Prohibited and controlled advertising in Austria

Prohibited and controlled advertising

What products and services may not be advertised?

Products whose sale and possession is prohibited under criminal law must not be advertised.

Spirits must not be advertised in radio and TV spots. Further, for alcohol advertising, certain other restrictions apply (see question 35).

For restrictions on advertising pharmaceuticals and medical devices, see question 33.

Tobacco advertising is generally prohibited. An exception is advertising by tobacconists in and around their tobacco shop. This exception is in addition to several restrictions, as discussed in question 36.

Are certain advertising methods prohibited?

In general, aggressive advertising is prohibited.

Advertisements may not exert psychological pressure on consumers to buy. Advertisements are prohibited if they place customers under pressure to agree to purchase merely to escape these pressures.

Addressing persons in front of shops, even if not done in a nasty or presumptuous way, is not allowed. The mere distribution of advertising material in public is generally allowed.

Advertising via unsolicited phone calls (‘cold calling’) to private persons is generally prohibited. Advertising by post is generally allowed unless the addressee declared otherwise.

The use of a snowball sales system is prohibited. A snowball sales system is an arrangement whereby the customer is promised delivery of a good or performance of a service against a remuneration to be performed unconditionally if the customer, by means of the orders or vouchers handed over to him or her, finds for the enterprise of the promising party another purchaser who enters into the same contractual relationship with such enterprise.

Lay advertising, which involves the referral of relatives, friends and acquaintances in order to receive premiums or other benefits, is considered against good morals and therefore prohibited. Moreover, advertisers must not use subliminal messages.

What are the rules for advertising as regards minors and their protection?

The inclusion of a direct exhortation to children in an advertisement to buy advertised products or to persuade their parents or other adults to buy advertised products for them is prohibited. However, an indirect invitation to a purchase by showing the benefits and pleasures connected with a product is allowed, even if aimed at children.

Although not unlawful, the Advertising Council has found it inappropriate to place adverts for brothels and similar establishments near schools, nursery schools or residential areas.

Are there special rules for advertising credit or financial products?

For advertising credit or financial products, the general rules apply. In addition, advertisers must provide customers with all relevant and necessary information to enable the customer to make a well-founded decision.

If advertising for loans contains figures, these have to be clearly, accurately and noticeably illustrated by an example containing all relevant loan information such as the effective interest rate, total loan sum and loan period.

In case of securities and investments, adverts are permissible only after complying with the potential obligation to publish a prospectus. Further, adverts must refer to the existence and accessibility of such prospectus.

Relevant legislation includes the Capital Market Act and the Consumer Credit Act.

Are there special rules for claims made about therapeutic goods and services?

Pharmaceuticals and medical devices advertising must not:

• be directed at minors;
• include prescription medicine (except when directed at professionals);
• include other (non-prescription) medicine that is not clearly identifiable as such;
• include homeopathic medicine (except when directed at professionals);
• make an untrue claim that something is a medical (healing) product;
• claim superiority or comparability with other medical products;
• claim that a doctor’s medical treatment is redundant;
• hide potential side effects; and
• feature on teleshopping.

Although not unlawful, the Advertising Council found it inappropriate to promote a pharmaceutical for dyspepsia by showing a woman who secretly adds such pharmaceutical to her husband’s and daughter’s drinks. The Advertising Council considered it against good morals and social responsibility to promote administering medicine to others without them knowing.

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

In Austria, EU Regulation No. 1924/2006 on nutrition and health claims made on foods is applicable. Health claims must be approved by the European Commission, which set up a list of already approved claims in EU Regulation No. 432/2012. Applications for approval of a claim can be sent to the Federal Ministry of Health.

In general, ‘well-being’ claims are allowed only when supported by an approved statement.

Advertisements must not state or imply that a balanced or varied diet cannot provide appropriate quantities of nutrients in general. Individuals should not be encouraged to swap a healthy diet for supplementation, and without well-established proof, no marketing communication may suggest that a widespread vitamin or mineral deficiency exists.

Advertisements for foods must not claim to treat clinical vitamin or mineral deficiency. Advertisements must not promote excessive consumption of a product. The advertised product must contain a significant quantity of the ‘healthy’ substance that will produce the claimed nutritional or physiological effect.

For baby food, the strict limitations of the Regulation on Infant and Follow-On Formula by the Austrian Ministry of Health must be obeyed.

What are the rules for advertising alcoholic beverages?

Spirits must not be advertised in radio and TV spots.

Further, for alcohol advertising, the following restrictions apply. Adverts must not:

• be directed at minors;
• depict minors consuming alcohol;
• claim therapeutic, tranquilising or conflict-resolution effects;
• promote excessive consumption of alcohol;
• make a connection between alcohol and improved physical or mental performance, or more social and sexual success; or
• display a high alcohol level as something positive.

Further to this, the Austrian Brewers Association as well as the Austrian Spirits Industry have established self-regulatory codes for their advertising practices (see question 5).

For instance, the Advertising Council publicly denounced a party flyer saying that they had ‘alcohol police’ testing their party guests and that ‘whoever is sober, must drink’. The Advertising Council found this advert to violate the principles of not encouraging excessive consumption of alcohol and of socially responsible advertising towards minors.

What are the rules for advertising tobacco products?

Tobacco advertising is generally prohibited. An exception is advertising by tobacconists in and around their tobacco shop. This exception is limited by the following restrictions:

• at least 10 per cent of advertising space must be reserved for health warnings;
• there must be no advertising of cigarettes without a filter;
• there must be no belittlement of the negative effects of smoking;
• advertising must not be directed at those under 30 years of age;
• cartoons must not be used; and
• there must be no discount sales or distribution of free packages.

Are there special rules for advertising gambling?

In Austria, there is a governmental gambling monopoly, and the number of gambling licences, exclusively issued by the Austrian Ministry of Finance, is very limited.

According to the Gambling Act, advertisers for gambling must adhere to a certain level of responsibility. This adherence, however, is not subject to claims by competitors under the UWG but only to public supervision.

Foreign casinos in the European Economic Area may advertise their casinos only upon prior permission by the Austrian Ministry of Finance.

What are the rules for advertising lotteries?

Lotteries also fall under the Gambling Act (see question 37).

What are the requirements for advertising and offering promotional contests?

Promotional contests, which consumers can participate in without additional (hidden) costs, are generally allowed, even if participation requires the purchase of a product. However, as soon as additional costs occur (exceeding the usual price of the product), the contest is considered a ‘promotional game’, which may fall under the Gambling Act and therefore be subject to restrictions.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Sponsorship of programmes must not interfere with the editorial content or directly call for the purchase of a service or product of the sponsoring party. Sponsored programmes have to be made recognisable as such. News and other programmes with political content may not be sponsored.

In general, product placement in broadcast media is prohibited. However, there are numerous exceptions to that prohibition. It is allowed if the provided products are free of charge, and it is generally allowed in films, TV series, sport programmes and in ‘lightweight entertainment’ programmes.

Where product placement is allowed, it must indicate the product placement before and after the programme and must not:

• interfere with the editorial content;
• directly call for the purchase of a service or product; or
• display the placed product too dominantly.

Briefly give details of any other notable special advertising regimes.

Special provisions apply to certain freelance professions such as lawyers, doctors, veterinarians, midwives and morticians. In general, these professions are limited to reserved forms of advertising (eg, no puffery).

Advertisements of the services of plastic and cosmetic surgeons are permitted, but they are subject to the strict limitations of the Doctors Act, the Act on the Performance of Cosmetic Treatment and Surgery and the articles of association of the Austrian Medical Chamber.

According to the Coat of Arms Act, the use of the Federal Coat of Arms and the Flag of the Republic of Austria is permissible, unless such use could harm the reputation of the Republic of Austria or cause the misleading impression of public authority of the user.

Similar provisions apply to the coats of arms of the nine Austrian federal states and the Austrian municipalities. Sometimes, the use of such coats of arms is even subject to notifications or permissions by the concerned federal state or the concerned municipality.