General Rules on Advertising

The most important instrument containing general rules on advertising practices in Belgium is the Belgian Economic Law Code (ELC).

The following sections of the ELC are particularly relevant with regard to advertising.

• Article I.8, which contains the definitions of advertising and comparative advertising. Advertising is broadly defined as “any communication aimed directly or indirectly at promoting the sale of products, regardless of the place or means of communication used”. Comparative advertising is defined as “any form of advertising in which a competitor or goods or services offered by a competitor are explicitly or implicitly mentioned”.
• Book VI of the ELC, which contains various general provisions on advertising (Article VI.6 ff), comparative advertising (Article VI.17 ff), as well as unfair commercial practices (including advertising and marketing practices), both in the B2C and B2B context (Article VI.92 ff). Part of this legislation is the implementation of the EU Directives on misleading and comparative advertising (Directive 2006/114/EC) and unfair commercial practices towards consumers (Directive 2005/29/EG).
• Articles 64-68 of the ELC and Articles 123-124 of Book VII of the ELC, which contain specific provisions relating to the advertising of consumer and mortgage credits.
• Book XII of the ELC and the related Royal Decree of 4 April 2003 regulating the sending of advertising by electronic mail, which contain provisions on online advertising.

Specific Legislation

There is also specific legislation prohibiting, restricting or dealing with certain types of advertising (amongst others, product-related advertising restrictions and advertising restrictions relating to the means of communication or the content of the advertising). Some of these provisions are the implementation of international conventions, EU Regulations or EU Directives. By way of example, such provisions can be found in:

• The Act of 24 January 1977 on the protection of the health of users in the field of food and other products, which prohibits tobacco advertising and sponsorship, etc.
• The Act of 25 March 1964 on medicines for human use and the Royal Decree of 7 April 1995 on information and advertising on medicines for human use.
• The Royal Decree of 17 April 1980 on advertising for foodstuffs (in addition to the rules as set out in EU legislation – eg, EU Regulation 1169/2011 on the provision of food information to consumers and EU Regulation 1924/2006 on nutrition and health claims made on foods).
• The Act of 8 June 2006 regulating economic and individual activities with weapons, containing a prohibition on advertising for illegal weapons and a restriction for advertising weapons for which a licence is required.
• The Act of 7 May 1999 on games of chance, gambling, gaming establishments and the protection of players and the Royal Decree of 25 October 2018 on the conditions for operating games of chance and betting through information society instruments, containing limitations on advertising for games of chance, gambling and gaming establishments.
• The Act of 23 May 2013 regulating the qualifications required to perform procedures of non-dental aesthetic medicine and aesthetic surgery and regulating the advertising and information concerning such procedures, which prohibits advertising for cosmetic surgery (Article 20/1).
• The Act of 23 January 2002 concerning the advertising of motor vehicles.
• The Flemish primary school Decree of 25 February 1997, restricting advertisements in primary schools.
• The Flemish Decree of 29 March 2009 on radio and television broadcasting, containing advertising and sponsorship restrictions for broadcasters.
• The French Decree of 4 February 2021 on audio-visual media services and video sharing services, containing advertising and sponsorship restrictions for broadcasters.

Self-Regulatory Codes

In addition to the legal framework, there are also various self-regulatory codes regulating advertising within a specific industry (eg, the Belgian convention on alcohol marketing), in a certain context (eg, sport regulations restricting advertising in sports) or more generally (eg, the consolidated ICC Advertising and Marketing Communications Code).

The regulatory authority responsible for enforcing the advertising provisions under the ELC is the Federal Public Service (FPS) Economy (and more specifically, the Directorate-General Economic Inspection (in Dutch: “Algemene Directie Economische Inspectie”; in French: “Direction Générale de l’Inspection Economique”). Enforcement can be done through the initiation of cease-and-desist actions, through warnings, administrative fines, or the proposal of settlement offers.

With regard to more specific legislation containing advertising regulations, other authorities may also be charged with enforcement. For instance, the contractual personnel of the Federal Public Service Public Health, Food Chain Safety and Environment monitors the implementation of the provisions of the Act of 24 January 1977 on the protection of the health of users in the field of food and other products (which prohibits, inter alia, tobacco advertising and sponsorship) and its implementing decrees.

Advertising violations may also be subject to criminal prosecution by the public prosecutor.

General

For violations of restrictions placed on the content of advertising and/or the products advertised, the advertiser could, in principle, be held liable.

Conversely, if advertising prohibitions or restrictions relate to the means of communication of the advertising (eg, advertisements close to highways, online advertisements) or the context surrounding the publication of the advertisement (eg, advertising in primary schools or in a sports context), then, in principle, the person publishing, broadcasting, setting up or maintaining the advertisement through such means or in such context will be held accountable. This can also be the advertiser, but this is not necessarily the case.

The legislator may, however, deviate from the above-mentioned principles and/or hold other persons jointly liable, for example, those who assist in the creation of the advertisement. For example, Article XV.69 of the ELC expressly stipulates that the provisions on criminal complicity apply unless expressly excluded.

Cease-and-Desist Actions for Violations of Book VI of the ELC

For cease-and-desist actions in response to violations of Articles VI.17, VI.93-VI.95, VI.105 and VI.106 of the ELC (including cease-and-desist actions relating to deceptive advertising), the legislator provided for a specific cascade liability on the basis of which a cease-and-desist action can also be initiated against the following in order of priority:

• the publisher (written advertisement) or the producer (audio-visual advertisement);
• the one printing or creating the advertisement; and
• the distributor of the advertisement, in case the advertiser, the publisher/producer or printer/creator, respectively, is not domiciled in Belgium and has not appointed a responsible person domiciled in Belgium (Article XVII.10, ELC).

The liability of the aforementioned persons is purely an objective one and does not require the publisher, producer, printer, creator or distributor to be at fault. Since the cascade system is only designed for bringing a cease-and-desist action, and the application of the system does not require the publisher/producer, printer/creator or distributor of the advertisement to be at fault, no civil, criminal or administrative sanctions can be imposed on them merely on this basis.

The “Jury voor Ethische Praktijken inzake Reclame” or “Jury d'Ethique Publicitaire” (“Jury for Ethical Advertising Practices” ‒ JEP) is the self-regulatory body of the advertising sector in Belgium. The JEP examines whether the content of advertising messages conforms to the rules of advertising ethics, basing itself on legislation and self-regulatory codes.

The following persons can submit a complaint to the JEP: consumers, consumer organisations, sociocultural associations, professional associations/federations, members or representatives of an official body or public authority. In addition, advertisers, advertising agencies and distributors of advertisements (eg, media) may also submit a request to the JEP to obtain an advisory opinion on an advertising campaign.

If the JEP considers that the advertising does not contain any element that violates the applicable legislation and/or self-regulatory codes, it will not make any comments. This does, however, not imply that the JEP approves the advertisement in question. In the event of a dispute, the courts can still decide that the advertisement is illegal.

If the JEP considers that the advertising message contains editorial and/or visual elements that do not comply with the legislation or codes, it will issue a request to modify or stop the advertising, depending on the nature and extent of the violations. This decision will be addressed to the responsible advertiser. If no action is taken by the advertiser or in the absence of a response, the JEP will address a suspension recommendation to the media, which supports the JEP's work and has undertaken to comply with its decisions.

As the JEP is a self-regulatory authority, its decisions are in principle only binding for its members. However, if no action is taken by the advertiser or in the absence of a response, the JEP will address a suspension recommendation to the media, which supports the JEP's work and has undertaken to comply with its decisions.

Apart from the self-regulatory codes that are applied by it, the JEP has also issued various recommendations on many sub-topics in advertising such as:

• depictions of persons;
• use of humour;
• advertising for children's holidays;
• advertising for isolation, fuel and heating;
• non-commercial advertising;
• advertising for weight loss products; and
• influencer marketing.

Any interested party may bring a cease-and-desist action before the court. Apart from a cease-and-desist action, injured persons may also bring other claims, such as a claim for damages or for the recall, destruction or removal of the infringing advertising material. They can also demand the publication of the judgment rendered. As an additional (civil) sanction, in case an agreement has been concluded with a consumer as a result of an unfair market practice, a consumer may be entitled to the reimbursement of the amounts paid by it, without having to return the product supplied to it (Article VI.38, ELC).

Damaged parties may also file a complaint to bring/initiate a criminal action in the criminal courts, to the extent the violation in question is subject to punishment by criminal sanctions.

The FPS Economy has a consumer “Contact Point” to report (alleged) violations of advertising regulations and other consumer protection laws.

An out-of-court dispute settlement may also be pursued by the consumer through the Consumer Ombudsservice (Articles XVI.5-XVI.23, ELC).

Consumers can also file a complaint with the JEP.

Implementation of Omnibus Directive

The most important legal trend in the past 12 months regarding (deceptive) advertising is the implementation of the Omnibus Directive (Directive (EU) 2019/216 on the better enforcement and modernisation of Union consumer protection rules).

The Belgian transposition of the Omnibus Directive (EU) 2019/2161 entered into force on 28 May 2022.

Expected Regulation on Advertising of Cryptocurrencies

On 19 July 2022, the existing Act of 2 August 2002 on the supervision of the financial sector and financial services (Financial Supervision Act) was amended to grant new supervisory powers to the Financial Services and Markets Authority (FSMA) regarding the promotion of virtual currencies to non-professional investors. The FSMA is currently working on a draft regulation to regulate the advertising and marketing of virtual currencies (see 9.1 Cryptocurrency and Non-fungible Tokens (NFTs)).

Partly in response to the fact that the number of gamblers has dramatically increased during the COVID-19 pandemic, the Belgian government is preparing a new Royal Decree to ban all advertising for games of chance and gambling by the end of 2022. Also, sport sponsoring by gambling operators would be prohibited (albeit subject to a transition period).

Another noticeable development since the pandemic is that the authorities have generally become more active in enforcing regulatory requirements (including advertising regulations).

No changes in the political climate or administration have impacted the regulation of advertising and/or the enforcement of advertising regulations.

General Principles

As a general rule that applies both in a B2C and in a B2B context, commercial practices (including advertising and the claims contained therein) may not be unfair.

Pursuant to the general rule of Article VI.93 of the ELC, a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour of the average consumer whom it reaches or targets, with regard to the underlying product.

In B2B relations, it is prohibited for a company to take any action that would violate fair market practices as a result of which the professional interests of one or more other companies are harmed or may be harmed (Article VI.104, ELC).

In addition to the general “unfairness” prohibition, a commercial practice will in any event be considered unfair if it is either misleading or aggressive.

Misleading Commercial Practices towards Consumers (Articles VI.97 - VI.100, ELC)

Black list

Article VI.100 of the ELC provides for a “black list” of commercial practices that are irrefutably considered misleading towards consumers under all circumstances. This black list includes practices such as:

• claiming to have signed a code of conduct when this is not the case;
• falsely claiming that a product will only be available (under certain conditions) for a very limited time, in order to make the consumer decide immediately, giving them no time or insufficient time to make an informed decision;
• claiming or otherwise giving the impression that a product can be legally sold when it cannot;
• making factually incorrect claims concerning the nature and extent of the danger that would threaten the personal safety of the consumer or their family if the consumer does not purchase the product;
• falsely claiming that a product can cure diseases, defects or malformations;
• describing a product as “free” or “at no charge” if the consumer has to pay something other than the unavoidable cost of accepting the offer and collecting the product or having it delivered; and
• claiming that product reviews have been submitted by consumers who have actually used or purchased the product, without taking reasonable and proportionate steps to verify that these reviews are from such consumers.

Grey list

Articles VI.97-VI.99 of the ELC furthermore lay out a “grey list” of misleading commercial practices, which should only be regarded as misleading if they contain inaccurate information, or, where the information it contains is factually correct, if they deceive or are likely to deceive the average consumer in any way, including by their overall presentation, as to one or more of the following elements. In either case, the advertising must cause or be likely to cause the average consumer to make a decision on a transaction that they would not otherwise have made. The following is the list of elements in relation to which the average consumer must be deceived (or be likely to be deceived) to constitute a misleading practice:

• the existence or nature of the advertised product;
• the main characteristics of the product, eg, availability, advantages, risks, execution, composition, accessories, customer service and complaints handling, production process, manufacturing date, delivery, suitability and possibilities for use, quantity, specification, geographical or commercial origin, results to be expected from use, or characteristics and results of tests carried out on the product;
• the scope of the advertiser's obligations, the motives behind the advertisement, the nature of the sales process, any statement or symbol suggesting sponsorship or direct or indirect support for the advertiser or the product;
• the price or the manner in which the price is calculated, or the existence of a specific price advantage;
• the need for a service, part, replacement or repair;
• the capacity, characteristics and rights of the advertiser or its intermediary, such as its identity, assets, qualifications, status, recognition, affiliation, connections, industrial, commercial or intellectual property rights or its awards and distinctions; and
• the rights of the consumer, including the right to replacement or reimbursement of a product under Belgian law.

The law also explicitly states that the following marketing practices are to be considered misleading if they cause or are likely to cause the average consumer to make a transactional decision that they would not otherwise have made:

• marketing a product, including through comparative advertising, in such a way as to create confusion with products, trade marks, trade names and other distinguishing features of a competitor; and
• marketing products across EU member states as being identical when, in reality, they have a significantly different composition or different characteristics.

Advertising can also be considered misleading if, taking into account the full context, it omits or conceals essential information that the average consumer needs to make an informed decision on a transaction and that causes or is likely to cause the average consumer to make a decision on a transaction which they would not otherwise have made.

Aggressive Commercial Practices towards Consumers (VI.101 - VI.103, ELC)

Similar to the rules on misleading commercial practices, the ELC also includes a black and grey list of aggressive commercial practices.

Black list

The black list of aggressive commercial practices in Article VI.103 of the ELC includes:

• directly inciting children to buy the advertised products or to persuade their parents or other adults to buy such products for them;
• persistent and unwanted solicitation by telephone, fax, email or other remote media; and
• giving the false impression that the consumer has already won or will win a prize upon completion of a formality, when in fact, either:
1. there is no prize or other equivalent benefit; or
2. the entering in/qualification for the pool of potential winners of the prize or equivalent benefit is subject to a stake requirement.

Grey list

Articles VI.101 and VI.102 of the ELC furthermore include a more general prohibition on aggressive commercial practices, under which a commercial practice should be regarded as aggressive towards consumers if, in its factual context, taking into account all its features and circumstances, it distorts or is likely to significantly distort the average consumer's freedom of choice or conduct with regard to the product, by harassment, coercion, including the use of physical force, or undue influence, and thereby causes or is likely to cause them to make a decision on a transaction that they would not otherwise have made. In order to assess whether a commercial practice can be considered aggressive, the time, place, nature and persistence of the practice, as well as the use of threatening and abusive language or conduct, are taken into account.

Misleading and Aggressive Practices towards Other Companies (B2B)

Similar rules apply in B2B context (Article VI.105 ff, ELC).

The prohibition of unfair (ie, misleading or aggressive) commercial practices applies to all advertising claims, whether they relate to objectively measurable elements or not. For each claim, an individual assessment should be made by the competent authorities or courts.

Advertising should always be truthful and honest and should not mislead the recipient.

Article XV.16 of the ELC provides for a specific obligation for the advertiser to provide evidence of the accuracy of the factual elements it has communicated as part of its commercial practices if requested by the authorities. If such evidence is not provided by the advertiser within one month or appears insufficient, the claim may be regarded as an unfair or misleading commercial practice. In principle, the substantiation of a claim should not be included in the advertisement itself.

No general standard for testing applies in Belgium. However, factual claims should be accurate and advertisers may be required to provide evidence of the material accuracy of any objectively verifiable claims they make.

There may, however, be specific testing standards or requirements that apply to the advertising of particular products. For instance, the self-regulatory Advertising Code for Cosmetic Products states that any advertisement for cosmetic products referring to testing should explicitly state the nature of such testing, make sure that the tests are statistically valid, and clearly differentiate between tests relating to customer satisfaction and scientific effects.

There is no specific requirement to conduct human clinical studies in order to be allowed to make certain advertising claims.

Legal Framework

The general principles of non-discrimination, diversity and equality are governed by the Anti-Racism Act of 30 July 1981, the Anti-Discrimination Act of 10 May 2007, the Gender Act of 10 May 2007, as well as the non-discrimination prohibition that is included in the Belgian Constitution.

Self-Regulation

The ICC Advertising and Marketing Communications Code also provides that all marketing communications must respect human dignity and must not involve, encourage or incite any form of discrimination on the basis of ethnic or national origin, religion, gender, age, disability or orientation.

In addition, the JEP has issued a separate recommendation for the depiction of persons in advertising, which states that advertisers should take into account the evolution of moral standards and avoid contributing to the perpetuation of social prejudices or stereotypes that are contrary to social evolution or to prevailing morals within the population.

Legal Framework

There are currently no specific Belgian laws dealing specifically with environmental claims in general. Of course, the general rules on unfair and misleading commercial practices continue to apply.

Self-Regulation

The ICC Advertising and Marketing Communications Code includes several recommendations on (the substantiation of) environmental claims.

In addition, a governmental commission on environmental labelling and environmental advertising issued a self-regulatory Environmental Advertising Code.

Some products are subject to specific claim regulations under Belgian and/or EU law. The below overview is merely intended to give some examples and should not be considered exhaustive.

Cosmetic Products

EU Regulation 1223/2009 provides that in the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs may not be used to imply that these products have characteristics or functions that they do not have. The responsible person may refer, on the product packaging or in any document, notice, label, ring or collar accompanying or referring to the cosmetic product, to the fact that no animal tests have been carried out only if the manufacturer and its suppliers have not carried out or commissioned any animal tests on the finished cosmetic product, or its prototype, or any of the ingredients contained in it, or used any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products.

The Annex to Commission Regulation (EU) 655/2013 furthermore lays down common criteria to justify the use of a claim in relation to cosmetic products. Also the self-regulatory Advertising Code on Cosmetic Products sets out different recommendations for advertising claims in relation to cosmetic products.

Food

At EU level, health claims and nutrition claims can only be used if the products meet the conditions for such claims (as set out in the Annex to Regulation (EC) 1924/2006 and the related regulations).

The Belgian Royal Decree of 17 April 1980 furthermore provides that it is prohibited to attribute properties regarding the composition of a food that cannot be demonstrated through objective or measurable criteria.

The rules on comparative advertising can be found in Book VI of the ELC, as an implementation of EU Directive 2006/114/EC on misleading and comparative advertising. Comparative advertising is defined as “any form of advertising that explicitly or implicitly mentions a competitor, or goods or services offered by a competitor” (Article I.8, 14°, ELC).

Comparative advertising is permissible under Belgian law, subject to the following restrictions (Article VI.17, ELC).

• It is not misleading (this refers to the situation in which the advertising in any way, including by its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor).
• It compares goods or services that meet the same needs or are intended for the same purpose.
• It objectively compares one or more material, relevant, verifiable and representative characteristics of those goods and services, which may include price. Subjective characteristics, such as taste or smell may also be included to the extent that they are based on relevant statistical research conducted according to best practices.
• It does not result in the advertiser being confused with a competitor, or in the advertiser's brands, trade names, other distinguishing marks, goods or services being confused with those of a competitor.
• It does not discredit or denigrate the good name of the brands, trade names, other distinguishing characteristics, goods, services, activities or circumstances of a competitor, or use any derogatory language with regard thereto.
• For goods bearing a designation of origin, it should relate to goods bearing the same designation;
• It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designations of origin of competing goods.
• It does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.

In addition to the standards for general advertising claims, comparative advertising should in any event comply with the conditions listed in Article VI.17, ELC (see 3.1 Specific Rules or Restrictions).

An advertiser can challenge a claim made by a competitor before a Belgian court. To successfully do so, the advertiser would need to prove that:

• the claim has a comparative character in the sense of Article I.8, 14° of the ELC;
• the two companies can be considered competitors; and
• the claim does not comply with any of the general rules applicable to advertising practices, and/or does not meet all the specific requirements set forth in Article VI.17 of the ELC.

The court may grant an injunction (ie, a prohibition on the advertiser from using or distributing the concerned advertisement in the future), award damages (eg, reputational) incurred by the competitor, or take other remedial actions. For a more detailed overview of the various actions available, see 1.3 Liability for Deceptive Advertising, 1.4 Self-Regulatory Authorities and 1.5 Private Right of Action for Consumers.

General

In Belgium, there are no specific rules for advertising on social media.

Such advertising remains, however, subject to all general rules applicable to advertising practices, as well as the specific provisions of Book XII of the ELC, which originate from EU Directives 2000/31/EC and 2009/136/EG and lay out the principles of identification and transparency for advertisements that are part of an information society service or that constitute such service.

Commercial Communication as (Part of) Information Society Services

Information society services are services that are usually provided in exchange for consideration, by electronic means from a distance and at the individual request of a service recipient. The consideration does not necessarily have to come from the recipient of the service, but may also be derived from sponsorship and advertising income.

Article XII.12 of the ELC specifies that online advertisements should meet the following conditions.

• The advertisement, given its overall impression, including its presentation, must be clearly identifiable as such. Otherwise, it shall bear the word “advertising” in a legible, visible and unambiguous manner.
• The natural or legal person on whose behalf the advertising is made must be clearly identifiable.
• Promotional offers, such as reduced-price offer announcements and combined offers, must be clearly identifiable as such and the conditions for benefiting from them must be easily accessible and presented in a clear and unambiguous manner.
• Promotional contests or games must be clearly identifiable as such, the conditions of participation should be easy to fulfil and such conditions should be indicated in a clear and unambiguous manner.

Protection Measures and Disclosure Requirements

At both EU and Belgian levels, there seems to be a tendency to impose additional protection measures and disclosure requirements with regard to online advertising, and to label campaigns as such. When sharing content on social media, brands should furthermore be careful not to infringe on privacy rights (including image rights), IP rights and local advertising law. 

Quality Control

When sponsoring or associating themselves with social media posts or videos without conducting a quality control of the message it is sponsoring (eg, sponsoring of YouTube videos, without the advertisers being aware of the content they are sponsoring), there is a risk that companies see themselves associated with morally objectionable films, sites or other messages. As in the case of online sponsorship, the quality check is often automated. This leads to errors slipping into the algorithm more quickly.

For other, more influencer-related challenges on social media, see 5.1 Trends in the Use of Influencer Campaigns.

Whether an individual/company whose products are advertised can be held responsible for content posted by others on its site or social media channels will depend on whether the advertiser has commissioned such posts or the networks, advertising agencies, platforms and other parties who intervene in the marketing of the products.

If so, the advertiser could, in principle, be held liable (together with the persons placing the advertisement and, as the case may be, any networks, agencies, platforms and other parties who play a part in the marketing of the post on social media).

Social and digital media advertising are subject to all general rules applicable to advertising practices (including, for example, the prohibition on unfair or misleading practices set out in the ELC), as well as the specific provisions of Book XII of the ELC (see 4.1 Special Rules Applicable to Social Media).

As mentioned under 4.2 Key Legal Requirements, in order not to mislead, it must be made clear that the advertisement constitutes paid advertising/sponsoring.

Article XII.12, 2° of the ELC furthermore requires that the natural or legal person on whose behalf the advertisement is made should be clearly identifiable.

For the sake of completeness, it should be noted that stricter disclosure requirements may apply to influencers (see 5.2 Special Rules/Regulations on Influencer Campaigns).

There are no unique rules or regulations that apply to the use of social media platforms.

Obviously, compliance is required with all applicable rules contained in the ELC and any other relevant legislation, as well as with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR).

Article XII.12, 1° of the ELC provides that an advertisement, given its overall impression, including its presentation, must be clearly identifiable as such. If it is not possible to irrevocably identify it as an advertisement, it shall bear the word “advertising” in a legible, visible and unambiguous manner. In addition, the natural or legal person on whose behalf the advertisement is made, should be clearly identifiable (Article XII.12, 2°, ELC).

Under Belgian law, there are no specific regulations relating to misinformation on topics of public importance. Several initiatives, such as citizen consultation and expert reports, have been launched in the past, but so far, no legislation has been adopted in relation to this issue.

Being service providers of an information society service, influencers are required to mention their address and company number on their social media accounts (Article XII.6, ELC). Earlier in 2022, various influencers in Belgium received a warning from the Federal Public Service (FPS) Economy, establishing their non-compliance with this rule. This has raised strong concerns with regard to the safety and privacy of the persons involved. The federal government therefore gave them some additional time to come to a workable solution that is supported by the entire sector. One of the proposals is to unite the sector and designate a shared physical location. The address of such location could then be published online, instead of the home addresses.

General

All rules applicable to digital advertising (4. Social/Digital Media) equally apply to influencers. An influencer is subject to the advertising rules if:

• they are putting a spotlight on a product, a company, service or brand (verbally, visually or in text); and
• they receive a benefit from the company behind the brand, product or service.

This is also the case if the influencer:

• shares a discount code they received from the brand with their followers;
• gives away products for the brand or runs a contest; or
• share an affiliate link for a brand;

The benefit can be diverse, for example:

• a free of charge product (even if the influencer did not ask for it);
• a discount;
• cash payment;
• a lend of a product;
• free tickets to a festival;
• a free night in a hotel;
• a free meal at a restaurant;
• an invitation to an event; and
• a percentage of the sale of products through the affiliate link shared;

Guidelines on Influencer Marketing, Issued by the FPS Economy

Earlier in 2022, the FPS Economy issued additional guidelines for influencers and content creators, which seem to be more specific and slightly stricter than the recommendation issued by the Belgian Centre for Communication.

Influencers must clearly communicate the commercial nature of their advertising messages. In principle, the commercial nature must be clear from the context of the message itself. This means that it must be immediately clear to their followers that the post constitutes advertising. The best way to do this is by tagging the post as an advertisement. This tag must be immediately visible to social media users, without them having to click or expand the post and is preferably mentioned at the beginning of the post or placed directly in the photo or in the video. The “advertising” labelling should always be:

• made at least in the language of the post;
• be included in a prominent place, depending on the type of social media (ie, in the picture or video, at the beginning of the post, etc); and
• be visible regardless of the device used (desktop, mobile, tablet, in-app, etc).

It should not be buried in different hashtags, or put in a colour that contrasts poorly with the background.

Recommendations for Online Influencers, Issued by the Belgian Centre for Communication

In October 2018, the Centre for Communication published recommendations for online influencers and content creators, which have been updated in 2022.

One of the recommendations is that an influencer has to add a “tag” to their publication explicitly identifying its nature, such as “advertisement”. Such tags should be adapted to the target audience and be easily noticeable by the average consumer.

The JEP is responsible for monitoring whether influencers and the companies on whose behalf the advertisements are made comply with these recommendations, and to handle any complaints in this regard. Should it decide that a violation has occurred, the JEP can request the influencer and/or the brand to amend or delete the concerned advertisement(s). All decisions by the JEP are published on their website.

Whether a person/company whose products are advertised can be held responsible for content posted by influencers, will depend on whether the advertiser has commissioned such posts or the networks, advertising agencies, platforms and other parties who intervene in the marketing of the products.

If so, the advertiser has a duty to monitor its influences and could therefore, in principle, also be held liable for violations of the applicable advertising regulations (together with the influencer and, as the case may be, any networks, agencies, platforms and other parties who play a part in the marketing of the post).

The Belgian Centre for Communication further specifies in its (non-binding) recommendations that the following persons in any event can be held responsible by the JEP for violations of the applicable rules:

• the person publishing the post (ie, the influencer);
• the company or brand requesting the publishing of the post; and
• any networks, agencies, platforms and other parties who play a part in the marketing of the post on social media.

Under the Belgian transposition of the Omnibus Directive, the following practices have been added to the “black list” of misleading commercial practices of Article VI.100 of the ELC (meaning that they are prohibited under all circumstances, without the possibility of rebutting the unfairness presumption):

• providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results;
• stating that reviews of a product were submitted by consumers who actually used or purchased that product when no reasonable and proportionate steps were taken to ensure that they originate from such consumers; and
• submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.

Moreover, when companies provide access to consumer reviews of products, information about whether and how the company ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material. Belgian law explicitly foresees that omitting this information shall be considered a misleading omission in the sense of Article VI.99 of the ELC.

Legal Framework

In Belgium, three main sets of regulations apply to marketing by email:

• Articles XII.12 and XII.13 of the ELC;
• the Royal Decree of 4 April 2003 regulating advertising by electronic mail; and
• data protection legislation, in particular the GDPR and the Belgian Data Protection Act of 30 July 2018.

It is also worth mentioning that the FPS Economy and the Belgian Data Protection Authority have both published guidance on spamming and direct marketing.

Opt-In Principle

Under Article XII.13 of the ELC, the use of electronic mail for advertising purposes is prohibited without the prior, free, specific and informed consent of the recipient of the messages (the so-called “opt-in principle”).

Electronic mail is broadly defined in the ELC as any message in the form of text, voice, sound or image sent over a public communications network which may be stored in the network or in the recipient's terminal equipment until retrieved by the recipient (Article I.18, 2°, ELC). It accordingly covers marketing communications through email, SMS, MMS, social media postings and push notifications.

Exceptions to the Opt-In Principle (Royal Decree of 4 April 2003)

The applicable Belgian law provides for two exceptions to prior opt-in.

Electronic marketing mails sent to legal entities

An organisation may send electronic marketing mail to a legal entity (even if it is not a customer) without the prior consent of the recipient if the following cumulative conditions are met:

• the marketing communication is sent to an impersonal email address (eg, “info@company.com”, etc) - if, however, it is sent to a personal email address of an employee within the company (eg, “firstname.lastname@company.com”), the opt-in rule remains applicable; and
• the promoted services or goods are intended for the legal entity's activities (eg, one could not send promotional materials about men's or women's clothing without prior consent to a legal entity active in the banking and financial sector).

Electronic marketing mails sent to existing customers (“soft-spam” exception)

An organisation may send electronic marketing communications to existing customers (legal or natural persons) if the following cumulative conditions are met:

• the recipient's electronic contact details were collected directly from the recipient upon the selling of goods or services and the data collection has been done in accordance with the Belgian data protection legislation;
• the recipient's electronic contact details are used for the exclusive purpose of promoting goods or services similar to those already sold to the recipient and are offered by the same entity that has initially collected the data; and
• upon collection of their electronic contact details, the recipient is able, easily and free of charge, to object to the processing of their data for direct marketing purposes.

Right to Opt-Out (Royal Decree of 4 April 2003)

The recipient of marketing communications by electronic mail must be given, in a simple and unambiguous way, the possibility to object to such marketing communications:

• at the time of collection of their data; and
• in each subsequent message through valid contact information.

The process of unsubscribing must be free of charge, simple, direct, without justification and easily accessible. Every commercial email must include a link activating the opt-out or referring to an opt-out page, or mention an opt-out email address.

Where personal data is processed for direct marketing purposes, the above is without prejudice to the data subject’s right to object at any time to processing of personal data concerning them for such marketing, which includes profiling, to the extent that it is related to such direct marketing (Article 21.2, GDPR) (see 6.4 Targeted/Interest-Based Advertising).

Specific Information and Transparency Requirements

As per Article XII.13 of the ELC, when sending marketing communications by electronic mail, the provider must:

• provide clear and comprehensible information concerning the right to object to receiving advertisements in the future; and
• indicate and make available an appropriate means of effectively exercising this right by electronic means.

In addition, the information requirements laid down under Article XII.12 ELC as described in 4.1 Special Rules Applicable to Social Media need to be complied with.

In accordance with data protection legislation, at the time of data collection, the recipient must be informed about all aspects of the processing of their data in accordance with Article 13 of the GDPR (purposes and legal bases of the processing, recipients of their data, data protection rights, etc), including about the fact that their email address, phone number, etc, may be used for marketing purposes and about the right to object at any time to the processing of their personal data for marketing purposes.

In addition, when sending marketing communications by electronic mail, it is prohibited to (Article XII.13, ELC):

• use the electronic mail address or identity of a third party;
• falsify or hide any information that would allow the identification of the origin of the electronic mail message or its transmission path; and
• encourage the recipient of the messages to visit websites that contain advertising messages that infringe Article XII.12 of the ELC.

The above information requirements in relation to marketing through electronic mail are without prejudice to general information requirements.

Unfair Commercial Practice

Pursuant to Article VI.103, 3° of the ELC, making persistent and unwanted solicitations by electronic mail or other remote media is considered an aggressive commercial practice, which. in principle, is prohibited, except where legal or regulatory provisions authorise it in order to ensure the performance of a contractual obligation or where Article XII.13 of the ELC is complied with.

Enforcement and Liability

Non-compliance with the ELC

See 1.2 Enforcement and Regulatory Authorities.

Non-compliance with data protection legislation

The provider acting as data controller is responsible for compliance with the rules laid down in applicable data protection legislation, in particular the GDPR and the Belgian Data Protection Act. The Belgian Data Protection Authority is the competent enforcement authority for violations of the GDPR and the Belgian Data Protection Act in Belgium. Specific rules exist for cross-border processing of personal data.

In cases of non-compliance with the rules set forth by the GDPR or the Belgian Data Protection Act, administrative fines up to EUR20 million or 4% of the turnover of the company, whichever is higher, could be imposed. The Data Protection Authority also has the power to issue warnings, reprimands and orders, and to impose temporary or definitive limitations, including bans on the processing, order rectification or erasure of personal data, etc. A faulty data controller or processor could also be subject to claims for damages from data subjects.

Criminal sanctions are also possible for specific violations under the Belgian Data Protection Act.

Legal Framework

In Belgium, two main sets of regulations apply to telemarketing:

• the ELC, in particular Articles VI.110 to VI.115; and
• data protection legislation, in particular the GDPR and the Belgian Data Protection Act of 30 July 2018.

The FPS Economy has recently published guidelines on direct marketing by telephone.

As a general remark, Belgian law does not make a distinction for telemarketing in the B2C and B2B contexts.

Automated Calling Systems and Faxes ‒ Opt-In

Under Article VI.110 ELC, the use of automated calling systems without human intervention and faxes for direct marketing purposes are prohibited without the prior free, specific and informed consent of the recipient of the messages. The person who gave their consent can withdraw it at any time, without justification and free of charge.

Phone Calls (Except Automated Calling Systems) ‒ Opt-Out

Without prejudice to Article XII.13 of the ELC, mentioned under 6.1 Email Marketing, unsolicited communications for direct marketing purposes that are carried out by techniques other than automated calling systems and faxes (eg, phone) are authorised provided that the recipient, whether a natural or legal person, has not manifestly opposed such communication (the so-called “opt-out principle”) (Article VI.110, ELC).

When carrying out advertisement by such means of communication, it is prohibited to conceal the identity of the company on whose behalf the communication is made (Article VI.110, ELC).

Right to Opt-Out

The recipient must be given, in a simple and unambiguous way, the possibility to object to marketing communications by phone:

• at the time of collection of their data; and
• in each subsequent call through valid contact information.

The process of unsubscribing must be free of charge, simple, direct, without justification and easily accessible. Unsubscribing can be done over the phone, by mail or by email.

“Do Not Call Me” List

Recipients who do not want to receive marketing phone calls from any company can register themselves on the “do-not-call-me” (DNCM) list maintained by the non-profit association Do Not Call Me (which has been appointed by Royal Decree to manage that list).

Before performing direct marketing by phone (other than by automated calling systems for which opt-in is required, see above), all companies have the obligation to check whether the recipient and corresponding phone number is included on the DNCM list (Article VI.112, ELC). 

Pursuant to Article VI.112 of the ELC, it is prohibited to contact persons (whether B2C or B2B) for direct marketing purposes who are registered on the DNCM list.

The prohibition does, however, not apply to calls to telephone numbers of subscribers who have given their express consent to use their personal data for such purposes.

The provider must obtain a licence to consult the list (see https://www.dncm.be/en/home). The rule applies to both local and non-local entities that target Belgian residents.

Information Requirements

In addition to the information to be provided to data subjects in relation to the processing of their personal data under the GDPR (see 6.1 Email Marketing), the recipient of a marketing call must be informed of:

• the identity of the caller;
• the commercial nature of the communication; and
• the right to opt-out in each call through valid contact information.

Unfair Commercial Practice

Pursuant to Article VI.103, 3° of the ELC, making persistent and unwanted solicitations by telephone, fax or other remote media is considered an aggressive commercial practice which is in principle prohibited, except where legal or regulatory provisions authorise it in order to ensure the performance of a contractual obligation or where Article VI.110 of the ELC is complied with.

Enforcement and Liability

Non-compliance with the ELC

See 1.2 Enforcement and Regulatory Authorities.

Non-compliance with data protection legislation

See 6.1 Email Marketing.

As mentioned in 6.1 Email Marketing, the wide definition of electronic mail in the ELC (Article I.18, 2°) covers marketing communications through text messaging (eg, SMS, MMS and instant messaging).

Legal Framework

In Belgium, targeted and interest-based advertising are mainly regulated by three main sets of regulations.

• The ELC, and in particular the rules regarding market practices and consumer protection (Book VI, ELC) as well as the transparency requirements set out by Articles XII.6 and XII.12 of the ELC. In the context of targeted and interest-based advertising, providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results constitutes a prohibited misleading commercial practice (Article VI.100, 24°, ELC).
• Data protection legislation (GDPR and the Belgian Data Protection Act of 30 July 2018), in particular the lawfulness principle (Article 6, GDPR), the transparency requirements (Articles 13 and 14, GDPR), the right to object (Article 21, GDPR) and specific rules regarding automated individual decision-marking, including profiling (Article 22, GDPR).
• The cookie rules laid down in the Belgian Data Protection Act of 30 July 2018.

GDPR Principle of Lawful Processing

Targeted and interest-based advertising imply personal data processing operations, which need to be based on one of the lawful bases for data processing laid down in Article 6 of the GDPR.

As pointed out by the Belgian Data Protection Authority, in the context of direct marketing, which includes targeted and interest-based advertising, the legal bases of consent (Article 6.1 (a), GDPR), the necessity for the performance of a contract (Article 6.1 (b), GDPR) and the advertiser's or a third party's legitimate interests (Article 6.1 (f), GDPR) are usually the most appropriate legal bases. A careful assessment is necessary on a case-by-case basis.

GDPR Transparency Requirements

As with any data processing operation, to the extent targeted and interest-based advertising rely on the processing of personal data, data subjects must be provided with information on all aspects of the processing including, inter alia, the purpose of the processing, the identity of the controller/advertiser, the categories of recipients that have access to the data and their right to object, to access, to rectify or to delete their data (as per Articles 13 and 14, GDPR). 

GDPR - Right to Object

Pursuant to Article 21.2 of the GDPR, where personal data is processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning them for such marketing, which includes profiling to the extent that it is related to such direct marketing.

GDPR - Automated Individual Decision-Making and Profiling

Pursuant to Article 22 of the GDPR, subject to certain exceptions, data subjects have the right not to be subject to decisions based solely on automated processing, including profiling, which produce legal effects concerning them or similarly significantly affect them.

Cookie Rules

In practice, targeted and interest-based advertising usually relies on the use of cookies or similar tracking technologies. The use of cookies must in essence comply with the general rules laid down in data protection legislation, in particular with the specific requirements set out under Article 10/2 of the Belgian Data Protection Act. According to this provision, the placing of cookies is only allowed provided that:

• the user or subscriber concerned receives clear and detailed information about the purposes of the processing underlying the placing of cookies and their rights pursuant to data protection legislation; and
• the user or subscriber has given their consent prior to the placing of the cookies, after having received the above information, it being understood that they can withdraw consent freely and in an easy manner.

The above-mentioned rule is, however, subject to exceptions under strict conditions.

The Belgian Data Protection Authority has issued guidance regarding the use of cookies for marketing and targeted marketing purposes.

In Belgium, the legal framework regulating marketing to children is fragmented between different sets of regulations. Marketing targeting children is also covered by various self-regulation initiatives.

The below is not intended to provide an exhaustive overview of such rules, but merely a brief outline of the most important restrictions.

Legal Framework

ELC provisions

As per Article VI. 103, 5° of the ELC, including in an advertisement a direct incitement to children to buy advertised products or persuade their parents or other adults to buy advertised products for them is considered a prohibited aggressive commercial practice.

Data protection legislation

In Belgium, the processing of a minor's personal data in relation to the offer of information society services (eg, services provided on the internet, including internet advertising) based on their consent is lawful if the child is at least 13 years old (Article 7, Belgian Data Protection Act). If the child is younger the 13, consent must be given by the holder of parental responsibility (according to Article 8 (1) of the GDPR). 

Radio and television advertising rules

Both the Flemish Decree of 27 March 2009 on Radio and Television Broadcasting (Articles 70-77) and the French Decree of 4 February 2021 on audio-visual media services and video sharing services (Article 5.2-5.3) set out, in similar terms, specific conditions for commercial communications targeted at children, including the following:

• such commercial communications cannot cause any moral or physical damage to minors;
• such commercial communications can in principle not represent minors in dangerous situations; and
• such commercial communications cannot encourage or condone excessive consumption of foods and beverages that contain substances that are not recommended for excessive consumption, such as fats and sugars.

Self-Regulation

There are also various self-regulatory codes dealing with advertising targeted to children/minors.

• The French Speaking Community has a Code of Ethics for Children's Broadcast Advertising, which lays down broadcast advertising rules with respect to, inter alia, price indications, contests, health, security and psychological effects.
• The Food Industry Federation has adopted a Code of advertising for foodstuffs. It contains provisions specifically designed to regulate food advertising aimed at children.
• The Code of Advertising and Commercial Communication for Cosmetic Products provides specific rules with respect to advertising for cosmetic products specifically made for children.
• The covenant on advertising and marketing of alcoholic beverages contains specific provisions regarding minors.

Food

See 10. Product Compliance.

Cosmetic Products

See 10. Product Compliance.

Alcoholic Beverages

See 10. Product Compliance.

Under Belgian law, sweepstakes or lotteries are all operations offered to the public and aiming at obtaining a gain/winning by the sole effect of luck. It is thereby irrelevant whether a stake is required to enter into/qualify for the pool of potential winners. Conversely, a game in which the winners are identified by a combination of chance and effort is not a lottery. However, this can still be qualified as a game of chance (see 7.2Contests of Skill and Games of Chance).

Lotteries and sweepstakes are in principle prohibited under Belgian law as per Article 301 of the Criminal Code. Exceptions to this prohibition apply when the organisation of lotteries is subject to a federal, provincial or, depending on the territorial scope, municipal authorisation/permit and other strict requirements. For instance, exceptions are granted to the National Lottery (Nationale Loterij or Loterie Nationale) and to non-profit organisations that organise lotteries or prize draws for the purposes of charity or the encouragement of industry or arts or another public interest and on the basis of a corresponding permit.

When organising a lottery, the general rules of the ELC, such as those relating to unfair terms and misleading and aggressive commercial practices, should also be complied with.

Belgian law distinguishes lotteries from games of chance. Unlike games of chance and lotteries, other games (such as games of skill) are not specifically regulated.

Games of Chance

The Act of 7 May 1999 on games of chance, gambling, gaming establishments and the protection of players defines a game of chance as “any game, where a stake requirement results either in the loss of this bet by at least one of the players, or in a win of any kind for at least one of the players, or furnishers of the game, and where chance is an even incidental element in the course of the game, the designation of the winner or the determination of the size of the win”.

According to this definition, three (cumulative) elements are necessary for a game to be considered a game of chance:

• the stake, which may consist of paying a higher price than the normal price for a product in order to participate in the contest, or calling or sending a text message to a certain number, for which more is to be paid than for a “usual” call or text message;
• the win or loss; and
• chance.

Therefore, even if a game requires a stake, but the participant's skills (rather than coincidence/luck) solely determine the outcome of the game, it will not be qualified as a game of chance.

A game of chance thus differs from a lottery in that a stake is always required (which is not the case with a lottery) and luck does not have to be the sole determining factor. Lotteries are expressly excluded from the scope of the Act.

Other Games (Such as Games of Skill)

Unlike games of chance and lotteries, other games (such as a game of skill ‒ ie, a game that involves skill, without luck being the predominant factor in the determination of the winner or the prize, and which does not qualify as a game of chance) are not generally regulated.

They remain subject to the general rules on advertising, such as those included in the ELC relating to unfair terms and misleading and aggressive commercial practices.

Lotteries

The organisation of lotteries is subject to a federal, provincial or, depending on the territorial scope, municipal authorisation/permit and other strict requirements. Commercial lotteries may therefore only be organised by non-profit organisations with a public interest/charity purpose, and authorised by Royal Decree. Commercial companies may not organise lotteries unless they adhere to duly authorised lottery schemes.

Games of Chance

Article 4 of the Act of 7 May 1999 provides that it is prohibited for any person to operate a game of chance or gaming establishment, under any form, in any place and in any direct or indirect manner without a prior licence issued by the Gaming Commission in accordance with this law and subject to the exceptions provided by the law. It is furthermore prohibited to participate in a game of chance, to facilitate the operation of a game of chance or gaming establishment, to advertise a game of chance or gaming establishment, or to recruit players for a game of chance or gaming establishment when the person concerned knows that it involves the operation of a game of chance or gaming establishment that is not licensed under the Act.

The Gaming Commission can grant seven types of licences. In the overview on their website, information on how to apply for each type of licence can be found.

Other Games

Other games (including games of skill) do not need registration or approval by any regulatory body nor approval of rules by a regulatory body.

No specific rules apply to loyalty programmes in Belgium.

They remain, however, subject to the general rules of the ELC and any other applicable general legislation (eg, on data protection).

Official End-of-Season Sales Periods (Articles VI.25-VI.28, ELC)

Belgian law provides for specific periods during which end-of-season sales can be run under the specific names “opruimingen”, “solden”, “soldes”, “Schlussverkauf” or any other similar names.

Winter sales from 3 January to 31 January (it being noted that if 3 January is a Sunday, winter sales may begin on Saturday 2 January); and summer sales from 1 July to 31 July (it being noted that if 1 July is a Sunday, summer sales may begin on Saturday 30 June).

Only products that have been previously offered for sale by the retailer for at least 30 consecutive or non-consecutive days and are still in the possession of the retailer at the time of the sale may be included in an end-of-season sale.

During the official end-of-seasons sales periods, products that are eligible to be included in the end-of-seasons sales can even be sold at a loss, which is otherwise prohibited under Belgian law (see Articles VI.116-117, ELC).

Black-Out Period prior to the Start of the Official End-of-Season Sales Periods (Article VI.29, ELC)

Before each end-of-season sales period, a “black-out” or “waiting” period must be respected. During this “black-out” period, it is prohibited to announce price reductions (other than those relating to the upcoming end-of-season sales), or to provide price reduction vouchers. Also, price reductions announced before the black-out period that have effect during the black-out period are prohibited. Retailers remain free to apply price reductions at check-outs during the pre-seasonal sales periods, provided that this price reduction has not been announced to the consumer.

The black-out period is a period of one month prior to the start of the respective official end-of-season sales period.

The black-out period only applies to apparel, leather goods and footwear. It does also not apply to clearance sales (a specific type of sales for retailers ceasing their business), nor to commercial fairs organised by local groups of enterprises (or with their participation) which last for maximum four days per black-out period. The black-out period does not apply to joint offers. Joint offers can be offered to consumers all year long.

General Rules Applicable to Announcements of Promotions

Certain names are reserved for the official end-of-season sales

The use of the denominations, “Soldes”, “Solden”“Opruiming”, “Schlussverkauf” or another similar denomination, is only allowed for price reductions applied during the legally defined end-of-season sales periods.

Announcement of price reductions to consumers require indication of reference price (Article VI.18, ELC)

As a result of the implementation of the Omnibus Directive in Belgium, traders are required to indicate a “reference price” when announcing a price reduction to consumers. Such reference price is, in principle, the lowest price applied during the 30 days prior to the start of the price reduction in the same sales channel. Note that this is one of the few areas that allows for national divergences, and that, as such, the Belgian legislator has opted to limit the reference period to seven days for products that have been on the market for less than 30 days. Deviating rules have also been adopted for so-called “progressive discounts” within a period of maximum 30 days.

The obligation to indicate a “reference price” does not apply to goods that spoil quickly or have a limited shelf life, or general communications in which no specifically measurable price reduction or conditional offers is announced. However, in these cases, companies must still comply with the prohibition on unfair commercial practices as set out in the ELC.

Prohibition on selling at a loss (Articles VI.116-VI.117, ELC)

Belgian law prohibits the sale of products at a loss. This means that the price offered to the customer cannot be lower than the price paid by the seller to their supplier or the price the seller would theoretically have to pay for the product if it were to re-order it from the supplier, after the deduction of potential (volume) reductions. In the case of joint offers, the offer is only regarded as a sale at loss if the offer as a whole constitutes a sale at a loss.

The prohibition of sales at a loss does not apply during the official end-of-season sales for products that are eligible to be included in such official end-of-season sales. Other exceptions included goods being offered during clearance sales, goods being offered that cannot be stored any longer, goods being offered that the company, due to external circumstances, can no longer reasonably sell against a price equal or higher than the price of acquisition and goods being offered of which the sale price, for compelling reasons of competition, is being aligned with the price offered by competing companies for the same or competing good.

Joint offers (Articles I.8, 18°; I.8, 21°; and VI.80-VI.81, ELC)

Joint offers are in principle allowed in Belgium and may be offered all year long, provided that they do not amount to unfair market practices and provided that they comply with consumer information, sales, price indication and advertising rules.

Article VI.81, Section 1 of the ELC, however, prohibits joint offers to consumers, if at least one element of the offer constitutes a financial service, and if such joint offer is made by one company or by different companies acting with a common purpose. The second paragraph of this Article, however, provides for some exceptions to this prohibition.

Cashback and value vouchers (Articles VI.31-VI.33 ELC)

Cashback vouchers

Vouchers entitling the holder to a later reimbursement of (part of) the price (“cashback-vouchers”), offered by a company at the time of the purchase of a good or service, must mention the following:

• the name, address and, where applicable, the form of company and company number of the issuer;
• the amount reimbursed;
• the ultimate date of validity of the voucher (if any); and
• the terms and conditions of reimbursement, including the steps that the holder of the voucher must take to obtain reimbursement and the period within which reimbursement will be made, unless that information is communicated at the same time as the voucher in a separate document.

Value vouchers

Specific rules apply regarding vouchers that were distributed free of charge and that are entitling the holder to an immediate discount upon purchase of one or more goods and/or services (“value vouchers”). Any company to whom such voucher is presented must accept the voucher, so long as the conditions of the offer are fulfilled. It is irrelevant in this regard which company issued the voucher (a voucher issued by a third party must also be accepted). If the voucher was issued to the consumer by a third party, the voucher must mention:

• the name, address and, where applicable, the form of company and company number of the issuer;
• the amount of the discount (this is a nominal amount; a percentage is not allowed);
• the goods or services to which the voucher is applicable;
• the establishments where the voucher can be used, unless it may be used in any establishment offering the relevant goods or services; and
• the term of validity of the voucher, unless it is unlimited.

No unfair or misleading practices

Announcements of promotions (including price reductions, joint offers and the offering of vouchers) must not be unfair or misleading. Whether a given announcement is misleading is to be assessed on a case-by-case basis. In order not to be misleading, promotions must, amongst other things, be effective, meaning that the customer must benefit from a real advantage. Promotions should therefore also generally be limited in terms of time.

Obligation to Inform (Articles VI.2, 6° and VI.45, 15°, ELC)

Prior to consumers being bound by an agreement, the company must provide the consumer with, inter alia, information regarding the duration of the agreement or, if the agreement is indefinite-term or is automatically renewed, the conditions for termination of the agreement by the consumer. This information must be provided by the company, unless it is already clear from the context, in a clear and understandable manner.

Specific Obligation to Inform for Service Agreements with a Fixed Term, Providing for a Tacit Renewal (Article VI.91, ELC)

Tacit renewal provisions in fixed-term service agreements (or agreements relating to both the sale of a product and the provision of services) concluded between a company and a consumer must be printed in bold in a frame separated from the text of the agreement and on the front side of the first page of the agreement.

The term must also describe the consequences of the automatic renewal, including:

• the consumer’s right to terminate the agreement at all times following the automatic renewal by providing prior notice as provided in the agreement (with such notice period not exceeding two months); and
• the deadline by which the consumer may object to the tacit renewal and the manner in which such objection must be notified to the company.

Unfair Terms in Consumer Contracts (Articles VI.83, 18°, 19° and 20°, ELC)

The following terms are furthermore considered unfair, and therefore null and void, when included in agreements with consumers:

• terms that are intended to bind the consumer for an indefinite period, without clearly mentioning a reasonable notice period;
• terms that are intended to extend a fixed-term contract for the successive delivery of goods for an unreasonable period of time if the consumer does not give notice of termination in due time; and
• terms that are intended to automatically renew a fixed-term contract in the absence of any contrary notice from the consumer, when the deadline for the consumer to express its intent not to renew the agreement is “too far” away from the end date of the agreement.

Similar terms are presumed to be unfair (and therefore to be null and void) if included in B2B agreements (Article VI.91/5, ELC), unless such presumption is rebutted:

• terms that are intended to tacitly prolong or renew a fixed-term contract with an unreasonable term, without specifying an exit possibility with a reasonable notice period; and

• terms that are intended to bind the parties for a considerable period of time without specifying an exit option with a reasonable notice period.

General Framework

Sports betting and any other forms of gambling are considered a “game of chance”, and therefore fall within the scope of the Act of 7 May 1999 on games of chance, gambling, gaming establishments and the protection of players (see 7.2 Contests of Skill and Games of Chance).

According to the Act, a bet is a game of chance where each player makes a stake, and the game results in gain or loss that is not dependent on the acts of the one placing the bet but on the occurrence of uncertain events that transpire without the intervention of the players. A distinction is made between mutual betting and fixed-odds betting.

Types of Betting

There are three types of betting, all of which fall under the competence of the Gaming Commission:

• betting on events or occurrences;
• betting on sports events; and
• betting on horse racing.

Locations to Place Bets

Bets can in principle only be placed in betting shops (class IV gaming establishments). There is a distinction between fixed betting shops (class IV gaming establishments) and temporary betting shops on the occasion of a (sports) event (class IV mobile gaming establishments): the bookmakers.

Outside these fixed and mobile betting shops, bets can also be taken:

• with newsagents, as a secondary activity; and
• within the enclosure of a racecourse.

Required Licences

In order to organise bets, an F1 licence is needed from the Gaming Commission. An F2 licence is used to take bets on behalf of an F1 licence holder. There is a maximum number of F1 and F2 licence holders. As is the case for casinos and slot machine arcades, the staff in a betting shop must have a D licence.

Participant Protection

Various obligations are imposed on organisers with the aim of protecting participants in games of chance. Furthermore, the minimum age of participants in betting/gambling games must be at least 18 years old.

Gaming Commission

The Gaming Commission is the licensing and supervising body. When a licensee violates regulatory provisions, the Gaming Commission may impose administrative sanctions consisting of a warning, the suspension of the operation of some machines for a specified period of time, or the withdrawal of the licence. Infringements of the Act of 7 May 1999 may also be subject to criminal prosecution.

Legal Framework

The Act of 7 May 1999 on games of chance, gambling, gaming establishments and the protection of players contains limitations on advertising for games of chance, gambling and gaming establishments.

Limitations for Advertising (Online) Games of Chance

Limitations have also been imposed on advertisements for online games of chance (including online betting/gambling). These can be found in the Royal Decree of 25 October 2018 on the conditions for operating games of chance and betting through information society instruments.

Self-Regulatory Code

In 2016, the Belgian Association of Gaming Operators (BAGO) also drew up a self-regulatory covenant for ethical and responsible advertising and marketing of games of chance.

However, the covenant is not sector-wide and currently only binds the six major private gaming and betting companies in Belgium.

Future Legal Developments

Partly in response to the fact that the number of gamblers has dramatically increased during the COVID-19 pandemic, the Belgian government is preparing a new Royal Decree to ban all advertising for games of chance and gambling by the end of 2022. Sport sponsoring by gambling operators would also be prohibited (albeit subject to a transition period).

General Advertising Rules

Apart from the prohibitions and limitations set out in the above-mentioned instruments, advertising for games of chance (including gambling/betting) remains subject to the general rules on advertising as included in, for instance, the ELC.

Cryptocurrencies

Definition

In Belgium, cryptocurrencies are referred to as “virtual currencies”. A definition can be found in the Act of 18 September 2017 on the Prevention of Money Laundering and Terrorist Financing and Limiting the Use of Cash (“AML Act”), defining virtual currencies as digital representations of value that:

• are not issued or guaranteed by a central bank or a public authority;
• are not necessarily linked to a legally established currency; and
• do not have the legal status of money or currency, but are accepted as a medium of exchange by natural or legal persons and can be transferred, stored and traded electronically.

Registration obligation for cryptocurrency service providers

Under the AML Act and the Belgian Royal Decree of 8 February 2022 on the status and supervision of service providers for the exchange of virtual currency and fiat currency and custodian wallet providers (“Virtual Currency Royal Decree”), as of 1 May 2022, persons established in Belgium whose regular professional activity consists of providing crypto-exchange services and offering custodian wallets on Belgian territory will be required to register with the FSMA. The registration requirement only applies to virtual currency service providers with a physical presence or permanent establishment in Belgium. Automated teller machines (ATMs) located on Belgian territory allowing for the exchange between virtual currency and fiat currency will be considered an establishment in Belgium and will trigger the requirement to register with the FSMA. The obligation to register with the FSMA also applies to regulated financial institutions (eg, credit institutions, payment institutions, investment firms, etc) that provide or offer, in addition to their core services, crypto exchange services and/or custodian wallet services. However, they will be exempt from those registration conditions that already apply to them as a result of their other regulated status. To obtain registration with the FSMA, virtual currency service providers must comply with various registration conditions, such as the requirement to possess professional reliability and appropriate expertise. In addition, minimum capital and anti-money laundering (AML) requirements apply. Shareholders must also be fit to ensure sound and prudent management of the company.

Ban on third-country service providers who provide services for the exchange between virtual currencies and fiat currencies or offer custodian wallet services

Under the AML Act and the Virtual Currency Royal Decree, it is furthermore prohibited for natural or legal persons governed by the law of a third country (non-EEA) to provide or offer on Belgian territory, as an ordinary professional activity or even as an additional or complementary activity, services for the exchange between virtual currencies and fiat currencies, or to offer custodian wallet services. EEA virtual currency providers can, on the other hand, freely provide their services in Belgium on a cross-border basis without being required to register with the FSMA (provided that they do not have a physical presence in Belgium).

Ban on the commercialisation of financial products with financial return solely based on a virtual currency to non-professional customers

As of 1 July 2014, the marketing of products that consist essentially of derivatives based on virtual currencies, such as Bitcoin, to retail clients in Belgium is also banned. The FSMA regulation to this effect was approved by the Royal Decree of 24 April 2014 for the approval of the regulation of the FSMA on the prohibition of commercialisation of certain financial products to non-professional clients. Virtual currency has been defined here as “any form of unregulated digital money without legal payment capacity”.

Regulation on advertising for cryptocurrencies

On 19 July 2022, the existing Act of 2 August 2002 on the supervision of the financial sector and financial services (the “Financial Supervision Act”) was amended to grant new supervisory powers to the FSMA regarding the promotion of virtual currencies to non-professional investors. The FSMA is currently working on a draft regulation to regulate the advertising and marketing of virtual currencies.

Apart from the prohibitions and limitations set out in the above-mentioned instruments, advertising for cryptocurrency remains in any event subject to the general rules on advertising as included in, for instance, the ELC.

Non-Fungible Tokens (NFTs)

There are currently no particular regulations in Belgium concerning the advertising, marketing, or sale of non-fungible tokens (NFTs). However, advertising and marketing of NFTs should in any event comply with general advertising and online commercial communications regulations applicable in Belgium.

There are currently no particular regulations in Belgium concerning the advertising of goods and/or services within the metaverse. However, advertising and marketing of such assets should, in any event, comply with general advertising and online commercial communications regulations applicable in Belgium.

There are currently no Belgium-specific regulations that deal with digital advertising platforms and the use of adtech. However, advertising and marketing through such means should comply with general advertising and online commercial communications regulations applicable in Belgium.

As mentioned in 1.1 Primary Laws and Regulation, there are various specific rules and restrictions in Belgium that apply to advertisements of regulated products such as alcohol, tobacco, food, medicines/medical devices and cannabis. The below is not intended to provide an exhaustive overview of such rules, but merely a brief outline of the most important restrictions for each of these regulated products.

Alcohol

Legal framework

Under Belgian law, there is no general prohibition on advertising for alcoholic beverages. However, there are limitations on the broadcasting of alcohol advertising by television broadcasters and/or radio broadcasters. These limitations are included in the Flemish Decree of 29 March 2009 on radio and television broadcasting and the French Decree of 4 February 2021 on audio-visual media services and video sharing services, both containing alcohol advertising and sponsorship restrictions for broadcasters. For instance, broadcasted advertising for alcoholic beverages may not be directed to minors, nor may it make an association between alcohol consumption and better physical performance or driving behaviour.

Self-regulation

Within the Belgian alcohol sector, a number of companies and professional associations signed a covenant regarding advertising and marketing of alcoholic beverages. Under this covenant, advertising may, for instance, not encourage irresponsible, excessive or illegal consumption, or be specifically aimed at minors. The covenant furthermore requires advertising for alcoholic beverages to be accompanied by an educational slogan, such as “beer brewed with love is to be drunk responsibly”.

On an international level, the ICC issued a Framework for Responsible Alcohol Marketing Communications.

Tobacco

The Belgian Act of 24 January 1977 on the protection of the health of users in the field of food and other products explicitly prohibits advertising for and sponsorship of tobacco products and similar products (including electronic cigarettes) in Belgium. Advertising for non-tobacco-related products that are traded under a similar brand as a tobacco product is in principle also prohibited, subject to a few limited exceptions.

Food

Legal framework

Through EU Regulation 1169/2011 on the provision of food information to consumers, the EU legislator imposed a number of restrictions on the advertising of foodstuffs. EU Regulation 1924/2006 of 20 December 2006 on nutrition and health claims made on foods furthermore imposes restrictions on the use of nutrition and health claims. Additional food advertising rules can also be found in other EU food law instruments.

Self-regulation

Self-regulating advertising codes regarding the advertising of foods include, for example, the EU Pledge and the Fevia Code on the Advertising of Foodstuffs. At ICC level, there is also the Framework for Responsible Food and Beverage Marketing Communications.

Medicines (Drugs) and Medical Devices

Legal framework

The legal restrictions on the advertising of medicines applicable in Belgium (ie, the Act of 25 March 1964 on medicines for human use and the implementing Royal Decree of 7 April 1995 on the information and advertising in relation to medicines for human use) are based on EU Directive 2001/83/EC of 6 November 2001 on the community code relating to medicines for human use. These rules require that promotional statements relating to medicines be correct, and they prohibit the promotion of a medicine that has not been registered, for which no marketing licence has been provided or that is subject to a suspension or prohibition. There are also a number of restrictions that depend on the target audience of the advertiser (ie, medical professionals or consumers). Any form of advertising targeted at consumers is in principle prohibited when the advertising relates to prescription drugs, implantable medical devices, or drugs containing psychotropic substances or narcotics within the meaning of the relevant international conventions. Permitted advertising for over the counter medicines must also comply with a range of strict conditions.

Self-regulation

Various self-regulatory codes are also in place to deal with advertising for medicines and medical devices. At the international level, for example, both Medicines for Europe and the European Federation of Pharmaceutical Industries and Associations (EFPIA) have issued such soft-law instruments, which often restate and clarify pre-existing rules. In Belgium, there are several self-regulatory codes, such as the one issued by Pharma.be.

Cannabis

Cannabis (extracts) are not subject to the provisions of the Royal Decree of 6 September 2017 regulating narcotic drugs and psychotropic substances and therefore are not prohibited when the total tetrahydrocannabinol (THC) content is less than 0.2%. However, even if a product's THC content is less than 0.2%, the use and advertising of such product and its derivatives are subject to other rules. For example, products bearing prophylactic or therapeutic indications are subject to the legislative framework on medicines. Advertising for products containing cannabidiol (CBD) intended for smoking is furthermore prohibited under the Act of 24 January 1977 on the protection of consumer health with regard to food and other products. More information can be found here.

In addition to regulations described in 10.1 Regulated Products, other products may also be subject to advertising regulations. Some examples are listed below.

Weapons

Under Belgian law, companies may not advertise prohibited or licensed weapons without visibly indicating that the possession of a licence is required (Article 19 of the Act of 8 June 2006 regulating economic and individual activities with weapons).

Lotteries and Games of Chance

See 7. Sweepstakes and Other Consumer Promotions and 8. Sports Betting/Gambling.

Motor Vehicles

Legal framework

Under Belgian law, advertisements for motor vehicles should include a warning about the driver's responsibility to drive safely. In addition, in Belgium, any printed ‒ or printable ‒ advertising material must contain information about the fuel consumption and CO₂ emissions of passenger cars (Articles 7 and 8 of the Royal Decree of 5 September 2001 concerning the availability of consumer information on fuel consumption and CO₂ emissions upon the placing on the market of new passenger cars).

Self-regulation

In Belgium, the advertising of motor vehicles is also subject to self-regulation (Code on Advertising of Motor Vehicles, their Parts and Accessories).

Regulated Professions

In Belgium, the advertising of regulated professions is also strictly regulated, be it by specific legal provisions (eg, dentists and some economic professions) or deontological codes (ie, on the basis of a mandate expressly obtained by the legislative (eg, lawyers or notaries) or the executive branch (eg, physicians, pharmacists)) in order to protect the honour, modesty, honesty and dignity of the relevant professions.