The primary laws and regulations that govern advertising practices in Colombia are as follows.
The Superintendence of Industry and Commerce is the main authority entitled to enforce the laws and regulations governing advertising practices, specifically, the Consumer Protection Statute.
The remedies available are:
Moreover, the Health Authority and the Superintendence of Finance are also entitled to pursue advertising infringements and can order monetary and non-monetary sanctions.
Suppliers and producers will be responsible for any damage that arises as a consequence of inadequate or insufficient information.
The advertiser is responsible for the damages caused by deceptive or misleading advertising. The media will be jointly and severally liable only if fraud or gross negligence is proven inasmuch as they knew about the defective/defficient nature of the product or services. If the advertiser does not comply with the objective conditions announced in the advertisements, without prejudice to the administrative sanctions that may apply, the advertiser can be held liable for the damages caused to consumers.
All content and means of disclosure are considered to be “advertising”, and include the:
There are certain industries that are required to obtain pre-approvals before running advertising, such as:
Image rights have been developed in Colombia though jurisprudence of the Constitutional Court but not in a specific law. The rules governing the use of intellectual property or an individual’s name, picture, voice, or likeness in advertising carry several nuances, but the bottom line is that they are subjected to legal protection.
Informative non-commercial use is possible without prior authorisation. Notwithstanding, all other use relating to intellectual property or personal image (name, picture, voice, or likeness) should be authorised prior in writing by the individual or relevant heirs.
The self-regulation system involves professional associations, which are gathered in a commission identified as CONARP (the National Commission for Self-Regulation Advertisement).
The self-regulatory system only issues decisions on ethical matters, which are more likely to be recommendations. The decisions have no legal effect.
Based on the infringement of the Consumer Protection Statute, consumers may bring an action against advertisers before the Superintendence of Industry and Commerce:
Influencers
Influencers are currently under the scope of the Consumer Protection Authority.
Given the fact that influencers have become a new means of advertisement, the Colombian Consumer Protection Authority has initiated several investigations to secure consumers’ rights.
In 2020, the Colombian Consumer Protection Authority issued a guide to explain how influencers should comply with the Consumer Protection Statute. Based on this guide and the Statute, the Authority has sanctioned several influencers based on deceitful information.
The most recent investigations refer to four influencers: Yina Calderón, Yeferson Cossio, Luisa Castro, and Mariam Obregón. They are among the top ten influencers of Colombian origin who, besides considering their commercial abilities, are so well known that political candidates often seek them as endorsers of their campaigns.
Against Yina Calderón, the investigation refers to the failure to comply with an order previously issued by the Colombian Consumer Protection Authority, to provide clear and precise information regarding the delivery time and the rules to exchange the promoted goods.
As for Yeferson Cossio, the investigation points to unsubstantiated objective affirmations of the “Cossio Method” to monetise social media.
Both Luisa Castro and Mariam Obregón are required to inform about the money collection services being promoted through their social media, as such services must be authorised by the Financial Superintendence. Moreover, the relation with the advertiser is not disclosed.
Cultural concerns that advertisers should keep in mind are that advertising should be made to contribute to the improvement of society, the economy, and the environment, without losing its main objective.
Advertising must provide positive messages; it must not discriminate or encourage violence, illegal acts, or anti-social behaviours.
There are two types of political propaganda.
It will be understood that advertising is misleading when:
In principle, any assertion made by the advertiser must be truthful in accordance with available information. Suppliers and producers must provide consumers with clear, truthful, sufficient, timely, verifiable, understandable, accurate, and suitable information about the promoted aspects of the products or services they offer. For example:
Claims that cannot be objectively verified/measured, and puffery are being increasingly challenged by the regulatory bodies as they fail to provide accurate information but some of them are accepted. Viability is largely dependent on context and the nature of the product or service.
To substantiate a claim, it is necessary to obtain technical or scientific support from independent parties, by means of a study or an expert opinion, for example.
The applicable elements for a product demonstration in advertising are to provide consumers with clear, truthful, sufficient, timely, verifiable, understandable, accurate, and suitable information on the products on offer.
The depiction or demonstration must be clear. The consumer must be informed of the conditions in which the demonstration has been done, concerning time, quantity, and use. No paid actors can be passed as spontaneous consumers even if they have effectively consumed the product/used the service.
If part of the demonstration requires a comparison, or is made by means of a comparison, the kind of product it has been compared to must be duly established and they must be of equivalent nature or category.
The advertiser must obtain the testifier’s release and authorisation to use its name in association with the mark. The testifier can be jointly and severally liable for its claims or opinions if advertising rules are breached.
It must be clear if the testimony is an endorsement, an independent opinion, a belief, or an experience.
All disclaimers should be audible or visible, easy to read, and understandable. When the size of the font is too small or the speed at which the disclaimer is verbalised is too fast, it might not be an acceptable disclosure even if what is stated is accurate.
There are no particular advertising rules regarding stereotyping in advertising or inclusion, diversity, and equity other than a positive prohibition against racially, religious, or gender discriminative statements. Any issue which could arise involving the same would be treated according to the basic governing laws of advertising.
Environmental claims must be clear, truthful, sufficient, timely, verifiable, understandable, accurate, and suitable for the products they offer. Greenwashing is not prohibited per se. It is more a matter of context as to if it might lead the consumer to believe the products or services comply with ecological guidelines when it is not really the case.
General rules apply to “Dark Patterns” in advertising. Suppliers and producers must provide consumers with clear, truthful, sufficient, timely, verifiable, understandable, accurate, and suitable information on the products they offer, but no regulation describes what could constitute a “Dark Pattern” under Colombian law, so it is another issue that must be analysed within the unique context of the relevant advertising piece.
Decree 975 of 2014 asserts that additionally to the basic rules of advertising that must be followed in general, when addressing children and teenagers, adverts must pay attention to the different maturity stages of the age groups and not treat them as a whole.
Therefore, with respect to such advertising and information, the advertiser must comply with the following conditions.
General rules apply to sponsor identification or branded content. Moreover, the Colombian Consumer Protection Authority issued a document called: “Good Practices Guide for Advertisement through Influencers”. Hence, an influencer is called to respond as an advertiser or as the media depending on their relationship with the manufacturer or how the advertisement is communicated.
General rules apply to all types of claims. However, there is ample room for discussion about the validity of claims such as “Made in Colombia” if only a portion of the product’s components or its manufacturing process comes from Colombia or takes place within its frontiers, and while there are rules to determine the tariffs in the case of imports, they cannot extrapolate vis-à-vis a finished product. The same issues have occurred with statements such as “with fruit juice” when the product is a concentrate that comes from real fruits but the beverage itself has minimal percentage of fruit juice. In those cases, the authorities have relied on the technical specifications about the nature of the product before the Health Ministry to determine if the advertising has been accurate or not.
Comparative advertising is permitted, complying with the following rules:
If the aforementioned rules are not followed, the comparative advertising could be deemed as misleading and an act of unfair competition.
In addition, comparative advertising may explicitly refer to a competitor or may suggest its identity by any means that could be associated with such competitor. However, it cannot be used to denigrate competitors or to mislead consumers.
Trade marks may be used in comparative advertising to explicitly identify the competitor, subject to comparison.
However, regarding copyright, the situation is not that clear. Whether it is possible to use the copyrighted work will depend on the specific situation and must be studied on a case-by-case basis.
An advertiser can challenge claims made by a competitor, before the Superintendence of Industry and Commerce. The authority would request the information of the claims and the substantiation, and it would decide whether or not to initiate an investigation. It may also file a civil action under unfair competition rules and damages as well as preventive injunction measures.
The investigation finalises with filing it or sanctioning the competitor with a fine.
There are no special rules related to ambush marketing. However, ambush marketing may be challenged by any available legal means, such as:
Ambush marketing can be declared illegal if:
Where an ambush marketing campaign falls within one or more of the infringements described above, the plaintiff can initiate any or all of the actions available.
Hence, Colombia has widespread legal options to prevent and protect the organiser, sponsor, or any other party suffering from an illegal ambush marketing campaign.
There are no special rules pertaining to the use of social media for advertising. The general rules of advertising apply.
The advertiser is responsible for all the content which is uploaded on its page. Liability will be based on whether it is possible for the advertiser to control the content and whether it takes the necessary measures to avoid such content being exposed on its page.
For online disclosures and disclosures in social media as per the “Good Practices Guide for Advertisement through Influencers”, the following can be used with or without the hashtag label:
“publicidad”, “promocionado por (…)”, “aviso promocionado”, “contenido promocionado”, “contenido publicitario”, “patrocinado”, and/or “patrocinado por”,
indicating the name of the brand or the account of the promoter.
There are no unique rules or regulations that apply to the use of any of the major social media platforms in Colombia.
There is no ban against any social media platforms in Colombia. All are freely accessible.
The general rules of advertising apply to native advertising as well. Consequently, the consumer must be properly informed that the content is an advertisement and not a regular post.
As noted, the Colombian Consumer Protection Authority issued a document called: “Good Practices Guide for Advertisement through Influencers”. As per the Guide, an influencer can be understood as the person who, through social networks and/or interactive digital platforms, by sharing their daily life, interests, and experiences with an online community, has achieved/built credibility, trust, and a recognisable image that allows them to influence, affect, or motivate consumers’ behaviour. The foregoing is regardless of whether or not the influencer identifies him-/her-self as such, since what is relevant is the role they fulfil.
An influencer is called to respond as an advertiser or as the media depending on their relationship with the manufacturer or how the advertisement is communicated.
The advertiser can be held liable for content posted by its influencers. The advertiser has the duty to monitor its influencers.
If an influencer does not properly disclose the relation with the advertiser, the influencer would also be held liable.
The possible sanctions are the following.
The consumer that reviews a good or service can be jointly and severally liable for its claims or opinions with the advertiser, if advertising rules are breached.
It must be clear whether the review is an endorsement, an independent opinion, a belief, or an experience.
If there is no relation between the parties, the advertiser cannot be liable for consumer reviews.
Email marketing cannot be done without previous and express authorisation from the consumer, and the promoter must keep the consumer’s authorisation, for verification from the authority. Moreover, the database that includes private information from the consumers must be registered before the Superintendence of Industry and Commerce.
Telemarketing cannot be done without previous and express authorisation from the consumer, and the telemarketer must keep the consumer’s authorisation, for verification from the authority. Moreover, the database that includes private information from the consumers must be registered before the Superintendence of Industry and Commerce.
Text messaging cannot be done without previous and express authorisation from the consumer, and the promoter must keep the consumer’s authorisation, for verification from the authority. Moreover, the database that includes private information from the consumers must be registered before the Superintendence of Industry and Commerce.
Targeted/interest-based advertising cannot be done without previous and express authorisation from the consumer, and the promoter must keep the consumer’s authorisation, for verification from the authority. Moreover, the database that includes private information from the consumers must be registered before the Superintendence of Industry and Commerce.
Article 7 of the Data Protection Statute establishes that: “The processing of personal data of children and adolescents is prohibited, except for ... data that [is] of a public nature.” Personal data of a public nature includes names and ID numbers.
There is no other exception for collection/processing of minors’ personal data. No authorisation in this regard is valid. It is possible to collect the parental/legal guardian’s information, but not the minor’s information.
Minors cannot be contacted with any kind of advertisement, as information from minors cannot be collected.
In Colombia, the default privacy rules related to advertising are on an opt-in basis. Thus, prior and express authorisation from the consumer is mandatory.
The general requirements regarding the conduct of sweepstakes and contests (chance-based games) are as follows.
The official fees correspond to the total value of the prizes to be awarded and are divided as follows.
If any prize value exceeds approximately USD1,200, there is a tax of 10% of the amount of the prize due to windfall tax.
For sweepstakes, the authority requires a bond to cover the amount of the prize pool.
The authorisation takes approximately 30 days to be resolved.
Please note that the national authority (COLJUEGOS) does not accept applications to request authorisation from companies or individuals who are domiciled in Colombia. Hence, the application for authorisation must be done by a distributor in Colombia, or a PR company acting as the entity responsible for the sweepstakes in Colombia, or a company created in Colombia.
Colombia distinguishes between contests of skill and games of chance.
Skill-based activities are based entirely on the efforts of the participants but not necessarily a demanding or high-performance skill. For example, the answer to a simple general knowledge question would be sufficient to qualify as a game of skill. But if at any stage during the process the chance of winning depends on chance, it will be qualified as such.
The requirements for the registration of a sweepstakes/contest/draw before the national authority (COLJUEGOS) are the following.
The governmental entity is entitled to require further information to complete the registration.
The authorisation takes approximately 30 days to be resolved.
The official fees correspond to the total value of the prizes to be awarded and are divided as follows.
If any prize value exceeds approximately USD1,200, there is a tax of 10% of the amount of the prize due to windfall tax.
Furthermore, each prize cannot exceed 160 monthly legal wages, that is COP135,489,560 which is approximately USD44,166.
The rules that apply to free and reduced-price offers are the following.
Moreover, the basic rule for “free” product advertising is that it must be real; the good must be 100% free. In the event of a promotion, in which a free item is attached to the purchased good, the total and usual cost must be the same and should not be increased by any means.
The special regulation that applies to automatic renewal/continuous service offers under which a marketer can continue to ship and bill for products and services on a recurring basis until the consumer cancels, is that a clause of this type might be deemed abusive if the automatic renewal clause prevents the consumer from terminating the contract at any time or if penalties are imposed for early termination.
There are no specific rules related to the use of artificial intelligence (AI) in connection with the development of advertising content. Hence, the general rules apply.
As general rules apply to the use of AI in connection with the development of advertising content, the consumer must be properly informed that the content was/is developed through the use of AI, is powered by AI, or has AI-related capabilities.
There are no specific rules related to the use of chatbots. Hence, the general rules apply.
Colombian regulation does not make explicit mention of crypto assets and related operations.
Hence, all advertisement concerning any of the digital assets must follow the general rules of advertisement in Colombia.
The Consumer Protection Statute requires that all information provided to consumers must be clear, truthful, adequate, timely, verifiable, understandable, accurate, and appropriate.
There are no specific rules related to advertisement within the metaverse. Hence, the general rules apply.
The following are the specific rules/restrictions in Colombia, concerning the advertisement of regulated and forbidden products/services.
Additionally, the following goods and services must be pre-approved regarding any advertising content.
The rules related to the placement of alcoholic beverages in entertainment content must follow these general rules.
During the broadcast of advertising and marketing of alcohol, the following rules shall apply.
Calle 93B No 12–48 Piso 4.
Bogotá, D.C.
110221
Colombia
+57 601 6019660
+57 601 6114209
tum@tumnet.com www.tumnet.comInfluencers To The Line
The Colombian Consumers Protection Authority issued a document called: “Good Practices Guide for Advertisement through Influencers”.
The Guide is not a new regulation, but more of a suggested line of behaviour, and the interesting part of it is that, for the first time, influencers are told what they can or cannot do and what the consequences are of their actions regarding advertisements.
The importance of the Guide is that it accommodates the Consumer Protection Statute to the specific situations surrounding the influencer’s advertisement activities.
Some of the relevant points are the following:
Hence, influencers can be held liable depending on the activity they are performing and their role within it.
Influencers and COVID-19: a struggle between fame and health
COVID-19 has brought unexpected changes affecting all our lives and making our understanding of “normal” a memory of different times, to which everyone would like to return, but which no one is certain will ever happen.
Whether or not anyone believes this is a conspiracy or even something worthy of the measurements governments are currently taking, what is certain is that advertisement rules still apply.
In Colombia there are several influencers. One such person is an actress who promoted goods during the COVID-19 crisis. Each influencer works for different industries and purposes. The actress in question, Elizabeth Loaiza-Junca, crossed the line.
Elizabeth uploaded a video which showed certain rapid tests for COVID-19. The ad included objective statements such as the following.
However, the health authority was interviewed by an online publication and declared that the promoted good was neither authorised nor registered by them.
Thus, the Superintendence of Industry and Commerce, which is the Consumer Protection Authority, required the actress to provide evidence supporting the claims made during the advertisement, as well as information concerning the ad itself.
The actress did not respond to the requirement, leaving no other choice for the Superintendence of Industry and Commerce but to initiate an administrative proceeding of sanctioning against the action done in violation of the Consumer Protection Statute.
To proceed in this regard, the Superintendence of Industry and Commerce stated the following.
This did not take into account that, in Colombia, the advertisement of goods that cannot be sold over the counter, such as medical tests, is forbidden.
Consequently, the actress had the opportunity to defend her advertisement, as this was an administrative proceeding. Notwithstanding, given the cumulative evidence against her and the lack of response when the issue was investigated by the Superintendence of Industry of Commerce, it is highly likely that she would face a fine of approximately USD500,000.
Advertisement should not be taken lightly, least of all when it is a matter of public interest.
Influencers: tying loose ends
Influencers are under scrutiny. Given the fact that they have become a new means of advertisement, the Colombian Consumer Protection Authority has initiated several investigations to secure consumers’ rights.
In 2020, the Colombian Consumer Protection Authority issued a Guide to explain how influencers should comply with the Consumer Protection Statute. Based on this Guide and the Statute, the Authority has sanctioned several influencers based on deceitful information.
The most recent investigations refer to four influencers: Yina Calderón, Yeferson Cossio, Luisa Castro, and Mariam Obregón, who are among the top ten influencers of Colombian origin, and who are so well known that political candidates frequently seek them out as endorsers of their campaigns.
Against Yina Calderón, the investigation referred to the failure to comply with an order previously issued by the Colombian Consumer Protection Authority, to provide clear and precise information regarding the delivery time and the rules to exchange the promoted goods.
As for Yeferson Cossio, the investigation points to unsubstantiated objective affirmations of the “Cossio Method” to monetise social media.
Both Luisa Castro and Mariam Obregón are required to inform about the money collection services being promoted though their social media, as such services must be authorised by the Financial Superintendence. Moreover, the relationship with the advertiser is not disclosed.
In conclusion, no new way to advertise goods or services escapes the scope of the Consumer Protection Statute and the Colombian Consumer Protection Authority.
Nutritional mandatory frontal stamps
Resolution No 810 of 2021 issued by the Health Ministry established the technical regulation for nutritional labelling and mandatory frontal stamps on the packaging of food for human consumption.
However, Resolution No 2492 of 2022 issued by the Health Ministry included the following changes.
The Resolution granted a period of six months to be implemented in the market. Hence, from June 2023, the new labels have been enforceable.
Consumer protection includes data protection
The Superintendence of Industry and Commerce initiated an investigation of the ChatGPT owned by OpenAl OpCo, LLC, to determine if the application complies with the Data Protection Statute.
This is a warning given by the Authority to all Artificial Intelligence (AI) based apps and platforms, that consumers’ rights are not just the ones included within the Consumer Protection Statute, but also that all providers must observe the Data Protection Statute.
The not-so-friendly “friendship bank”
Bavaria, the major beer producer in Colombia, issued a campaign called “The Friendship Bank”. From this arose several concerns around the Consumer Protection Authority, the financial authority, and banks in general. So, an investigation began.
The word “bank” must only be used by entities duly surveilled by the Financial Superintendence. However, the Financial Superintendence, after concluding that such a term as “de la Amistad” – the friendship – did not refer to financial activities and was never promoted as such, decided that it did not infringe the financial regulation.
Nevertheless, the Consumer Protection Authority was not so easily convinced and requested further information concerning the marketing campaign. After receiving said information, the Consumer Protection Authority raised several complaints regarding the campaign “The Friendship Bank”. Hence, after completing the administrative proceeding, Bavaria was fined for deceitful information.
The marketing campaign used the following phrases.
With the intervention of the Financial Superintendence, Bavaria had to change the way it was communicating with consumers, to avoid any confusion, and clarified that it was not a bank and that it did not provide any financial services.
Based on the above, the advertisement was deceitful, as Bavaria offered the idea of a beer attached to a financial activity. Nonetheless, the true message was to persuade consumers to acquire an alcoholic beverage through a promotion with different incentives.
Moreover, Bavaria purposely omitted important elements for the decision-making process of the consumers. This is obvious when it had to change the way it was communicating based on the orders given by the Financial Superintendence.
Hence, Bavaria was fined approximately USD42,550, and the decision cannot be appealed any further.
“Advertisement groovy time”: it is surely not 4:20
Colombia has accepted the production and commercialisation of cannabis as medicine, due to its proven beneficial effects, especially concerning pain management.
However, it is not necessarily a peaceful issue and its implementation has caused the creation of several regulations of different issues, such as licences, the type of accepted production, the permitted quotas of production, and security registrations.
As cannabis still constitutes an illegal drug, except for the express authorisations granted under the strict rules, every part of the production process is highly regulated.
Curiously enough, the advertisement has been left to be ruled by the general principles applicable to prescription medication, which can only be advertised or promoted in technical or scientific publications, addressed exclusively to health professionals.
Thus, as a principle, the advertisement of prescription medication is prohibited in the press, broadcasting, television, and in general in any other means of communication and mass promotion.
The only specificity contained within the cannabis regulation referred to the advertisement is a resolutory condition applicable to the licences. The condition is states as follows:
“Promoting or advertising through the media, social networks, leaflets, or any other means of sowing seeds, cannabis plants, cannabis, and derivatives, with the exception of academic or scientific events.”
Hence, the licence can be terminated at any time the licensee promotes or advertises cannabis or its derivatives by any means.
Consequently, advertisement and promotion of cannabis in Colombia can only be addressed by health professionals in limited academic or scientific events.
Ambush marketing
Ambush marketing is a commercial strategy that, duly managed, is very profitable. Nonetheless, if it crosses any legal boundaries, it can be challenged by legal actions such as:
In Colombia, different judicial decisions concerning ambush marketing have concluded as follows.
When the failure comes with extra flair
During the COVID-19 pandemic, the prohibition of live sporting events benefited those in charge of transmission. This was the case for Win Sports SAS, the only authorised streaming platform for Colombian National League Soccer. During the pandemic, subscriptions increased for consumers to gain access, by the only means possible, to the sporting events.
However, the Superintendence of Industry and Commerce received several claims from consumers due to them being unable to access the service, service outage, service failover, and other reasons.
Once investigated, the Superintendence of Industry and Commerce found that multiple failures were recorded in the service provided. Thus, it ordered to inform consumers, within its terms and conditions, of the circumstances that may generate intermittence or latency in the service, as well as to include a risk management procedure in order to identify and evaluate possible failures and implement mechanisms to avoid them.
Moreover, the Win Sports SAS was fined in the amount of USD71,000.
Therefore, it is important to inform consumers, from the beginning, about the risks and possible eventualities.
Calle 93B No 12–48 Piso 4.
Bogotá, D.C.
110221
Colombia
+57 601 6019660
+57 601 6114209
tum@tumnet.com www.tumnet.com