Advertising Rules Worldwide
A. Overview
SECTION A OVERVIEW
Overspill links here (to follow)
General
How DSA changes rules on online advertising. GALA Nov 6, 2023
EASA update on CPC Influencer activity October 11, 2023
Digital Services Act takes effect for large online platforms. Aug 25, 2023. EASA update Sept
EASA Influencer Disclosure pan-Europe July 2023
Council adopts new rules on markets in crypto-assets (MiCA). 16 May, 2023
The ICLG Consumer Protection Report 2023. 17 jurisdictions
What's Going on With Self-Regulation Globally? Frankfurt Kurnit Klein & Selz PC/ Lex
Environmental
Greenwatch: Issue 2: enforcement action and new laws against greenwashing
Ashurst November 16, 2023. EU and USA
Sustainability reporting across borders.* Clifford Chance October 17, 2023
Global ESG Insights - September 2023 Eversheds Sutherland LLP/ Lex. Oct 4, 2023
Airlines Face Increasing Greenwashing Challenges. Cadwalader Oct 9, 2023
Five questions on proposed stricter rules for environmental claims
Re Green Claims Directive; sets out timetable. Maverick Advocaten NV. Sept 15, 2023
Environmental marketing in China, Canada, France, Singapore and the UK
Gowling WLG/ Lex September 25, 2023
ESG Laws Across the World. Squire Patton Boggs July 3, 2023
Proposal for a Directive on Green Claims. March 22, 2023
EC press release on the above here, GALA here, Status The parliamentary committees ENVI and IMCO are jointly in charge of the report on this draft directive. The report is to be tabled before 6th-7th November – date of the committee session where it will be discussed. See below
Co-rapporteurs’ draft report here October 11, 2023
Proposal for a Directive on empowering consumers for the green transition
Above March 30, 2022. Will impact UCPD. Status Sept 2023. Cooley Sept 22, 2023
EU Institutions to Vote on Greenwashing Ban. Cadwalader Oct 31, 2023*
AI
The state of AI regulation in the UK and EU.
Penningtons Manches Cooper August 3, 2023
AI's Failing Grade. Mark Scott Politico June 29, 2023*
UK vs EU Approach to Regulating AI. Baker Mckenzie/ Lex June 14, 2023
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Mark Scott Politico: a global AI rulebook and digital policy making data rules. 20th April, 2023*
Data/ privacy
The Future Of Behavioral Advertising In Europe And The United States*
InfoLawGroup LLP/ Lex. November 20, 2023
Meta's Subscription Shift Sparks Controversy In the EU
Preiskel Nov 3, 2023 and EDPB's OBA Meta ban here Nov 9
Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*
Covers interplay between the AI act, the DSA and GDPR
Data Protection update - September 2023. Stephenson Harwood LLP/ Lex
Includes EU, France, UK, USA October 6, 2023
The role of data for competition in online advertising. Hausfeld LLP/ Lex. Sept 15, 2023*
TikTok fined €345 million by Irish DPC. Burges Salmon/ Lex Sept 20, 2023
EU: Targeted advertising on SNS: is consent mandatory? Haas Sept 19, 2023 (EN)
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Children
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
* Recommended read
Advertising, Media and Brands Global Compliance Challenges
Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA
Top 10 issues for 2023 GALA/ Lex. Feb 23 2023. U.S., global
Top 10 Advertising and Marketing Issues for 2023
Global, USA. Davis & Gilbert/ Lex January 24, 2023
Marketing & advertising tips, traps and trends for 2023
Canada and EU. Smart & Biggar/ Lex Jan 2023
December 2022: ICAS publishes 2021 Factbook and Global SRO Database
Chambers Global Practice Guide Advertising & Marketing 2022
Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland
DLA Piper's Advertising Laws of the World August 31, 2022. '13 key jurisdictions.'
Data
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
DLA Piper's Data Protection Laws of the World Handbook 2023 edition
2023 Top Privacy Issues: New Laws & Expanded Enforcement. GALA/ Lex Jan 2023. U.S. & EU
Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively
1.1 The ICC Code
The code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
All the individual rules themselves are set out in the following content section B and channel section C, as applicable
- Article 18 of the General Provisions of the ICC Code covers children and teens at some length. Additionally, article C7 from the chapter Digital Marketing Communications addresses marketing communications and children
- Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020)
- On the home page of this website, you'll find a complete Children's sector with the rules spelt out country by country
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
European Regulations and Directives
| Issue or Channel | Key European legislation and clause |
| Cookies |
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
|
| 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.
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Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
B. Content Rules
SECTION B CONTENT RULES
-
SELF-REGULATION; the ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.2.3. Extracts from the ICC Code related to pricing
1.1 General provisions
Basic principles (Art. 1)
- All marketing communications should be legal, decent, honest and truthful;
- All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
- No communication should be such as to impair public confidence in marketing.
Social responsibility (Art. 2)
- Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
- Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering;
- Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior;
- Marketing communications should not play on superstition.
Decency (Art. 3)
- Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
Honesty (Art. 4)
- Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
- Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
Truthfulness (Art. 5)
- Marketing communications should be truthful and not misleading;
- Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
- characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact;
- the value of the product and the total price to be paid by the consumer;
- terms for delivery, exchange, return, repair and maintenance;
- terms of guarantee;
- copyright and industrial property rights such as patents, trade marks, designs and models and trade names;
- compliance with standards;
- official recognition or approval, awards such as medals, prizes and diplomas;
- the extent of benefits for charitable causes.
Substantiation (Art. 6)
- Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code.
identification and transparency (Art. 7)
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
identity of the marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
Use of technical/ scientific data and terminology (Art. 9)
- Marketing communications should not
- misuse technical data, e.g. research results or quotations from technical and scientific publications;
- present statistics in such a way as to exaggerate the validity of a product claim;
- use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity.
Use of 'free' and 'guarantee' (Art. 10)
- The term "free", e.g. “free gift” or “free offer”, should be used only
- where the offer involves no obligation whatsoever; or
- where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
- in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer.
- Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that;
- The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal;
- Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not;
- The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous.
Comparisons (Art. 11)
- Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected.
Denigration (Art. 12)
- Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule.
Testimonials (Art. 13)
- Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
- Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used.
Portrayal or imitation of persons and references to personal property (Art. 14)
- Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved.
Exploitation of goodwill (Art. 15)
- Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution;
- Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent.
Imitation (Art. 16)
- Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects;
- Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time.
Safety and health (Art. 17)
- Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards;
- Instructions for use should include appropriate safety warnings and, where necessary, disclaimers;
- Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk;
- Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary;
- Such health and safety warnings should be made clear by the use of pictures, text or a combination of both.
- An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)
- Note that there is no equivalent 'environmental claims' section under The Law header below; authorities generally apply the UCPD's misleading actions or omissions clauses when cases come before them. Additionally, the EC guidance document linked below contains specific sustainability claims guidance under section 4.1. There are, meanwhile, a raft of measures emerging from the legislative process in the EU that we have set out in the Overview Section A
D1. Honest and truthful presentation
- Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge;
- Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry;
- An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments;
- Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made;
- Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.
D2. Scientific research
- Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence;
- Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology);
- An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence.
D3. Superiority and comparative claims
- Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose;
- Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative;
- Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging.
D4. Product life-cycle, components and elements
- Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis;
- When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement;
- Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted;
- Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code.
D5. Signs and symbols
- Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification.
D6. Waste handling
- Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described.
D7. Responsibility
- For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23).
Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix.
Applicable self-regulation
- Articles 18 and 19 ICC Code; see above or here
- ICC Statement on code interpretation and ICC reference guide on advertising to children here
- ICC toolkit: Marketing and advertising to Children (2017) here
- Framework for Responsible Food and Beverage Marketing Communications here
- WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children
- For amalgamated ICC Code children’s provisions, from general provisions, data protection, and Digital Marketing Communications:
http://www.g-regs.com/downloads/ICCChildrenCollection2018.pdf
Article 18.1. General principles
- Special care should be taken in marketing communications directed to or featuring children or teens
- Such communications should not undermine positive social behaviour, lifestyles and attitudes;
- Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them;
- Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them.
For rules on data protection relating specifically to children’s personal data see article 19
For other specific rules on marketing communications with regard to children:
- with respect to direct marketing and digital marketing communications see chapter C, article C7;
- within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications.
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
- When demonstrating a product’s performance and use, marketing communications should not
- minimise the degree of skill or understate the age level generally required to assemble or operate products;
- exaggerate the true size, value, nature, durability and performance of the product;
- fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described.
- While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
- Marketing communications directed to children should be clearly distinguishable to them as such.
18.3. Avoidance of harm
- Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic.
18.4. Social values
- Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect;
- Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values;
- Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them;
- Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget;
- Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved.
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
- ICC Framework for Responsible Food and Beverage Marketing Communications here (EN)
- The EU Pledge, enhanced July 2021 effective Jan 2022
- Regulation 1924/2006 on nutrition and health claims made on foods
- Regulation 432/2012 establishing a list of permitted health claims on food
- Regulation 1169/2011 on the provision of food information to consumers
- Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
- ICC Framework for responsible marketing communications of alcohol here (EN)
- The International Alliance for Responsible Drinking (IARD) ‘Guiding Principles and Digital Guiding Principles
- In September 2021, IARD published Responsibility standards for the use of social influencers in alcohol marketing (EN)
- World Federation of Advertisers; Responsible Marketing Pact (RMP) here
- Directive 2010/13/EU, the Audiovisual Media Services Directive (consolidated following amends from Directive 2018/1808)
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
- it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;
- it shall not link the consumption of alcohol to enhanced physical performance or to driving;
- it shall not create the impression that the consumption of alcohol contributes towards social or sexual success;
- it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
- it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
- it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
Aggressive commercial practices
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
- there is no prize or other equivalent benefit, or
- taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
- products supplied in the course of the provision of a service;
- sales by auction and sales of works of art and antiques.
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
......................................................................................
2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
- Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
- audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited;
- audiovisual commercial communications shall not use subliminal techniques;
- audiovisual commercial communications shall not;
- prejudice respect for human dignity;
- include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
- encourage behaviour prejudicial to health or safety;
- encourage behaviour grossly prejudicial to the protection of the environment.
- all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited;
- audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages;
- audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited;
- audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.
- Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 (see pt. 1.5 above).
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
C. Channel Rules
1. TV/Radio/VOD
SECTION C TV/AV AND RADIO
- These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
- The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below
Article B12: Media sponsorship
- The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
- Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
- Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
- Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
- Audiovisual commercial communications shall not use subliminal techniques
- Audiovisual commercial communications shall not:
- Prejudice respect for human dignity
- Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
- Encourage behaviour prejudicial to health or safety
- Encourage behaviour grossly prejudicial to the protection of the environment
- All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
shall be prohibited - Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
- Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
- Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
2. Cinema/Press/Outdoor
SECTION C: CINEMA, PRINT, OUTDOOR
Applicable self-regulation and legislation
-
These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
-
For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
- The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
- In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)
Refer to Content Section B for provisions; of particular relevance below:
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
Identity of the marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Article B12 Media sponsorship
- The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
- Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
- Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
3. Online Commercial Communications
SECTION C: ONLINE COMMERCIAL COMMUNICATIONS
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels, online included
- The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth platforms online; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
- Chapter C of the ICC Code (linked above): Direct Marketing and Digital Marketing Communications; extracts below
- ICC Guide for Responsible Mobile Marketing Communications
- EASA Best Practice Recommendation on Digital Marketing Communications 2015
- EU Data Protection: Online advertising - A patchwork under construction DLA Piper/ Lex Feb 27, 2023. This is a helpful piece setting out the requirements and restrictions of various EU legal instruments
- Directive 2002/58/EC on privacy and electronic communications
-
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
- Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
- Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
- Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
- Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided
C2. Identity of the marketer
- The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
- At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
C7. Marketing communications and children
- Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
- Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
- Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
- Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children
C10. Respect for the potential sensitivities of a global audience
- Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions
Directive 2002/58/EC; Article 13
Unsolicited communications
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
- Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
* Now repealed; GDPR applies
General information to be provided
- In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
- In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
- The commercial communication shall be clearly identifiable as such
- The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
- Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
- Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
Article 7
Unsolicited commercial communication
- In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
- Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
-
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
- Working Document 02/2013 providing guidance on obtaining consent for cookies here
- Opinion 15/2011 on the definition of consent here
- May 2020 Guidelines on Consent under Regulation 2016/679 here
EASA Digital Marketing Communications Best Practice Recommendation. This document:
- Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
- Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
- Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
- Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
- Identifies forms of digital content which lie outside of SRO’s remit under all circumstances
4. Cookies & OBA
SECTION C: COOKIES AND OBA
Reject All” button in cookie consent banners - An update from the UK and the EU
Reed Smith LLP/ Lex November 8, 2023
Cookies banners and beyond: how to avoid common mistakes
EU, USA, November 3, 2023. Bryan Cave Leighton Paisner
Data Privacy Landscape in the EU. Simmons + Simmons October 25, 2023*
Covers interplay between the AI act, the DSA and GDPR
GDPR Jargon Buster: Cookies. Stevens & Bolton LLP October 9, 2023
Files prior to the above date here
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
- E-Privacy Directive 2002/58/EC, as amended by the ‘Cookie Directive’ 2009/136/EC
- The introduction of the GDPR 2016/679 from May 25, 2018
-
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
- Working Document 02/2013 providing guidance on obtaining consent for cookies here
- Opinion 04/2012 on Cookie Consent Exemption here
- Opinion 15/2011 on the definition of consent here
- May 2020 Guidelines on Consent under Regulation 2016/679 here
- Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR here
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
- Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)
GDPR
- The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules apply. GDPR/ privacy issues should be overseen by legal advisors
European Union: Targeted advertising on social networks: Is consent mandatory? (EN)
Haas Avocats 19 September 2023
The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022
Applicable regulation and opinion
- ICC Resource Guide for Self-Regulation of Online Behavioural Advertising (OBA)
- Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
- Algorithmic profiling & online behavioural advertising January 2022 is a thorough and helpful round-up from Gilbert and Tobin via Lexology of the way in which OBA works and some of the emerging regulatory pressures from, for example, the Digital Services Act, around the practice
- Provisions for Interest-based Advertising (IBA/OBA). These have been extracted from the 2018 ICC Advertising and Marketing Communications Code Chapter C and uploaded here; selected key rules below
- OBA, like any other advertising, is subject to Content rules. in this context, the principle source of international rules is the ICC Code linked above
Application of notice and choice provisions
- Any third party participating in OBA should adhere to principles of notice and user control as set out below
- Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
- The following guidance provides further clarification for how these principles apply to OBA
C22.1. Notice
- Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
- Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
- Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices
C22.2. User control
- Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)
C22.5. Data security
- Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
- Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent
C22.6 Children
- Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent
C22.7. Sensitive data segmentation
- In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information
Article 29 Working Party* documents
- Opinion 2/2010 on online behavioural advertising here
- Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising here
- Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
- A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
- EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here
5. Emails & SMS
SECTION C: DIRECT ELECTRONIC COMMUNICATIONS
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
- Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications
- General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
- Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below
- Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
- GDPR may apply if processing personal data; check privacy issues with specialist advisors
- See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here
General provisions; refer to our earlier section B or the linked ICC document for full provisions. Of particular relevance below:
- When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations
19.1. Collection of data and notice
- When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter
19.2. Use of data
Personal data should be:
- collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
- adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
- accurate and kept up to date
- preserved for no longer than is required for the purpose for which the data were collected or further processed
19.3. Security of processing
- Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures
19.4. Children’s personal data
- When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
- Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
- Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
- Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
- Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
- For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7
19.5. Privacy policy
Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented
19.6. Rights of the consumer
Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:
- opt out of direct marketing lists
- opt out of interest-based advertising
- sign on to general direct preference services
- require that their personal data not be made available to third parties for their marketing purposes; and
- rectify incorrect personal data which are held about them
- Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9
19.7. Cross-border transactions
- Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended
Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked code
Directive 2002/58/EC; Article 13
Unsolicited communications
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
- Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an e-Commerce context
- In addition to other information requirements established by community law, member states shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
- The name of the service provider
- The geographic address at which the service provider is established
- The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
- Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
- Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
- As concerns the regulated professions
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
- Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
- In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
Section 2: Commercial communications
Article 6
- Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
- The commercial communication shall be clearly identifiable as such
- The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
- Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
- Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
Article 7
Unsolicited commercial communication
- In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
- Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
..........................................................................................
EU guidance documents
- Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
- Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 - November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here
- Opinion 15/2011 on the definition of consent here
- May 2020 Guidelines on Consent under Regulation 2016/679 here
6. Own Websites & SNS
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2015
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
- The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
- Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
- Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
- In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
- Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
General information to be provided
- In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
- In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
Article 6
- The commercial communication shall be clearly identifiable as such
- The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
- Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
- Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
- In addition to other requirements established by community law, member states which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
- Without prejudice to Directive 97/7/EC and Directive 97/66/EC, member states shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')
- A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
- It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
- Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted
- In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
- the main characteristics of the product, to an extent appropriate to the medium and the product
- the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
- the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
- the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
- for products and transactions involving a right of withdrawal or cancellation, the existence of such a right
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
-
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
-
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
- Opinion 15/2011 on the definition of consent here
- GDPR 25/05/2018: Guidelines on consent under Regulation 2016/679 here
- Guidelines 8/2020 on the targeting of social media users adopted April 2021
- Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
- Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
- Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
- Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms
-
FACEBOOK
- https://www.facebook.com/policies/ads (also includes references to Instagram)
- branded content: https://www.facebook.com/policies/ads/restricted_content/branded_content
- https://help.instagram.com/116947042301556/?helpref=hc_fnav&bc[0]=368390626577968&bc[1]=835763516568404
- https://www.facebook.com/policies/brandedcontent/
- TWITTER:
- https://business.twitter.com/en/help/ads-policies/introduction-to-twitter-ads/twitter-ads-policies.html
- https://business.twitter.com/en/help/troubleshooting/how-twitter-ads-work.html
- Promotions/ contests on Twitter:
https://help.twitter.com/en/rules-and-policies/twitter-contest-rules
- YOUTUBE: advertiser friendly content guidelines here:
- Paid product placements and endorsements
- Advertising on YouTube Kids
- Age targetting and ads
- Youtube’s contest policies and guidelines
- Homepage advertiser Guidelines
- Tell a friend
- Unbranded ads or Brand Channels
- SNAPCHAT:
- https://www.snap.com/en-GB/ad-policies/
- Contest/ promotions rules: https://support.snapchat.com/en-GB/a/promotions-rules
- GOOGLE +
- Promotions/ Contests:
https://www.google.com/intl/en_uk/+/policy/pagescontestpolicy.html - For advertising on the Google network:
https://support.google.com/adwordspolicy/answer/6012382?hl=en-GB&ref_topic=1626336 /
https://support.google.com/adwords/answer/6316?hl=en-GB
- TIK TOK
7. Native Advertising
SECTION C: NATIVE ADVERTISING
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN) 2018
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Guidance: ICC Guidance on Native Advertising here
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
- These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
Identification and transparency (Art. 7)
- Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
Identity of the marketer (Art. 8)
- The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
-
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
-
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
8. Telemarketing
Following feedback, we no longer cover Telemarketing
9. Direct Postal Mail
SECTION C: DIRECT POSTAL MAIL
Applicable Self-regulation and legislation
- National 'Robinson lists' or opt-out lists
- The General Data Protection Regulation 2016/679 for the processing of personal data
- Directive 2005/29/EC on unfair commercial practices (UCPD)
- For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
- The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above
Legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
- the main characteristics of the product, to an extent appropriate to the medium and the product
- the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
- the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
- the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
- for products and transactions involving a right of withdrawal or cancellation, the existence of such a right
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
- In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors
Guidance
Guidelines on consent under Regulation 2016/679 (May 2020)
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10. Event Sponsorship/ Field Marketing
SECTION C: EVENTS/ SPONSORSHIP
- Advertising material associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier Content Section B, or from the ICC Code linked below
- ICC Advertising and Marketing Communications Code (EN): Chapter B Sponsorship
B1: Principles governing sponsorship
- All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
- Sponsorship should be recognisable as such
- The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
- There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
B2: Autonomy and self-determination
- Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement
B3: Imitation and confusion
- Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
B4: 'Ambushing' of sponsored properties
- No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage
- The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public
B5: Respect for the sponsorship property and the sponsor
- Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position that might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
- The sponsored party should not obscure, deform or bring into disrepute the image or trade- marks of the sponsor, or jeopardise the goodwill or public esteem associated with them
B6: The sponsorship audience
- The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
- This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
B7: Data capture/ data sharing
- If an individual’s data are used in connection with sponsorship, the provisions of article 19 are applicable
B8: Artistic and historical objects
- Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
- Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
B9: Social and environmental sponsorship
- Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship.
- Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
- Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications
B10: Charities and humanitarian sponsorship
- Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
B11: Multiple sponsorship
- Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity
- In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
- The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship. The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
11. Sales Promotion
SECTION C: SALES PROMOTIONS
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 (EN), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
A1: Principles governing sales promotions
- All sales promotions should deal fairly and honourably with consumers
- All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
- The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
- The terms and conduct of all sales promotions should be transparent to all participants
- All sales promotions should be framed in a way that is fair to competitors and other traders in the market
- No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute
A2: Terms of the offer
Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product
A3: Presentation
A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)
A4: Administration of promotions
Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations
In particular:
- the availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. if delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made;
- defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request;
- complaints should be efficiently and properly handled
A5: Safety and suitability
- Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
- Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children
A6: Presentation to consumers
- Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated
Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:
- Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
- Main characteristics of the promotional items offered
- Any time limit on taking advantage of the promotional offer
- Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. in the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
- The value of any voucher or stamp offered where a monetary alternative is available
- Any expenditure involved, including costs of shipping and handling and terms of payment
- The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
- Any rules governing eligibility to participate in the prize promotion
- Any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
- Any restriction on the number of entries
- The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
- In the case of a skill contest, the nature of the contest and the criteria for judging the entries
- The selection procedure for the award of prizes
- The closing date of the competition
- When and how the results will be made available;
- Whether the consumer may be liable to pay tax as a result of winning a prize
- The time period during which prizes may be collected
- Where a jury is involved, the composition of the jury
- Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used
The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
3 relevant clauses extracted
C3: The offer
- The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion
C4 : Presentation
- Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
- When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
- Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
- Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
- Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase
C17: Substitution of products
- If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
- The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price
- Member States may decide not to apply paragraph 1 to:
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
- For products sold in bulk, only the unit price must be indicated
- Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5
Article 4
- The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited
- The unit price shall refer to a quantity declared in accordance with national and Community provisions
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
- Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion
- With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable
D. Advice & Clearance
The ICAS Global Factbook of Self-Regulatory Organizations 2019
EASA (European Advertising Standards Alliance)
EASA membership
http://www.easa-alliance.org/members
Link to Best Practice Recommendations
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)
Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)
http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
EASA Best Practice Recommendation on Influencer Marketing
E. Links
SECTION E SOURCES/ LINKS
ICC
ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: 'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.'
Translation of the code into several languages can be found here
Additional guides and frameworks (all EN)
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC guidance documents
ICC Guidance on Native Advertising (May 2015).
https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
ICC toolkits
- ICC Toolkit: Marketing and Advertising to Children (2017)
https://iccwbo.org/publication/icc-toolkit-marketing-advertising-children/ - Summary and Toolkit for Advertising Agency/ Marketer:
http://www.codescentre.com/about-you/advertising-agency-views.aspx
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The European Interactive Digital Advertising Alliance (EDAA)
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
- Not to advertise food and beverages to children under 13 years, except for products which fulfil the EU Pledge common nutrition criteria;
- No marketing or advertising in primary schools, except where specifically requested by, or agreed with, the school administration for educational purposes;
- To abide by the International Chamber of Commerce (ICC) Code of Advertising and Marketing Communication Practice; and the ICC Framework for Responsible Food and Beverage Marketing Communications in all marketing communications.
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Channel Regulations and Directives
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
- Working Document 02/2013 providing guidance on obtaining consent for cookies WP 208 (02.10.2013)
- Opinion 04/2012 on Cookie Consent Exemption WP 194 (07.06.2012)
- Opinion 16/2011 on EASA/IAB Best Practice Recommendation on Online Behavioural Advertising WP 188 (08.12.2011)
- Opinion 15/2011 on the definition of Consent WP 187 (13.07.2011)
- Opinion 2/2010 on online behavioural advertising WP 171 (22.06.2010)
- Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
- Guidelines on Consent under Regulation 2016/679 May 2020
- Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679. February 2018
- Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR, in particular regarding the competence, tasks and powers of data protection authorities Adopted on 12 March 2019
Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
e-Privacy Regulation draft (10 February 2021)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
e-Commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Commercial practices
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
Food Regulations
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
Audiovisual media
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925