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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?]
Under German law there is no specific provision covering harmful and offensive advertising per se. Harmful and offensive commercial practices may be covered by different regulations which address specific situations:
The Interstate Media Treaty (“Medienstaatsvertrag” – MStV) prohibits advertising in broadcasting which prejudices respect for human dignity or includes or promotes any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age, or sexual orientation (see also question 9).
Offering, announcing or promoting the opportunity to engage in sexual activities or making public statements of such content is prohibited as an administrative offence, if it is done in a grossly offensive manner. The same applies to offering, announcing or advertising means or objects of sexual use in such manner or to making public statements of such content (see also question 3 f.).
Pornographic advertising would be prohibited by the respective provisions of the Criminal Code (see also question 3 f.).
Advertising which violates human dignity might fall under the blanket clause of Section 3 of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) which, in general, prohibits unfair commercial practices. German courts have already included certain kinds of advertising under the blanket clause, for example advertising that uses the misery of those affected as an object of attraction for its own commercial advantage or which depicts serious suffering of humans or animals to trigger feelings of compassion.
Harmful and offensive advertising may also be prohibited as aggressive commercial practice according to Section 4a UWG if it is suited to significantly impair a consumer’s or other market participant’s freedom of choice by harassment, coercion, including the use of physical force, or undue influence by exploiting a position of power to exert pressure in a way which significantly limits the consumer’s or other market participant’s ability to take an informed decision.
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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]
The German Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) generally prohibits the use of unfair commercial practices. The Act then defines several acts which can be seen as unfair commercial practice (but does not limit unfair commercial practices to these specifically mentioned acts).
In particular, the following kinds of commercial practices are deemed unfair under the UWG:
- Violation of a statutory provision which is also intended to regulate market conduct in the interest of market participants (Section 3a UWG);
- Harming competitors by discrediting them, disseminating not demonstrably true facts about them, offering goods or services which are replicas of goods or services of a competitor in a unfair manner, or deliberately obstructing competitors (Section 4 UWG);
- Aggressive commercial practices (Section 4a UWG);
- Misleading commercial practices, also such by omission (Sections 5, 5a UWG)
- Unfair comparative advertising (Section 6 UWG);
- Unacceptable nuisance (Section 7 UWG).
Misleading commercial practices are deemed unfair if they are suited to causing the consumer or other market participant to take a transactional decision which he or she would not have taken otherwise. A commercial practice is regarded as misleading if it contains false statements or other information suited to deception regarding certain circumstances, e.g. the main characteristics of the goods or services, the reason for the purchase, such as the existence of a specific price advantage, or the nature, attributes or rights of the trader. Further circumstances are mentioned in Section 5 UWG.
Which statement is actually made in an advertisement and if such statement is true will usually be determined by the understanding of the targeted public.
Advertising can also be misleading if material information is omitted which is needed to take an informed transactional decision, in case the omission is likely to cause a transactional decision which would not have been taken otherwise.
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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
All advertising is subject to general regulations such as the Act Against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG). For certain products and services, the German legislature has also specified advertising restrictions in special codes.
a. Alcohol
Beside restrictions on the sale of alcohol to minors (e.g. Section 9 Youth Protection Act – “Jugendschutzgesetz” – JuSchG), advertising of alcoholic products in the media is limited by law. In addition, the German Advertising Council (Werberat) has released requirements on advertisings for alcoholic products within the Advertising Statute (“Werbesatzung”), which are the subject of voluntary self-regulation. Further, certain TV stations released advertising guidelines (for alcoholic products see Section 3.2 of the ARD advertising guidelines).
By law, restrictions are found in Section 6 (5) Interstate Treaty on the Protection of Human Dignity and Minors in Broadcasting and Telemedia (“Jugendmedienschutzstaatsvertrag” – JMStV), Section 11 (5) JuSchG, and Section 8 (10) Interstate Media Treaty (“Medienstaatsvertrag” – MStV).
The JMStV regulates broadcasting and telemedia. In accordance with Section 6 (5) JMStV advertisement in broadcasting and telemedia for alcoholic beverages may not be aimed at minors or appeal to minors through its depictions of them, and may not show minors consuming alcohol. To assess the aiming the layout, product and language of the advertising is especially essential. For example addressing the consumer with “Du” (informal You) or with a wording and terminology popular by minors is problematic. Further, advertising for certain alcoholic beverages popular by minors such as alcopops must clearly and solely be directed to grown-ups.
Commercials or advertising program for tobacco products or alcoholic beverages in cinemas must be presented solely after 6 p.m. (Section 11 (5) JuSchG).
Pursuant to Section 8 (10) MStV advertising and teleshopping for alcoholic beverages in broadcasting and telemedia similar to broadcasts (Section 74 MStV) shall not promote excessive consumption of such beverages.
b. Tobacco and related products, such as vapes and nicotine pouches
Beside certain EU-Directives (e.g. 2003/33/EU and 2010/13/EU), Sections 19 to 21 German Tobacco Products Act (“Tabakerzeugnisgesetz” – TabakErzG) impose very comprehensive restrictions on advertising of tobacco and certain related products.
It is prohibited – with little exceptions – to advertise tobacco products, electronic cigarettes or refill containers on radio, in the press or in any other printed publication, and in information society services (Section 19 (1), (2), (3) TabakErzG). Information society services include websites and social media (see Section 2 no. 7 TabakErzG and Article 1 b) of EU-Directive 2015/1535/EU).
Pursuant to Section 20 TabakErzG it is prohibited to provide audio-visual commercial communications as defined in Article 1 (1) lit h) of EU-Directive 2010/13/EU, as amended by Directive (EU) 2018/1808, for tobacco products, electronic cigarettes or refill containers or for the benefit of undertakings whose principal activity is the manufacture or sale of such products. Audio-visual commercial communications shall mean images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person engaged in a commercial activity and which are included in, or accompany, a broadcast or user-generated video in return for payment or for similar consideration or as self-promotion (see Article 1 (1) lit. h) Directive 2010/13/EU). Audio-visual commercial communications especially covers TV.
As already mentioned above under a., Section 11 (5) JuSchG limits advertising in cinemas (solely after 6 p.m.).
In accordance with Section 20a TabakErzG it is prohibited to conduct outdoor advertising for tobacco products, electronic cigarettes or refill containers. This does not apply to advertising on outdoor surfaces including associated window surfaces of business premises of the specialized trade. Further, it is prohibited to distribute cigarettes, roll-your-own tobacco or hookah tobacco on a commercial basis free of charge outside the premises of the specialized trade (Section 20b (1) TabakErzG). It is also forbidden to offer tobacco products, electronic cigarettes or refill containers on a commercial basis via prize games (Section 20b (2) TabakErzG).
Section 21 (1) TabakErzG contains further advertising restrictions (e.g. promotional information which make the inhalation of tobacco smoke appear worthy of imitation or gives the impression that tobacco products are not harmful for the health).
c. Medicines, medical devices and surgical or medical procedures
Advertising regarding medical devices, medicinal products (medicine) and other therapeutic products and procedures is subject to binding rules and restricted by the Law on Advertising in the Field of Therapeutics (“Heilmittelwerbegesetz” – HWG).
Since the HWG contains several regulations regarding the advertising of medicinal products, medicinal devices, and medicinal procedures solely certain restrictions shall be named hereinafter.
According to Section 3 HWG, misleading advertising is not permitted. Misleading advertising exists in particular
- if medicinal products, procedures, treatments, objects or other means are attributed a therapeutic efficacy or effects to them which they do not have,
- if the impression is falsely given that success can be expected with certainty, or that no harmful effects will occur if the product is used as intended or over a long period of time, or
- if false statements or statements suitable for deception are made about the composition or properties of medicinal products, articles or other means or about the manner of procedures or treatments or about the person, previous training, qualification or performance of the manufacturer, inventor or the persons working or acting for them.
It is not permissible to advertise medicinal products which are subject to compulsory marketing authorization and which are not authorized or deemed to be authorized in accordance with the provisions of the Law on Medicinal Products (Section 3a HWG).
Any advertising for medicinal products must contain certain information listed in Section 4 HWG, in particular a boilerplate regarding risks and adverse effects (Section 4 (3) HWG).
Pursuant to Section 10 (1) HWG prescription medicine may only be advertised to physicians, dentists, veterinarians, pharmacists and persons who legally trade in these drugs. The advertising of medicinal products, procedures, treatments, objects or other means outside the specialist circles is restricted by certain regulations listed in Section 11 HWG.
d. High fat, salt and sugar foods
Legal regulations have not yet been issued in Germany for high-fat, salt and sugar foods. Instead, the aim was to achieve protection against such foods through voluntary self-regulation. However, since this was unsuccessful, the German Federal Ministry of Food and Agriculture is working on the creation of legal regulations.
e. Gaming and gambling services
Hereinafter, specific rules with respect to gambling shall be detailed (regarding prize games and skill competitions see question 15).
Advertising for gambling is regulated by Section 5 of the Interstate Treaty on the (New) Regulation of Gambling in Germany (“Glücksspielstaatsvertrag” – GlüStV). Further, any advertising for illegal gambling is a criminal act (see Section 284 (4) German Criminal Code – “Strafgesetzbuch” – StGB).
A game of chance (gambling) exists if, in the course of a game, a fee is charged for the acquisition of a chance to win and the decision on the win depends entirely or predominantly on chance (Section 3 (1) GlüStV).
In case a gambling provider has properly obtained a license in accordance with Section 4 GlüStV from the responsible state authority such holder of the license may advertise and sponsor the permitted games of chance (Section 5 (1) sentence 1 GlüStV). The license shall specify content and ancillary provisions regarding the design and configuration of advertising for public games of chance, in particular on television and the Internet, as well as mandatory notices. Advertising via telecommunications systems is prohibited insofar as the player has not consented to such advertising (e.g. by calling the provider or existence of a contractual relationship). Sections 5 (2) to (7) GlüStV contain further advertising restrictions such as the ban on advertising for illegal gambling.
Adult and sex-related services
Several laws regulate the offer and advertising of sexual content.
Advertising content making accessible via broadcasting or telemedia that does not comply with the restrictions in Section 4 (1) JMStV is strictly forbidden (“illegal content”, e.g. child pornography, certain indexed content in accordance with Sections 18, 24 JuSchG.
“Normal” pornographic advertising content in broadcasting is strictly prohibited, but may be accessed solely by adults via telemedia or in physical public (see Section 4 (2) no. 1 JMStV and Section 184 StGB). A provider of telemedia must guarantee such a limited access by an age verification system including the identification and authentication of the adult (Section 4 (2) JMStV).
Insofar as providers disseminate erotic advertising offers in broadcasting or telemedia that are beneath pornography, but are likely to harm the development of children or youths into responsible and independent members of society, they must ensure that these services are not made available to children and youths of a prohibited age category (Section 5 (1) JMStV). It depends on the age what kind of measures are required. The easiest way is the implementation of a youth protection program limiting access for certain children via age rating (see Section 11 JMStV).
Further, Section 119 Administrative Offences Act (“Ordnungswidrigkeitengesetz” – OWiG) restricts grossly offensive and harassing acts. It shall be an administrative offense for anyone who
- publicly in a manner that is likely to annoy others,
- or in a grossly offensive manner by disseminating or making available to the public any content,
offers, announces or promotes the opportunity for sexual acts or makes public statements of such content.
It shall also be a misdemeanour to
- offer, announce or promote means or objects for sexual use in the manner described above or to announce statements of such content or
- make sexual content available to the public in places where it is grossly offensive.
In case of erotic advertising in the frame of events such advertising could infringe Section 8 or 9 JuSchG.
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Do any specific rules apply to advertising featuring prices?
Advertisements featuring prices may be misleading under Section 5 German Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) if an untrue statement is made, in particular with regard to the price itself, the existence of a specific price advantage, or the manner in which the price is calculated. Usual case groups are “bait-and-switch” offers (customers are baited into stores by low prices for certain products which are not available in significant amounts) or price comparisons (with recommended prices, list prices, prices of competitors, former own prices etc.). If a statement is made regarding pricing and which and if such statement is untrue is highly influenced by the understanding of the targeted public. There is a variety of case law on various (often used) statements like “best price”, crossed-out prices, several kinds of discount offer, “instead of” prices etc.
There is a specific regulation regarding the indication of prices of goods or services to consumers, the Price Regulation (“Preisangabenverordnung” – PAngV). Amongst other things, the PAngV stipulates an obligation to inform about the total price and about basic prices per unit or standard amounts. Furthermore, in case of price reductions, the lowest total price of the past 30 days has to be indicated.
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
There is no specific section in the (German) Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) regarding the use of testimonials and endorsements in advertising. Advertising using statements made by third parties is regulated by the general clause on misleading commercial practices, Section 5 UWG.
In the case of endorsements, the public generally assumes that they are made by neutral third parties. Therefore, advertising with them is misleading if they are, for example, invented, commissioned, have been purchased, or made a condition of participation in a contest.
In addition, the use of paid endorsements is not permitted unless the circumstance that there was a payment is disclosed in the advertisement. There may be exceptions for testimonials (endorsements by celebrities who are usually paid to make them). The reason for this is that in such cases, the public already expects that there was payment. This is especially the case when the advertising is for products that the celebrities have nothing to do with or have had nothing to do with in their professional lives. For example, a professional basketball player endorsing a bank.
Moreover, by using endorsements in an advertisement, the advertiser makes the statements of the third party his own. This means that if the statements are likely to mislead about the offer in question, this leads to a violation of Section 5 UWG caused by the entrepreneur.
As far as advertising with influencers is concerned, please refer to question 8.
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Do any specific rules apply to environmental or “green” advertising claims?
In the case of “green” advertising claims, the central provision is the one about misleading commercial practices in Section 5 (2) no. 1 and Section 5a (1) of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG). So far, there are no other specific rules. These may be created under a planned EU Green Claims Directive.
One example of “green” advertising is the claim “climate-neutral”. From the consumer’s point of view, this claim describes a material fact. Therefore, according to the UWG, the claim must not be misleading and the entrepreneur using the claim must provide information as to why the product is climate-neutral.
Courts in Germany regularly rule that advertising using the claim “climate-neutral” is considered misleading if the company in question only achieves this status by paying for CO2 compensation. The courts also consider that advertising using this claim requires an explanation, i.e. it triggers information obligations under Section 5a (2) UWG.
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
The requirement to identify advertising in media is regulated in Section 5a (4) of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG), Section 6 (1) no. 1 of the German Telemedia Act (“Telemediengesetz” – TMG), and Sections 8, 22 (1) Interstate Media Treaty (“Medienstaatsvertrag” – MStV). Misleading advertising is prohibited. Thus, advertising must be easily recognizable as such and distinguishable from editorial content.
Broadcast advertising must be identified as such at the beginning by the indication “Werbung” (“advertising”). Audio broadcast advertising requires an acoustic signal (Section 5 (1) Advertising Statute (“Werbesatzung”)). In moving image offerings, broadcast advertising must be clearly identified by a visual signal (Section 5 (2) Werbesatzung).
Broadcast split screen advertising is allowed in case the advertising is clearly separated from editorial content by a visual indication, namely “Werbung” or “Anzeige”, that shall be shown during the entire split screen advertising (Section 6 (2) Werbesatzung).
Broadcast infomercials (permanent advertising with a length of at least 90 seconds – “Dauerwerbung”) shall be permitted provided that the advertising character can be clearly recognized and that the advertising constitutes a substantial component of the programme (Section 8 (5) MStV). In TV program and other moving images offers infomercials must be identified by the indication “Werbesendung” or “Werbebeitrag” at the beginning and during the infomercial (Section 7 (4) Werbesatzung). Audio program requires the same identification at the beginning of the infomercial and in case of broadcasting new parts of the infomercial (Section 7 (3) Werbesatzung). An acoustic signal at the beginning is required (Section 5 (1) and Section 7 (5) Werbesatzung).
Product placement (“Produktplatzierung”) must be clearly identified at the beginning and end of a broadcast, as well as during its continuation after each interruption, by means of an explanatory note („unterstützt durch Produktplatzierungen“) and, in moving image offerings, additionally for a duration of at least three seconds by the insertion of the “P” symbol (Section 10 (5) Werbesatzung).
The provisions described above shall also apply for linear distributed telemedia similar to broadcasting (Section 16 (1) clause 1 Werbesatzung) and with few exemptions for telemedia similar to broadcasting (Section 16 (1) clause 2 Werbesatzung). Telemedia similar to broadcasting is defined in Section 2 no. 13 MStV. Advertising in telemedia similar to broadcasting can be identified in radio-like services by an acoustic signal and in television-like services by the permanent insertion of lettering with the inscription “Werbung” or by a visual signal with a duration of at least three seconds which is clearly perceptible as an announcement that advertising will follow next (Section 16 (2) Werbesatzung).
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How is influencer/brand ambassador advertising regulated?
It was long disputed if the publication of posts containing products and/or trademarks of third companies by a influencer via his social media account were to be assessed as advertising if there was no consideration from the product manufacturer or trademark owner. In some cases, courts ruled that such publication is advertising although the influencer has not received any consideration. Among others, the courts based their decisions on the huge number of followers, the implementation of a link to the website or shop of the product manufacturer in the post, or the increase in the advertising value of the social media account of the influencer. Other courts have ruled that such publications is not advertising.
With respect to such court cases the German legislator has detailed Section 5a (4) of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) which regulates any commercial communication including influencer and brand ambassador advertising. Now, only in case any person such as influencers will be paid or will receive similar benefits with respect to the showing of a trademark or product or other advertising conduct such person is obligated to identify its service as advertising (see also Section 2 (2) no. 7 Interstate Media Treaty – “Medienstaatsvertrag”). With respect to the identification requirements see question 7.
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
Any advertising in broadcasts, telemedia similar to broadcasts, and other telemedia that is not easily recognizable as such and distinguishable from editorial content, is forbidden (see Sections 8 (3), 22 (1), 74 Interstate Media Treaty (“Medienstaatsvertrag” – MStV), Section 5a (4) Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG), and Section 6 (1) no. 1 German Telemedia Act (“Telemediengesetz” – TMG).
Surreptitious advertising and theme placement, as well as corresponding practices, are not permitted in broadcasts (Section 8 (7) clause 1 MStV). Product placement is permitted in broadcasting, except in certain programs such as news and political information programs, consumer programs, regional window programs, programs with religious content and children’s programs (Section 8 (7) clause 2 MStV).
In accordance with Section 8 (7) clause 3 MStV broadcasts that contain product placement must, however, meet the following requirements:
- Editorial responsibility and independence with regard to content and placement in the broadcasting schedule must remain unimpaired.
- The product placement must not directly encourage the purchase, rental or leasing of goods or services, in particular not by means of special promotional references to these goods or services.
- The product must not be given too much prominence; this shall also apply to low-value goods provided free of charge.
Broadcast advertising may not feature persons who regularly present news programs or programs on political current affairs (Section 8 (8) MStV). Advertising of a political, ideological or religious nature is not permitted (Section 8 (9) MStV).
The restrictions mentioned also apply to telemedia similar to broadcasts (Section 74 MStV).
Split-screen advertising is not permitted during the broadcast of religious services or in programs for children (Section 6 (4) Advertising Statute (“Werbesatzung”)).
Continuous commercials (“Dauerwerbesendungen”) for children are not permitted (Section 7 (2) Werbesatzung).
The provisions mentioned with respect to Section 6 and 7 Werbesatzung apply for telemedia that are similar to broadcasting as well (Section 16 (2) Werbesatzung).
Further restrictions are regulated in several other laws (see examples detailed in no.3).
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
Specific rules for advertising by broadcasting are contained in the Interstate Media Treaty (“Medienstaatsvertrag” – MStV). This includes rules for infomercials, virtual advertising, product placement, teleshopping, sponsorship and others. Surreptitious advertising (representation of goods or services or their producers/providers in programmes for advertising purposes which might mislead the public as to the actual purpose of the representation, in particular for payment or for similar consideration) is prohibited. There are also rules for the duration and placement of advertisements in TV.
The Interstate Media Treaty also contains some rules for online advertising (advertising in telemedia). In particular, online advertising shall be clearly recognisable as such and shall be distinctly separate from the other parts of the offers provided.
For further information see question 9.
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Are there specific rules for direct marketing such as email, SMS and direct mail?
Section 7 of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) contains rules for direct marketing under the headline “Unacceptable nuisance”. Generally, a commercial practice which constitutes an unacceptable nuisance to a market participant is illegal, in particular where it is apparent that the solicited market participant does not want the advertising.
Specifically, advertising by means of a telephone call made to a consumer is illegal without his or her prior express consent. Phone advertising made to another market participant is illegal without the latter’s presumed consent.
Advertising by fax or electronic mail is illegal without the addressee’s prior express consent. This does not only include advertising by e-mail (e.g. in newsletters), but also by SMS, direct message on social media platforms, WhatsApp messages (or similar) or inbox advertising by web-mailers.
As an exception to the prior express consent requirement, advertising by electronic mail is allowed, if (1) the customer’s electronic mail address has been obtained from the customer in connection with the sale of goods or services; (2) the address is used for direct advertising of own (i.e. not a third-party’s) similar goods or services; (3) the customer has not objected to this use; and (4) the customer is clearly and unequivocally advised, when the address is collected and each time it is used, that he or she can object to such use at any time, without costs arising by virtue thereof, other than transmission costs in accordance with the basic rates.
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
In accordance with Section 6 Interstate Treaty on the Protection of Human Dignity and Minors in Broadcasting and Telemedia (“Jugendmedienschutzstaatsvertrag” – JMStV) advertising in broadcasting and telemedia to minors is restricted as follows:
Advertising for content indexed in accordance with Section 18, 24 Youth Protection Act (“Jugendschutzgesetz” – JuSchG) is permitted only subject to the terms applicable to the content in question itself.
The list of indexed content (see Sections 18, 24 JuSchG) must not be disseminated or made accessible for advertising purposes.
In advertising, there must not be any reference to any pending or completed procedure for the inclusion of content or a data medium with identical content in the list pursuant to Article 18 JuSchG (list of media harmful to minors). The same applies with respect to carrier media (see Section 15 (5) JuSchG).
Advertising shall not cause any physical or moral detriment to children and adolescents, nor shall it
- contain direct appeals to buy or rent goods or services directed at children or adolescents exploiting their inexperience and credulity,
- directly encourage children or adolescents to persuade their parents or others to purchase the goods or services being advertised,
- exploit the special trust children or adolescents place in parents, teachers or other persons of trust,
- unreasonably show children or adolescents in dangerous situations.
Advertising the content of which is suited to impair the development of children or adolescents into self-responsible and socially competent personalities shall be transmitted separately from content directed at children or adolescents.
Advertising directed at children or adolescents or advertising in which children or adolescents are involved as actors shall not harm the interests of children or adolescents or take advantage from their inexperience.
The list of media harmful to minors (see Section 18, 24 JuSchG) may not be printed or published for the purpose of commercial advertising (Section 15 (4) JuSchG).
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How is comparative advertising regulated?
The term “comparative advertising” means advertising that – explicitly or implicitly – identifies a competitor or the goods or services offered by a competitor.
In the context of comparative advertising, there are several types of comparison for which unfairness is presumed under Section 6 (2) of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG). According to Section 6 (2) UWG:
- The comparison must relate to goods or services that meet the same needs or are intended for the same purpose;
- the comparison of the goods or services must objectively relate to one or more material, relevant, verifiable and representative feature or to the prices of the goods or services;
- the comparison must not cause the risk of a confusion between the advertiser and a competitor, the goods or services offered or the distinguishing marks used by both parties;
- the comparison must not take an unfair advantage of the reputation of a distinguishing mark used by a competitor or impair the distinguishing mark;
- the comparison must not discredit or denigrate the goods, services, activities, or personal or business circumstances of a competitor;
- the comparison must not present any goods or services as imitations or replicas.
The above rules on comparative advertising do not apply where the advertising of certain goods or services is already prohibited or restricted. They also do not apply where comparative advertising is expressly prohibited, for example regarding certain comparative advertising relating to the effects of human medicines.
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
Consumer promotions are also considered to be “advertising” under the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) and must therefore be assessed according to the requirements of the UWG:
In addition to “classic” advertising, all sales promotion activities such as bonuses, discounts, competitions, giveaways and prize games constitute business practices and thus commercial practices under the UWG. This is because all these activities are directly aimed at promoting sales.
There are special provisions in the Act against Unfair Competition for commercial practices towards consumers. In particular, the general clause of Section 3 (2) UWG regulates commercial practices towards consumers. According to this clause, commercial practices targeting or reaching consumers are unfair if they are not in compliance with the requirements of professional diligence and are suited to materially distorting the economic behaviour of consumers.
The average consumer is to be the reference point for the assessment of commercial practices towards consumers.
Further, in accordance with Section 6 (1) no. 3 Telemedia Act (“Telemediengesetz” – TMG) promotional offers such as discounts, premiums and gifts must be clearly identifiable as such and the conditions for their use must be easily accessible and clearly and unambiguously stated.
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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?
Beside general rules such as the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) promotional prize draws (hereinafter prize games) are regulated in few provisions such as Section 11, 22 (3), 74 Interstate Media Treaty (“Medienstaatsvertrag” – MStV), Section 6 (1) no. 4 German Telemedia Act (“Telemediengesetz” – TMG), Section 11 (1) no. 13 Law on Advertising in the Field of Therapeutics (“Heilmittelwerbegesetz” – HWG) and the Prize Games Statute (“Gewinnspielsatzung”).
Section 11 MStV regulates broadcasted prize games. Amongst others, the stake of a prize game in accordance with Section 11 MStV is limited to a maximum of 50 Cent. The requirements of the Gewinnspielsatzung detail broadcasted prize games and prize games in telemedia similar to broadcasts (e.g. minor protection, limitation of participation, information obligations).
In accordance with Section 6 (1) no. 4 TMG contests or prize games of a promotional nature must be clearly recognizable as such and the conditions of participation must be easily accessible and clearly and unambiguously stated.
Medicinal products, procedures, treatments, articles or other means may not be advertised outside professional circles as defined in Section 2 HWG (e.g. medical doctors) by means of prize draws, if these prize draws encourage the inappropriate or excessive use of medicinal products (Section 11 (1) no. 13 HWG).
Skill competitions on a commercial basis are regulated in Section 33d Trade, Commerce and Industry Regulation Act (“Gewerbeordnung” – GewO) and require a license from the relevant state authority. A skill competition exists if, in the course of a game, the decision on the win depends on skills, but not on chance.
In case a competition fulfils the conditions of gambling as defined in Section 3 (1) Interstate Treaty on the (New) Regulation of Gambling in Germany (“Glücksspielstaatsvertrag” – GlüStV) (i.e. if a fee is charged for the acquisition of a chance to win and the decision on the win depends entirely or predominantly on chance) solely the legal restrictions with respect to gambling (e.g. lottery) are applicable (such as the obligations to apply for a license), but not the rules for prize games (but see Section 11 MStV) and skill competitions. Thus, the offering of such (gambling) competition would be a criminal act pursuant to Section 184 German Criminal Code (“Strafgesetzbuch” – StGB) in case the provider of the competition has not obtained the gambling license required.
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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]
It is not required to register promotional prize competitions with a state agency or authority. However, in case of gambling the provider of the competition is obliged to apply for a license from the relevant state authority. In case a provider wants to apply for such a license several requirements must be fulfilled (qualification of the applicant, sufficient financial resources, decision about the business model (online/offline, kind of gaming, territory), etc.). The application process will take months and costs around 15.000 €.
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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?]
IP Law including trademark, design and copyright law can be a very helpful tool regarding the protection of advertising and marketing strategies.
Although, IP law does not provide protection against passing-off a mere idea of such strategy, with the tools of IP law specific elements of a strategy can be protected.
Trademark Law
Of course, it will be key to register the central trademark of an advertising campaign with either the German Patent and Trademark Office (DPMA) or the European Union Intellectual Property Office (EUIPO) for the goods and services the trademark will be marketed for. This should be done well ahead of the market entry and many companies even register various trademarks in case the final name of a product is not yet decided.
Apart from the name of the product the marketing campaign could involve certain other specific signs to make it into the memory of potential customers, like a certain shape of the product (eg think of “lean” yoghurt pots), a specific color or color combination (eg think of the recognizable schemes of oil companies) or a specific sound (eg think of the Telekom sound involved in all Telekom spots). All of those elements, but also personal names, designs, letters, numerals, three-dimensional designs or the shape of a packaging, have the potential to get registered as a trademark if they are capable of distinguishing the goods or services of one undertaking from those of other undertakings (Section 3 Act on the Protection of Trade Marks and other Signs – “Markengesetz”). Even full advertising slogans can be registered if they meet the requirements of Section 3 Markengesetz. This is typically the case if the slogan is perceived as more than a mere advertising message promoting the qualities of the goods or services, eg by including a play on words, elements of fascination or surprise, originality or if it triggers a cognitive process in the target public.
Design Law
The Act on the Legal Protection of Designs (“Designgesetz”) provides further protection for all designs that are new and have an individual character (Section 2 Designgesetz), whereas ‘individual character’ means that the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been disclosed prior to the date of filing of the application. Registering a specific design of a product can also be very helpful to further protect an advertising and marketing strategy around a certain product.
Copyright Law
In case a marketing or advertising campaign includes specific creative works, copying or other uses of such works would be protected by copyright. For example, if music, certain artwork or photographs are included in an advertising spot, the copyright or obtained exclusive licenses could provide a further tool of the protection of a campaign. On the other hand, companies using creative work for their campaigns always have to seek a full rights clearance with all authors and creatives involved for the specific use of such work.
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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?]
There are several areas where contract law and advertising law overlap. The main examples are:
First, misleading advertising is relevant in the context of warranties. Misleading advertising with regard to product characteristics constitutes a liability of the seller for the existence of these characteristics.
Furthermore, commercial practices that are unfair according to Sections 5, 5a (2) of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) may at the same time lead to the voidability of the subsequent contract according to Section 123 of the German Civil Code (“Bürgerliches Gesetzbuch” – BGB). Also, a regular case of voidability is advertising incurring criminal liability within the meaning of Section 16 (1) UWG. If a contract is concluded as a result of such advertising, this contract is usually voidable on the grounds of deceit according to Section 123 BGB.
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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?]
Commercial expressions of opinion may enjoy the protection of Article 5 (1) of the Basic Law for the Federal Republic of Germany (the German constitution called “Grundgesetz” – GG), the right of freedom of expression, if they have an evaluative, opinion-forming content. This is the case if the advertiser participates in the social communication process by taking a position on a topic of general interest. Statements relating to the advertised product may also have an opinion-forming character.
The Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) is a “general law” within the meaning of Article 5 (2) GG, which may restrict the right to freedom of expression. However, it is still necessary to weigh the legal interests protected by Article 5 (2) GG against the legal interests protected by the general law, the UWG. In the case of misleading advertising, the justification is based on the interests of third parties worthy of protection, namely consumers.
However, Article 5 (1) GG does not preclude the prohibition of advertising if it concerns objectively false statements, i.e. facts which are to be prohibited by the ban of misleading statements. Freedom of expression is protected by constitution only in its functional area, i.e. where it provides factual information or contributes to the formation of opinion. False statements of a factual nature are not protected by the constitutional freedom of expression.
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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]
In case of a breach of any provision of the Act against Unfair Competition (“Gesetz gegen unlauteren Wettbewerb” – UWG) certain market participants (mainly, competitors, qualified trade associations, chambers of industry and commerce and other professional corporations under public law in the course of fulfilling their task) will be entitled to claim cease and desist of the unfair commercial practice against the infringer.
A claim for cease and desist is usually made by sending a written warning notice (“Abmahnung”, i.e. a cease-and-desist letter) to the infringer. Such warning notice has to meet the formal requirements outlined in Section 13 para. 2 UWG. Such warning letter has the purpose to give the infringer the opportunity to settle the dispute by entering into an obligation to cease and desist subject to an appropriate contractual penalty.
If a declaration of cease and desist with an appropriate contractual penalty is not provided, the claim for cease and desist can be pursued further by applying for a preliminary injunction at the competent court. Breaches of the Act of Unfair Competition are deemed urgent by law, but usually the motion for a preliminary injunction has to be filed with the competent court within one month from obtaining knowledge of the breach (in some cases a longer deadline could be considered by the court). A preliminary injunction may be issued by the court without participation of the defendant, in particular if the defendant had sufficient opportunity to respond to a cease-and-desist letter.
If the dispute can still not be resolved by the preliminary injunction proceedings, the claim for cease and desist has to be pursued in proceedings on the merits.
A competitor would also be entitled to claim compensation of the actual damage arising from a breach of the UWG. Furthermore, consumers are entitled to compensation for damages arising from an illegal commercial practice which caused them to take a transactional decision which they would otherwise not have taken. Claims for damages have to be pursued in proceedings on the merits.
Germany: Advertising & Marketing
This country-specific Q&A provides an overview of Advertising & Marketing laws and regulations applicable in Germany.
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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]