EU & Spain Advertising Regulations

Posted on Dec 4, 2024 in Law & Jurisprudence

EU Regulations

EU Directives

EU directives are standards issued by EU institutions (Council and Commission) containing basic principles governing a subject. Member states must incorporate these principles into national law within a specified period. If a member state fails to do so, the directive becomes directly applicable in court cases brought by individuals. This differs from regulations, which are generally applicable and directly effective upon publication in the Official Journal of the EU.

1984 Directive on Misleading Advertising

This directive requires member states to incorporate common technical standards into their legislation. While applying only to misleading advertising, Spain extends these criteria to all illegal advertising (unconstitutional, deceptive, unfair, subliminal, and prohibited advertising). The directive defines misleading advertising based on: 1) product characteristics, 2) price, 3) conditions of supply, and 4) advertiser’s rights. Key aspects include:

  • Member states can choose between administrative and/or judicial review.
  • Authorities can prohibit unlawful advertising without prior review.
  • Cessation and rectification of advertising can be ordered.
  • Self-regulation mechanisms are encouraged.

2006 Directive on Misleading and Comparative Advertising

This directive replaced the 1984 directive and aligned with existing Spanish law (LGP), thus requiring no modification. Unlike its predecessor, it protects both consumers and competitors.

1989 Directive on Television Broadcasting

This directive sets criteria for advertising on TV and radio:

  • Maximum Time Limit: Advertising is limited to a maximum time set by each broadcaster, not exceeding 15% of daily transmission time.
  • Principle of Authenticity: Clear separation between advertising and other content is required.
  • Restrictions on Alcohol and Tobacco Advertising: Tobacco advertising is prohibited, and alcohol advertising is restricted.
  • Protection of Minors: Ads with pornographic or violent content are prohibited during certain times.
  • Sponsorship: Sponsorship is allowed, but sponsors cannot influence program content.

2007 Directive on Audiovisual Media Services

This directive supersedes and complements the 1989 directive. Key points include:

  • Extends obligations to all audiovisual broadcasts, regardless of technology.
  • Simplifies rules on advertising rates.
  • Regulates product placement, prohibiting it in children’s programming for unhealthy food and beverages.
  • Encourages self-regulation.

Spanish Advertising Legislation

History

The first advertising legislation was the 1964 Statute of Advertising, later repealed by the 1988 General Advertising Act (LGP). Reasons for the reform included:

  • Modernizing advertising law to address new contracts like sponsorship.
  • Adapting to EU directives, particularly the 1984 directive on misleading advertising.
  • Dissolving the Central Jury of Advertising and transferring jurisdiction to ordinary courts.
  • Systematizing advertising regulation while maintaining core concepts like illegal and subliminal advertising.

Key differences between the Statute and the LGP:

  • Elimination of advertising agencies.
  • Introduction of sponsorship contracts.
  • Improved system for addressing illegal advertising.
  • Increased consumer protection.

Current Characteristics of the LGP

Key features of the current LGP:

  • Communicative Character: Advertising is defined as any communication promoting goods and services, aligning with the constitutional right to communicate and receive information.
  • Self-Regulation and Jurisprudence: While the law provides a judicial system for resolving disputes, self-regulation and jurisprudence are increasingly important.
  • Definition of Illegal Advertising: The right to communicate is limited by other fundamental rights, such as honor, privacy, and protection of minors. Penalties for illegal advertising typically involve publicity and correction, with administrative and financial penalties possible for consumer or health law violations.
  • Contract Management: The LGP addresses specific aspects of advertising contracts within the broader framework of civil and commercial law.
  • Special Advertising Schemes (Article 8): Autonomous communities can establish special rules for advertising of sanitary materials, health-risk goods, games of chance, drugs and medicines, and tobacco and alcohol. These rules often involve prior authorization and specific penalties.