In brief: prohibited and controlled advertising in Germany – Lexology

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Prohibited and controlled advertising
What products and services may not be advertised?
German law does not provide for absolute limitations for advertising products and services in general if the products and services themselves are permitted. An exception hereto applies to advertising for pornographic material, which is generally prohibited, and under some circumstances for advertising for procuring abortions (section 219a German Criminal Code). Moreover, specific restrictions exist for advertising particular products and services, mainly depending on specific communication channels. For example, tobacco advertising is banned on German radio and television. Advertising tobacco products in the press and on the internet is also mostly prohibited.
Are certain advertising methods prohibited?
The prohibitions on certain advertising methods are mainly derived from the general rules of the Unfair Competition Act (UWG). Advertising activities are inadmissible whenever the freedom of decision of consumers is impaired, for example, through applying pressure or exploiting a consumer’s credulity or fear.
Sending advertising emails without the prior consent of the recipient is generally prohibited. The same applies to telephone advertising (‘cold calls’). If the commercial nature of these commercial practices is not clear, it is a misleading omission pursuant to section 5a, paragraph 6 of the UWG, and subliminal advertising is generally prohibited.
Regarding broadcasting and telemedia, particular advertising methods are also subject to the specific rules of the State Media Treaty (MStV). It also contains, for example, rules prohibiting the use of subliminal techniques.
What are the rules for advertising as regards minors and their protection?
Rules on the protection of minors in advertising via broadcasting and telemedia can be found in particular in section 6 of the Interstate Treaty on the Protection of Minors in the Media (JMStV). As a general principle, advertising must not harm children and juveniles physically or mentally. Advertising must not directly exhort minors to buy a product or service by exploiting their inexperience or credulity, or directly encourage them to persuade their parents to purchase the goods or services being advertised (section 6, paragraph 2 JMStV). Further restrictions can be found in the German Minors Protection Act (JuSchG). Furthermore, the Advertising of Medicines Act (HWG) prohibits advertising in particular for medicinal products that are aimed exclusively or predominantly at children under the age of 14. Additionally, the general rules of the UWG are applicable (see also No. 28 Annex of section 3, paragraph 3 UWG).
Are there special rules for advertising credit or financial products?
Advertising of credit or financial products must meet the specific requirements for clear and comprehensive information about the product. In this regard, the Ordinance Regulating the Indication of Prices contains detailed provisions, particularly on the amount of mandatory information. For example, credit advertising must contain information on the net loan amount, the borrowing rate and the annual percentage rate using an easily understood example. Infringement of these rules is deemed unfair competition.
Furthermore, such advertising is subject to the general rules of the UWG and, therefore, must not contain any misleading information. This applies, in particular, to claims about the risks and the earning potential of the investments being advertised.
Are there special rules for claims made about therapeutic goods and services?
Specific rules for therapeutic claims can be found in the HWG, the Medical Devices Act or the professional requirements for pharmacists at state level. Misleading advertising for therapeutic goods and services is also deemed to be unfair competition pursuant to the rules of the UWG. The HWG provides special rules for advertising outside the medical circle of experts. The act contains a list of broad restrictions for third-party endorsements and testimonials, advertisements using pictures and specific advertising methods. In addition, it is generally prohibited to advertise remote medical treatment. Furthermore, advertising medicines that have not been approved for sale on the German market is forbidden.
Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?
The use of health and nutrition claims for advertising is only permissible if the respective claim complies with the provisions of Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods. While the latter must be authorised by the competent authority, the Regulation contains a list of approved nutrition claims. Advertisers should review the EU Register of permitted nutrition claims, authorised health claims and their respective conditions of use. Violations of this Regulation may be deemed to be unfair competition pursuant to the UWG.
Claims that make reference to weight control are generally permitted if they are scientifically substantiated and not misleading.
Specific advertising activities outside the scope of the Regulation are covered by the national rules of the German Food and Feed Code.
What are the rules for advertising alcoholic beverages?
According to section 8, paragraph 10 of the MStV, advertising for alcoholic drinks must not promote the excessive consumption of such drinks. Beyond that, advertising alcoholic beverages is subject to the general regulations of the JuSchG and the JMStV. Pursuant to section 6, paragraph 5 of the JMStV, advertising of alcoholic beverages must not be aimed at minors, nor specifically appeal to them through its presentation or show minors consuming alcohol. Furthermore, the German Advertising Council has established a strict code of conduct for advertising alcoholic beverages.
Such advertising is also covered by the general regulations of the UWG.
What are the rules for advertising tobacco products?
Advertising tobacco products and electronic cigarettes is strictly regulated in Germany. In May 2016, the Tobacco Products Directive (Directive 2014/40/EU) was transposed into national law by the Law on Tobacco Products and Related Products. The Act provides for restrictions on any communication channel. While tobacco advertising is completely banned on television and radio, advertising in print media and on the internet is restricted to media that is only available for tobacco distributors or that mainly contains information about tobacco products. A sole exception is still made for billboard advertising, which is generally permissible, and tobacco advertisements in cinemas after 6pm.
Similar to the advertising of alcoholic beverages, advertising for tobacco must not be addressed to minors.
Are there special rules for advertising gambling?
In Germany, the operation of gambling is strictly regulated. The same applies to its advertising, which is in particular subject to the regulations of the State Treaty on Gambling (GlüStV). Pursuant to section 5, paragraph 2 of the GlüStV, advertising shall not be aimed at minors or comparably vulnerable target groups. Misleading claims, in particular regarding the chances of winning or the nature or amount of the winnings, are prohibited. Public gambling advertisements on television, the internet or telecommunications systems are forbidden. A sole exception is made for online gambling and advertising in the state of Schleswig-Holstein. According to section 5, paragraph 3, sentence 2 of the GlüStV, other states may also grant exemptions for lotteries, sports and horse race betting. However, advertising for sports betting is still prohibited directly before and during live sports events (section 5, paragraph 3, sentence 3 GlüStV). The states also adopt joint regulations to define the nature and scope of permissible gambling advertising.
However, a fundamental revision of gambling law in Germany is due to take effect on 1 July 2021. At that time, a revised nationwide State Gambling Treaty is scheduled to come into force. The State Treaty on Gambling 2021 (GlüStV 2021) was agreed upon by the prime ministers of the federal states in March 2020 and signed at the end of October 2020. Ratification by the parliaments of the federal states is still pending. The GlüStV 2021 will provide the opportunity to obtain a permit for online poker, virtual slot machines and online casino games, and already existing possibilities to obtain permits – eg, for sports betting and for lotteries – will be extended. Permits issued by Schleswig-Holstein will continue to be valid until 31 December 2024 at the latest under the transitional provisions of section 29, paragraph 7 of the GlüStV 2021, if the respective provider submits an application for a permit under the new interstate treaty by 1 July 2022. The German states have also adopted a transitional regime for sports betting, virtual slots and online poker. The enforcement of the current restrictions shall already be adjusted with regard to the future changes of the law.
Subject to other statutory provisions, holders of a permit may advertise the permitted gambling activities and engage in sponsorship under the GlüStV 2021. They may also commission third parties to conduct the advertising. In the issued permit, further specifications for the advertising shall be made.
However, there are still strict generally applicable guidelines on the way advertising is carried out. The nature and amount of the advertising must not contradict the objectives of GlüStV 2021. Furthermore, advertising must, in particular, not be excessive, must not be directed at minors or comparably vulnerable target groups, and must not contain any misleading statements. Advertising for sports betting with active athletes and officials is not permitted.
Furthermore, there are additional specific regulations with regard to the respective communication channel used. In particular, between 6am and 9pm, advertising via broadcast and the internet for virtual slot machine games, online poker and online casino games is prohibited. Immediately before or during the live broadcast of sports events, advertising for sports betting based on this sports event is not permitted on the broadcasting channel.
Advertising via telephone or SMS is prohibited, unless a telephone call is initiated by a (potential) customer and the customer gives his or her consent to the advertising. The prohibition does not apply to telecommunications within an existing contractual relationship. Advertising targeted at individual persons, in particular via postal mail or via email, may only be carried out if the recipient has given his or her prior consent and a query has been made as to whether he or she is barred from participating in such gambling owing to inclusion in a blacklist, for which consent is required too. Furthermore, no variable remuneration, in particular remuneration based on revenue, deposits or stakes, may be agreed upon or paid for advertising, in particular in the form of affiliate links.
Advertising for unauthorised gambling will remain prohibited under the GlüStV 2021.
What are the rules for advertising lotteries?
As a sub-category of gambling, lotteries are subject to the general provisions of the GlüStV and, presumably, after 1 July 2021, of the GlüStV 2021. Besides the above-mentioned restrictions, advertising lotteries may be permissible in accordance with the Joint Advertising Guideline of the States Regarding Gambling that was issued on the basis of the current GlüStV. This framework applies to lotteries that are organised no more than twice a week and those with a low-risk potential.
The restriction regarding the targeting of individual persons and the prohibition of variable compensation for advertising under the GlüStV 2021 do not apply to lotteries that are organised no more than twice a week, as well as lotteries in connection with savings plans. However, this privilege does not apply to instant lotteries on the internet. Nevertheless, the general rules, in particular those of the UWG and the GDPR, remain applicable when addressing persons individually.
What are the requirements for advertising and offering promotional contests?
Advertising activities for promotional contests and games are generally permissible if they are transparent and not misleading. They should provide information on the terms and conditions of participation, particularly the costs, and the announcement of the solution. False statements or non-disclosure of mandatory information are prohibited.
Sweepstake shows and contests in broadcasts and in telemedia are generally permitted by the MStV. They must be transparent, protect the interests of participants and must not mislead or harm the interests of participants. In particular, the programme must provide information about the costs of participation, eligibility, the design of the game and the solution of the posed riddle. The protection of minors must be ensured. In addition, the state media authorities have jointly issued statutes on sweepstake shows and contests. This statute specifies in particular the penalties for violations and the conditions for the participation of minors.
Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?
Indirect marketing is highly restricted in broadcasting and internet media. Section 10 of the MStV contains specific provisions for commercial sponsorship in broadcasts. Sponsored programmes must be clearly identified as such by the name, logo or any other symbol of the sponsor at the beginning or at the end of the programmes. Sponsors must not have any influence on the content and scheduling. This applies accordingly to on-demand audiovisual media services and services consisting of programmes that can be accessed for an individual fee.
According to section 8, paragraph 7 of the MStV, surreptitious advertising and purposeful topic placement as well as corresponding practices are prohibited. However, product placements are generally permitted. There are only exceptions for some specific types of broadcasts, in particular news programmes and programmes for children. Nevertheless, editorial responsibility and independence with regard to content and placement in the broadcast schedule must remain unimpaired, the product placement must not directly encourage the purchase, rental or lease of goods or services, and the product must not be featured too prominently. Product placement must also be clearly indicated.
Furthermore, indirect marketing is subject to the general rules of the UWG. It may be deemed unfair competition if the advertising character is not clearly recognisable.
Briefly give details of any other notable special advertising regimes.
Section 8, paragraph 9, sentence 1 of the MStV declares political, religious and ideological advertising to be inadmissible in broadcasts. However, this does not apply to public service announcements and charity appeals. These rules are also applicable for on-demand audiovisual media services. Advertisement of a political, ideological or religious nature in other telemedia is permitted, but it must clearly indicate the advertiser in an appropriate manner.
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