News

28.04.2023

Amendments to the Advertising Legislation in Turkey and Europe

On February, 1st 2022 The Regulation Amending the Commercial Advertising and Unfair Commercial Practices Regulation was published on Official Gazette. The amendments include essential changes on advertising activities including consumers’ purchasing behavior data, discounted sales and unfair commercial practices.

The amending regulation introduces a new term defined as “personalized price”. A personalized price is the price offered by analyzing the purchasing behavior and other personal data of the consumer for a good or service. In the event that a price is offered to the consumer in this way, the information regarding this matter, the current sales price and personalized price determined by the seller or supplier for that good or service shall be included in the same advertisement.

Following the amendment made on discounted sales, in the determination of the sales price of a good or service before the discount, the lowest price applied within thirty days before the discount shall be taken as the basis. However, when calculating the amount or rate of the discount in advertisements for perishable goods such as fruit and vegetables, the price before the discounted price is taken as a basis. Starting from the March, 1st 2022, it will be mandatory to include the price before the discount on the advertisements about the discounted sales. 

With the amendment made on the advertisements about the financial services, the maturity of the credit, the interest rate, the monthly and annual percentage value of the total cost to the consumer, and the repayment conditions will be shown through a website or pop-up screen where consumers can be directed to get detailed information with a link or warning sign placed in the area where the advertisement is published. 

The amendment features various new articles, one of them being Article 28/A regulating rankings. In accordance with the article, in case of ranking by comparing the price, quality and similar aspects of a good or service offered for sale on the internet, the information on which criteria the ranking was created is placed in the same field or in a way that can be easily seen on the pop-up screen where consumers can be directed and get detailed information with a link or warning sign. 

With the additional paragraph, added to the section titled “A-Deceptive Commercial Practices” in the annex of the Commercial Advertising and Unfair Commercial Practices Regulation, using methods such as guiding interface designs, options or expressions related to a good or service on the internet, which negatively affect the will of consumers to make a decision or choice, or which aim to cause changes in favour of the seller or provider in the decision they will make under normal conditions are considered as a deceptive commercial practice.

The mentioned amendments entered into force on March, 1st 2022. The new amendments will be implemented together with the guidelines that will be published by the Advertisement Board on the Ministry of Trade’s website. 

The legislation shows us that with the growth of e-commerce industry and improving use of data on advertising, digital markets and electronic communications the lawmakers tend to draw attention to certain points that organizations should comply with.

The Commercial Advertising and Unfair Commercial Practices Regulation shows great similarities with the EU Unfair Commercial Practices Directive(“UCPD”), which is amended by the Directive (EU) 2019/2161. The amendments will enter into force on May, 28th 2022. The Directive is horizontal in nature and protects the economic interests of consumers. Its principle-based provisions address a wide range of practices and are sufficiently broad to catch also fast-evolving products and sales methods. 

According to the UCPD, a commercial practice is any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers. In the said Directive, there are many definitions like this one, which are also included in the Commercial Advertising and Unfair Commercial Practices Regulation.

The purpose of the Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.

The UCPD complements various European regulations, one of them being The Audiovisual Media Services Directive (“Directive 2010/13/EU”) which applies to linear and nonlinear audiovisual media services (i.e. TV broadcasting and on-demand media services), which can include audiovisual commercial communications which directly or indirectly promote goods or services. Directive 2010/13/EU lays down general information requirements for service providers, while also laying down the requirements with which all audiovisual commercial communications must comply.

Same with the Turkish legislation, commercial practices that may affect the consumer’s purchasing decision and behaviour are prohibited in the European legislation. As a matter of fact, the definition of “to materially distort the economic behaviour of consumers” is included in the UCPD, that is using a commercial practice to appreciably impair the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise.

In accordance with the UCPD, a commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

  • The existence or nature of the product,

  • The main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product,

  • The extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product,

  • The price or the manner in which the price is calculated, or the existence of a specific price advantage,

  • The need for a service, part, replacement or repair,

  • The nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions.

As can be seen, Article 7 of the Commercial Advertising and Unfair Commercial Practices Regulation is directly proportional with the Article 6 of the UCPD and “average consumer” has been included in both Turkish and European legislation. Evidently, it would not be wrong to say that there are great similarities between UCPD and the Commercial Advertising and Unfair Commercial Practices Regulation in terms of the prohibitions and obligations they contain. 

In this respect, complying with one of them means to a large extent to comply with the other one. This is of great importance for advertisers in order to avoid various administrative sanctions regulated in the legislation.