The Audiovisual Media Services Directive (AVMSD) regulates also the audiovisual commercial communication. Audiovisual commercial communication refers to the promotion of goods and services in the audiovisual world, particularly television advertising and shopping, sponsorship and product placement.

Audiovisual commercial communication is a term that describes various forms of promotion of goods and services, as regulated by EU law under the Audiovisual Media Services Directive.
Broadly, the term covers:

  • television advertising;
  • sponsorship;
  • teleshopping;
  • product placement.

It reflects the directive’s scope – covering television, on-demand services and emerging advertising techniques.

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Article 1 (1) h
"Audiovisual commercial communication" means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement.

Television advertising & teleshopping

Basic rules

Television advertising and teleshopping are subject to the basic rules, as types of audiovisual commercial communications.

However, they are also subject to a set of tighter controls than other types of audiovisual commercial communications.

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Article 1
  • (i)"television advertising" means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment;
  • (l)"teleshopping" means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment;

Extra restrictions

Presentation and content

Advertising and teleshopping:

  • must be easily recognisable, distinguished as such by auditory and visual means (though this principle should not prevent the use of new advertising techniques);
  • should, where possible, not be isolated (apart from broadcast sports events);
  • are not permitted for prescription medication and tobacco products;
  • for alcoholic drinks must comply with specific restrictions.

Quantity and frequency

  • Duration - advertising and teleshopping spots may not take up more than 20% of any given hour of broadcasting time.
    Exceptions:
    • broadcasters' announcements about their own programmes or ancillary products derived from them;
    • public service messages and charity appeals broadcast free of charge;
    • teleshopping windows must last at least 15 minutes and be clearly identifiable.
  • Insertion - advertising and teleshopping:
    • should preferably be inserted between programmes – but where inserted during programmes, should not harm the integrity of the programme or rights holders' interests;
    • may be inserted during children’s programmes, films and news programmes only once in each scheduled period of at least 30 minutes.
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CHAPTER VII
Television advertising and teleshopping

Article 19

  1. Television advertising and teleshopping shall be readily recognisable and distinguishable from editorial content. Without prejudice to the use of new advertising techniques, television advertising and teleshopping shall be kept quite distinct from other parts of the programme by optical and/or acoustic and/or spatial means.
  2. Isolated advertising and teleshopping spots, other than in transmissions of sports events, shall remain the exception.

Article 20

  1. Member States shall ensure, where television advertising or teleshopping is inserted during programmes, that the integrity of the programmes, taking into account natural breaks in and the duration and the nature of the programme concerned, and the rights of the right holders are not prejudiced.
  2. The transmission of films made for television (excluding series, serials and documentaries), cinematographic works and news programmes may be interrupted by television advertising and/or teleshopping once for each scheduled period of at least 30 minutes. The transmission of children's programmes may be interrupted by television advertising and/or teleshopping once for each scheduled period of at least 30 minutes, provided that the scheduled duration of the programme is greater than 30 minutes. No television advertising or teleshopping shall be inserted during religious services.

Article 21
Teleshopping for medicinal products which are subject to a marketing authorisation within the meaning of Directive 2001/83/EC, as well as teleshopping for medical treatment, shall be prohibited.

Article 22
Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

  • it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;
  • it shall not link the consumption of alcohol to enhanced physical performance or to driving;
  • it shall not create the impression that the consumption of alcohol contributes towards social or sexual success;
  • it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
  • it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
  • it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.

Article 23

  1. The proportion of television advertising spots and teleshopping spots within a given clock hour shall not exceed 20%.
  2. Paragraph 1 shall not apply to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes, sponsorship announcements and product placements.

Article 24
Teleshopping windows shall be clearly identified as such by optical and acoustic means and shall be of a minimum uninterrupted duration of 15 minutes.

Article 25
This Directive shall apply mutatis mutandis to television channels exclusively devoted to advertising and teleshopping as well as to television channels exclusively devoted to self-promotion.
However, Chapter VI as well as Articles 20 and 23 shall not apply to these channels.

Article 26
Without prejudice to Article 4, Member States may, with due regard for Union law, lay down conditions other than those laid down in Article 20(2) and Article 23 in respect of television broadcasts intended solely for the national territory which cannot be received directly or indirectly by the public in one or more other Member States.

Sponsorship

Sponsorship means any contribution made by undertakings or natural persons not engaged in the provision or production of audiovisual works, to the financing of audiovisual media services or programmes with a view to promoting their name, trade mark, image, activities or products.

Article 1

The decisive criterion distinguishing sponsorship from product placement is the fact that in product placement the reference to the product is built into the action of a programme. In contrast, sponsor references may be shown during programmes but are not part of a plot.

Distinction between sponsorship and advertising spot should be drawn using the purpose of these forms of audiovisual commercial communications. The purpose of sponsorship is to promote the sponsor's name, trademark, image, activities or products by contributing to the financing of programmes. The sponsored programmes, unlike advertising, may not make special promotional references.

Sponsors shall influence neither the content nor the scheduling of the programme. They shall not encourage the purchase of a product or service.

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Article 1(1)(k)
"Sponsorship" means any contribution made by public or private undertakings or natural persons not engaged in providing audiovisual media services or in the production of audiovisual works, to the financing of audiovisual media services or programmes with a view to promoting their name, trade mark, image, activities or products.

Article 10

Sponsors must be clearly identified as such in an appropriate way for programmes at the beginning, during and/or the end of the programmes.

Pharmaceutical companies may sponsor broadcasts but will still not be able to promote specific medicines or medical treatments. Sponsorship of programmes by undertakings whose main activity is manufacture or sales of tobacco products is prohibited.

News and current affairs programmes may not be sponsored.

Member States may choose to prohibit the showing of a sponsorship logo during children's programmes, documentaries and religious programmes.

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Article 10
  1. Audiovisual media services or programmes that are sponsored shall meet the following requirements:
    • their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
    • they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
    • viewers shall be clearly informed of the existence of a sponsorship agreement. Sponsored programmes shall be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at the beginning, during and/or at the end of the programmes.
  2. Audiovisual media services or programmes shall not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.
  3. The sponsorship of audiovisual media services or programmes by undertakings whose activities include the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking, but shall not promote specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.
  4. News and current affairs programmes shall not be sponsored. Member States may choose to prohibit the showing of a sponsorship logo during children's programmes, documentaries and religious programmes.

Product placement

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Article 1(1)(m)
"Product placement" means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consideration;

Product placement, in contrast to sponsorship messages, is built into the action of a programme whereas sponsor references may be shown during the programme but are not part of the plot.

Requirements for derogation

  • Product placement against payment is only allowed in certain kinds of programmes (cinematographic works, films and series made for audiovisual media service, sports and light entertainment programmes). It is prohibited in children's programmes. In contrast product placement provided free of charge (production props or prizes) is allowed in all programmes including children's programmes.
  • Member States are able to adopt stricter rules and choose to opt-out of such provisions allowing product placement totally or partially (i.e. by prohibiting product placement in some programmes, such as documentaries).
  • Programmes featuring product placement should comply with a set of criteria (editorial independence of the media service provider, no undue prominence given to the product or service referred to, etc). Moreover, product placement may not be used in order to promote supply of the products or services.
  • Viewers must be clearly informed about the existence of product placement. The product placement should be appropriately identified at the start and at the end of the programme and when programme resumes after an advertising break. However, Member States may decide not to apply this requirement to programmes that have neither been produced nor commissioned by the media service provider itself.
  • Product placement of tobacco products and medicinal products for prescription is prohibited under any circumstances.
  • If product placement is surreptitious it should also be prohibited
  • The rules on product placement should only apply to programmes produced after 19 December 2009.
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Article 11

  1. Paragraphs 2, 3 and 4 shall apply only to programmes produced after 19 December 2009.
  2. Product placement shall be prohibited.
  3. By way of derogation from paragraph 2, product placement shall be admissible in the following cases unless a Member State decides otherwise:
    • in cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes;
    • where there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme.
    • The derogation provided for in point (a) shall not apply to children's programmes.

Programmes that contain product placement shall meet at least all of the following requirements:

  • their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
  • they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
  • they shall not give undue prominence to the product in question;
  • viewers shall be clearly informed of the existence of product placement. Programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer.

By way of exception, Member States may choose to waive the requirements set out in point (d) provided that the programme in question has neither been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider.

  1. In any event programmes shall not contain product placement of:
    • tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products;
    • specific medicinal products or medical treatments available only on prescription in the Member State under whose jurisdiction the media service provider falls.

Self- and co-regulation

The AVMSD imposes an obligation on Member States to encourage co- and self-regulation and encourages media service providers to develop codes of conduct regarding audiovisual commercial communications accompanying or included in children's programmes of foods high in fat, salt and sugar (HFSS).

Article 4

The AVMSD imposes an obligation on the Member States to encourage co-regulation and self-regulation at national level in the fields coordinated in the Directive (e.g. advertising, protection of minors, accessibility,) to the extent permitted by their legal systems. The systems adopted at national level should be broadly accepted by the main stakeholders in the Member State concerned and provide for effective enforcement.

The provision gives Member States wide margin of discretion as to the means of encouragement. Depending on whether the transposition is done by a Member State with long tradition of self-regulation or by a Member State where self-regulation is hardly or only recently being used, the transposition measures differ significantly.

The Commission monitors the implementation of this provision through regular monitoring activities (application reports).

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Article 4(7)

Member States shall encourage co-regulation and/or self- regulatory regimes at national level in the fields coordinated by this Directive to the extent permitted by their legal systems. These regimes shall be such that they are broadly accepted by the main stakeholders in the Member States concerned and provide for effective enforcement.

Article 9

The AVMSD imposes an obligation on Member States and the Commission to encourage media service providers to develop codes of conduct regarding audiovisual commercial communications accompanying or included in children's programmes of foods High in Fat, Salt and Sugar (HFSS).

The Commission and Member States are therefore obliged to address media service providers (both traditional and on-demand) and encourage them to develop codes of conduct in the respective area.

Their activities or lack of activities will be subject to monitoring and reporting obligation.

The term "codes of conduct" refers to voluntary rules (self-regulation) set by the audiovisual media service providers themselves or in cooperation with other sectors (e.g. food, advertising industry).

The codes should cover audiovisual commercial communications -thus inter alia traditional television advertising, sponsorship, teleshopping and product placement – of food and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, tarns-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended (High in Fat, Salt and Sugar foods).

The definition of the term HFSS foods can be found in the Regulation 1924/2006 on heath claims. The specific nutrient profiles established by the Commission help to identify the products that comply with that definition.

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Article 9(2)
Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.

General rules for audiovisual commercial communications

All audiovisual commercial communications (TV and on-demand) must:

Main provisions:

  • be readily recognisable;
  • not use subliminal techniques;
  • not use surreptitious techniques;
  • respect human dignity;
  • not include/promote discrimination (e.g. based on sex, nationality, religion);
  • not encourage behaviour harmful to health (see codes of conduct on fatty food);
  • safety or the environment;
  • not promote tobacco or prescription medication.

Protection of minors

Audiovisual commercial communications:

  • must not cause physical or moral harm to minors;
  • must not directly exploit minors’ inexperience or credulity;
  • must not encourage minors to pressurise parents to make a purchase.

Further, audiovisual commercial communications for alcohol must not be aimed at minors or encourage excessive alcohol consumption

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Article 9(1)
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
  • audiovisual commercial communications shall be readily recognisable as such.
    Surreptitious audiovisual commercial communication shall be prohibited;
  • audiovisual commercial communications shall not use subliminal techniques;
  • audiovisual commercial communications shall not:
    • prejudice respect for human dignity;
    • include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
    • encourage behaviour prejudicial to health or safety;
    • encourage behaviour grossly prejudicial to the protection of the environment;
  • all forms of audiovisual commercial communications for cigarettes and other tobacco products shall be prohibited;
  • audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages;
  • audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited;
  • audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.