Marketinglaw Update | May 2020

Written on 15 May 2020

Hello and welcome to the latest edition of Marketinglaw.

We hope you are all keeping well at this difficult time.

What's inside

This month's bumper edition includes: updates and activities by regulators in relation to Covid-19; prize promotion updates in relation to house raffles; and changes for Italian prize promotions post-Brexit; cookies. We also look at the Advertising Standards Authority's rulings on milk, as well as on top parity and superlative claims, green claims and the objectification of women. And, as always, there's more guidance on influencers, including a move to regulate child influencers in France.

This month's reminder

An honourable mention goes to the Platforms-for-Business Regulation, which will apply from 12 July 2020, but is not strictly speaking a piece of advertising, marketing or consumer law. The Regulation aims to promote fairness and transparency for business users of online intermediation services (for example, search engines, app stores, online marketplaces and certain services on social media) in order to remedy a perceived imbalance in the relationship between online marketplaces and the traders. The Regulation presents an array of difficult considerations for digital businesses with advertising at their core and online intermediation service providers will need to implement a raft of changes to comply with the Regulation. Please do get in touch if you need any help in relation to this.

Event update

Unfortunately, our "Adland transformation: the next wave of digital disruption in marketing" event was cancelled last month due to the current circumstances. We will be rescheduling the event later in the year. If you need any help navigating the legal issues arising from Covid-19, you may find our new Covid-19 Insights page useful.

As always, please do not hesitate to get in touch if you have any queries.

Kind regards

Latest news

IAB upgrades the Transparency & Consent Framework: IAB Europe has announced that, after 12 months of hard work in collaboration with IAB Tech Lab, the new version of the Transparency and Consent Framework will be available for users in April 2020. Claire Bouchenard and Grégoire Dumas report.
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CNIL investigations and controls program for 2020: On March 12, the CNIL published its inspection strategy for 2020 and has identified cookies and others tracking devices as one of the three strategic focuses to guide its actions until the end of 2020. Claire Bouchenard and Albane de Rouville report.
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Towards the regulation of kid influencers’ content: France looks to protect is child influencers through legislation affecting parents, brands and video sharing platforms. Claire Bouchenard, Marie-Laure Pidoux and Alix Taverne report on the first draft.
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France legislates to ensure that healthcare brands are required to disclose links with influencers: A new Decree extends the public declaration of links of interest for companies marketing health products to influencers. Claire Bouchenard, Thomas Devred and Lucie Champetier report.
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Illicit nature of a live and on-site poker game despite the possibility of registering for free: The French Supreme Court has ruled on the illicit nature of a live and on-site poker game despite the possibility of free registration and the independence of the rules governing gambling from the rules on unfair commercial practices.
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Advertising and Covid-19: the reminders of the French advertising regulator: The ARPP has issued a strong reminder that communication must remain first and foremost responsible and must under no circumstances take advantage of the current Covid-19 health crisis through misleading advertising.
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French Anti-Waste Law provides for new marketing rules: A new environmental protection law aimed at accelerating the change of production and consumption habits has been adopted in France. Some of its provisions affect B2C marketing rules and include the creation of a new misleading legal practice definition and the introduction of new regulations on environmental claims and paper advertisements.
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Prize competitions addressed to Italy: Post-Brexit scenarios for UK promoters: UK prize promotion promoters targeting Italy will have to comply with onerous Italian laws following the end of the transition period unless this is addressed during Brexit negotiations. Why and what might this entail? Gea Condorelli and Gianluigi Marino report.
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Could your express top-parity claim be interpreted as a superlative claim?: The ASA has ruled that an express top clarity claim may sometimes be interpreted as a superlative claim, depending on its presentation and context. Rebecca Chui reports.
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'Win a House' competitions may be unlawful lotteries: The ASA has found various "win a house" prize draws in breach for changing their closing dates, or other terms and conditions, withholding the prize which was advertised, or offering a significantly lower value prize instead. Thomas Stables reports.
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Green claim turns sour – ASA rules on low emission airline claim: The ASA investigated and ruled against Ryanair in relation to its "Lowest Emissions Airline" claims. Jennifer Tur reports.
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ASA bans Instagram holiday give-away posts by Inside Lifestyle & Jack Fincham: Prize promoters beware: Inside Lifestyle ruling highlights that even Instagram adverts must ensure participants have all the information they need. Lucy Price reports.
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Guidance for the misguided: objectification of women: The ASA rules on two Missguided ads and provides some useful insight into the ASA's approach on the objectification of women in fashion advertising. Chloe Deng reports.
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The ICO offers both the cookie and the stick in latest adtech blog: The ICO has published its latest blog in its ongoing mission to reform the Adtech and real time bidding industry. John Jackson reports.
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Misleading advertising for electric cars: The ACC ruled Opel's advertising to be misleading, due to a lack of sufficient information on the actual energy usage of its electric car.
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How clear is your influence?: CAP and CMA publish updates to content-labelling guidance for influencers and affiliate marketers.
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Mattress ad featuring Union Jacks and face masks banned: The ASA ruled against Vic Smith Beds Limited for causing serious and/or widespread offence on the grounds of nationality or race. T Balamurali reports.
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Champneys crumbles in the face of criminal charges brought by Trading Standards: Champneys accepts criminal liability for a range of unlawful claims made in their restaurants.
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One should be wary before including the Royal Family in advertising: The ASA has set out guidance on the key "dos" and "don’ts" when referring to the Royal Family in ads. Emma Finlayson reports.
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ASA releases guidance on avoiding Covid-19 scams: The ASA have released guidance reminding consumers to be extra cautious of potential scams, both online and offline, in relation to misinformation surrounding coronavirus. Verity Raeside reports.
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Amazon wins trade mark infringement case in landmark ruling: The EU’s top court have ruled in favour of e-commerce giant Amazon in a landmark case for trademark infringement. Verity Raeside reports.
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Advertising of Dutch State Lottery turns out to be misleading: The Dutch Advertising Code Committee (the RCC) ruled that an advertisement of the Dutch State Lottery qualified as misleading by creating the impression that participants had a high odds of winning State Lottery tickets. What happened? Romy van Limpt and Kevin van 't Klooster report.
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Complaints about Vape Nation's e-cig adverts go up in smoke: The ASA has concluded that Vape Nation's e-cig adverts on buses used by school children did not directly target people under the age of 18. Steven Doherty reports.
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Focus on Direct Marketing for the Belgian DPA: The Belgian DPA adopted guidelines on the processing of personal data in the context of direct advertising. Louis Hoffreumon gives an overview.
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Fundraising during the Covid-19 emergency: The Italian Competition Authority adopts interim measures against GoFundMe.com: During coronavirus emergency, the ICA has adopted interim measures against the www.gofundme.com platform which manages fundraising campaigns due to the lack of transparency in the mechanism for the donations and the delivery of misleading claims like “free of charge” and “without any costs”.
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Is it milk, or is it not milk?: The ASA has decided that an ad for dairy milk which claims that "it's not milk", is not misleading.
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