Advertising & Marketing 2023 Comparisons

The Swedish Marketing Practices Act (MPA) is the main regulatory framework for advertising in Sweden. It is applicable to business-to-business as well as business-to-consumer advertising and transposes EU’s Unfair Commercial Practices Directive (2005/29/EC) (UCPD) into Swedish law.

There are also sector-specific regulations containing rules on advertising which supplement the MPA. Such specific advertising regulations can be found in, for example, the Swedish Alcohol Act, Tobacco Act, Act on Tobacco-free Nicotine Products, Consumer Credit Act, Gambling Act, Radio and Television Act.

The Swedish Consumer Agency is the main regulatory body in Sweden with regard to advertising and its overall task is to safeguard consumer interests. Its responsibilities include, among other things:

• to ensure that companies comply with advertising regulations;
• to receive complaints from consumers;
• to ensure the safety of products and services; and
• to provide information to consumers on, inter alia, advertising rules.

The Swedish Consumer Agency is headed by a Director General who is also the Consumer Ombudsman. The Consumer Ombudsman has the power to issue injunctions subject to conditional fines prohibiting advertisers from continuing with unlawful advertising practises and to order advertisers to include all material information in their advertising. The Consumer Ombudsman can also pursue legal action in the Swedish Patent and Market Courts against companies that do not abide by the advertising regulations and request the court to impose the aforementioned injunctions and orders to include information and market disruption fees (ranging from SEK10,000 to 4% of the turnover in the preceding financial year).

In addition to the Swedish Consumer Agency, the Swedish Authority for Privacy Protection is the regulatory body for issues relating to data protection and the Swedish Post and Telecom Authority is the regulatory body for issues concerning electronic communication.

The main legal consequences in cases of deceptive advertising are (i) prohibition under a conditional fine from continuing with the deceptive advertising, (ii) liability for damages incurred as a result of the deceptive advertising, (iii) market disruption fee, and (iv) orders to provide correct and all material information. The entities and persons who may be subject to these sanctions are different depending on the type of sanction.

The following entities/persons may be subject to a prohibition under a conditional fine:

• the advertiser;
• an employee of the advertiser;
• any person acting on behalf of the advertiser; and
• anyone who has substantially contributed to the advertising.

The following entities/persons may be liable for damages:

• the advertiser; and
• a person/entity that intentionally or negligently violates a prohibition under a conditional fine (in addition to being required to pay the fine, they may be liable to compensate consumers and businesses for damages caused by the failure to comply with the prohibition).

The following entities/persons may be liable to pay a market disruption fee:

• the advertiser; and
• any other person or entity acting on behalf of the advertiser.

The following entities/persons may be ordered to provide (material) information:

• the advertiser;
• an employee of the advertiser; and
• any person acting on behalf of the advertiser.

Initially, it should be noted that the MPA uses the term “marketing” (marknadsföring) and not “advertising” (reklam). “Marketing” is defined as advertising and other measures in commercial activities which are intended to promote the turnover of, and access to, products, including a trader’s acts, omissions, or other measure or behaviour before, during or after the sale or delivery to consumers or traders. “Products” is defined as all types of goods and services, including digital services, digital content, real property, and rights and obligations. Put differently, the definition of “marketing” is very broad.

As a general rule of thumb, any type of communication (regardless of form) that has a commercial purpose falls under the term “marketing” and the scope of the MPA. For example, emails (even to a limited circle of recipients) containing information promoting the turnover of products have been considered marketing in case law. Commercial messages on social media, websites, TV, etc, also constitute marketing.

It can sometimes be difficult to determine whether a particular message is an expression of opinion or has a commercial purpose. Messages such as public service announcements, political or religious messages, or information and expressions of opinion are normally not considered to have a commercial purpose and fall outside the scope of the MPA.

Advertisers are not required to obtain pre-approvals from government or other authorities before running advertising in Sweden.

There are specific rules concerning the use of other’s intellectual property in advertising. Such specific rules are contained in the intellectual property legislation, which consists mainly of the Swedish Act on Copyright in Literary and Artistic Works, the Trade Marks Act, the Design Protection Act and the Patents Act. An advertiser must, when designing an ad, consider both the MPA and other advertising legislation as well as intellectual property legislation.

The Swedish Act on Names and Images in Advertising governs advertisers’ use of individuals’ names and images in advertising. Such use is prohibited unless the individual in question has given his or her consent. The Act prohibits not only the use of names and images, but also the use of titles, designations and publicly known pseudonyms that clearly designate a certain person.

Representations that portray the likeness of an individual are not specifically mentioned in the Swedish Act on Name and Image in Advertising. However, legal doctrine suggests that lookalikes or imitations fall within the scope of the Act.

The Swedish Advertising Ombudsman (Reklamombudsmannen) is the main self-regulatory organisation with regard to advertising in Sweden. It was founded by the Swedish advertising industry. The Swedish Advertising Ombudsman reviews whether advertising is in compliance with the International Chamber of Commerce’s Consolidated Code of Advertising and Marketing Communication Practice (the ICC Marketing Code). Individuals as well as companies and organisations can file complaints to the Swedish Advertising Ombudsman. In cases where there is a high level of public interest, the Ombudsman can act ex officio (ie, without receiving a complaint). While the Swedish Advertising Ombudsman cannot impose any legal sanctions, an unfavourable ruling that an advertisement violates ICC rules can potentially harm a brand’s reputation.

As a general rule, there is no private right of action available for individual consumers to challenge certain advertising. However, a group of consumers can bring an injunction proceeding against an advertiser and request the court to impose a prohibition under a conditional fine, or an obligation to provide all material information, on the advertiser.

An individual consumer who has suffered a loss as a result of a misleading advertising practice may also initiate court proceedings and claim damages from the advertiser.

The relationship between the MPA and environmental claims is currently a point of discussion in Sweden. In 2022 and 2023, several judgments and decisions have been delivered by the Swedish Patent and Market Courts and Reklamombudsmannen (the Swedish Advertising Ombudsman, a self-regulatory organisation for advertising in Sweden) regarding the legality of such claims.

On 2 February 2023, the Swedish Patent and market Court concluded that Arla’s (a dairy company) wide-spread use of the claim “net zero climate footprint” on its milk packages was a misleading and unfair marketing practice. Consequently, the court imposed a prohibition under a conditional fine on Arla not to use this or other similar claims in advertising.

Arla argued that the climate emissions caused by the production of the dairy product in question were fully offset by climate credits that the company bought from organisations that took carbon offsetting measures, such as planting trees and preventing deforestation, and that the net zero claim was therefore accurate. According to Arla’s own calculations, these offsetting measures would render a net zero climate impact but only a century after the emissions occurred.

The court initially ruled that the average consumer focused on the part “zero climate footprint” of the claim as the word “net” was written in another colour and in a lesser font size and placed alongside the expression “zero climate footprint”. Thereafter the court concluded that the claim suggested that the dairy product in question did not affect the climate at all or at least that the climate footprint caused by the product was compensated completely.

The court stressed the problematic nature of Arla’s claim based on a 100-year timeframe for achieving a “net zero climate footprint”. According to the court, this timeframe was too great for any living person to reliably assess. Although Arla had accounted for potential uncertainties in its calculations, the court found it impractical to assert with any certainty that the net zero impact would materialise within a century. As a result, the court concluded that Arla had not sufficiently substantiated its claim, deeming it misleading and thus constituting an unfair commercial practice.

In sum, the Arla judgment shows that environmental claims are assessed strictly by the Swedish Patent and Market Courts and that companies which make such claims must be able to substantiate them with robust and reliable evidence. Companies cannot simply make environmental claims and rely on the fact that they take climate compensatory measures, such as planting trees, which offset the climate footprint of goods or services in the distant future.

In Sweden, there is a tradition of restricting the marketing of alcohol, tobacco and other nicotine products and gambling services.

In Sweden there have not been any notable changes to the political climate or political administration with regard to marketing. There is, however, an increased tendency of the Consumer Agency to bring legal action against companies making green claims in advertising. Several cases concerning such claims have been decided by the Swedish Patent and Market Courts during 2022–23.

The MPA states that advertisers are not allowed to include incorrect claims or other representations that are misleading in marketing. This applies to marketing in all media. Whether an advertising measure is misleading or not is determined by the overall impression that the advertisement evokes in an average consumer, who is reasonably well-informed and reasonably observant and circumspect. As a general rule, in order for a marketing measure to be considered misleading, it must affect the consumer’s ability to make an informed business decision.

There is no requirement that all information needs to be disclosed in an advertisement. An advertiser is free to decide what information is to be provided in the marketing. However, marketing still needs to fulfil the requirements of not being misleading due to the lack of information provided in the advertisement.

There is no specific regulation on the use of disclaimers and footnotes in advertising. However, according to the Marketing Practices Act, the use of small print text in an advertisement that includes a conflicting marketing message compared to the main text in the marketing is considered to be unclear and hence misleading.

Any and all claims made in advertising are subject to the rules and restrictions set out in the MPA. The MPA does not explicitly distinguish between express and implied claims. However, according to preparatory works and case law, the MPA is applicable to indirect claims. As such, a claim that is not directly expressed, but implied by the context of the advertisement, must be substantiated with evidence.

However, the MPA does not generally bar the use of puffery or exaggerations (given that the average consumers perceive the claims as puffery or exaggerations). A notable ruling concerning puffery is the L’Oréal-case, in which the court found that L’Oréal’s claims that a particular face cream “reduced wrinkles at laser speed” did not constitute puffery.

An advertiser must be able to prove (styrka) the accuracy and veracity of all claims made in advertising. Since the assessment is based on how the average consumer perceives the claim, the advertiser must usually be able to substantiate all reasonable interpretations of the claim. For this reason, the advertiser should avoid using vague and undefined statements or claims in advertising. The standard of proof may vary depending on the type of claim in question. For example, the Swedish Patent and Market Courts have established that the average consumer has difficulties in critically evaluating and assessing the plausibility of environmental claims and therefore sets very high evidentiary requirements on the substantiation of such claims.

In Sweden, the rule of free evaluation of evidence applies. This means that courts freely evaluate evidence. As a consequence, it is difficult to state (in advance) the type of evidence that is required to substantiate a particular claim. The evidence required may also depend on the claim in question. Green claims must, for example, be substantiated by documentation based on the latest scientific findings and universally recognised calculation models.

The MPA does not contain specific rules regarding the use of product demonstrations in advertising, which means, among other things, that the general rules concerning misleading advertising apply. It is not permissible to present or demonstrate the product’s performance in a way that is not representative of the product’s actual performance.

The MPA does not contain specific rules regarding the use of endorsements or testimonials in advertising. The general rules regarding misleading advertising apply, which means that any endorsement or testimonial must be correct and accurate and be able to be substantiated. An advertiser may not use an endorsement or testimonial in a misleading way.

According to the MPA, all advertisement must be designed and presented in such a way that it is clear it is an advertisement. For example, advertising may not be designed in such a way that the average consumer believes that the advertising is of an editorial nature. This also applies to content and posts in social media, and by influencers.

The advertisement must also clearly indicate who or what company is responsible for the advertisement. Normally this is done by including the name of the company or responsible person, but in the case of well-known brands the use of a trade mark may suffice. However, such indications are not necessary for “teasers” – ie, brief promotional materials designed solely to generate interest in forthcoming advertisements.

Discriminatory advertising does not fall within the scope of the MPA. However, according to the ICC Marketing Code, all marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based on ethnic or national origin, religion, gender, age, disability or sexual orientation. If an advertiser does not comply with this rule, Reklamombudsmannen may decide that the advertisement is discriminatory and contrary to the ICC Marketing Code. 

In a recent case, Reklamombudsmannen found that an advertisement from the clothing company Eytys AB was gender discriminatory. The ad consisted of a picture showing a woman dressed in jeans, wearing nothing on her upper body and covering her nipples with her hand and arm. Under the picture there was the text “Get intimate with EYTYS”. Reklamombudsmannen stated that the woman was presented as a sex object, that the presentation of the woman had no connection to the marketed product (jeans), and therefore it was discriminatory.

The MPA does not generally bar the use of green claims. However, like any other claim made in marketing, a green claim must be veracious, accurate and substantiated in order not to constitute a misleading marketing practice. The Swedish Patent and Market Courts have established that the average consumer has difficulties in critically evaluating and assessing the plausibility of green claims and therefore sets very high evidentiary requirements on the substantiation of such claims. Compelling evidence must be presented, which essentially means that the supporting documentation must be based on the latest scientific findings and universally recognised calculation models.

A vague and undefined green claim must be supplemented by a prominent specification or explanatory statement, especially if the climate strategy consists of purchasing climate emission reduction units in projects abroad. If such specification or explanatory statement is not made, the advertiser must substantiate the claim as well as all reasonable interpretations of it. In other words, the risk of the claim being deemed misleading increases considerably without a prominent specification or explanatory statement. Normally, expressions such as carbon neutral, net zero, or green are considered vague/undefined and must therefore be specified or explained.

The case of Arla described in 1.9 Regulatory and Legal Trends is a recent case law from the Swedish Patent and Markets Courts (lower court) regarding green claims.

On 22 March 2023, the European Commission presented a proposal for a directive on substantiation and communication of explicit environmental claims (the “Green Claims Directive”). The Green Claims Directive will establish a common framework within the EU regarding substantiation, communication and verification of environmental claims/environmental labelling schemes.

According to the EU Commission’s guidance on the interpretation and application of the UCPD, the use of “dark patterns” could be regarded as misleading advertising. Advertisers should not design their interface in a way that distorts the transactional decision of consumers. The European Commission considers that manipulative practices such as visually obscuring important information and using trick questions and ambiguous language to confuse the consumer will likely qualify as a misleading marketing practice. So-called “confirmshaming” (ie, using emotion to steer users away from making a certain choice) could, according to the European Commission, amount to an aggressive marketing practice, using undue influence to impair the consumer’s decision-making.

According to the European Data Protection Board’s (EDPB) guidance on dark patterns in social media platform interfaces, the use of “dark patterns” may come into conflict with the GDPR, including the principles of accountability and transparency and obligation of data protection by design stated in article 25 of the GDPR. 

There are special rules regarding advertising to children, some of which are mentioned below.

• According to the MPA, it is not permissible to include in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or adults to buy advertised products for them.
• Marketing may not be directly addressed to children under the age of 16, without the consent of a guardian. This includes direct marketing in all media, including but not limited to emails, texts and calls.
• According to the Swedish Radio and Television Act, it is not permissible to include advertising in television broadcasts that targets children under the age of 12.
• According to the Swedish Alcohol Act, marketing of alcohol may not specifically target or depict children or young people under the age of 25.
• According to the Swedish Gambling Act, gambling advertisers may not target children under 18.
• According to the Swedish Act on Tobacco-free Nicotine Products, advertising of tobacco-free nicotine products may not specifically target or depict children or young people under the age of 25.

According to the MPA, all advertising must be designed and presented in such a way that it clearly states that marketing is involved. The advertiser responsible for the marketing shall also, as a general rule, be clearly stated in the ad. The rules on identification in advertisements apply regardless of the medium used.

Case law sets a standard that the “average consumer” – the perspective from which all marketing is assessed – should be able to recognise that the content is promotional even after brief exposure. For example, the Swedish Patent and Market Courts have concluded that the expression “in collaboration with” (i samarbete med) in social media posts is not a sufficient identification.

All claims made in advertising are subject to the general rules and restrictions set out in the MPA. However, there are certain types of claims that can be said to be subject to specific restrictions, as they are more likely to be regarded as misleading than other claims.

Country of Origin

A claim that a product has a certain geographic origin will be considered misleading if the claim is unfounded. For example, if an advertiser makes the claim “made in Sweden” on a product, the product cannot be wholly or mainly manufactured abroad.

Ecological

Any claim that references, directly or indirectly, to a product being ecologically produced, must fulfil the requirements under the EU regulation 2018/848. Otherwise, such a claim would be seen as misleading. A claim that a product is ecological may also constitute a green claim and must be consistent with the general requirements of the MPA concerning green claims.

Natural

A claim that a product is “natural” may be considered a misleading marketing practice, unless the product can be found in its existing state in nature, or has undergone only minimal treatment. Furthermore, it is not inconceivable that the use of the expression “natural” in advertising would be considered a green claim. In such a case, the claim must be consistent with the general requirements of the MPA concerning green claims.

Free

Terms such as “gift”, “free”, “present” or equivalent may only be used where the offer involves no obligation whatsoever for the consumer or in conjunction with the purchase of another product, provided that the price of the product has not been increased to cover all or part of the cost of the offer. 

Reklamombudsmannen has stated that a discount requires the consumer to make a purchase and therefore involves an obligation for the consumer. Consequently, it is misleading to refer to a discount as a “gift”, “present” or “free product”, unless it is made in conjunction with the purchase of another product.

There are rules in the MPA, Swedish Trademarks Act, the Act on Copyright in Literary and Artistic Works and other intellectual property laws and regulations that may, depending on the circumstances of the individual case, be applicable to comparative advertising claims. It is important to note that these laws and regulations apply side by side, meaning, for example, that the same comparative claim can be permitted according to the MPA but forbidden according to the Copyrights Act.

As a general rule, advertisers are permitted to use the name of a competitor or a competitor’s trade mark in comparative advertising, but only under special circumstances. According to the MPA, an advertiser may, in its advertising, directly or indirectly refer to a competitor’s business and/or products provided the comparison:

• is not misleading;
• relates to products that fulfil the same need or are intended for the same purpose;
• objectively refer to essential, relevant, verifiable and distinctive characteristics of the products;
• does not cause confusion between the advertiser and the competitor or between their products, trade marks, company names or other marks;
• does not discredit or derogate the competitor’s business, relationships, products, trade marks, company names and other marks;
• in the case of products with a designation of origin, at all times relates to goods with the same designation;
• does not take unfair advantage of the competitor’s reputation associated with the trade mark, company name or other distinguishing marks of the competitor or their designation of origin; and
• does not portray a product as an imitation or copy of a product bearing a protected trade mark or company name.

If the competitors’ trade mark or packaging enjoys copyright protection, the advertiser would generally need to have consent from the competitor before running the ad. Comparative advertising does not constitute an exemption to copyright protection.

An advertiser can challenge claims made by a competitor if it has been affected by the claims in question. Such an advertiser may (i) request the court to issue a prohibition under a conditional fine against the competitor from continuing to use the claims in question, (ii) request the court to order the competitor to provide correct and all material information in its claims, and (iii) claim compensation for damages incurred as a result of the claims.

A problem that can occur when pursuing compensation for damages due to a violation of the MPA is that the advertiser must show (styrka) that the competitor has wilfully or negligently violated the MPA and that it has incurred a loss because of the unlawful claim. Furthermore, the competitor must also prove that the loss in question was a reasonably foreseeable loss in relation to the claims in question (adekvat kausalitet).

The advertiser can also report the claims to Reklamombudsmannen. 

There is nothing preventing the advertiser from reporting the competitor to the Swedish Consumer Agency, which can bring injunction proceedings against the competitor. However, since the Consumer Agency’s primary task is to safeguard general consumer interests, it is not certain that the Agency will initiate proceedings against the competitor.

There are no special rules in the MPA as regards ambush marketing. However, it is contrary to the MPA to take unfair advantage of another trader’s reputation by unlawfully creating associations with this trader’s business, products, trade marks, specific concepts or the like. A prerequisite for protection against such free riding is that the trader’s products, trade marks and the like have a reputation (ie, are known to a significant portion of the relevant public) so that it is associated with a certain commercial origin.

Ambush marketing could potentially constitute unlawful free riding. A notable decision is from the Swedish Market Court (now Patent and Market Courts) in the case of the Golden Egg Competition (Guldäggstävlingen). The Golden Egg is a competition in the Swedish advertising industry, aiming to highlight innovative and creative communication. In this particular case, Channel 3 (TV3) used expressions such as “Channel 3 Wishes Good luck in the Golden Egg Competition” and “Channel 3 Congratulates the Golden Egg Winner” in its marketing. The court stated, among other things, that Channel 3’s marketing was designed in such a way that the channel appeared to be a sponsor of the competition.

There are no special rules in Swedish marketing law concerning advertising online or on social media. The general rules in the MPA are applicable. This means, among other things, that the advertising must be designed and presented in such a way that it is easily identifiable as being an advertisement, and that it must be clear who the responsible advertiser is. 

It is unlikely that an advertiser will be liable under the MPA for statements or actions made by third parties on the advertiser’s site or social media channels. According to the MPA, anyone who has substantially contributed to misleading or unfair marketing practices can be subject to a prohibition under a conditional fine (medverkansansvar). There is only little case law on the interpretation of the term “substantial contribution”. It is difficult to argue that a passive advertiser has substantially contributed to marketing/claims made on the advertiser’s site or social media channels.

A trader’s omissions before, during or after the sale or delivery of products to consumers or traders can constitute a marketing practice under the MPA and entail marketing liability. It can be argued that failure to remove misleading claims about the trader’s business on its sites or social media channels made by third parties constitutes a misleading practice (through omission) that can entail marketing liability for the trader. However, there seems to be no case law supporting this argument

According to the Act (1988:12) on Responsibility for Electronic Notice Boards (the so-called BBS-Regulation), an advertiser may have a duty to remove certain messages on its platforms that are criminal (such as unlawful threats or messages that clearly constitute copyright infringement or infringement of a neighbouring right).

There are no special rules in Swedish marketing law that relate to disclosures in social media or space-constrained advertisements. The general rules in the MPA are applicable (see 2.1 Deceptive or Misleading Claims–2.6 Disclosures).

There are no special rules in Swedish advertising law that apply to the use of any major social media platforms. The general rules in the MPA are applicable when it comes to running ads on such platforms. No specific media platform is banned. An advertiser can run ads on any social media platform on the market.

The use of editorial or entertainment content in advertising is not prohibited as such under the MPA. However, pursuant to the MPA, all advertisements must be designed and presented in such a way that they are easily identifiable as being advertisements. It must also be clearly stated who is responsible for the marketing. Editorial or entertainment content that contains marketing, but does not meet these requirements, will be considered misleading.

For example, a blogger who posts content about a product intended as an advertisement must clearly state, in text, that the content is an advertisement or that the blogger receives compensation for posting the content. According to recent case law, such text must be directly visible to the reader and be made at the beginning of the content.

There are no special rules or regulations that apply to the use of influencer campaigns, which means that the general rules of the MPA are applicable to such advertising.

The Swedish Patent and Market Court of Appeal has stated that an advertiser can be held liable for content posted by its influencers, provided that ad in question can be considered to originate from the advertiser. A marketing measure taken by an influencer is generally considered to originate from an advertiser if the marketing measure is carried out on behalf of the advertiser in accordance with an agreement and, as a general rule, for remuneration. The scope of such an agreement is determined by general principles of contractual interpretation, which includes an assessment of whether the influencer’s marketing measure constitutes a performance of an obligation arising out of an agreement between the advertiser and the influencer. There is no requirement for the agreement to have a certain form; written, oral and implied agreements are covered.

See more in the following cases: PMÖD, 2479-20 and PMÖD, PMT 2054-18.

There are no special rules in Swedish marketing law with regard to the solicitation and use of consumer reviews. Consequently, the general rules in the MPA are applicable. This means, among other things, that any review used in advertising must be real and not presented in any misleading way. The advertiser must also be able to substantiate the existence of the review.

As a general rule of thumb, advertisers do not have any liability under the MPA for consumer reviews or ratings. Nor does the advertiser have a duty to monitor such consumer reviews. However, according to BBS-Regulation, an advertiser may have a duty to remove certain messages on its platforms that are criminal (such as unlawful threats or messages that clearly constitute copyright infringement or infringement of a neighbouring right).

The use of email for individual communication, in the course of marketing to a natural person, requires, according to the MPA, that the natural person has given prior consent thereto (ie, has opted in). Furthermore, according to the GDPR, in the case of direct marketing by email or other electronic communication, as a general rule, prior consent from the consumer is required.

If the telemarketing includes the use of an automatic calling device for individual communication that is not operated by an individual, such telemarketing requires, according to the MPA, that the natural person has given its consent (ie, opted in). If the telemarketing takes place without such an automatic calling device, such marketing is permitted as long as the consumer has not clearly objected to it (ie, has opted out).

According to the MPA, the use of text messaging for individual marketing communication to a natural person typically requires that the natural person has given prior consent (ie, has opted in). Furthermore, according to the GDPR, in the case of direct marketing by text message or other electronic communication, prior consent from the consumer is generally required.

Neither the Marketing Practices Act nor any other legislation regarding marketing practices regulates the collection or use of personal information. However, the collection and use of personal information will fall under the scope of the GDPR. In most cases, such collection and use would require consumers’ consent.

Neither the MPA nor any other legislation regarding marketing practices regulates the collection or use of personal information. However, such collection and use of personal information will fall under the scope of the GDPR. In most cases, the collection and use of personal information for advertising purposes would require the consent of the consumers in question. When it comes to the personal information of children, the permitted use and methods of obtaining consent are generally stricter and more limited.

No response has been provided in this jurisdiction.

Sweepstakes

The Swedish gambling market is regulated by the Swedish Gambling Act (GA) and applies to all gambling services aimed at the Swedish market. Additionally, the MPA, which has a general application covering all types of marketing activities, may apply to gambling services. According to the MPA, marketing must, as a general rule, not be incorrect, unfair or misleading.

Organising sweepstakes or other contests or games where the outcome is determined by chance generally requires a licence from the Swedish Gambling Authority. However, no licence is needed if the participant does not have to pay a stake to participate in the sweepstakes. Consequently, free games of chance are usually permitted. The Swedish Gambling Authority has stated that it should not be considered that a stake for participation in a contest has been paid by a participant, if, for example, a lottery ticket has been temporarily included in a purchase of a specific product or service and the price of such product or service has not been affected by the fact that the game of chance is included in the purchase. In such cases, the main purpose and nature of the game of chance is considered to be gaining access to the product or service in question and not to participating in a game of chance. However, if the price of the product or service has been affected by the game of chance or lottery, a payment is deemed to have been made to participate in the game, which means that a licence is required by the organiser.

Any marketing of sweepstakes and other games of chance must also comply with the general rules of the MPA. This means, among other things, that information regarding the material terms and conditions of the sweepstakes such as price information, time limitations and other relevant information must be included in the marketing.

It should also be mentioned that alcohol and tobacco products, or other products for which use is restricted (eg, prescription drugs, weapons, etc) should not be used as prizes in sweepstakes.

Skill-based Contests

Contents where the outcome is determined by the entrant’s performance and skill are not subject to the provisions of the GA. Skill-based contests are regulated by the MPA. According to the MPA, such contests are allowed provided that all material information about the contest (such as terms and conditions, time limits, etc) is presented to the participants prior to entering the contest. There is no requirement for registration or filing of a skill-based contest.

As with sweepstakes, alcohol and tobacco products, or other products for which use is restricted (eg, prescription drugs, weapons, etc) should not be used as prizes in skill-based contests.

Swedish gambling law distinguishes between contests of skill and games of chance. Even though there is no legal definition of a “contest of skill”, a contest of skill is generally defined as a contest where the outcome is determined by participants’ mental or physical skills. Consequently, contests where the outcome is determined by chance are defined as “games of chance”. It is important to note that a contest where the outcome is determined by both skill and chance is usually considered a type of game of chance (kombinationsspel) that falls within the scope of the GA.

The distinction between contests of skill and games of chance is important in many respects.

• The prize in a contest of skill is subject to income tax and payroll or, as the case may be, social security contributions, unless the prize is in other forms than bills and the value of the prize does not exceed 3% of the price base amount. In 2023, the price base amount is SEK52,000, which means that prizes below SEK1,575 are not subject to tax.
• Organising games of chance require a licence if the participants must pay a stake in order to participate.
• Games of chance must be advertised moderately.
• Advertising of games of chance must not be specifically aimed at people under the age of 18 or directly at those who have opted for self-exclusion from gambling. 

The requirement of moderation means, among other things, that marketing of games must not:

• give the impression that the chances of winning are greater than they actually are or that skill can affect the outcome when this is not the case;
• pressure the audience to play or induce a feeling of urgency for not participating;
• give the impression that games are socially attractive or include claims from well-known people, with the indication that participation in games has contributed to their success;
• claim that gambling can be a solution to social, professional or personal problems;
• give the impression that gambling can be an alternative to a job, a solution to financial problems or a form of financial investment;
• include unsubstantiated claims about the return that players can expect; and
• give the impression that games are free or similar if this is not the case.

Games of chance, where the participant has to pay a stake or a cost of entry, require a license to be organised or operated. Applications for a license are made to the Swedish Gambling Authority. The application process is available online, and the information required in the application varies depending on the type of game. A license is valid for at most five years at a time. There are also limitations on certain types of games, regarding, for example, the maximum number of organisers at a time.

Generally, offering a product or service for free, or at a reduced price, is not prohibited. According to case law, the use of terms such as “free”, “for free”, “SEK 0” and similar can be considered to be misleading if the consumer is expected to do something in return – eg, if the consumer must purchase something else to gain access to the free product/service. However, it is permissible to require the consumer to pay for costs related to the offer, such as paying for delivery.

Advertisements may also not include the term “realisation” (rebate) or any other expression with equivalent meaning unless the sale in question concerns products that are part of the business’s normal inventory, the sale is for a limited time and the prices are significantly lower than the business’s normal prices for corresponding products. A discount/sale may only be offered for a limited period of time (usually only a couple of weeks and, in any case, no longer than two months during a calendar year). If a discount lasts for a longer period of time, the discounted price will become the regular price, and it will consequently be misleading to state that the price is reduced. In connection with discounts, the lowest previous price applied to the product/service during the last 30 days preceding the price reduction must be stated according to the Swedish Price Information Act. 

Some examples of other allowed terms are “included in the bargain” and “without extra cost”. The term “included in the bargain” is generally permitted when a buyer is offered a larger quantity of goods at the same price. The term “without extra cost” can be used in combined offers when a premium, such as a larger quantity, is offered, provided that the premium is in actuality rewarded without any extra cost to the consumer.

The Swedish Act on Consumer Protection in Automatic Contract Renewal (CPACR) is applicable to fixed contracts between traders and consumers that include conditions that the contract will be extended if the consumer does not terminate it. CPACR is not applicable if the consumer can terminate the contract within three months after an extension.

According to the CPACR, a trader must, before an extension of the contract, remind the consumer of the meaning of the conditions of extension. The reminder shall be in writing and given to the consumer no later than one month before the deadline for terminating the contract. If the trader does not provide the consumer with such a reminder, the consumer has the right to terminate the contract with immediate effect. However, if the contract period has not expired, the consumer is only entitled to terminate the contract at the end of the contract period.

According to the Swedish Distance and Off-premises Contracts Act a trader must, prior to concluding a contract, provide the consumer with information regarding the term of the contract, the terms and conditions for terminating the contract where it is for an indefinite term or is automatically renewed.

Pursuant to the Swedish Act on Contract Terms in Consumer Relations, contract terms that involve automatic renewal of a contract can be considered unfair. If this is the case, the trader may be prohibited from using such terms.

In Sweden, there are currently no rules or case law related to the use of artificial intelligence in connection with the development of advertising content. There is a proposal for an EU regulation laying down harmonised rules on artificial intelligence,

There are no specific rules in Swedish advertising law concerning claims that a product is developed through the use of AI, is powered by AI or has AI-related capabilities. Hence the general rules in the MPA applies. Any such claim must be accurate and substantiated by the advertiser. Since the use of AI is largely unregulated, there is no legal definition of AI and no case law on the subject, it is difficult to determine what AI-related claims need to include to avoid being deemed misleading.

There are no specific rules in Swedish advertising law relating to the use of chatbots.

There are no special rules in Swedish advertising law with regard to the advertising, marketing or sale of cryptocurrencies and NFTs. Hence, the general rules of the MPA apply.

There are no special rules in Swedish advertising law with regard to advertising within the metaverse.

There are several product sectors that are subject to specific advertising rules.

Alcohol

The Swedish Alcohol Act stipulates that all marketing of alcoholic beverages (ie, spirits, wine, and beer with more than 2.25% alcohol) directed at consumers must be conducted with particular moderation. This means that marketing should not be intrusive, solicitous, or encourage alcohol consumption. Commercial advertising for alcoholic beverages on television and radio in Sweden is prohibited. Moreover, advertising must not specifically target or portray children or young people under the age of 25. Further, companies primarily engaged in the production or sale of alcohol are not allowed to sponsor television or radio programmes.

Tobacco and Related Products

The Swedish Tobacco Act states that, as a general rule, the marketing of tobacco products is prohibited. However, limited marketing is allowed within the physical point of sale, provided that it is not intrusive or solicitous and does not encourage tobacco use. Retailers marketing tobacco products to consumers are not permitted to use commercial advertisements on television or radio. There are also additional restrictions on sponsorship activities. Furthermore, tobacco products must include pre-defined warning labels and product information on packages.

Under the Swedish Tobacco-Free Nicotine Products Act, businesses must exercise particular moderation when advertising tobacco-free nicotine products. The marketing should not be intrusive, soliciting, or in any way encourage the use of tobacco-free nicotine products. Commercial advertising for tobacco-free nicotine products is not allowed on television or radio. There are also further restrictions on sponsorship activities. Furthermore, packaging for tobacco-free nicotine products must include a content declaration and text that informs about the harmful effects of nicotine.

Credit and Financial Products

Under the Swedish Consumer Credits Act, the advertising of credit to consumers must include information about effective rates and credit costs. Any advertising of credits or credit services must be moderate and shall not be intrusive. The advertising must not mislead the consumer as to the consequences of the credit agreement, such as being a free solution to financial problems or similar. It is also not permitted, for example, to emphasise the possibility of getting credit quickly. Any advertising of credit must be objective and balanced.

Furthermore, under certain circumstances, companies or investment funds marketing units or shares require authorisation from the Financial Supervisory Authority in accordance with MiFID II Directive (2014/65/EU) and MiFIR Regulation (EU) No 600/2014).

Medicines and Pharmaceuticals

Marketing of medicines is regulated by the Swedish Medical Products Act. The MPA applies to therapeutic and pharmaceutical products to the extent such products are not specifically regulated (ie, mainly non-prescription medicines that claim to have medicinal effects).

Advertising is restricted to pharmaceuticals sold without prescription and must mainly relate to illnesses that consumers are presumed capable of diagnosing themselves. Other indications shall specifically identify that they require medical treatment or other contact with health or medical personnel. A fundamental requirement is that the information refers to indications and dosages that are authorised by the Swedish Medical Products Agency.

Product placement is allowed in films, TV programmes, sports programmes and other entertainment programmes, as long as it is not aimed at children under the age of 12. Information that there is product placement must be provided at the beginning and end of a programme, and after any interruption for advertisements. There are also certain limitations on what products may be placed in product placements (see 10.1 Regulated Products).

Marketing claims about foodstuffs regarding health and nutrition are only permitted if the claims fulfil the requirements set forth in EU Regulation (EC) No 1924/2006 on nutrition and health claims made on foods. This regulation is applicable in the EU and is furthermore applicable to all types of labelling presentation and advertising of food.

Examples of permitted claims regarding nutrition that may be used in marketing, provided that such marketed products and services also fulfil the requirements set forth in EU Regulation (EC) No 1924/2006, are “low in fat”, “no added sugar” and 2light”. However, as regards health claims health, it is necessary that the European Commission has approved such usage for the claim to be used for commercial purposes. Examples of health claims that are not allowed to be included in marketing are claims referring to statements of individual doctors or individual health professionals, and health-related claims that refer to the rate of weight loss.