Good marketing practice

The Danish Marketing Practices Act provides the framework for how businesses may advertise their products lawfully. In addition to complying with the specific requirements of the Marketing Practices Act, Danish businesses must also comply with ‘good marketing practice’ and ‘good commercial practice’. Good marketing practice and good commercial practice mean that marketing cannot be misleading or false. However, it can be a difficult balancing act to fulfil these requirements.

Gorrissen Federspiel has many years of experience assisting businesses in complying with the latest rules of good marketing practice. Below, you can read more about the rules governing the area and some of the recent issues we have advised on.

The definition of good marketing practice and good commercial practice

Good marketing practice derives from section 3 of the Marketing Practices Act, which is the general provision of the Marketing Practices Act. A general provision may serve two purposes: it may either establish a general legal position applying to all cases not covered by specific provisions of an act or it may provide a general authorisation to do something that is not covered by specific provisions.

A general provision ensures that situations do not arise which are not covered by the act because there is no case law in the area.

The general provision states that “Traders shall exercise good marketing practice with reference to consumers, other traders and public interests.”

Section 4 refers to good commercial practice and covers largely the same as good marketing practice.

Generally, both provisions state that Danish businesses must ‘behave properly’ towards consumers when marketing their products and services.

Selected examples of good marketing practice

Good marketing practice covers several different elements related to marketing by businesses. Specifically, complying with good marketing practice means the following:

1. You are responsible for providing accurate and informative information about a product or service to your customers.
   Example: You must not mislead your customers about what your product can or should be used for or what materials are used in the product.

2. It is important to disclose the total price of your products or services to avoid confusion and misrepresentation.
   Example: All prices, both variable and fixed and, where applicable, the total price over a fixed period, must be clearly indicated.

3. Misleading, aggressive or unfair marketing is not allowed, as it may harm consumers and your reputation.
   Example: You may not threaten customers, take advantage of special circumstances or make it unnecessarily difficult to terminate a business relationship and select another provider of a service or product.

4. You are only allowed to send promotional emails to consumers who have agreed to receive them.
   Example: You may not contact businesses or individuals via email addresses collected without complying with the rules.

5. If changes are made to fees or new fees are added to an existing agreement, you must give your customers reasonable notice.
   Example: A bank cannot raise interest rates on its loans overnight. Customers are therefore often given 2-3 months’ notice to allow them to consider whether they want to continue or terminate the agreement.

6. To avoid confusion and misunderstandings, it is important to advertise in a way that clearly indicates that it is advertising.
   Example: Advertorials published in Danish media and at Danish websites in general must clearly indicate in writing, with images or otherwise that they are sponsored content.

Interpretation and breach of good marketing practice

It is the Danish Consumer Ombudsman’s task to supervise compliance by Danish businesses and individuals with the provisions of the Marketing Practices Act. The courts are responsible for interpreting and enforcing the provision on good marketing practice. The interpretation of this provision is therefore not static and is constantly evolving to adapt to new technologies, new markets and developments in society.

Breach of the provision on good marketing practice or good commercial practice may result in an order.

An order may be seen as a legal yellow card for the business’ marketing behaviour. If, subsequently, the business fails to comply with the order, a fine may be imposed.

Actual breaches of the Marketing Practices Act are often punishable by a fine, including on the basis of the revenue of the business.

Our marketing law team

Gorrissen Federspiel has established a group specialising in marketing law, rooted in our knowledge of and experience in all aspects of marketing law.

Our dedicated team deals with all aspects of marketing and consumer law and consists of highly qualified attorneys with extensive experience in the field.

Our team includes former Consumer Ombudsman and Advocate General at the Court of Justice of the European Union Henrik Saugmandsgaard Øe, which gives us unique insight into both the authorities’ handling of marketing law issues and the underlying EU law regulation.

Our specialised knowledge combined with our insight into the current challenges affecting businesses’ choice of marketing strategy forms the basis of our advice on marketing and consumer law.

We assist both Danish and foreign companies with specialised advice and preparation of litigation in a wide range of areas, including:

• Disputes and infringements, particularly in cases of comparative and misleading marketing and product imitations.
• Green marketing, particularly in cases of greenwashing and issues of misleading/non-misleading green marketing in relation to documentation requirements.
• Price marketing, particularly in cases of the lawfulness of promotional campaigns.
• E-commerce, particularly in cases of website design requirements, online payments, email marketing and compliance with spam and consent rules.
• Clearing of marketing campaigns and advertising, both on and offline.
• General consumer law.
• Negotiations with authorities, including obtaining advance indications from authorities.
• Preparation and implementation of compliance programmes to comply with the rules of marketing law and data protection law, including advice in relation to customer clubs, websites and apps.

Get professional assistance from Denmark’s leading marketing attorneys

Whatever challenge you and your business are facing, we can help you. Gorrissen Federspiel provides legal assistance based on solid commercial understanding. In this way, we best serve the interests of your business. We understand your business, its services, products and the challenges you are facing.