Significant changes to regulation of advertising introduced

Spain

The legislation governing advertising in Spain has undergone significant amendments in early 2010.

First, the transposition into Spanish legislation of Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market entailed far-reaching amendments to the Unfair Competition Act and the General Advertising Act (for further details please see "New unfair competition legislation comes into force"). With regard to advertising, the following classification now applies:

  • Acts of unlawful advertising will be regulated by the General Advertising Act; and
  • Acts of unfair advertising will be regulated by the Unfair Competition Act.

Acts of 'unlawful advertising' may be defined as follows:

  • Advertising which violates human dignity or constitutional rights;
  • Advertising which portrays women in a degrading manner;
  • Advertising directed at minors which exhorts them to purchase certain goods or services by taking advantage of their inexperience or credulity, and advertising which shows children in dangerous situations without justification; and
  • Subliminal advertising.

Under the Unfair Competition Act, 'unfair advertising' acts include the following:

  • Misleading advertising - namely, advertising which contains false statements or information which, albeit true, deceives or may deceive those to whom it is addressed because of its content or presentation;
  • Advertising which conceals or omits relevant information and, as a result, is likely to affect the economic behaviour of those to whom it is addressed;
  • Comparative advertising in which reference is made, either explicitly or implicitly, to a competitor, except where the following conditions (among others) are met: 
    • the goods or services compared have the same purpose;
    • the comparison is objective and relates to essential, relevant, verifiable and representative characteristics of the goods or services;
    • goods bearing a given designation of origin are compared with other goods bearing the same designation of origin; and
    • the goods or services are not presented as replicas of other goods identified by a protected trademark or trade name; and
  • Advertising that is likely to create confusion among consumers, disparaging advertising and advertising that takes unfair advantage of another’s reputation.

A second piece of legislation that has given rise to changes in the regulation of advertising in Spain is the General Audiovisual Communication Act. This act transposes into Spanish law Directive 2007/65/EC on the coordination of certain provisions laid down by law, regulation or administrative action in member states concerning the pursuit of television broadcasting activities.

The act prohibits commercial communications relating to the following items:

  • Cigarettes and other tobacco products, and the companies which manufacture them;
  • Prescription-only medicines and health products;
  • Alcoholic beverages with a 20 degrees plus alcohol content. Advertisements for alcoholic beverages with an alcohol content of under 20 degrees may be broadcast only, barring exceptional circumstances, between 8:30pm and 6:00am and may not:
    • target minors;
    • encourage immoderate consumption of alcoholic beverages; or
    • associate the consumption of alcoholic beverages with improved physical performance, social success or improved health.

The prohibition also extends to the following forms of advertising:

  • surreptitious and subliminal advertising; and
  • advertising which encourages behaviour prejudicial to health, safety or the environment.

The act also regulates product placement, to which the following conditions apply:

  • Product placement is permitted only within full-length or short cinematographic works, documentaries, films and series made for television, sports programmes and light entertainment programmes.
  • Outside of these limits, product placement may take place only via the provision of free goods or services, such as production props and prizes, with a view to their inclusion in a programme.
  • Product placement in any form is prohibited within children's programmes.
  • Programmes containing product placement may not directly encourage the purchase of the product in question or give undue prominence thereto.
  • Viewers must be clearly informed of the existence of product placement - namely, information to that effect must be given at the start and end of the programme, and immediately after any advertising break.
  • Product placement is not permitted for goods the advertising of which is prohibited. This applies, in particular, to tobacco products, prescription-only pharmaceuticals and alcoholic beverages with a 20 degrees plus alcohol content.

The provisions of the General Audiovisual Communication Act are due to enter into force three months from the date of publication of the act - that is, on July 1 2010.

Jesús Gómez Montero, Elzaburu, Madrid

Unlock unlimited access to all WTR content