Are you aware of the new changes to the Marketing Law?

The end of the year offers more business projects that need to be completed. For that reason, it may have gone unnoticed that several important changes have been made to the Marketing Law, which takes effect from 1 January 2022 (however, some of the changes will not take effect until 28 May 2022). These changes include a new fine model with the risk of large fines if your company violates the rules in the Marketing Law.

the New fine model

The new fine model may in the future amount to up to 4% of the company’s annual turnover in the affected countries, or up to EUR 4 million, if the information on the company’s turnover is not available. This is comparable to the level of fines we know from breaches of the General Data Protection Regulation (GDPR).

In the preparatory work for the changes to the Marketing Law, the new fine model is illustrated using the following table:

The new fine model for non-compliance with the spam ban also raises the minimum fine for violations from DKK 10.000 to DKK 20.000, and the fine for sending 100 emails without the necessary consent increases from DKK 10.000 to DKK 50.000. Violations of the span ban in addition to the first 100 emails sent without valid consent will also increase the fine by an additional DKK 200 per. Email. In most cases, the new fine model will thus, result in a significantly increased level of fines compared to the level we have had previously.

Administrative fines imposed by the Consumer Ombudsman

As something new, the changes to the Marketing Law also involve that the Consumer Ombudsman in several cases will have access to issue administrative fines – instead of making a police report to initiate a criminal case – including in cases of:

• Unauthorized use of a brand or logo that signals that consumers have increased protection
• Violation of the spam rules
• Unsolicited telephone inquiries
• Marketing of  events targeted at children and young people under the age of 18, which includes publicity, photos or reference to alcohol or drugs

Compared with the Consumer Ombudsman’s previous practice, a significant tightening has also been planned when measuring the administrative fines. Concerning unsolicited telephone inquiries, this is also illustrated in a table in the preparatory work.

Increased protection of children and young people

The changes to the Marketing Law also involve that the previous rules on Marketing targeted at children and young people under the age of 18 now also include products other than drugs, including products that are “unsuitable” for children and young people under the age of 18. These can be, e.g., harmful products or cosmetic procedures.

In addition, the changes involve that marketing targeted at children and young people under the age of 18 may not be performed on or through profiles on social media that belong to or appear to belong to children and young people under the age of 15. In other words, the changes mean a ban on the use of influencers under the age of 15.

Violation of these rules will be sanctioned under the new fine model.

Demands for increased transparency in online searches

Among the other important changes to the Marketing Law, the rules also involve that companies that allow consumers to search for products online must provide the consumer with clear and comprehensible information on the most important parameters that determine the ranking of the products. The same applies to any form of paid advertising or payment provided specifically to achieve a higher ranking of products in search results.

In addition, companies that provide access to user reviews of products must state whether the company ensures, and if so, how, the published reviews come from consumers who have used or purchased the products.

Our recommendations

The changes to the Marketing Law involved tightening in several key areas, including of importance for online marketing, online marketplaces, telemarketing and marketing to children and young people. 

Therefore, companies using marketing in these areas should review their existing marketing processes and activities as soon as possible to ensure that they comply with the new rules.

At Lund Elmer Sandager, we are always available to advise on the significance of the new rules and help in reviewing the company’s existing marketing activities. Please do not hesitate to contact our specialist in marketing law, Attorney Anders Linde Reislev at +45 33 300 296 or at alr@les.dk.