Misleading advertising

The Directive provides for a minimum level of protection throughout Europe as concerns misleading advertising, and it fully harmonises the rules of the EU countries on comparative advertising.

Since the implementation of the Directive on Unfair Commercial Practices [139 KB] , the scope of application of the Misleading and Comparative Advertising Directive has been restricted to business-to-business (B2B) relations concerning misleading advertising.

Its provisions on comparative advertising also apply in the context of advertising directed at consumers.

The Commission will issue a Communication on the review of the Directive, as foreseen by the Action Plan implementing the Stockholm Programme [169 KB] .

In this Communication, the Commission will also address the issue of the "Misleading Directory Companies" whose practices affect several European businesses. The Communication will explore possible options for improving the current legislative framework.

Misleading Advertising

According to the Directive, misleading advertising is any advertising which, in any way, including in its presentation, is capable of:

• deceiving the persons to whom it is addressed;
• distorting their economic behaviour; or
• as a consequence, harming the interests of competitors.

When determining whether advertising is misleading, several factors shall be taken into account. These are:

• the characteristics of the goods or services concerned;
• the price;
• the conditions of delivery of the goods or provision of the services involved;
• the nature, attributes and rights of the advertiser.

Comparative Advertising

The Directive lays down the conditions under which comparative advertising is permitted and, in particular, it requires traders to make sure that their advertisements:

• are not misleading;
• compare "like with like" - goods and services meeting same needs or intended for the same purpose;
• objectively compare important features of the products or services concerned;
• do not discredit other companies trademarks;
• do not create confusion among traders.

Remedies

The enforcement of this legislation is the responsibility of the competent authorities and courts in the EU countries.

The Directive requires the EU countries to set up adequate mechanisms that enable persons and organisations having a legitimate interest to bring an action to the competent courts or administrative authorities for the cessation and/or the prohibition of misleading or unlawful comparative advertising.