Top 3 Legal Predictions on Advertising for 2020

By Elena Varese, Andrea Michelangeli and Vanessa Krieg

One of the greatest dangers of advertising is not that of misleading people, but that of boring them to death”. Thus, in the hope not to be too boring, there you go with our predictions for 2020 on advertising law!

  1. New sustainability test for advertising

Consumers are increasingly sensitive towards sustainability issues and the ecological and ethical qualities of a product, which can consequently influence consumers’ purchasing choices. Accordingly, the last trend in retail is to use materials and manufacturing processes that respect the environment and local communities, along with animal safety and high-quality working conditions of the employees involved.

However, when making environmental and sustainability claims, companies must ensure compliance with provisions aimed at avoiding that green marketing turns into the so-called “greenwashing”, by misleading consumers in relation to the characteristics of the promoted products . In fact, in addition to the general provisions on misleading advertising, more precise indications with respect to green claims in Italy come from the Code of Marketing Communication (CAP) and from the last version of the EU Commission Unfair Commercial Practices Directive (UCPD) Guidelines.

In particular, pursuant to art. 12 CAP, specifically referring to the protection of the natural environment, “advertising claiming or suggesting environmental or ecological benefits must be based on truthful, pertinent and scientifically verifiable evidence. Such advertising must ensure a clear understanding of which aspect of the product or activity the claimed benefit refer to”.

The UCPD Guidelines further provide a check-list to be followed in the creation of a commercial communication that emphasizes sustainability of a product. In fact, the UCDP Guidelines establish that traders must present their green claims in a clear, specific, accurate and unambiguous manner, and must provide proper evidence to support their claims in an understandable way, in case the claim is challenged by the competent enforcement authorities.

In this scenario, vague and general claims such as “environmentally friendly”, “green”, “cruel free”, “km 0”, “nature’s friend”, “ecological”, “sustainable”, “environmentally correct”, “climate friendly”, or “gentle on the environment” are considered difficult to substantiate.

Nevertheless, such claims are still today much used in the advertising of consumer products to attract customers. In light of this, we expect that in 2020 the number of disputes in relation to sustainability claims will increase. As such, we expect that the growing concern on sustainability issues will lead to more specific guidelines on the advertising of sustainable products from court and local advertising authorities.

  1. Clarity on the boundaries of “indirect advertising

It is crucial to protect consumers against any direct or indirect promotion of products which could lead to any physical or psychological harm to the person. As such, national laws limit the proportion of certain products (like alcohol, tobacco and gaming) based on public policy concerns. But how far can the limitation to the indirect advertising of such products go?

The Italian Communications Authority, in its guidelines to the implementation of the provisions of Law Decree No. 87/2018 concerning the advertising of gaming and gambling related products, issued in April 2019, has defined “indirect advertising” as “any form of communication broadcasted … in order to promote supply, against payment, of goods or services, regardless of the explicit induction of the recipient to purchase the product or service offered”.

We expect that in 2020 the challenges brought up by consumers and consumers’ associations concerning the indirect advertising of the products and sectors involved will increase, given the variety of circumstances that may fall under the current definition of “indirect advertising”.

Accordingly, we expect that such definition will be further specified through new guidelines and legal provisions, which could contribute to a clarification that is needed to balance both the values of the safety of consumers and of entrepreneurship.

  1. Enhanced protection against any discrimination in advertising

In November 2019, the Italian Advertising Board (IAP) released two sets of guidelines for the stakeholders of the advertising sector to fight every promotional message that is harmful for the dignity of the person, or that is improper for minors who may come across it.

In particular, the IAP “Guidelines on the person” analyze various categories of conducts in relation to the use, for example, of nudity or sexuality in the advertisings, as well as of stereotyped gender roles, or idealized and clichéd body characteristics. As far as the IAP “Guidelines on minors” are concerned, various types of messages that can harm young people have been highlighted, such as those that improperly affect their sexuality, comparing it with that of adults.

Another important topic covered by the IAP guidelines is eating disorders, a societal issue which keeps spreading more and more quickly through the Internet and social media, especially between the youngest. The IAP decided to fight this phenomenon through a new provision of the CAP, which now prohibits at art. 12-bis to use in advertising any image of the human body inspired by aesthetic models clearly associated with eating disorders that are harmful to health.

Along the same lines, on 14 June 2019 the UK Advertising Standards Authority (ASA) has issued new rules banning harmful gender stereotypes in advertising, in light of the potential harm caused by reinforcing limiting perceptions about how people should look or behave on account of their gender.

In light of the new provisions and guidelines mentioned above, for 2020 we foresee an increase of the compliance standards for advertising with regard to the respect and dignity of the person and minors, as well as a new line of precedents on what may fall under the broad legal definition of discriminatory adverting or gender stereotypes.

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