Advertising & Marketing 2023

Advertising & Marketing: A Global Overview

Today, more than ever, we live in a global marketplace. Whether relying on traditional distribution channels or the opportunities posed by e-commerce, marketers are continuing to look globally to market and sell their products and services. While this ever-expanding global marketplace provides enormous opportunities for marketers, it presents significant challenges as well. 

Advertising is heavily regulated around the world and, in some cases, the laws governing advertising and marketing practices in countries can vary widely. Jurisdictions also approach the regulation of advertising in many different ways. Some rely on general consumer protection laws, while others have detailed rules that govern specific marketing practices, and some rely more heavily on advertising self-regulatory organisations to guide marketers about what types of advertising practices are acceptable. 

There are also significant differences in the level of oversight that jurisdictions provide before advertising is published. For example, some jurisdictions require most advertising materials to be approved before publication, while others only require certain types to be pre-approved. In some places, self-regulatory and media organisations play an important role in pre-approving advertising as well. There are also jurisdictions where few, if any, pre-approvals are required. 

The legal risks that marketers face around the world vary widely as well.  Some jurisdictions have regulators that aggressively challenge advertising claims, while others have regulators that rarely take action. While many jurisdictions also have advertising self-regulatory programmes that provide guidance on advertising practices, bring challenges and resolve advertising disputes, others do not. Private litigation – challenges both by competitors and consumers – play an important role in policing advertising claims in some jurisdictions, while other jurisdictions are far less litigious. The remedies available to regulators, self-regulatory organisations and litigations vary widely as well.

It should come as no surprise to marketers that laws around the world generally require advertisers to ensure that their claims are truthful and not misleading and that they have proof to back them up. Ensuring that claims are truthful and properly substantiated is certainly an important first step in any global marketing campaign. Marketers should pay attention, however, to the differences in how claims are interpreted, to country-specific rules for making certain types of claims, to the level of proof required to back up their claims, and to what obligations they have to make that proof available to the public. 

It may come as a surprise to marketers, though, to find out that many marketing practices that are perfectly legal in one jurisdiction – such as comparative advertising or a sweepstakes – are going to be heavily restricted or prohibited in another. While there are certainly many similarities among countries’ laws, there is simply no substitute for getting local advice from experienced advertising counsel about planned advertising campaigns. 

Getting expert local advice helps with more than just legal compliance, however. Often, the trouble that advertisers run into when advertising in foreign jurisdictions relates less to legal compliance and more to simply not understanding the cultural norms in that country. For example, an advertising campaign that references religion or politics in one country may not cause consumers to blink an eye, while in another it could cause widespread offense (or even violate the law). 

The development of new advertising rules, the areas where regulators and self-regulators focus the enforcement efforts, and the types of private lawsuits that are brought often closely track the kinds of issues that pose widespread concern to consumers around the world. As a result, it is often the case that there are significant developments related to certain types of marketing practices in many jurisdictions at around the same time. 

The widespread, increased concern over climate change is leading regulators and others to pay much closer attention to environmental marketing. In a number of jurisdictions, not only are we seeing new laws and self-regulatory guidance coming into effect, but there is an increase in enforcement and private litigation as well. With the environmental marketing landscape having changed so much in the last decade, regulators and others are attempting to provide the rules of the road for the types of claims that marketers are using today, such as claims about sustainability and carbon neutrality. With the Federal Trade Commission in the United States and the European Union taking a close look at these issues, for example, marketers should expect to see new rules and guidance on environmental marketing taking effect very soon. 

With so much of the global economy being dependent on the online ecosystem, there is also a great deal of attention being paid around the world to marketing on the internet and the ways in which online marketing can harm consumers and competition. 

One core principle that marketers should be aware of is that consumers generally have the right to know when they are being advertised to. While the definition of what constitutes “advertising” varies by jurisdiction, advertisers should ensure, when engaging influencers to speak on their behalf, when producing native advertising, or when engaging in other marketing practices where it may not clear to consumers what is happening, that they clearly and conspicuously disclose to consumers that they are, in fact, being exposed to advertising. 

Regulators and self-regulatory authorities around the world are also becoming increasingly concerned about the use of so-called “dark practices”, which are commonly understood to be online design practices that trick or manipulate users into making choices they would not otherwise have made or that may cause harm. Dark practices can take many forms, such as deceptive advertising formats, claims that create undue urgency, coercive advertising techniques (such as shaming consumers into making a particular choice), or preventing consumers from easily cancelling a subscription.  While the rules and self-regulatory guidance on dark practices are still evolving, advertisers should consider, upfront, whether they are just engaging in effective marketing or whether their marketing practices will be seen as improperly coercive.

The use of online disclosures is getting increased attention as well. When disclosures are required to ensure that an advertising claim is not misleading, regulators are asking the question of whether online disclosures are effective? While 20 years ago, “one click away” may have been sufficient, that is less likely to be the case today. As the US Federal Trade Commission has expressed recently, in order for an online disclosure to be effective, it should be “unavoidable”.

The rise of artificial intelligence poses tremendous opportunities for marketers and consumers, but regulators are already expressing serious concerns about the potential harms that AI can cause. While regulators are only beginning to think about these issues, marketers should expect to see new rules and guidance on the use of AI coming soon. As this area continues to evolve, marketers should certainly be transparent about their use of AI and work to ensure that they do not use AI tools in ways that can harm consumers. 

Finally, preventing serious consumer harm – whether online or offline – continues to drive many regulatory and self-regulatory developments around the world. Advertisers are well-advised to exercise extra caution when making health claims, promoting products that can cause consumers serious financial harm and marketing to children and other more vulnerable audiences. 

This country-by-country guidance provides a great introduction to these and many other important advertising law issues. While there is no substitute for engaging expert counsel in the jurisdiction to advise you, this guidance will help you begin thinking about these issues and should give you a good sense of some key issues to consider as you begin developing marketing campaigns.