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European Advertising European Advertising Law Law An overview An overview Madalena Veiga Madalena Veiga

European Advertising Law

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European Advertising Law. An overview Madalena Veiga. 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 - PowerPoint PPT Presentation

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Page 1: European Advertising Law

European Advertising LawEuropean Advertising Law

An overviewAn overview

Madalena VeigaMadalena Veiga

Page 2: European Advertising Law

Why European Law on Why European Law on Advertising?Advertising?

FREE MOVEMENT OF GOODS: FREE MOVEMENT OF GOODS: Article 28, and 29 TECArticle 28, and 29 TEC– prohibition of quantitative restrictions between Member States prohibition of quantitative restrictions between Member States

and all measures having equivalent effectand all measures having equivalent effect

FREE MOVEMENT OF SERVICES FREE MOVEMENT OF SERVICES Article 49 TECArticle 49 TEC- prohibition of prohibition of restrictions on freedom to provide services restrictions on freedom to provide services

within the Community within the Community

RIGHT OF ESTABLISHMENT RIGHT OF ESTABLISHMENT Article 43 TECArticle 43 TEC- prohibition of restrictions on the freedom of establishment of prohibition of restrictions on the freedom of establishment of

nationals of a Member State in the territory of another Member nationals of a Member State in the territory of another Member StateState

Page 3: European Advertising Law

Internal MarketInternal Market

Article 95 TECArticle 95 TEC

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

Page 4: European Advertising Law

Consumer ProtectionConsumer Protection

Article 152 TECArticle 152 TEC

1.   In order to promote the interests of consumers and to 1.   In order to promote the interests of consumers and to ensure a ensure a high level of consumer protectionhigh level of consumer protection, the , the Community shall contribute to protecting the health, Community shall contribute to protecting the health, safety and economic interests of consumers, as well as safety and economic interests of consumers, as well as to promoting their right to information, education and to to promoting their right to information, education and to organise themselves in order to safeguard their interests.organise themselves in order to safeguard their interests.

2.   Consumer protection requirements 2.   Consumer protection requirements shall be taken into shall be taken into account in defining and implementing other account in defining and implementing other Community policiesCommunity policies and activities. and activities.

Page 5: European Advertising Law

Community ActsCommunity Acts

Article 249 TECArticle 249 TEC

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

Page 6: European Advertising Law

Overview of Community LegislationOverview of Community Legislation

Horizontal Horizontal – Misleading advertising / Comparative Misleading advertising / Comparative

advertisingadvertising

Sector basedSector based– Television advertisingTelevision advertising– Electronic commerceElectronic commerce

Page 7: European Advertising Law

Overview of Community LegislationOverview of Community Legislation

Specific productsSpecific products– TobaccoTobacco– Medicinal products Medicinal products – FoodstuffsFoodstuffs

Incidentally Incidentally – Alcoholic beverages, cosmetics, consumer Alcoholic beverages, cosmetics, consumer

credit…. etccredit…. etc

Page 8: European Advertising Law

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

Page 9: European Advertising Law

Misleading advertisingMisleading 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;

Page 10: European Advertising Law

Misleading advertisingMisleading advertising

Article 4

1. Member States shall ensure that adequate and effective means exist for the control of 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 […]

Page 11: European Advertising Law

Misleading advertisingMisleading 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.

Page 12: European Advertising Law

Misleading advertisingMisleading 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)

Page 13: European Advertising Law

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

Page 14: European Advertising Law

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

Page 15: European Advertising Law

Comparative advertisingArticle 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;

Page 16: European Advertising Law

Television AdvertisingTelevision Advertising

Directive 97/36/EC of the European Directive 97/36/EC of the European Parliament and of the Council of 30 June Parliament and of the Council of 30 June

1997 amending Council Directive 89/552/EEC 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid on the coordination of certain provisions laid

down by law, regulation or administrative down by law, regulation or administrative action in Member States concerning the action in Member States concerning the

pursuit of television broadcasting activities pursuit of television broadcasting activities

((The "The "Television Without FrontiersTelevision Without Frontiers" directive)" directive)

Official Journal L 202 , 30/07/1997 P. 0060 - 0070Official Journal L 202 , 30/07/1997 P. 0060 - 0070

Page 17: European Advertising Law

Television AdvertisingTelevision Advertising

Articles 10 and 11Articles 10 and 11

Advertising must be Advertising must be recognisablerecognisable, separated by , separated by acoustic and visual means.acoustic and visual means.

Subliminal techniques and surreptitious Subliminal techniques and surreptitious advertising are prohibited.advertising are prohibited.

Length and number of interruptions permitted for Length and number of interruptions permitted for advertisingadvertising

Page 18: European Advertising Law

Television AdvertisingTelevision Advertising

No discrimination (Article 12)No discrimination (Article 12)

Advertising shall not include any discrimination, or be Advertising shall not include any discrimination, or be offensive to religious or political beliefs.offensive to religious or political beliefs.

Protection of minors (Article 16)Protection of minors (Article 16)

Advertising shall not cause moral or physical detriment Advertising shall not cause moral or physical detriment to to minorsminors. .

It shall not directly exhort minors to buy a product or a It shall not directly exhort minors to buy a product or a service “by exploiting their inexperience or credulity”.service “by exploiting their inexperience or credulity”.

Page 19: European Advertising Law

Television AdvertisingTelevision Advertising

Tobacco, medicine, alcohol (Articles 13, 14 and 15)Tobacco, medicine, alcohol (Articles 13, 14 and 15)

No advertising for:No advertising for:tobacco tobacco medicines only available on prescription. medicines only available on prescription.

Restrictions on:Restrictions on: Alcohol advertisements Alcohol advertisements

shall not be aimed specifically at minors, shall not be aimed specifically at minors, consumption of alcohol not to be linked to enhanced physical consumption of alcohol not to be linked to enhanced physical

performance or social success performance or social success shall not claim that it is a stimulant, a sedative or a means of shall not claim that it is a stimulant, a sedative or a means of

resolving personal conflicts.resolving personal conflicts.

Page 20: European Advertising Law

Television advertisingTelevision advertising

Sponsorship (Article 17)Sponsorship (Article 17)

Sponsors shall not influence the content nor the Sponsors shall not influence the content nor the scheduling of the programme. They must be clearly scheduling of the programme. They must be clearly identified and shall not encourage the purchase of a identified and shall not encourage the purchase of a product or service.product or service.

Pharmaceutical companies shall not be able to promote Pharmaceutical companies shall not be able to promote specific medicines or medical treatments.specific medicines or medical treatments.

News and current affairs programmes may not be News and current affairs programmes may not be sponsored.sponsored.

Page 21: European Advertising Law

Electronic CommerceElectronic Commerce

Directive 2000/31/EC of the European Directive 2000/31/EC of the European Parliament and of the Council of 8 June Parliament and of the Council of 8 June

2000 on certain legal aspects of 2000 on certain legal aspects of information society services, in information society services, in

particular electronic commerce, in the particular electronic commerce, in the Internal Market Internal Market

('Directive on electronic commerce‘) ('Directive on electronic commerce‘)

Official Journal L 178 , 17/07/2000 P. 0001 - 0016Official Journal L 178 , 17/07/2000 P. 0001 - 0016

Page 22: European Advertising Law

Electronic CommerceElectronic Commerce

Article 1Article 1Objective and scopeObjective and scope

1.1. This Directive seeks to contribute to the proper This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free functioning of the internal market by ensuring the free movement of information society services between the movement of information society services between the Member States.Member States.

2. This Directive approximates, […] certain national 2. This Directive approximates, […] certain national provisions […] relating to […] commercial provisions […] relating to […] commercial communications, electronic contracts, the liability of communications, electronic contracts, the liability of intermediaries […] dispute settlements, court actions intermediaries […] dispute settlements, court actions and cooperation between Member States.and cooperation between Member States.

Page 23: European Advertising Law

Electronic CommerceElectronic Commerce

Article 6 Article 6 […] commercial communications which are part of […] an information […] commercial communications which are part of […] an information

society service comply society service comply at leastat least with the following conditions: with the following conditions:

(a)(a) commercial communication […] commercial communication […] clearly identifiableclearly identifiable as such; as such;

(b)(b) the natural or legal person on whose behalf the commercial the natural or legal person on whose behalf the commercial communication is made […] clearly identifiable;communication is made […] clearly identifiable;

(c)(c) promotional offers […] clearly identifiable as such, and the promotional offers […] clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguouslyaccessible and be presented clearly and unambiguously;;

(d) (d) promotional competitions or games […] presented clearly and promotional competitions or games […] presented clearly and unambiguously.unambiguously.

Page 24: European Advertising Law

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

Page 25: European Advertising Law

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.

Page 26: European Advertising Law

Advertising of foodstuffsArticle 2

1. The labelling and advertising must not:

(a) be such as to mislead the purchaser particularly:

(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.

Page 27: European Advertising Law

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.

Page 28: European Advertising Law

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

Page 29: European Advertising Law

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.

Page 30: European Advertising Law

Advertising on medicinal products

Articles 87 and 88

Member States shall prohibit 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

Page 31: European Advertising Law

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.

Page 32: European Advertising Law

Article 90The 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.

Page 33: European Advertising Law

Advertising on 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

Page 34: European Advertising Law

Advertising on 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.

Page 35: European Advertising Law

Advertising on 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

Page 36: European Advertising Law

Advertising on Advertising on tobacco

Article 4

All forms of radio advertising for tobacco products shall be prohibited.

Sponsorship of radio programmes shall be prohibited.

Page 37: European Advertising Law

Article 5

Sponsorship of events

1.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.

Page 38: European Advertising Law

The endThe end