During this summer the Danish Government has submitted a proposal for a new Danish Marketing Practices Act for public hearing.
The basis of the proposal
The purpose of the new proposal is to simplify the current Danish legislation in order to better support efficient markets. The proposal is made on the basis of a report prepared by a Marketing Committee established by the Secretary of Trade and Growth to undertake an extensive inspection of the current Danish regulation of marketing practices.
The proposal is a simplified version of the current act within the scope of relevant EU regulations.
The reasons for the proposal
The current Danish Marketing Practices Act was last revised extensively in 2005, where after only smaller changes have been made in relation to implementation of new EU regulations / especially the directive of Unfair Commercial Practices.
However, this directive was not implemented properly in Denmark, which has resulted in a letter of formal notice from the European Commission. This new proposal consequently attempts to secure EU conformity.
Another reason for the proposal is the technological development over the past decade, which has resulted in new marketing methods, thus creating uncertainty of the scope of the regulations. The new proposal seeks to clarify these uncertainties.
Finally, the proposal is made to secure that the Danish consumer ombudsman has sufficient tools and remedies to secure enforcement of his decisions.
The content of the proposal
The most significant changes to the Danish Marketing Act are going to be:
- Relaxation of the rules regarding unsolicited applications by electronic mail (“spam”). In the current Act businesses can only market their products and services to customers via electronic mail if the consumer has given a prior consent to this. This relaxation opens up for the possibility for businesses to market “own similar products or services” without prior consent. The definition of “own similar products” will depend on the expectations the business has given to the consumer. This leaves room for a judgement by businesses, which limits are likely to be defined by the court.
- The rules regarding unsolicited applications by electronic mail (“spam”) will also be relaxed in regards to B2B marketing. Currently a prior consent is needed for a business to market its products towards another business. The new proposal reverses this rule so that a business can make an unsolicited application to another business, without prior consent, with the purpose of market its “own products” if there is an existing customer relation.
- The vocabulary requirements are relaxed with regard to warranty language. Currently all warranties must be in Danish. In the new proposal that requirement is partly lifted, meaning that a warranty only has to be written in Danish if the marketing is also in Danish.
- The prohibition on empty warranties is lifted since this is already regulated in misrepresentation clauses in the Danish Marketing Practices Act and the Danish Act on Unfair Marketing in Consumer Relations.
- The consumer ombudsman will be given extended control remedies e.g. the possibility to take identical electronic copies of data content from electronic medias. This means that in the future the ombudsman will have more tools to secure evidence in cases referred to him.
- With regard to services on a time reimbursement basis (services conducted without agreement on a fixed price, thus the service provider will send a bill after concluding the work based on spent time and used materials), the consumer will be given a wider possibility to ask for additional information in order to control the price. Currently this possibility is restricted to “special circumstances” but in the new proposal the consumer will always have the possibility to ask for the information without any special reasons.
- The current obligation for businesses to guide and instruct consumers are lifted, since this consumer protection is already included in the misrepresentation clauses in the Danish Marketing Practices Act and in the Danish Sale of Goods Act.
- The current provision on an obligation for businesses to post signs for organized discounts is lifted, since this provision is conflicting with the directive of Unfair Commercial Practices
In addition to these material changes, there are also some significant editorial changes. For instance, the provision on sound marketing practice which is currently section 1 of the Danish Marketing Practices Act will be divided into two:
- Sound marketing practice regarding the consumer’s non-economic interests
- Sound marketing practice regarding the consumer’s economic interests.
The new Danish Marketing Practices Act is currently in public hearing and is expected to enter into force on the 1 July 2017.