Contributed By Simion & Baciu
The primary laws and regulations that govern advertising practices in Romania are:
The advertising field in Romania is also subject to industry self-regulation, with the Code of Advertising Practice developed by the Romanian Advertising Council (RAC) standing as the main set of ethical rules to be observed by all those involved in advertising and in any form of commercial communication.
The Code of Advertising Practice does not have normative power and is only mandatory to the economic operators who are members of the RAC, not erga omnes.
In addition to the main normative acts governing advertising practices in Romania, depending on the factual circumstances, general pieces of legislation in the wider field of consumer protection may also be applicable, including but not limited to:
Under the applicable legislation, there are three main authorities that may verify compliance with the laws and regulations and apply sanctions. This will depend on the form and/or communication channel used for promoting the advertising communication in question, on the one hand, and on the affected interests in the market, on the other. Depending on whether there is (potential) prejudice to consumers’ interests or to competitors’, a different authority will be called to investigate and apply sanctions and measures. These authorities are:
The competent authority may act ex officio, in consideration of a complaint submitted by a consumer or by an association for consumer protection and also based on a complaint filed by a competitor of the alleged infringer. In this respect, the CNA's competence is determined by the form and channel of commercial communication (everything in the audio-visual field, irrespective of the prejudiced interests), while the ANPC’s and the MFP’s competence is determined by the prejudiced subject.
The sanctioning mechanisms regulated by the law include fines as well as additional measures that may be imposed by the competent authorities, starting with imposing the obligation to cease the advertising practice and/or to publish the decision of administrative sanction and continuing up to suspension/closing of the relevant economic operator’s activity.
Under the applicable legislation, as a general rule, persons that can be held liable for deceptive advertising include any natural or legal person acting for purposes falling within his or her commercial, industrial or artisanal activity and any person acting in the name and on behalf of the economic operator (generally regulated as “economic operators” under the applicable legislation within the advertising field).
In practice, where the economic operator responsible for a breach of applicable legal provisions in the field of advertising practices is a legal person, the sanctions and measures provided by the law are only established by the competent authorities for the legal person (as discussed in 1.2 Regulatory Authorities). While a proposed amendment to the consumer protection legislation was intended to extend the liability to directors of the company, this amendment was ultimately not passed.
The situation is different, of course, if the breach exceeds the scope of administrative liability and qualifies as a criminal offence, in which case the liability of natural persons (eg, individual owners or shareholders) contributing to the infringements may also be triggered, under the applicable legal requirements.
As a rule, under the applicable legislation, the liability for infringements committed within the advertising field shall belong to the economic operator that benefits from the advertising material and thus no liability would be triggered for third parties who provide services to the advertiser. However, third-party service providers could end up being held liable if they themselves breach the law or measures imposed by competent authorities in the field. By way of example, the national authorities’ practice reveals various situations where third-party service providers have been required to cease the provision of services for the benefit of the economic operator promoting advertising material and non-compliance with these obligations imposed by the authorities was to be qualified as distinct breach and sanctioned according to the law.
A different situation exists in the field of audio-visual services, where the CNA can only sanction the audio-visual service providers, and not the company whose products/services are advertised. Thus, for example, if a TV commercial is found to be in breach of the advertising legislation, the CNA will sanction the TV station and not the client. Of course, contractual mechanisms are in place that allow the TV station to have a recourse against the client for such cases.
At the national level, the representative self-regulatory organisation in the field of advertising practices is the RAC, which presents itself as a professional, non-governmental, non-profit and independent organisation with 72 members at the moment when the present organising document was written, including companies, advertising agencies, media and associations.
The RAC is a member of other European (EASA – the European Advertising Standards Alliance) and global (IAA – the International Advertising Alliance) organisations.
The Code of Advertising Practice, as developed by the RAC, does not have normative power and is only applicable to the members of the organisation. The document covers a set of principles and main rules to be observed in conducting advertising practices, while also addressing specific rules in relation to advertising material promoting categories of products or services (eg, cosmetic products, food supplements).
Concerning the investigation procedures conducted at the level of the RAC, it should be noted that meetings take place in front of an Ethics Committee, which shall pass a decision containing recommendations on how to return to compliance with the agreed rules of the Code of Practice.
We underline that the RAC is known as a representative self-regulatory organisation within the general field of advertising practices and that the organisation does not represent any particular industry or domain of activity on the market. Specific self-regulatory organisations (sector-specific not advertising-specific) may also be found at the national level within specific fields (eg, pharmaceuticals) that impose rules and principles to be followed by their members in conducting their activity, including in relation to advertising practices.
Consumers that consider themselves to be (potentially) prejudiced by an advertising practice conducted by an economic operator may address a complaint in this respect to the attention of competent authorities.
The submission of (or failure to submit) the complaint does not prejudice the rights granted to the consumers by the law in order to ensure the protection of their interests in front of the competent courts. Thus, consumers may pursue contractual or tortious actions under the general provisions of civil law (depending on whether the advertising practice is intrinsically linked to an agreement concluded between the economic operator and the consumer). However, in the case of an action in tort, all conditions for tort liability must be fulfilled, including that the prejudice must be proven.
Sectors Subject to Additional Regulation
Certain industries are subject to additional regulations.
Specific advertising rules are laid down in Law 201/2016 and Law 457/2004, including restrictions on advertising on cigarette packaging, on the shelves where tobacco is displayed, in the written press, and on radio and TV stations.
Governmental Emergency Ordinance 77/2009 provides a set of rules around commercial communication addressed to consumers (eg, advertising by sending unsolicited electronic messages that contain information regarding games of chance to an unlimited number of persons is prohibited).
Order 194/2015 issued by the Ministry of Health, on the approval of the rules for the evaluation and approval of advertising for medicinal products for human use, contains a detailed set of rules aimed at making sure that advertising is exact, balanced and objective.
Law 148/2000 imposes certain restrictions and rules on advertising alcohol.
A notable case in the past 12 months concerned a well-known online retailer, which received a warning from the National Agency for Fiscal Administration due to its use of search engine optimisation (SEO) tactics to acquire internet users searching for a competitor within the online market. The case has been intensively publicised.
The applicable legislation states that whether advertising claims are deceptive or misleading is decided on a case-by-case basis, with special consideration given to a set of determined criteria and parameters, including but not limited to the following.
Any claim aiming to describe and/or promote a product or service shall be subject to the regulations applicable to advertising and also observe the general principles regulated by Government Ordinance 21/1992, according to which the consumer must be provided with precise, exact and complete information on the product or service offered.
Both express and implied claims are to fall under the imperative requirements applicable in the field of advertising practices.
An analysis of whether a claim included in a commercial communication (express or implied) is in accordance with the applicable legal provisions shall be made on a case-by-case basis. It should be noted that the ANPC is quite rigorous and conservative in analysing the compliance of commercial communication and applies severe criteria in qualifying an advertising practice as being conducted in accordance with the law. The MFP may show more flexibility, but the analysis is still quite strict.
Specific claims that qualify as commercial practices that are considered incorrect in any situation under Law 363/2007 will not be subject to a distinct analysis, and would be sanctioned irrespective of the potential defences used by the relevant company.
There are no express legal provisions regulating the criteria and parameters under which a claim may be considered as sufficiently supported by proof of any kind. The practice of the competent authorities and the courts may, however, offer some guidance as to what kind of claim substantiation used within an advertising practice needs to be provided by the economic operator so as to ensure that the authority ascertain that the relevant advert is compliant with the applicable legislation.
In principle, any advertising claim must be included within the commercial communication in a manner that ensures complete, correct and precise information is made available to the consumer, while not prejudicing third party competitors on the market. If necessary, said claim shall be accompanied by explanatory mentions/disclaimers or indications displayed in the same visual field as the main commercial communication. In any situation, however, the economic operator must be able to present the documentation necessary to support the claim used within the advertising practice.
As a general rule, claims such as “the true [product]”, “the best [product/service]”, “number one” are regarded with scepticism by the competent authorities and must be seriously supported by evidence in order not to trigger liability for the economic operators using them.
The Code of Advertising Practice issued by the RAC (without normative power), expressly indicates that affirmations used within a commercial communication cannot be exclusively based on testimonials, opinions or subjective experiences of individuals and must be based on adequate substantiation documents.
The legislation provides no general standards for the testing to be used in advertising. According to the law, each claim will be assessed on a case-by-case basis to determine whether it is sufficiently substantiated.
The practice of competent authorities in the field has revealed that supporting documents and information may differ in nature in consideration of various criteria, including:
However, as a rule, these supporting documents shall originate from objective sources (and not sources related to, or under the control of, the economic operators using the advertising claim) and shall cover a wide range of relevant subjects in order to be considered by the competent authorities as proof for the advertising claims used.
Romanian legislation does not require human clinical studies for any type of claim.
However, within the pharmaceutical field, it should be noted that national legislation prohibits any type of advertising being made in relation to medicinal products that have not been previously authorised for marketing in Romania (while marketing authorisation is only issued after human clinical trials have been successfully performed). The same principle applies to medical devices in the sense that only the devices fulfilling all the conditions provided by the law in order to be placed on the market may be subject to advertising addressing the general public.
There are certain type of claims that are subject to specific rules, as set forth in normative acts or as revealed by consistent practice endorsed by the competent authorities in the field.
While not aiming at providing an exhaustive list of the types of claim considered to be sensitive under the applicable legislation and the advertising authorities’ typical practice, the following represent specific examples of such sensitive claims.
Under the national legislation, in line with the European Union regulations in this area, comparative advertising is permitted, provided that all the legal requirements set forth in this respect for such advertising are fully observed.
While not expressly prohibited by the law (on the contrary, the wording of the law seems to expressly permit it), identifying a competitor by name must be considered with caution since the practice of the authorities reveals a strong reticence to qualify material that identifies a competitor by name as compliant with the legal requirements. Moreover, the very recently amended Law 84/1998 regarding trade marks and geographical indications expressly qualifies as trade mark infringement the use of a competitor’s trade mark in a manner that breaches the legislation regarding comparative and misleading advertising.
Standards that apply to general advertising claims also apply to comparative advertising claims. In addition to these, the specific legal requirements for comparative advertising, as discussed in 3.1 General Requirements, must be observed.
Assessment of whether comparative advertising claims are truthful or not is done on a case-by-case basis by the relevant authorities or the courts, as the case may be, on the basis of the general legal requirements regarding lawful advertising practice and in consideration of the information and documents provided by the economic operator in support of the claims included within the advertising material. The applicable legal framework only provides the general criteria to be followed in ensuring the compliance of comparative advertising with the law, while remaining silent over what specific standards/requirements are to be considered in analysing advertising material.
An advertiser that believes that a competitor’s advertising practice prejudices them may address a complaint to the CNA (if the relevant advert was made within the audio-visual environment) and the MFP, and may also initiate a legal action with the competent court of law.
The competent authorities may impose administrative fines on an economic operator responsible for unlawful advertising, ranging from RON3,000 (approximately EUR650) to RON30,000 (approximately EUR6,500) and may also order measures obliging the economic operator to cease the illegal advertising practice. These measures may also be imposed by the competent courts of law.
At the national level, there are insufficient jurisprudential precedents to truly attest to a trend in the field of comparative advertising. However, according to the publicly available information, the MFP has sanctioned advertising claims including implicit comparative claims such as “cheaper than competitors”, “the highest standards”, “not the only one, but the best one” and “the lowest price worldwide”. The list of sanctioned advertising claims, including comparative claims, may be viewed on the official webpage of the MFP, within the specific interface dedicated to incorrect advertising practices on the national market.
In Romania there are no special national normative rules or regulations that apply specifically to advertising on social media. As such, the general legal provisions in the field of consumer protection and advertising remain applicable.
Lacking express legal provisions to regulate social media content and the advertising practices conducted on social media platforms, marketers face specific challenges when, for example, implementing an advertising campaign through social media with respect to various issues.
Under the applicable legal framework in Romania, the liability for advertising practices is incumbent upon the economic operator who benefits from the relevant commercial communications addressed to the public.
Under the applicable national legal framework in the field of information society services, in line with the European Union legislation in place, the service provider shall not be held liable for the information stored at the request of a recipient of the service, provided that specific conditions are fulfilled, including the condition that the provider does not have actual knowledge of illegal activity or information and, concerning claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent.
Thus, the advertiser should display an increased diligence and ensure constant monitoring of the content generated within an advertising practice conducted through social media in order to avoid potential liability issues deriving from non-compliant content, including liability-related risks regarding the global context in which the advertising practice could be incorporated, given the product/services promoted and the manner in which the promotion is made.
This does not preclude the possibility that liability could be triggered for third parties that provide unlawful content which is incorporated within an advertising practice on social media. This is the reason why the advertiser should have in place clear and unequivocal terms and conditions under which content may be generated by third parties so as to be able to exercise, at their own discretion, a right of recourse against third parties who fail to observe the applicable legal requirements or prejudice, through their content and/or the manner of its dissemination, third parties’ rights.
Since the general rules applying to traditional advertising are also applicable to social media advertising, the provisions regarding deceptive or misleading advertising regulate social media advertising as well. Thus, disclosures that prevent an advert from being deceptive or misleading are to be included in the advert to the maximum extent possible.
There are no normative dedicated rules or regulations that apply to the use of any social media platform in Romania. Users should consider the applicable general legal requirements depending on the activity intended to be performed on the social media platform, while also taking into consideration the terms and conditions governing the use of the online platform under discussion.
The applicable legislation provides that using editorial content in the media to promote a product – where a trader has paid for that promotion without making that clear in the content, or by images or sounds clearly identifiable by the consumer – is presumed to be an incorrect commercial practice.
Recent trends include greater reliance on less scripted content, especially with the rise of social media platforms such as Instagram, Snapchat and, recently, TikTok. Influencers have also started to play a role due to the increased use of social media as a result of the current pandemic.
In a context of an unprecedent increase in the number of advertising practices implemented through influencer campaigns, the lack of specific legal provisions regulating this field is felt especially among advertisers. They must identify the challenges arising from a commercial relationship with an influencer in order to correctly and completely reflect these within the contracts concluded, while also efficiently allocating their resources in order to ensure a high level of diligence on the part of the influencer and be aware of any potential harm to their brand(s).
There are no special normative rules or regulations within the national legal framework that apply to influencer campaigns in Romania, the general legal requirements remain applicable in full.
Express provisions regarding the legal regime for influencer marketing campaigns are provided, however, through the Code of Advertising Practice issued by the RAC and may be considered as a point of reference by non-members as well. According to the self-regulatory document, the following rules shall apply in relation to influencer marketing campaigns.
While influencer campaigns are not regulated as such by the legislation, under the general legal provisions in place, the beneficiary of the advertising practice (ie, the advertiser) may be held liable for content posted by its influencers.
The principle is expressly iterated within the Code of Advertising Practice issued by the RAC.
In order to limit liability, it is recommended that the advertiser provide precise guidance to its influencers, monitor the activity thereof, while also providing a special attention to the contracts used to govern their relationship with influencers.
Where influencer behaviour exceeds the terms and conditions agreed with the advertiser in relation to the implementation of the commercial practice, the advertiser should be able to exercise, depending on the contracts in place, a right of recourse against the influencer.
Communication falling within the scope of advertising is forbidden if done without the express consent of the recipient, the rule being thus opt-in.
However, according to Law 506/2004, transposing into Romanian law the provisions of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), if a natural or legal person obtains the electronic address of a client, in a direct manner, while providing a service or selling a good, that natural or legal person may use the electronic address to contact the client with respect to similar services or goods that the natural or legal person provides, without obtaining separate prior explicit consent. The natural or legal person must provide the client with the possibility to opt out of such use of their contact details, both when the electronic address is obtained as well as with every subsequent use (opt out).
The practice of sending electronic communication in which the sender’s identification data is hidden, or in which the address used to request that such communications ceases is hidden, is also forbidden.
According to Law 506/2004, the sanction for breaching those rules is a fine ranging from RON5,000–100,000 (approximately EUR1,000–20,500), and for commercial companies with a turnover of over RON5 million (approximately EUR1 million), a fine of up to 2% of the turnover.
If rules on proper consent under the GDPR (EU Regulation 2016/679) are not respected, sanctions provided therein may also become relevant.
Outbound telemarketing is permitted under Law 506/2004 to the extent that cold calls involve human intervention. Commercial communications that use automatic calling systems are forbidden, except where the user has specifically consented to this in advance. The same opt-out rules discussed in 6.1 Email Marketing apply to telemarketing.
Good market practice involves taking several measures, that include, at a minimum:
Under the GDPR, mechanisms for individuals to easily exercise their "right to object", their "right to be forgotten" and their "right to rectification" (as well as to submit a data subject access request) should also be provided.
The definition of electronic commerce includes any form of communication, as such, text messaging falls under the rules described in 6.1 Email Marketing.
The GDPR rules on consent apply for participation in marketing campaigns and direct marketing rules for electronic communication, as described throughout 6 Privacy and Advertising.
In terms of profiling for advertising purposes, the prohibitions provided under the GDPR on fully automated decision-making processes apply with the allowed exemptions, such as a legitimate interest pursued by the advertiser/controller. The legitimate interest is to be established under a balancing test in accordance with GDPR provisions and other secondary legislation or guidance.
Law 148/2000 defines minors as persons under 18 and contains several provisions regarding them.
With respect to advertising for children, Law 148/2000 on advertising offers some general rules, stating that:
Regarding audio-visual commercial communications, regulated by Law 504/2002, these must not cause any moral, physical or mental harm to minors, and they especially must not:
Collection and use of minors’ data is subject to parents’ consent for children younger than 14, while children between 14 and 16 may consent themselves, but parents’ approval is also required. Minors between 16 and 18 may grant consent by themselves for the collection and use of their data.
Furthermore, according to both Law 148/2000 and Law 504/2002, concerning advertising for tobacco and alcohol products, such publicity is not permitted in publications aimed at minors or in performance spaces intended for them. This kind of advertising is also prohibited if it is aimed directly at minors or presents minors consuming such products.
Breaching the rules set out in Law 148/2000 is punishable by a fine ranging from RON500–1,500. Breaching the rules set in Law 504/2002 is punishable by a fine ranging from RON10,000–200,000.
The legal regime covering sweepstakes and contests under the applicable legislation differs depending on the mechanism used within the promotional action.
Irrespective of the mechanism used within the promotional action, the consumer may be required to make a purchase in order to participate. In practice, promotional campaigns usually include the condition of a prior purchase of one or more participating products or services. However, in order not to fall under the legislation regulating gambling, no additional expense/cost may be imposed on the participants in the campaign.
Games of Chance
National legislation on gambling expressly distinguishes between contests of skill and games of chance. Games of chance are defined as any activities that cumulatively fulfil the following conditions.
Emergency Government Ordinance 77/2009 regarding gambling activities expressly mentions that amusement and sports games, where the players must show knowledge or skills, and which are not based on chance, are allowed and do not qualify as gambling.
Contests of Skill
Lacking a legal definition or criteria to determine the sphere of applicability of games of skill, these shall be identified on a case-by-case basis, considering the mechanism used in conducting the promotional action involving games of skill, while also having in mind the potential for them to be qualified as games of chance under the legal definition provided by the law in this respect.
Note should be made that, under the applicable legal framework in the field of games of chance, the organisation of actions for the promotion of traded goods and services by operators is forbidden if the denomination of the promotional action induces clients to participate in games of chance or if the effective manner of its performance contravenes the provisions of the applicable gambling law.
Under the special regulatory framework applicable in this field, games of chance may be offered only if organisers are duly licensed and authorised by the Romanian gambling regulator: the National Gambling Office. Performing gambling operations in the absence of the necessary licence and authorisations is expressly qualified as a criminal offence.
Contests of skill whose mechanisms do not involve elements of chance, and which therefore do not fall under the gambling regime, do not require regulatory approval in this respect. These actions must, however, observe the applicable requirements in the fields of consumer protection and advertising.
No specials laws or regulation are in place at the national level for loyalty programmes.
In practice, such loyalty programmes are conducted on the basis of formal regulations or specific terms and conditions, provided to the consumer so as to ensure that correct, precise and accurate information, with respect to the parameters under which the loyalty benefits are granted, is available to the consumer. They also cover the obligations incumbent on the consumer in this respect and the forms of execution (eg, periodical payment, right of withdrawal), in accordance with the applicable legal provisions.
Free and reduced-price offers within promotional actions conducted by economic operators are subject to specific regulations.
The general legal framework in the field of consumer protection, GO 21/1992, expressly provides for the right of consumers to be notified 30 days in advance of the date on which the contract is automatically extended for a determined or undetermined period of time, and for the consumer to have the possibility to provide a written answer regarding their choice to accept, or not, the prolongation of the contract.