New Danish Marketing Practices Act Passed

Date 29 jun. 2017
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Introduction 

The Danish Parliament has passed a new Danish Marketing Practices Act that will come into force 1 July 2017. The new Marketing Practices Act is a complete rewriting compared to the existing Danish Marketing Practices Act as the new Act introduces new terminology and new provisions.

 

The purpose of the new Marketing Practices Act is to make the rules on marketing more clear as well as to ensure that EU regulation is implemented correctly.


The most significant Changes compared to the existing Marketing Practices Act

 

Covert Advertising

The prohibition of covert advertising is intensified in that any “commercial intentions” that a business operator may have when entrusting a product to e.g. a blogger are characterized as covert advertising in the new Act. Thus, it is no longer a requirement that an agreement has been entered into between the business operator and the person managing the exposure.

 

Consequently, any advertising must be expressly stated according to the new Act, regardless of whether or not any agreement of any actual advertising has been made. 

 

Duty to provide Guidance

The rule regarding the duty to provide guidance in relation to the sale of a product or a service is lifted seeing as the duty to provide guidance is deemed as being part of the Marketing Practices Act’s rules on misrepresentation and of the Danish Sale of Goods Act.

 

Warranties

The language requirements in relation to warranties are changed so as to only require warranties to be in Danish when the relevant marketing is in Danish.

 

Furthermore, the prohibition of empty warranties is lifted and instead, empty warranties will be covered by the Act’s provisions on misrepresentation and by the executive order on unfair business-to-consumer commercial practices.

 

Spam Rules

A significant change in the new Marketing Practices Act is the relaxation of the rules regarding unsolicited mail ‒ so-called “spam”. Until now, business operators who had obtained a customer’s email address though any transaction were only allowed to send advertisements regarding products particularly similar to products already purchased by said customer. In the new Marketing Practices Act, this access is expanded in that “similar products or services” may now be interpreted according to the expectations created with the customer by the business operator. As an example, the new Marketing Practices Act makes it legal for the business operator to send out advertisements for other clothing items to a customer who has purchased e.g. a pair of trousers. The business operator may not expand the product category simply by notifying the customer hereof, and the customer must have continued easy and effortless access to decline further communications.

 

The current Marketing Practices Act is from 2005. In recent years, the technological development has given companies options which the current Act does not take into account, meaning that the companies’ rights and obligations are not explicitly provided in the Act. In addition, this area is subject to a significant degree of EU regulation, and the European Commission has among other things found that the Danish implementation of the Unfair Commercial Practices Directive has been inadequate. Therefore, it makes sense to introduce a completely new act on marketing practices.

 

Part of the purpose of the new Act has been to shed more light on this area. Nevertheless, a number of new concepts taken from EU regulation have been introduced with the result that the Act is no less unclear to companies. Such new concepts include "significant distortion of consumer economic behavior", "invitation to purchase" and "commercial practice".

 

 

If you have any questions or would like additional information about any of the above, please contact Partner Pernille Nørkær (pno@mwblaw.dk) or Junior Associate Martin Søndergaard (mas@mwblaw.dk).

 

The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of any reader’s use of the above as a basis for decision or considerations.