Advertising is defined as: any form of public and/or systematic direct or indirect commendation of goods, services and/or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising.
The advertiser is an organization or a person, not being a consumer.
Explanation of Article 1
The different forms of advertising include e.g.: teleshopping, telemarketing, sponsorship, product placement, packaging, labeling, direct marketing and buzz-marketing.
It is important that the description of an (organized) mechanism may be given, by means of which the direct or indirect commendation of goods, services and/or ideas is taking place or has taken place.
The requirement of systematic commendation is needed in order to prevent all so-called one-to- one announcements, as for example, an individual promotion talk, from being regarded as ‘advertising’. A one-to-one announcement may be regarded as advertising if has been established that the statement was a standard statement and not specifically aimed at the individual receiver.
Announcements which lack any element of commendation do not fall within the definition of this article.
Examples are purely factual statements such as opening times, and purely factual statements about the policy (or changes in policy) of public authorities or private sector companies.
Also announcements about goods, services and/or ideas, in which there is no question of inducement or influencing by the advertiser, do not fall within the definition of this article. A promotional announcement made by an advertiser may therefore be called advertising *
* The Advertising Code Authority and /or the Board of Appeal shall establish whether such announcements may be imputed to an advertiser. This may be the subject of a special advertising code and will depend on the question whether the advertiser can actually exert influence on the announcement(s) and if not, whether the advertiser has made or makes sufficient effort beforehand to take care that the announcement will meet the requirements of the Dutch Advertising Code.
The total message plays a role in assessing the element of commendation. Not only is the text a matter of concern, but also size, lay-out, use of colour and so forth. The mere statement of a name of the advertiser may in itself constitute advertising (e.g. sponsor panels).
The definition does not stipulate that the commendation is a paid advertisement. Although payment is usually the case, from the point of view of the public it makes no difference whether an advertisement is placed free of charge or for payment.
Advertising must be in accordance with the law, the truth, good taste and decency.
Explanation of article 2
The provisions subject to this article include those in the Audiovisual Media Services Directive, which provide that advertising must not offend human dignity and that advertising may not contain or promote any type of discrimination on the basis of gender, race or ethnic descent, nationality, religion or philosophy, handicap, age or sexual orientation.
With the criteria “good taste and decency”, an assessment must be made based on current social views as to whether the communication exceeds permissible limits, also in light of the manner in which it is published and its effect on the public as a result. A communication published in such a way that the public cannot avoid being confronted with it will be deemed to exceed permissible limits earlier than communications published in other ways. The frequency at which the communication is seen and the situation of the communication must also be weighed.
An advertisement shall not contravene the public interest, public order or morality.
An advertisement shall not be gratuitously offensive or constitute a threat to mental and/or physical public health.
The form and content of an advertisement shall not undermine confidence in advertising.
Without justifiable cause, an advertisement shall not arouse feelings of fear or superstition.
Advertising shall not be dishonest. Advertising is considered to be dishonest if it contravenes with the requirements of professional devotion, and if it substantially disrupts or may disrupt the economic behaviour of the average consumer reached, or targeted, as regards to the product. Misleading and/or aggressive advertising is considered to be (by any means) dishonest.
Explanation of article 7
If an advertisement is targeted at a specific group of consumers, it shall only be considered dishonest if the advertisement interferes with the economic behaviour of the average member of this group. Advertisements which the advertiser could reasonably suspect to be disrupting the economic behaviour of a specific, clearly recognizable group of consumers, i.e. consumers who are easily susceptible to that type of advertising or to the corresponding products, because of a mental or physical handicap, their age or credulity, are judged from the perspective of the average member of that group. This does not affect the common legitimate advertising practice of overstatements and statements which are not to be taken literally.
Serious disruption of economic consumer behaviour means using advertising to impair the consumer’s ability to make a well-informed decision which causes the consumer to make a transaction which he otherwise would not have made.
‘Professional devotion’ is defined as the level of proficiency and care that may be reasonably expected from a dealer towards the consumer, in accordance with honest practice and/or the standard of good faith within the dealer’s market sector.
A decision on a transaction means a decision made by a consumer as to whether or not he will purchase a product and how and under what conditions he will purchase the product: whether he will pay for it in one lump sum or in installments, keep the product or dispose of it, or execute a contractual right in relation to the product, irrespective of whether or not he will conclude a transaction.
Article 8 Misleading advertising
8.1 When assessing whether or not an advertisement is misleading, all characteristics and conditions, the factual context, the limitations of the means of communication, and the public for which it is intended are to be taken into consideration.
8.2 All advertising including incorrect information, or information that is unclear or ambiguous for the average consumer in respect of one or more elements as listed in points a to g hereunder, and which would consequently entice or may entice the average consumer to make a decision on a transaction which he would otherwise not have made, is considered to be misleading:
a. The existence or the nature of the product;
b. The most important features of the product, such as availability, advantages, risks, design, composition, accessories, service and complaint handling, process and date of production or execution, delivery, suitability for use, quantity, specification, geographic or commercial origin, results to be expected, or the results and essential features of tests and controls performed;
c. The extent of the obligations of the advertiser, the motives for advertising and the nature of the sales process, the explanation of a symbol in connection with direct or indirect sponsoring, or acknowledgment of the advertiser or the product;
d. The price or the way the price is calculated, or an explicit price advantage;
e. Necessary services, spare parts, replacement or repair;
f. The quality, characteristics and rights of the advertiser or his agent, like for example his identity, his assets, qualifications, status, acknowledgment, affiliation, connections; his industrial, commercial or intellectual rights of ownership or the prizes, awards and decorations he has won;
g. The legal rights of the consumer, including the right of replacement or refund, or the risks he might run.
8.3 Advertising is also regarded as misleading if it entices or may entice the average consumer to make a decision on a transaction he would not otherwise have made. Misleading advertising includes:
a. Marketing of a product in a way that could lead to confusion with products, trademarks, business names and other distinguishing characteristics of a competitor;
b. Non-observance of a code of behaviour by the advertiser, who bound himself to this code, in so far as the obligation is verifiable and the advertiser declares himself as bound to this code;
c. Omitting essential information, keeping information concealed, supplying information, in an unclear, incomprehensible, ambiguous way or supplying the information in an untimely fashion.
Explanation of article 8.3
In case the medium used for advertising has its limitations in space or time, these limitations as well as the measures taken by the advertiser to supply the information in another way, will be taken into account when deciding whether information has been omitted. Essential information consists among other things of all information the advertiser has to provide pursuant to the law.
8.4 Invitation to purchase
In case an advertisement serves as an invitation to purchase, which does not relate to a distance contract or off premise contract, the following information shall be supplied:
a. The principal characteristics of the product, to the extent that is suitable for the medium and the product;
b. The geographical address and the identity of the advertiser, in particular his business name, and, as the case may be, the geographical address and the identity of the advertiser on behalf of whom he is acting;
c. The price, including taxes, or, if the product is such that the price thereof cannot reasonably be determined beforehand, the way the price is determined and, if the case may be, all supplementary freight costs, delivery or postage costs, or if these costs cannot reasonably be determined beforehand, the fact that these supplementary costs will possibly have to be paid;
d. The method of payment, delivery, execution and the complaint handling procedures, in case they deviate from the requirements of professional devotion;
e. The rights of withdrawal and annulment, where products and transactions with rights hereof are concerned.
Invitation to purchase in relation to a distance contract or off premises contract
If the invitation to purchase in advertising relates to a distance contract or off premises contract, instead of the abovementioned information, the following essential information shall be provided in a clear and comprehensible manner:
f. the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;
g. the identity of the trader, such as his trading name;
h. the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, where available, and, where applicable, the geographical address and identity of the trader on whose behalf he is acting;
i. the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;
j. the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;
k. the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the services and, where applicable, the trader’s complaint handling policy;
l. where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with the law, as well as the model withdrawal form set out in Annex I(B) of Directive 2011/83/EU;
m. the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
n. where applicable, the minimum duration of the consumer’s obligations under the contract.
Additional requirements for the invitation to purchase in connection with a distance contract
If the invitation to purchase advertising in related subject with a distance contract, in addition to the obligations sub f. to n, the following obligations.:
o. the information provided for under f. to n. shall be made available to the consumer in a way appropriate to the means of distance communication used. In so far as that information is provided on a durable medium, it shall be legible;
p. the consumer shall be made aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for under f., i., m. and n.
q. the electronic ordering process shall be arranged in such a way that the consumer can only accept an offer after it has been made absolutely clear that the order implies an obligation to pay.
If the acceptance is done by activating a button or a similar function, there is compliance with the previous sentence if when placing the order it is made clear in words that cannot be misunderstood and in an easily legible manner that the acceptance implies an obligation to pay towards the advertiser.
A button or similar function shall therefore be labelled in an easily legible manner with an unambiguous formulation from which it is made clear that placing the order entails an obligation to pay the advertiser. This can be done by the phrase “order with obligation to pay”;
r. In case of a means of distance communication which allows limited space or time to display the information, the advertiser shall provide, on that particular means, prior to the conclusion of such a contract, at least the information regarding the main characteristics of the goods or services, the identity of the advertiser, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indeterminate duration, the conditions for terminating the contract, as referred to under f., g., i., l. and m. The other information referred to under h., j., k. and n. shall be provided by the advertiser to the consumer in an appropriate way in accordance with what is stated above under o.;
s. When using the phone with a view to concluding a distance contract with a consumer, the advertiser shall, at the beginning of the conversation, disclose his identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call.
Explanation of article 8.4
An invitation to purchase is defined as a commercial message stating the characteristics and the price of the product in a way suitable for the medium used, and thus enabling the consumer to make a purchase. If the advertisement contains an answering or ordering mechanism, it is always considered to be an invitation to purchase. In case such a mechanism is missing, it depends on the circumstances whether there is a matter of an invitation to purchase. A key factor is whether the consumer can base a decision about the transaction on the information in the advertisement.
If the advertisement states an (upward of) price, the consumer usually has sufficient information to decide to make a transaction.
The methods of advertising which are considered misleading under all circumstances are referred to in Annex 1 of the Dutch Advertising Code.
Explanation of article 8.5
The methods of advertising as referred to in Annex 1 of the Dutch Advertising Code are misleading under all circumstances. Therefore it is not necessary to consider whether they are misleading for the average consumer, or if the economic behaviour of the average consumer is or may be substantially disrupted.
Testimonials, commendations or statements by experts that are used in advertisements shall be based on the truth and tally with the latest accepted scientific views.
Scientific terms, statistical data and quotations shall be used with the utmost care in advertisements intended for the general public, in order to obviate confusion of ideas. If use is made of statistics which are valid only within certain limits, such limits shall be stated clearly. No technical terms, descriptions, illustrations or pictures that are manifestly intended to suggest in a quasi scientific or misleading manner the presence of non-existent properties of goods or services, shall be used.
Article 11 Recognizable advertising
11.1 An advertisement shall be recognizable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended.
11.2 Advertisements in audio-visual media shall be clearly distinct from the rest of the programming by optical and/or acoustic means. The use of subliminal techniques is prohibited. The use of elements from a broadcast programme in advertising is also prohibited in the event it can be reasonably assumed that the viewers or listeners would be misled or confused by it.
The appearance in advertising of people who may be deemed, by virtue of their participation in broadcast programmes, to have influence or instil confidence in certain sections of the public is prohibited.
Explanation of article 11
The term audio-visual media particularly refers to programmes broadcast on radio and TV. Subliminal techniques refer to techniques which employ inserted images and/or sounds of very brief duration in an attempt to influence viewers or listeners, possibly without their knowledge or ability to perceive them.
If a ‘guarantee’ is mentioned in an advertisement, the scope, content and duration of the guarantee shall be made clear, in accordance with the relevant medium.
Comparative advertising is defined as any form of advertising in which a competitor, or goods or services provided by a competitor, are mentioned explicitly or implicitly. Comparative advertising is permitted – as far as the comparison is concerned- provided it:
a. is not misleading according to the spirit of the Dutch Advertising Code.
b. compares products or services that meet the same demands or are intended for the same purpose;
c. compares objectively one or more essential, relevant, checkable and representative characteristics of these goods or services, such as price;
d. does not lead to the advertiser being confused with a competitor, or the brands, trademarks, other distinguishing characteristics, goods or services of the advertiser being confused with those of a competitor;
e. does not harm the good name or make disparaging remarks about the brands, trademarks, other distinguishing characteristics, goods or services, activities or circumstances of a competitor;
f. concerns in the case of products with a designation of origin, products with the same designation;
g. leads to no unfair advantage resulting from the familiarity of a brand, trade name or other distinguishing characteristics of a competitor or the origin designation of competitive products; and
h. does not present goods or services as an imitation or copy of goods or services with a protected trademark or protected trade name.
Any comparison that refers to a special offer shall indicate clearly and unambiguously the end and, should the special offer not yet apply, the beginning of the period during which the special price or other specific conditions apply, or state that the special offer continues as long as stocks last or services can be provided.
Article 14 Aggressive advertising
14.1 Aggressive advertising is prohibited. An advertisement is considered to be aggressive in the event that, taking into account all its properties and circumstances, the actual context, the limitations of the means of communication and the public at which it is aimed, it considerably restricts or may restrict the freedom of choice and the freedom of action of the average consumer with regard to the product, by means of intimidation practices, pressure, including physical violence, or improper manipulation, as a result of which the consumer is enticed or may be enticed to make the decision to conclude a transaction, which decision he would not have taken otherwise.
14.2 The methods of advertising which are considered aggressive under all circumstances are referred to in Annex 2 of the Dutch Advertising Code.
Explanation of article 14
Improper manipulation is defined as taking advantage of a dominant position in order to put pressure on the consumer even without the use of violence or threat of violence, in such a way that the consumer’s capacity to take a well-informed decision is considerably reduced. The methods of advertising as referred to in Annex 2 of the Dutch Advertising Code are considered aggressive under all circumstances. Therefore it is not necessary to consider whether they are aggressive in respect of the average consumer, or if the economic behaviour of the average consumer is or may be substantially disrupted.
At the request of the Advertising Code Committee or the Board of Appeal the advertiser shall demonstrate the correctness of the advertisement, should this be disputed for good reasons.
The Dutch Advertising Code shall not only be applied according to the letter of its provisions but according to its spirit as well.
In the case of Special Advertising Codes, the General Section of the Dutch Advertising Code shall remain fully in force.
Companies as well as consumers have the right to submit a complaint about violations of the Dutch Advertising Code with the Advertising Code Authority. This means that where in this part of the General Code reference is made to consumers, corporate bodies are also covered. Neither consumers nor companies may submit a complaint about article 19 DAC.
NB The general part of the Dutch Advertising Code became operative on 1 February 2008 en will be applicable to advertising messages that have been published after 12 December 2007. The quotation title is: NRC
NB : After Annex 2 the old and new articles of the Dutch Advertising Code are included in a table of concordance (before (old) and after (new) 1 February 2008) as well as the corresponding articles of the Unfair Commercial Practices Directive (UCPD).
At the request of the President of the Advertising Code Committee, organizations and institutions which publish advertisements are bound to submit a valid proof of payment of the financial contribution, yearly stipulated by the Advertising Code Authority.
Explanation of article 19
The financial contribution is based upon a percentage of the advertiser’s gross media expenses. The Board of the Advertising Code Authority decides each year the percentage that applies. Furthermore, an advertiser, not being part of a concern and having no more than € 1 million gross per year media- expenses, is not bound to pay a contribution for the year concerned.
This article came into effect on 15 January 2010 and applies to contribution requests made after this date.
Since the year 2010 a 0.025 percentage has been determined (= € 250 per € 1 million media expenses) and the contribution is based upon the gross media expenses in the year passed, as produced by Nielsen. The Advertising Code Authority itself upholds the obligation to pay. See www.reclamecode.nl for further information.
Advertising is considered misleading under all circumstances in the event of:
1. Claiming to have signed a code of conduct, when this is not the case.
2. Attaching a confidence label, a quality label or similar label without having been granted the required permission.
Explanation of 1 and 2
This means, for example, that an advertiser may only use the logo of an employers’ organization if he is entitled to do so, and, that an advertisement may not suggest that the advertiser is a member of an employers’ organization or associated with an arbitration board if this is not the case.
3. Claiming that a Code of Conduct is acknowledged by a public or other authority, when this is not the case.
4. Claiming that an advertiser (and his advertisement) or a product is recommended, acknowledged or approved by a public or private organization, when this is not the case; or claim such a thing when the terms of the recommendation, acknowledgment and/or approval are not met.
5. Offering products for a certain price without mentioning that there are good reasons to suspect that the advertiser might not be able to deliver these products or similar products for the mentioned price, nor have another advertiser deliver them, during a certain period and in quantities, which are reasonable, taking into account the product itself, the range of the advertising campaign for this product and the price offered (bait).
6. Offering a product for a mentioned price and subsequently:
(a) Refusing to show the consumer the offered product; or
(b) Refusing to accept an order or refusing to deliver the product within a reasonable term; or
(c) Showing a defective example of the product with the intention to commend another product (‘bait and switch’).
7. Deceptively claiming that the product will be available for a limited period of time or only under special conditions for a limited period of time, to urge the consumer to make an immediate decision and not give him a chance or enough time to make an informed decision.
8. Claiming or otherwise suggesting that a product may be sold legally, when this is not the case.
9. Presenting legal consumer rights as distinguishing features of the advertiser’s offer.
10. Using an editorial, paid by the advertiser, for advertising a product, when this is not made clear to the consumer in the text or in easily identifiable images or sounds (advertorial).
11. Making incorrect statements with regard to the nature and extent of the life-threatening danger to the consumer and his family, in the event that he does not buy the product.
12. Promoting a product that resembles a product produced by a certain manufacturer in such a way as to purposely give the impression that the product has indeed been fabricated by this manufacturer, when this is not the case.
13. Initiating, managing or promoting a pyramid system whereby a consumer’s ability to realize compensation after his initial payment results exclusively from his introduction of new consumers into the system, rather than from the sale or use of products.
14. Claiming that the advertiser is about to stop his business or move to another place, when this is not the case.
15. Claiming that certain products may facilitate the winning of games of chance.
16. Claiming falsely that a product may cure illnesses, ailments or malformations.
17. Supplying incorrect information about market circumstances or the possibility to obtain the product with the intention to make the consumer buy the product on terms less favourable than the normal market terms.
18. Claiming within the context of an advertisement that a contest is being organised or prizes offered, without actually presenting the announced prizes or a reasonable alternative.
19. Calling a product ‘free of charge’, ‘for nothing’ or ‘at no cost available’ if the consumer has to pay something else instead of the inevitable costs, in order to respond to the offer and collect the product or have it sent for.
20. Including an invoice or similar request for payment in advertising material to create the impression that the consumer has already ordered the commended product, when this is not the case.
21. Deceptively claiming or creating the impression that the advertiser is not acting on behalf of his business, company, trade or profession, or deceptively pretending to be a consumer.
22. Deceptively creating the impression that for a certain product service is available in another member state rather than in the state where the product is sold.
‘Under all circumstances aggressive advertising’ is defined as:
1. Putting persistent and undesirable pressure in telephone calls, faxes, e-mail or other means of communication.
2. Creating the deceptive impression that the consumer has already won a prize, will definitely win a prize or, upon performing a certain action, win a prize or benefit equally, while in fact: there is no question of winning a prize or benefiting equally, or if taking steps to qualify for a prize or benefit equally otherwise, is subject to payment by the consumer of a certain amount or of the herewith related costs.
3. Acting contrary to art. 2 Introduction and sub a and b of the Code for Advertising Directed at Children and Young People (as included in the Dutch Advertising Code).
TABLE OF CONCORDANCE UNFAIR COMMERCIAL PRACTICES (UCP) (2005/29/EG)
|Art 8.4||Article 7 par. 4||Explanation of art. 8 par. 4 DAC new = article 2. i UCPD|
|Art 8.5||Article 5 par. 5|
|Art 9.||Art 8|
|Art 10||Art 9|
|Art 11||Art 10||The concept of radio/television commercials has been adjusted. The rules for television now apply to audio- visual media (radio and TV). Article has been clarified by supplementary par. 1 and 2|
|Art 12||Art 11|
|Art 13||Art 14|
|Art 14.1||Article 8|
|Art 15||Art 15|
|Art 16||Art 17|
|Art 17||Art 18|
|Art 18||adjusted||Included to explicitly specify that these rules apply to B2B as well as B2C|
|Annex 1||Annex 1 UCPD|
|1 to 7 incl.||1 to 7 incl.|
|8 to 22 incl.||9 to 23 incl.|
|Annex 2||Annex 1 UCPD|
|Art 2 Introduction, par. a and b CCY||28||CCY= Advertising Code directed at Children and Young People (=Special Advertising Codes SAC)|
|Art 12, 13 en 16 repealed||N.B. Art 13 and 16 are “empty” articles. Art 12 is included in UCP articles.|
TABLE OF CONCORDANCE AUDIOVISUAL MEDIA SERVICES DIRECTIVE
|Audiovisual Media Services Directive (2007/65/EG)||Dutch Advertising Code|
|Article 3 par 1 a||Article 11.2|
|Article 3 par 1 b||Article 11.2|
|Article 3 par 1 c sub i) and ii)||Article 2 + new explanation*|
|Article 3 par 1 c sub iii)||Article 4 and article 6|
|Article 3 par 1 c sub iv)||Code for Environmental Advertising|
|Article 3 par 1 e||Advertising Code for Alcoholic Beverages|
|Article 3 par 1 f||Special Advertising Code a.|
|Article 3 par 1 g||Code for Advertising directed at Children and Young People|
|Article 3 par 2||Advertising Code for Food Products|
|Audiovisual Media Services Directive (2010/13/EU)||Dutch Advertising Code|
|Article 9 par 1 sub g||Article 2 Advertising directed at Children and Young People|
* The explanation of article 2 was added on 17 August 2009.