Updates
RR review Feb 2020
Links refreshed May 2020
AVMSD amend Sept 2020
Links checked, formatting Sept 2021
Unicef playbook October 2021
Content policies for YouTube Kids Dec 2021
EC 5 key principles June 2022
Links refreshed October 2022
UCPA amendment December 2022 EN
From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022. The principles are not legally binding, but obviously important.
The new Strategy for a better internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here.
SCOPE
As the age that defines childhood is inconsistent across Europe, we should establish that in Poland, for the purposes of this marcoms context, a child is under 13 and a minor is at least 13 and under 18 according to the self-regulatory authority Rada Reklamy (RR) Code of Ethics (EN) articles 3.l and 3.m. The code includes general provisions for protection of children as well as rules for the advertising of prohibited/ restricted sectors e.g. those for alcohol and gambling, separately available from the home page of this website. These following pages are for advertisers whose products children use legitimately but where there may be some content and/ or channel restrictions due to sensitivities around the category or audience or both.
CORE CONTENT RULES: SELF-REGULATION
Chapter IV Articles 22-32 of the RR Code of Ethics (EN), applicable Polish version here, provides the key children’s rules, spelt out in our following content section B. Additionally, under the RR banner a ‘Children’s Protection Charter’ was launched in September 2019 and developed with authorities that included the statutory National Broadcasting Council Krajowa Rada Radiofonii i Telewizji. The charter is under Appendix 3 of the Code of Ethics linked earlier, or available in a separate pdf here (EN), also set out in full under our following content section B. More specific sector rules, albeit provided by the relevant trade associations, are shown for video games (the PEGI Code of Conduct) and toys: the ICTI Guiding Principles for Advertising and Marketing Communication to Children (EN) and TIE’s principles Commitment to Responsible Advertising (EN).
Food and soft drinks
Sector available in full from the home page of this website
In 2014, Polish broadcasters struck a Self-Regulatory agreement (PO - link temp bust) on the advertising of foods and drinks to children below the age of 12, in cooperation with the National Broadcasting Council (the Polish media regulator) and Rada Reklamy. Broadcasters undertook that no programmes directed at children under 12 could include commercial communications of certain ‘unhealthy’ foods, i.e. those identified in Appendix 2 to the Code of Ethics.
CONTENT LEGISLATION
Advertising restrictions seen across other EU states are also present in the Polish legal system, as reflected in their transposition in the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) of UCPD and the Broadcasting Act (EN key clauses) of the AVMS Directive (our sections B and C for details), which include standard European provisions affecting marcoms that target minors, most notably article 9 (5) of UCPA/D on the prohibition of direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
CHANNEL RULES
Broadcast
Content regulation for audiovisual media is from the Broadcasting Act (EN key clauses) of 29 December 1992, amended in 2011 and 2012. This includes some significant rules for minors, mostly transposed from the AVMS Directive 2010/13/EU. Note that TV programmes for minors may not be interrupted by advertising. Full provisions in our channel section C or from the earlier links.
GDPR and Children
Privacy issues should be reviewed with specialist advisors
The General Data Protection Regulation 2016/679 (GDPR) applied directly in EU member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. Rules from the GDPR on children’s data are set out under the Online Commercial Communications header in our channel section C; a brief extract from the EC’s Data Protection pages provides that: ‘your company/ organisation can only process a child’s personal data on grounds of consent with the explicit consent of their parent or guardian up to a certain age’ (in the case of Poland up to 16, according to the Data Protection Authority UODO). Other significant conditions pertain; see our section C and the GDPR itself - key articles 8 and 12. An assembly of the relevant articles and recitals is here.
Other channel rules
As well as sector-specific rules (i.e. those for children) we include a brief overview of channel rules that apply to all sectors/ audiences, children included. National legislation includes the Telecommunications Act 2004 (EN key clauses) amended in 2013 to implement the EU Cookie Directive 2009/136/EC; the Data Protection Act 2018 (EN key clauses) which applies some aspects of GDPR, the Law on Providing Services by Electronic Means (EN key clauses) 2002 which implements the e-Commerce Directive 2000/31/EC and elements of the e-Privacy Directive 2002/58/EC. These three acts with GDPR form the core regulation for the protection of privacy in electronic communications. Unsolicited electronic marcoms via different media channels are all subject to opt-in.
GENERAL RULES
Advertisers communicating to children should also observe the rules that apply to all sectors and consumers. There are two key influences on general advertising rules; the most immediately relevant to advertising content is the Code of Ethics in Advertising (EN) from Rada Reklamy, as linked above. The second influence is statutory: the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) transposes the Unfair Commercial Practices Directive (UCPD) 2005/29/EC, which is the cornerstone of European legislation in commercial practice. General rules are set out in full under the General tab below.
Updates since Jan 2022
IAB TCF Framework and GDPR. Feb 2022
Commission guidance reduced prices
Financial Penalties Upon Influencers July 2022
Google says cookie here to stay until 2024
UOKIK Recommendations Influencer Advertising (EN)
Above 26/9/2022
UOKIK Tool for tagging ads; Oct 2022
Omnibus Directive 'soon to be implemented'
Bird&Bird LLP/ Lex November 2, 2022
More Influencer guidance from UOKIK (EN)
Wardyński & Partners/ Lex November 3, 2022
EU green claims regulation December 2022
Omnibus Directive implementation; e-commerce rules
Above from Taylor Wessing December 2022
Meta’s Ad Practices Ruled Illegal Under E.U. Law.
Above from NYT Jan 2023
Proposal for a Directive on Green Claims. March 22, 2023
Unfair Competition - How To Deal With It? Part 3
Squire Patton Boggs March 28, 2023
Permanent promotions mislead consumers
Osborne Clarke/ Lex. April 4, 2023 re OCCP
A follow-up from UOKIK to the below is the announcement Oct 2022 (EN) of a new AR tool for tagging ads
UOKIK Recommendations Influencer Advertising (EN) announced 26/9/22
Above is link to UOKIK news story, full Recommendations here (EN) and GALA/ Lex commentary here
UOKIK, the Office of Competition and Consumer Protection, announced October 2021 an investigation into the activities of Influencers on social media platforms. Their research 'shows that a lot of commercial content on influencer profiles on Instagram, YouTube, Facebook or other social media sites is not labelled as advertising at all. Other is marked insufficiently, e.g. only by the hashtag #ad, which may be incomprehensible to Polish internet users.' New guidelines are threatened and fines for those transgressing. ‘We want to introduce order to the market of sponsored content in social media.’ The result of UOKIK's intervention is reported here, a July 2022 piece from GALA/ Mondaq which sets out how six decisions have been made and penalties applied to Influencers amounting to 30,000 euros, notwithstanding the right of appeal. See announcement above.
SELF-REGULATION
The Polish Self-Regulatory Organisation Rada Reklamy (RR) Code of Ethics in Advertising (PO; RR EN) is based on the ICC Advertising and Marketing Communications Code (ICC Code) and covers all advertising except for social (non-profit) and political campaigns. The Polish Direct Marketing Association SMB also administer a Code of Ethics (PO) and manage the Robinson List. The Code of Good Practice in Mobile Advertising PO / EN, assembled by mobile operators in conjunction with IAB Poland, sets out rules for SMS/MMS/wap-push, as well as e.g. banner ads on mobile pages.
MARCOMS CONTENT LEGISLATION
The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) implements the UCP Directive 2005/29/EC and applies to B2C practices. The Unfair Competition Act UCA PO / EN (note on translation here) protects businesses from acts of unfair competition (art. 3.1), implementing the Misleading and Comparative Advertising Directive 2006/114/EC. In broadcast, the key Broadcasting Act is shown below under channel legislation. This act includes some content as well as placement rules, the former of which are spelt out in our following section B and also found here in English. Article 16b reflects the content rules established in the AVMS Directive related to the protection of minors, discrimination, and e.g. the 'encouragement of behaviour prejudicial to health, safety or environmental protection.' This article from GALA/ Mondaq in February 2022 Controversial Advertising sets out the legislative backdrop in the context of some Polish brands taking a stance on some of the higher profile social issues.
The Law on Counteracting Unfair Market Practices was amended by the Act of December 1, 2022 amending the Act on consumer rights and certain other acts (PO) and effective January 1, 2023. This act transposed into the UCPA's articles 5, 6 and 7 requirements of Directive 2019/2161 relating to search rankings, consumer reviews and the 'internationalisation' of campaigns Directive's clause prohibits 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. Not all specific to marketing communications, but significant context. The UCPA's consolidated text is here in Polish. There's a helpful December 2022 piece from Taylor Wessing on the implementation in English and Polish here and A new reality dawns for Polish e-commerce from Osborne Clarke/ Lex January 2023 covers similar territory but adds some UOKIK investigations and EU work. Penalties for companies publishing false reviews from Bird&Bird/ Lex Jan 2023 shows the impact of the new legislation as applied by UOKIK.
Channel legislation
Electronic communications and privacy
The Polish Data Protection Authority inspection plan for 2023
CMS Cameron McKenna Nabarro Olswang LLP/ Lex. January 24, 2023
The Telecommunications Act 2004 PO / EN implements the ‘Cookie Directive’ 2009/136/EC; the new Personal Data Protection Act of May 10th 2018 PO / EN (link temporarily bust) implements/ recognises the GDPR and its accompanying Directive 2016/680. The Data Protection Authority is UODO; their Ten Tips on GDPR are here (EN), albeit written for the consumer. The Law on Providing Services by Electronic Means 2002 (LPSEM) PO / EN implements the e-Commerce Directive 2000/31/EC and elements of the e-Privacy Directive 2002/58/EC. These three national Acts, with the GDPR, form the core legislation in the processing of personal data and the protection of privacy. The rules impose information obligations on data controllers, confer the right to opt out of direct marketing, and regulate unsolicited marcoms via different media channels: the opt-in rule generally applies, with the exception of direct postal mail. The European Data Protection Board published April 2021 Guidelines 8/2020 on the targeting of social media users (EN). Rules by channel in our following section C.
Broadcasting/ AV
The Broadcasting Act of 29 December 1992 PO / EN (GRS EN), incorporating rules from the AVMS Directive 2010/13/EU, regulates advertising, teleshopping, PP, and sponsorship on TV, Radio, and VOD. The Amend to the Broadcasting Act of 11th August 2021 (PO) transposing Directive 2018/1808 came into force primarily on November 1st 2021. For our purposes, the most significant aspects of the amend which, broadly, extends the scope of the AVMSD online, are requirements for video-sharing platforms, set out here by Hogan Lovells/ Lexology. This Liability Of Video-Sharing Platform Providers Under The New Rules November 2021 from GALA/ Mondaq lifts the bonnet on this legislation. The regulatory authority is The National Broadcasting Council KKRiT.
SPECIFIC CLAIM AREAS
Environmental claims
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here
Helpful summary and commentary here from GALA/Lex also March 22
The RR Code of Ethics in Advertising (EN) includes Chapter V Advertisements Containing Ecological Information, closely aligned with Chapter D Environmental Claims from the ICC’s Advertising and Marketing Communications Code. Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (November 2021). Claims may be assessed against the Unfair Commercial Practices Act UCPA (referenced above); refer to Commission Guidance on application of the UCPD (December 2021) Section 4.1.1. on environmental claims. Also helpful in this context is the EU Compliance Criteria on Environmental Claims (2016) from MDEC EN. The WFA launched their Planet Pledge in April 2021 and Global Guidance on Environmental Claims April 2022. On 7 October 2021, Google launched a policy for Google advertisers, publishers and YT creators that prohibits ads/ monetization for content that contradicts consensus around climate change; more here. See also Rada Reklamy's Green Project. This January 2023 piece Greenwashing: How to communicate without misleading? from Wardyński & Partners/ Lex covers the activity of the Polish regulator (UOKIK) and some practical guidance.
Pricing
Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes litigation. It’s best to check prices in ads, especially new ads, with legal advisors
There are some new requirements on the transposition of Directive 2019/2161/EU, known as the Omnibus Directive, which makes a number of amends to Directives 98/6/EC, 2005/29/EC and 2011/83/EU. Article 2 of the Directive, introducing article 6a into Directive 98/6/EC (the Product Pricing Directive) covers price reduction 'announcements’, which includes advertising. This September 2021 article from GALA/ Mondaq set out the implications for Polish law. Commission guidance on the article 6a is here. Transposition effective January 1, 2023 happened via the Act of December 1, 2022 amending the Act on consumer rights and certain other acts (PO). Those 'certain other acts' include the Law of 9th May 2014 on Information on Prices of Goods and Services PO; article 4 of that act is replaced by new provisions which reflect the directive's requirements to list the lowest price that was applied during the 30-day period before a reduction was introduced, in addition to the new price; consolidated text in Polish is here.
The Law on Counteracting Unfair Commercial Practices includes a number of references to pricing in B2C communications, e.g. in relation to ‘bait and switch' advertising; see articles 7.5 and 7.6 UCPA (EN inc. 2022 amends). The information obligations under article 6.4 UCPA when advertising constitutes an ‘invitation to purchase’ are also relevant. Rada Reklamy’s Code of Ethics in Advertising contains provisions relating to price: articles 45 Direct marketing; 51 Sales promotions; 11.4 Comparative advertising; 10.1.b Misleading advertising. Details in our following section B.
CJEU case
The CJEU (Court of Justice of the European Union) judgement in the 2016 Citroën/ZLW case ruled that the final price including VAT and all other price components must be stated, applying Product Price Directive 98/6/EC, which confirms that the selling price should include VAT and Excise Tax.
Children
See our home page for the sector in full, and point 1.3 in the following content section B
In September 2019 the Children’s Protection Charter was established under the auspices of Rada Reklamy, the Self-Regulatory Organisation. The charter, applicable to signatories, includes rules on e.g. children in the making of commercials. It's set out under Appendix 3 of the Code of Ethics in Advertising (EN), which also carries rules for marcoms to children and young people under Chapter IV.
General
Council adopts new rules on markets in crypto-assets (MiCA). 16 May, 2023
The ICLG Consumer Protection Report 2023. 17 jurisdictions
What's Going on With Self-Regulation Globally? Frankfurt Kurnit Klein & Selz PC/ Lex
ICC Diversity and Inclusion in Advertising. March 8, 2023
'Provides related current ICC provisions and self-regulatory rules, industry best practices and initiatives
to diversity and inclusion matters in marketing communications and advertising'
Metaverse advertising - applying old rules to a brave new world. DLA Piper Feb 28, 2023.
Explains the likely impact on regulation in the U.K. and cross-border
Advertising in the Metaverse: a New Virtual Legal World
Charles Russell Speechlys/ Lex. Feb 1, 2023
Environmental
Greenwashing: Key Drivers, Risks. May 22
EU/ UK. 'High end' view from Latham & Watkins LLP
Developments in the UK, US and EU
Covington and Burling/ Lex May 5, 2023
WFA Sustainable Marketing 2030. May 2023
'Close the gap between intent and action.'
ESG update Macfarlanes/ Lex 4 April, 2023*
Covers Asia-Pacific, Australia, European Union, United Kingdom, USA
Green Initiatives mainly in Europe April 2023
Our assembly of some key EU 'green' requirements
Greenwashing: Existing and Forthcoming Legislation in the UK & EU
Above from Jones Day; April 21, 2023
Proposal for a Directive on Green Claims. March 22, 2023
EC press release on the above here, feedback request here, GALA here. Status May 2023
There's a lot of legal comment on this proposal. Four pieces linked here
Risks of misleading environmental marketing in China, Canada, France, Singapore and the UK
Gowling WLG/ Lex, September 20, 2022
Proposal for a Directive on empowering consumers for the green transition
Above March 30, 2022. Will impact UCPD. Status May 2023
Digital/ data privacy
Privacy Sandbox next steps. May 18, 2023
EU hits Meta with record €1.2B privacy fine. May 22, 2023
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Mark Scott of Politico discusses a global AI rulebook and digital policy making data rules. 20th April, 2023*
EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023*
Data Protection update March 2023. Stephenson Harwood LLP. EU, UK. April 5, 2023
The EU's Digital Services Act reaches its first milestone as the UK's Online Safety Bill weaves towards the finish*
Travers Smith LLP/ Lex. February 20, 2023
Data Protection update - December 2022-January 2023. February 2, 2023
Stephenson Harwood LLP/ Lex. Includes Australia, EU, France, Global, Ireland, Japan, Russia, UK, USA
Google Analytics, Cookies and GDPR. Outside GC LLC/ Lex January 2023. U.S. EU & France. RR*
Countdown to 2023: Privacy Compliance Checklist for The End of The Year. Kilpatrick Townsend & Stockton LLP. Dec 2022
Above covers new state privacy rules in the US, GPC signals and EU/US data transfers
The Digital Markets & Digital Services double Act take the stage. GALA/ Lex. October 28, 2022. Simple and broad explanation with a nod to the U.K.
Children
Faced with Increasing Pressure, Roblox Adopts New Advertising Standards
GALA Aprl 18, 2023. Ad standards are here
New Utah Law Regulates Social Media for Children. Vorys Sater Seymour and Pease LLP/ Lex April 3, 2023
From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
The new strategy for a better Internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here
* Recommended read
Advertising, Media and Brands Global Compliance Challenges
Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA
Top 10 issues for 2023 GALA/ Lex. Feb 23 2023. U.S., global
Top 10 Advertising and Marketing Issues for 2023
Global, USA. Davis & Gilbert/ Lex January 24, 2023
Marketing & advertising tips, traps and trends for 2023
Canada and EU. Smart & Biggar/ Lex Jan 2023
December 2022: ICAS publishes 2021 Factbook and Global SRO Database
Chambers Global Practice Guide Advertising & Marketing 2022
Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland
DLA Piper's Advertising Laws of the World August 31, 2022. '13 key jurisdictions.'
Data
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
DLA Piper's Data Protection Laws of the World Handbook 2023 edition
2023 Top Privacy Issues: New Laws & Expanded Enforcement. GALA/ Lex Jan 2023. U.S. & EU
Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively
The code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
All the individual rules themselves are set out in the following content section B and channel section C, as applicable
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or Channel | Key European legislation and clause |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
|
Electronic coms. Consent and Information |
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Directive 2019/2161 sets out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
SELF-REGULATION
1.1. Children and young people, all sectors
1.3. Toys
LEGISLATION: rules from the Broadcasting Act
GENERAL RULES
1.SELF-REGULATION
1.1. Advertising to children and young people
From the Self-Regulatory Code Of Ethics In Advertising (EN). Note: clauses are generally verbatim; where the English might be ‘helped’ we have shown a bracketed alternative translation with the agreement of RR. The applicable version for e.g. adjudications is obviously the Polish version
Article 28
1. In the case of advertisements addressed to children special care should be taken to ensure that it does not mislead the recipients as to the true size, value, nature, durability, appearance, and technical potential of the advertised item, e.g.:
Articles 29-32
The Children’s Protection Charter. September 2019
Appendix 3 to the Code of Ethics in Advertising
Chapter 1. Objectives
Declare that commercials addressed to children due to their contents, form, communication channel and manner of presentation will not contain, in particular:
Appendix 2 to Code of Ethics in Advertising
Standards of food advertising aimed at children under 12
The use of the company or product name or logo in educational campaigns whose purpose is the promotion of healthy eating habits and physical activity among children and young people (teenagers) is not considered as an advertisement under this Code. Such campaigns have to be in line with national and/or international dietary recommendations regarding diet and physical activity. If such campaigns are being carried out in schools, they must be agreed with school authorities (Art. 6)
1. 3. TOYS
From ICTI International Council of Toy industries
Guiding Principles for Advertising and Marketing Communication to Children (EN)
From the Toy Industries of Europe
TIE’s November 2016 Commitment to Responsible Advertising (EN)
1.4. VIDEO GAMES
From the PEGI (Pan European Game Information) Code of Conduct
Article 11: Advertising and promotion
2. LEGISLATION
Rules from The Broadcasting Act 1992 (GRS trans key clauses)
TV and Radio. Article 16b
2. It shall be prohibited to broadcast commercial communications that:
3. Commercial communications shall not:
3a. Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients excessive intakes of which in the every day diet are not recommended.
3b. After seeking opinion of the minister in charge of health, the National Council may, by a regulation, define:
Relevant decisions from the Committee of Advertising Ethics/ Adjudication panel, according to the Code of Ethics in Advertising (EN)
The advertising: TV commercial for underwear available in Lidl:
Description: The ad promoted Lidl lingerie; involved scantily clad models undressing in such a way to emphasize the sensuality of the product. Complaint centred on the fact it was aired in the afternoon when minors would be watching. Such an ad would adversely affect their development, contravening Art. 25. Under Article 32, the provisions in Articles 22-31 will apply even for advertising specifically directed at children
The decision: Panel concluded the advertising did not threaten the physical, mental or moral further development of children or adolescents (art. 25 - Advertisement addressed to children or young people must take into account the degree of their development and cannot be a hazard to their further physical, mental or moral development), because it does not show nakedness. According to the Panel, the advertising was conducted in a socially responsible manner and in accordance with the principles of morality
The advertising: Outdoor ad for Coca Cola; image here
Decision: Panel concluded that a kiss on the mouth did not violate decency, and did not contain advertising content that threatened the physical, mental or moral further development of children and young people (under Art. 25/32 RR Code)
The advertising: Internet advertising RTV Euro-net showing a student and including the line "I promise to raise the minimum assessment, if you buy me a laptop." Static Internet ad here
Complaint: Alleged that the advertising was incompatible with Article 29 The article Advertisements cannot contain (i) orders to persuade adult persons to purchase the advertised items or, (ii) the instruction of how to persuade adult persons to purchase the advertised items, directly addressed to children or young people of the Code; raises a demanding attitude among children, motivating them to push parents into making purchases for them
Decision: Panel concluded the advertising promotes inappropriate behaviour patterns of children who can put pressure on parents / guardian on issues surrounding purchases. Thus, the advertising in question, based on negative emotions, promotes inappropriate relationships between children and their parents / guardians, violating Article 29
The advertising: Poster advertising a film Duff. Main characters in the advertising are assigned nicknames; one girl has an arrow over her head saying “brzydka i gruba” (ugly and fat) and another girl with an arrow and accompanying text: “Sucz” (Bitch) Ad image here
Content of the poster is directed to young people, so contrary to Article 25 Code of Ethics (Advertisement addressed to children or young people must take into account the degree of their development and cannot be a hazard to their further physical, mental or moral development), although Article 32 would apply (Articles 22-31 apply accordingly also to advertisements, which are not directly targeted at children, but children are their recipients due to the form, place and method of presentation. This applies particularly to advertisements broadcasted close to children’s programming, advertisements shown in cinemas before children’s movies and to outdoor advertising)
The decision: In violation of Article 25. The Panel found a violation of decency and concluded that the ad was not conducted with a sense of social responsibility, and was vulgar. In the opinion of the Panel the advertising in question in that form did not take into account the level of development of children and adolescents and may endanger their physical, mental or moral development further. According to the Panel, advertising placed on billboards should be much more balanced, as recipients of this type of advertising are, willingly or not, also children. The Panel stressed that the use of vulgar language in a public space is unacceptable
The advertising: Outdoor advertising at a bus stop: “"Slate! 50 shades of Gray" with a naked woman from the waist down with protruding behind. Its location within 40-250 metres of schools; image here
The Decision: Panel concluded that the advertising did not take into account the level of development of children and adolescents and could endanger their physical, mental or moral development further. According to the Panel ads placed on billboards or bus shelters, they should be much more balanced, as recipients of this type of advertising are also children. So breach of Article 25 Code of Ethics - Advertisement addressed to children or young people must take into account the degree of their development and cannot be a hazard to their further physical, mental or moral development
TOYS
3.6. Resolution No. 30/12 dated 13 March 2012
The advertising: TV commercial of Natalie baby doll for girls
The decision: Panel concluded that Natalie doll ad suggested that it is a special doll for special girls, so owning the doll can make a child special. Breach of article 26: Advertisement addressed to children or young people cannot suggest that the possession or use of the product will ensure to them social or psychological advantage over others and the failure to possess such product will have the opposite effect
Advertising: TV commercial of Brzydal toy that children can throw and kick.
https://www.radareklamy.pl/uchwaly-ker/2014/uchwa%C5%82a-nr-zo-26-14-w-sprawie-reklamy-firmy-epee-polska-sp-z-o-o
The decision: Panel concluded that Brzydal toy ad is promoting aggressive and violent behavior and encourage children to be violent towards the toy. This is in breach of Article 25 'Advertisement addressed to children or young people must take into account the degree of their development and cannot be a hazard to their further physical, mental or moral development.'
4. GENERAL ADVERTISING RULES; SELF-REGULATORY AND STATUTORY
Go to the General tab below for the rules that apply to all product categories, and audiences, children included. Self-Regulatory rules are from the Rada Reklamy Code of Ethics in Advertising (EN). Principal statutory source is the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends) , transposing the Unfair Commercial Practices Directive (UCPD) 2005/29/EC
Children
All consumers, children included. Rules extracted from the UCPA:
SELF-REGULATION
1.1. Basic principles of advertising
1.2. Advertising addressed to children and young people
1.3. Advertising with ecological information
1.4. Direct marketing
2.1. Unfair Commercial Practices Act
SPECIFIC CLAIM AREAS
3.1.1. Self-Regulation (national)
3.1.2. International Self-Regulation
3.1.3. Horizontal legislation and guidance
3.2.1. Self-Regulation (RR Code of Ethics)
3.2.2. Applicable legislation
3.2.3. Key points from Citroën/ ZLW case
I. SELF-REGULATION
Rada Reklamy Code of Ethics in Advertising PO / EN
Articles 1 and 2 Scope and article 3 Definitions (link)
1.1. Basic principles of advertising
10. Misleadingness
11. Comparative advertising
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1.2. Advertising addressed to children and young people; Chapter IV, articles 22-32 from the Code of Ethics in Advertising (EN)
In September 2019 the Children’s Protection Charter, applicable to its signatories, was established and is set out under Appendix 3 to the Code of Ethics. It includes e.g. some rules for producing commercials with child actors. Rules for Children’s marcoms can also be found on the home page of this website
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1.3. Advertising with ecological information; Chapter V, articles 33-39 of the Code of Ethics linked above; articles shown below under specific claim areas, Environmental claims
1.4. Direct marketing articles 45-48 of the Code of Ethics in Advertising
See also the DM header under our following Channel Section C
2.1. The Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)
The above linked files include amends resulting from the transposition of Omnibus Directive 2019/2161 and therefore carry provisions related to search rankings, consumer reviews and 'internationalisation' of campaigns. This law also carries provisions from transposition of the Unfair Commercial Practices Directive UCPD 2005/29/EC and therefore forms the core legislation in B2C marketing
2.2. The Unfair Competition Act - UCA PO / EN (Translation note here)
This act protects businesses from unfair trading, transposing the Misleading and Comparative Advertising Directive MACAD 2006/114/EC. The above translation carries more provisions but is somewhat dated. The key clauses for our purposes are those related to comparative advertising, shown in English here:
http://www.g-regs.com/downloads/POGenUCAUnfairCompBL.pdf
2.3. The Broadcasting Act (BA; Arts 16.1; 16b; 16c)
http://www.g-regs.com/downloads/POBroadcastingActWRversionb.pdf (EN key clauses)
This act transposes the Audiovisual Media Services Directive 2010/13/EU and therefore carries the marcoms rules related to minors, discrimination, subliminal advertising etc. that are set out below. See final para in this section re amends related to the extension of scope into video-sharing platforms
TV/ Radio; covering advertising, teleshopping, PP, sponsorship
The Broadcasting act was amended by the act of August 11th 2021 (PO) that transposed Directive 2018/1808; the Directive extends AVMSD rules online. Content rules are essentially unchanged and shown for the Directive here
3. SPECIFIC CLAIM AREAS
3.1.1. Self-regulation (national)
Rada Reklamy Code of Ethics in Advertising: Chapter V - Advertising containing ecological information
3.1.2. International self-regulation
3.1.3. Horizontal legislation and guidance
The Unfair Commercial Practices Directive UCPD 2005/29/EC is transposed into Polish Law by the Unfair Commercial Practices Act UCPA PO / EN
Product comparisons involving environmental claims should be assessed under the criteria set out by the Directive on Misleading and Comparative Advertising MACAD Article4. in Poland, article 16.3 of the Act on Combating Unfair Competition UCA) PO / EN sets out the criteria under which comparative advertising is allowed. These criteria apply to advertisements which compare the environmental impact or benefit of different products. Under these provisions, such a comparison should therefore, among other things (see Art. 4 2006/114/EC / Art. 16.3 Polish UCA):
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers
3.2.1. Self-Regulation
From the Rada Reklamy Code of Ethics in Advertising
3.2.2. Applicable legislation
Note: the law under the first bullet point below transposes elements of the Product Pricing Directive (PPD) 98/6/EC; in amendments from the Directive 2019/2161, the PPD incorporated a new article 6a which sets out provisions for reduced/ promotional pricing. These should come into force in member states on May 28, 2022, though at the time of writing there has been no transposition in Poland. Commission guidance for the application of the article is here
Other UCPA prohibitions that apply to marcoms that include prices
3.2.3. Key points from C‑476/14 Citroën/ ZLW case
SELF-REGULATION; the ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.2.3. Extracts from the ICC Code related to pricing
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of technical/ scientific data and terminology (Art. 9)
Use of 'free' and 'guarantee' (Art. 10)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art. 13)
Portrayal or imitation of persons and references to personal property (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Safety and health (Art. 17)
D1. Honest and truthful presentation
D2. Scientific research
D3. Superiority and comparative claims
D4. Product life-cycle, components and elements
D5. Signs and symbols
D6. Waste handling
D7. Responsibility
Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix.
Applicable self-regulation
Article 18.1. General principles
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
18.3. Avoidance of harm
18.4. Social values
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
Aggressive commercial practices
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
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2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Children and young people
APPLICABLE REGULATIONS
KEY CLAUSES
Product placement
Radio and Television art. 17a Broadcasting Act; all applicable to VOD except Article 17a (4) BA
Sponsorship
TV and Radio: Art. 17 Broadcasting Act (BA); National Broadcasting Council Regulations concerning sponsorship of programmes and other broadcasts; all provisions applicable to VOD, except Article 17 (paras 3 and 6) BA
SELF-REGULATION
Rada Reklamy Code of Ethics in Advertising EN includes Chapter VI on Sponsorship, incorporating reference to TV and Radio broadcasting:
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
Associations
All of the content rules set out in our earlier section B apply in these channels, except those specific to broadcast media; the principal code is the Rada Reklamy Code of Ethics in Advertising and the key legislation is the Law on Counteracting Unfair Commercial Practices PO / EN (inc. 2022 amends)
General guidelines
Forms of publication
vis. native/ advertorials
CINEMA
SAWA is the Global Cinema Advertising Association, the global trade body of Cinema Advertising Companies and Associated Companies that supply services to the Cinema Advertising Industry. Multikino (owned by Vue Entertainment Ltd) is the SAWA member in Poland; Multikino Media will handle cinema advertising sales nationwide.
Cinema City is the largest cinema operator in Poland (40% of multiplex market) followed by Multikino and Helios Cinemas; New Age Media, a subsidiary of Cinema City, provide and implement advertising campaigns of all Cinema City multiplexes
OUTDOOR
Applicable Self-Regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Article B12 Media sponsorship
This section 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 The RR definition ‘Aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.’ important. The impact of GDPR is shown below and under individual channel sections where possible
Privacy issues should be reviewed with specialist advisors
From the EC Data Protection pages relating to the GPPR:
‘Are there any specific safeguards for data about children?
References and guidelines
National guidelines
From the Data Protection Authority UODO, ’10 tips on how to exercise the rights guaranteed by the GDPR’
The ICC Advertising and Marketing Communications Code, which underpins much of Self-Regulation worldwide, includes the following:
Article 19.4 ICC Code; Children’s personal information
From the International Council of Toy Industries Guiding Principles for Advertising and Marketing Communication to Children (EN)
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 Definition The Rada Reklamy definition is ‘aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' important, especially as there is so much content in a ‘blurred’ online environment .
In this channel context, the influence of legislation is significant, particularly in the use of personal data, so relevant articles from law are referenced. The impact of GDPR is shown under individual channel sections; in broad, when processing personal data related to e.g. databases for marketing purposes, rules from the GDPR now apply in all member states. Privacy issues should be reviewed with specialist advisors
APPLICABLE SELF-REGULATION
UOKIK Recommendations Influencer Advertising (EN) announced 26/9/22
Above is link to UOKIK news story, full Recommendations here (EN) and GALA/ Lex commentary here
APPLICABLE LEGISLATION
KEY CLAUSES SELF-REGULATION
(some translation enhanced)
Sect. 38 SMB Code of Ethics: Commercial communication (Chapter VI E-Commerce)
KEY CLAUSES LEGISLATION
Labelling requirement and Information obligations from the Act on the Provision of Services by Electronic Means:
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in Owned and (some) Earned space as well as Paid
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Also be aware of:
The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation
The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market
The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)
Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth
And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry
And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
C1. Identification and transparency
C2. Identity of the marketer
C7. Marketing communications and children
C10. Respect for the potential sensitivities of a global audience
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Privacy issues should be reviewed with specialist advisors
International self-regulation
A good number of companies and organisations in Europe are supporters of and engaged in the self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA icon,
which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling. Note that OBA segments may not be created for children (under 12)
Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023 NYT
Google says cookie here to stay until 2024. July 27, 2022
Privacy Sandbox next steps. May 18, 2023
APPLICABLE LEGISLATION AND AUTHORITIES
OBA
Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan 2023 NYT
The above reported case could have very significant implications for targeted advertising
EU Rules on Online Targeted Advertising from Covington and Burling/ Lex August 2022 sets out the existing targeted advertising rules and the impact of the DSA, in force January 2024
Effective 19 January 2022
Privacy Sandbox next steps. May 18, 2023
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
EDPB Decisions on Facebook and Instagram re 'contractual necessity.' Van Bael and Bellis/ Lex. Feb 2023
Report of the work undertaken by the Cookie Banner Taskforce. (EN) From the EDPB Jan 2023
Guidance extracted from the above here courtesy of Stevens & Bolton LLP/ Lex
Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)
From Reed Smith LLP/ Lex May 2022
End of Meta’s targeted ads model? DLA Piper December 9, 2022. Reports on some critical EDPB decisions
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022
Applicable regulation and opinion
Application of notice and choice provisions
C22.1. Notice
C22.2. User control
C22.5. Data security
C22.6 Children
C22.7. Sensitive data segmentation
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Our definition of electronic direct marketing for this context is here
See the earlier section online commercial communications for child-related rules
APPLICABLE SELF-REGULATION
APPLICABLE LEGISLATION
SOME EDPB GUIDANCE
KEY CLAUSES LEGISLATION
B2C: Opt-in regime
The sender must provide the recipient with (Art. 5.2 PSEM):
The sender must also clearly identify (Art. 9.1 & 9.2(1-3) PSEM)
B2B: Provisions from PSEM above on direct marketing by e-mail are not applicable to corporate subscribers. Article 10 only applies to 'natural persons'. Opt-in applies for email addresses which clearly identify an individual (e.g. tim.burton@wikiregs.com). However, for generic email addresses (info@wikiregs.com), opt-out principle will apply (source: FEDMA)
KEY CLAUSES SELF-REGULATION
General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:
19.1. Collection of data and notice
19.2. Use of data
Personal data should be:
19.3. Security of processing
19.4. Children’s personal data
19.5. Privacy policy
19.6. Rights of the consumer
19.7. Cross-border transactions
Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked Code
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an E-commerce context
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
Section 2: Commercial communications
Article 6
Article 7
Unsolicited commercial communication
EU guidance documents
Including social network spaces under brand control
These spaces are in remit in Poland; that means that marketers’ own advertising/ marketing communications on their own websites are subject to industry (and statutory) regulation. Advertising is defined in article 3 of the RR Code of Ethics in Advertising, which article includes some exemptions
See rules from our earlier online commercial communications header
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 RR Code of Ethics in Advertising (EN) as a ‘message …. which aims to increase the sale of products, to obtain another form of using the products, or to obtain another effect desired by the advertiser. Advertising shall also include sales promotion, offers intended to the recipients in the form of direct marketing, or sponsorship.' Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below. Issues arise from the introduction of the GDPR 2016/679 from May 25, 2018: in the event that data processing (which may include cookies) identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors.
APPLICABLE LEGISLATION
APPLICABLE SELF-REGULATION
EDPB GUIDANCE
KEY CLAUSES SELF-REGULATION
A significant issue in online’s less structured environment is the identification of advertising, especially in the context of Influencer marketing hence in this case extracting recognisability rules as well as the core misleadingness provision
Sect. 37.1 SMB Code: Commercial Communication:
KEY CLAUSES LEGISLATION
Obligations for service providers who provide services by electronic means:
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2015
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. 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. ‘Native’ advertising aimed at children does not attract rules specific to the technique and audience but will be particularly sensitive for obvious reasons. The key issue, obviously, is that of advertising identifiability. Native advertising, like any other advertising, is also subject to the rules spelt out in our earlier Content Section B
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 for this technique, obviously, is that of advertising identifiability. Native advertising, like any other advertising, is also subject to the rules set out in our content section B
APPLICABLE SELF-REGULATION
APPLICABLE LEGISLATION
KEY CLAUSES SELF-REGULATION
KEY CLAUSES LEGISLATION
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code 2018
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Guidance: ICC Guidance on Native Advertising here
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
FOLLOWING FEEDBACK, WE NO LONGER COVER TELEMARKETING
Following feedback, we no longer cover Telemarketing
Consumer protection before mail is sent is from two main sources: 1) the rules on the processing of personal data (i.e. data that can identify an individual) in order to send marketing communications, and 2) the ‘Robinson list’ or equivalent, i.e. an opt-out list of people who do not wish to receive marcoms; see below. Privacy issues should be reviewed with specialist advisors
APPLICABLE LEGISLATION
APPLICABLE SELF-REGULATION
KEY CLAUSES SELF-REGULATION
KEY CLAUSES LEGISLATION
Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above
..............................................................
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
APPLICABLE REGULATION
Rada Reklamy Code of Ethics Chapter VI Sponsorship
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation around pricing, for example, are checked for any provisions that affect SP and included below. Note that promotional schemes requiring a purchase to take part, and offering prizes only on the basis of random chance, are considered a lottery and are generally illegal
Relevant extract from linked code
Premiums should be used and presented responsibly. There should be no sales pressure
Relevant extracts from RR Code of Ethics in Advertising, Appendix 2
Child-specific
Other legislation
Permanent promotions mislead consumers, says Poland's consumer protection watchdog
Osborne Clarke/ Lex. April 4, 2023
CONTEXT
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation 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 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
APPLICABLE SELF-REGULATION
APPLICABLE LEGISLATION
KEY CLAUSES SELF-REGULATION
Rada Reklamy Code Chapter VIII: Sales Promotions
SMB Polish Marketing Association Code of Ethics
(some translation enhanced)
Section 14 Promotion and Advertising, in context of mail order and catalogue selling
KEY CLAUSES LEGISLATION
The Law on Counteracting Unfair Commercial Practices PO / EN
Aggressive commercial practices which are unfair in all circumstances:
Misleading commercial practices which are unfair in all circumstances:
Act on the Provision of Services by Electronic Means PO / EN (Art. 9.2.2)
The Unfair Competition Act UCA PO / EN translation note here
Gambling Act
The Gambling Act of 19 November 2009 PO: relevant to a prize draw (promotional lottery) where participation in the promotion is conditional on the purchase of goods, services or another game ticket. Note: If the purchasing of goods, services or another game ticket is optional (i.e. participation in the promotion is not conditional on the purchase of goods, services or another game ticket), the game should be generally treated as a prize promotion, not as a lottery. Scope: The Gambling Act applies to gambling games (gry hazardowe) which includes 3 main categories (games of chance, betting, slot machines). Promotional lotteries come under the games of chance category
Definitions and conditions
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.
ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
A1: Principles governing sales promotions
A2: Terms of the offer
Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product
A3: Presentation
A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)
A4: Administration of promotions
Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations
In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
3 relevant clauses extracted
C3: The offer
C4 : Presentation
C17: Substitution of products
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Związek Stowarzyszeń Rada Reklamy, known as Rada Reklamy, translated as the Advertising Council, is the Self-Regulatory Organisation in Poland, founded in 2006. Rada Reklamy handles complaints from both consumers and competitors via its Complaints Jury or Advertising Standards/ Ethics Committee (Komisja Etyki Reklamy). Further information is available via its website http://www.radareklamy.pl/
Rada Reklamy offers copy advice, usually within three working days. This service is provided free of charge for members for 5 opinions annually then charges of PLN 1,000 and 1,500 net for standard and express respectively, while non-members pay a standard opinion within 5 business days PLN 2,500 net; express opinion within 48 hours PLN 4,500 net. Rada Reklamy does not pre-clear advertising.
Direct to broadcaster
Allow 3-5 days TV/VOD
For help contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global Factbook of Self-Regulatory Organizations 2019
EASA (European Advertising Standards Alliance)
EASA membership
http://www.easa-alliance.org/members
Link to Best Practice Recommendations
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)
Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)
http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
EASA Best Practice Recommendation on Influencer Marketing
European legislation
GDPR
Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
Articles relating to children are Nos. 8 and 12, and recitals 38 and 58. These have been assembled here:
https://www.g-regs.com/downloads/CHEUGDPRrefs.pdf
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.
Two more recent and significant documents:
EU Framework of law for children’s rights:
http://www.europarl.europa.eu/RegData/etudes/note/join/2012/462445/IPOL-LIBE_NT(2012)462445_EN.pdf
UN Convention on the Rights of the Child
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Article 161. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation
UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 The ‘Unfair Commercial Practices Directive’, known as the UCPD. This is the core consumer protection legislation from the EU, transposed in all member states, and in France placed in the Consumer Code (see entry below). Provisions address misleading commercial practices and include a number on commercial communications. Key is Annex I which lists a number of practices that are “in all circumstances considered unfair.” No. 28 prohibits in advertising a direct exhortation to children to buy advertised products or persuade their parents or other adults to do so for them:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF
AVMSD
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 (Audiovisual Media Services Directive). Article 9: audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.
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. 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
Office of the Ombudsman for Children - Rzecznik Praw Dziecka. The Children’s Ombudsman was established by the Law on the Ombudsman for Children passed on 6 January 2000, implementing article 72 (4) of the Constitution of the Republic of Poland.
Consumer protection legislation
The Law on Counteracting Unfair Commercial Practices (Ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) of 23 August 2007. ‘Unfair Commercial Practices Act’. This Act, which implemented Directive 2005/29/EC, deals with B2C unfairness. It is based on a general clause, which in Article 4.1 prohibits unfair commercial practices that are contrary to good customs/ practice (dobrymi obyczajami) and which materially distort or are likely to materially distort the economic behaviour of the average consumer before, during or after a transaction. This general clause is followed by specific provisions on misleading actions and omissions - Articles 5 and 6 - and aggressive practices (Article 8). Article 7 prohibits 23 misleading market practices that are unfair in all circumstances. Article 9 blacklists eight aggressive market practices. The information obligations under Art. 6.4 UCPA when a price is mentioned in advertising/ the advertising constitutes an ‘invitation to purchase’, are also relevant. The Law on Counteracting Unfair Market Practices was amended by the Act of December 1, 2022 amending the Act on consumer rights and certain other acts (PO) and effective January 1, 2023. This act transposed into the UCPA's articles 5, 6 and 7 requirements of Directive 2019/2161 relating to search rankings, consumer reviews and the 'internationalisation' of campaigns. There's a helpful December 2022 piece from Taylor Wessing on the implementation in English and Polish here. Consolidated text pdf:
isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20071711206/U/D20071206Lj.pdf (PO)
Unofficial EN translation inc. 2022 amends http://www.g-regs.com/downloads/POUCPAkeylauses2022ENb.pdf
Data protection
The Personal Data Protection Act (DPA) of 10 May 2018. The purpose of this Act is to ensure the application of the Regulation 2016/679 (GDPR) 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. The Act also implements the Directive (EU) 2016/680 and establishes the Office for the Protection of Personal Data. See entry under Regulatory authorities earlier in this section. The DPA In Polish:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20180001000
Unofficial translation:
http://www.g-regs.com/downloads/POPersonalDataProtection2018.pdf
Telecommunications Act 16th July 2004 (as amended). See entry under the General tab below. GRS unofficial translation of key provisions (including updated Art. 172):
http://www.g-regs.com/downloads/POTelecomsActB.pdf
Regulatory authority
The Personal Data Protection Office. Urząd Ochrony Danych Osobowych:
The authority publishes ’10 tips on how to exercise the rights guaranteed by the GDPR’. Extracted is: 'If you are a parent or a legal guardian of a person under the age of 16, remember that when she or he uses the so-called information society services (provided electronically), e.g. social networks, applications or games, you decide on the consent to the processing of personal data. This is important, because children are often less aware of the risks and consequences of processing of their personal data. The GDPR indicates that special protection should be provided to them when their data is used for marketing purposes or for the creation of personal profiles. Pay attention whether the messages addressed to them by the controller are formulated in a language that they are able to understand.'
Broadcasting Act of 29 December 1992; entry into force 01/03/1993. Implements the provisions of the Audio Visual Media Services Directive 2010/13/EU andregulates the whole broadcasting sector in Poland, incorporates VOD, and determines the responsibilities and competences of the Regulatory Authority (the National Broadcasting Council KRRiT), programming obligations, and commercial communications. Article 16a prohibits advertising in children’s programmes; 16b (2) bans communications that: 1) directly exhort minors to purchase products or services, 2) encourage minors to exert pressure upon their parents or other persons to persuade them to purchase the products or services being advertised, 3) exploit the trust minors place in parents, teachers or other persons, 4) unreasonably show minors in dangerous situations. Article 16b (3.4) prohibits commercial communications that ‘prejudice the physical, mental or moral development of minors.’ And clause 3a of the same article states: ‘Children’s programmes shall not be accompanied by commercial communications for foods or beverages containing ingredients, excessive intakes of which in the everyday diet are not recommended.’ Article 17a prohibits product placement in children’s programmes. Polish text:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu19930070034
In English (unofficial translation from National Broadcasting Council):
GRS unofficial translation of key provisions:
http://www.g-regs.com/downloads/POBroadcastingActWRversionb.pdf
Amend to the Broadcasting Act of 11th August 2021 transposing Directive 2018/1808. This Directive essentially extends AVMSD scope online and to video-sharing platforms especially. The commercial content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on self-regulatory systems; key changes to content rules in the Directive are shown here - see article 4a and 9 for references to self-regulation in food and in alcohol. Chapter 6b of the national act covers video-sharing platforms. Helpful summary: New regulations on video-sharing platforms and other media service providers from Hogan Lovells. The Act entered into force November 1, 2021, with the exception of Art. 1 points 10, 31, point 32 in the scope of article 47g and point 33 lit. b, article 2 and article 4, which entered into force on 1 January 2022.
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20210001676 (PO)
Authority
National Broadcasting Council (Krajowa Rada Radiofonii I Telewizji - KRRiT): Tasks of the KRRiT include determining legal conditions of broadcasting activity; issuing and withdrawing broadcast licenses; supervising activities of broadcasters; appointing supervisory councils for public radio and TV. KRRiT also regulates the content of public and commercial broadcasting related to protection of minors, harmful content, advertising restrictions, etc. Under Article 9 Broadcasting Act and Art. 213 Polish Constitution, the National Council may issue regulations and adopt resolutions on the basis of the existing legislation and for the purpose of its implementation:
http://www.krrit.gov.pl/en/for-broadcasters-and-operators/legal-regulations/
Regulation of the National Broadcasting Council of 5 February 2013 concerning detailed rules of protecting minors in on-demand audiovisual media services, official journal “Dz. U.” of 13th February 2013:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20130000209 (PO)
e-Commerce
Act of 18th July 2002 on the Provision of Services by Electronic Means. Law Gazette/ Dz. U of 9th Sept 2002, No. 144, item 1204. Came into force 10/03/2003 (Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną). This Act is the principal legal influence in the field of business operation via the Internet, setting out the obligations of a service provider in relation to the provision of electronic services (Chapter 2; Articles 5-11). It implements elements of the e-Commerce 2000/31/EC and e-Privacy 2002/58/EC Directives, and establishes an opt-in regime for marketing by electronic media, including email and SMS, with no provision for soft-opt in:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu20021441204 (PO)
Non-binding unofficial GRS translation of key provisions:
https://www.g-regs.com/downloads/POActProvisionElectronicServices.pdf
THE NATIONAL LAWS ABOVE ARE THOSE THAT ARE REFERENCED IN THE TEXT OF THIS DATABASE
SEE THE GENERAL TAB BELOW FOR A MORE COMPLETE SOURCE OF CODES AND LAWS THAT APPLY TO ALL SECTORS, I.E. 'GENERAL' RULES
SRO
Rada Reklamy. Związek Stowarzyszeń Rada Reklamy, the Union of Associations Advertising Council is the Self-Regulatory Organisation in Poland, founded in 2006. RR handles complaints from both consumers and competitors via its complaints jury or advertising standards / ethics committee:
https://radareklamy.pl/en/home-en/
Code
The Code of Ethics in Advertising 'protects against unethical and unfair advertising.' Based on the ICC Advertising and Marketing Communications Code, it applies to all forms of marketing communications, save 'social' and political advertising. Chapter IV Advertising Addressed to Children and Young People. Appendix 3 Charter for the Protection of Children in Advertising from September 2019. The purpose of the Charter, developed in consultation with the National Broadcasting Council and others, is 'to specify terms that should be met in order to properly protect the interest of children, in particular those up to 12 years old, in marketing communication. The terms are in line with the Act on Radio and Television Broadcasting of December 29, 1992, (EN GRS trans key clauses), and in particular with article 18 clauses 1, 3 and 5 of the act.' The English version of the Code of Ethics in Advertising is here:
https://radareklamy.pl/en/code-of-ethics-in-advertising/
The Polish version here:
https://radareklamy.pl/kodeks-etyki/
Direct marketing
SMB, the Polish Direct Marketing Association (now the Marketing Association): Polskie Stowarzyszenie Marketingu. https://www.smb.pl/ publish a number of codes on their website under the Standards tab:
https://smb.pl/dzial/standardy
Toys internationally
ICTI’s (The International Council of Toy Industries): Guiding Principles for Advertising and Marketing Communication to Children here. ICTI is the industry association for the worldwide toy industry
TIE (Toy Industries of Europe) November 2016 Commitment to Responsible Advertising here. TIE is the trade association for the European toy industry:
https://www.toyindustries.eu/about/
Videogames
The PEGI (Pan European Game information) Code of Conduct includes advertising and promotion in article 11. PEGI also publish labelling and advertising guidelines that deal with specific media and situations. Check with PEGI.
.......................................................
IAB Poland
See entry under General tab below
ICC International Chamber of Commerce:
2018 ICC Advertising and Marketing Communications Code: This is the Code that underpins much of Self-Regulation worldwide and in some cases forms the general advertising code for individual countries. Articles 18 and 19.4 (Children’s Personal Data) of General Provisions and Chapter C (Direct Marketing And Digital Marketing Communications), article C7 for provisions specific to children and teens:
Food and Beverages Framework:
ICC Guidance on Native Advertising:
https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
Statement on Code Interpretation/ Reference Guide on Advertising To Children; December 2016
ICC Toolkit: Marketing and Advertising to Children:
FEDMA
Federation of European Direct and Interactive Marketing Association:
European Code of Practice For the Use of Personal Data In Direct Marketing. Verbatim from the website: This code aim at being reviewed in light of the adoption of the GDPR. Children are defined as any individual aged under 14 years old unless otherwise defined in national legislation/ self regulation. Section 2.6 for specific provisions for Children:
https://www.fedma.org/wp-content/uploads/2017/06/FEDMACodeEN.pdf
Electronic communications annex:
https://www.fedma.org/wp-content/uploads/2017/06/FEDMA-On-Line-Annex.pdf
Section 6 for Protection of Children
SEE THE GENERAL TAB BELOW FOR A MORE COMPLETE SOURCE OF CODES AND LAWS THAT APPLY TO ALL SECTORS, I.E. 'GENERAL' RULES
European legislation
GDPR
Regulation (EU) 2016/679 of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018.
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 documents:
Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. Adopted on 12 March 2019
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: On 17 December 2021, the European Commission adopted a new Commission Notice on the interpretation and application of the Unfair Commercial Practices Directive (‘the UCPD Guidance’). This document is the definitive guidance across a number of commercial practices/ claim areas covered by the UCPD.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC and pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. The article concerned, 6a, is extracted here. Commission guidance on its application is below this entry.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Commission notice: Guidance on the interpretation and application of Article 6a of Directive 98/6/EC of the European Parliament and of the Council on consumer protection in the indication of the prices of products offered to consumers:
https://ec.europa.eu/info/sites/default/files/c_2021_9328_1_pid-guidance_en.pdf
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended.
Article 28b addresses video- sharing platform providers (VSPS), containing requirements to prevent violent, criminal, or otherwise offensive material and bringing the 'general' AV commercial communication rules such as those for the environment, human dignity, discrimination, minors etc. into these platforms. VSPS must also provide a functionality for users who upload user-generated videos to declare whether they contain commercial communications as far as they know or can be reasonably expected to know; VSPS must accordingly inform users. There has been some debate as to whether vloggers/ influencers are in scope, i.e. they or their output constitute an audiovisual media service. Definitive opinion/ recommendation is from the European Regulators Group for Audiovisual Media Services (ERGA) paper 'Analysis and recommendations concerning the regulation of vloggers.' The annex of the paper contains national examples. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
e-Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
e-Privacy Regulation draft (10 February 2021)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
Unfair competition (B2B primarily)
Act on Combating Unfair Competition (Ustawa o zwalczaniu nieuczciwej konkurencji) of 16 April 1993. ‘Unfair Competition Act’. The Act is based on a general clause in Article 3 (1), according to which an act of unfair competition means any act contrary to the law or good practice, which impairs or infringes the interests of another trader or of the customers. The general clause is followed by prohibitions on acts of unfair competition, e.g. false or misleading designation of an undertaking or products (Articles 5–10), unfair advertising (Article 16). This Act incorporated the Misleading and Comparative Advertising Directive 2006/114/EC MACAD:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu19930470211 (PO)
https://www.g-regs.com/downloads/POActCombatingUnfairComp1993EN.pdf (EN)
Translation note here.
Unfair commercial practices
The Law on Counteracting Unfair Commercial Practices (Ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) of 23 August 2007. ‘Unfair Commercial Practices Act’. This Act, which implemented Directive 2005/29/EC, deals with B2C unfairness. It is based on a general clause, which in Article 4.1 prohibits unfair commercial practices that are contrary to good customs/ practice (dobrymi obyczajami) and which materially distort or are likely to materially distort the economic behaviour of the average consumer before, during or after a transaction. This general clause is followed by specific provisions on misleading actions and omissions - Articles 5 and 6 - and aggressive practices (Article 8). Article 7 prohibits 23 misleading market practices that are unfair in all circumstances. Article 9 blacklists eight aggressive market practices. The information obligations under Art. 6.4 UCPA when a price is mentioned in advertising/ the advertising constitutes an ‘invitation to purchase’, are also relevant. The Law on Counteracting Unfair Commercial Practices was amended by the Act of December 1, 2022 amending the Act on consumer rights and certain other acts (PO) and effective January 1, 2023. This act transposed into the UCPA's articles 5, 6 and 7 requirements of Directive 2019/2161 relating to search rankings, consumer reviews and the 'internationalisation' of campaigns. There's a helpful December 2022 piece from Taylor Wessing on the implementation in English and Polish here. Consolidated text pdf:
isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20071711206/U/D20071206Lj.pdf (PO)
Unofficial EN translation inc. 2022 amends http://www.g-regs.com/downloads/POUCPAkeylauses2022ENb.pdf
Regulatory authority
UOKIK, the Office of Competition and Consumer Protection. From their website: 'The President of the Office of Competition and Consumer Protection is a central authority of the state administration. They report directly to the Prime Minister, who appoints them from amongst the persons selected by way of an open and competitive contest. The President of the Office is responsible for shaping the antitrust policy and consumer protection policy.' In September 2022, UOKIK announced new 'Recommendations pertaining to the tagging of advertising content by Influencers on social media.' General website/ about us in English:
https://uokik.gov.pl/about_the_occp.php
Influencer Recommendations September 2022:
http://www.g-regs.com/downloads/POUOKIKInfluencerRecsSept2022EN.pdf
Broadcast / AV
Broadcasting Act of 29 December 1992 (Ustawa z dnia 29 grudnia 1992 r. o radiofonii i telewizji) (Journal of Laws 1993, no 7, item 34). Entry into force 01/03/1993. This Broadcasting Act, as amended, implemented the provisions of the Audio Visual Media Services Directive 2010/13/EU. The most recent amendment added provisions concerning on-demand services, marking the final step in the transposition of the AVMS Directive. The Act regulates the whole broadcasting sector in Poland and includes regulations on public service broadcasting and commercial broadcasting. It regulates commercial communications (in particular advertising, sponsorship, teleshopping and product placement, as per Art. 4 (16) Broadcasting Act) on TV, Radio, and VOD. The Regulatory authority is the National Broadcasting Council KRRiT (see below):
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu19930070034 (PO)
GRS translation of key provisions pre amends below:
http://www.g-regs.com/downloads/POBroadcastingActWRversionb.pdf
Amend to the Broadcasting Act of 11th August 2021 transposing Directive 2018/1808. This Directive essentially extends AVMSD scope online and to video-sharing platforms especially. The commercial content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on self-regulatory systems; key changes to content rules in the Directive are shown here - see article 4a and 9 for references to self-regulation in food and in alcohol. Chapter 6b of the national act covers video-sharing platforms. Helpful summary: New regulations on video-sharing platforms and other media service providers from Hogan Lovells. The Act entered into force November 1, 2021, with the exception of Art. 1 points 10, 31, point 32 in the scope of article 47g and point 33 lit. b, article 2 and article 4, which entered into force on 1 January 2022.
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20210001676 (PO)
Regulatory authority
National Broadcasting Council (Krajowa Rada Radiofonii I Telewizji KRRiT). KRRiT regulates the content of public and commercial broadcasting related to protection of minors, harmful content, advertising restrictions, etc.
Regulation of the National Broadcasting Council of 30 June 2011 on principles of advertising and teleshopping in radio and television programme services (ref. art. 16 (7) Broadcasting Act):
http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20111500895 (PO)
Regulation of the National Broadcasting Council of 30 June 2011 on conditions of product placement (ref. Art. 17(9) Broadcasting Act):
http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20111610977 (PO)
Regulation of the National Broadcasting Council of 27 July 2011 amending the Regulation concerning sponsorship of programmes and other broadcasts (ref. art 17(8) Broadcasting Act):
http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20000650785 (PO)
Privacy/ cookies
Telecommunications Act 16 July 2004 (as amended) (OJ 2004 No. 171, item. 1800) Entry into force 03/09/2004. This Act specifies conditions for the protection of services users, in particular with regard to privacy and confidentiality and conditions for data processing. The act implemented the ‘Telecommunications Package’, which includes the E-Privacy Directive 2002/58/EC. Cookies are regulated within this Act (Art. 173); an amendment in 2012 implemented the provisions of the Cookie Directive Article 2 (5) 2009/136/EC. Article 172 allows telephone, fax and automated calling systems to be used for the purposes of direct marketing only after obtaining the end user’s prior consent:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu20041711800 (PO)
Unofficial English translation:
http://www.g-regs.com/downloads/POTelecomsAct.pdf (EN)
Regulatory authorities
UODO Urzędu Ochrony Danych Osobowych, Office for the Protection of Personal data:
Office of Electronic Communications. Non-compliance with the rules on storing and accessing cookies, as well failing to obtain consent prior to carrying out direct marketing by telephone, fax or automated calling systems may result in a fine imposed by the President of UKE for anyone who does not fulfil the obligations to obtain consent as laid out in Articles 172-174 of the Telecommunications Act (Art 209 (1) (25 TA:
Data protection
The Personal Data Protection Act (DPA) of 10 May 2018. The purpose of this Act is to ensure the application of the Regulation 2016/679 (GDPR) 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. The Act also implements the Directive (EU) 2016/680 and establishes the Office for the Protection of Personal Data. See entry under Regulatory authorities earlier in this section. The DPA In Polish:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20180001000
Unofficial translation:
http://www.g-regs.com/downloads/POPersonalDataProtection2018.pdf
e-Commerce
Act of 18th July 2002 on the Provision of Services by Electronic Means. Law Gazette/ Dz. U of 9th Sept 2002, No. 144, item 1204. Came into force 10/03/2003 (Ustawa z dnia 18 lipca 2002 r. o świadczeniu usług drogą elektroniczną). This Act is the principal legal influence in the field of business operation via the Internet, setting out the obligations of a service provider in relation to the provision of electronic services (Chapter 2; Articles 5-11). It implements elements of the e-Commerce 2000/31/EC and e-Privacy 2002/58/EC Directives, and establishes an opt-in regime for marketing by electronic media, including email and SMS, with no provision for soft-opt in:
https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=wdu20021441204 (PO)
Non-binding unofficial GRS translation of key provisions:
https://www.g-regs.com/downloads/POActProvisionElectronicServices.pdf
Pricing
The Law of 9th May 2014 on Information on Prices of Goods and Services; this is the legislation that transposed the Product Price Directive 98/6/EC, which was amended by the Omnibus Directive 2019/2161 to introduce new promotional pricing rules. Transposition effective January 1, 2023 happened via the Act of December 1, 2022 amending the Act on consumer rights and certain other acts. Article 4 is replaced by new provisions which reflect the directive's requirements to list the lowest price that was applied during the 30-day period before a reduction was introduced, in addition to the new price;
isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20140000915 (PO)
Advertising Code of Ethics (Kodeks Etyki Reklamy) June 25th, 2019; Rada Reklamy. The Code of Ethics in Advertising is based on the ICC Advertising and Marketing Communications Code and applies to all forms of marcoms, except social and political advertising. The code includes rules on environmental claims in advertising, and covers the direct marketing, sales promotions and sponsorship channels. In September 2019 the Children’s Protection Charter was established and is set out under appendix 3 of the code. Rada Reklamy handles complaints from consumers, competitors and other interested parties via its Advertising Ethics Committee Komisja Etyki Reklamy (KER). All adjudications are published on their website. Polish:
https://radareklamy.pl/kodeks-etyki/
Rada Reklamy English translation:
https://radareklamy.pl/en/code-of-ethics-in-advertising/
SMB
The Code of Conduct from the Polish Direct Marketing Association SMB. The SMB also manage the Robinson List. Polish:
https://smb.pl/news/projekt_kodo
Robinson List
Also known as the Telephone Preference Service or Mailing Preference Service (MPS); maintained by Polskie Stowarzyszenie Marketing SMB, the Polish Direct Marketing Association. Those who not want to receive marcoms by voice phone, SMS, email and postal mail can register their contact details on the database and will not receive unsolicited marcoms from SMB member companies; compliance with Robinson List rules is a condition of membership (s.1(2) SMB Code). Robinson List website:
http://www.listarobinsonow.pl/
Regulations for consumers:
https://listarobinsonow.pl/page/regulaminy
Code of Good Practice in Mobile Advertising PO / EN
Mobile operators Polska Telefonia Cyfrowa, Polkomtel, Orange and P4 in conjunction with IAB Poland publish good practices for mobile marketing. Mobile advertising is via Push ads (SMS/ MMS/ wap-push) and Pull ads – where the ad is displayed after a specific action by the user – e.g. entrance to a WAP site, sending SMS notifications
IAB Poland/ Europe
Interactive Advertising Bureau Poland: Polish industry organisation that ‘unites and represents entities of the interactive industry. IAB Poland members include more than 200 companies, including the biggest web portals, global media groups, interactive agencies, media houses and technology providers.’
IAB Poland publish the Guide to Influencer Marketing and Collection of Good Practices
https://www.iab.org.pl/wp-content/uploads/2021/10/INFLUENCER-MARKETING_poradnik-IAB-Polska-2021.pdf (PO)
How to comply with EU rules applicable to online native advertising
https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/
IAB Europe Transparency and Consent Framework:
https://iabeurope.eu/transparency-consent-framework/
IAB TCF Framework and GDPR from GALA/ Mondaq February 2022. News story here (EN)
ICC
ICC Advertising and Marketing Communications Code 2018:
Environmental claims (Chapter D of the above)
http://www.g-regs.com/downloads/ICCChapterDEnvironmentalClaims2018.pdf
The ICC Framework for Responsible Environmental Marketing Communications 2021 includes an Environmental Claims checklist under Appendix I and updated guidance on the use of environmental claims often appearing in marketing communications:
http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf
The ICC’s Guidance on Native Advertising Is here:
http://www.g-regs.com/downloads/ICCGuidanceonNativeEn.pdf
EASA
The European Advertising Standards Alliance is a non-profit based in Brussels; EASA brings together national advertising Self-Regulatory Organisations (SROs, such as Rada Reklamy) 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 Recommendation on Online Behavioural Advertising is here:
And on Digital Marketing Communications here:
And on Influencer Marketing here:
WFA
World Federation of Advertisers
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 their ‘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
FEDMA
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
ESA
The European Sponsorship Association can be found at:
ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: 'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:
https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/
Downloaded:
Translation of the code into eleven languages is here
Additional guides and frameworks
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC guidance documents
ICC Guidance on Native Advertising (May 2015).
https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility. It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.
ICC toolkits
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925