All news will be placed in the section to which it relates, almost always Section A Overview.
Australia
Unfair trading practices - Consultation Regulation Impact Statement
Treasury Dept. 31 August 2023 - 29 November 2023
New Children's Code from the AANA
Above effective 1 December 2023
ACCC publish draft guidelines on environmental claims. July 13, 2023
Submissions by September 15, 2023. Commentary from Gilbert & Tobin here
Govt. Consultation paper Responsible AI. Closes July 26
Latest Ad Standards decisions June 6, 2023
Ad Standards Review of Operations 2022
Latest Ad Standards decisions March 16, 2023
Updates
Ad Standards Review of Operations 2022
Latest Ad Standards decisions June 6, 2023
ACCC Draft Environmental Guidelines
Above July 13, 2023. Feedback by 15 Sept
APPEA environmental claim ruling June 28, 2023
Ad Standards latest cases July 27, 2023
Reckitts v P&G Addison July 17, 2023
New Children's Code from the AANA
Above effective 1 December 2023
Ad Standards latest decisions 23/8/23
Ad Standards campaign 4/9/23
Ad Standards latest decisions 12/9/23
Smoking, helmets and 'adult toys'
AANA session children's code 12th Oct
A grey zone: Protections for the rights of child influencers. LSJ Online Sept 27, 2023
Unfair trading practices - Consultation Regulation Impact Statement
Treasury Dept. 31 August 2023 - 29 November 2023
ACCC publish draft guidelines on environmental claims. July 13, 2023
Submissions closed. Commentary from Gilbert & Tobin here, Latham & Watkins here
Govt. Consultation paper Responsible AI. Closed July 26
ACCC Greenwashing sweep - what brands can do now. AANA March 16, 2023
The Privacy Act Review Report from the Attorney General's office February 16, 2023
ACCC social media sweep targets influencers. 27 January 2023
Urgent Privacy Reforms Introduced In The Parliament
IAB Australia October 27, 2022 (see channel rules header below)
Environmental Claims Code review. November 2022
Discussion paper from the Australian Association of National Advertisers (AANA)
The advertising regulatory framework in Australia will have a familiar look to it for those whose experience is largely European, in as much as there's a strong self-regulatory authority Ad Standards in place, albeit with a slightly different structure to most in Europe as the founding body is the advertiser's trade association and consumer and competitor complaints are handled separately. From the Adstandards website: 'Ad Standards functions as secretariat for the Ad Standards Community Panel and the Ad Standards Industry Jury, the two independent bodies established to determine consumer and competitor complaints against the advertising self-regulatory codes.' Scope: Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy. See the self-regulation header immediately below for more. The legislative backdrop is also reasonably familiar from consumer protection provisions under a federal act - the Competition and Consumer Act 2010 - expressed under Schedule 2 as the Australian Consumer Law or ACL and enforced by the Australian Competition and Consumer Commission. The regulatory 'wrinkles', however, are not insignificant and it's as well to look out e.g. for a variety of sources for some sector advertising codes and state laws that may differ somewhat in their approaches to product categories such as alcohol.
AANA (Australian Association of National Advertisers) Code of Ethics February 2021
The Code of Ethics is to be read with the Practice Note, also February 2021, provided as a guide to interpretation
'The Code of Ethics is the overarching code setting out standards that apply to Advertising or Marketing Communication across any medium. Depending on the nature of the product or service, these other AANA codes may also apply:'
Food & Beverages Advertising Code November 2021; Practice Note here
See also Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018
Environmental Claims Code May 2018; Practice Note here
Wagering Advertising Code July 2016; Practice Note here
See also Keeping wagering ads in check September 2022
Children
Children’s Advertising Code March 2021
Children's Advertising Code Practice Note March 2021
New Children's Code from the AANA. Practice Note here
Above effective 1 December 2023
............................
FCAI Motor Vehicle Code and Practice Note Undated; reviewed every 5 years
From the Federal Chamber of Automotive Industries
The ABAC Responsible Alcohol Marketing Code
Signatories here
Therapeutic Goods Advertising Code
DLA Piper/Lex re Therapeutic Goods Advertising March 23, 2023 here
Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement
ASTRA Codes of Practice (including Television and Radio)
Commercial Radio Code of Practice
Commercial TV Code of Practice
ACCC Digital Platforms Report #6 - Influencer Sweep Report
ACCC social media sweep targets influencers. 27 January 2023
Commentary on the above from Bird&Bird LLP/ Lex Feb 28, 2023
This is a 'busy' issue in Australia as with most markets. The key self-regulatory rule, established relatively recently, is from the AANA Code of Ethics 2.7 'Advertising or Marketing Communication must be clearly distinguishable as such to the relevant audience.' The related Best Practice Guideline and this short piece July 2022 is essential reading, together with the Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021. The Australian Consumer law is also relevant under article 29 false or misleading representations. The ACCC - the statutory authority in this context - states: 'The same rules that apply to all advertising and promotions apply to social media, including: a business’s posts on its own social media accounts, advertising on other social media platforms, social media posts that a business pays for, social media posts that a business offers incentives to influencers to make.' See the codes of practice and guidelines from the AANA and AIMCO especially for recommendations on when a post constitutes an ad and how to declare/ identify it. Specifics in our channel section C under online commercial communications or see the linked files. If the fancy takes you, get in touch with AiMCO for their Accreditation Programme and first industry programme “Influencer Marketing Essentials,” which launched June 21, 2023.
Competition and Consumer Act 2010 (CCA); as amended and in force November 10, 2022
Schedule 2 - the Australian Consumer Law (ACL) covers inter alia misleading or deceptive conduct, unconscionable conduct, unfair practices, country of origin representations. Relevant clauses are in our following content section B or see the linked file; explanatory memorandum here
NSW Fair Trading Act 1987 No 68; other State Fair Trading laws can be found here
Australia New Zealand Food Standards Code
The standards in the Australia New Zealand Food Standards Code are legislative instruments under the Legislation Act 2003
Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021
Australian Competition and Consumer Commission
The ACCC is an independent statutory authority that enforces the Competition and Consumer Act 2010 and other legislation. State and territory consumer protection agencies have powers to enforce the ACL (Australian Consumer Law, schedule 2 of the Act above) in their applicable state or territory. The ACCC is a 'very active' authority (from legal commentary). Their Advertising and Promotions page is here.
Quick guide to advertising content regulatory framework
IAB Australia April 2022
Advertising & Marketing in Australia
Baker McKenzie/ Lex May 2019
Data Processing/ privacy
Privacy issues should be reviewed with specialist advisors
Australian Data Protection Laws and Regulations 2022 from ICLG
Comparing privacy laws: GDPR v. Australian Privacy Act from Onetrust data guidance and Mills Oakley
Broadcast
APPEA environmental claim ruling made June 28, 2023
ACCC publish draft guidelines on environmental claims. July 13, 2023
Submissions by September 15, 2023. Commentary from Gilbert & Tobin here
AANA Environmental Claims Code May 2018. Provisions are set out in our following content section B or see the linked file;
Practice Note here; the Code of Ethics also includes provisions under 1.4.
Environmental Claims Code review. November 2022
Discussion paper from the Australian Association of National Advertisers (AANA)
See also from AANA Going green? Ask yourself these questions before making any environmental claims November 2021
Green marketing and the Australian Consumer Law is also from the ACCC, published 2011
From Hall & Wilcox/ Lex December 2022 Regulators step up enforcement action over greenwashing claims
And from Russell Mcveagh/ Lex March 2023 Action by regulators highlights greenwashing risks for financial institutions and other businesses
Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising with legal advisors
General
Digital Services Act takes effect for large online platforms. Aug 25, 2023. EASA update Sept
EASA Influencer Disclosure pan-Europe July 2023
Council adopts new rules on markets in crypto-assets (MiCA). 16 May, 2023
The ICLG Consumer Protection Report 2023. 17 jurisdictions
What's Going on With Self-Regulation Globally? Frankfurt Kurnit Klein & Selz PC/ Lex
Environmental
Greenwashing - existing toolkit, EU developments and the role of trade marks
Freshfields Bruckhaus Deringer/ Lex. August 30, 2023
ICLG's Consumer Protection Laws and Regulations. Published April 2023, posted later
Jurisdictions inc. UK, France, Germany and Italy applying consumer protection law to environmental claims
ESG Laws Across the World. Squire Patton Boggs July 3, 2023
Proposal for a Directive on Green Claims. March 22, 2023
EC press release on the above here, GALA here, Status The parliamentary committees ENVI and IMCO are jointly in charge of the report on this draft directive. The report is to be tabled before 6th-7th November – date of the committee session where it will be discussedSeptember 20, 2023
Proposal for a Directive on empowering consumers for the green transition
Above March 30, 2022. Will impact UCPD. Status Sept 2023. Cooley Sept 22, 2023
Claims based on carbon offsetting. Slaughter & May/ Lex July 13, 2023
AI
The state of AI regulation in the UK and EU.
Penningtons Manches Cooper August 3, 2023
AI's Failing Grade. Mark Scott Politico June 29, 2023*
UK vs EU Approach to Regulating AI. Baker Mckenzie/ Lex June 14, 2023
EU AI Act: first regulation on artificial intelligence. June 2023
Mark Scott Politico: a global AI rulebook and digital policy making data rules. 20th April, 2023*
Data/ privacy
The role of data for competition in online advertising. Hausfeld LLP/ Lex. Sept 15, 2023*
TikTok fined €345 million by Irish DPC. Burges Salmon/ Lex Sept 20, 2023
European Union: Targeted advertising on social networks: Is consent mandatory?
Haas Avocats September 19, 2023 (EN)
CJEU Landmark Data Protection Ruling for Online and Behavioural Advertising
William Fry/ Lex September 8, 2023. Connected with Meta news below
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
The Data Act - Unlocking the EU's Data Economy. William Fry August 4, 2023
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Children
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
* Recommended read
Advertising, Media and Brands Global Compliance Challenges
Squire Patton Boggs/ Lex. March 28, 2023. EU, OECD, UK, USA
Top 10 issues for 2023 GALA/ Lex. Feb 23 2023. U.S., global
Top 10 Advertising and Marketing Issues for 2023
Global, USA. Davis & Gilbert/ Lex January 24, 2023
Marketing & advertising tips, traps and trends for 2023
Canada and EU. Smart & Biggar/ Lex Jan 2023
December 2022: ICAS publishes 2021 Factbook and Global SRO Database
Chambers Global Practice Guide Advertising & Marketing 2022
Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland
DLA Piper's Advertising Laws of the World August 31, 2022. '13 key jurisdictions.'
Data
A 'cheat-sheet' assembly of some of the key digital acts coming out of the EU
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
DLA Piper's Data Protection Laws of the World Handbook 2023 edition
2023 Top Privacy Issues: New Laws & Expanded Enforcement. GALA/ Lex Jan 2023. U.S. & EU
Bird&Bird's Global Cookie Review of Winter 2022 covers multiple jurisdictions clearly and comprehensively
The code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
All the individual rules themselves are set out in the following content section B and channel section C, as applicable
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or Channel | Key European legislation and clause |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
|
Electronic coms. Consent and Information |
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Directive 2019/2161 sets out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
...............................................................
Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
1. SELF-REGULATION
1.1. AANA Code of Ethics and Practice Note
1.2. Food and Beverages Code and Practice Note
1.3. Alcohol: ABAC Responsible Marketing Code
1.4. AANA Environmental Claims Code
1.5. Advertising to children
2.1. ACL False or misleading representations
2.2. ACL Pricing provisions
2.3. Environmental claims
2.4. Other legislation in advertising
Definitions
In this code, unless the context otherwise requires, advertising means:
Food and Beverages Advertising Code (November 2021)
Food and Beverages Practice Note (November 2021)
S1.1.Advertising and Marketing Messaging Communications to Children for food and/ or beverages must:
Product Placement S1.2.
Use of Products in Interactive Games S1.3.
Advertising in Schools, Pre-Schools and Day Care Centres S1.4.
See also the Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children March 2018 which adds to the above as follows:
Children's Sporting Events
Availability of Nutrition Information
On-Pack Nutrition Labelling
3. Standards to be applied
(a) Responsible and moderate portrayal of Alcohol Beverages Definition Alcohol Beverage means a beverage containing at least 0.5% alcohol by volume. A marketing communication must NOT:
b) Responsibility toward Minors Definition Minor means a person who is under 18 years of age and therefore not legally permitted to
purchase an Alcohol Beverage in Australia. A marketing communication must NOT:
(c) Responsible depiction of the effects of alcohol. A marketing communication must NOT:
(d) Alcohol and Safety:
A marketing communication must NOT show (visibly, audibly or by direct implication) the consumption of an Alcohol Beverage before or during any activity that, for safety reasons, requires a high degree of alertness or physical co-ordination, such as the control of a motor vehicle, boat or machinery or swimming.
4 No fault breach
A breach of this Code that is reasonably unforeseeable by or outside the reasonable control of the marketer or their agency will be classified as a no fault breach.
https://aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code.pdf
1. Truthful and factual presentation. Environmental claims in advertising or marketing communication:
2. A genuine benefit to the environment. Environmental claims must:
3. Substantiation. Environmental Claims in Advertising or Marketing Communication:
The key rules are found in the AANA Children's Advertising Code March 2021
New Children's Code from the AANA; Practice Note here
Above effective 1 December 2023
The ACL contains a broad prohibition of misleading and deceptive conduct. Businesses have an obligation not to engage in any conduct that is likely to mislead or deceive consumers. Note that the conduct only needs to be likely to mislead or deceive; it does not matter whether the conduct actually misled anyone, or whether the business intended to mislead - if the conduct was likely to mislead or deceive, the ACL is contravened. In addition to the general rule against misleading or deceptive conduct, the ACL prohibits a variety of false or misleading representations about specific aspects of goods and services. False and misleading representations are more serious than general misleading and deceptive conduct and, where criminal proceedings are taken, can carry serious penalties under the ACL (from the Australian Competition and Consumer Commission; see their pages on false or misleading claims here)
Chapter 2. General Protections
Part 2.1. Misleading or deceptive conduct (key extracts only)
Chapter 3. Specific Protections
Part 3.1 Unfair practices. False or misleading representations etc. (key extracts only)
Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising, especially new advertising, with legal advisors
From the AANA Children's Advertising Code March 2021
From section 2.2 Factual presentation
https://www.legislation.gov.au/Search/advertising
Australia New Zealand Food Standards Code; the standards in the Australia New Zealand Food Standards Code are legislative instruments under the Legislation Act 2003;
Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021.
SELF-REGULATION; the ICC Code
1.1. General provisions
2.1. General provisions from the Unfair Commercial Practices Directive (UCPD)
2.2 Specific pricing measures
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD
2.2.3. Extracts from the ICC Code related to pricing
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
Substantiation (Art. 6)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of technical/ scientific data and terminology (Art. 9)
Use of 'free' and 'guarantee' (Art. 10)
Comparisons (Art. 11)
Denigration (Art. 12)
Testimonials (Art. 13)
Portrayal or imitation of persons and references to personal property (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Safety and health (Art. 17)
D1. Honest and truthful presentation
D2. Scientific research
D3. Superiority and comparative claims
D4. Product life-cycle, components and elements
D5. Signs and symbols
D6. Waste handling
D7. Responsibility
Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix.
Applicable self-regulation
Article 18.1. General principles
18.2. Inexperience and credulity of children
Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:
18.3. Avoidance of harm
18.4. Social values
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
Aggressive commercial practices
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
......................................................................................
2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:
http://www.g-regs.com/downloads/ICCPricingextracts.pdf
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Seven and Nine breach gambling advertising rules. ACMA October 2022
a) School days |
7.30 pm to 6.00 am 12 noon to 3.00 pm |
b) Weekends and school holidays | 7.30 pm to 6.00 am |
c) Public holidays | 7.30 pm to 6.00 am |
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
Applicable Self-Regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Article B12 Media sponsorship
This section carries the rules for marketing communications in the broader online space.
More specific channels such as direct electronic communications, advertisers' own websites, native etc. follow.
ACCC Digital Platforms Report #6 - Influencer Sweep Report
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in Owned and (some) Earned space as well as Paid
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Also be aware of:
The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation
The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market
The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)
Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth
And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry
And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
C1. Identification and transparency
C2. Identity of the marketer
C7. Marketing communications and children
C10. Respect for the potential sensitivities of a global audience
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Decoding the DSA. Simple and clear explanation from EACA of what the legislation means for agencies
EU and US reach a deal to let data flow across the Atlantic. Politico July 10, 2023
ChatGPT transgresses GDPR: European authorities investigate (FR; Haas)
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here
Top EU data regulation trends for 2023. Freshfields Bruckhaus Deringer/ Lex. March 10, 2023
Report of the work undertaken by the Cookie Banner Taskforce. (EN) From the EDPB Jan 2023
Guidance extracted from the above here courtesy of Stevens & Bolton LLP/ Lex
Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)
From Reed Smith LLP/ Lex May 2022
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022
Applicable regulation and opinion
Application of notice and choice provisions
C22.1. Notice
C22.2. User control
C22.5. Data security
C22.6 Children
C22.7. Sensitive data segmentation
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
This section covers rules for 'direct electronic communications', per the header. By this we mean that we are addressing a particular form of 'direct marketing' and because that term can cover a wide variety of techniques, we define and qualify it. From the OAIC guidelines 7.9 'Direct marketing involves the use and/ or disclosure of personal information to communicate directly with an individual to promote goods and services. A direct marketer may communicate with an individual through a variety of channels, including telephone, SMS, mail, email and online advertising.' The 'electronic' descriptor in this section is intended to separate from e.g. postal mail and the direct marketing element relates to the targeting of individuals and therefore - in some cases - personal information processing. So when setting out the applicable rules, the two core principles that determine their relevance and inclusion are a) whether targeting is 'individual' and personal information may be processed and b) whether delivery to the consumer is electronically. To make those principles perhaps more meaningful, we have in mind email and SMS delivery, for example, though we realise that 'direct electronic communications' may encompass e.g. OBA and even 'broader' channels, which are anyway addressed in separate sections. We also appreciate that much 'direct marketing' may not include processing of personal data.
Privacy issues should be reviewed with specialist advisors
General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:
19.1. Collection of data and notice
19.2. Use of data
Personal data should be:
19.3. Security of processing
19.4. Children’s personal data
19.5. Privacy policy
19.6. Rights of the consumer
19.7. Cross-border transactions
Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked Code
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
Directive 2000/31/EC: Article 5
General information to be provided in an E-commerce context
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
Section 2: Commercial communications
Article 6
Article 7
Unsolicited commercial communication
EU guidance documents
The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it's in remit. The AANA Practice Note March 2018 Marketing in the Digital Space states: 'Examples of digital marketing include all forms of commercial communication on Brand-owned websites or brand-managed social media pages (including mobile and tablet versions), including 3rd party user-generated comment (UGC)’ Advertising is defined as.......any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct. It does not include Excluded Labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, see the Practice Note linked above. Notable exceptions include Material, includinmg UGC, over which the brand owner does not have reasonable control, even if brands or products of the brand owner are featured. Corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy and the like are also excluded
Privacy issues should be reviewed with specialist advisors
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2015
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code 2018
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Guidance: ICC Guidance on Native Advertising here
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
FOLLOWING FEEDBACK, WE NO LONGER COVER TELEMARKETING
Following feedback, we no longer cover Telemarketing
There are two aspects to the way in which we address this section: 1) the collection and use of personal and sensitive information (these terms defined here) when processing data and 2) the content of commercial communications in direct postal mail. Rules, or access to them, are set out below
'Marketing is not direct, and therefore APP 7.1 does not apply, if personal information is not used or disclosed to identify or target particular recipients, for example, where: an organisation sends catalogues by mail to all mailing addresses in a particular location, addressed ‘To the householder’ (that is, where recipients are not selected on the basis of personal information) an organisation hand delivers promotional flyers to the mailboxes of local residents' (Guidelines 7.12);
Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above
..............................................................
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
This section covers rules related to sponsorship of events (versus media)
The ACCC's Cash back offers and gifts and prizes rules are here.
What Permit Do I Need To Run A Promotion In Australia?
Sales promotions Q&A: Australia (needs sub)
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.
ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
A1: Principles governing sales promotions
A2: Terms of the offer
Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price of the main product
A3: Presentation
A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)
A4: Administration of promotions
Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations
In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.
Information in prize promotions
Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
3 relevant clauses extracted
C3: The offer
C4 : Presentation
C17: Substitution of products
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Copy advice
https://adstandards.com.au/education-and-advice/copy-advice
Information and resources about the responsibilities of advertisers and media buyers in relation to the advertising self-regulation system complaints process can be accessed below.
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
Competition and Consumer Act 2010 (CCA); as amended and in force November 10, 2022. 'The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. 'The Competition and Consumer Act 2010 (CCA) (formerly the Trade Practices Act 1974) is a national law that governs how all businesses in Australia must deal with their competitors, suppliers and customers. The law is designed to enable all businesses to compete on their merits in a fair and open market, while also ensuring businesses treat consumers fairly. Consumer protection provisions are in the Australian Consumer Law (ACL), which is contained in a schedule to the CCA. The ACL governs business behaviour when advertising and interacting with consumers. It also sets out a number of consumer rights, including specific guarantee rights. State, territory and federal regulators including the Australian Competition and Consumer Commission (ACCC) enforce the ACL. Only the ACCC enforces the competition law, which is set out in the CCA.' From A guide to competition and consumer law.
www.legislation.gov.au/Details/C2022C00326
Australian Competition & Consumer Commission. 'The ACCC promotes competition and fair trade in markets to benefit consumers, businesses, and the community. We also regulate national infrastructure services. Our primary responsibility is to ensure that individuals and businesses comply with Australian competition, fair trading, and consumer protection laws - in particular the Competition and Consumer Act 2010.' The ACC publish a considerable amount of helpful information on tehir website including some practical 'walk-throughs' such as the Advertising and Selling Guide
https://www.accc.gov.au/about-us
The Privacy Act 1988 is the principal piece of Australian legislation protecting the handling of personal information about individuals. This includes the collection, use, storage and disclosure of personal information in the federal public sector and in the private sector. The Act was amended in December 2022 by the Online Privacy Bill, more formally The Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021, which significantly increases penalties under the Privacy Act and also increases the powers of the Australian Information Commissioner (OAIC);
www.legislation.gov.au/Details/C2022C00361 (compilation including act no. 83)
The Australian Privacy Principles (or APPs) 'are the cornerstone of the privacy protection framework in the Privacy Act 1988. They apply to any organisation or agency the Privacy Act covers. There are 13 APPs and they govern standards, rights and obligations around: the collection, use and disclosure of personal information, an organisation or agency’s governance and accountability, integrity and correction of personal information and the rights of individuals to access their personal information.' From the OAIC; also see related APP guidelines (July 2019);
www.oaic.gov.au/privacy/australian-privacy-principles/read-the-australian-privacy-principles
The Do Not Call Register Act 2006. Simplified outline: Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register; Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register. The main remedies for breaches of this Act are civil penalties and injunctions.
www.legislation.gov.au/Details/C2021C00356 (compilation to 2021)
The Spam Act 2003. Simplified outline: This Act sets up a scheme for regulating commercial email and other types of commercial electronic messages. Unsolicited commercial electronic messages must not be sent. Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message. Commercial electronic messages must contain a functional unsubscribe facility. Address harvesting software must not be supplied, acquired or used. An electronic address list produced using address harvesting software must not be supplied, acquired or used. The main remedies for breaches of this Act are civil penalties and injunctions.
www.legislation.gov.au/Details/C2016C00614 (compilation to 2016)
Australian Information Commissioner (OAIC). 'Our purpose is to promote and uphold privacy and information access rights. We do this by: making sure that Australian Government agencies and organisations with an annual turnover of more than $3 million, and some other organisations, follow the Privacy Act 1988 and other laws when handling personal information, protecting the public’s right of access to documents under the Freedom of Information Act 1982 (FOI Act), carrying out strategic information management functions within the Australian Government under the Australian Information Commissioner Act 2010 (AIC Act).' The OAIC also publish some helpful/ essential guides related to the Privacy Act and Principles, e.g. Australian Privacy Principles guidelines.
www.oaic.gov.au/about-us/what-we-do
Australian Capital Territory
Access Canberra administers the ACT Fair Trading Act 1992- external site and provides information on codes of practice and other business guides for traders.
New South Wales
NSW Fair Trading administers the NSW Fair Trading Act 1987. Fair Trading's Acceptable business conduct provides business operators with information about how to trade fairly in New South Wales.
Northern Territory
Consumer Affairs administers the NT Consumer Affairs and Fair Trading Act 1990. You can find information on trader issues such as advertising, business tenancies, disposal of uncollected goods and product safety.
Queensland
The QLD Office of Fair Trading administers the QLD Fair Trading Act 1989. You can find information on business rights and responsibilities.
South Australia
Consumer and Business Services administers the SA Fair Trading Act 1987 and provides businesses with information on fair trading laws, advertising, handling complaints and warranties.
Tasmania
The Consumer, Building and Occupational Services administers the Australian Consumer Law (Tasmania) Act 2010 and has publications covering many aspects of fair trading.
Victoria
Consumer Affairs Victoria administers the Australian Consumer Law and Fair Trading Act 2012.
Forms and publications are available to help businesses understand fair trading.
Western Australia
Department of Mines, Industry Regulation and Safety administers the WA Fair Trading Act 2010.
Australia New Zealand Food Standards Code. The standards in the code are legislative instruments under the Legislation Act 2003 and are described in the Code, which is a law that applies in Australia and New Zealand. The code provides: a common set of food composition and labelling rules agreed between New Zealand and Australia. Standard 1.2.7 Nutrition, health and related claims. This Standard: (a) sets out: (i) the claims that may be made on labels or in advertisements about the nutritional content of food (described as ‘nutrition content claims’); and (ii) the claims that may be made on labels or in advertisements about the relationship between a food or a property of a food, and a health effect (described as ‘health claims’); and (b) describes the conditions under which such claims may be made; and (c) describes the circumstances in which endorsements may be provided on labels or in advertisements.
www.foodstandards.gov.au/code/Pages/default.aspx
Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021. 'The objects of this Code are to specify requirements for advertisements about therapeutic goods so that advertisements: (a) promote the safe and proper use of the therapeutic goods by minimising misuse, overuse or underuse; and (b) are ethical and do not mislead or deceive the consumer or create unrealistic expectations about the performance of the therapeutic goods; and (c) support informed health care choices; and (d) are not inconsistent with current public health campaigns.
www.legislation.gov.au/Details/F2021L01661
Marketing in Australia of Infant Formula: Manufacturers and Importers Agreement.
www.health.gov.au/internet/main/publishing.nsf/Content/health-pubhlth-strateg-foodpolicy-apmaif.htm
Ad Standards. 'Ad Standards manages the complaint resolution process of the advertising self-regulation system. Our vision is to be Australia’s community voice for complaints about advertising and marketing standards. Our purpose is to give a voice to consumer values and guide industry in maintaining decent and honest advertising aligning with prevailing community standards. Ad Standards functions as secretariat for the Ad Standards Community Panel and the Ad Standards Industry Jury - the two independent bodies established to determine consumer and competitor complaints against the advertising self-regulatory codes. Australia's current system of advertising self-regulation was established by the Australian Association of National Advertisers (AANA) in 1998.'
https://adstandards.com.au/about/ad-standards
The AANA (Australian Association of National Advertisers) Code of Ethics February 2021 is the core self-regulatory code in Australia, 'the overarching code setting out standards that apply to Advertising or Marketing Communication across any medium.' Advertising is defined in the code as follows: '(a) any advertising, marketing communication or material which is published or broadcast using any Medium or any activity which is undertaken by, or on behalf of an advertiser or marketer, over which the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote or oppose directly or indirectly a product, service, person, organisation or line of conduct, (b). but does not include: labels or packaging for products, corporate reports including corporate public affairs messages in press releases and other media statements, annual reports, statements on matters of public policy. In the case of broadcast media, any material which promotes a program or programs to be broadcast on that same channel, station or network.' The code of Ethics is to be read with the Practice Note, also February 2021, provided as a guide to interpretation.
aana.com.au/wp-content/uploads/2020/09/AANA_Code_of_Ethics_Effective_February_2021.pdf
Food & Beverages Advertising Code November 2021. 'This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers maintain a high sense of social responsibility in advertising and marketing food and beverage products in Australia in a manner that is legal, honest, truthful and reflects health and safety standards.'
aana.com.au/wp-content/uploads/2021/06/AANA_FoodBev_Advertising_Code_final.pdf
Reklated Practice Note:
aana.com.au/wp-content/uploads/2021/08/AANA_FoodBev_Advertising_Practice_Note_Aug21v.pdf
See also Australian Food and Grocery Council Responsible Children's Marketing Initiative March 2018:
www.afgc.org.au/wp-content/uploads/2019/06/Responsible-Childrens-Marketing-Initiative-March-2018.pdf
Australian Food and Grocery Council Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children. Adds inter alia provisions on Children's sporting events, availability of nutrition information and on-pack nutrition labelling:
Environmental Claims Code May 2018. 'This Code has been adopted by the AANA as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain rigorous standards when making Environmental Claims and to increase consumer confidence to the benefit of the environment, consumers and industry. This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Community Panel in making its determinations. In the event of any ambiguity the provisions of the Code prevail.'
aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code.pdf
Environmental Claims Code Practice Note. 'This Practice Note is provided as a guide to interpretation to assist advertisers, their agencies and the community. The interpretations in this Practice Note are based on the AANA’s intent in relation to the Code and relevant determinations of the Ad Standards Community Panel.'
aana.com.au/content/uploads/2018/03/180316-Environmental-Claims-Code-Practice-Note.pdf
Wagering Advertising Code July 2016. This Code has been adopted by the Australian Association of National Advertisers (AANA) as part of advertising and marketing self-regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing wagering products in Australia:
aana.com.au/content/uploads/2018/03/180316-Wagering-Advertising-Code.pdf
Wagering Advertising Code Practice Note May 2018:
aana.com.au/content/uploads/2018/05/180315-Wagering-Advertising-Code-Practice-Note.pdf
See also Keeping wagering ads in check September 2022
Children’s Advertising Code March 2021. This Code has been adopted by the AANA as part of advertising and marketing self regulation. The object of this Code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing to children in Australia. This Code is accompanied by a Practice Note which has been developed by the AANA. The Practice note provides guidance to advertisers and complainants, and must be applied by the Ad Standards Board in making its determinations. In the event of any ambiguity the provisions of the Code prevail.The code addresses: Prevailing community standards, placement, factual presentation, sexualisation, safety, social values, parental authority, qualifying statements and competitions.
https://aana.com.au/wp-content/uploads/2022/06/AANA_Advertising_Code_for_Childrens_V2.pdf
Children's Advertising Code Practice Note March 2021
aana.com.au/wp-content/uploads/2022/06/AANA_Code_for_Children_Practice_Note_V2.pdf
See also AANA has launched a review of the Children’s Advertising Code June 2022
FCAI Motor Vehicle Code and Practice Note. Undated; reviewed every 5 years. 'The Voluntary Code of Practice for Motor Vehicle Advertising (the FCAI Code) has been instituted by the Federal Chamber of Automotive Industries (FCAI) as a means of industry self-regulation of motor vehicle advertising in Australia. The primary purpose of the FCAI Code is to provide guidance to advertisers in relation to appropriate standards for the portrayal of images, themes and messages relating to road safety.'
adstandards.com.au/sites/default/files/fcai_voluntary_advertising_code_of_practice.pdf
The ABAC Responsible Alcohol Marketing Code. The ABAC Responsible Alcohol Marketing Code is designed to ensure that alcohol is marketed in a responsible manner. Signatories to the Code are committed to ensuring that their marketing complies with the Code’s spirit and intent. The Code complements Australian legislation, the AANA Code of Ethics and media-specific codes relevant to the placement of marketing. Application: (a) The Code applies to all marketing communications in Australia generated by or within the reasonable control of a marketer, except as set out in Section 2(b). This includes, but is not limited to: brand advertising (including trade advertising), competitions, digital communications (including in mobile and social media and user generated content), Alcohol Beverage product names and packaging, advertorials, alcohol brand extensions to non-alcohol beverage products, point of sale materials, retailer advertising, marketing collateral. Signatories here
The Australian Influencer Marketing Council (AIMCO) Code of Practice August 2021. 'The Code of Practice has been created to elevate best practice across the influencer marketing community, protecting all concerned from reputational risk and legal action by not complying with Australian Consumer Law (ACL). The AiMCO Code of Practice has been developed from the feedback, information and discussions that have taken place across the influencer marketing ecosystem. AiMCO’s membership includes both corporate and content creator memberships. Corporate members are businesses and professional individuals from major advertising brands, media and creative agencies, talent representation, social and media marketing agencies, discovery platforms and industry providers such as legal firms. Find out who is a member of AiMCO on our Community Page.'
ASTRA Codes of Practice (including Television and Radio). The Australian Subscription Television and Radio Association (ASTRA) is the peak body representing the subscription media industry in Australia. Members include television operators, independent content companies, technology companies and the industries that support them. ASTRA manages codes of practice, and represents the industry with regulators and government:
www.astra.org.au/advocacy/codes-of-practice
Commercial Radio Code of Practice: This Code commences on 15 March 2017 and applies to all commercial radio broadcasting services operated by a Licensee:
commercialradio.com.au/CR/media/CommercialRadio/Commercial-Radio-Code-of-Practice.pdf
Commercial TV Code of Practice: 'Commercial free-to-air television content is regulated under the Commercial Television Industry Code of Practice. The Code is developed by Free TV Australia in consultation with the public and registered with the Australian Communications and Media Authority (ACMA). The Code regulates content in accordance with community standards; assists viewers in making informed choices about their own television viewing and that of children in their care, and provides effective measures for receiving and handling viewer feedback and complaints. The Code contains provisions dealing with: program classifications; accuracy, fairness and respect for privacy in news and current affairs; advertising time on television; placement of commercials and program promotions; gambling advertisements; and complaints handling.'
www.freetv.com.au/content_common/pg-code-of-practice.seo
Courtesy of https://marketing.com.au/business-directories/marketing-industry-associations/
Australian Association of National Advertisers. The AANA represents the rights and responsibilities of companies and individuals involved in Australia’s $30 billion a year advertising, marketing and media industry. In the common cause of responsible advertising and marketing, the AANA today also serves to protect the rights of consumers in ensuring commercial communication is conducted responsibly within prevailing community standards. At a time of unprecedented change in advertising, marketing and media, the AANA provides ethical leadership, advocates continuous improvement in commercial communication practice, and promotes and protects freedom of commercial speech.
Australian Marketing Institute (AMI). The leading organisation for marketing professionals in Australia. The Australian Marketing Institute’s record of service to the marketing profession goes all the way back to the institute’s origin in 1933. Over the intervening years we have continually evolved to meet the changing needs of marketers, delivering services to help members maximise their professional growth. Today the AMI represents professional marketers throughout Australia, including practitioners from all marketing functions and industries. Through our unified voice, the Institute has established strong links with business, academia and government to become the voice of the marketing profession. The AMI runs marketing training courses and holds a national conference each October and many local events throughout the year.
Interactive Advertising Bureau. The Interactive Advertising Bureau (IAB) Limited is the peak trade association for online advertising in Australia and was incorporated in July 2010. As one of over 40 IAB offices globally, and with a rapidly growing membership, IAB Australia’s principal objective is to support and enable the media and marketing industry to ensure that they thrive in the digital economy. The role of the IAB is to work with its members and the broader advertising and marketing industry to assist marketers to identify how best to employ online as part of their marketing strategy, to better target and engage their customers and build their brands.
http://www.iabaustralia.com.au/
Australian Association of Social Marketing.
The Exhibition and Event Association of Australasia (EEAA) is 'the peak association for the exhibition and event industry in Australia and New Zealand, representing all aspects of the exhibition and event industry.'
ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: 'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:
https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/
Downloaded:
Translation of the code into eleven languages is here
Additional guides and frameworks
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications
ICC Framework for Responsible Food and Beverage Marketing Communication
ICC guidance documents
ICC Guidance on Native Advertising (May 2015).
https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf
ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility. It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.
ICC toolkits
IAB Europe
IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe.
'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':
https://www.iabuk.com/goldstandard
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising
IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.'
ICAS
From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook.
EASA: European Advertising Standards Alliance
Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed:
EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:
http://www.easa-alliance.org/products-services/publications/best-practice-guidance
EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.
The EDAA has been established by a cross-industry coalition of European-level associations with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling
FEDMA
FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members
https://www.fedma.org/
THE EU PLEDGE
The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:
The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy.
WFA
https://wfanet.org/about-wfa/who-we-are
‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’
Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).
https://wfanet.org/leadership/planet-pledge
The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.
Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC. The General Data Protection Regulation (GDPR) came into force on May 25 2018, and is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018
https://eur-lex.europa.eu/eli/reg/2016/679/oj
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version.
The Omnibus Directive
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN
Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432
Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN
Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:
eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online.Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925