned with the law, it's as well to be aware of statutory requirements. Perceived wrongful comparative advertising, for example, can lead to litigation and lobby groups have brought cases related to environmental claims, or claimed 'greenwashing'. Consumer protection/ marketing legislation in the Netherlands is provided by articles 193a-193j (EN / NL Jan 2023) Book 6 of the Dutch Civil Code, which prohibits various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 regulate comparative advertising from Directive 2006/114/EC. The earlier linked translation of Book 6 does not include the amends resulting from the Omnibus Directive 2019/2161 provisions related to search rankings and consumer surveys inter alia. Requirements are transposed in the DAC under article 8 and Annex 1 and shown here. More - much more - under the General tab below, which also covers under channel section C the consent and information rules where legislation plays an even more significant role.
Updates since Sept 2022 (slimmed)
ACM case H&M & Decathlon (EN) Sept 2022
Influencer rules assembled by DDMA Oct 2022 (NL)
Shell CO2 offset ruling Jan 2023 SRC newsletter (NL)
Media Act January 2023 link (NL)
Sustainability Advertising Code (NL) Feb 1, 2023
EN translation of the above here Feb 7, 2023
ACM Sustainability Guidelines (EN) June 2023
Commentary on above CMS/ Lex July 11, 2023
ACM: Clear Information on Sustainability Aug 28, 2023 (EN)
Taylor Wessing on the above and ACM guidelines Nov 6, 2023
AFM Sustainability Claims Guidelines October 2023
ING environmental advertising ruling (NL); vid here (EN)
Above published January 31, 2024 via EASA
Primark, Arla foods smackdown Taylor Wessing
Above re green claims February 2, 2024
SRC Quarterly newsletter (NL) May 2, 2024
SRC Annual Report 2023 (NL) May 2024
DLA Piper Environmental Advertising Claims Guide
Above from August 7, 2024 includes The Netherlands
Advertising, Marketing & Promotion Comparative Guide
Hoogenraad Haak July 2, 2024. Inc Netherlands
MSC Cruises Environmental Claims. Oct 2, 2024 (EN)
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
Netherlands Media Authority fines influencer for the first time (EN)
CMS Netherlands July 17, 2024
ACM intensifies supervision of greenwashing (EN)
Maverick. June 6, 2024. Good round-up
Tui and Fossil Free. Maverick May 10, 2024 (NL, EN)
SELF- REGULATION
Stichting Reclame Code (SRC) is the Self-Regulatory Organisation in the Netherlands. The SRC publishes the Dutch Advertising Code (DAC) NL / EN, which applies to all advertising regardless of the medium. The DAC is in three sections: General Section (EN); a section of various Special Advertising Codes; and a General Recommendations section (EN). The General section contains a body of rules with which all advertising should comply. The special codes apply to advertising for specific products and services, or using specific channels; see channel header below. There is also the:
Children/ Young People Advertising Code (EN) and the
Sustainability Advertising Code (NL; EN Feb 2023)
CONSUMER AND BUSINESS PROTECTION LEGISLATION
Articles 193a-193j (EN; not up to date - see later entry in this para/ NL) of Section 3A, Book 6 of the Dutch Civil Code prohibit various unfair practices by traders towards consumers, implementing the key provisions of the Unfair Commercial Practices Directive UCPD 2005/29/EC, whilst articles 194-196 (NL / EN; amend to art. 194 here) of Section 4 regulate comparative advertising as derived from Directive 2006/114/EC. These rules are accurately reflected in the DAC referenced and linked above - see Table of Concordance under Annex 2. The Act of 30 March 2022 (NL) amends articles 193c to g of Book 6 of the Civil Code in connection with the implementation of Directive 2019/2161, providing new clauses related to search rankings and consumer reviews, also expressed in the Dutch Advertising Code (EN) under article 8. See Fake Reviews; Really Misleading from Hoogenraad & Haak advocaten/Lex March 23, 2023 which includes a significant ruling from SRC/ ACC. The statutory authority ACM - see below - is also aggressive in this space: ACM takes action against fake reviews from Bird&Bird September 23, 2024 has some examples.
There is a particularly active competition authority in The Netherlands; the recent work of ACM Authority for Consumers and Markets is discussed here (NL) by Maverick Advocaten/ Lex September 13, 2022. Also see environmental claims header below: 'greenwashing' is very much in the ACM's sights.
SELF-REG CHANNEL (I.E. PLACEMENT) RULES
The 7 channel codes from the DAC are:
Code for distribution of advertisements by e-mail EN
Social Media and Influencer Advertising Code 2022 NL EN (unofficial)
Letterbox advertising, door2door sampling and direct response advertising EN
Advertising Code for the use of the postal filter 2021 EN
Code for the distribution of unaddressed printed advertisements EN and
Field Marketing Advertising Code NL (2023) EN (2023)
Rules from these are set out under the relevant headers in our channel section C
AV LEGISLATION AND AUTHORITY/ INFLUENCERS
Statutory regulation of Dutch audiovisual media in the Netherlands is from the 2008 Media Act (NL, Jan 2023). The linked act includes amends brought about by the 2018/1808 Directive which amends the AVMS Directive 2010/13/EU, ‘in view of changing market realities’ meaning inter alia that video-sharing platforms are now in scope of the Media Act (Chapter 3a; NL). There was some debate about the application of the rules as they relate to an ‘on-demand audiovisual media service’ and whether this definition ‘catches’ vloggers. In May 2022, the Media regulator CVDM issued New rules for video uploaders (NL summary) effective July 1, 2022. These require that influencers who are active and have more than 500,000 followers/ subscribers must register with CVDM no later than July 15 and with the Dutch SRO and NICAM. An overview of the rules is here (NL, non-binding translation here). A registration check is on the CVDM website and can be found from the preceding link.
CHANNEL - DIRECT ELECTRONIC COMMUNICATIONS
The Telecommunications Act (NL link is to the May 2022 version incorporating amends that prohibit unsolicited calls and abolish the 'do not call me' register) NL / EN (key clauses only) article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent of the user. Tracking cookies are presumed to entail the processing of personal data under the DPA, meaning prior unambiguous consent of the user is required. There may also be implications from the introduction in May 2018 of the GDPR. See below.
Requirements for information society services and sending of online commercial communications per Directive 2000/31/EC can be found in articles 15d and15e Book 3 Dutch Civil Code EN / NL (Nov 2022). The translated file does not reflect the latest NL link, but the clauses referenced remain in force.
DATA PROCESSING/ PRIVACY
Privacy Sandbox news and updates
DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024
Privacy issues should be reviewed with specialist advisors
From May 25 2018, the Dutch Personal Data Protection Act was repealed in the light of Regulation 679/2016, the General Data Protection Regulation (GDPR), which repeals Directive 95/46/EC which the Dutch act transposed. The European Commission page on GDPR is here. The GDPR 'implementing' act in the Netherlands is here (NL). The Authority Autoriteit Persoonsgegevens AP supervises processing of personal data; their advice on the introduction of the GDPR is here, albeit only in Dutch at this point. Purely commercial interest also a legitimate interest? courtesy of Stibbe/ Lex July 27, 2022 reports on a significant exchange between AP and the Council of State on the subject of legitimate interest and a 'wrongly imposed' €575,000 fine on VoetbalTV.
SPECIFIC CLAIM AREAS
Pricing
Directive 2019/2161/EU inter alia brings new promotional pricing rules under article 2; see below
When a price is mentioned in advertising, the final/ total price should be indicated, including VAT and all other price components; see recent ‘Scooter’ case EN. The basis of this ruling was from the UCPD (per above, under consumer protection), as reflected in article 193 of the Dutch Civil Code EN. In the Netherlands, the Product Pricing Directive 98/6/EC is implemented in the Product Pricing Decree PPD NL (Jan 2023) / EN (key clauses inc. 2022 amends). Also known as the Price Labelling Regulations, they apply to advertising (Art. 5.1 PPD). With amendments from the Directive 2019/2161, the 98/6 Directive incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing, commission guidance for the application of which is here. The ACM (Authority for Consumers and Markets) addresses the issue of new rules on promotional pricing in their news item of 27/5/22 here (NL), which states that rules will come into force 'later this year' (see decree entry above); commentary on the decree, which came into force January 1 2023, is here (EN) from Maverick Advocaten NV/ Lex Feb 1. The ACM also has a note on price promotions EN and advertised prices of new cars EN and both the Dutch Advertising Code, supplemented by the SRC Check on Unfair Advertising, and the Civil Code Book 6, Section 3A, include further pricing provisions such as use of the term ‘free’ and ‘Bait and Switch’ advertising. See our following content section B for details, or the linked files.
Environmental claims
Sustainability ad code: a year's lessons Stibbe Sept 26, 2024 (NL)
Ads from Greenpeace & Weerribben Zuivel deemed misleading
Baker McKenzie September 16, 2024 (EN)
The risks & pitfalls of sustainability ads in the Netherlands
Baker McKenzie September 16, 2024 (EN)
ACM intensifies supervision of greenwashing
Maverick. June 6, 2024. Good round-up
Greenwashing in the spotlight - recent developments in the Netherlands
Another good round-up. Freshfields Bruckhaus Deringer April 25, 2024
Key legal and self-regulatory measures
The use of environmental claims in advertising may be assessed against general misleadingness legislation articles 193a-j from Book 6 of the Civil Code (EN; does not incorporate new clauses here) on unfair commercial practices (EN) and Section A (EN) of the DAC, articles 7 and 8. See also December 2021 Commission Guidance on application of the UCPD for such claims, section 4.1.1. From a specific self-regulatory perspective, the SRC’s 2023 Sustainability Advertising Code (NL / EN) applies. This is supplemented by the SRC Check: Environment and Sustainability (NL), as well as the SRC Checklist. Additional guidance on environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021), which includes an environmental claims checklist. Our following content section B for details of all of the above, or see the linked files.
ACM and AFM activity
The ACM (Authority for Consumers and Markets, per above) publish Guidelines Sustainability Claims (EN 2023 version; NL here), on which CMS Netherlands comment in a July 11 article here (EN). According to Maverick Advocaten NV June 2021, ACM has asked more than 170 companies in the energy, dairy and clothing sectors to check the accuracy of their product range against the guidelines. In September 2022, clothing retailers H&M and Decathlon agreed to remove or adjust all environmental claims from their clothes and websites 'and make donations of 400,000 euros and 500,000 euros respectively to different sustainable causes to compensate for their use of unclear and insufficiently substantiated sustainability claims.' Case report from the ACM in English here and commentary from GALA here. From Stibbe/Lex January 2023 Key developments in sustainability claims in 2022 is a very good round-up of ACM activity, together with some EU context. AFM, the authority for financial markets, published Guidelines on Sustainability Claims (EN) in October 2023 for financial institutions and pension providers.
SRO rulings
This August 2021 ruling (NL) from SRC against Shell is instructive; context and commentary from Jones Day here (in English), and this April 2022 ruling (NL) versus KLM's 'carbon zero' claims, which was found to have lacked sufficiently strong evidence for an 'absolute' claim, is also significant and is separately followed up in the courts under UCPD; June 2023 update here and see March 2024 entry above under Issues/ news. This case (NL) about Albert Heijn's bananas being CO2 neutral demonstrates the danger of unsupported statements. Finally, this Shell CO2 offset ruling Jan 2023 SRC newsletter (NL) to book-end the August 2021 equivalent. Not quite finally, as Chewing Gum Argument: Natural Gum Or Not? from Hoogenraad/ Haak March 23, 2023 sets out the case of Perfetti vs. Benbits with the SRO ruling and a judgement in the Amsterdam District Court.
Global measures
The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. This latter has been 'diligently developed with SROs and other associations.' On 7 October 2021, Google launched a new monetisation 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. The ICC's Advertising and Marketing Communications Code addresses under Chapter D environmental claims. DLA Piper's August 2024 Environmental Advertising Claims Guide covers all key markets including The Netherlands.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
ICAS Latin American Chapter Buenos Aires Declaration
Above from ICAS September 23, 2024
Google overturns 1.5 bil fine in EU ad case
AP News Sept 18, 2024. Haas here (FR) Oct 2
EASA Newsletter September 27, 2024
Google built an illegal monopoly. What happens next?
UK Guardian August 6th, 2024
AI
EASA newsletter update AI legislation Aug 2024
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
The Green Claims Directive on its way to adoption
Freshfields Bruckhaus Deringer June 18, 2024
Directive Empowering Consumers for Green Transition in force
Taylor Wessing Mar 21, 2024 and Womble Bond Apr 11, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets 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 & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). 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
Key rules are set out in the following content section B and channel section C, as applicable
Legal commentary
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
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and self-regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or channel | Key European legislation and clauses |
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 |
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://data.europa.eu/eli/dir/2000/31/oj
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; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) 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 sets out 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.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
1.1. The Code for Passenger Cars
1.2. The Highway Code
2.2.Energy data (FC&CO2)
2.3. End-of-Life vehicles
From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising. The Dutch version is linked; an unofficial English translation is here
1.1. The code for passenger cars:
https://www.reclamecode.nl/nrc/code-for-passenger-cars-cvp/?lang=en (CPC; EN)
Marcoms (in all media) must not:
Engine power code from SRC Dutch Advertising Code CPC:
Legislation:
Road Traffic Act 1994 (EN key clauses) and Traffic Regulations & Road Signs 1990 (EN key clauses)
Article 2 of the DAC states that advertising must be in accordance with the law, good taste and decency. While the link is not absolutely secure (there’s no law that states that car advertising should be in accordance with traffic regulations), it’s pretty obvious that car advertising should observe Traffic Regulations, though any breach in advertising will be judged on its context and intent. Some of the more prominent and relevant traffic rules are below:
The following links provide more rules that may be relevant: Road Traffic Act 1994 (EN) and Traffic Regulations & Road Signs 1990 (EN). The Dutch Advertising Code (DAC) incorporates a Code for Alcohol, which includes a provision relating to driving (Art. 18); as you might expect, the traffic regulations prohibit driving under the influence of a substance or substances, or having consumed alcohol to the levels stipulated (Art. 8, Road Traffic Act, as above)
From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising. The Dutch version is linked; an unofficial English translation is here.
2.1. Environmental claims
Relevant rules from the SRC’s Dutch Advertising Code: Sustainability Advertising Code (NL; Feb 2023) and the Code for Passenger Cars (CPC; EN) Articles 1 and 3; the CEA applies to all advertising messages referring implicitly or explicitly to environmental factors connected with the production, distribution, consumption or waste processing of goods, or with related services. Marcoms:
Context and sources
Note: a July 2017 decision from the Advertising Code Committee requires that it is made clear that the energy data figures are the official data, or that a disclaimer is included that the official figures are not achievable in reality. From April 2020 all relevant new car advertising will be required to display WLTP figures. Law and industry code: Decree on the labelling of Energy Consumption of Passenger Cars, referenced below as 'The Decree'. English translation of key clauses here; and the SRC Code for Passenger Cars (EN), referenced as CPC. The Decree requires information on fuel consumption and CO2 emissions to be displayed on/ via the following media/ 'information tools'. Our pages cover mainly promotional literature and Online
2.2.1. Promotional literature/ print media (the law)
2.2.2. Promotional literature/ print media (self-regulation)
Formatting requirements
The self-regulatory Code for Passenger Cars (CPC; EN) reflects and supplements the law above, stipulating formatting for energy consumption data, as follows:
The CPC mirrors the following provisions from the Decree (Stb. 2000/475), including non-print media:
2.2.3. Online promotional material
Management of End-of-Life Vehicles Decree (EN) of 24 May 2002 implementing Directive 2000/53/EC requires that information on a car model’s recycling and waste management practices and progress, as below, is included in the ‘promotional literature’ for the sale/ marketing of new vehicles.’ 2. The report shall contain, in any event, data on:
a. the way in which in the design of a new vehicle type, the generation of waste is being controlled (prevented), to the possibility of re-using as a product or material and of [how] recovery of that type of vehicle is pursued (achieved)
b. the manner in which End-of-Life vehicles are processed
c. the development and improvement of ways to reuse as a product or material and recover end-of life vehicles
d. the percentage of weight of the vehicles made available by the manufacturer or importer to another (vehicle) that are being re-used or recovered as a product or material
4. The manufacturer or importer shall ensure that the information referred to in the second paragraph shall be included in promotional literature used in the sale/ marketing of new vehicles
There is not much evidence of widespread compliance with this Decree, which technically would apply to e.g. press advertising. Most manufacturers will probably carry the information on their websites
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.
Caveat
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’. This information if present, and other aspects of credit advertising such as restricted expressions, should be reviewed/ finalised by national practitioners and advisors. In other words, check credit offer advertising with your lawyers.
National legislation and the European Directive:
3.1. Standard information
Where a financial enterprise refers to a borrowing rate or other information relating to the cost of credit in an advertisement about loans/ credit, it must also provide information concerning (Art. 53 BGFO):
(a) The borrowing rate, fixed or variable or both, together with particulars of any charges included in the total cost of the credit to the consumer
(b) The total amount of credit
(c) The annual percentage rate of charge (APR)
(d) The identity and address of the credit provider or of the credit intermediary; and, if applicable,
(e) The duration of the credit agreement
(f) In the case of a credit in the form of deferred payment for a specific good or service, the cash price and the amount of any advance payment; and
(g) The number of instalments and instalment amount
3.2. Statements
3.3. Prohibitions
A financial enterprise must not:
As pricing provisions apply to all sectors, rules are also shown under the General tab below.
We show here those rules most relevant to the car sector. This is sensitive and difficult territory, for car prices especially; quoted prices are best reviewed by a legal advisor
Legislation
Authority guidance
Key clauses
4.3. Case law
Court of Justice of the European Union (CJEU) C‑476/14 Citroën/ZLW Judgement and AG Opinion; in brief summary, the court ruled that car retailers may not advertise a price that does not include all necessary and fixed costs
1. SELF-REGULATION
1.1. Section A General rules, Dutch Advertising Code
Invitation to purchase
Identifiability
Comparative advertising
Aggressive advertising
Blacklist: annex 1 and 2
1.2. Section C of the Dutch Advertising Code
Deleted by SRC as of Jan 2023
Use of ‘comparable retail value’
Superlatives, guarantees
The term ‘recommended price’
Advertising for branches
Pictures of the product
1.3. Advertising Checker service from SRC
2.1. Comparative advertising
2.2. Misleading commercial practices
2.3. Invitation to purchase
2.4. The Blacklist
3. SPECIFIC CLAIM AREAS
1. SELF-REGULATION
Note: where the English version of the Dutch Advertising Code below does not accurately reflect the Dutch version, or the European Directives from which part is derived, we have ‘tweaked’ it for presentation in the articles that follow, for easier understanding. The applicable code for adjudication purposes is anyway the Dutch version, and you can always refer back to the SRC English version. We have extracted the most important of the rules and in some cases linked particular explanations; the full code in English is linked here
Section A. General rules
Unfairness and misleadingness
Above clauses d and e added May 2022 in transposition of Directive 2019/2161
Invitation to purchase
(Art. 8.4. Explanation An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way appropriate to the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement. If the advertisement states a (starting from) price, the consumer usually has sufficient information to decide to make a transaction)
Invitation to purchase in relation to a distance or off premises contract
http://www.g-regs.com/downloads/NLGenDACArt8I2Pexp.pdf
Identifiable advertising
Comparative advertising EN (Art. 13)
Aggressive advertising (Art. 14. Explanation ‘Undue Influence’ is defined as taking advantage of a dominant position in order to apply pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s ability to make a well-informed decision is considerably reduced. The methods of advertising as referenced in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances)
Blacklist: Annex 1 and 2
Annex 1 contains advertising practices considered misleading under all circumstances, whilst Annex 2 lists advertising practices considered aggressive under all circumstances. The following blacklist clauses are added in the DAC, having been transposed May 2022 as a result of Directive 2019/2161 amends
1.2. Section C of the DAC: General recommendations
This section was deleted from the DAC January 2023
The topics below are set out in full here (EN)
Use of words ‘comparable retail value’
Superlatives, guarantees
Use of the term ‘recommended price’
Advertising for branches
Pictures of the product
1.3. Advertising Checker Service from the SRC
Context
This is a service in Q&A/ Do’s and Don’ts format that is intended to help with some of the major issues such as taste and decency, information requirements etc. that can be encountered when developing advertising. Those issues are set out below largely by way of linked files, as their exploration is quite intricate and lengthy. The information below and linked has been translated from sites that are amended on a regular basis. Whilst we try to keep the translation updated, for the most recent information, it may be best to check the Dutch version linked above
Taste and decency
http://www.g-regs.com/downloads/NLGenSRCCheckT_DChecklist.pdf
Recognition of advertising
http://www.g-regs.com/downloads/NLGenSRCCheckIdentifiabilityChecklist.pdf
For guidance on identifiability across several issues/ channels, including example cases
http://www.g-regs.com/downloads/NLGenSRCCheckIdentifiabiltyMedia.pdf
Unfair advertising
https://www.g-regs.com/downloads/NLGenSRCCheckGenUnfair.pdf
A section on the ‘Blacklist’, i.e. those commercial practices in all circumstances considered unfair
http://www.g-regs.com/downloads/NLGenSRCCheckUnfairBlacklist.pdf
Information requirements
Last updated by SRC 10/10/2017 NL
Key extracts in English here:
https://www.g-regs.com/downloads/NLGenSRCCheckInfo.pdf
While advertising regulation is largely a self-regulatory system, legislation is influential in channel especially, but also in content. Issues of unfair commercial practices and comparative advertising can end up in the courts, so it’s best to know what the laws say, albeit they are largely echoed in self-regulation, in the Netherlands in particular
Applicable legislation
2.1. Comparative advertising (Art. 194a Book 6 CC (EN))
1. Comparative advertising means any advertising that explicitly or by implication identifies a competitor or goods or services offered by a competitor
2. Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
a. It is not misleading or a misleading commercial practice referred to in Articles 193c to 193g
b. It compares goods or services meeting the same needs or intended for the same purpose
c. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
d. it does not create confusion in the market place 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
e. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
f. For products with designation of origin, it relates in each case to products with the same designation
g. 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
h. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name
3. Any comparison referring to a special offer shall indicate in a clear and unequivocal way the date on which the offer ends or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the date of the start of the period during which the special price or other specific conditions shall apply
2.2. Misleading commercial practices (Article 193c Book 6 CC)
which causes or is likely to cause the average consumer to take a transactional decision which he otherwise would not have taken
2.3. Misleading purchase invitation (Art. 193e Book 6 CC)
In the case of an invitation to purchase Definition Art. 193a(1g): invitation to purchase: 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 if not already apparent from the context, the following information shall be regarded as material in the sense of Article 6:193d paragraph 2 (misleading omission):
In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the 2023 NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file
2.4. The commercial practices ‘Blacklist’ EN / NL (Jan 2023)
3. SPECIFIC CLAIM AREAS
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say
Applicable self-regulation
Applicable legislation and guidance
Note: the Decree under the second bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC relating to the requirement for total/ final prices to be stated. With amendments from the Directive 2019/2161, the PPD incorporated a new article 6a, which sets out provisions for reduced/ promotional pricing. The ACM - the Dutch consumer protection authority - has May 2022 news here (NL) and this March 2022 article from Maverick Avocaten is helpful
Self-regulatory clauses
New article 8.6 Price reduction; transposed from the Directive 2019/2161 which amended the Product Pricing Directive 98/6/EC
Advertisements that mention a price reduction for a particular product, always state the lowest price that the advertiser has applied for that product prior to the promotion during a period of at least thirty days before the discount takes effect. The foregoing does not apply to goods that deteriorate or expire rapidly, for products that have been on the market for less than thirty days and for price reductions that are progressively increased, in accordance with the Product Price Indication Decree.
Example case: Kia Picanto EN. Extracts below
The Chairman’s scooter
The 2017 'Scooter' case (Chairman’s Decision Case No: 2017/00281 EN). Because the final price is not stated, the Chairman considers the advertising in violation of art. 8.4c DAC in conjunction with article 2b of the Prices Act and article 3 paragraph 1 of the Product Pricing Decree (EN)
Comparing prices
Other types of pricing deception within the DAC; Annex I
With the intention to promote another product (Point 6 (a-c), Annex I DAC)
Case law
Key points from case C‑476/14 Citroën/ZLW):
Self-regulation
SRC Check: Environment and sustainability
The SRC are the Self-Regulatory Organisation in The Netherlands. The ‘Check’ system helps guide agencies and advertisers through the various codes. It has not yet been formally translated. The extracts below have been translated by GRS, the owners of this website. As is always the case, the applicable rules are anyway those in the original Dutch. The file here is the full Check section on Environment and sustainability. Read it if you want further background and help on environmental claims:
http://www.g-regs.com/downloads/NLGenSRCCheckEnvironment.pdf
The original:
http://www.checksrc.nl/check/milieu_en_duurzaamheid/
Adjudication: File No. 2017/00812; 20/12/2017
Link no longer active; summary below
ACM Is the Dutch consumer and markets authority, a stautory body. This is a significant document from an organisation empowered to take action against companies they consider to be in breach. The linked document (above) contains some explanations of the core 'rules of thumb' below, the legal context and some relevant cases. Clauses in italics are the amends from the 2021 version. Helpful commentary from CMS Netherlands here
European Commission guidance
Commission Guidance on the application of the UCPD December 2021; section 4.1.1. Environmental claims. This is an important document with definitive guidance on the application of the most important European legislation for this commercial communications context
Comparative environmental claims should be assessed under the criteria from the Directive on Misleading and Comparative Advertising MACAD Article 4 / Article 194a Book 6 Civil Code EN / Article 13 Dutch Advertising Code (EN). These criteria apply to advertising that compares the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things:
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
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Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
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.
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
Download the TV warnings in different formats (eps and jpeg) here
KEY RULES AND SOURCES
COMMERCIAL CHANNELS
Incorporates TV and Radio and On-demand
CVDM Policy on advertising, commercial media organisations 2012 (EN)
CVDM Policies sponsoring commercial media organisations 2012 (EN)
CVDM regulation on product placement by commercial media institutions 2014 (EN)
The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here and they anyway reflect the amends to the Media Act separately conveyed
https://www.cvdm.nl/uploader/meer-weten
PUBLIC CHANNELS
Summary
STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the independent agency handling advertising on Public Broadcasting's television, radio and online outlets. Advertising rules are applicable to all their media services including, for example, websites or media services on demand (Art. 2.98 Media Act). STER is affiliated to the SRC self-regulatory advertising authority and is legally obliged to observe the Dutch Advertising Code (Art. 2.92 Media Act)
CVDM Policy rules on advertising for public media institutions 2019 (NL) (EN)
CVDM Policy rules for sponsorship, public media institutions 2018 (NL) (EN)
Checking for updates per above commercial amends
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
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
CINEMA
OUTDOOR
The international association for OOH advertising is the World Out Of Home Organisation (WOO); membership list here
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
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Article B12 ICC Code Media sponsorship
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 space online is often advertiser-owned, there’s focus on the identification of advertising, because advertising is in remit, i.e. subject to the rules, in owned and (some) earned space as well as paid. Advertising is defined as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as Advertising.’ (Art. 1 Dutch Advertising Code)
From April 2020 all relevant new car advertising is required to display WLTP figures
3) For websites the following provisions apply:
From Netherlands Financial Markets Authority (Autoriteit Financiële Markten - AFM) Links to credit warning logos and messages in advertisements
The last condition means that the image may be reduced in size until the minimum type size of the warning phrase in this image has been reached. If, when using the image, the full width and/ or the minimum height of 10% of the advertisement (including the warning) are not reached, the image in its original proportions should be magnified until the image fills the full width and at least 10% of the height of the advertisement. NB: the minimum font size of 7 points is stipulated herein in order to ensure adequate legibility in small print ads.
The warning (downloaded clip) must be played straight after the advertisement and at the original speed and at the same volume as the advertising message
CONTEXT
This section provides the broad 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 DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ The impact of GDPR is shown under individual channel sections; in broad, when processing personal data lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors
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RECOGNISABILITY: SELF-REGULATION
RECOGNISABILITY: LEGISLATION
INFORMATION REQUIREMENTS
OTHER MEASURES BY CHANNEL AND RE CONTENT CREATORS
Regulatory authorities
ACM's Nov 22 Guidelines on the protection of the online consumer (NL) is an important document that 'draws the line between seducing and misleading consumers in the online environment', from CMS/ Lex commentary here (EN) November 22, 2022
INFORMATION REQUIREMENTS FROM LEGISLATION
Art. 15d Book 3 Civil Code (EN) from the e-Commerce Directive 2000/31/EC: Accessibility of data and information. See the linked file for requirements or under the Marketers’ Own Websites header later in this channel section C. Note: the information must be made ‘directly, easily and permanently accessible.’
The Telecommunications Act NL / EN Article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems. Article 11.7a implements the cookie provision, allowing cookies after obtaining informed consent. See provisions from the linked files or under the email header later in this channel section C. If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors
Article 193e from Book 6 of the Dutch Civil Code (EN) on 'Invitation to Purchase' covers information requirements for this type of advertising. Provisions are almost word-for-word per the DAC article 8.4 referenced above, as both sources derive from the UCPD 2005/29/EC. In May 2022, Paragraphs 2 and 3 were added to this article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file
Commission's call for evidence on DSA minors protection guidelines; closes 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
From April 2020 all relevant new car advertising is required to display WLTP figures
COOKIES
Privacy Sandbox news and updates
DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Privacy Sandbox next steps. May 18, 2023
Guidance
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/ Lex September 8, 2023. Connects with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
EU Rules on Online Targeted Advertising Covington Burling Aug 2022 on existing targeting rules and DSA (in force January 2024)
Effective 19 January 2022
Self-regulation
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
Applicable regulation and opinion
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
KEY RULES AND THEIR SOURCE
SELF-REGULATION
Email code from section B of the Dutch Advertising Code EN / NL. Key points from the code (below as EC):
Identification
The right to object
Note: In the old B2B Email code, opt-in was not required for e-mails sent to generic addresses (i.e. info@ or sales@). No mention of this exemption in the new Email code. SRC (the Self-Regulatory Organisation for the Netherlands) state it no longer applies, meaning opt-in required for these addresses
LEGISLATION
As the self-regulatory email code is comprehensive, clauses from legislation are not spelt out in this section
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- 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
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 as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising.’ (Art. 1 Dutch Advertising Code; EN)
From April 2020 all relevant new car advertising is required to display WLTP figures
3) For websites the following provisions apply:
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. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.
In the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors
SELF-REGULATION
Social Code YouTubers NL / EN. This is a code written by YouTubers for YouTubers
LEGISLATION
See linked documents for clauses. These are not set out below
1.1. Social Media and InfluencerAdvertising Code 2022 EN
Explanation
https://www.reclamecode.nl/social-toelichting/ (NL)
Advice tool
https://www.reclamecode.nl/adviestool-reclame-code-social-media/ (NL)
Guidance document
https://www.reclamecode.nl/wp-content/uploads/2019/08/Toolkit-Guidance-doc-RSM.pdf (NL)
FAQs
https://www.reclamecode.nl/category/reclamecode-social-media-influencer-marketing/ (NL)
Note July 2022: we are not sure whether the above have been amended in light of the update to the code itself
Key clauses article 3: disclosure and identifiability of ‘Relevant relationship’
The requirements referred to in points a and b can be met in any event if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/ or presentation. The content and nature of the Relevant Relationship is in any event clearly recognisable if it is formulated in accordance with the suggestions in the explanation to this article (see file linked above for explanation; it's a bit lengthy to place here)
Manipulation ban
Teasers
Teasers are permitted except when the teaser causes or is likely to cause the average consumer to make a decision about a transaction that he would not otherwise have made
Children
If there is advertising via social media aimed at children, the Children's and Youth Advertising Code applies in full in addition to this code and the DAC (Art. 5 SMAC)
Duty of care
Example case (Identification)
YouTubers Code NL / EN website:
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The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN)
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. Category-specific rules are immediately below
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 the Netherlands by the 2008 Media Act (NL Jan 2023)
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 identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier content section B, primarily those from the Dutch Advertising Code (EN - translation does not include May 2022 clauses here)
SELF-REGULATION
Identifiable/ recognisable as advertising (Art. 11)
SRC Check: Unfair advertising - always unfair: Blacklist NL
Blacklist: Misleading under all circumstances and thus unfair advertising under Article 7 DAC
LEGISLATION
As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Includes unaddressed door-to-door
SELF-REGULATION
Addressed Direct Postal Mail - definitions and terms
Content of the offer
Advertising code for the use of the Postal Filter (PFC)
Unaddressed advertising and free local papers
LEGISLATION
As self-regulation is comprehensive on advertising recognisability, we show below only links to the relevant legislation, rather than spelling out each clause
Applicable self-regulation and 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:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
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Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
The IP Dos And Don'ts Of The Olympic And Paralympic Games
Novagraaf March 14, 2024
France: Juridische dos en don'ts voor de Olympische en Paralympische spelen in Parijs 2024
Novagraaf February 16, 2024
Netherlands: Ambush Marketing: Harmless Fun Or Harmful IP Infringement?
Novagraaf February 15, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush (EN). Lewis Silkin 25 Jan, 2024
Revised SRC field marketing code July 2023; see below. EN translation here
SELF-REGULATION
The DAC Field Marketing Code 2023 is linked below (EN)
http://www.g-regs.com/downloads/NLGenCodeFMAug2023EN.pdf
And in the original Dutch here:
https://www.reclamecode.nl/nrc/code-voor-fieldmarketing-cfm/ (2023)
This code applies to advertising relating to sale and promotion off-premise
EVENT SPONSORSHIP
B1. Principles Governing Sponsorship
B2. Autonomy and Self-Determination
B3. Imitation and Confusion
B4. 'Ambushing of Sponsored Properties
B5. Respect for the Sponsorship Property and the Sponsor
B6. The Sponsorship Audience
B7. Data Capture/ Data Sharing
B8. Artistic and Historical Objects
B9. Social and Environmental Sponsorship
B10. Charities and Humanitarian Sponsorship
B11. Multiple Sponsorship
B12. Media Sponsorship
B13. Responsibility
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The European Sponsorship Association (ESA) may also be able to help/ inform
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
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Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below
From April 2020 all relevant new car advertising is required to display WLTP figures
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 and SP administration legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered to be a lottery and are generally illegal. As promotional advertising might be more ‘aggressive’, we include the measures from legislation and self-regulation related to aggressive/ unfair advertising. Promotional activity can be fraught with regulatory issues; plans should be checked with specialist advisors.
SOME STANDARD RULES
LEGISLATION
1. Promotional Games of Chance
Includes prize promotions such as prize draws/ sweepstakes
A promotional game of chance must:
Notes accompanying Article 5: Promotion Definition Every form of promotion, whether direct or indirect, of the public profile of an organisation or the sales of goods or services (Art. 1.6)
Promotion may not be misleading in any way. Some examples of what may be misleading include the following:
2. Information obligations when using commercial communications (Art. 15e Book III DCC)
1. Where commercial communication forms a part of a service of the information society or makes out such a service itself, the one who has instructed to use this way of communication has to ensure:
3. Blacklist/ Commercial practices considered unfair in all circumstances (Art. 193g Book 6 Civil Code):
SELF-REGULATION
Advertising contests and promotions
Under the Dutch Advertising Code, Section B (Special Codes): c. Contests: advertisements for prize promotions and contests in print and electronic media must contain at least the following information:
............................................................
Annex II Dutch Advertising Code EN; SRC Check Unfair advertising NL echoes the Blacklist rules shown above under point 3. Rule are shown under the linked Annex 2 document
............................................................
From the ICC Advertising and Marketing Communications Code (EN), Chapter A. Key headers are
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
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
The Self-Regulatory Organisation SRC Stichting Reclame Code provides copy advice for a standard fee to advertisers, for example to those who have to adapt or withdraw an advertisement, to ensure that the amended advertisement complies with the decision of the Advertising Code Committee and/ or Board of Appeal. This advice is available only to advertisers who pay their annual financial contribution to the SRC. Advertisement copy advice is informal and non-binding; access is provided at: http://www.checksrc.nl/copy_advies. SRC also offers training on the rules of the DAC; you can check their website for the current offer or if you want a tailor-made training, you can contact the Compliance department of the SRC.
Besides Copy Advice and Training, SRC offers advertisers two websites (in Dutch) with explanations of the advertising rules: (1) www.checkdereclamecode.nl and (2) www.checksrc.nl. The first site offers a practical tool that makes it possible to check an advertisement or a campaign on the basis of a few simple questions. The second site offers advertisers the opportunity to go into a little more depth on specific subjects, such as misleading advertising, rules for children, and identification of advertising.
Pre-clearance is mandatory for Alcohol advertising on radio and television and in cinemas. Requests should be e-mailed to STIVA (the alcohol industry body) advies@stiva.nl and consist of a script, storyboard or video. Cost is €350 ex VAT; advice within 5 working days. Otherwise:
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
Car-specific; energy data
Decree of 3rd November 2000 setting down the rules on the labelling of the fuel consumption of passenger cars (Stb. 2000, No. 475) Entry into force 18/01/2001. This Decree implemented Directive 1999/94/EC relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars, as amended by Directive 2003/73/EC of 24 July 2003 which amended Annex III of Directive 1999/94/EC. The Decree requires that information relating to the fuel economy and CO2 emissions of new passenger cars offered for sale or lease in the Community is made available to consumers via the use of various information tools; in the form of labels, posters, guides and promotional literature (which includes printed advertising). Relevant Sections: Arts 1-8, Annexes I, II, III. From April 2020 all relevant new car advertising is required to display WLTP figures.
http://wetten.overheid.nl/BWBR0011761/geldigheidsdatum_03-04-2014#Artikel1
An English translation of the relevant sections is here:
http://www.g-regs.com/downloads/NLFuelConsumLabel2000n475C.pdf
Highway code
Decree of 26 July 1990 establishing new Road Traffic and Traffic Signal Regulations. (Staatsblad 1990, No. 459) Entry into force 01/11/1991. This text incorporates Directive 2003/20/EC amending Directive 91/671/EEC on the laws relating to compulsory use of safety belts in vehicles of less than 3.5 tonnes, making the wearing of safety belts mandatory in moving cars, as well as the use of children’s safety seats and belts. Relevant section article 59 Section 27: Seat belts and child restraints; Chapter II: Traffic.:
https://wetten.overheid.nl/BWBR0004825/2021-07-01
Unofficial English translation:
http://www.government.nl/government/documents-and-publications/leaflets/2013/01/16/road-traffic-signs-and-regulations-in-the-netherlands.html
And an English translation of the relevant sections here:
http://www.g-regs.com/downloads/NLCarsTrafficRegs_RoadSigns1990B.pdf
Road Traffic Act 1994 (Wegenverkeerswet). Act of 21st April 1994 replacing the provisions of the Road Traffic Act. Entry into force 01/01/1995 (Staatsblad 1994, No. 475)
https://wetten.overheid.nl/BWBR0006622/2023-01-01
Relevant articles: 5-8 Ch. 2 Traffic conduct; English translation of the relevant articles is here:
http://www.g-regs.com/downloads/NLCarsRoadTrafficAct1994B.pdf
Credit
Act of 19 May 2011 amending Book 7 of the Civil Code, the Act on Financial Supervision (Wet op het financieel toezicht – WFT) and any other laws implementing Directive 2008/48/EC of the European Parliament and of the Council of the European Union of 23 April 2008 on consumer credit agreement and repealing Council Directive 87/102/EEC. Stb. 2011, No. 246. Entry into force 25/05/2011:
https://wetten.overheid.nl/BWBR0030000/2011-05-25
Article I amends Book 7 of the Dutch Civil Code (DCC) and inserts a new title 2A Credit Contracts for Consumers. English version of DCC Title 7.2A:
http://www.dutchcivillaw.com/civilcodebook077.htm
Dutch text (Burgerlijk Wetboek Boek 7):
https://wetten.overheid.nl/BWBR0005290/2022-01-01
Article 59 Standard information to be included in advertising, and article 60 pre-contractual information:
http://www.g-regs.com/downloads/NLChap7.2ADCC.pdf
Further Regulations on the Supervision of the Conduct of Financial Institutions (Nadere Regeling Gedragstoezicht Financiële Ondernemingen – Nrgfo). Entry into force 01/01/2007. Based on the Bgfo (below) art. 2.2 contains the rules for the inclusion of a phrase or symbol in advertising communications for credit. This warning is mandatory for credit advertising on television, radio, Internet and print media, in line with Article 53 (7) Bgfo.
https://wetten.overheid.nl/jci1.3:c:BWBR0020540&chapter=2¶graph=2.2&article=2:2&z=2023-01-01&g=2023-01-01
Relevant section article 2.2; English translation:
https://www.g-regs.com/downloads/NLCarsCreditNrgfoD.pdf
Decree on Supervision of the Conduct of Financial Institutions (Besluit Gedragstoezicht Financiële Ondernemingen - Bgfo). Entry into force 01/01/2007. Based on the Financial Supervision Act article 4:22 WFT (see above) leaves the possibility for further rules. The Bgfo is one of those. Relevant sections: article 53, article 112 & annex D, Standard Information concerning consumer credit. The link immediately below is to the key article 53:
https://wetten.overheid.nl/BWBR0020421/2023-01-01/#Hoofdstuk8_Afdeling8.1_Paragraaf8.1.3_Artikel53
English translation of the relevant section here:
http://www.g-regs.com/downloads/NLCarsCreditbgfoC.pdf
Regulatory authority
Financial Markets Authority; credit warning logos and messages in advertisements. (AFM – Informatie over kredietwaarschuwing en downloadbestanden). The Financial Markets Authority created the consumer credit warning logo and all presentations of this logo for different media. These can be downloaded from their website:
https://www.afm.nl/nl-nl/sector/themas/belangrijke-verplichtingen-voor-ondernemingen/download-reclame-uitingen/kredietwaarschuwing-downloadbestanden
English translation here:
http://www.g-regs.com/downloads/NLCreditWarningAFMd.pdf
Pricing
Full provisions are under the General tab as they apply to all sectors. However, the Consumer Authority pays close attention to car advertising and prices, and sets out which costs should be included in the car price. This is explained on their website in the form of FAQs:
https://www.acm.nl/nl/onderwerpen/verkoop-aan-consumenten/verkopen-aan-consumenten/rijklaarmaakkosten/ (NL)
‘Car prices have become clearer following ACM campaign’:
https://www.acm.nl/en/publications/publication/17015/Car-prices-have-become-clearer-following-ACM-campaign
Unavoidable costs (rijklaarmaakkosten / ‘on-the-road’ costs) included with advertised price: The law stipulates that all unavoidable costs must be included in the advertised price. With regard to new cars, these include, for example, delivery fees, the cost of license plates, recycling fees, and registration with the Netherlands Vehicle Authority (RDW), which is the Dutch national motor vehicle and driving license registration authority. With regard to used cars, these include safety inspection fees and title transfer fees (or registration transfer fees).
Dutch Self-Regulatory Organisation Stichting Reclame Code - SRC, which manages the Dutch Advertising Code (Nederlandse Reclame Code – NRC):
https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en (EN)
https://www.reclamecode.nl/nrc/ (NL)
Relevant codes within NRC; the links below are to both the Dutch and English versions published by the SRC:
Code for Passenger Cars (Code voor personenauto’s - CVP). The purpose of this Special Advertising Code is to ‘attune advertising messages to government policy on traffic safety, the environment and energy savings’:
https://www.reclamecode.nl/nrc/code-for-passenger-cars-cvp/?lang=en (EN)
https://www.reclamecode.nl/nrc/code-voor-personenautos-cvp/ (NL)
From February 1, 2023 the SRC's Sustainability Advertising Code replaces the Code for Environmental Advertising. The Dutch version is linked; an unofficial English translation is here
Code for Environmental Advertising (Milieu Reclame Code - MRC); operative 01/01/1991, revised 01/10/2000. This Code applies to all environmental claims, specifically to ‘all advertising messages referring implicitly or explicitly to environmental factors connected with the production, distribution, consumption or waste processing of goods, or with related services’.
https://www.reclamecode.nl/nrc/code-for-environmental-advertising-mrc/?lang=en (EN)
https://www.reclamecode.nl/nrc/milieu-reclame-code-mrc/ (NL)
Advertising for alcoholic beverages (Reclamecode voor alcoholhoudende dranken - RVA); in force 01/01/2014. This Code applies to advertising for alcoholic beverages and for non-alcoholic beverages in so far as these are commended for consumption in combination with alcoholic beverages. Relevant article 18 Traffic (Paras 1 and 2).
https://www.reclamecode.nl/nrc/advertising-code-for-alcoholic-beverages-2014/?lang=en (EN)
https://www.reclamecode.nl/nrc/reclamecode-voor-alcoholhoudende-dranken-rva/ (NL)
Advertising Code for Alcohol-Free and Low-Alcohol Beer (RvAAB). The code stipulates, among other things, that advertising for alcohol-free and low-alcohol beer may not be aimed at young people under the age of 18 and that advertising for low-alcohol beer may not be aimed at pregnant women nor reference driving:
https://www.reclamecode.nl/nrc/advertising-code-for-alcohol-free-and-low-alcohol-beer-rvaab/?lang=en (EN)
www.reclamecode.nl/nrc/reclamecode-voor-alcoholvrij-en-alcoholarm-bier-rvaab/ (NL)
ICC (International Chamber of Commerce)
ICC Advertising and Marketing Communications Code 2018:
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.'
https://iccwbo.org/wp-content/uploads/sites/3/2021/11/2023-ICC-Environmental-Framework-ENG.pdf
The Car industry in The Netherlands
RAI: stands for Bicycle (Rijwiel) and Automotive Industry. The association was founded on December 17, 1893. They don’t publish a Car Code per se, but support the Car Code managed and implemented by the Self-Regulatory Organisation Stichting Reclame Code SRC.
http://raivereniging.nl/artikel/autovak/rai-automotive-industry.html
SEE THE GENERAL TAB BELOW FOR MORE OF THE CODES THAT AFFECT ALL PRODUCT SECTORS, CARS INCLUDED
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 on May 25 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
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.
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Five more recent, significant papers in the GDPR context:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: on 17 December 2021, the European Commission adopted 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. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/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. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video-sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
e-Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
Consumer protection
Book 6 Dutch Civil Code (Burgerlijk Wetboek Boek 6) Title 3 Unlawful acts; Section 3A Unfair Commercial Practices inserted into Book 6 by Article 2A of the Law of 25 September 2008 (NL) implementing the Unfair Commercial Practices Directive UCPD 2005/29/EC into national law by amending Books 3 and 6 of the Dutch Civil Code and the Consumer Protection (Enforcement) Law 2007. Section 4 Misleading and Comparative Advertising. Act of 28 March 2002 aligning Book 6 of the Civil Code with Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising; subsequently updated by Act of 25 September 2008 bringing Volumes 3 and 6 of the Civil Code and other Acts into line with Directive 2005/29/EC. Enforced by the Dutch Consumer Authority, since April 2013 the Dutch Authority for Consumers & Markets ACM. Book 6 was further amended in May 2022 as a result of transposition of commercial practices provisions set out in Directive 2019/2161, which inter alia amended the UCPD Directive 2005/29/EC to introduce new rules related to transparency of parameters for search results and the integrity of consumer reviews. Articles 193c and 193e are amended together with additions to the 'blacklist' set out under article 193g.
NL: https://wetten.overheid.nl/BWBR0005289/2023-01-01
English translation below does not include amends via Act of March 29, 2016 consisting of three new paras under article 194; amend shown below the first link; neither does the translation include new clauses as outlined above as a result of amends from Directive 2019/2161. The key clauses are shown in English in a separate file here.
http://www.dutchcivillaw.com/civilcodebook066.htm
http://www.g-regs.com/downloads/NLGenDCCBk6Art194AmendsEN.pdf
Authority
ACM: Autoriteit Consument & Markt; Consumers and Markets Authority. The Consumer Authority, Competition Authority, and the Independent Post and Telecommunications Authority joined forces appropriately on April 1st 2013, creating a new regulator: the Netherlands Authority for Consumers and Markets. This merger has been authorised in the Establishment Act of the Netherlands Authority for Consumers and Markets (NL). ACM is an independent regulator that champions the rights of consumers and businesses, is charged with competition oversight, sector-specific regulation, and enforcement of consumer protection laws. Importantly in this context, the ACM publish Guidelines Sustainability Claims (EN 2023 version) which provides their 5 'rules of thumb' related to sustainability claims, included within which document is the legal context and relevant cases. This is a significant addition to the regulatory line-up for environmental claims. The ACM announcement of ‘Stricter Rules for Online Sellers’ (NL) May 27, 2022 includes reference to the new search and review rules from Directive 2019/2161 as well as plans for promotional pricing rules (see below).
https://www.acm.nl/en
Pricing
Product Pricing Decree.(Besluit prijsaanduiding producten). Decree of 21 May 2003 containing rules relating to the price indication of products to replace the Decree on the price indication of goods 1980 in connection with the adaptation to the system and terminology of the EC Directive on the stating of the price of products offered to consumers. Transposes the Product Pricing Directive (above under EU legislation):
https://wetten.overheid.nl/BWBR0015104/2023-01-01
Unofficial non-binding translation:
http://www.g-regs.com/downloads/NLProductPricingDecree2022ENb.pdf
Prices Act (Prijzenwet) Act of March 24, 1961, laying down rules on the prices of goods and services. This law provides intervention powers for the minister of Finance in the form of price-capping during extreme economic circumstances. It is also the vehicle, under article 2b, for further regulation of price reduction announcements, which is drawn from new promotional pricing provisions from Directive 2019/2161. Explanatory note March 2022 from Maverick Avocaten/ Lexology here.
https://wetten.overheid.nl/BWBR0002353/2022-05-28
Channel legislation
Media Act 2008 (Mediawet). Act No. 583 of 29th December 2008 established the Media Act, entry into force 01/01/2009. Act No. 552 of 10th December 2009 amended the Media Act to implement the Audiovisual Media Services (AVMS) Directive 2010/13/EU, and the Act of 30 September 2020 amended the Media Act according to Directive 2018/1808, which amended the AVMS Directive. The Act sets requirements for both public and commercial broadcasters, including rules for commercials, sponsorship, product placement and teleshopping, as well as online 'audiovisual media services', the implications of which are in debate. Chapter 3a (NL) brings video-sharing platforms into scope: article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider. The content rules from the Directive, i.e. those to do with protection of young people, health and safety, the environment etc., are transposed into the DAC, with which commercial and public broadcasters must be affiliated under the terms of articles 3.6 and 2.92 respectively. Programmes on public channels may accordingly carry advertising; product placement is prohibited but permitted for commercial channels subject to the conditions outlined in Arts 3.19a/b. Sponsorship is allowed in both, but subject to strict conditions for public broadcasting services. STER (Stichting Ether Reclame) Foundation for Broadcast Advertising is the Independent agency handling advertising on Netherlands Public Broadcasting's television, radio and online outlets (Art. 2.91(2)).
https://wetten.overheid.nl/BWBR0025028/2023-01-01 (NL)
Media Decree (Mediaregeling) 2008 NL. December 18, 2008, a ministerial regulation implementing rules of the Media Act 2008. Chapter II, Title 2.2.2 Advertising and Teleshopping Messages, Articles 10 and 11. The Media Regulation 2008 contains implementing rules related to articles in the Media Act 2008.
Regulatory authority
The Dutch Media Authority: Commissariaat voor de Media (CvdM). This body upholds the rules formulated in the Media Act and Media Decree. The CvdM is an independent administrative body responsible for audiovisual content and distribution matters. It grants licences to broadcasters, registers VOD services, and systematically monitors compliance with the rules on quotas, advertising and protection of minors. The CvdM can also develop policy rules for public and commercial media, and publishes brochures in relation to those (see below): https://www.cvdm.nl/english/
The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here
https://www.cvdm.nl/uploader/meer-weten
Influencers/ 'video uploaders'
CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022.
Public broadcasting
CvdM re linked advertising
Public Media Broadcasting: ‘Aanhakende’ (Tie-in/ Linked) Advertising Brochure Dutch Media Authority Version 1.1 June 2011 NL. Tie-in / linked advertising is when there is a deliberate reference to a commercial entity close to editorial that covers the same subject. The brochure provides examples of such advertising, which violates the Media Act Article 2.89, which prohibits avoidable expressions (advertising/ teleshopping excluded) that clearly lead to the purchase of products or services being promoted.
e-Commerce
Book 3 Dutch Civil Code, Articles 15d and 15e. The act of 13th May 2004 implemented the E-commerce Directive 2000/31/EC; Article 1C of Act of 13/05/2004 inserted Article 15d and 15e into Book 3 of the Civil Code, which relates to requirements from an Information Society Service provider (i.e. commercial websites, broadly) NL:
https://wetten.overheid.nl/BWBR0005291/2022-11-04#Boek3
English version Book 3:
http://www.dutchcivillaw.com/civilcodebook033.htm
e-Privacy
Telecommunications Act (Telecommunicatiewet). Article 11.7 implements Article 13 of the e-Privacy Directive 2002/58/EC on the sending of unsolicited commercial communications by email, fax, automated calling systems, for which opt-in consent is required, notwithstanding soft opt-in exception in Article 11.7 (2/3). Article 11.7a implements article 5.3 of the e-Privacy Directive, sometimes called the cookie clause, via Act 10th May 2012 NL and further amended by Act 4th Feb 2015 NL; the amends included an additional exception shown in Article 11.7a (3b) to the required prior informed consent rule for the placing of cookies and similar software, and a ban on the use of cookie walls by public agencies (Art. 11.7a (5) TA). The amendment in May 2018 took account of the arrival of the GDPR, recognised in this legislation, and there was a further amendment in July 2021 that prohibits unsolicited calls to consumers and abolishes the Do Not Call Register.
https://wetten.overheid.nl/BWBR0009950/2023-06-01 (NL)
http://www.g-regs.com/downloads/NLTelecomsActJuly2021versionNoteEN.pdf (EN key clauses)
National GDPR implementation and authority
Implementation Act General Data Protection Regulation. (Uitvoeringswet Algemene Verordening gegevensbescherming 'UAVG'). Law of 16 May 2018, laying down rules for implementing Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC:
http://wetten.overheid.nl/BWBR0040940/2018-05-25
The Data Protection Authority (Autoriteit Persoonsgegevens - AP)
AP website (EN):
https://autoriteitpersoonsgegevens.nl/en
Guidance on advertising and direct marketing:
https://autoriteitpersoonsgegevens.nl/nl/onderwerpen/internet-telefoon-tv-en-post/direct-marketing (NL)
Stichting Reclame Code (SRC); The Advertising Code Foundation, the Netherlands Self-Regulatory Organisation. In addition to dealing with complaints, the SRC also helps advertisers to avoid any violation of the Dutch Advertising Code (DAC) e.g. via www.checksrc.nl, which helps the advertiser check whether their advertising message complies. The SRC site provides the DAC rules, judgements from the Advertising Code committee and the Board of Appeal since 2007, Check SRC, and under certain conditions, access to copy advice for draft advertising.
The Dutch Advertising Code (Nederlandse Reclame Code - NRC)
Section A: General EN; Blacklist in Annexes 1 and 2 EN
May 2022 clauses resulting from the transposition of Directive 2019/2161 in English here
Section B: Special Advertising Codes (EN). A selection of these is below. See the linked ‘Section B’ for the full complement
Section C: General Recommendations:
https://www.reclamecode.nl/nrc_taxonomy/algemene-aanbevelingen/ (NL)
https://www.reclamecode.nl/nrc/general-recomendations/?lang=en (EN)
Social Media and Influencer Advertising Code 2022. This code requires that advertising via bloggers, vloggers and content creators must be clearly recognisable as such, and sets out examples by platform on how this should be achieved. The code was amended in July 2022 in light of new rules from the media authority CvDM (see above).
https://www.reclamecode.nl/nrc/reclamecode-social-media-rsm/ (NL)
Full Dutch Advertising Code in English:
https://www.reclamecode.nl/nrc_taxonomy/general/?lang=en
And in Dutch:
https://www.reclamecode.nl/nrc/
Social media
Social Code: YouTube. The Code was developed by a group of 20 YouTubers in collaboration with the Dutch Media Authority (Commissariaat voor de Media CvdM) following an investigation by CvdM, which concluded that 75% of popular vlogs on YouTube contained surreptitious advertising. The code was also discussed with other parties, including the Advertising Code Foundation (SRC - Stichting Reclame Code), Multi-Channel Networks (MCNs) and interest groups/ agencies. Social Code: YouTube NL / EN. CvdM commentary:
DDMA
Data Driven Marketing Association (DDMA). The DDMA is the trade organisation for data driven marketing & advertising in the Netherlands. DDMA represents the interests of users, service providers and media/ carriers of data driven marketing, both in the Netherlands and at a European level. The DDMA has 300 member organisations. http://www.ddma.nl/
Full list of DDMA Codes can be found here:
DDMA codes are incorporated within the Dutch Advertising Code Section B
Opt-out registers
Telemarketing: Dutch regulator ACM and Stichting Infofilter run the don’t-call-me register, from 1/10/2009. Article 11.7 (6-12) of the Telecommunications Act contains provisions related to opt-out registers. The Telemarketing Code within the Dutch Advertising Code also refers to the opt-out register and places the onus on the advertiser to inform the consumer in every conversation of the existence of the Do-not-call-registry. Companies cannot register i.e. no ‘legal persons’ https://www.bel-me-niet.nl/. The ACM enforces legislation on telemarketing.
Direct Mail: Since 1st October 2009, Stichting Postfilter has been responsible for The National Post Register, which allows consumers to opt out of receiving unsolicited advertising mail. The Stichting Reclame Code oversees the enforcement of the rules. The Advertising Code for the Use of The Postal Filter also contains relevant provisions:
http://www.g-regs.com/downloads/DACPostalFilterCode2015.pdf
ICC
ICC Advertising and Marketing Communications Code 2018:
(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's OBA rules are under C22 of their General Code; we have extracted the rules here
Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising
ICC Guide for Responsible Mobile Marketing Communications
The ICC’s Guidance on Native Advertising Is in English here:
https://iccwbo.org/news-publications/policies-reports/icc-guidance-on-native-advertising/ (EN)
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising self-regulatory organisations (SROs, such as the ARPP) and other organisations representing the advertising industry in Europe and beyond. EASA is "the European voice for advertising self-regulation". The following link provides access to alliance membership:
http://www.easa-alliance.org/members
EASA’s Best Practice recommendations
Digital Marketing Communications (2023)
Online Behavioural Advertising (2021)
Influencer Marketing (2023)
IAB NL/ Europe
From the national website (GT): ‘IAB is the trade association for digital advertising and marketing innovation. IAB accelerates digital growth and makes a structural contribution to the qualitative development of the market.’
How to Comply with EU Rules Applicable to Online Native Advertising December 2016:
https://www.iabeurope.eu/wp-content/uploads/2016/12/IAB-Europe-Online-Native-Advertising-Guidance.pdf
IAB Transparency and Consent Framework:
https://iabeurope.eu/transparency-consent-framework/
IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)
From their website: 'WFA is the only global organisation representing the common interests of marketers. It brings together the biggest markets and marketers worldwide, representing roughly 90% of all the global marketing communications spend, almost US$ 900 billion annually. WFA champions responsible and effective marketing communications':
This is the ‘GDPR Guide for Marketers’:
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
The European Sponsorship Association can be found at:
Federation of European Direct and Interactive Marketing. FEDMA is the principal source of knowledge of the DM channel across Europe:
http://www.fedma.org/index.php?id=30
ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include:
This Code revision has been informed by the latest industry rules and legal developments around the world, such as in the area of consumer protection, privacy and fair competition. The Code is designed to establish a sound ethical framework to govern marketing practices worldwide based on twin goals of fostering consumer fairness and trust, and the freedom of commercial communications.' The Code is organised into General Provisions and individual chapters Sales Promotion (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), Environmental Claims in Marketing Communication (D) and Children and Teens (E). Translation of the code is under way as at September 2024. Earlier translations of the former (2018) code can be found here.
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf (EN)
Additional guides and frameworks (all EN)
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC Guidance on Native Advertising
ICC toolkits
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2023): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2023 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2021): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing 2023. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR networks and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
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
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
More recent documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Privacy/ cookies
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘e-Privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions were supposed to be transposed by November 2021 and in force in member states by May 2022; some delays but all in place end 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925