Prohibited and controlled advertising

Prohibited products and services

What products and services may not be advertised?

German law does not provide for absolute limitations for advertising products and services in general if the products and services themselves are permitted. An exception hereto applies to advertising for pornographic material, which is generally prohibited. Moreover, specific restrictions exist for advertising particular products and services, mainly depending on specific communication channels. For example, tobacco advertising is banned on German radio and television.

Prohibited advertising methods

Are certain advertising methods prohibited?

The prohibitions on certain advertising methods mainly result from the general rules arising out of the UWG. Advertising activities are inadmissible whenever the freedom of decision of consumers is impaired, for example, through applying pressure or exploiting a consumer’s credulity or fear.

Sending advertising emails without the prior consent of the recipient is generally prohibited. The same applies to telephone advertising (‘cold calls’). If the commercial nature of these commercial practices is not clear, it is a misleading omission pursuant to section 5a, paragraph 6 of the UWG, and subliminal advertising is generally prohibited.

Regarding broadcasting, particular advertising methods are also subject to the specific rules of the RStV (see question 31).

Protection of minors

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

Regarding advertising via broadcasting and telemedia (electronic information or communication services, such as online news portals), advertising shall not directly exhort minors to buy a product or service by exploiting their inexperience or credulity, or directly encourage them to persuade their parents to purchase the goods or services being advertised (section 6, paragraph 2 JMStV). Further restrictions can be found in the German Minors Protection Act (JuSchG). Additionally, the general rules of the UWG are applicable (see also No. 28 Annex of section 3, paragraph 3 UWG).

Credit and financial products

Are there special rules for advertising credit or financial products?

Advertising of credit or financial products must meet the specific requirements for clear and comprehensive information about the product. In this regard, the PAngV contains detailed provisions, particularly on the amount of mandatory information. For example, credit advertising must contain information on the net loan amount, the borrowing rate and the annual percentage rate using an easily understood example. Infringement of these rules is deemed unfair competition.

Further, such advertising is subject to the general rules of the UWG and therefore must not contain any misleading information. This applies in particular to claims about the risks and the earning potential of the investments being advertised.

Therapeutic goods and services

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

Specific rules for therapeutic claims can be found in the HWG, the Medical Devices Act or the professional requirements for pharmacists at state level. Misleading advertising for therapeutic goods and services is also deemed to be unfair competition pursuant to the rules of the UWG. The HWG provides special rules for advertising outside the medical circle of experts. The act contains a list of broad restrictions for third-party endorsements and testimonials, advertisements using pictures and specific advertising methods. In addition, it is generally prohibited to advertise remote medical treatment. Further, advertising medicines that have not been approved for sale on the German market is forbidden.

Food and health

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

The use of health and nutrition claims for advertising is only permissible if the respective claim complies with the provisions of Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods. While the latter must be authorised by the competent authority, the Regulation contains a list of approved nutrition claims. Advertisers should review the EU Register of permitted nutrition claims, authorised health claims and their respective conditions of use. Violations of this Regulation may be deemed to be unfair competition pursuant to the UWG.

Claims that make reference to weight control are generally permitted if they are scientifically substantiated and not misleading.

Specific advertising activities outside the scope of the Regulation are covered by the national rules of the German Food and Feed Code.

Alcohol

What are the rules for advertising alcoholic beverages?

Advertising alcoholic beverages is subject to the general regulations of the JuSchG and the JMStV. Pursuant to section 6, paragraph 5 of the JMStV, advertising of alcoholic beverages shall not be aimed at minors, nor specifically appeal to them through its presentation or show minors consuming alcohol. Further, the German Advertising Council has established a strict code of conduct for advertising alcoholic beverages.

Such advertising is also covered by the general regulations of the UWG.

Tobacco

What are the rules for advertising tobacco products?

Advertising tobacco products and electronic cigarettes is strictly regulated in Germany. In May 2016, the Tobacco Products Directive (Directive 2014/40/EU) was transposed into national law by the Tobacco Act. The Act provides for restrictions on any communication channel. While tobacco advertising is completely banned on television and radio, advertising in print media is restricted to media that are only available for tobacco distributors or that mainly contain information about tobacco products. A sole exception is still made for billboard advertising, which is generally permissible.

Similar to the advertising of alcoholic beverages, advertising for tobacco shall not be addressed to minors.

Gambling

Are there special rules for advertising gambling?

In Germany, the operation of gambling is strictly regulated. The same applies to its advertising, which is in particular subject to the regulations of the State Treaty on Gambling (GlüStV). Pursuant to section 5, paragraph 2 of the GlüStV, advertising shall not be aimed at minors or comparably vulnerable target groups. Misleading claims, in particular regarding the chances of winning or the nature or amount of the winnings, are prohibited. Public gambling advertisements on television, the internet or telecommunications systems are forbidden. However, according to section 5, paragraph 3, sentence 2 of the GlüStV, the states may grant exemptions for lotteries, sports and horse race betting. They also adopt joint regulations to define the nature and scope of permissible gambling advertising.

Lotteries

What are the rules for advertising lotteries?

As a sub-category of gambling, lotteries are subject to the general provisions of the GlüStV. Besides the above-mentioned restrictions, advertising lotteries may be permissible in accordance with the Joint Advertising Guideline of the States Regarding Gambling. This applies to lotteries that are organised no more than twice a week and those with a low-risk potential.

Promotional contests

What are the requirements for advertising and offering promotional contests?

Advertising activities for promotional contests and games are generally permissible if they are transparent and not misleading. They should provide information on the terms and conditions of participation, particularly the costs, and the announcement of the solution. False statements or non-disclosure of mandatory information are prohibited.

Additionally, further restrictions apply to broadcasting of competition programmes and games. Besides the general requirement of transparency and the prohibition of misleading claims, according to the RStV, it is necessary to protect the interests of the participants (child protection, in particular, should be ensured).

Indirect marketing

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

Indirect marketing is highly restricted in broadcasting and internet media. Section 8 of the RStV contains specific provisions for commercial sponsorship. Sponsored programmes shall be clearly identified as such by the name, logo or any other symbol of the sponsor at the beginning or at the end of the programmes. Sponsors shall not have any influence on the content and scheduling. Product placement is only permissible under stringent conditions: it must be clearly indicated at the beginning and at the end of the programme and it must always be clearly distinguishable from editorial content. Product placement is completely banned on children’s programmes.

Further, indirect marketing is subject to the general rules of the UWG. It may be deemed unfair competition if the advertising character is not clearly recognisable.

Other advertising rules

Briefly give details of any other notable special advertising regimes.

Section 7, paragraph 9, sentence 1 of the RStV declares political, religious and ideological advertising inadmissible. However, this does not apply to public service announcements and charity appeals. Further, the law provides for exceptions, including religious programmes in the private media, or political advertising for parties during their participation in parliamentary elections.