Advisory services and support in the field of marketing law

A trader must be able to substantiate the claims made in its marketing. This duty of substantiation applies to statements concerning factual matters. Documentation will typically be required for claims that the trader offers the best products, the lowest prices, or is the largest provider within its field. In general, the Marketing Control Act requires that anyone making a claim in marketing must be able to provide evidence that the claim is true.

f the marketer cannot substantiate the claim, it may be considered misleading and therefore unlawful. The duty of substantiation is therefore of significant importance when assessing whether a particular marketing campaign complies with the provisions of the Act.

The necessary documentation must be in the advertiser’s possession at the time the marketing takes place.

The Norwegian Consumer Authority supervises traders’ commercial practices and contractual terms. More specifically, it monitors compliance with the provisions of the Marketing Control Act, regulations issued pursuant to the Act, and any other legislation where supervisory authority is assigned.

The Norwegian Consumer Authority has primary decision-making competence and acts as the first-instance authority in all consumer protection cases where it has enforcement powers. If the trader does not provide written confirmation to the authority that the unlawful conduct will cease, the Consumer Authority may issue a decision against the trader.

If the Consumer Authority finds that an action is in breach of the Marketing Control Act, it shall first attempt to persuade the trader to voluntarily change its marketing practices. In practice, negotiations often take place between the Consumer Authority and various businesses. The consumer protection system under the Marketing Control Act is primarily based on defining the boundaries of the law through a fair and open dialogue, with greater emphasis on ensuring future compliance with the law than on imposing penalties for past infringements.

The Norwegian Consumer Authority may issue prohibition orders and impose bans on actions that are contrary to the provisions referred to in section 35 of the Marketing Control Act.

The Marketing Control Act lists a number of pieces of information that must be included in the terms of a guarantee if a guarantee is provided. Guarantees may not restrict consumers’ statutory rights. This already follows from the fact that most consumer protection laws are mandatory. It must be stated what rights the guarantee provides in addition to those the consumer already has under legislation. If it is given the impression that it is the guarantee that forms the basis of statutory rights, this is misleading and contrary to the law.

The Act requires the seller to inform that the consumer’s rights under applicable and specified legislation are in addition to the guarantee, and that these rights are not affected by the guarantee. This means, among other things, that it is considered misleading if the guarantee does not give the recipient additional rights, or if it restricts rights that the consumer would otherwise have had without the guarantee.

The Act also requires the seller to provide information necessary for the consumer to make use of the guarantee. For example, information must be given about the duration of the guarantee (the warranty period), its geographical scope, and the name and address of the guarantor.

The purpose of the Marketing Control Act to protect societal interests is reflected, among other things, in section 2, which prohibits practices in commercial activities that “contravene good marketing practice.” The provision addresses ethical aspects of marketing. It states that marketing contrary to generally accepted ethical and moral standards, or the use of offensive methods, may be unlawful. Encouraging environmentally harmful behaviour in marketing may also be in breach of the provision. Environmental claims and similar statements must remain within the limits set by the concept of “good marketing practice.” A typical requirement in this context is that the use of terms such as “climate,” “eco,” “green,” etc., must have a genuine and substantive content.

The Marketing Control Act sets out three criteria, each of which may be sufficient for an advertisement to be considered gender discriminatory:

– Advertising that is contrary to equality between the sexes
– Advertising that exploits the body of one of the sexes
– Advertising that conveys an impression of offensive or degrading evaluation of a woman or a man

To some extent, these criteria overlap and do not have clear boundaries. The assessment of whether a specific advertising campaign conflicts with the prohibition against gender-discriminatory advertising must be made on the basis of objective criteria reflecting how the advertisement is perceived by the average consumer. The provision is therefore based on a legal standard, and its content will evolve in line with changes in societal attitudes.

In cases concerning the exploitation of one sex’s body, the depiction itself may be assessed. According to the preparatory works of the Act, “exploitation” in the legal sense occurs when the body becomes the central element of the advertisement, for example because it is posed in an unnatural manner in relation to the product’s normal use. The body is then used to draw attention to the marketing in a way that is capable of undermining human dignity.

It is nevertheless clarified that the intention is not to prohibit nudity in advertising, and that weight should be given to which audience the advertisement is directed at. Where there is a clear connection in the advertisement between the product and the situation depicted, it will take more for the advertisement to be considered in breach of the law.

Typical promotional measures include the use of inducements such as competitions, prizes, or additional benefits when purchasing a product. Promotional measures are not prohibited, but the Regulation on Unfair Commercial Practices sets out certain conditions. With regard to competitions and prize promotions, the regulation states, for example, that it is unfair to “claim in the course of a commercial practice that a competition or promotional campaign with prizes is being run without awarding the prizes described or a reasonable equivalent.” Businesses that use such inducements must therefore ensure that it can be documented afterwards that the competition and prize promotion were genuine.

It is fully permissible to offer quantity discounts, annual bonuses, and similar rebates based on membership, customer cards that are stamped for each purchase, etc. However, all information about membership benefits and discount schemes must comply with the requirements for adequate guidance under the Marketing Control Act.

Decisions of the Norwegian Consumer Authority may be appealed to the Market Council by traders or consumers affected by the action or term, or by an association of traders or consumers. Proceedings before the Market Council are, as a general rule, conducted in writing, but it may be decided that the case shall be heard orally.

The Marketing Control Act prohibits traders from demanding payment for goods, services, or other performances without the existence of an agreement. The provision applies to situations where an invoice is received for something that has neither been ordered nor delivered. This may include the insertion of advertisements, listing of business names in directories that have not been published, etc.

The purpose of the prohibition is, among other things, to facilitate the prosecution authorities’ investigation of cases of invoice fraud and so-called directory scam operations.

Neither the Norwegian Consumer Authority nor the Market Council has the authority to intervene in cases concerning relations between traders. However, breaches of provisions governing relations between traders may be brought before the Norwegian Complaints Board for Business (Næringslivets konkurranseutvalg, NKU).

NKU is a private dispute resolution body that issues advisory opinions in disputes between businesses. The board has no authority to intervene in complaints that are pending before the consumer authorities. If the party against whom a complaint is made does not comply with the board’s opinion, the other party must, if necessary, pursue the matter through the ordinary court system. The board’s competence and authority generally mean that its advisory opinion will carry significant weight in the court’s subsequent determination of the dispute.

Unlike prohibition orders, which are directed at possible future infringements, administrative fines may be imposed immediately once a breach of the law has occurred, without prior warning. The infringement must be of a qualified nature, meaning that it is either considered substantial or has occurred repeatedly.

Decisions on administrative fines may be made on an independent basis, but may also be issued alongside prohibition orders. In the event of a breach of law, an administrative fine may therefore be imposed in response to the infringement itself, while a prohibition order may simultaneously be issued to prevent repetition of the infringement in the future, which may in turn trigger coercive fines.

The Norwegian Consumer Authority primarily has the power to impose administrative fines, with the Market Council serving as the appellate body. The decision may be reviewed by the ordinary courts. Both negligent and intentional breaches are covered.

As with coercive fines, the administrative fine shall be determined based on a concrete assessment in each individual case, where particular emphasis is placed on the severity, scope, and effects of the infringement.

The main rule under the Broadcasting Act is that product placement is prohibited. However, the Act provides a number of exceptions, which means that the use of product placement is nonetheless widely permitted. The use of product placement must comply with certain guidelines, which are further regulated in the Act.

The permission for product placement does not include programmes produced or commissioned by NRK or affiliated companies.

The Norwegian Consumer Authority may issue orders deemed necessary to ensure compliance with a prohibition issued under or pursuant to the Marketing Control Act.

The Alcohol Act prohibits advertising for alcoholic beverages. It is prohibited to advertise equipment, including parts and accessories, that is intended for or suitable for the production or redistillation of spirits, liquor, or isopropanol in newspapers, magazines and similar publications, through displays in shops, or in any other manner. It is also prohibited to advertise substances intended for addition to alcoholic beverages.

The ban on advertising alcoholic beverages is set out in the Alcohol Act. It covers advertising for alcohol as defined in the Act, i.e. beverages containing more than 2.50% alcohol by volume. Low-alcohol beverages such as light beer, low-alcohol wine, and similar products are therefore not covered by the advertising ban.

The use of alcoholic products in advertising for other goods and services is also prohibited. The Act thus prohibits indirect advertising of alcohol. No goods that can be identified with alcohol may be included in advertising.

The Tobacco Damage Act prohibits advertising for tobacco. The Act provides that all forms of advertising for tobacco products are prohibited, including indirect advertising. It is therefore also prohibited to use tobacco brands in advertising for other goods or services.

The Marketing Control Act specifies that marketing is misleading if it causes confusion with a competitor’s products or trademarks. Comparative advertising is any advertising that directly or indirectly refers to a competitor or to goods and services offered by a competitor.

The requirements applicable to comparative advertising are further regulated in regulations issued pursuant to the Marketing Control Act. According to these regulations, comparative advertising is permitted when it objectively compares one or more material, relevant, verifiable, and representative features of goods and services, including price.

One of the most important principles of the Marketing Control Act is the principle of truthfulness. This principle means that communications made by a trader to promote its business must not be misleading. A commercial practice is misleading if it contains incorrect information and is therefore untruthful, or is otherwise likely to mislead consumers. Examples include unsustainable product claims, misleading statements about favourable pricing, misleading images, or packaging with a low fill level.

The decisive factor in assessing whether a practice is misleading is how the advertising message is perceived by the average consumer. There is no requirement to prove actual effect. It is sufficient that the practice is considered capable of influencing demand.

The Market Council has on several occasions also held that the decisive factor is not what is strictly stated in the advertisement, but how it is perceived by consumers upon a superficial reading.

If a programme is sponsored, the Broadcasting Act requires that this must be stated at the beginning and end of the programme. In the case of sponsored segments, information may be given during the programme.

It is prohibited to direct telephone marketing at consumers who have opted out of such marketing in the Central Opt-Out Register. The Central Opt-Out Register is a national register for opt-outs from telephone sales and addressed advertising, administered by the Brønnøysund Register Centre.

It is also prohibited to send marketing via addressed mail to consumers who have opted out in the Central Opt-Out Register. There are two exceptions to these prohibitions: even if a person has opted out, marketing via telephone or addressed mail is permitted if the person has explicitly requested to receive such marketing from the business. Such a request may be withdrawn at any time. Marketing via telephone or addressed mail is also permitted towards consumers who have opted out if there is an existing customer or donor relationship, and the business has received the consumer’s contact details in connection with a sale or donation.

It is also prohibited to direct telephone marketing or addressed mail to private individuals who have opted out of such marketing directly with the business.

There is an absolute prohibition for businesses on conducting telephone marketing to consumers on Saturdays, public holidays, or days legally treated as equivalent to public holidays, as well as on weekdays before 9 a.m. and after 9 p.m. At the same time, it is prohibited to conduct telephone marketing to consumers from hidden phone numbers or from numbers that are not registered and searchable in directory assistance services.

The Norwegian Consumer Authority and the Market Council may impose coercive fines (penalty charges) that must be paid if a decision prohibiting certain conduct is violated. The decision on coercive fines is therefore not directed at the already committed act, but at any repetition or continuation of the act. A decision on coercive fines means that a specific marketing measure is prohibited and must cease; otherwise, an enforcement notice will be issued for the coercive fine specified in the decision.

It is the Norwegian Consumer Authority and the Market Council that determine the amount of the fine, and any disagreement regarding the matter may be reviewed in civil proceedings before the ordinary courts.

It is worth noting that coercive fines may be set at substantial amounts, often far exceeding the levels typically used for fines imposed in criminal cases. It is also worth noting that decisions on coercive fines may be directed not only at the marketing company itself, which is often a limited liability company, but also at the person or persons responsible for the operation of the company, through liability for aiding and abetting. This is intended to prevent the individual concerned from starting similar business activities under the guise of a new

The delivery of unsolicited, unaddressed advertising to consumers who have clearly indicated that they oppose this is prohibited under the Marketing Control Act. The prohibition also applies to free newspapers. Free newspapers with only negligible editorial content are, in this context, considered unaddressed advertising.

The opt-out must be clearly expressed on the mailbox or entrance door with a “no thank you” notice for unaddressed advertising.

There is an exception for inserts in newspapers and similar publications.

Unfair commercial practices are prohibited under the Marketing Control Act. A commercial practice is unfair if it is contrary to good business practice towards consumers and is likely to materially distort consumers’ economic behaviour in a way that causes them to make decisions they would not otherwise have made.