Advertising & Marketing 2021 & Marketing Advertising Advertising & Marketing 2021 Contributing firm Frankfurt Kurnit Klein & Selz, PC © Law Business Research 2021 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Advertising & [email protected] Senior business development manager Adam Sargent Marketing [email protected] Published by Law Business Research Ltd Meridian House, 34-35 Farringdon Street 2021 London, EC4A 4HL, UK The information provided in this publication Contributing firm is general and may not apply in a specific situation. Legal advice should always Frankfurt Kurnit Klein & Selz, PC be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– client relationship. The publishers and authors accept no responsibility for any Lexology Getting The Deal Through is delighted to publish the eighth edition of Advertising & acts or omissions contained herein. The Marketing, which is available in print and online at www.lexology.com/gtdt. information provided was verified between Lexology Getting The Deal Through provides international expert analysis in key areas of February and March 2021. Be advised that law, practice and regulation for corporate counsel, cross-border legal practitioners, and company this is a developing area. directors and officers. Throughout this edition, and following the unique Lexology Getting The Deal Through format, © Law Business Research Ltd 2021 the same key questions are answered by leading practitioners in each of the jurisdictions featured. No photocopying without a CLA licence. Our coverage this year includes new chapters on Germany and Turkey. First published 2004 Lexology Getting The Deal Through titles are published annually in print. Please ensure you Eighth edition are referring to the latest edition or to the online version at www.lexology.com/gtdt. 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London March 2021 Reproduced with permission from Law Business Research Ltd This article was first published in March 2021 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2021 Contents Introduction 3 India 37 Frankfurt Kurnit Klein & Selz, PC Safir R Anand and Swati Sharma Anand and Anand Austria 4 Georg Huber, Stefan Kofler and Fabian Bösch Japan 46 Greiter Pegger Kofler & Partners Chie Kasahara Atsumi & Sakai Brazil 11 Luiz Werneck and Talita Sabatini Garcia Switzerland 53 Inglez, Werneck, Ramos, Cury & Françolin Advogados Sylvia Anthamatten Walder Wyss Germany 20 Beatrice Brunn and Stefan Engels Turkey 60 DLA Piper Bentley Yaffe, Sila Sayli, Mina Yanik and Bengisu Incikli CETINKAYA Hong Kong 28 Angus Forsyth United States 69 Angus Forsyth & Co Terri Seligman and Jordyn Eisenpress Frankfurt Kurnit Klein & Selz PC 2 Advertising & Marketing 2021 © Law Business Research 2021 Introduction Frankfurt Kurnit Klein & Selz, PC Advertising may be virtually any communication that impacts on unbiased’ verification of the seller’s claims. Expert testimony and consumers’ impressions about a marketer’s products or services, or scientific explanations from professors or doctors make extraordinary even policies and practices. Traditional media did not have much diffi- claims believable. Reliable reports of many satisfied customers simi- culty distinguishing editorial content from the paid insertions that were larly provide a substitute for having to take the seller’s word for the authored by an advertiser, but now the integration of brand messages truth of his or her claims. And finally, a money-back guarantee suggests into the content stream is exploding. Today, virtually all content crea- that performance is measurable and real. In short, facts, demonstra- tors, including trusted news sources, are creating content supported in tions, tests, endorsements, surveys, guarantees and other means to a variety of ways by advertisers. Public relations and corporate commu- overcome consumers’ natural cynicism about claims made by adver- nications that were earlier viewed as ‘editorial’ material, now must be tisers and enhance the credibility of the advertiser’s message must be reviewed in terms of the stricter tests imposed on advertising. Press supported by hard data and controlled proof. releases, letters to newspapers and content that is placed or even made It is not a question of what was intended. Advertising is judged available in the stream of digital media may be deemed to be adver- based on what is communicated and understood by the consumer. Thus, tising. Digital media afford an instant opportunity to move from editorial we must define the relevant consumers who are likely to be influenced to purchase, perhaps with a revenue share for the content provider, and by the advertising in making purchasing decisions. This raises the ques- this too may cause the content to be viewed as advertising. tion of what these consumers understand before seeing the advertising Truth in advertising is largely a matter of the techniques that sales- and what they take away from the advertising. Regulators may view people have always used to overcome consumers’ tendency to doubt the communication from the perspective of the reasonable consumer the seller’s claims. Grandiose claims couched in extraordinary super- to whom the advertising is directed acting reasonably in the circum- latives, incapable of any kind of verification and not addressing any stances. Or they may seek to protect the ‘village idiot’: ‘the ignorant, the specific or absolute characteristic of the product are still mere ‘puffery’. unthinking and the credulous who, in making purchases, do not stop They get the consumer’s attention, but they are just ‘hot air’. They are to analyse but are governed by appearances and general impressions’ not likely to convince the consumer to purchase the product on any (Aronberg v Federal Trade Commission, 132 F.2d 165 (7th Cir 1942)). basis that the consumer cannot evaluate. Truth becomes an issue when Thus, regulators may allow for a portion of the audience being confused, apparent, objective or independent evidence that supports the advertis- but in most jurisdictions, advertising must meet the test with respect to er’s claims, particularly those that the consumer cannot independently any substantial portion of the audience. assess, provides the consumer with a reason to purchase. In the digital world in which the current generation has grown up, However, when a brand makes an actual, objectively provable the consumer is likely to become more sophisticated and experienced in claim about its product or service, at least where it is likely to influ- perceiving communications and discerning what is authentic and unbi- ence consumers’ purchasing decisions, the brand is likely to be held to ased. The content that is now being created and displayed on the World a burden of having proof of whatever is communicated, at least to the Wide Web is sponsored, supported, encouraged and disseminated audience to whom the content is directed. If there is some aspect of the by advertisers in new ways and with new technologies. Advertisers’ advertising that serves to enhance the credibility of the advertiser or greatest asset is the brand equity of a trusted brand. A misstep in some message that serves to overcome consumers’ natural tendency to communications that tarnishes that brand or damages the brand’s rela- discount the claims because they are made by the seller of the product, tionship with consumers can be catastrophic. In a global ecosystem, a the net communication must be subjected to review. Any factual claim misstep in one part of the world can reverberate worldwide. Attorneys that enhances the credibility of the message or the messenger must be responsible for guiding advertisers on compliance with best practices true and be substantiated by appropriate proof. and avoiding liability face an increasingly difficult task as different juris- A product demonstration or test of product performance permits dictions must be considered in reviewing global communications and the consumer to rely upon his or her own eyes. A consumer stating his training communications professionals to understand the universal or her own personal experience with the product provides ‘independent, principles that we call ‘truth in advertising’. www.lexology.com/gtdt 3 © Law Business Research 2021 Austria Georg Huber, Stefan Kofler and Fabian Bösch Greiter Pegger Kofler & Partners LEGISLATION AND REGULATION of the retraction. In some cases, the publication of a sentence or the rendering of accounts to the claimant may also be ordered. Legal framework In serious cases, the courts and authorities can impose monetary 1 What are the principal statutes regulating advertising penalties as well as prison sentences. generally? Regulators’ priorities The main source of advertising law in Austria is the Federal Law Against 4 What are the current major concerns