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Update and simplification of The Danish Marketing Practices Act

The Danish Marketing Practices Act is facing its first major change since 2005.

The Danish Ministry of Business and Growth has recently published a report with suggestions to a new Marketing Practices Act (in the following MPA). The suggestions in question concern both material, linguistic and legal changes.

Please follow this link to view the report (in Danish) in its entirety here:

http://www.kfst.dk/Indhold-KFST/Publikationer/Dansk/2016/20160701-Rapport-fra-udvalg-om-markedsfoeringsloven?tc=E538038EB1E04A96B9964BE4C0F85F46

Background

The present MPA is deemed to be outdated in view of the fast technological development. Besides, on some points, the MPA is deemed to be difficult to get an overall view of and at some parts unclear, and some of the provisions are found to be overlapping and rendered as a consequence of recent years’ adjustments.

Last, but not least, the intended change of the MPA is due to the fact that the EU Commission deems Denmark’s implementation of the Directive on Unfair Commercial Practices (2005/29/EU) to be insufficient.

The Minister for Business and Growth has stated the following in respect of the intended change of the MPA:

‘The Danish Marketing Practices Act affects all Danish consumers and businesses. The act shall make sure both that businesses are able to compete effectively, and that the consumers are appropriately protected against e.g. very aggressive marketing. It is also to ensure a good balance between the consumers receiving the relevant information they need to enable them to make active choices, while simultaneously exaggerated and superfluous disclosure requirements are not imposed on the businesses.’ (www.evm.dk)

What do the changes mean to you?

Provided the most central changes of the legislative proposal are adopted, they will mean:

  • that businessmen will be able to market themselves unsolicited more easily towards consumers via e-mail. ”Corresponding products or services” will be subject to a wider interpretation, and it will thus be decisive which expectations the businessman has created at the consumer’s end. Businessmen will thus be able to market e.g. sails to the consumer if he/she has previously given his/her consent to marketing of boat sales via e-mail. 
  • that businessmen can, without prior consent, market themselves to another businessman if there has been commercial contact between the parties within the past year. By ’commercial contact’ is intended not only an existing client relation, but also business meetings, courses, exchange of business cards, etc. However, the marketing must be relevant to the job function of the recipient.
  • that, upon grant of a guarantee, a Danish language requirement applies only if the marketing of the relevant product/service takes place in Danish.  
  • that the MPA’s provision in respect of business signs is subject to private prosecution in respect of penal sanctions (as is already the case pursuant to the Danish Trademarks Act).
  • that the Consumer Ombudsman’s powers of inspection are such that the Consumer Ombudsman can, during inspections at the defendant’s premises,  take away electronic copies of material relevant for the complaint procedure, including also confidential material not comprised by the court order.
  • that the general clause in section 1 of the MPA is divided into two separate provisions re good practice, including:
    1) Fair trading practice: (governs good practice between businessmen, general decency, governance of the law of contract as well as health and security), and
    2) Fair business practice: (governs the financial interests of the consumers).
  • that the provision in respect of misleading and unfair marketing is divided into four independent provisions, including misleading actions, misleading omissions, aggressive trading practice and misleading conduct between businessmen.

Other suggested amendments include that the MPA’s provisions in respect of hidden advertising and solicitations to buy as well as promotional measures are incorporated into the new provision in respect of misleading omissions. It is suggested that the requirement for price information on services by display is abolished, whereas the requirement for price information on goods remains almost unchanged.

Coming into force

The legislative proposal has been submitted for hearing and is subsequently to be adopted by the Danish Parliament. If the legislative proposal is adopted, the new Danish Marketing Practices Act is expected to come into force on 1 July 2017.

Questions

Zacco’s legal department is at your disposal if you have any questions to the proposed amendments or to marketing law aspects in general.