Q&A: misleading advertising practices in Sweden

Misleading advertising

How is editorial content differentiated from advertising?

Editorial content is regulated according to the Freedom of the Press Act (1949:105) and is not subject to marketing legislation. However, editorial content may be considered marketing under the rules of marketing if the content has a commercial purpose and a purely commercial subject. Therefore, it is important to make a distinction between editorial content and marketing content.

How does your law distinguish between ‘puffery’ and advertising claims that require support?

There is no explicit distinction between ‘puffery’ and advertising claims that require support in the Marketing Act (2008:486) (as amended up to Act (2017:1309) (the Marketing Practices Act), meaning that the same rules apply. Swedish case law is strict on puffery, but obvious hyperbole and overstatements that consumers cannot interpret literally should not require substantiation.

What are the general rules regarding misleading advertising? Must all material information be disclosed? Are disclaimers and footnotes permissible?

The Marketing Practices Act states that advertisers are not allowed to include incorrect claims or other representations that are misleading in marketing. This applies to marketing across all forms of media. Generally, for information to be considered misleading or false, it should affect a consumer’s ability to make an informed business decision. Material information cannot be omitted. Misleading advertising can also be used to describe any information provided in marketing that is unclear, incomprehensible or ambiguous.

There is no requirement that all information must be disclosed in an advertisement, with the exception of material information. An advertiser is free to decide what information to provide in the marketing. However, the marketing still needs to fulfil the requirements of not being misleading due to a lack of information. In accordance with the Marketing Practices Act, an advertiser may be obliged by an information injunction to provide essential information if the information provided in the marketing is considered insufficient. Generally, advertisements regarding credits, financial services or pharmaceutic products should include more detailed information than advertising regarding other product and services. 

There is no specific regulation on the use of disclaimers and footnotes in advertising. However, according to the Marketing Practices Act, the use of small print text in an advertisement that includes a conflicting marketing message compared to the main text is considered unclear and therefore misleading.

Must an advertiser have proof of the claims it makes in advertising before publishing? Are there recognised standards for the type of proof necessary to substantiate claims?

An advertiser must be able to substantiate all claims made in the marketing and the advertiser will also bear the burden of proof. As such, evidence for substantiation must be retained for all claims. Marketing that is not in accordance with good marketing practices is considered unfair if the claim in question has a material impact on the consumer’s or trader’s ability to make a transactional decision.

Are there specific requirements for advertising claims based on the results of surveys?

The Marketing Practices Act does not include any specific requirements for advertising claims based on the results of surveys. However, any advertiser using the results of surveys in its marketing must still comply with the rules of the Marketing Practices Act and it is important that the results can be substantiated.

What are the rules for comparisons with competitors? Is it permissible to identify a competitor by name?

Comparisons in advertising with competitors’ activities and products are permitted provided that certain requirements, set forth in the Marketing Practices Act, are met. The requirements for a comparison to be permitted are that the marketing:

• is not misleading;
• refers to products that fulfil the same needs or are intended for the same purpose;
• objectively refers to material, relevant, verifiable and distinguishing characteristics of the products;
• does not cause confusion between the trader and another trader, or between their products, trademarks, business names or other distinctive marks;
• does not discredit or disparage another trader’s business, circumstances, products, trademarks, business name or other distinctive marks;
• at all times pertains to goods of the same designation if the goods bear a designation of origin;
• does not take unfair advantage of the reputation associated with another trader’s trademarks, business name, other distinctive marks or the designation of origin of the goods; and
• does not present a product as an imitation or copy of a product with a protected trademark or business name.

Provided that the requirements set forth in the Marketing Practices Act are met, a competitor may be identified by name.

Do claims suggesting tests and studies prove a product’s superiority require higher or special degrees or types of proof?

An advertiser must able to substantiate any superiority claims made in marketing against other products. Furthermore, advertisers should be careful not to claim false conclusions from tests and studies when claiming a product’s superiority, as such false claims may be considered misleading marketing.

Are there special rules for advertising depicting or demonstrating product performance?

There are no specific rules in the Marketing Practices Act regarding advertising depicting or demonstrating product performance. However, the general rules of the Marketing Practices Act regarding misleading advertising must be observed.

Are there special rules for endorsements or testimonials by third parties, including statements of opinions, belief or experience?

An advertiser may only refer to an endorsement or testimonial, adherence to a code of practice or attainment of a quality mark in its marketing if it can substantiate that the endorsement or testimonial is correct and fair. If copyrighted materials or marks are used, permission from the right holder may be required. Misleading endorsements or testimonials could be challenged under the Marketing Practices Act.

Are there special rules for advertising guarantees?

The Marketing Practices Act and the Consumer Sales Act (1990:932) state that an advertiser that makes guarantees, or offers warranties or other similar undertakings is obliged to give the consumer (or purchasing party) detailed information regarding the guarantee or warranty, including any additional information necessary for the consumer (or other purchasing party) to impose the guarantee or warranty. Furthermore, an advertiser offering guarantees or warranties must provide information clarifying that the guarantee does not affect the consumer’s rights under the law (eg, the right to make a complaint). It is important that the advertiser provides information on the duration and territorial scope of the guarantee and the name and address of the issuer. The information must be provided in writing.

Are there special rules for claims about a product’s impact on the environment?

The Marketing Practices Act specifically states that an advertiser must not, in its marketing, use false statements or methods that refer to the marketed product’s or service’s impact on the environment. In the assessment of environmental arguments used in the marketing of products or services, Swedish case law sets a strict standard. Any marketing with ‘green’ arguments and claims (eg, stating the product’s or service’s environmental benefits and how environmentally friendly the product or service is) is permitted, but any such statement must be moderate, well-founded and substantiated. Such case law is in line with the environmental advertising rules set forth in the ICC Advertising and Marketing Communications Code (the ICC Marketing Code). The ICC Marketing Code sets forth that marketing must be designed in such a way that the consumers' concerns and feelings for the environment are not abused and that the consumers’ possible lack of knowledge on environmental issues is not exploited. Marketing may not contain any claim or other representation that is likely to mislead consumers in any way with regard to the environmental aspects or benefits of products, or about environmentally friendly measures taken by the advertiser.

Are there special rules for describing something as free or a free trial or for special price or savings claims?

According to Swedish case law, terms like ‘free’, ‘for free’, ‘SEK 0’ and similar are not acceptable and are considered to be misleading when the consumer is expected to do something in return, for example if the consumer must purchase something to use the offer. In accordance with point 20 of Annex 1 of the Unfair Commercial Practices Directive (2005/29/EC), it is unfair to describe a product as ‘free’, ‘without charge’ or similar if the consumer must pay anything other than any unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

As an exception to the rule described above, use of the term ‘included in the bargain’ is permitted when a buyer is offered a larger quantity of goods at the same price. For example, this term can be used when two products are offered for the same price that one product would normally cost.

The term ‘without extra cost’ can be used in combined offers when a premium is offered, provided that the premium is legitimately awarded without any extra cost to the consumer.

Are there special rules for claiming a product is new or improved?

There are no special rules for claiming a product is new or improved in the Marketing Practices Act. However, the Marketing Practices Act prohibits any misleading claims regarding a product’s existence, nature, quantity, quality and other characteristics.

Are there special rules for claiming where a product is made (such as country of origin)?

Any advertising that presents misleading information about the product’s geographic origin may be considered a breach of the Marketing Practices Act. Misleading claims about where a product is manufactured may also be considered a breach of the Act. For example, this may apply when the claim ‘made in Sweden’ is used on a product that is wholly or mainly manufactured abroad.