Bosnia and Herzegovina (BiH) is composed of the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS) – two entities with their own legislation – and the Brčko District (BD) – a special administrative unit. Applicable advertising rules may be adopted on:

• the state level – the BiH, in which case they apply in both the FBiH and the RS, as well as in the BD; or
• the entity or the administrative unit-specific level, in which case the rules apply only in the entity (the FBiH or the RS) or the unit (the BD).

In general, advertising in the BiH is not regulated by a specific act; instead, the advertising rules are found in numerous general and sector specific laws and regulations. The most important ones include:

• the Consumer Protection Law of the BiH (general advertising rules and commercial practices);
• the Consumer Protection Law of the RS (general entity-specific general advertising rules and commercial practices);
• the Law on Prohibited Advertising of the FBiH (general entity-specific prohibited advertising rules);
• the Law on Prohibited Advertising of the RS (general entity-specific prohibited advertising rules);
• the Communications Law of the BiH (general communications principles) and its by-laws specifically including the Code of Commercial Communications of the BiH (specific rules regarding audio-visual and radio services commercial communications);
• Electronic Legal and Commercial Transactions Law of the BiH (general principles of electronic communications);
• the Medicinal Products and Medical Devices Law of the BiH and its by-laws (specific rules regarding advertising medicinal products and medical devices);
• the Food Act of the BiH and its by-laws (specific rules regarding labelling/advertising food);
• the Food Act of the RS and its by-laws (entity-specific rules regarding labelling/advertising food);
• the Internal Trade Act of the FBiH (entity-specific unfair competition principles);
• the Trade Act of the RS (entity-specific unfair competition principles);
• the Trade Act of the BD (administrative unit specific unfair competition principles);
• the Law on Games of Chance of the FBiH and its by-laws (entity-specific rules regarding advertising games of chance);
• the Law on Games of Chance of the RS and its by-laws (entity-specific rules regarding advertising games of chance);
• the Law on Games of Chance of the BD and its by-laws (administrative unit-specific rules regarding advertising games of chance);
• the Law on Copyright and Related Rights of the BiH (intellectual property specific);
• the Trademark Act of the BiH (trade mark specific);
• the Competition Law of the BiH (competition principles);
• the Data Protection Law of the BiH (personal data protection); and
• the Law on Contracts and Torts of the FBiH and the Law on Contracts and Torts of the RS which apply as general acts (lex generalis).

Apart from those noted above, there are other laws and regulations that contain advertising rules - please see 10.1 Regulated Products and 10.2 Other Products.

Additionally, self-regulation is present in the media sector (for more information please see 1.4 Self-Regulatory Authorities) and there are special public and electoral rules.

Although it is not a member state of the European Union, the BiH intends to join the EU and has entered into the Stabilisation and Association Agreement. Consequently, the BiH is continuously (although slowly) harmonising its laws and regulations with the EU regulations and directives. As a result, most of the above-mentioned laws and regulations are partly harmonised with the older generation of EU legislation.

Due to the specific distribution of the advertising rules in the BiH (see 1.1 Primary Laws and Regulation), compliance with the advertising rules is enforced in different ways.

In principle, the laws and regulations (especially with respect to unfair competition principles and misleading/prohibited/prohibited comparative advertising) are enforced by the competent courts in the BiH; the laws on prohibited advertising (both in the FBiH and in the RS) stipulate special proceeding rules for such cases. In relation to unlawful advertising, consumers, the relevant organisations and authorised entities in general can file a claim against an advertiser and seek an injunction measure. Remedies in court proceedings include:

• a court order to refrain from unlawful conduct;
• an obligation to remedy the negative consequences of the unlawful conduct;
• to compensate the damages; and/or
• to refund the unjustified enrichment.

The parties to the court proceedings may seek a legal remedy against the decisions of the courts as there are both ordinary and extraordinary legal remedies available.

Sector specific laws and regulations are also enforced by administrative bodies (regulatory agencies, ministries, inspection authorities and other bodies). For example:

• the communications-specific laws and regulations are enforced by the Communications Regulatory Agency of the BiH;
• the food-specific laws and regulations are enforced by the Food Agency of the BiH;
• the medicinal products and medical devices laws and regulations are enforced by the Agency for the Medicinal Products and Medical Devices of the BiH; and
• the games of chance laws and regulations are enforced by subject government bodies in the entities and the special administrative unit of the BiH.

Specifically for B2C relationships, the most important factors are the supervision of the inspection authorities and consumers' ability to file a petition with the inspection authorities.

On a case-by-case basis, the administrative bodies may act ex officio or based on a complaint filed by an interested party. Sanctions and remedies in administrative proceedings may include:

• financial penalties (fines);
• an order to withdraw/ban the unlawful advertisement from the market, even without proof of actual loss, damage, intent or negligence from the advertiser’s side;
• an order to issue a corrective statement to the public (regarding unlawful advertisements); and
• an order to refrain from further unlawful actions.

In general, the parties (subjects) to the administrative proceedings may seek a remedy against the decisions of the first-instance administrative bodies with second-instance administrative bodies. Against the final administrative decisions, the subjects may initiate an administrative dispute before the competent court.

In addition to the above, in certain cases, an advertiser that breached the advertising rules may become subject to criminal proceedings. Also, self-regulatory bodies may also have competence to enforce the advertising rules (see 1.4 Self-Regulatory Authorities).

Both natural and legal persons may be held liable for deceptive advertising; sanctions may be imposed on both. However, some violations can only be made by legal persons because of their nature.

In general, advertisers (typically business entities) are primarily responsible and can be held liable for deceptive advertising.

In the BiH, most business entities are incorporated as either limited liability companies (local “doo” companies) or joint-stock companies (local “dd” companies). These companies and their corporate bodies are, in general, solely and directly responsible for breaches of laws and regulations. However, the companies’ authorised persons may also be fined in their private capacity; also, in extraordinary circumstances, their owners/shareholders may also be responsible and have liabilities.

In other types of business entities, the owners/shareholders may have personal liability and responsibility.

Together with the advertisers, advertising agencies are also responsible and liable for breach of laws and regulations.

The only self-regulatory authority (body) in the BiH with ties to advertising practices is the Press Council in the BiH, which operates in the print and online media sectors.

The Press Code of the BiH states the following.

“It is unethical to present covert advertisements as well as ordered and paid for texts as original journalistic ones.”

An interested party may file an appeal against the media subject with the Press Council of the BiH if the Press Code of the BiH has been (allegedly) breached. However, in the procedure, the Press Council of the BiH is limited to suggesting text corrections and denials to the media subject. Consequently, in practice, the Press Council of the BiH has very limited authority on advertising practices in the BiH.

Advertising rules in the BiH are found in numerous general and sector specific laws and regulations (see 1.1 Primary Laws and Regulation). Depending on which law and/or regulation has been allegedly breached, consumers may either take actions with public authorities (administrative bodies) or the competent courts.

If consumers consider any advertising as breaching (consumer-related) advertising laws and regulations, they may file a complaint with the administrative body, which may initiate administrative proceedings and eventually issue sanctions and/or remedies. The authority may issue a financial penalty (fine) to the advertiser and/or its advertising agency. For a list of other sanctions and remedies, please see 1.2 Enforcement and Regulatory Authorities. Consumer protection associations may also take these actions in the name of the consumers.

Consumers may also take private right of action (file a claim) with the competent court where an advertiser breaches laws and regulations that contain advertising rules. They may claim an adequate financial redress as well as compensation for damages. For a list of other remedies available in court proceedings, see 1.2 Enforcement and Regulatory Authorities.

There have been no specific (publicly known) legal/regulatory trends nor cases regarding deceptive advertising in the BiH in the past 12 months.

The BiH has committed to joining the EU and is in the process of harmonising its legislation (including advertising rules) with the acquis communautaire. However, due to political climate, the harmonisation has been at a standstill in the last 12 months.

Several cases of (alleged) deceptive advertising practices have been mentioned in the media, with no known outcomes. One of the cases involves a youth football team that advertises gambling services on their equipment.

The pandemic has not had a long-term effect on the regulation of advertising and the enforcement of advertising laws and regulations. During the peak of the pandemic, the authorities made some decisions that had a temporary impact on the dissemination of information.

For example, in 2020, the RS and the BD authorities issued acts/commands to prohibit the spread of false information, with sanctions included. This was a consequence of information spreading in media during the peak of the pandemic, and its role was to stop the spreading of misinformation. The text of the acts was formulated generally: any publicly presented and transmitted false news and information in any way related to COVID-19 that may cause fear and panic or otherwise negatively affect the implementation of measures to protect the population from the pandemic was encompassed by the acts. Their interpretation was left to competent authorities and courts.

Specifically for advertising, during the peak of the pandemic, the media was reporting heavily on cases of deceptive advertising and other types of unlawful advertising related to fake medicines, fake medicinal properties, misinformation, etc, but there are no known outcomes. If anything, although there have been no important developments in the long-term, as a result, the advertising rules and practices have gathered attention from the public. Also, the responsibility of the media and online platforms for dissemination of unlawful advertising began to be discussed more frequently among professionals.

In 1.6 Regulatory and Legal Trends it is noted that legal/regulatory trends have been at a standstill due to political climate in the BiH. Consequently, there have been no recent changes in jurisdiction that have impacted the regulation of advertising and/or the enforcement of advertising regulations.

The Consumer Protection Law of the BiH defines deceptive advertising as advertising messages and actions that:

• deceive or may deceive consumers and therefore affect their economic behaviour; or
• harm or may harm other participants in the market, which includes using small letters, numbers, pictures and signs to deceive the consumer on important elements of the offer/placement, especially regarding the price of a product or service.

The law further stipulates that deceptive advertising exploits or may exploit inexperience or ignorance, or divert the attention of consumers from important elements of the offer/placement, for profit-making purposes. Advertising messages and actions that contain ambiguities, untruths, exaggerations or other similar elements that deceive or may deceive consumers are also included in the definition.

The Law on Prohibited Advertising of the FBiH defines misleading advertising as advertising that, in any way (including by its presentation), misleads or may mislead the persons to whom it is directed or whom it reaches, and therefore may affect their economic behaviour, in other words, advertising that for the reasons stated harms or may harm other market participants. The Law on Prohibited Advertising of the RS contains an almost identical definition of misleading advertising.

Both the definitions (deceiving and misleading advertising) are very broad and general. Therefore, in theory, the mere potential to mislead a consumer and affect their economic behaviour may be enough to constitute a breach of the laws.

The laws and regulations in the BiH which contain advertising rules (please see 1.1 Primary Laws and Regulation) stipulate general and broad definitions of unlawful advertising (see also 2.1 Deceptive or Misleading Claims). So, both express and implied advertising claims are subject to regulation.

The laws and regulations contain a general provision which allows consumers’ associations and authorised persons to, at any time, seek an expert opinion from the competent informing body on the lawfulness of an advertising message. The opinions are provided on a case-by-case basis.

Furthermore, in the administrative proceedings, administrative bodies may ask advertisers to submit evidence of claims made in the advertisement. The bodies may deem such claims to be false if the required evidence is not provided or if the provided evidence is deemed insufficient in accordance with the applicable administrative proceedings’ rules.

In civil proceedings, generally, the courts decide within the limits of the requests made in a claim and based on the evidence submitted by the parties. According to the applicable principle of free evaluation of evidence, the court will decide which facts will be considered as proved, based on free evaluation of evidence. The competent court will conscientiously and meticulously evaluate each individual piece of evidence and all evidence as a whole.

The market requires fluidity and a high speed of action; therefore, substantiation is generally not specifically required for making advertising claims, meaning there is no regulatory body in charge of pre-clearing the conformity of advertising.

However, one of the main principles of the consumer protection laws states that “advertising of products and services must not contradict laws and other regulations, must not offend human dignity, and must not violate basic human, economic, social and cultural rights”. So, consumers generally have the right to receive true and accurate information on advertised products or services. Advertisers should, therefore, be ready to prove the accuracy of their claims if a competitor and/or a consumer challenges them or if government bodies ask for evidence that supports the advertising claims (please see 2.2 Regulation of Advertising Claims).

Substantiation is particularly important for comparative advertising claims and advertising claims made in regulated industries. To some regulated industry products, the substantiation correlates to their market authorisation (authorisation to place the product on the BiH market). For example, in line with the Medicinal Products and Medical Devices Law of the BiH and its by-laws:

• advertising of medicinal products must be in accordance with the approved instructions and summarise the main characteristics of the medicinal product;
• advertising of medical devices must be in accordance with the approved instructions; and
• it is prohibited to advertise pharmaceutical products and medical devices that are available on medical prescription only.

The food, supplements and infants formula sectors also have similar special advertising rules (good information practices). According to the food acts and their by-laws, information about food, supplements, etc:

• must not mislead the consumer/customer as to characteristics, effects or properties; and
• must not hint at special characteristics when in fact all similar foods have such characteristics and similar

These also apply to advertising claims.

There are no general testing standards to support the advertising claims. However, it is in an advertiser’s best interest to support its claim about products or services with sufficient evidence in case it is challenged by the authorised entities (see 2.3 Substantiation of Advertising Claims), especially because the definitions of unlawful advertising are general and broad (please see 2.1 Deceptive or Misleading Claims).

Additionally, the laws on prohibited advertising also provide additional considerations when assessing misleading advertising claims, including the following.

• Characteristics of goods and services such as:
1. their nature;
2. their composition;
3. method and date of production/service provision;
4. availability;
5. quantity.
• The price or the method of price formation, as well as the conditions under which goods are sold or services provided.
• The nature, properties and rights of the advertiser, such as its identity, assets, qualifications, etc.

Therefore, subject testing may include any of the considerations above. For regulated industries (such as medicinal products and medical devices, and food/supplements) which are under special advertising industry rules (see 2.3 Substantiation of Advertising Claims), the testing may also be, in addition to general standards, connected with such special rules.

Only registered medicinal products and medical devices (with the BiH market authorisation) can be placed on the local market. As noted in 2.3 Substantiation of Advertising Claims, advertising of medicinal products and medical devices must be in line with the instructions, ie, data approved by the BiH regulatory body.

The registration process is formal, costly and long. The competent regulatory body rigorously examines and reviews clinical studies and other documentation, in line with the Law on Medicinal Products and Medical Devices of the BiH and its by-laws, which are sector specific rules.

If certain data has not been approved by the competent regulatory body, it must not be claimed in an advertisement. Specifically, if clinical study data has not been approved, the advertiser must not claim it in an advertisement.

There are no special laws or regulations that address stereotyping in advertising, but inclusion, diversity and equity take a special place in the BiH legislation due to its specific organisation (please see 1.1 Primary Laws and Regulation), history and general political climate.

The Law on Prohibition of Discrimination of the BiH designs a framework for implementation of equal rights and opportunities to all persons in the BiH and defines a system of protection from discrimination.

The law defines discrimination as any different treatment including any exclusion, limitation or preference based on real or perceived grounds towards any person or group of persons, their relatives, or persons otherwise associated with them, on the grounds of:

• race;
• skin colour;
• language;
• religion;
• ethnic affiliation;
• disability;
• age;
• national or social background;
• connection to a national minority;
• political or other persuasion;
• property;
• membership in trade union or any other association;
• education;
• social status and sex;
• sexual orientation;
• gender identity;
• sexual characteristics; and
• any other circumstance serving the purpose of or resulting in prevention or restriction of any individual from enjoyment or realisation, on equal footing, of rights and freedoms in all areas of life.

The prohibition applies to all public bodies, and all natural and legal persons in the public and private sectors, in all spheres. It directly and indirectly effects advertising and marketing.

The applicable laws and regulations forbid advertisements that contain statements or visible representations that, directly or indirectly, by omission, vagueness, or exaggeration, mislead consumers in relation to impact on the environment of product or service. Generally, any harmful behaviour towards the environment is forbidden.

All advertising claims must comply with the general advertising rules, and regulated industry advertising claims must also comply with any applicable industry specific rules. As noted in 2.3 Substantiation of Advertising Claims, consumers generally have the right to receive true and accurate information on advertised products or services.

Aside from specific regulated claims, there are also special rules regarding trade marks. Namely, a trade mark owner may forbid the use of their trade mark in an advertisement.

The Consumer Protection Law of the BiH sets forth that comparative advertising is any advertising that explicitly or implicitly identifies a market competitor, or goods or services offered by the market competitor.

Generally, comparative advertising in the BiH is allowed in the interest of public and healthy competition, provided that the principle of fair competition is conformed with. The Consumer Protection Law of the BiH goes into detail and stipulates that comparative advertising is allowed if it:

• compares goods and services that meet the same needs or are intended for the same purpose,
• compares one or more material, relevant, confirmed and representative characteristics of goods and services,
• does not create confusion on the market between promoters and market competitors;
• does not discredit or degrade trade marks, trade names, or other recognisable marks, goods, or services of market competitors;
• does not abuse the reputation of a trade mark, trade name, or other recognisable marks of a market competitor or the indicated origin of the competitor's products;
• does not represent goods or services as imitations or replicas of goods and services bearing trade marks or trade names.

Argumentum a contrario, everything that is not allowed by the above rules constitutes unlawful comparative advertising for which advertisers may be fined/liable for damages in general.

Other laws and regulations (please see 1.1 Primary Laws and Regulation) also contain definitions of comparative advertising and additional provisions on this type of advertising. For example, the laws on prohibited advertising specify when comparative advertising is unlawful, as opposed to the Consumer Protection Law which specifies the circumstances in which it is permissible; however, the essence of the rules (provisions) is the same.

Comparative advertising may also be considered a misleading commercial practice, from the perspective of the consumer laws.

Generally, comparative advertising claims are subject to the same standards as other types of advertising. For special rules regarding comparative advertising, see 3.1 Specific Rules or Restrictions.

The advertiser may challenge claims made by a competitor in the civil law proceedings before the competent court and obtain remedies (please see 1.2 Enforcement and Regulatory Authorities).

The BiH laws and regulations do not differentiate social media advertising from other types of advertising. Therefore, the (general) advertising rules found in various laws and regulations (see 1.1 Primary Laws and Regulation), including those covering specific sectors and practices (eg, unfair commercial practices) related to advertising, also apply to social media advertising.

As noted in 4.1 Special Rules Applicable to Social Media, there are no advertising rules specific to social media in the BiH, so marketers face the same challenges as other industries. As such, scattered advertising laws and regulations (see 1.1 Primary Laws and Regulation), generality of advertising-related provisions (see 2.1 Deceptive or Misleading Claims) and lack of publicly known practices of authorities and courts in regard to the application of advertising rules lead to further uncertainty and legal insecurity.

There are other challenges arising from social media advertising, both for regulators and marketers. For example, it is difficult to secure evidence about breaches of advertising laws and regulations. Also, the marketers’ responsibilities can be unclear: in some cases, marketers cannot stop dissemination via social media even if they have removed the content/claim. Furthermore, it may be hard for advertisers/marketers to research and comply with both:

• local laws and regulations; and
• social media platforms’ specific advertising rules.

The liability of advertisers for third-party content on their social media channels is generally limited, in line with the Electronic Legal and Commercial Transactions Law of the BiH, which is partly harmonised with the E-commerce Directive of the EU. Therefore, damage claims are generally not available against advertisers. However, this does not necessarily exclude advertisers from injunction and/or deletion claims issued by the competent courts/authorities.

Also, if an advertiser is notified about illicit content and does not remove it, the advertiser could become culpable (jointly with the main infringer) for the illicit post. In such a case, a damage claim might be possible.

The same disclosure requirements that apply to advertising in general also apply to social media advertising. As noted in 2.3 Substantiation of Advertising Claims, consumers generally have the right to receive true and accurate information on advertised products or services, and the laws and regulations in the BiH that contain advertising rules (see 1.1 Primary Laws and Regulation) stipulate general and broad definitions of unlawful advertising (see 2.1 Deceptive or Misleading Claims), so not making appropriate disclosure may be considered unlawful, although this it would be considered on a case-by-case basis.

Radio and television broadcasting sectors have special advertising disclosure requirements, and these do not explicitly apply to social media. Also, in the RS, the consumer law explicitly stipulates the need to disclose the advertising content as “paid promotion” or similar, otherwise it is considered a breach of commercial practice rules.

Please see 4.1 Special Rules Applicable to Social Media.

There are no special rules that apply to “native advertising” on social media. However, general principles apply (see 4.1 Special Rules Applicable to Social Media and 4.4 Disclosure Requirements).

There are no specific rules for misinformation on topics of public importance. However, advertising must not in any way abuse and/or manipulate with superstition, the fears or credulity of individuals or the public. Likewise, advertising must not encourage potentially harmful behaviour.

The COVID-19 pandemic had an impact on the treatment misinformation (see 1.7 COVID-19, Regulation & Enforcement).

The use of influencers in advertising campaigns has significantly increased in recent years. Many business subjects in the BiH now consider using local (or regional) influencers as a part, or in the spotlight, of their marketing campaigns. The growth and importance of influencers is obvious.

Instagram and YouTube have created an entire new wave of local and regional influencers. As more and more advertisers prefer targeting specific audiences, this has made influencers perfect “tools” to disseminate content.

The absence of a language barrier between some ex-Yugoslavian countries, (eg, the BiH, Croatia, Serbia and Montenegro) and the “diaspora”, BiH citizens or ex-citizens living abroad (especially in Germany and Austria), result in the size of the market for local influencers being raised to more than 20 million. For this reason, a company operating, for example, in the BiH, Croatia, Montenegro and Serbia may engage the same influencer to promote their products/services across all those countries. Alternatively, they may start the marketing campaign in one of the countries, but it is still likely to have an impact in other countries via the online platforms or other disseminating tools. This offers numerous possibilities for influencers and those interested in using them.

Even though influencer-related advertising has become important in recent years (see 5.1 Trends in the Use of Influencer Campaigns), there are no special rules or regulations that apply to it exclusively.

However, the (general) advertising rules found in various laws and regulations (see 1.1 Primary Laws and Regulations), including those covering specific sectors and practices connected to advertising, also apply to influencer campaigns.

Generally, advertisers are not liable for content posted by their influencers because persons in the BiH have personal liability for their actions and/or omissions. However, if the advertiser has control over an influencer’s unlawful actions, then they both may be held (jointly) liable for breach of laws and regulations.

Laws and regulations in the BiH containing advertising rules (see 1.1Primary Laws and Regulation) stipulate general and broad definitions of unlawful advertising (see 2.1 Deceptive or Misleading Claims), and also broadly define the responsibility of both advertisers and their agencies (see 1.5 Private Right of Action for Consumers), so each situation should be examined on a case-by-case basis.

The topic of “fake reviews” has not been addressed by the authorities in the BiH, even though it is widely discussed in public.

Notwithstanding, if there is a causal connection between “fake reviews” and consequent damages, the damaged party may file a claim for compensation of damages with the competent court. Such a claim would be considered based on the applicable laws of contracts and torts. However, it is often hard to identify the person who made the “fake reviews” and civil claims cannot be filed against non-identified persons.

If such damages were caused by employees of a company, then their employer could also be liable, as per the following rules:

• if the employer is responsible for the damage that the employee caused to a third party in the course of work or in connection with the work, unless it proves that the employee acted as they should have in the given circumstances;
• the damaged party has the right to demand compensation directly from the employee if the employee caused the damage intentionally; and
• the employer who compensated the damaged party for the damage caused by the employee, intentionally or in gross negligence, has the right to demand compensation from the employee for the amount paid.

The general advertising rules apply to email marketing (see 1.1 Primary Laws and Regulation). In addition, there are specific rules stipulated by the Electronic Legal and Commercial Transactions Law of the BiH and the Data Protection Law of the BiH.

The consumer protection laws set forth the general principle that, without the consumer’s prior consent, the trader may not use means of distant communication with the consumer, such as telephone, fax, email, etc. Also, the Consumer Protection Law of the RS stipulates that continuously addressing the consumer via telephone, fax, email, etc, represents an unlawful aggressive commercial practice.

As for the specific rules, the Electronic Legal and Commercial Transactions Law of the BiH defines “commercial communications” as advertising and other forms of communication that promote, directly or indirectly, goods and services, or the reputation of a company (entrepreneur), organisation or person engaged in commercial, industrial or craft activity. That said, email marketing is considered as “dissemination of commercial communications” and according to the law, the commercial communications must clearly and unambiguously:

• be recognisable as such;
• indicate at whose request it has been made;
• indicate promotional offers, such as price reductions, premiums, and prizes, as such, as well as the conditions that must be fulfilled to use them; and
• indicate promotional contests or games as such, as well as the conditions that must be met to participate in them.

The Communications Regulatory Agency of the BiH should keep an opt-out register for email communications.

Additionally, the Data Protection Law of the BiH specifies a general opt-out regime for direct marketing. The law does not differentiate between different forms of marketing and stipulates that data subjects have the right to:

• oppose the data controller’s further use or transfer of their personal data for the purpose of direct marketing; and
• be notified before their personal data is transferred for the first time to a third party for direct marketing purposes.

For breaching the above rules, the advertisers may be sanctioned primarily:

• under the consumer protection laws (general rules), with a fine up to (about) EUR4,000;
• under the Electronic Legal and Commercial Transactions Law of the BiH, with a fine up (about) EUR3,000; and
• under the Data Protection Law of the BiH, with a fine up to (about) EUR25,000.

The general advertising rules apply to telemarketing (see 1.1 Primary Laws and Regulation and 6.1 Email Marketing), as well as specific regulations stipulated by the Data Protection Law of the BiH, which are the same as for email marketing (please see 6.1 Email Marketing).

Notwithstanding the above, please note that unsolicited telemarketing is not explicitly prohibited in itself and that the authorities in the BiH have not established a “no-call” register, as exists in the EU countries.

Please see 6.1 Email Marketing, as the same applies to text messaging.

Please note that the “no-call” (including SMS/MMS) register has not been established in the BiH.

The Data Protection Law of the BiH specifies a general opt-out regime for direct marketing (including if connected with targeted/interest-based advertising). The law does not differentiate between different forms of marketing and stipulates that data subjects have the right to:

• oppose the data controller’s further use or transfer of their personal data for the purpose of direct marketing; and
• be notified before their personal data is transferred for the first time to a third party for direct marketing purposes.

For breaching the above rules, the advertiser may be fined up to (about) EUR25,000.

As targeted/interest-based advertising is now mostly connected with “cookies” (tracking technologies), it is worth pointing out that tracking technologies have not yet been regulated in the BiH, but the general data protection principles from the Data Protection Law of the BiH also apply to them. In practice, this means that potential subjects of tracking technologies must give consent for their use and be informed on all aspects of processing of their personal data in connection with the technologies.

In BiH, a child is defined as any person under the age of 18 and, generally, acting in the best interest of children is one of the core principles of the BiH legislation. Both the rules from the general rules and special rules apply to marketing to children.

The consumer protection laws and the laws on prohibited advertising (see 1.1 Primary Laws and Regulation) in general provide that every advertisement must respect principles protecting minors; therefore, advertising messages must not be unethical, act unworthy, or fraudulent, or contain elements that cause or could cause physical, mental or other harm to children, or contain elements that exploit or abuse, or could abuse, their gullibility or inexperience. Further, the RS laws consider encouragement of children through advertisements to buy or influence parents or other adults to buy for them as (unlawful) aggressive business practices.

Aside from the general principles, special rules related to advertising to children are found throughout various sector-specific laws and regulations (see 1.1 Primary Laws and Regulation). For example, regarding television and radio broadcasting, the Communications Law of the BiH and its by-laws (Code of Commercial Communications of the BiH) set forth general principles:

• commercial communications that encourage behaviour that could endanger the health, psychological and/or moral development of children are prohibited; and
• commercial communications intended for children or involving children will avoid anything that could endanger their interests and shall be considerate of their special sensitivity.

Code of Commercial Communications of the BiH goes further into specifics and, among other limitations related to children, establishes the “no-broadcast” rules at around children’s programmes – 15 minutes before, during, and 15 minutes after a children’s programme – for alcoholic beverages, beer, medicines, medical treatments, aids, and devices, including dietary supplements, medical institutions, means of regulating body weight, ignition devices, inflammable and other hazardous substances, religious messages, and games of chance. Other special rules are found in other sector-specific laws and regulations (please see 8.Sports Betting/Gambling and 10.1 Regulated Products).

Sweepstakes (promotional chance-based games) and contests are generally permissible in the BiH, as long as the games do not qualify as a “gambling game” or “classic games of chance” (eg, games in which the participants are specifically charged for entry), in which case there are other requirements to consider in accordance with applicable laws and regulations.

Registration/filing with the competent authorities is required to offer a chance-based game and their approvals are mandatory to conduct the game. The procedure differs depending on where in the BiH the game is being organised, as all three entities/units in the BiH (the FBiH, the RS, and the BD) have individual laws on games of chance, which cover the promotional games as well. The procedures in the entities/units are separate, and games (including the rules of each individual game) need to be approved in each entity/unit in which they are organised.

There are associated administrative costs:

• in the FBiH and the BD, the organiser must pay 6% of the total prize fund for charitable purposes; and
• in the RS, the organiser must pay 10% of the total prize fund to the competent authority.

The documentation to prove such payment has to be delivered alongside the filing. There may also be other administrative costs connected with the procedure, such as costs for publishing the rules of the promotional chance-based game in a local newspaper.

Organisers must not conduct promotional chance-based games without prior approval, and there are no specific timescales within which the competent authorities must give approvals; it is decided on a case-by-case basis, taking into consideration the specifics of each filing. 

Skill-based games are not specifically regulated in the BiH; therefore, whether they are distinguished from games of chance depends on several factors, such as the specifics of the skill-based game, contractual or other relations between the organiser and the participants, etc.

The applicable laws and regulations do however define games of chance as games in which the participant is given an opportunity to win money, goods or services for a fee, in which the win or loss does not depend on the knowledge or skill of the player, but on chance or some uncertain event.

The question of whether a skill-based game falls into the category of games of chance would have to be considered on a case-by-case basis. If it does, then the applicable laws on games of chance apply and the game has to be organised according to special rules and requirements (please see 7.3 Registration and Approval Requirements); if not, it is not necessary to get prior approval/register the game and, in general, the civil codes apply.

Games of chance must be registered and approved by the competent authorities (the organiser must get a licence), while registration and approval are not required for contests of skill in principle (please see 7.2 Contests of Skill and Games of Chance).

As all the three entities/units in the BiH (the FBiH, the RS, and the BD) have individual laws on games of chance, and as the registration procedures in the entities/unit are separate, approval(s) need to be obtained separately in each of the entities/units where games of chance are to be offered. In the FBiH, the registration procedure is operated by the Ministry of Finance of the FBiH; in the RS by the Ministry of Finance of the RS – Special Games of Chance Department; and in the BD by the Tax Authority of the BD.

Games of chance sectors are highly regulated areas and the registration procedures (with the above identified authorities) are slightly different in the FBiH, the RS and the BD, and primarily depend on the type of games of chance that are intended to be organised. Also, the term “games of chance” includes a wide range of games, such as lotteries, raffles, sports forecast, gambling, electronic gambling games, etc.

Notwithstanding the above, the registration procedures can be summarised as follows:

• organisers need to be local companies (limited liability companies or joint stock companies), and the companies may be examined by the authorities regarding their current and prior business activities, creditworthiness, tax and other obligations and similar;
• the approvals/licences are given for each individual game of chance;
• the companies may need to have appropriate share capital in order to get the approval/licence for some of the games;
• technical, security and other similar requirements may be assessed by the competent authorities during the registration procedure;
• issued bank guarantees may be one of the requirements for getting approvals/licences for individual games of chance;
• the approval/licence may be denied if the market/particular game of chance is “overcrowded”;
• the approvals/licences are issued for a limited time and the organisers undergo inspections during their operations; and
• companies can lose the approvals if they fail to comply with general requirements and specific requirements for individual games of chance.

Please note that the procedures and requirements may also differ for each individual game of chance.

There are no loyalty programme-specific laws and regulation, but the general rules apply – commercial practices, consumer rights and advertising rules (see 1.1 Primary Laws and Regulation).

General personal data protection rules are very important when considering loyalty programmes. The Personal Data Protection Law of the BiH, and its connected by-laws, contain the key general rules applicable to loyalty programmes in the BiH. The application of the law is furthermore shaped by the opinions and decisions of the Data Protection Agency of the BiH, and the decisions of the courts of the BiH issued in the legal remedy proceedings against the agency’s decisions. However, the opinions and decisions of the agency and the court should not be taken as definitive and final, but rather each situation should be examined on a case-by-case basis.

The BiH laws and regulations contain special rules that apply to free or reduced-price offers.

Firstly, the trader/seller must announce the sale of the product as considered regular for the place of sale and the product in question and there must be correlation between general sale announcement and average sale percentage (if there are several/many products on sale). The product must be clearly and visibly marked with the price before and after the discount. Furthermore, if a short expiration date of the product is the cause of the discount, the expiration date must be marked in a visible way.

Automatic renewal/continuous service offers are regulated by:

• the consumer protection laws - general consumer contracts and distance consumer contracts (the BH and the RS); and
• the laws on contracts and torts (the FBiH and the RS).

General consumer contract rules can be summarised as follows:

• the content of the contract must be made available to the consumer; the contract is not binding for the consumer if they were not familiar with it;
• consumer contract provisions must be comprehensible;
• in case of a doubt, consumer contract provisions are always applied in the consumers’ favour; and
• unfair contractual provisions (eg, significant inequality between the parties, unjustified expectations, breach of the principle of good commercial practices) or provisions that may cause damage to the consumer are null and void.

Therefore, any unfair automatic renewal/continuous offers could be null and void if against the general contract rules above. Notwithstanding, the consumer laws also go into specifics of automatic renewals/continuous services. The Consumer Protection Law of the BiH stipulates that, regarding standard form contracts, automatic renewals for a one-year period or above are automatically considered as unfair contractual provisions. The Consumer Protection Law of the RS also goes into specifics of automatic renewals/continuous services: it is considered that a contractual provision is unfair if it establishes automatic extension of the contract in case the consumer does not declare they are terminating the contract a certain period after the contract has expired if that period is reasonably considered as short.

Aside from the consumer laws, laws on contracts and torts contain general provisions that apply to all contracts and contractual relationship, unless explicitly stipulated otherwise. The general rule is that silence of the person receiving the offer does not mean the acceptance of that offer, unless the persons are in a permanent business relationship considering goods from the offer, which would be assessed on a case-by-case basis.

Sports betting and other forms of gambling are generally permissible in the BiH but are highly regulated. They are considered as “games of chance” and laws on games of chance and their connected by-laws are applicable. Please see 7.3 Registration and Approval Requirements. The same applies to sports betting and other forms of gambling.

There are special rules that apply to the advertising and marketing of sports betting and gambling, aside from the general rules that apply (see 1.1 Primary Laws and Regulation).

Generally, the special rules apply to children – persons under the age of 18 (see 6.5 Marketing to Children). Advertisements related to games of chance may not be broadcast on radio and television shows, nor may they be published in printed material and internet platforms intended for children and young people. Also worth noting is that foreign games of chance may not be advertised in the BiH.

The BD has gone a step further, indicating social responsibility in connection with sports betting and gambling advertisements. Advertisements must underline the prevention of gambling addictions and state that gambling is not a reasonable strategy to acquire financial benefits.

Currently, there is no specific regulation governing the sale or advertising of cryptocurrencies and/or NFTs.

Consequently, advertising of these products is not prohibited and must comply with the general advertising rules and consumer protection laws (see 1.1 Primary Laws and Regulation).

Also, generally, there is no legislation (even outside of advertising) specifically directed at cryptocurrencies and/or NFTs. The Central Bank of Bosnia and Herzegovina, however, issued an opinion that cryptocurrencies should be viewed as assets (ie, financial instrument) and not as money, until the BiH legislation reaches the point of upgrading its laws and regulations specifically for the subject matter.

Currently, there are no special laws and regulations that apply to advertising within the metaverse.

Consequently, such advertising is not prohibited and must comply with the general advertising rules and consumer protection laws (see 1.1 Primary Laws and Regulation).

The authorities in the BiH have not yet publicly considered any issues regarding advertising in the metaverse.

There are no specific laws and regulations that apply to digital advertising platform and the use of adtech, in relation to advertising.

For general rules applicable to digital platforms and adtech, see 1.1 Primary Laws and Regulation.

Please see 6.4 Targeted/Interest-Based Advertising for personal data protection rules. Also, please see 4.3 Liability for Third Party Content.

Besides the general rules, the BiH has particular regulations that apply to regulated products (see 1.1 Primary Laws and Regulation).

Food

The Food Act of the BiH and its connected by-laws, as well as the Food Act of the RS and its connected by-laws, provide special advertising rules regarding food. In general, food advertisements must not:

• mislead the consumer/customer about characteristics, effects or properties;
• attribute medicinal and/or preventive properties;
• hint at special characteristics when in fact all similar foods have the same or similar characteristics

These provisions also apply to advertising claims. Please note that the food sector has many by-laws for specific types of food that further may contain special advertising rules. For example, alcohol advertising is specifically regulated from the advertising perspective, in additional to general rules and special rules for food advertising which also apply. The by-laws relating to alcohol contain a set of highly complex rules that are different for different types of alcohol/alcoholic drinks. Commercial communications related to alcoholic beverages must not:

• be aimed specifically at minors;
• link the consumption of alcohol with improved physical abilities or driving a motor vehicle;
• claim that alcohol has medicinal properties or similar;
• encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
• put emphasis on the high alcohol content as a positive quality of alcoholic beverages; and/or
• create the impression that consumption of alcohol contributes to social or sexual success.

See also 6.5 Marketing to Children for details on restrictions in relation to children.

Additionally in the food sector, there are special advertising rules for infant formulas, food for special nutritional uses, food supplements, etc.

Tobacco

Tobacco advertising (tobacco, cigarettes, and similar products) is also specifically regulated in tobacco-related laws (the FBiH, the RS and the BD). Generally, advertising of tobacco and related products is prohibited. Parties are prohibited from engaging in any form of advertising, promotion and other forms prescribed by law that can be considered providing information or suggestions of use in favour of tobacco products. There are several very limited and clearly defined exceptions.

Cannabis

In the BiH, cannabis is illegal and possession of even a small amount may be punished by fines, arrest, and even imprisonment.

Drugs, Medical Equipment, Medicines, etc

Drugs and medical devices are also specifically regulated in the BiH, from the advertising perspective. The specific rules can be summarised as follows:

• advertising of medicinal products must be in accordance with the approved instructions and summarise the main characteristics of the medicinal product;
• advertising of medical devices must be in accordance with the approved instructions; and
• it is prohibited to advertise pharmaceutical products and medical devices that are available by medical prescription only.

See also 2.5 Human Clinical Studies related to drugs and medical devices.

In addition to those mentioned in 1.1 Primary Laws and Regulation and 10.1 Regulated Products and other sections, there are several products and/or services that are subject to special advertising rules.

Weapons, ammunitions, and similar products cannot generally be advertised.

Regulatory authorities overseeing the banking sector have extensive powers and can intervene in advertising practices. The same applies to the insurance sector and brokerage. All of these are considered on a case-by-case basis.

Special advertising practices may also be found in “regulated” professions such as attorneys-at-law (practicing lawyers) and public notaries. For example, public notaries may not advertise at all. Attorneys-at-law, on the other hand, must be members of bar associations, which have the authority to self-regulate the advertising practices for their members.