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9 May 2017
Newsletter
− The new Danish Marketing Practices Act
Background
On 25 April 2017 the Danish Parliament adopted a new Danish Marketing Practices Act (“Act”). The
main objective for revising the Act has been to enhance clarity and simplify the Act. Further, the
new wording reflects a wish to ensure a close implementation of EU law, namely the provisions of
the Unfair Commercial Practices Directive (the “Directive”), in order to safeguard full compliance
with Community legislation.
The new Act will come into force on 1 July 2017.
Structure and main amendments of the new Act
The newly adopted Act contains a different structure and composition than the current Act. A list of
definitions has been included and the terminology is aligned with relevant EU legislation. Further,
the new Act is divided into thematic chapters with the objective of making it easier for users to navigate in the Act.
The current Section 1 contains the so-called general clause (in Danish: “generalklausulen”), i.e. the
requirement that all traders must exercise good marketing practices. In the new Act this requirement has been divided into two separate provisions; Section 3 (regarding good marketing practices)
and Section 4 (regarding good commercial practices). In contrast to Section 4, Section 3 covers circumstances which fall outside of the Directive. This provision clarifies that traders must exercise
good marketing practices when dealing with consumers, other traders and public interests. In relation to consumers Section 3 will, however, only apply if the marketing practices in question are not
aimed at distorting the economic behaviour of consumers, but which instead relate to considerations regarding for example taste, decency, safety and health. Opposite, if the practices in question
are aimed at distorting the economic behaviour of consumers, Section 4 will be applicable (and in
such case the term “good commercial practices” is used).
Section 3 of the current Act contains the prohibition of misleading and improper marketing, but has
been transformed into four individual provisions, i.e. Section 5 (misleading actions), Section 6 (misleading omissions), Section 7 (aggressive commercial practices) and Section 20 (misleading and
improper commercial practices between traders). In relation to Section 6, this provision contains
the prohibition on camouflaged advertising currently found in Section 4. With the new wording it is,
however, no longer a requirement that a specific agreement is entered into between the trader
Side 2
(whose product is advertised) and the person actually doing the advertising of a product. Come 1
July, a “commercial intent” will be sufficient. This amendment will for example require that bloggers – to a wider extent than under the current Act – must indicate if a contribution on a blog is
sponsored.
The first proposal of the new Act contained several material amendments to the spam provision as
we know it. These amendments were, except from a number of changes related to the specific wording, not adopted and therefore spam is regulated similarly under the new Act. However, according
to the preparatory work, the new spam provision in Section 10 is intended to expand the possibility
for companies to send advertising e-mails concerning products in the same product category as a
product previously purchased by the customer (subject to certain requirements).
In the new Act, Section 7 (regarding the obligation to provide guidance) and Section 16 (regarding
organized discounts) will be repealed due to some uncertainty in relation to the provisions’ compliance with EU legislation. Regarding the obligation to provide guidance such obligation will, however, still apply based on Danish legislation relating to consumer agreements and the purchase of
goods.
The current Section 12 regarding guarantees will also be repealed and replaced by a new Section 17.
It is no longer a requirement that a guarantee provides the consumer with a substantial better legal
position than what follows from other legislation. Also, after 1 July guarantees shall only be provided in Danish to the extent the product has been marketed in Danish.
The new Marketing Practices Act can be found here:
http://www.ft.dk/RIpdf/samling/20161/lovforslag/L40/20161_L40_som_vedtaget.pdf
Søren Høgh Thomsen
IP & Technology
D +45 86 20 74 12
M +45 24 28 69 03
[email protected]
Jacob Ørndrup
IP & Technology
D +45 33 41 42 20
M +45 24 28 68 36
[email protected]
Side 3
Anne Louise Pless
IP & Technology
D +45 33 41 42 91
M +45 24 28 69 16
[email protected]
Sara Goul Ærthøj
IP & Technology
D +45 33 41 43 47
M +45 27 80 40 28
[email protected]
This information does not constitute and cannot replace legal advice. Gorrissen Federspiel does not assume any liability for
damage or losses which directly or indirectly are related to the use of the information.