Prohibited and controlled advertising in Ireland

Prohibited and controlled advertising

What products and services may not be advertised?

There is a blanket ban on tobacco advertising in all media, as detailed in question 36. Alcohol may not be advertised unless cleared, as detailed in question 35. The Public Health (Alcohol) Act, 2018 also restricts alcohol advertising. There are also prohibitions on the advertising of certain pharmaceutical products, such as prescription medication, under the Medicinal Products (Control of Advertising) Regulations 2007.

There are certain prohibitions placed on the advertisement of ‘junk food’, as defined in the BAI Code, for broadcast advertising during certain hours of the day (see question 31). There is also a prohibition on the advertisement of infant formula under the European Communities (Infant Formula and Follow-on Formula) Regulations 2007.

Under the Broadcasting Act 2009, there is a prohibition on broadcast advertisements for political purposes or dealing with industrial relations disputes and the merits of joining certain religious organisations.

The Grocery Regulations 2016 introduce mandatory rules concerning arrangements between wholesalers, retailers and suppliers who seek to curb unfair competition and anticompetitive practices. This includes arrangements concerning payments for prominent shelf positioning in shops and outlets, for advertising and display of the supplier’s grocery goods in the retailer’s premises and a requirement that, since 30 April 2016, all such arrangements are to be in writing and signed by all parties and are to be in clear and intelligible language.

Are certain advertising methods prohibited?

As described in question 18, section 55 of the Consumer Protection Act 2007 lists a series of prohibited commercial practices, some of which are based on particular methods of advertising. These are derived from the EU Unfair Commercial Practices Directive (2005/29/EC).

The BAI Code contains specific prohibitions on certain advertising methods in broadcast advertising. This includes prohibitions on product placement, except in limited permissible circumstances as set out in the ASAI Code. Surreptitious and subliminal advertising communications are completely prohibited by the ASAI Code.

There are also restrictions and prohibitions placed on the use of marketing emails (or other forms of communication) under the e-Privacy Regulations 2011 and the Data Protection Acts 1988 and 2003.

Finally, the ASAI Code contains a series of general prohibitions that can be applied to advertising material (eg, any advert that condones or encourages dangerous behaviour or unsafe practices is prohibited).

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

Under Irish law, minors are defined as anyone under the age of 18. Both the courts and the regulatory bodies will have special regard to the susceptibility of consumers of a younger age to the suggestions of advertisements. The Consumer Protection Act 2007 specifically prohibits any form of advertisement that exhorts children to purchase a product or encourages their parents to purchase the product for them.

The ASAI Code contains a specific section on advertising to children. It includes subsections relating to the advertising of food to children and prize promotions for children. In particular, it places restrictions on the use of children in advertising (eg, children cannot be positioned near an open fire without a fireguard in an advertisement). There are further restrictions similar to the Consumer Protection Act 2007 concerning advertisements that might encourage children to plead with a parent to buy a product and advertisements that use words such as ‘only’ or ‘just’ in relation to the price.

Finally, the BAI has a specific and quite detailed Communications Code on broadcast advertising to children. It breaks down certain restrictions under the ASAI Code into age categories, taking into account that a 17-year-old may have a better grasp of advertising than a six-year-old. There are general restrictions regarding misleading advertising and a higher standard will be placed on advertisers where children are involved. There are restrictions on the duration and type of advertising during certain times of the day when minors are likely to watch children’s programming. The use of programme characters and celebrities or sports stars in advertising is restricted. In recent years, a focus has been placed on the advertising of ‘high in fat, salt and sugar foods’ and there are restrictions and requirements in place for the advertising of these.

Are there special rules for advertising credit or financial products?

The rules governing the requirements for advertising credit or financial products are contained in the Central Bank of Ireland Consumer Protection Code 2012 and the ASAI Code. The Central Bank of Ireland is the governing body for financial institutions in Ireland. Regulated entities (as defined in the Consumer Protection Code) must ensure that their advertisements are clear, fair, accurate and not misleading. A regulatory disclosure statement must be included in all advertisements. Key information must be prominent and in the main body of the advertisement and it must not be disguised by the design, content or format of the advertisement. Warning statements (eg, detailing the risks if repayments are not made) must be included with the benefits of the advertised products or services.

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

Most of the rules in place will apply equally to the therapeutic products and the health and nutrition products detailed below.

The Medicinal Products (Control of Advertising) Regulations 2007 contain specific rules on the advertising of certain medications and health products that can fall under the definition of ‘therapeutic goods and services’. The Consumer Protection Act 2007 does not specifically make any provision for therapeutic products or services but its general rules can be equally applied.

The Irish Pharmaceutical Healthcare Association also publishes a Code of Marketing Practice for the Pharmaceutical Industry and a separate Code of Standards of Advertising Practice for the Consumer Healthcare Industry. These were most recently revised in January 2015.

Both the ASAI Code and the BAI Code contain specific rules for the advertisement of health and beauty products. The ASAI Code provisions break down restrictions between specific types of therapeutic products such as hair loss products, alternative medicines and vitamin replacements.

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

Depending on the product in question (particularly in relation to weight loss), any claims may fall within the Medicinal Products (Control of Advertising) Regulations 2007 and will need to comply with the restrictions as set out in the Regulations.

The ASAI Code contains specific rules governing advertisements for foodstuffs regarding health, nutrition and weight control. It includes restrictions on advertising for ‘crash diets’ or the encouragement of consumers to feel that being ‘underweight’ is in fact normal. Substantiation will be expected for any claims made.

The BAI Code also contains specific rules on both the medicinal side of such foodstuffs and the more general area of food advertising.

What are the rules for advertising alcoholic beverages?

The Public Health (Alcohol) Act, 2018 was signed into law in October 2018 and some provisions were enacted by Mionisterial Order in November 2018. The Act includes provisions on the advertising and marketing of alcohol, and sponsorship involving alcohol brands. Alcohol advertising is also covered by codes of practice between the various members of the alcoholic drinks industry and the Irish government and various health bodies - the Alcohol Marketing, Communications and Sponsorship Code of Practice and the MEAS Code of Practice, which deals with messaging guidelines. For example, all advertising for alcoholic beverages must contain the tagline ‘enjoy “brand name” responsibly’ and must direct consumers to a responsible drinking website.

Additionally, both the BAI Code and the ASAI Code have specific sections regarding alcohol advertising.

The content of all of the codes is too detailed to list here but compliance is ensured by CopyClear (see question 4). Essentially, all advertisements for alcoholic drinks (whether broadcast, print, online or other social media) must be pre-vetted and cleared by CopyClear. Once a proposed advertisement has been cleared, it will be given a specific code, and media outlets will not run the advertisement unless they are first provided with that code proving the advertisement has been cleared.

The Grocery Regulations 2016 prohibit any premium payment for more prominent shelf positioning in a retailer or wholesaler’s premises or for advertising and promotion costs in connection with the marketing, advertising, sale and promotion of alcoholic beverages.

What are the rules for advertising tobacco products?

There is a blanket ban on advertising tobacco products in Ireland pursuant to the Public Heath (Tobacco) Act 2002 and the Public Health (Tobacco) (Amendment) Act 2004.

Are there special rules for advertising gambling?

There is no specific legislation for advertising gambling, and the various gambling companies that operate here simply fall under the remit of the normal regulators and the general legislation such as the Consumer Protection Act 2007. The various codes of practice permit the advertisement of betting services, although some restrictions are placed on actively encouraging people to gamble. The latest edition of the ASAI Code now contains a specific section on gambling advertising. All such advertisements need to comply with the guidelines as set out in the ASAI Code, which include that the advertising should not:

• portray gambling in a manner that is socially irresponsible;
• imply any peer pressure to gamble;
• link gambling to social or sexual success; or
• imply that it is a rite of passage.

What are the rules for advertising lotteries?

Lotteries are governed by the Gaming and Lotteries Acts 1956-1986. There are severe restrictions on the circumstances in which a lottery can be legally operated (without even looking at the advertising of the said lottery). Only specific types of lottery as set out by the legislation can be operated. From the point of view of advertising or sales promotions, the type of lottery generally used will require a licence from the local district court issued under section 28 of the Acts. The advertising of a lottery is prohibited unless it is one of the specific types of lottery permitted under the Acts, and holds the appropriate licence or permissions.

What are the requirements for advertising and offering promotional contests?

Often one of the difficulties faced by promoters and advertisers is that promotional contests fall within the definition of a lottery contained in section 2 of the Gaming and Lotteries Acts 1956-1986. In such circumstances, a licence as detailed above is normally required. An alternative is to ensure that entry is free for all participants or that the contest involves an element of skill (thereby removing the element of chance involved in a lottery).

Provided the promotional contest does not fall within the definition of a lottery, the requirements for advertising it will fall within all of the legislation and regulations detailed above. It will be required to comply with the codes of practice and legislation.

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

The BAI Code includes restrictions on sponsorship and product placement, except in limited circumstances. Both are permissible provided they comply with the provisions and circumstances set out in the ASAI Code. For sponsorship, the sponsor must be clearly identified with its name and logo and it must be a sponsor that would be entitled to advertise anyway (eg, it is not possible to use sponsorship to circumvent advertising restrictions). Certain types of programming may not be sponsored.

Product placement was not permissible until relatively recently. It is now permissible, provided that the placement complies with the restrictions as set out in the ASAI Code (eg, the programming cannot be affected by the product placement). Paid product placement is not permitted in children’s advertising.

For alcoholic drinks, as detailed above, there are specific rules governing sponsorship. Sponsorship of sports broadcasts is not permitted and there are restrictions on the types of events that can be sponsored. The restrictions on sponsorship will be tightened further when the Public Health (Alcohol) Bill 2015 is enacted.

Briefly give details of any other notable special advertising regimes.

Ireland is traditionally seen as a conservative, Catholic country and the regulators generally take that into account. The ASAI, when dealing with complaints generally, considers whether the advertisement is likely to cause offence. One of the issues that arises is whether offence would be caused to the general population because of religious issues. That problem may not often be apparent to an international advertiser seeking to run a campaign in Ireland that has previously run without complaint in other Western countries.