Click here to download the Advertising and marketing 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 15 jurisdictions are covered in this report:

Australia; Austria; Brazil; Canada; France; Germany; Hong Kong; India; Ireland; Japan; Russia; Sweden; Switzerland; United Kingdom; United States

Questions

The set of questions relating to the topic of Adverting & marketing and answered by the guide for each jurisdiction covered include:

Legislation and regulation

• • What are the principal statutes regulating advertising generally?
• • Which bodies are primarily responsible for issuing advertising regulations and enforcing rules on advertising? How is the issue of concurrent jurisdiction among regulators with responsibility for advertising handled?
• • What powers do the regulators have?
• • What are the current major concerns of regulators?
• • Give brief details of any issued industry codes of practice. What are the consequences for non-compliance?
• • Must advertisers register or obtain a licence?
• • May advertisers seek advisory opinions from the regulator? Must certain advertising receive clearance before publication or broadcast?

Private enforcement

• • What avenues are available for competitors to challenge advertising? What are the advantages and disadvantages of the different avenues for challenging a competitor’s advertising?
• • How may members of the public or consumer associations challenge advertising? Who has standing to bring a civil action or start a regulatory proceeding? On what grounds?
• • Which party bears the burden of proof?
• • What remedies may the courts or other adjudicators grant?
• • How long do proceedings normally take from start to conclusion?
• • How much do such proceedings typically cost? Are costs and legal fees recoverable?
• • What appeals are available from the decision of a court or other adjudicating body?

Misleading advertising

• • How is editorial content differentiated from advertising?
• • How does your law distinguish between “puffery” and advertising claims that require support?
• • What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?
• • Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?
• • Are there specific requirements for advertising claims based on the results of surveys?
• • What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?
• • Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?
• • Are there special rules for advertising depicting or demonstrating product performance?
• • Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief, or experience?
• • Are there special rules for advertising guarantees?
• • Are there special rules for claims about a product’s impact on the environment?
• • Are there special rules for describing something as free and for pricing or savings claims?
• • Are there special rules for claiming a product is new or improved?

Prohibited and controlled advertising

• • What products and services may not be advertised?
• • Are certain advertising methods prohibited?
• • What are the rules for advertising as regards minors and their protection?
• • Are there special rules for advertising credit or financial products?
• • Are there special rules for claims made about therapeutic goods and services?
• • Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?
• • What are the rules for advertising alcoholic beverages?
• • What are the rules for advertising tobacco products?
• • Are there special rules for advertising gambling?
• • What are the rules for advertising lotteries?
• • What are the requirements for advertising and offering promotional contests?
• • Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Updates and trends

• • Briefly give details of any other notable special advertising regimes.

Social media

• • Are there any rules particular to your jurisdiction pertaining to the use of social media for advertising?
• • Have there been notable instances of advertisers being criticised for their use of social media?
• • Are there regulations governing privacy concerns when using social media?