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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
There is no general legal provision under Belgian law regulating harmful and offensive advertising, apart from the general rules on tort (Articles 1382 to 1386bis of the Civil Code) and the rules on unfair practices prohibiting certain practices like trade defamation (see below under Q2).
However, there are a few specific legal provisions prohibiting certain advertising content, such as:
- Article 409 of the Criminal Code, which prohibits and punishes any advertising for the mutilation of female genitalia;
- Article 437/39 of the Criminal Code, which prohibits and punishes any advertising for debauchery and prostitution of minors;
- Article 433quater/2 of the Criminal Code, which prohibits and punishes any advertising for adult’s prostitution, except online and offline advertising done by an adult for his/her own prostitution’s services, and advertising done by the provider of an online platform specifically intended for prostitution, in certain circumstances;
- Article 443 of the Criminal code, which prohibits slander and libel;
- Act of 6 April 1847, which prohibits and punishes offences against the King or members of the royal family.
In addition, the ICC Advertising and Marketing Communications Code stipulates that all advertising should be decent, honest and truthful (Article 1) and prohibits harmful and offensive advertising in a broad manner.
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
General and specific rules on misleading and aggressive commercial practices in a B2C and B2B relationship can be found in Book VI of the CEL; they transpose EU Directive No 2006/114/EC on misleading and comparative advertising and EU Directive No 2005/29/EC on unfair commercial practices in a B2C context into Belgian law.
In a B2C context, a commercial practice towards consumers is considered unfair when it :
a) violates the requirements of professional diligence
and
b) materially distorts or is likely to materially distort the economic behaviour of the average consumer it reaches or is aimed at or, if it is aimed at a particular group of consumers, the economic behaviour of the average member of that group, in relation to the underlying product.
(article VI.93 CEL)
In a B2B context, a commercial practice towards other companies is considered unfair when it is contrary to fair commercial practices and, as such, harms or may harm the professional interests of one or more other businesses. (article VI.104 CEL)
More generally, commercial practices are considered unfair when they are misleading or aggressive.
B2C
Misleading practices (article VI.97 – VI.100 CEL)
Black list
Article VI.100 CEL contains a so-called “black list” of commercial practices which are considered misleading under all circumstances, without the possibility of rebutting the unfairness presumption. This list comprises, by means of example, following practices:
- falsely claim to have signed a code of conduct when this is not the case (1°);
- claim or otherwise give the impression that a product can be legally sold when it is not the case (9°);
- promoting a product similar to one made by a particular manufacturer in such a way as deliberately to give the consumer the false impression that the product was indeed made by that manufacturer when it was not (13°)
- falsely claim that a product can cure diseases, defects or malformations (17°).
Under the Belgian transposition of EU Directive 2019/216 on the better enforcement and modernisation of Union consumer protection rules (the Omnibus Directive), which entered into force on 28 May 2022, the following practices have been added to the “black list”:
- providing search results in response to a consumer’s online search without clearly disclosing that it is a paid advertisement or a payment was made specifically to obtain a higher ranking for products (24°);
- claiming that product reviews have been submitted by consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that these reviews are from such consumers( 25°);
- posting or directing another legal or natural person to post false consumer reviews or recommendations or misleadingly presenting consumer reviews or recommendations on social media in order to promote products (26°);
- reselling tickets to consumers if the company obtained them by using electronic means to circumvent any set limits on the number of tickets a person may purchase or other rules applicable to the purchase of tickets (27°).
Grey list
Articles VI.97-VI.99 CEL comprise the so-called “grey list” of misleading commercial practices in a B2C context.
Pursuant to Article VI.97 CEL, practices are considered misleading if they contain false or untruthful information or, even if the information is factually correct, deceive or are likely to deceive the average consumer in any way, including by their general presentation, in respect of one or more specified elements, and in either case cause, or are likely to cause, the average consumer to take a transactional decision that he would not have taken otherwise.. These “specified elements” are listed further in Article VI.97 CEL:
- the existence or the nature of the product (VI.97, 1°);
- the main characteristics of the product, such as availability, benefits, risks, performance composition, accessories, customer service and complaint handling, process and date of manufacture or operation, delivery, fitness for purpose, uses, quantity, specification geographical or commercial origin, results to be expected from its use, or the results and essential characteristics of tests or checks carried out on the product (VI.97, 2°);
- the price or the way the price is calculated, or the existence of a specific price advantage (VI.97, 4°).
Article VI.98 CEL adds two practices which are considered misleading if they cause cause, or are likely to cause, the average consumer to take a transactional decision that he would not have taken otherwise:
- marketing a product, including through comparative advertising, in such a way as to create confusion with a competitor’s products, trademarks, trade names and other distinctive features (VI.98, 1°);
- non-compliance by the company with obligations contained in a code of conduct to which it has committed itself, insofar as
- it is not a statement of intent but an obligation that is verifiable; and
- the company indicates in the context of the commercial practice that it is bound by the code of conduct (VI.98, 2°).
Article VI.99 CEL specifies that a misleading commercial practice may also exist when confronted with a commercial practice which, in its factual context, taking into account all its features and circumstances and the limitations of the communication medium, omits material information which the average consumer needs, according to the context, to make an informed transactional decision and which cause, or are likely to cause, the average consumer to take a transactional decision that he would not have taken otherwise. These practices are called misleading omissions.
Aggressive practices (article VI.101 – VI.103 CEL)
A commercial practice is considered aggressive towards consumers (art. VI.101 CEL)
“if, in its factual context, taking into account all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a decision on a transaction that he would not otherwise have taken.”
Further, in article VI.102 CEL, more criteria for assessing whether there has been harassment, coercion, including the use of physical force, or undue influence, are listed. Aspects to be taken into account include:
- the time, place, nature and persistence of the commercial practice (1°);
- the use of threatening or abusive language or behaviour (2°);
- the deliberate exploitation by the undertaking of certain misfortunes or circumstances so serious as to impair the consumer’s judgement, with a view to influencing the consumer’s decision with regard to the product (3°);
- non-contractual barriers imposed by the company, entailing costs or excessive non-contractual barriers in respect of rights that the consumer wishes to exercise under the contract, including the right to terminate the contract or to choose another product or another company (4°);
- threatening with measures that cannot legally be taken (5°).
Black list
A black list of practices always considered aggressive, can be found in article VI.103 CEL, and includes a.o.
- giving the impression that the consumer may not leave the premises until a contract has been drawn up (1°);
- directly encouraging children in advertising to buy advertised products or to persuade their parents or other adults to buy those products for them (5°);
- explicitly informing the consumer that if he does not buy the product, the job of the person in question or the livelihood of the company will be at risk (7°).
B2B
In the B2B context similar rules on misleading and aggressive commercial practices apply.
By way of a general rule, article VI.104 provides that “any act contrary to fair commercial practices by which a business harms or may harm the professional interests of one or more other businesses [is prohibited]”.
A commercial practice is unfair, and thus prohibited, when it is misleading (article VI.105-VI.109 CEL) or aggressive (article VI.109/1-VI.109/3 CEL). Trade defamation, which consists of a harmful attack damaging the reputation of a trader or his products, services or activities, is also considered an unfair and therefore prohibited commercial practice.
There are also specific rules on unfair commercial practices between companies in the agricultural and food supply chain (article VI.109/4-VI.109/8 CEL).
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
a. Alcohol
There is no general prohibition for advertising products containing alcohol. However, the Act of 24 January 1977 on the protection of consumers’ health with regard to foodstuffs and other products provides that the King (through a Royal Decree, which equals an executive order from the government) can regulate or prohibit the advertising for alcohol and alcoholic beverages (Article 7.2). In addition, agreements signed between associations can be approved by Royal Decree if their purpose is to encourage reasonable consumption of alcoholic beverages (Article 7bis).
In 2019, several sector federations and associations signed a Covenant on the Advertising and Marketing of Alcoholic Beverages (Link in FR and in DUT). According to Article 2 of this Covenant, advertising for alcoholic beverages cannot target minors, either in terms of content or method of communication, nor take place in social institutions, health institutions and workplaces, with the exception of catering establishments.
With regard to the content of the advertising, it cannot encourage reckless, exaggerated or illegal consumption, associate the consumption of alcoholic beverages with favourable psychological and physical effects that make it possible to combat certain physical, psychological or social problems or to reduce or even eliminate anxiety or social or psychological conflicts. Advertising may not highlight the stimulating, euphoric, sedative, curative or tranquilising effects of alcoholic beverages, nor imply that they can improve mental or physical performance. In addition, advertising cannot associate alcohol consumption with social or sexual success, nor denigrate another drink or contain criticism of abstinence, sobriety or moderate consumption. Advertising may not suggest that alcoholic beverages are necessary to make everyday life happier or to create a festive atmosphere.
Beer advertisements published in newspapers or magazines, on billboards, online, or broadcast on television, on the radio or in movie theatres, must include the message “Our craftsmanship is to be consumed with care.” (“Ons vakmanschap drink je met verstand” / “Notre savoir-faire se déguste avec Sagesse”).
Article 4 of the Covenant also lists different prohibitions linked to advertising towards minors.
b. Tobacco and related products, such as vapes and nicotine pouches
The Act of 24 January 1977 on the protection of consumers’ health with regard to foodstuffs and other products imposes a general ban on advertising of tobacco products to prevent smoking in the interest of public health.
Advertising for and sponsorship of tobacco and similar products are prohibited in Belgium (see Article 7.2bis of the Act of 24 January 1977). It is also forbidden to use a brand which owes its reputation mainly to tobacco products, for advertising purposes in other areas.
There are exceptions to the general prohibition to advertise tobacco products. One exception relates to advertising for tobacco products in foreign newspapers and periodicals imported in Belgium, unless the advertising mainly intends to promote tobacco products on the Belgian market. Another exception allows incidental advertising in the context of a communication to the public of an event taking place abroad. The display of brand names of tobacco products inside or in front of tobacco shops and in printed publications exclusively for the tobacco trade is also permitted.
c. Medicines, medical devices and surgical or medical procedures
A. Medicines
The Act of 25 March 1964 on medicines for human use contains specific provisions on advertising in articles 9 and 10. Further provisions can be found in the Royal Decree of 7 April 1995 on information and advertising of medicines for human use. The regime for advertising for medicines is a transposition of EU Directive 2001/83/EC on the Community code relating to medicinal products for human use (articles 86-100).
Medicine advertising rules differ depending on whether the advertising is aimed at the general public or at healthcare professionals, especially those authorised to prescribe or dispense medicines. In addition, a distinction is also made depending on whether the medicine is to be sold on prescription or not.
Nevertheless, there are some general principles: all medicine advertising must be accurate, recent and verifiable, and promote the rational use of the drug. Medicine advertising can never contradict the summary of product characteristics. Any advertising relating to a medicine which has not been registered or authorised, or which has been suspended or prohibited, is forbidden. Certain means of advertising are furthermore prohibited (article 5 Royal Decree of 7 April 1995): advertising by means of airplanes, billboards, telephone, SMS, fax, email, mailing, children’s magazines, leaflets, contests, software programs, etc.
Medicine advertising to the general public is only allowed with regard to over-the-counter (OTC, or non-prescription) medicines. As soon as medicine advertising is aimed at the general public, additional conditions apply (article 7 Royal Decree of 7 April 1995). Advertising to the public is prohibited for medicines containing psychotropic substances or narcotics within the meaning of the relevant international conventions. Furthermore, informational obligations must be fulfilled prior to advertising OTC medicines to the general public (article 16-17 Royal Decree of 7 April 1995): if the advertising is broadcast on radio and/or television prior approval must be obtained from the Ministry of Health (who must decide within 45 days). All other forms of advertising to the general public require prior notification to the Ministry of Health (30 days in advance).
Advertising aimed at healthcare professionals is subject to less strict conditions, in the sense that both prescription and non-prescription medicines may be advertised to these persons. However, additional conditions still apply (Article 9 Royal Decree of 7 April 1995).
B. Medical devices
Article 9, §4 of the Act of 25 March 1964 specifically relates to advertising for medical devices:
“It is prohibited for any natural or legal person to advertise implantable medical devices intended for the public. It is also prohibited to advertise acts consisting of placing or implanting these devices. For the purposes of this paragraph, “implantable medical device” means a device referred to in Article 2(5) of Regulation (EU) 2017/745.
In order to protect public health, the King [the government by Royal Decree] may extend the prohibition on advertising referred to in the first paragraph to medical devices other than implantable medical devices. To this end, the King shall obtain the prior opinion of the FAGG1 regarding the risk that a medical device poses to public health.”
Thus far, no such Royal Decree as foreseen in the second paragraph has been adopted so that the prohibition of advertising medical devices is limited to implantable medical devices.
A medical device which contains an ancillary medicinal substance to support the proper functioning of the device falls under the medical devices legislation and must be CE marked.
C. Surgical or medical procedures
The Act of 23 May 2013 regulates the qualifications required to perform procedures of non-surgical aesthetic medicine and aesthetic surgery, and the advertising and information regarding those procedures. Tattoos, piercings and epilating techniques are not covered by the scope of this Act.
Any natural or legal person is prohibited from distributing advertisements for procedures covered by this Act. Distributing practical information relating to these procedures is however permitted subject to the conditions of truthfulness, objectiveness, relevance, verifiability, discretion, and clarity. The information may not mislead, compare or use financial arguments, and shall always state the special professional titles held by the healthcare professional in question.
d. High fat, salt and sugar foods
Both in the French speaking and the Dutch speaking parts of Belgium, advertising towards children cannot encourage excessive use of food products and beverages containing high fat, salt or sugar, regular consumption of which is not recommended for good health (see Article 77 of the Flemish Decree of 27 March 2009 on Radio and Television Broadcasting and Article 5.2-3 of the Decree of the French-speaking Community of 4 February 2021 on audio-visual media services and video sharing services).
Except for advertising towards children, there is no specific regulation applicable to advertising for high fat, salt and sugar foods. However, the advertising sector has adopted a self-regulation code. According to the new Food Advertising Code (which entered into force on 1st June 2023), advertising for high fat, salt and sugar food is never authorised when done towards children under 13 years old.
e. Gaming and gambling services
Specific rules apply to advertising of games of chances and betting which can be found in the Royal Decree of 27 February 2023:
– Such advertising can only relate to games of chance authorised under the Gaming Act of 7 May 1999 (Article 13);
– Personalised advertising is prohibited (Article 16);
– The advertising must indicate the minimum age required for participating to the games of chance (Article 19);
– Advertising must contain a prevention message (Article 20);
– Advertising cannot contain the following elements :
- Any unfounded statements about the winnings that players can expect to win;
- Any message encouraging irresponsible and abusive gambling;
- Any suggestion that winning depends on the player’s knowledge of the game or skills;
- Any message praising people who play or criticising people who do not play;
- Any message putting pressure on a person if he/her does not wish to take part in the game;
- Any suggestion that gambling is an alternative to working or saving, a way of getting rich quickly or a solution to financial problems;
- Any message establishing a link between gambling and social, financial or sexual success;
- Any message depicting situations where people play a game of chance or a bet and, at the same time, consume alcoholic products or tobacco;
- Any message promoting or associating the advertising with advertising for loans offers that can be obtained for the purpose of gambling;
- Any design or marketing techniques that refer to characters, images or expressions that are popular or fashionable among the people who are part of a socially vulnerable group (Article 18).
f. Adult and sex-related services
Advertising for adult and sex-related services is in principle prohibited in Belgium and criminally sanctioned. However, there are three exceptions to this prohibition with regard to adult’s prostitution (Article 433quater/2 of the Belgian Criminal Code).
The first two exceptions relate to the advertising done by the adult who advertises his or her own sexual services, either behind a shop window in a place specifically intended for prostitution or on a website or any other medium specifically intended for that purpose.
The third exception applies to provider of internet platform or other medium specifically intended for prostitution purpose. The provider has to take measures to protect the sex worker and to prevent the abuse of prostitution and human trafficking by immediately reporting any cases of abuse of exploitation to the police or judicial authority.
It should be noted that advertising for debauchery and prostitution of minors is punishable, without any exceptions (see Article 437/39 of the Belgian Criminal Code).
Under the Royal Decree of 9 February 2011 setting an Ethical Code for Telecommunication, sexual language or images can only be used in advertising through paying services via electronic communication networks if these services aimed at adults (Article 7(6)(b)). This Decree also prohibits the use of fee-based numbers to offer or facilitate sexual services (Article 8).
Footnotes:
1 The FAGG is the “Federal Agency for Medicines and Health Products” / “Agence fédérale des Médicaments et des Produits de Santé” / “Federaal Agentschap voor Geneesmiddelen en Gezondheidsproducten”. In Belgium, this Agency is is responsible for the approval and registration of new medication in Belgium and for pharmacovigilance. -
Do any specific rules apply to advertising featuring prices?
If prices are featured in advertising directed at consumers, Article VI.6 CEL prescribes specific rules for the presentation of those prices:
- the indicated price must be the total price to be paid by the consumer, including value added tax, all other taxes and the cost of all services which the consumer is obliged to pay in addition (Article VI.4 CEL).
- prices for consumers are indicated at least in EURO (Article VI.5 CEL).
Additionally, if product prices are featured in advertising, these advertisements must also indicate the price per unit of measurement (unless these coincide with the product price) (Article 8 of the Royal Decree of 30 June 1996 on the indication of prices of products and services and the order form)
In certain sectors, additional rules in terms of price indication must be taken into account when advertising (Article VI.7, 1° CEL):
- The Royal Decree of 7 December 2016 on price indication in the hospitality sector; and,
- The Royal Decree of 11 July 2003 containing specific rules on price indication in the travel sector.
When selling or advertising works of art, collectors’ items or antiques, whose price exceeds EUR 1500, the seller who window-displays these products is exempt from the obligation to indicate the price prominently (Royal Decree of 23 January 1984 on the indication of the price of works of art, collectors’ items and antiques). The same applies to sellers of jewellery, watches, gold and silverware, when their price exceeds EUR 870 (Royal Decree of 18 July 1972 on the indication of the price of jewellery, watches, gold and silverware).
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
Currently, there are no specific rules or restrictions concerning the use of testimonials and endorsements in advertising. Of course, the general rules concerning advertising must be taken into consideration. In particular the commercial character of testimonials and endorsements must be clearly recognizable and the content may not be misleading as to its commercial character.
However, and related to testimonials and endorsements, the CEL provides for rules on misleading or fake reviews. Article VI.100, 24°-26° CEL provides that the following practices are prohibited under all circumstances:
- 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.
- 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.
- 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.
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Do any specific rules apply to environmental or “green” advertising claims?
There is currently no specific legal framework at Belgian level that regulates greenwashing in advertising. Environmental claims are commercial practices regulated by the general rules on misleading advertisements in Book VI of the CEL (articles VI.93 to VI.100 CEL) and by sector-specific Belgian or European legislation or standards .
The misleading nature of an environmental claim under Book VI of the CEL claim must be assessed on a case-by-case basis, depending on its impact on the decision of the average consumer. The 2021 general guidelines on best practices for environmental claims, from which Belgian courts are free to deviate, contain examples of best practices, in particular regarding the vocabulary used, the information to be provided, the proportionality, the general presentation, the relevance and the burden of proof.
In practice, the fight against greenwashing in Belgium is mainly conducted before the JEP, the independent self-regulatory body of the Belgian advertising industry. The JEP applies soft law that contains a specific response to greenwashing issues, i.e. the International Chamber of Commerce Advertising and Marketing Communications Code and the Code of Environmental Advertising (1997). Although the decisions of the JEP are non-binding in nature, they can have an important reputational impact.
At European level, the European Commission published in March 2023 a proposal for an EU Green Claims Directive, laying down specific rules on the substantiation, communication and verification of voluntary environmental claims and environmental labels. The proposal would require Member States to enact domestic legislation that ensures traders making voluntary, explicit environmental claims, to substantiate and present them accurately to the consumer. The proposal complements the Commission’s March 2022 proposal (for a Directive on empowering consumer in the green transition) to amend the EU Unfair Commercial Practices Directive and the Consumer Rights Directive.
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
Specific rules apply to online advertising and its identification, when such advertising forms part of an information society service or constitutes such a service. Pursuant to Article XII.12 CEL, online advertising must be clearly identifiable as such. Failing this, it must bear the word “advertising” legibly, clearly and unequivocally. The natural or legal person on whose behalf the advertising is made should also be identifiable.
Similar transparency rules apply to audiovisual media services. Audiovisual communications must be readily recognisable as such (See Article 53 of the Flemish Decree of 27 March 2009 on Radio and Television Broadcasting and Article 5.2-4 of the Decree of 4 February 2021 of the French-speaking Community on audio-visual media services and video sharing services).
The failure to clearly declare the commercial element in commercial communications could also amount to a misleading commercial practice under Articles VI.97 to VI.99 CEL. More precisely, Article VI.99, §2 CEL provides that it shall be regarded as a misleading omission when a trader fails to identify the commercial intent of the commercial practice if it is not already apparent from the context.
Using editorial content in the media to promote a product where a trader has paid for the promotion (advertorial) without making that clear in the content or by images or sounds clearly identifiable by the consumer is specifically prohibited by Article VI.100, 11° CEL.
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How is influencer/brand ambassador advertising regulated?
Influencer//brand ambassador advertising is not specifically regulated under Belgian law. All the abovementioned general rules concerning advertising are also relevant for, and applicable to, influencer/brand ambassador advertising.
In addition, Article VI.100, 22° CEL prohibits falsely claiming or creating the impression that a trader is not acting for the purposes of his trade or falsely representing oneself as a consumer. This prohibition is of particular importance when influencers are endorsing their own products or business, even when they endorse brands or products that are visibly linked to them, e.g. by bearing their name or face.
Also, given that the relationship that the influencer builds with its audience is often based on trust and a personal connection, their behaviour could in some cases amount to an aggressive commercial practice through the use of undue influence, prohibited by Articles VI.101 and VI.102 CEL.
The Federal Public Service (FPS) of Economy has published interpretative guidelines for influencer marketing. These guidelines apply when two conditions are met: (i) the influencer places a product, company, service, brand in the foreground (verbally, visually or in text) and (ii) the influencer receives a benefit from the company behind the brand, product or service. Such benefit may include a free product (even if not asked for), a discount, a cash payment, a product you are allowed to borrow, free tickets for a festival, a free night in a hotel, a free meal in a restaurant, an invitation to an event, a percentage on product sales through the shared affiliate link.
It is not required that there is an agreement, that the brand explicitly asks the influencer to publish a post or that the brand has control over what the influencer publishes.
The guidelines state that: “As a content creator, you must clearly communicate the commercial nature of your advertising messages. Basically, the commercial nature should be clear from the context of your message itself. This means that it should be clear to your followers at a glance that you are advertising”.
This can be achieved by tagging the post with an unambiguous word that is clear to all, such as advertising, publicity, ad. That tag should be:
- visible to the follower immediately, without having to open the message, and should not be placed at the end of the message, between different hashtags or as the last hashtag. Preferably, the tag should be placed at the front of the post or on the photo or video.
- clear and not disappear into the background. There must be sufficient contrast (in terms of colour and font) with the background.
- in the same language as the message.
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
The Flemish Decree of 27 March 2009 on Radio and Television Broadcasting, the Decree of the French-speaking Community of 4 February 2021 on audio-visual media services and video sharing services and the Act of 5 May 2017 on audiovisual media services in the bilingual Brussels-Capital Region prohibit and restrict certain advertising methods for audiovisual media services.
Sponsoring
Sponsoring is allowed under the following conditions:
- the content and, in the case of television broadcasting, the scheduling of the programmes shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider
- the programmes shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services
- viewers shall be clearly informed of the existence of a sponsorship agreement.
- sponsored programmes shall be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at the beginning, during and/or at the end of the programmes.
Audiovisual media services or programmes may not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products, as well as electronic cigarettes and refill containers.
Children’s programmes may not be sponsored by companies whose principal activity is the manufacture or sale of alcoholic beverages.
Sponsoring of the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking, but shall not promote specific medicinal products or medical treatments available only on prescription.
News and current affairs programmes may not be sponsored and the mention or display of a sponsor’s logo is prohibited during children’s programmes or on teletext pages aimed at children.
Product placement
Product placement is allowed in all audiovisual media services, except in news and current affairs programmes, consumer affairs programmes, religious programmes and children’s programmes.
Product placement must comply with the same first two conditions as required for sponsoring, as well as the two following conditions:
- programmes shall not give undue prominence to the product in question;
- viewers shall be clearly informed of the existence of product placement by an appropriate identification at the start and at the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer.
In any event programmes may not contain product placement of:
- cigarettes and other tobacco products, as well as electronic cigarettes and refill containers, or product placement from undertakings whose principal activity is the manufacture or sale of such products;
- specific medicinal products or medical treatments available only on prescription in the Member State under whose jurisdiction the media service provider falls.
Surreptitious communications
Surreptitious communications are prohibited. Surreptitious communication is defined as the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the media service provider to serve as advertising and might mislead the public as to its nature. Such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration.
Subliminal techniques
The use of subliminal techniques in commercial communications is prohibited.
Commercial communications may in any case not prejudice respect for human dignity or include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation.
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
Except where otherwise indicated, the advertising rules discussed in this guide apply to all types of advertising media.
Yet, the Flemish Decree of 27 March 2009 on Radio and Television Broadcasting provide specific rules for advertising via radio and television (see also the Decree of 4 February 2021 of the French-speaking Community on audio-visual media services and video sharing services and the Act of 5 May 2017 on audiovisual media services in the bilingual Brussels-Capital Region provide very similar rules).
Radio and television advertising, excluding self-promotion, and teleshopping must be clearly identifiable and must be distinguishable from editorial content. Depending on the media, they must be distinguishable by visual and/or acoustic and/or spatial means from other parts of the programme.
Separate advertising and teleshopping spots must remain an exception. One separate advertising or teleshopping spot is permitted per radio/television broadcasting programme per day.
In addition, separate advertising and teleshopping spots are permitted :
- in broadcasts of sports events;
- if a long-term spot of at least two minutes is broadcast;
- if a broadcaster has failed to sell more than one advertising or teleshopping spot, for lack of customer interest.
Radio and television programmes may be interrupted for advertising or teleshopping, provided that in so doing the integrity and value of the programmes shall not be harmed, taking into account natural breaks in and the duration and nature of the programme, and that there shall be no prejudice to the rights of the rights holders.
Radio broadcasts of religious worship, religious and philosophical programmes and news may not be interrupted for advertising. For television broadcast children’s programmes are added to this list.
The legislator further limits the proportion of advertising in a television broadcast and prohibits the broadcasting of phone-in quizzes.
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Are there specific rules for direct marketing such as email, SMS and direct mail?
Email: Book XII of the CEL on electronic communication and the Royal Decree of 4 April 2003 regulating the sending of advertising by electronic mail contain specific rules on sending advertisements by email.
Direct marketing through email without prior, free, specific and informed consent of the recipient is prohibited (see Article XII.13 CEL).
Pursuant to Article 1 of the Royal Decree of 4 April 2003 regulating the sending of advertising by electronic mail, there are several exceptions to this principle. A service provider is not required to obtain consent before sending advertising by email if :
– the advertising is sent to its customers, whether natural or legal persons, provided that the following conditions are satisfied:
- It has obtained their electronic contact details directly when selling a product or a service, in compliance with legal and regulatory requirements relating to the protection of privacy;
- The electronic contact details are used exclusively for the purpose of advertising similar products or services that it provides;
- The customers have the option of objecting, free of charge and in a simple manner, to such use, when their electronic contact details are collected.
– the advertising is sent to legal entities and the electronic contact details it uses are impersonal.
When advertising by email is not prohibited, the service provider should provide clear and comprehensible information about the right to object, for the future, to receiving advertising, and should indicate and make available an appropriate and electronic means to exercise the right effectively (Article XII.13 CEL).
Email advertising is further regulated by Article XII.12 CEL. Under this article, advertisements by email shall comply with the following principles:
- Advertisements shall be immediately recognizable as such (or it shall bear the label “advertisement”;
- The natural or legal person on whose behalf the advertising is conducted shall be clearly identifiable;
- Promotional offers, shall be clearly identifiable as such, and the conditions for availing of them shall be easily accessible and presented in a precise and unambiguous manner;
- Contests or promotional games shall be clearly identifiable as such, and their participation conditions shall be easily accessible and presented in a precise and unambiguous manner.
In addition, when sending advertising by electronic mail, it is prohibited to use the electronic address or identity of a third party, to falsify or conceal any information enabling the origin of the message in the email or its transmission path to be identified, and to encourage the recipient of the message to visit websites that infringe Article XII.12 CEL.
Finally, Article VI.103, 3° of the CEL provides that, subject to certain exceptions defined by this article, making persistent and unwanted solicitations by telephone, fax, mails or other remote media is considered an aggressive commercial practice which is in principle prohibited.
SMS: The definition of electronic mail provided by Article I.18,2° of the CEL covers marketing communications through text messaging, such as SMS.
Before sending any unsolicited message for direct marketing purposes, the sender has to ensure that the person did not opt out from receiving such messages. This can be done by checking the “Do Not Call Me” list.
In addition, when sending such messages, it is prohibited to hide the identity of the enterprise for which the communication is done.
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
a) Under Article VI.103, 5° CEL, a commercial practice aimed at directly inciting children to buy the advertised products or to persuade their parents or other adults to buy such products for them constitutes an unfair commercial practice in all circumstances, and is therefore prohibited.
b) Article 7 of the Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data provides that “the processing of personal data related to children in relation to the offer of information society services directly to a child is lawful where the consent has been given by children who are at least 13 years old. Where the processing concerns personal data of a child below the age of 13 years, such processing shall be lawful only if that consent is given by the child’s legal representative.”
The offer of information society services can include internet advertising.
c) Under Article 5.2-3 of the Decree of 4 February 2021 of the French-speaking Community on audio-visual media services and video sharing services:
“Commercial communication must not cause physical, mental or moral harm to minors and must in particular respect the following criteria for their protection:
1° it may not encourage excessive use of food products and beverages containing trans-fatty acids, salt, sodium or sugars, regular consumption of which is inadvisable for health;
The CSA2 College of Advice shall draw up and update one or more codes of conduct allowing for the establishment of guidelines based on best practice designed to ensure compliance with this point;
2° it must not directly incite minors to purchase or hire a product or service by exploiting their inexperience or credulity;
3° it must not directly encourage minors to persuade their parents or third parties to purchase the products or services concerned;
4° it must not exploit the special trust minors have in their parents, teachers or other persons;
5° it must not, without good reason, present minors in a dangerous situation”.
Articles 70-77 of the Flemish Decree of 27 March 2009 on Radio and Television Broadcasting provide a similar protection.
Different protections/restrictions can also be found in self-regulatory codes such as:
- the Code of Ethics for Children’s Broadcast Advertising in the French Speaking Community;
- the Advertising code for foodstuffs (e.g. Food advertising must not prejudice the role of parents and other adults responsible for a child’s welfare in choosing diets and lifestyles; Advertising must not directly urge children to persuade their parents or other adults to buy the products advertised);
- the convention on advertising and marketing of alcoholic beverages (e.g. Advertising may not target minors either by its content or by its means of communication);
- the Code of Advertising and Commercial Communication for Cosmetic Products (e.g. advertising for perfumes and decorative cosmetics must not encourage children to use these products excessively).
Footnotes:
2 The CSA is the “Audiovisual Council” / “Conseil de l’audiovisuel” / “Hogere Audiovisuele Raad”. -
How is comparative advertising regulated?
Article I.8, 14° CEL defines comparative advertising as:
“any advertising which explicitly or implicitly mentions a competitor or goods or services offered by a competitor.”
Comparative advertising is, as a principle, permitted. However, certain conditions must be met, which are contained in article VI.17 CEL. This article is the transposition, into Belgian law, of the rules set forth by EU Directive 2006/114 concerning misleading and comparative advertising.
“Comparative advertising, in terms of comparison, is permitted provided that it:
1° is not misleading within the meaning of articles VI.97 to VI.100 and articles VI.105 to VI.109;
2° compares goods or services meeting the same needs or intended for the same purpose;
3° objectively compares one or more material, relevant, verifiable and representative features of these goods and services, which may include price;
4° does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;
5° does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
6° for products with a designation of origin, relates in each case to goods with the same designation;
7° does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing goods;
8° does not present goods or services as an imitation or imitation of goods or services bearing a protected trademark or trade name.”
If comparative advertising does not respect the conditions set forth above, it is prohibited (article VI.17, §2 CEL). Belgian courts follow the jurisprudence from the Court of Justice of the European Union in a.o. Carrefour Hypermarchés SAS / ITM Alimentaire International SASU (C-562/15), De Landtsheer Emmanuel (C-381/05), Pippig Augenoptik (C-44/01), Toshiba Europe (C-112/99), O2 Holdings (C-533/06), Siemens (C-59/05), Lidl Belgium (C-356/04).
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
Consumer promotions should not be misleading or aggressive, and should respect the general principles set out in the answer to Q2. This is assessed on a case-by-case basis.
In addition, the following practices relating to consumer promotions are considered misleading in all circumstances:
- 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 (Art. VI.100, 7° CEL);
- Claiming that products are able to facilitate winning in games of chance (Art. VI.100, 16° CEL);
- 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 (Art. VI.100, 18° CEL);
- Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent (Art. VI.100, 19° CEL);
- 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 (Art. VI.100, 20° CEL).
Consumer promotions must also respect the rules relating to free and reduced-price offers. For instance, traders may sell at reduced prices using the denomination “sales” (“opruimingen”, “solden”, “soldes”, “Schlussverkauf”) or any similar denomination only twice a year in January and July (Seasonal sales: Art. VI.25-VI.30 CEL). Traders are allowed to advertise sale offers and sales before the start of these periods, provided that such advertising states its start date.
Clearance sales are permitted when specific circumstances require the accelerated disposal of stock or an assortment of goods (Art. VI.22-VI.24 CEL). Any announcement or other advertising concerning a clearance sale must specify the date of the beginning of the clearance sale.
Announcements of price reductions to consumers require the indication of a “reference price”, i.e., the lowest price applied by the company during a period of thirty days prior to the start of the price reduction at the point of sale or through the sales channel for which the announcement is made (Article VI.18, ELC). For products that have been on the market for less than thirty days, the reference price is the lowest price applied during a period not less than seven days prior to the start of the price reduction. This obligation does not apply to goods that spoil quickly or have a limited shelf life. This new “reference price”-rule is the result of the implementation of the Omnibus Directive in Belgium and applies to all sectors, and to physical and online sales of movable goods to consumers (but not to services, digital content, and B2B sales). The rule has a strict scope of application and does not apply to price comparisons with competitors or with suppliers’ recommended prices, nor to so-called “whisper discounts”, quantity discounts and joint offers (see below), or other superficial communications (such as “promo”, “lowest prices”, “round prices” or “best prices”), which must however still comply with the general rules on misleading and comparative advertising and on unfair commercial practices.
Vouchers entitling the purchaser of a good or service to a refund of (part of) the purchase price must include certain information, such as the issuer’s contact details, the amount, the validity period, the terms and conditions (Article VI.31 CEL). Similar information requirements and specific rules apply to discount cards that are issued for free and grant an immediate discount on the purchase price of a good or service (Article VI.32-33 CEL).
Joint offers to consumers are in principle permitted. Joint offers that include financial services are in principle prohibited, but can be allowed under certain exceptions (Art. VI.80-VI.81 CEL).
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
Promotional prize draws that involve an (even incidental) element of luck must comply with the rules on lotteries and games of chance as further detailed below. Otherwise they can be classed as illegal lotteries or illegal games of chance, sanctioned by fines and even imprisonment. Pure skill competitions, i.e. games without any (reasonable) influence of chance to determine the course or the outcome of the game, will normally not fall under the scope of application of these rules but must still comply with the general rules on advertising in the CEL.
A. Games of chance & betting
The Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players defines both “games of chance” and “betting” in article 2 (1° and 5°):
Games of chance: any game in which an inserted bet of any kind results either in the loss of this bet by at least one of the players or in a win of any kind for at least one of the players or furnishers of the game and in which chance is an even incidental element in the course of the game, the designation of the winner or the determination of the size of the win;
Betting: game of chance where each player places a bet and where winnings or losses depend not on an act of the player, but on the realisation of an uncertain event occurring without the players’ intervention.
However, competitive sports, certain card and parlour games with a very limited stake that can provide the participant with a material benefit of small value only, and games that provide no benefit to the participant other than the right to continue playing for free up to five times are not considered games of chance.
The exploitation of games of chance or a gaming establishment requires a license from the Gaming Commission ( “Kansspelcommissie” / “Commission des jeux de hasard”) (article 4 of the Act of 7 May 1999).
The Act of 7 May 1999 divides gaming establishments into four classes (article 6 of the Act of 7 May 1999): class I gaming establishments or casinos, class II gaming establishments or amusement arcades, class III gaming establishments or drinking establishments and class IV gaming establishments or places exclusively for taking bets. The number of authorised class I, II and IV establishments is fixed.
General rules on authorisations are contained in article 25-27 of the Act of 7 May 1999. Specific rules per class of gaming establishment are foreseen in article 28-43/7 of this Act.
The Act of 7 May 1999 also foresees criminal sanctions in case of breach of certain specified provisions (especially the provisions regarding authorisations). These sanctions include imprisonment varying from one month to five years and fines varying from 25 to 100.000 euros (see article 63-64 of the Act of 7 May 1999).
A Royal Decree of 27 February 2023, in force since 1 July 2023, determines specific rules on advertising for games of chance / gambling. This Royal Decree further lists the specific forms of permitted advertising (e.g., sponsoring of (non-)professional sport clubs, Art. 6) as well as specific prohibitions (e.g., advertising for games of chance / gambling may not be personalised, Art. 16) (see above).
Violations are criminally sanctioned with imprisonment of six months up to five years or a fine ranging from 100 EUR (minimum) up to 100.000 EUR (Article 63 of Act of 7 May 1999). Note that these amounts must be multiplied by factor eight (anno 2023). These sanctions can be doubled in the event of a repeat offence within five years of a conviction under this Act (or its implementing decrees) or where the offence was committed against a person under 18 years of age (Article 65 of the Act of 7 May 1999). In addition, a judge may order the seizure of monies and materials and the temporary or final closure of a gaming establishment (Articles 67 and 68 of the Act of 7 May 1999). The Gaming Commission can impose administrative fines and other sanctions such as a warning, suspending the operation of some games, revoking the licence or closing the gaming establishment.
B. Lotteries
Lotteries are regulated in the Act of 31 December 1851 on lotteries and in the Criminal Code.
‘Lotteries’ are defined in article 301 of the Criminal Code as “all operations offered to the public and intended to provide winnings as a result of chance”.
A stake is not required, which means that a free lottery or prize draw also falls within the scope of the Act of 31 December 1851 and the Criminal Code. On the other hand, games that do not entirely depend on chance do not constitute a lottery, but they may still qualify as a regulated game of chance if all other constitutive elements are fulfilled (see above).
Lotteries are, as a matter of principle, prohibited (article 1 of the Act of 31 December 1851 on lotteries). Sweepstakes also fall under this prohibition according to the Belgian Supreme Court (Cass. AR 7670, 24 September 1987, Belgische Staat / Reader’s Digest N.V.).
There are two exceptions to this fundamental prohibition:
- Lotteries organised by the National Lottery (whose operation and management are regulated by an Act of 19 April 2002);
- Lotteries organised by certain types of organisations—NGOs, foundations, etc.—insofar as they pursue an objective of public utility (article 7 of the Act of 31 December 1851).
Violations of the principled prohibition on organising lotteries are subject to criminal sanctions. Thus, Article 302 Criminal Code provides as punishment: “imprisonment of eight days to three months and with a fine of fifty euros to three thousand euros.” Those who advertise such illegal lotteries, be it by handing out notes or posting posters, can also be punished under Article 303 Criminal Code with imprisonment of eight days to one month and with a fine of twenty-six euros to one thousand euros.” Note that the amounts in the Criminal Code must be multiplied by factor eight (anno 2023).
On a final note, it is also worth mentioning Article VI.106,16° CEL, which provides that a misleading commercial practice whose purpose is to claim that a product increases the chances of winning in games of chance commercial practices constitutes an unfair commercial practice.
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
The organisation of a promotional prize competition falling within the legal definitions of a game of chance or betting will require a prior licence from the Gaming Commission.
Lotteries (other than the lotteries organised by the National Lottery) can only be organised by certain types of organisations if they pursue an objective of public utility. More specifically, the Act of 31 December 1851 stipulates that (cf. article 7):
“The provisions of this Act do not apply to lotteries exclusively for charitable works, for the promotion of industry and art or for any other public benefit purpose, when they are authorised.”
Authorisation must be granted by different government agencies according to the geographical scope of the lottery. If the lottery is organised at the municipal level, it should be considered by the municipal executive. If the lottery covers several municipalities of a province, it should be considered by the standing deputation of the provincial council. If, finally, it involves a lottery in several provinces, or an online lottery, the federal government will have to consider it.
Promotional prize competitions where the participants have an active involvement and do not have to pay to enter the competition or provide any direct counterpart do not need to be notified or registered.
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
Because advertising frequently involves the use of content (names, slogans, trademarks, images, etc.) that may be protected by intellectual property rights, intellectual property laws and advertising laws often intersect and influence each other in various ways.
The use of protected material in advertising without authorization from the rights holder can have dire consequences. For example, a third party’s trade mark can in principle not be used in advertising or an advertising campaign without the trade mark holder’s consent. There are certain exceptions, in an advertising context, for instance where the use of the third party’s trademark:
- Constitutes a comparative advertising compatible with article VI.17 CEL. An advertising may, explicitly or implicitly, mention a competitor, or goods or services offered by a competitor, which may be protected by intellectual property right(s). The general principle is that comparative advertising is permitted, provided that it meets the conditions laid down in article VI.17 CEL. A comparative advertising that does not comply with those conditions is prohibited under article VI.17, §2 CEL. In particular, comparative advertising may not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor (article VI.17, §1, 4° CEL).
- Falls within one of the exceptions to trade mark infringement (for example, according to article 2.23.1.c of the Benelux Convention on Intellectual Property, when a third party’s trademark is used to identify or refer to products or services as those of the trademark owner, especially when it is necessary to indicate the intended purpose of the advertised product or service, such as an accessory or spare part).
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
Under Belgian civil law, a valid contract between two or more parties requires an offer and the acceptance of that offer (Article 5.18 of the Civil Code). Article 5.19 defines an offer as (free translation) “a proposal to enter into a contract which contains all the essential and substantial elements of the intended contract and which implies the offeror’s intention to be bound by the contract in the event of acceptance”.
An offer in advertising must therefore meet the following criteria:
- Firm: There must be the intention of the advertiser to enter into an agreement.
- Final/definitive: There should be no suspensive conditions attached to the offer.
- Precise: The offer must encompass all the objectively essential and substantial elements of the intended contract.
If an advertisement clearly expresses the advertiser’s intent to enter into an agreement, if the advertisement accurately outlines its essential elements (such as the product in question and its price), and if there are no suspensive conditions, then this advertisement constitutes an offer in accordance with Article 5.19 of the Civil Code. A contract is thus formed when the recipient accepts that offer.
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
Human rights, in particular the right to freedom of speech and the right to privacy, have an important impact on advertising.
Thanks to the right to freedom of speech, advertising can be done more freely. The European Court of Human Rights has ruled that the right to freedom of speech also applies to advertising.
However, when the advertising has a commercial purpose, Member States have a broader margin of appreciation (see for instance ECHR, 22 July 2021, Gachechiladze v. Georgia). This margin of appreciation allows Member States and their courts to restrict certain forms of advertising, such as the prohibition on denigrating advertising or trade defamation.
On the other hand, the right to privacy tends to curb advertising opportunities for advertisers, for instance when using the image of a person for an advertisement, which will typically require that person’s prior informed consent.
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]
Compliance with advertising provisions under the CEL is enforced by the Directorate-General Economic Inspection of the FPS Economy, as further detailed in Book XV of the CEL. Other authorities may have the power to enforce advertising rules in specific legislation (e.g., FPS Health, Food Chain Safety and Environment in respect of breaches of advertising regulations on foodstuffs and tobacco, or the media regulators in respect of breaches of advertising regulations by audiovisual media services providers). The FPS Economy may take action on its own initiative or after a complaint and can issue warnings, impose administrative fines, propose settlement offers or file court proceedings. They can also forward breaches of advertising regulations that are subject to criminal sanctions to the public prosecutor for criminal prosecution. The fines have been increased significantly following the implementation of the Omnibus Directive and may amount up to 4% of a trader’s annual turnover for the more serious breaches (see for instance Article XV.83 in combination with Article XV.70, 2° of the CEL).
A type of civil litigation frequently used in the case of advertising law breaches are so-called “cessation proceedings”, which are accelerated proceedings leading to a decision on the merits. Cessation proceedings, also referred to as a “cease-and-desist action”, will typically result in a prohibitory injunction, which can be accompanied by other corrective measures such as the recall, destruction or removal of the infringing advertising material, and the publication of (a summary of) the judgment, but no award of damages. The timeframe for cessation proceedings varies typically from a couple of weeks to a couple of months. Any interested party may bring a cease-and-desist action before the court.
Other enforcement procedures before the Belgian courts include:
- Summary proceedings to obtain a preliminary injunction (PI). Classic PI proceedings can be initiated ex parte or conducted inter partes and require proof of (extreme) urgency. Judges will make a prima facie assessment and will balance the interests at stake prior to granting a PI or any other preliminary measures. The timeframe for PI proceedings varies typically from a couple of weeks to a couple of months depending a.o. on the complexity of the case.
- Regular proceedings on the merits to obtain damages, injunctive relief, and other corrective measures such as the recall, destruction or removal of the infringing advertising material, and the publication of (a summary of) the judgment. It is possible to request precautionary measures during the course of proceedings based on the article 19, §3 of the Judicial Code. The timeframe for regular proceedings on the merits varies typically from 12 to 18 months.
- To the extent a breach of advertising law is subject to punishment by criminal sanctions, injured parties may also file a complaint to bring a criminal action before the criminal courts.
Out-of-court enforcement options include the sending of cease-and-desist letters, dispute settlement negotiations (including through the Consumer Mediation Service pursuant to articles XVI.5-XVI.23 CEL), or alternative dispute mechanisms such as arbitration and mediation. Consumers and companies can report breaches of advertising regulations and other consumer protection laws at https://pointdecontact.belgique.be/meldpunt/ .
Finally, advertising law breaches can be enforced before the JEP whose mission is to ensure that the content of advertising messages conforms to the rules of advertising ethics based on legislation and self-regulatory codes, through an independent representative jury. Proceedings can be initiated by complaints filed by natural or legal persons insofar as they act in defense of consumer interests and/or the image of advertising: consumer, consumer organization, sociocultural association, professional association/federation, member or representative of an official body or public power.
If JEP considers that an advertising message contains editorial (text, statement, slogan) and/or visual (image, drawing, photo, …) elements that do not comply with the legislation or codes, it will issue a decision ordering the responsible advertiser to modify or discontinue the advertising, depending on the nature and extent of the violations. If no positive action is taken or in the absence of a response, the JEP will address a suspension recommendation to the media who support the JEP and have undertaken to comply with its decisions. The JEP can also limit itself to issuing an opinion of reservation, leaving it to the advertiser, the advertising agency and the media to take the appropriate action.
Belgium: Advertising & Marketing
This country-specific Q&A provides an overview of Advertising & Marketing laws and regulations applicable in Belgium.
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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
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Do any specific rules apply to advertising featuring prices?
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
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Do any specific rules apply to environmental or “green” advertising claims?
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
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How is influencer/brand ambassador advertising regulated?
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
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Are there specific rules for direct marketing such as email, SMS and direct mail?
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
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How is comparative advertising regulated?
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]