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As a general rule, all advertising directed to Swiss consumers is governed by Swiss law. Local law does not only apply to advertising distributed by Swiss broadcasters and media, but also to advertising placed in foreign media, insofar as Swiss consumers are directly targeted (article 136 Law on International Private Law). This is particularly true for the "Swiss advertising windows", i.e. specific advertising placed in foreign television and radio programmes, but addresses Swiss consumers only.
Such advertising practice was challenged by the Swiss public broadcaster in 2010 as it was considered to be, among other things, an unfair competitive advantage (decision of the Swiss Supreme Court 4A_203/2009). Today, Swiss advertising windows are common rule as is the application of Swiss law in respect of their content.
Swiss law provides for strict advertising rules aimed at consumer protection. Often unknown to foreign broadcasters is the strict ban on advertising of lotteries, games of chance and betting (also online) activities that are not expressly authorised by the Swiss cantonal authorities, such as games of chance that take place outside Switzerland. Contrary to the practice of most European countries, in Switzerland games of chance or contests that require a payment of fees or a contribution in kind can only be conducted and promoted by cantonal authorities; private betting and lottery activities are generally forbidden.
Accordingly, advertising promoting foreign lotteries and online games of chance are currently strictly forbidden. The revised legislation on lottery and betting, that will most likely come into force in 2016 (Swiss Federal Gazette 2015 1499) will provide a more flexible rule for online games of chance, but still the promotion of foreign (online) games of chance will remain forbidden. Moreover, the access to foreign online games of chance for Swiss residents could be blocked by technical means by Swiss authorities.
An advertising ban in radio and television programmes also exists for tobacco products and spirits (or containing spirits, such as alcopops) (article 10 para. 1 lit. a and b Law on Radio and TV). Other alcoholic beverages can only be advertised if not directed at minors and not promoting direct sales (Art. 16 Ordinance on Radio and TV). Similar rules for advertising of alcoholic beverages apply to the advertising in other media (article 11 para. 3 Ordinance on Foodstuff and Da-to-Day Products).
In print and online media, tobacco products can be advertised only to an adult public and under strict limitations. Among others, the advertising shall not be directed to and incite consummation by minors (Art. 18 Ordinance on Tobacco Products). Tobacco advertising must also clearly provide a health warning disclaimer and all kinds of promotion that may be understood as minimising the health risk of tobacco consummation is considered to be misleading and is therefore prohibited (Art. 17 Ordinance on Tobacco Products).
The revised legislation on tobacco products, proposed by the Swiss Federal Council to the Parliament on 11 November 2015 provides for stricter rules for the advertising of tobacco products, their sales and the sponsoring activities by the tobacco industry. All these rules also apply to foreign media, with the exception of foreign printed materials that are not mainly directed to Swiss consumers (Art. 14 para. 2 new Law on Tobacco Products).
The sale of pharmaceutical products, either prescribed by doctors or generally available (OTC products), is permitted only under the strict control of healthcare professionals. Accordingly, online sales of pharmaceutical products to Swiss consumers are generally not permitted, as a recent decision of September 2015 of the Swiss Federal Court has confirmed (Decision 2C_853/2014, 2C_934/2014, Art. 27 Law on Therapeutic Products). Case by case exceptions by cantonal authorities are subject to strict limitations. Foreign online pharmacy platforms that offer pharmaceutical products to Swiss consumers and non-Swiss consumer are not subject to Swiss law, provided that they allow only the purchase of limited quantities for own use (https://www.swissmedic.ch).
As a result, strict rules also apply to the promotion of pharmaceutical products. The promotion of pharmaceutical products under prescription is not permitted on radio and television (article 10 para. 2 lit. a Law on Radio and TV) and more generally in any other public available media. Furthermore, general information on diseases and health conditions must be strictly separated from the promotion of pharmaceutical products (see the Decision of the Swiss Supreme Court 2A.63/2006 that set strict requirements in this respect).
With regard to the promotion of OTC products specific transparency and disclaimer requirements – and specific rules for television and radio advertising – apply (Ordinance on Promotion of Pharmaceutical Products). As a peculiarity of Swiss regulations, radio and television advertising for pharmaceutical products must be submitted for review by the regulatory authority Swissmedic before its release article 23 Ordinance on the Advertising of Medicinal Products). Further, holders of marketing authorisations must appoint an internal officer responsible for the correct advertising of the pharmaceutical products.
Not forgetting in this context is the advertising and promotion of foodstuff. Nutritional and health related claims for foods are only allowed if they deliver what they promise. In Switzerland, nutritional and health related claims have been governed since March 2008 by the Ordinance on labelling and advertising of foodstuffs. These provisions are mainly closely aligned with those of the EU, but a case by case legal assessment remains recommended.
In respect of content of advertising materials destined to Swiss consumers, the Swiss Commission against Unfair Competition (www.faire-werbung.ch) plays an important part. The Commission against Unfair Competition is the Swiss national advertising self-regulatory organisation (SROs) and through its Principles of Fair Competition it promotes high ethical standards in commercial communications.
The Advertising and Marketing Communication Practice Consolidated ICC Code is fully endorsed by the Commission against Unfair Competition. The decisions of the commission against unfair competition are regularly published and highly regarded for their quality and independency. Relevant are also the industry self-regulations that were enacted in collaboration with the Commission against Unfair Competition, such as the rules for the advertising of tobacco products (signed by Swiss Cigarette on 2005) and codes of conduct for the advertising of spirits (signed in 2006) (http://www.faire-werbung.ch/dokumentation/). The guidelines on advertising through tests are also often consulted. As a result, a compliance check of advertising materials with the guidelines and the decisions of the Commission against Unfair Competition is a recommended preventive measure.
To conclude and as a more general rule, advertising statements must be correctly understood by Swiss consumers. In this respect, translations of the advertising materials in the national languages (German, French and Italian) spoken by the addressees are a must for any local and foreign advertiser. Even if most consumers understand another language, advertising shall always be in the language of the region where it is distributed. Exceptions may be acceptable for online or professional advertising only.
In summary, Swiss law provides for several limitations with regards to the content and the distribution of foreign advertising. In order to avoid pitfalls, a preventive legal review of any advertising materials is highly recommended.
Lorenza Ferrari Hofer is head of Pestalozzi’s IP and TMT practice group and a member of the Corporate/ M&A practice group in Zurich. Her fields of expertise include intellectual property, unfair competition, media law, data protection and more generally contract law. She has years of experience in the development, licensing, trade and distribution of technology products (including product liability matters).
Dr Hofer deals with both commercial and litigious matters. She regularly lectures and publishes in the fields of international licensing and technology transfer, and in several areas of unfair competition and intellectual property law. Dr Hofer is a member of various national and international organisations, such as AIPPI (president of the Swiss national group), IBA, INTA, INGRES, and LES. She is consistently recommended by leading directories of the legal profession such as Legal 500 Chambers Europe, Who‘s Who Legal and IAM. Dr Hofer graduated from the University of Basle (Dr. iur. 1993) and was admitted to the bar in 1995. In 2005, she qualified as a solicitor of England and Wales. She began her professional career at the Swiss Federal Institute of Intellectual Property, where she worked in the trademark department before taking on specific tasks in connection with WTO Law (TRIPs Agreement) and UN Law (Convention on Biological Diversity). Dr Hofer subsequently worked for several years as an in-house lawyer for a leading Swiss watch and micromechanics manufacturer. She joined Pestalozzi in 2002 and became a partner in 2008. Her professional languages are German, Italian, English and French.
Pestalozzi Attorneys At Law
Lorenza Ferrari Hofer
The Swiss media world is a small world, but has a complex structure. The linguistic differences necessarily lead to a diversification of the market. Apart from a strong position of the public broadcaster SRG SSR, still committed to representing all linguistic regions, there is a multitude of regional and local television, radios and media programmes offered on online platforms. For all of them, advertising is a major, if not the main financing source, and advertising in Swiss media essentially reflects the linguistic and local market structure. Against this highly versatile background, specific legal rules for advertising apply.