European Advertising Law

1. European Advertising Law An overview Madalena Veiga

2. Why European Law on Advertising? • FREE MOVEMENT OF GOODS: Article 28, and 29 TEC • prohibition of quantitative restrictions between Member States and all measures having equivalent effect • FREE MOVEMENT OF SERVICES Article 49 TEC • prohibition of restrictions on freedom to provide services within the Community • RIGHT OF ESTABLISHMENT Article 43 TEC • prohibition of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State

3. Internal Market Article 95 TEC 1.   […] The Council shall, […] adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

4. Consumer Protection Article 152 TEC 1.   In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests. 2.   Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

5. Community Acts Article 249 TEC In order to carry out their task […] the European Parliament acting jointly with the Council, […] shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. […] A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. […]

6. Overview of Community Legislation • Horizontal • Misleading advertising / Comparative advertising • Sector based • Television advertising • Electronic commerce

7. Overview of Community Legislation • Specific products • Tobacco • Medicinal products • Foodstuffs • Incidentally • Alcoholic beverages, cosmetics, consumer credit…. etc

8. I. Horizontal Legislation Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising Official Journal L 250 , 19/09/1984 P. 0017 - 0020

9. Misleading advertising Article 1 The purpose of this Directive is to protect consumers, […] against misleading advertising and the unfair consequences thereof. Article 2 2. 'misleading advertising' means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor;

10. Misleading advertising Article 4 • Member States shall ensure that adequate and effective means exist for the controlof misleading advertising in the interests of consumers […]. Such means shall include legal provisions under which persons or organizations […] may: (a) take legal action against such advertising; and/or (b) bring such advertising before an administrative authority […]

11. Misleading advertising Article 4 2. […] Member States shall confer upon the courts or administrative authorities powers enabling them, […]: - to order the cessation of, or […] - if misleading advertising has not yet been published but publication is imminent, to order the prohibition of, […] such publication, even without proof of actual loss or damage or of intention or negligence on the part of the advertiser.

12. Misleading advertising • This Directive shall not preclude Member States from retaining or adopting provisions with a view to ensuring more extensive protection for consumers (Article 7)

13. Comparative advertising Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising Official Journal L 290 , 23/10/1997 P. 0018 - 0023

14. Comparative advertising Article 1 The purpose of this Directive is to protect consumers, […] and to lay down the conditions under which comparative advertising is permitted. Article 2a "comparative advertising" means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor

15. Comparative advertising Article 3a Comparative advertising shall […]be permitted when the following conditions are met: (a) it is not misleading […]; (c) it objectively compares […]verifiable and representative features of those goods and services, which may include price; (d) it does not create confusion in the market place between the advertiser and a competitor […]; (e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor; (g) it does not take unfair advantage of the reputation of a trade mark, […] of a competitor or of the designation of origin of competing products;

16. Television Advertising Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (The "Television Without Frontiers" directive) Official Journal L 202 , 30/07/1997 P. 0060 - 0070

17. Television Advertising Articles 10 and 11 • Advertising must be recognisable, separated by acoustic and visual means. • Subliminal techniques and surreptitious advertising are prohibited. • Length and number of interruptions permitted for advertising

18. Television Advertising No discrimination (Article 12) • Advertising shall not include any discrimination, or be offensive to religious or political beliefs. Protection of minors (Article 16) • Advertising shall not cause moral or physical detriment to minors. • It shall not directly exhort minors to buy a product or a service “by exploiting their inexperience or credulity”.

19. Television Advertising Tobacco, medicine, alcohol (Articles 13, 14 and 15) No advertising for: • tobacco • medicines only available on prescription. Restrictions on: • Alcohol advertisements • shall not be aimed specifically at minors, • consumption of alcohol not to be linked to enhanced physical performance or social success • shall not claim that it is a stimulant, a sedative or a means of resolving personal conflicts.

20. Television advertising Sponsorship (Article 17) • Sponsors shall not influence the content nor the scheduling of the programme. They must be clearly identified and shall not encourage the purchase of a product or service. • Pharmaceutical companies shall not be able to promote specific medicines or medical treatments. • News and current affairs programmes may not be sponsored.

21. Electronic Commerce Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce‘) Official Journal L 178 , 17/07/2000 P. 0001 - 0016

22. Electronic Commerce Article 1 Objective and scope • This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. 2. This Directive approximates, […] certain national provisions […] relating to […] commercial communications, electronic contracts, the liability of intermediaries […] dispute settlements, court actions and cooperation between Member States.

23. Electronic Commerce Article 6 […] commercial communications which are part of […] an information society service comply at least with the following conditions: • commercial communication […] clearly identifiable as such; • the natural or legal person on whose behalf the commercial communication is made […] clearly identifiable; • promotional offers […] clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously; (d) promotional competitions or games […] presented clearly and unambiguously.

24. Advertising of foodstuffs Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs Official Journal L 109 , 06/05/2000 P. 0029 - 0042

25. Advertising of foodstuffs Article 1 This Directive concerns the labelling of foodstuffs to be delivered as such to the ultimate consumer and certain aspects relating to the presentation and advertising thereof.

26. Advertising of foodstuffs Article 2 • The labelling and advertising must not: • be such as to mislead the purchaserparticularly: (i) as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production; (ii) by attributing to the foodstuff effects or properties which it does not possess; […] (b) […] attribute to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties.

27. Advertising of foodstuffs Article 2 2. The Council, […] shall draw up a non-exhaustive list of the claims within the meaning of paragraph 1, the use of which must at all events be prohibited or restricted.

28. Advertising on medicinal products Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use Official Journal L 311 , 28/11/2001 P. 0067 - 0128

29. Advertising on medicinal products Article 2 The provisions of this Directive shall apply to industrially produced medicinal products for human use intended to be placed on the market in Member States.

30. Advertising on medicinal products Articles 87 and 88 Member States shallprohibit the advertising to the general public of medicinal products which, inter alia: • are available on medical prescription only - contain psychotropic or narcotic substances • a marketing authorization has not been granted in accordance with Community law

31. Advertising on medicinal products Article 89 [For medicines available without medical prescription] all advertising to the general public of a medicinal product shall: be set out in such a way that it is clear that the message is an advertisement and that the product is clearly identified as a medicinal product; (b) include[…]: - the information necessary for correct use of the medicinal product, - an express, legible invitation to read carefully the instructions on the package leaflet or on the outer packaging, as the case may be.

32. Article 90 The advertising of a medicinal product to the general public shall not contain any material which: (a) gives the impression that a medical consultation […] is unnecessary, in particular by offering a diagnosis or by suggesting treatment by mail; (b) suggests that the effects of taking the medicine are guaranteed, are unaccompanied by adverse reactions or are better than, or equivalent to, those of another treatment or medicinal product; […] (d) suggests that the health of the subject could be affected by not taking the medicine; this prohibition shall not apply to the vaccination campaigns […]; (e) is directed exclusively or principally at children; (f) refers to a recommendation by scientists, health professionals or persons […] who, because of their celebrity, could encourage the consumption of medicinal products; […] (j) refers, in improper, alarming or misleading terms, to claims of recovery; (k) uses, in improper, alarming or misleading terms, pictorial representations of changes in the human body caused by disease or injury, or of the action of a medicinal product on the human body or parts thereof; (l) mentions that the medicinal product has been granted a marketing authorization.

33. Advertising on tobacco Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products Official Journal L 152 , 20/06/2003 P. 0016 - 0019

34. Advertising on tobacco Article 1 Subject-matter and scope 1. The objective of this Directive is to approximate the laws, […] of the Member States relating to the advertising of tobacco products: (a) in the press and other printed publications; (b) in radio broadcasting; (c) in information society services; and (d) through tobacco related sponsorship, including the free distribution of tobacco products.

35. Advertising on tobacco Article 3 • Advertising in in the press and other printed publications shall be prohibited • Exception: Advertising intended exclusively for professionals in the tobacco trade

36. Advertising on tobacco Article 4 • All forms of radio advertising for tobacco products shall be prohibited. • Sponsorship of radio programmes shall be prohibited.

37. Article 5 • Sponsorship of events • Sponsorship of events or activities involving or taking place in several Member States or otherwise having cross-border effects shall be prohibited. • 2. Any free distribution of tobacco products in the context of the sponsorship of the events […] shall be prohibited.

38. The end