9. Advertising Aspects

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9. Advertising Aspects

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Whisky
EU

This section provides information on regulations on advertising and if there are any restrictions or approval processes.

9.1 Applicable Advertising Regulation

General Food

Marketing communications for food products should be in compliance with the relevant EU and national legislation.

The main EU law reference to be taken into account is Regulation (EC) 1924/2006 [1] on nutrition and health claims made on foods which fully applies to nutrition and health claims made in commercial communications, whether in the labeling, presentation, or advertising of foods to be delivered as such to the final consumer (see Section 5 for details on Claims).

The general principles on fair information practices set by Article 7 of Regulation (EU) 1169/2011 [2] on the provision of food information to consumers as well as the rules on voluntary information set by Article 26 are also applicable to advertising. Furthermore, Directive 2006/114/EC [3] enunciates the conditions required for comparative advertising and criteria for determining whether advertising is misleading.

In addition, a series of European consumer protection measures have been transposed at the national level (e.g. consumer codes) and are also relevant.

Finally, other specific national provisions and guidelines/rules set by advertising self-regulation national authorities or antitrust authorities may be relevant depending on the target market:

The self-regulatory codes of conduct developed by organizations like the European Advertising Standards Alliance (EASA) [4] and national advertising self-regulatory organizations provide guidelines for responsible advertising practices, including the promotion of food products. While specific guidelines may vary slightly between different organizations and jurisdictions, they generally include the following principles:

Truthfulness and Accuracy: Advertisements should be truthful, accurate, and not misleading to consumers. Claims made about food products, including their nutritional content, health benefits, and other attributes, should be supported by reliable evidence.

Social Responsibility: Advertisers should consider the potential impact of their advertisements on society, particularly in relation to public health. They should avoid promoting unhealthy eating habits or encouraging excessive consumption of snack foods, especially among children.

Respect for Consumers: Advertisements should respect the dignity and rights of consumers, including their right to make informed choices about the foods they consume. Advertisers should avoid exploiting consumers' vulnerabilities or using deceptive tactics to promote food products.

Clear and Transparent Communication: Advertisements should communicate clearly and transparently with consumers, using language and imagery that are easy to understand. Information about the nutritional content, ingredients, and potential health effects of food products should be presented in a clear and prominent manner.

Sensitivity to Cultural and Social Diversity: Advertisers should be sensitive to cultural and social diversity when creating advertisements for food products. They should avoid using stereotypes or discriminatory imagery that may offend or alienate certain groups within society.

Protection of Children: Advertisements for food products should take particular care to protect children from harm. Advertisers should avoid marketing snack foods in a way that could encourage unhealthy eating habits or contribute to childhood obesity.

Environment and Sustainability: Advertisers should consider the environmental impact of food production and consumption, promoting sustainable practices wherever possible. They should avoid making false or misleading claims about the environmental benefits of food products.

Compliance With Legal and Regulatory Requirements: Advertisers should ensure that their advertisements comply with all relevant laws, regulations, and industry standards governing the advertising of food products.

These are all covered fully in the Framework for Responsible Food and Beverage Marketing Communications [5].

The EASA closely monitors the debate on the EU Platform for Action on Diet, Physical Activity, and Health [6] which was established by the European Commission in 2005 to bring stakeholders together to make commitments to diet and nutrition. EASA also keeps an eye on the discussions of the World Health Organization [7] on issues related to obesity, children, and the impact of marketing.

Additionally, the primary legislation governing advertising in the EU is the Audiovisual Media Services Directive (AVMSD) [8] which applies to audiovisual media services including television broadcasts, on-demand services, and video-sharing platforms. Several regulations and directives address specific aspects of food advertising, including claims made about nutritional content or health benefits.

The Digital Services Act (DSA) [9] is a new ruling and is aimed at regulating digital services, including online platforms and intermediaries. While the DSA primarily focuses on issues related to online content moderation, liability, and transparency, it may indirectly impact the advertising of food products, including snacks, that are promoted through digital channels.

Sanctions rules and controls are made by national competent authorities.

Category

Alcoholic beverages

The requirements explained under "General Food" above are also valid for alcoholic drinks. In particular, the use of claims on alcoholic drinks is restricted as detailed in Section 5.

In addition, the Audiovisual Media Services Directive (Directive 2010/13/EU) [10] contains provisions defining certain criteria concerning advertisements for alcoholic beverages:

Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages.
Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 [10] (see below).
Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

Article 22 [10]:

Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

(a) it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;

(b) it shall not link the consumption of alcohol to enhanced physical performance or to driving;

(c) it shall not create the impression that the consumption of alcohol contributes towards social or sexual success;

(d) it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative, or a means of resolving personal conflicts;

(e) it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;

(f) it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.

Based on the above-mentioned principles, each European country has its own regulations covering alcohol marketing and advertising, which are relevant depending on the target market.

Finally, even if not legally binding, the ELSA project report on the evidence of strengthened regulation to protect young people [12] along with the Study on the exposure of minors to alcohol advertising on TV and in online services [11], provides an overview on the impact of advertising on young people [12].

Product

Whisky

Same as "Category" (alcoholic beverages) above.

9.2 Specific Restrictions on Advertising

General Food

Article 16 of the General Food Law Regulation (Regulation (EC) No 178/2002) [13] specifies that labeling, advertising, and presentation of food, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers.

The whole EU law aims at the protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume.

It also aims at the prevention of fraudulent or deceptive practices, the adulteration of food, and any other practices that may mislead consumers.

In this context, Regulation (EU) No 1169/2011 [2] lays down provisions on fair information practices. Food information shall not mislead the public, particularly:

Food information shall be accurate, clear, and easy for the consumer to understand and, subject to derogations provided for by Union law applicable to specific food categories, food information shall not attribute to any food the property of preventing, treating, or curing a human disease, nor refer to such properties.

Restrictions on claims, already specified in Section 5 of this guidebook, are also applicable to commercial communications.

Category

Alcoholic beverages

Restrictions and principles applicable to "General Food" above are also applicable to alcoholic drinks.

In addition, the principles (and the restrictions as a consequence) reported in Section 9.1 above (Article 22 ('a' to 'f') of the Audiovisual Media Services Directive) are those applicable to alcoholic drinks, also considering that most of the rules are set at national level [14].

Product

Whisky

Same as "Category" (alcoholic beverages) above.

9.3 Advertising Approval

General Food

There is no specific EU authority in charge of controls of advertising. While EU law principles are fully applicable, the enforcement of controls and fines is carried out by national competent authorities. Therefore, it is crucial to review advertising proposals on a country-by-country basis, as local interpretations and actions may vary across different countries.

Category

Alcoholic beverages

Same as "General Food" above.

Product

Whisky

Same as "Category" (alcoholic beverages) above.