Belgium: White Book "Advertising Law In Belgium"

Last Updated: 9 January 2013
Article by Griet Verfaillie and Lynn Pype

Introduction

Belgium has no single Law on Advertising. Since advertising has always been inherent to everyday life, the relevant rules and regulations can be found in various laws and codes relating to all parts of society.

Advertising can be defined as every communication which aims directly or indirectly at the promotion of the sale of products and services of any kind, including the rights and obligations thereto, regardless of the place or the means of communication used.

In this regard, two types of advertising legislation can be distinguished. The first type relates to advertising of specific products and can be found in numerous laws. The other type relates to the methodology of advertising and is set out primarily in the Law of 6 April 2010 relating to Market Practices and Consumer Protection (hereinafter the LMCP).

Given that new techniques and means of communication develop rapidly, advertising law continues to change in response to changing circumstances.

Products and Services Banned From Advertising

Tobacco Products

A general ban on advertising of tobacco products is in place in order to prevent smoking and in the interest of public health; see details in the next section under Tobacco.

Blood and Blood Derivatives

Article 20 of the Law of 5 July 1994 Concerning Blood and Human Blood Derivatives prohibits advertising of the distribution, provision, or delivery of blood and labile blood derivatives. Advertising is prohibited in this case because trade in blood and blood derivatives is likewise banned.

An exception applies to advertising exclusively used for medical information.

Animals

Article 11bis of the Law of 14 August 1986 Relating to the Protection and the Wellbeing of Animals interdicts advertising of trade in mammals kept for non-production purposes. A list of the animals that may be advertised is provided in Royal Decree of 16 July 2009.

Although cats and dogs are also listed in the Royal Decree, advertising for cats and dogs is allowed only in professional magazines.

Cosmetic Surgery

The Law of 6 July 2011 Concerning the Prohibition on Advertising for Cosmetic Surgery has a particular definition of advertising. It implies every form of communication or action which aims directly or indirectly at the promotion of cosmetic surgery, regardless of the method or technique of the advertising, including reality television.

No advertising promoting cosmetic surgery is allowed. There are no exceptions.

Regulations Related to Product and Service Advertising

Alcohol (Beer, Wine, and Spirits)

Advertising of alcoholic beverages is regulated by the Law of 24 January 1977 Regarding the Protection of the Health of the Users of Foodstuffs and Other Products.

Article 7bis of this law stipulates that the government can approve wholly or partially agreements concluded between organizations which promote proper use of alcoholic beverages. In order to establish the validity of this particular agreement, it needs to be entered into between at least two professional associations, who represent at least 80% of the Belgian producers of alcoholic beverages, two consumer organizations and two professional organizations representing the catering industry.

Self-Regulation Within the Alcohol Industry

On 12 May 2005, several parties involved in the production, marketing, and sale of alcoholic beverages formed a covenant aimed at regulating alcohol advertising in order to fight alcohol abuse. The following were parties to the covenant:

  • The Belgian Brewers Federation
  • The Belgian Federation for Wine and Distilled Spirits
  • The supermarket federation Fedis
  • The Jury of Fair Practices Concerning Advertising
  • The Federation of Professional Caterers
  • Fed.Ho.Re.Ca Brussels (the hotel, restaurant, and cafe organization)
  • Fed.Ho.Re.Ca. Wallonia
  • Fed.Ho.Re.Ca Flanders
  • OIVO-CRIOC, the Consumer Organizations Research and Information Center
  • The consumer organization Test-Aankoop (Test Achats)

The covenant, which defines alcoholic beverages as drinks containing more than 1.2 percent of alcohol, prohibits alcohol advertisements from:

  • Being directed at minors
  • Placement at social institutions, health institutions and workplaces, with the exception of separate places appropriate for the consumption of alcoholic beverages
  • Encouraging irresponsible, excessive, or illegal consumption
  • Alluding to favorable physical or psychological consequences of drinking alcoholic beverages
  • Suggesting that alcohol consumption leads to social or sexual success

Beer advertisements published in newspapers or magazines, on billboards, online, or broadcast on television, on the radio or in movie theatres, must include the message "Beer brewed carefully, to be consumed with care." For spirits, the message must read "Taste our know-how wisely."

Firearms, Weapons, and Ammunition

Article 19 of the Law of 8 June 2006 Relating to the Regulation of Economic and Individual Activities with Guns strictly prohibits advertising of illegal weapons.

Furthermore, it is prohibited to advertise or display licensed weapons without displaying an advisory stating that a specific license to use these weapons is required.

Food

The Royal Decree of 17 April 1980 and its amending decree of 29 March 2012 establish the legal framework for advertising of foodstuffs. The definition used for foodstuffs encompasses "any substance or product, whether processed, partially processed, or unprocessed, intended to be, or reasonably expected to be, ingested by humans." Thus food includes drinks, chewing gum, and any substance, including water, intentionally incorporated into food during its manufacture, preparation, or treatment.

Advertising of foodstuffs may not use the words "sick" or "illness," the name of an illness, or a representation of symptoms or of ill persons, except when it is used in accordance with the health claims allowed under Article 17 of EU Regulation 1924/2006 of 20 December 2006 on Nutrition and Health Claims Made on Foods.

Article 17 outlines the procedure to be followed in order to obtain European Community authorization for a health claim.

Article 3 of the same regulation explicitly prohibits the following in advertisements for food:

  • Nutrition claims that are false, ambiguous, or misleading
  • Messages that give rise to doubt about the safety and/or the nutritional adequacy of other foods
  • Encouraging or condoning excess consumption of a food
  • Stating, suggesting, or implying that a balanced and varied diet cannot provide appropriate quantities of Nutrients
  • References, whether through text, images, or symbols, to changes in bodily functions, as such messages could give rise to or exploit fear in the consumer
  • Images of persons, clothing, or equipment that evoke medical, paramedical, or pharmaceutical professions
  • References to medical recommendations, certificates, or approvals which contain health claims that have not been approved in the context of the regulation (1924/ 2006)
  • Reference to the secretary or any other authority competent for health, except with explicit consent of the secretary or authority
  • Attributing to the product objective qualities that cannot be proved
  • Suggesting that the foodstuff contains special features when in fact similar products contain the same qualities
  • Mentioning that vitamins or pro-vitamins have been added, if these substances have been added with a technological or organoleptic purpose
  • Attributing to the foodstuffs characteristics related to the prevention, treatment, or healing of an illness, or making any allusion to such characteristics, under reserve of the Community regulation concerning natural mineral water and concerning feedstuff intended for special feeding.

It must be noted that these rules apply to labeling as well.

Gaming

Public Sector

No specific law exists regulating advertising of the National Lottery and related games.

However, on 13 April 2007, the National Lottery issued a code of conduct concerning ethical and responsible advertising of the National Lottery.

The code stipulates that all marketing communication concerning the lottery needs to comply with the legislation and other self-regulatory codes such as the Advertising and Marketing Communication Practice and the Consolidated ICC Code of the International Chamber of Commerce.

The code sets forth a set of general and specific rules, which are basically in line with the general regulation on advertising. For instance, advertisements may not exaggerate the chances of winning or give the impression that the games are an alternative to working or saving.

Private Sector

The Law of 7 May 1999 Relating to Gambling Games, Bets, Facilities Hosting Gambling, and the Protection of the Players does not provide elaborate regulation concerning the advertisement of lotteries.

The National State Lottery does not fall under the scope of this law.

Advertising of non-licensed gambling or gaming facilities and/or games is prohibited.

Legal Services

Different regulations apply to legal services provided by lawyers and legal services provided by others. This is because the profession of a lawyer is considered to be a liberal profession. Liberal professions, including law and medicine, answer to different regulations than general services providers.

Legal Services Provided by Lawyers

Concerning lawyers, the Law of 2 August 2002 Relating to Misleading and Comparative Advertising, Illegal Clauses and Distance Contracts applies. This law prohibits lawyers from mentioning the following:

  • Results they have obtained in cases handled,
  • Rate of success
  • Any prior political or judicial function performed by the lawyers

An attorney also may not claim to have profound experience in a certain field of law unless such experience is documented.

Legal Services Provided by Others

Other service providers rendering legal services, such as consultants fall under the scope of the LMCP. Hence, advertising for legal services is allowed, as long as it is not in violation with said law.

Medical Devices

The Law of 25 March 1964 on Medicines prohibits advertising for implantable devices. Other medical devices, per the Royal Decree of 15 July 1997 on Active Implantable Medical Devices, may be promoted if they carry the CE certification mark (implemented by the Council Directive 90/385/EEC of 20 June 1990 on the approximation of the laws of the Member States relating to active implantable medical devices).

Medical Services

As stated above, advertising for cosmetic surgery is strictly prohibited. A distinction needs to be made between publicity coming from doctors and publicity carried out by other medical-service providers.

Services Provided by Doctors

Doctors are considered to belong to a liberal profession (see Legal Services); hence the Law of 2 August 2002 Relating to Misleading and Comparative Advertising, Illegal Clauses and Distance Contracts applies.

Furthermore, doctors are also bound by a Code of Medical Conduct.

The advertising of medical services by doctors must not bring harm to the general interest concerning public health. It may not encourage unnecessary exams or treatments. The information provided needs to be objective, relevant, verifiable, discrete, and clear. It may not be deceiving or comparative. Results of any research and treatments may not be used for publicity purposes.

Services Provided by Others

Other providers of medical services must comply with the LMCP. However, concerning the advertising of hospitals, Royal Decree of 23 October 1964, which defines the standards which hospitals and their departments must meet, prohibits all publicity, solicitation of clients, or any other flaunting advertising.

Nonprofit Fundraising

No current restrictions.

Nutritional Supplements

Directive 2002/46/EC relating to food supplements and the Royal Decree of 12 February 2009, concerning the manufacture of and trade in nutritional supplements containing substances other than nutrients and plants or plant preparations, set out the basic regulation in this matter.

Advertising of nutritional supplements may not attribute to the supplements the property of preventing, treating or curing a human disease, or refer to such properties.

Furthermore, advertising of nutritional supplements may not state or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general.

Occult ("Psychic") Services

No current restrictions provided that the general principles are being respected.

Pharmaceuticals

The Royal Decree of 7 April 1995 regulates the advertising and information regarding medicinal products for human use. This decree defines advertising as any form of canvassing, providing of information, prospecting, or inducing which is intended to promote the prescription, supply, sale, or consumption of drugs, including the sponsoring of promotional meetings attended by persons entitled to prescribe or supply medicinal products and the sponsoring of scientific congresses in which those persons participate. The Law of 25 March 1964 Relating to Medicines prohibits the advertising of unregistered medicines or medicines which are the subject of an interdiction or suspension.

A distinction is drawn between advertising aimed at the general public and advertising aimed at health professionals.

General Public

In general it is permitted to advertise over-the-counter medications to the general public provided that the advertisement meets certain cumulative conditions. The advertising needs to be objective, verifiable, and not deceptive.

It must encourage the rational use of the medicine by representing it objectively without exaggerating the medicine's characteristics.

The advertising may not be distributed by means of airplanes, billboards, telephone, SMS, fax, email, the post, children's magazines, leaflets, contests, unusual means of communication, or software programs.

Moreover, it may not promise, offer, or grant any direct or indirect compensation if the patient is not entirely satisfied with the product, nor may it give the impression that a medical consultation or surgical procedure is unnecessary.

The advertising may not suggest that taking the medicine will improve a person's health or that not taking the medicine could affect a person's health (with the exception of vaccination campaigns). It may not refer to a recommendation by a scientist, health professional or celebrity that could encourage consumption of the product, nor may it suggest the safety or efficacy of the medicine. It may not refer to claims of recovery in improper, alarming, or misleading terms, and it may not employ a description that could lead to erroneous self-diagnosis.

Finally, the advertising may not use images, drawings, photographs, or representations likely to undermine the essentially informative character and necessary degree of seriousness expected of an advertisement for a pharmaceutical product in order to heal or prevent an illness, make a medical diagnosis, or restore, correct or modify bodily functions; and it needs to be clear from the format that the message is an advertisement and the product is identified as a medicinal product.

In accordance to the Decree of 7 April 1995, the following information must be included in the advertisement in a clearly legible manner:

  • The name of the medicinal product, as well as its common name if it contains only one active ingredient
  • Any information necessary to correctly use the medicinal product
  • The wording "This is a medicinal product. Long-term use without medical advice is not recommended"
  • An express, legible warning to carefully read the instructions on the package insert or the packaging, as the case my be
  • The name or trade name of the registration holder

Television and/or radio advertising of over-the-counter medicines directed at the general public requires the prior approval of the minster of public health. Advertising prescription-only medicines to the general public is prohibited.

Health Professionals

Article 9 of the Royal Decree of 7 April 1995 provides that advertising aimed at health professionals must contain the following information in a legible form:

  • The name of the product, its qualitative and quantitative composition in terms of active substances, and its pharmaceutical form
  • All information contained in the scientific leaflet regarding the therapeutic indications, posology, counter indications and side effects
  • The name of the registration holder and the product registration number
  • The supply classification
  • For each type of packaging, the retail price of the product

Furthermore, it should be noted that the first three items of the aforementioned information must take up at least 50 percent of a print advertisement.

An item worth mentioning is the advertisement of medicines on the Internet. Obviously the general principles as mentioned above apply. However, given the distinction between advertising aimed at health professionals and advertising aimed at the general public, pharmaceutical companies are required to limit access of the general public to the websites intended for use by health professionals. Hence, the pharmaceutical companies have to ensure that the health professionals have secured access to these sites.

Political Advertising

There are generally no restrictions except political advertising on television. In this regard it must be noted that the Flemish legislation differentiates from the French legislation. Based on Article 49 of the Flemish Decree, broadcasting companies are permitted to allow politicians to place advertisements paid for by the politicians during the waiting period before the elections.

However, this is prohibited by Article 12 of the Decree of the French Community, which states explicitly that commercial communication shall not have political parties as its object.

Products Related to Sexuality

No current restrictions provided that the general principles are being respected.

Religion

No current restrictions provided that the general principles are being respected.

Sex (Adult) Services

All forms of advertising directly or indirectly promoting services of a sexual nature offered against payment, or when payment is recommended, are prohibited and criminally punishable by law under Article 380ter of the Criminal Code. The article, while criminalizing all advertising of sexual services, makes particular mention of the following:

  • Advertisements in the media, mainly in daily or weekly magazines
  • Sexual services offered through payphones
  • Advertising specifically focused on minors
  • Advertising made by minors
  • So-called pink phone lines

Tobacco Products

In order to prevent smoking and the interest of public health, a general ban on advertising of tobacco products has been put into place.

The prohibition on advertising of tobacco products is implemented by the Law of 24 January 1977 Regarding the Protection of the Health of the Users of Foodstuffs and Other Products. This law aims at reducing the use of tobacco products in the long term. The interdiction is comprehensive and remains enforceable regardless of the means used for communication, which should make it impossible to circumvent it in the future through the use of new techniques.

Every communication or action, which has as a direct or indirect purpose the promotion of the sale of tobacco or similar products, regardless of the place, or the means of communication is to be considered as advertising or sponsoring.

However, exceptions apply to advertising of tobacco products in the following contexts:

  • In foreign newspapers and periodicals, unless the advertising mainly intends to promote tobacco products on the Belgian market
  • In newspapers and periodical in the context of notification to the public of events abroad, unless the advertising mainly intends to promote tobacco products on the Belgian market
  • In printed publications exclusively for the tobacco trade
  • Tobacco product trademarks posted on the facade of or inside tobacco shops and newspaper stores that sell tobacco products; however, such advertising may not be displayed on the entire facade of the building

This last exception does not count for regular stores such as grocery stores, warehouses, or other facilities where the sale of tobacco products is of subsidiary importance, and bookshops.

Additionally, it is prohibited to promote a certain trademark, which borrows its fame mainly from a tobacco product, for other products as long as the trademark is used for tobacco products.

Nonetheless, it is still possible to advertise under a certain trademark for other products or services than Tobacco products, which carry the same trademark as tobacco products, if the turnover concerning the tobacco products is not more than half the turnover generated by the sale of the non tobacco products, and if the trademark was originally filed for other products than tobacco products.

Toys

No current restrictions provided that the general principles are being respected.

Other Regulated Products

Motor Vehicles

The Law of 23 January 2002 Relating to the Advertising of Motorized Vehicles requires any advertising promoting the sale of vehicles equipped with a motor to contain a warning concerning the responsibility of drivers to drive safely.

Mortgage Credit

The Law of 4 August 1992 Relating to Mortgage Credit establishes provisions regarding advertising of the following:

  • Credit guaranteed by a mortgage or privilege on an immovable property or by the pledge of a claim guaranteed in the aforementioned way
  • Any claim which has its origin in the subrogation by one or more third parties in the rights of the creditor who is privileged in respect to an immovable property
  • Credit agreed upon containing the right to demand a mortgage guarantee, even if this right would be conveyed in a different document
  • Credit guarantees by which the guarantor has granted a mortgage guarantee

Every form of advertising concerning such transactions has to mention the identity or the name of the mortgage company. If the advertising comes from an intermediary, the advertisement has to state so, including the mentioning of its address.

Consumer's Credit

The Law of 12 June 1991 on Consumer's Credit (implemented by the Council Directive of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit [87/102/EEC]) provides specific regulation in this regard.

Article 5 states that all advertising that mentions the interest rate or costs of the credit shall also mention in a clear, summarized, and explicit way, even audible if necessary, through the use of a representative example the following information:

  • Debit interest rate
  • Credit amount
  • Annual percentage cost
  • Duration of the credit agreement
  • In case of a credit in the form of a delayed payment concerning a product or service, the cash price and the amount of potential advances
  • If applicable, the total amount payable by the consumer and/or the amounts of payment terms

Any other advertising concerning consumer's credit must include the caveat "Be aware, borrowing money costs money."

Furthermore, the law contains various specific prohibitions on certain ways of advertising of consumer's credit. For instance, advertising shall be prohibited when it:

  • Encourages consumers to redraw credit when they cannot face their debts
  • Emphasizes on the ease and swiftness by which credit can be received
  • Mentions "free credit" or a similar expression

These provisions are in force in order to protect consumers and to try to prevent them from accumulating large debts.

Biocides

The Royal Decree of 22 May 2003 prohibits advertising in any form for biocides which cannot be brought on the market.

Notwithstanding the general provisions concerning advertising, every sort of publicity concerning biocides needs to fulfil the following conditions:

  • The complete trade name needs to be shown
  • The only elements that may be mentioned are the product's purpose and use, toxicity level, and any limitations on its effectiveness
  • Under no circumstances may the advertising of a biocide product mention "low-risk biocide product," "nontoxic," "harmless," or any similar indications
  • The advertisements cannot refer to the product in a manner which is misleading as to the risks from the product to man or the environment

Finally, it is required that every advertisement for biocides is accompanied by the text "Use biocides safely. Always read the label and product information before use."

Other Regulated Services

Liberal Professions

The Law of 2 August 2002 Relating to Misleading and Comparative Advertising, Illegal Clauses, and Distance Contracts Concerning Liberal Professions establishes the relevant legislative framework regarding this matter.

Misleading advertisements concerning liberal professions imply every form of advertising which can in any way deceive or confuse the target audience or which is capable of changing the audience's economic behavior or bringing harm to a competitor. The advertisement's representation of the following elements is taken into consideration in determining whether an advertisement is in fact deceptive (the language, while formulated for products and services, is used to apply to liberal professions as well):

Characteristics of the Goods or Services

  • Availability
  • Nature and performance
  • Composition
  • Procedure and date of manufacturing or delivery
  • Suitability for use and applications
  • Quantity
  • Specification
  • Geographical or commercial origin
  • Expected results from use of the product
  • Results and essential characteristics of tests performed on the products or services

Means Used in Determining the Price

Included are factors such as the conditions on which the services are being rendered or the goods are being delivered.

Capacity, Qualifications, and Rights of the Advertiser

  • Advertiser's identity or power
  • Advertiser's competence and industrial, commercial or intellectual property rights
  • Advertiser's awards and distinctions

Travel

The Law of 28 August 2011 on the Protection of Consumers in Respect of Certain Agreements of Timeshare, Long-Term Holiday Product, Resale and Exchange Contracts sets out specific regulations concerning the contracts in question.

The law is a result of the implementation of Directive 2008/122/EC and is aimed at harmonizing the legislation of the member states in this regard in order to protect consumers, as tourism plays an increasingly important role in the economics of the member states.

The law requires any advertising of the travel products in question to alert consumers to the possibility of obtaining the compulsory pre-contractual information.

Additionally, where a timeshare, long-term holiday product, resale or exchange contract is to be offered to a consumer in person at a promotion or sales event, the trader is required to clearly indicate in the invitation the commercial purpose and nature of the event.

Finally, a timeshare or a long-term holiday product may not be marketed or sold as an investment.

Paying Services via Electronic Communication Networks

The Royal Decree of 9 February 2011 Concerning the Establishment of an Ethical Code for Telecommunications determines, amongst other things, the legal framework of advertising for paying services provided through an electronic communication network. The decree prohibits these advertisements from:

  • Violating rights of privacy
  • Causing fear, anxiety, or horror by describing or depicting needless violence, sadism or cruelty
  • Gratuitously referring to terrorism, natural disasters, or disasters caused by men, even as a joke
  • Encouraging anyone to undertake dangerous actions or to purchase, use, or trade in dangerous substances
  • Causing public outrage by using obscene language
  • Using subliminal messages

Sexual language can only be used in advertising for said paying services aimed at adults.

Regulations Related to Advertising Methodology

Advertising to Children

There are various laws and codes of conducts regulating the content or display of advertisements to children.

The most important ones are the Flemish Decree of 27 March 2009 Concerning Radio Broadcasting and Television (hereinafter the Flemish Media Decree), which establishes the legal framework concerning advertising on radio and television; and the French Decree of 26 March 2007 Relating to Services Provided by Audio-Visual Media (hereinafter the French Media Decree), the covenant on advertising for alcohol (see Alcohol, above) and the Code of the International Chamber of Commerce on advertising and marketing communication.

Basically, all of these set out similar regulations and guidelines.

Advertising targeted at children may not undermine positive social behavior, lifestyle, or attitude. Advertising concerning products inappropriate for children shall indicate so.

Furthermore, advertising may not exploit the lack of experience or the naivete of children.

The Flemish Media Decree does not allow any interruption of children's programs for the purpose of television advertising.

Advertising on the radio concerning alcoholic beverages may not be broadcast just before or just after children's programs.

It should be mentioned that the Consumer Council (Raad voor Verbruik), advises that no advertising focusing on children be shown during six weeks before certain holidays such as Christmas, or Saint-Nicolas. (Although the latter is not considered to be a holiday, it is a significant date for children in Belgium).

Advertorials

No current restrictions.

Celebrity Endorsements

No current specific restrictions; the general rules concerning advertising must be taken into consideration.

Comparative Advertising

Comparative advertising is generally allowed per Article 19 of the LMCP, provided that the following conditions are fulfilled:

  • It is not misleading
  • It compares goods or services that aim at the same needs or have the same purpose
  • It compares objectively one or more essential, relevant, verifiable, and representative characteristics of these goods or services, which may include the price
  • It does not lead to confusion between the goods, services, trademarks, trade names, or other distinctive characteristics of the advertiser and those of a competitor
  • It does not harm the good name of and does not denigrate other trademarks, trade names, or other distinctive characteristics of the goods, services, or activities of a competitor
  • It compares goods with the same name (designation) of origin
  • It does not provide an unfair advantage resulting from the fame of a trademark, trade name, or other distinctive characteristics of a competitor, or of the name (designation) of origin of competing goods
  • It serves to pass off the goods or services in imitation or as fakes of goods or services with a protected trademark or trade name

Comparative advertising that does not meet these conditions is prohibited.

Contests

Article 91, Section 19 of the Law of 6 April 2010 on Market Practices and Consumer Protection states that it is a deceptive practice to advertise a contest with prizes to the winner, without actually doing so or providing a reasonable alternative.

Deceptive, False, or Misleading Advertising

A pure definition of misleading or deceptive advertising does not exist in Belgian legislation. For advertising to be considered misleading, it suffices that deception or confusion is possible and could negatively influence the consumer's choice of products or services.

In order for the advertising to constitute an infringement, it is not required that the publicity is in fact misleading or has caused damage. It suffices that the publicity, taking its overall impression into account, is capable of misleading people from the target group. This assessment needs to be made from the point of view of the average consumer who has average differentiation abilities. Bad faith on behalf of the seller is not a requirement to prohibit the misleading publicity.

  • The prohibition of various types of misleading advertising is laid down in the LMCP. More specifically, Articles 88 and further are relevant in this matter. The following are banned as misleading:
  • Deception regarding the identity, nature and composition of the product, the origin of the product, the quantity and the availability of the product, the means and date of fabrication, the characteristics of the product, and the consequences for the environment
  • Deception concerning an advertised service
  • Deception concerning the identity or the capacity of the seller of the product or service
  • Editorial advertising: this is conceived as misleading advertising if it tries to convince consumers by depriving them of any critical reflection, which they should have when it comes to commercials Advertising that has a destructive effect on a competitor
  • Information that can cause confusion with respect to a competitor's products, services, or activities
  • Advertising which concerns a too-limited offer
  • Advertising which can cause unfair actions, punishable by the LMPC
  • Comparative advertising which refers to comparative tests carried out by consumer organizations
  • False claims that the product or service can improve the health of the consumer

Misleading Advertising Relating to Essential Information

A seller who omits essential information with the intention to deceive is guilty of misleading advertising.

Advertising Not Immediately Recognizable as Advertising

Advertising will be considered as misleading if, given its overall impression, it cannot unmistakably be recognized as advertising, and if it does not display or mention the word "advertisement" in a readable, visible/audible, and explicit manner.

Advertisement Without a Sufficient Supply of Products or Services

Article 91, 5° of the LMPC prohibits advertising of products or services if the seller does not have a sufficient supply or cannot perform the services which, taking into account the size of the publicity, are reasonably expected to be delivered.

The exact amount which can be categorized as reasonable will be appreciated by the court. However, the mere mentioning of the formula "as long as available" will not suffice to exonerate the seller when the supply seems insufficient.

The law protects consumers from situations where retailers lure customers into their stores with special promotions and actions for products of which they only have a few in stock.

Advertising Causing False Hope

Advertising which creates hope in the mind of consumers that they have won a product or any other advantage or that they have the chance of winning anything, based on coincidence, is considered to be misleading.

However, this prohibition does not apply to advertising relating to authorized lotteries.

Advertising Relating to Medical Applications

Advertisements which concern products or appliances that are not medicines and which pretend unfairly to be able to improve the medical condition of the user are considered to be misleading.

Disguised Ads

As mentioned above (see Advertising Not Immediately Recognizable as Advertising), advertising which is not immediately recognizable as such is considered to be misleading and thus interdicted. Also note specifics under Radio Advertising below.

Furthermore, the LMPC lays out another form of disguised advertisement.

It is prohibited to advertise by handing out any invoice or similar document requesting payment, or which raises the impression that the good or service has already been ordered, when this is not the case. It is also prohibited for an advertisement to hide essential information concerning the consequences of the answer given by the recipient, or to hide the actual commercial intentions.

Free Gifts/Samples

The Royal Decree of 11 January 1993 Determining the Conditions By Which Medicines Can be Provided in the Form of Samples states that said samples shall only be delivered to persons who are authorized to prescribe medicines. Additionally, only medicines of which at least one package is brought to the market can be handed out in the form of a sample.

No other particular legislation exists concerning the advertising of free gifts or samples, as long as it is in accordance with the general principles.

Limits to Free Speech

There are no free speech restrictions, as long as the general principles are being respected, for example those detailed under Deceptive or Misleading Advertising and Use of a Public Person's Image or Name.

Length of Commercial, Volume, and Similar Restrictions

There are no specific restrictions concerning the length of commercials. However, the principles laid down by the Flemish Media Decree have to be respected. A more detailed explanation in this regard is given below.

Rights of Privacy

Obviously, the rights of privacy of individuals have to be respected. The regulation regarding advertising does not deviate from this principle. For specifics related to electronic commerce, see Email Advertising below.

Product Demonstrations

There are no specific restrictions concerning product demonstrations. The general principles must be respected; see Regional Public and/or Community Standards Local governments can adopt specific measures or regulations concerning the distribution or placement of advertising. This merely relates to administrative law.

Rebates

Article 34 of the LMCP stipulates that a company which distributes titles granting a rebate with the purchase of one or more products or services by the holder of the title is compelled to honor such titles when they are presented according to the terms.

Sex in Advertising

The Royal Decree of 9 February 2011 Concerning the Establishment of an Ethical Code for Telecommunication stipulates that sexual language or images may be used only in advertising aimed at adults. The decree concerns advertising broadcast through paying services via electronic communication networks. Advertising for sexual services is also forbidden.

Sponsorships Article 88, 3° of the LMCP states that it shall be considered a misleading practice when information or any other symbol or statement provided by a company, raises the impression that the company or product in question receives sponsoring or any other support, when this is not in fact the case.

Regarding sponsoring as such, the Flemish Media Regulator has decided that sponsorship does not constitute advertising. Hence sponsorship does not fall under the scope of advertising regulation. The main criteria used in determining whether a certain communication can be qualified as sponsoring reside in the content of the message rather than in the form. Sponsoring communication, unlike advertisements, should not encourage consumption.

Subliminal Advertising

The Royal Decree of 9 February 2011 Concerning the Establishment of an Ethical Code for Telecommunication determines, amongst other things, the legal framework of advertising for paying services provided through an electronic communications network.

Article 7 of the decree prohibits use of subliminal messages concerning these services.

Sweepstakes Offers

Article 91, 16° of the LMCP provides that advertising which claims that products increases the chances of winning lottery games is considered to be misleading and thus prohibited.

Telemarketing

No current restrictions.

Testimonials

There are no current restrictions concerning the use of testimonials in advertising. Obviously, such use needs to respect the general principles.

Tie-In Offers

There are no current restrictions concerning the advertising of tie-in offers, as long as the general principles are being respected.

It should be noted that in some circumstances, use of tie-in offers might give rise to competition issues.

Use of a Public Person's Image or Name

The Jury of Ethical Practices has issued a code concerning use of the names or images of public persons. Any advertisement stating or insinuating that someone would have a positive opinion of a product or service, without that person's consent, is deemed to be in violation of the ethics of advertising. Nonetheless, exceptions to this rule can be allowed for the purpose of parody.

Advertising may in no circumstances humiliate or mock a person, nor the institution the person might represent, or cause any discredit to the person's reputation.

Use of Children in Advertising

Article 7.2 of the Law of 30 March 1971 on Employment authorizes individual deviations from the general prohibition on child labor, allowing them to perform as actors, singers, or extras in commercials or to appear in advertising.

Use of Foreign Language in Advertising

There are no restrictions concerning the use of foreign language in advertising.

Use of Models as Doctors, Nurses, Lawyers, or other Professionals

The use of doctors or lawyers in advertising is basically allowed, provided that it is not in violation with the ethics of their profession. However, given that the rules and guidelines for this matter are rather strict, it is not common that they will appear in advertising.

The use of other professions is not restricted, provided that the general principles are being respected.

Violence in Advertising

No pure legal restriction exists prohibiting the display of violence in advertising. However, article 4 of the International Chamber of Commerce Code on Advertising and Marketing Communication provides guidelines concerning this issue, stating that advertising shall not encourage or condone violent, illegal, or antisocial behavior.

Other Regulations Particular to Belgium

Advertising Recruiter

The following regulations aim primarily at practices used by advertisement recruiters, by which they try to enroll bona fide self-employed persons and companies in worthless company directories, such as those available online.

Without prior request of companies or self-employed persons, the advertising recruiters send out application forms with the invitation to fill out or correct particular information concerning their company or business. By returning the forms, the companies or self-employed persons have actually entered into a binding agreement. Hence they are required to pay subscription fees for basically non-existing or worthless services provided by these advertising recruiters.

The legislator deemed these kinds of actions in violation with fair trade practices and implemented a new article in the Law of 6 April 2010 Relating to Market Practices and Consumer Protection establishing an explicit ban on such recruiting scams.

Article 97/1 of the law prohibits any company from recruiting advertisers, either directly or through a payment form, order form, invoice, offer, statement of terms and conditions, offer of correction, or any other similar document, for registration in directories, address files, telephone directories, or similar lists, without explicitly indicating that the survey is a contract offer and without mentioning in the document, in bold and in the largest font used in the document, the terms of the contract and the price relating thereto.

Advertising Relating to Pre-Packed Products

Based on Article 17 of the LMCP, all advertising concerning pre-packed products, in predetermined quantities, must mention the nominal quantities of the contents of the package.

Nutritional Claims

The use of nutritional claims is covered by Regulation 1924/2006 of 20 December 2006 on Nutrition and Health Claims Made on Food; see Food above.

Only claims authorized by this regulation may be used in advertising for food. It should be observed that several regulations have been adopted containing approved nutritional claims in accordance with the regulation.

Regulations Related to Media Channels

Billboard Advertising

When advertising through the use of billboards, obviously the general regulations must be taken into consideration. In addition, town-planning regulation laid down in regional legislation has to be followed.

The Flemish Region

Article 9 of the Decision of 16 July 2010 Concerning the Determination of Action For Which no Urban Planning Permit is Required stipulates the relevant provisions. No urban planning permit is required for the following billboards:

  • A non-luminous billboard affixed to a permitted building with a total surface of no more than four square meters
  • A billboard affixed to an immovable property to announce that the property is for sale or for rent, provided that the total surface does not surpass four square meters and the publicity is removed 14 days after the sale or lease

The French Region

According to Article 84 of the Wallonian Code of 19 April 2007 Relating to Urban Planning, no person shall place a sign or billboard without a permit. The different municipalities set out the conditions which the signs or billboards have to fulfil in order to be permitted.

Brussels Capital Region

For billboards set up in Brussels, the Circular of 11 October 1997 Relating to Urban Planning Permits Concerning Publicity Signs applies. The circular is quite comprehensive and covers many circumstances in which publicity is or is not allowed.

Digital Media Advertising

While no current legal restrictions exist specific to advertising in digital media, the International Chamber of Commerce Code on Advertising and Marketing Communication provides guidelines in this regard.

  • If the advertising is directed personally at the consumer, both the title and the context must make this clear Information concerning the offer and the price must be transparent In order to use online behavioral advertising techniques, the consent of the recipient is required
  • The guidelines are not enforceable by law.

Direct Mail Advertising

No current restrictions provided that the general principles are being respected. However, a self-regulatory opt-out list known as the Robinson list was put in place through an initiative of the Belgian Direct Marketing Association (BDMA). People who register on this list will no longer receive advertising from companies who are affiliated with the BDMA.

Email Advertising (Spam)

The Law of 11 March 2003 Relating to E-commerce establishes the legislative framework for advertisements sent out via electronic communication. This law finds its origin in the Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

It strives for the balance between the free movement of data and the protection of individuals with regard to use of their personal data.

The law applies to any text, voice, and sound or image message sent over a public communications network, which can be stored in the network or in the recipient's terminal equipment until the recipient collects it.

In order for the advertising to be legitimate, it must comply with the following requirements set out in Article 13 of the law:

  • The advertisement needs to be immediately recognizable as such
  • The advertiser must be identified, whether it is a natural person or a company
  • Sale promotions and their conditions must be clear and recognizable as such
  • Promotional games must be recognizable as such, and their participation conditions must be clearly and unmistakably indicated and easy to fulfill.

The use of email or other methods of electronic communication for advertisements is prohibited without the prior, free, specific, and informed consent of the recipient of the messages. Hence, the legislator has chosen for an opt-in regime, given that the explicit consent of the recipient is required.

This prohibition is repeated in article 100 of the LMCP.

However, the Royal Decree of 4 April 2003 Relating to the Regulation of the Sending of Advertising via Electronic Mail (implemented by the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market) establishes two exceptions to the opt-in principle.

Existing Clients

Sending of electronic communication to existing clients is permitted, on condition that:

  • The service provider has obtained the contact information of its clients in the context of the sale of a product or service, and the client's privacy is being respected
  • The service provider has used the contact information exclusively for similar products or services, delivered by the same service provider
  • The service provider supplies the means for the consumer to refuse, easily and free of charge, the provider's continued use of the consumer's contact information.

Electronic Communications Sent to Companies

The second exception concerns the sending of electronic communication to companies. Such communication is permitted on condition that the contact information to which the communication is sent is impersonal (for example info@..., sales@...).

In any case, it is interdicted when sending advertisements by email to use the electronic address or identity of a third party or to falsify or hide information that makes it possible to recognize the origin of the message.

Newspaper Advertising

No current restrictions provided that the general principles are being respected.

Periodical Advertising

No current restrictions provided that the general principles are being respected.

Radio Advertising

The relevant legislation will be found on the level of the Communities.

Flemish Community

The Flemish Media Decree establishes the legal framework concerning advertising on radio and television. The decree applies to every broadcasting company under the competence of the Flemish Community. Articles 85 to 89 are relevant in this regard.

Advertising on the radio and television, except self-promotion, must be clearly recognizable and distinguishable from editorial content. Therefore, the advertising has to be separated from other parts of the programming through the use of visual and acoustic means. TV commercials should be broadcast during a certain slot, which has to be recognizable as such.

Isolated Commercials

A single, "isolated" commercial may be broadcast only under certain circumstances:

  • During the broadcast of sporting events
  • If the commercial is at least two minutes long
  • It should be noted that isolated commercials are deemed to be an exception.One isolated commercial on the radio or on television is allowed per broadcasted program per day
  • If the broadcasting company is unable to sell more than one commercial for a commercial slot because of lack of interest of the clients, the isolated commercial may be broadcast as well on its own

No Interruptions

Radio broadcasting of a religious or ideological nature, as well as news programs, may not be interrupted for advertising.

Children's Programs

Advertising on the radio concerning alcoholic beverages may not be broadcast just before or just after children's programs.

French Community

The legislative framework for advertising on television and radio in the French Community as set out in the French Media Decree does not particularly distinguish between advertising broadcasted on the Radio and advertising broadcasted on television.

However, Article 22 of the decree stipulates that the maximum length of the advertising and teleshopping spots within a given clock hour shall not exceed 20 percent.

Like the Flemish regulation, the French decree provides that radio broadcasting of a religious and or ideological nature, as well as news programs, may not be interrupted for advertising, self-promotion, or teleshopping spots. The same applies to programs of a lyrical or dramatic nature, except during their natural commercial breaks.

Social Media Advertising

No current restrictions provided that the general principles are being respected. The same guidelines concerning advertising via digital media apply as well.

Telemarketing

No current restrictions provided that the general principles are being respected.

Nonetheless, the initiative of the Belgian Direct Marketing Association (BDMA), the Robinson list, does apply to telemarketing as well. Every person who registers himself on this list will no longer receive advertising from companies who are affiliated with the BDMA.

Television Advertising

General

Although the Law of 6 February 1987 relating to radio distribution and television distribution concerning commercial publicity on radio and television is still into force, the relevant legislation will be found on the level of the Communities.

Moreover, the said regulation concerning advertising through media channels is influenced by Europe, more specifically Directive 89/552/EEC of 3 October 1989 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 Flemish Community

The Flemish Media Decree establishes the legal framework concerning advertising on radio and television. This decree applies to every broadcasting company that resides under the competence of the Flemish Community.

In this regard, a distinction has to be made between the Flemish broadcasting organization (Vlaamse Radio en Televise or VRT) and the private broadcasting organizations.

General

All forms of commercial broadcasting need to respect the fundamental rights concerning the protection of privacy, and the fair treatment of the consumer.

Any advertising needs to be readily recognizable and distinguishable from editorial content. Without prejudice to the use of new advertising techniques, television advertising and teleshopping shall be kept quite distinct from other parts of the program by optical and/or acoustic and/or spatial means.

Clandestine advertising is strictly prohibited.

Moreover, it needs to be ensured where television advertising or teleshopping is inserted during programs, that the Moreover, it needs to be ensured where television advertising or teleshopping is inserted during programs, that the integrity of the programs, taking into account natural breaks in and the duration and the nature of the programs, and the rights of the right holders are not prejudiced.

The transmission of films made for television (excluding series, serials and documentaries), cinematographic works and news programs may be interrupted by television advertising and/or teleshopping once for each scheduled period of at least thirty minutes. Contrary to the Directive, the Decree does not allow any interruption of children's programs for the purpose of television advertising.

No television advertising or teleshopping shall be inserted during religious services.

The proportion of television advertising spots and teleshopping spots within a given clock hour shall not exceed 20 percent. However, this will not apply to announcements made by the broadcaster in connection with its own programs and ancillary products directly derived from those programs, sponsorship announcements and product placements.

The Flemish Television and Radio Company

The decree stipulates that the VRT cannot show advertising, with the exception of radio advertising and advertising intended for self-promotion.

Moreover, the VRT is not allowed to broadcast teleshopping. When it comes to children's programs, the VRT cannot allow any sponsoring, or product placement.

The French Community

Given that the Media Decree of the French Community is based on the same directive, it is quite similar to the Flemish Decree.

The legislative framework for advertising on television and radio in the French Community Is set out in the French Media Decree.

The main difference lies in the fact that the Belgian Radio and Television Broadcasting Organization of the French Community (Radio-Televvision belge de la Communaute francaaise, RTBF) is authorized to show advertising.

Obviously the advertising needs to comply with the French Media Decree. However, effective as of 31 December 2012, the RTBF is not allowed to interrupt any cinematographic programming for the purpose of showing publicity.

Previously published in the A to Z world Business Site of World Trade Press www.atozworldbusiness.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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