Restricting in the context of tobacco, alcohol,

digital food and beverages, and breast-milk

substitutes: existing approaches
marketing and policy options
Restricting in the context of tobacco, alcohol,
digital food and beverages, and breast-milk
substitutes: existing approaches
marketing and policy options
Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes:
existing approaches and policy options

ISBN 978-92-4-007724-9 (electronic version)

ISBN 978-92-4-007725-6 (print version)

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Contents iii

Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Executive summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Audience, scope and methodology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Defining marketing, including cross-border marketing and digital marketing . . . . . . 4
3.1 How is marketing defined in this report?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Digital marketing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Coordinating fragmented laws applicable to digital marketing. . . . . . . . . . . . . . . . . 12
4.1 Advertising laws and codes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1.1 General advertising laws and codes....................................................................................14
4.1.2 Sector- and product-specific marketing laws and codes.................................................15
4.1.3 Standalone laws prohibiting specific advertising techniques: Spam control laws.....17
4.1.4 Digital marketing codes and guidance.................................................................................17
4.2 Consumer protection laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3 Audiovisual, broadcasting and other media laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.4 Data protection laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.5 Digital markets laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.6 Observations and policy options. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5. Defining an effective jurisdictional scope for regulation of digital marketing and
enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.1 The concept of jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.2 Jurisdictional rules in practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.3 Challenges and policy options. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6. Restricting digital marketing to children and other vulnerable populations: targeting
and data protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.1 Protecting children from accessing content: online
age-verification mechanisms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.2 Protecting vulnerable groups from being reached by digital marketing: regulating the
collection, processing and use of personal data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.2.1 Defining vulnerable populations in the digital environment.............................................37
6.2.2 Limiting the collection and processing of personal data that may be used for
targeting................................................................................................................................................39
6.2.3 Limiting the use of personal data for targeted advertising .............................................39
6.2.4 Targeting marketing away from vulnerable populations .................................................40
Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options iv

7. Restricting influencer marketing and user engagement . . . . . . . . . . . . . . . . . . . . . . 43

8. Tools to effectively monitor and enforce restrictions on digital marketing. . . . . . . . 48
8.1 Monitoring digital marketing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.2 Defining an institutional framework to enforce digital marketing rules. . . . . . . . . . . . 54
8.2.1 Enforcement by advertising associations.............................................................................54
8.2.2 Enforcement of laws and regulations...................................................................................56
8.3 Defining appropriate enforcement measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.4 Enforcing digital marketing rules in a cross-border context . . . . . . . . . . . . . . . . . . . . . 64
8.4.1 Enforcement through the entire supply chain ....................................................................64
8.4.2 Enforcing laws across borders..............................................................................................65
8.4.3 Enforcing judgments across borders....................................................................................66
9. Legal considerations in restricting digital marketing . . . . . . . . . . . . . . . . . . . . . . . . 68
9.1 Human rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
9.1.1 Freedom of expression or commercial speech....................................................................69
9.1.2 Freedom to conduct a business..............................................................................................72
9.1.3 Right to property .......................................................................................................................72
9.2 International trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Annex 1 - Policy options outlined in this report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Annex 2 – Assessing a country’s legal environment. . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Foreword v

Foreword
We live in an age of digital transformation nicotine products, comprehensive restrictions
where governments are increasingly called on marketing are essential to protect health.
upon to respond to and enable digital For others, such as alcoholic beverages and
transitions occurring within the economy unhealthy foods, we know that comprehensive
and society. These transitions create obvious restrictions are likely to have a larger impact
opportunities, such as to make health systems on protecting health than partial restrictions.
more efficient and sustainable, or to reach But irrespective of the level of health protection
large audiences with health campaigns and pursued, there are some common policy options
messages. But they also create and exacerbate for governments, including:
health risks, such as risks to children’s mental
and physical health, or the risk that we are • Coordinating product specific health laws
targeted with marketing of unhealthy products and their enforcement with more general
in a way and when doing so would maximize the marketing laws such as those on advertising,
possibility and ease of purchase. consumer protection, data protection, and
digital markets.
Like the economy and society, health promotion
and public health must also undertake digital • Giving careful consideration to the
transitions to maximize the opportunities and jurisdictional scope of restrictions in parallel
minimize the risks. This means translating with how compliance will be monitored and
existing public health approaches to the digital enforced.
environment and developing new approaches fit
for digital spaces. • Ensuring that (where comprehensive
restrictions are not in place) strong laws are
This publication takes a step in that direction by put in place to regulate targeted marketing,
describing the ways in which Member States can such as age verification requirements,
translate marketing restrictions to the digital prohibitions on collection or use of personal
environment. In this respect, World Health data for certain types of advertising
Organization has long recommended marketing (including where more general consent
restrictions in the contexts of tobacco and based approaches are used), prohibitions on
nicotine products, alcoholic beverages, foods and the targeting of vulnerable groups or even
beverages with respect to children, and breast- positive obligations to target any permitted
milk substitutes. But the question of how to advertising away from those groups.
implement these recommendations has become
more complex as digital media has grown and • Restricting influencer marketing (just as any
large online platforms have centered their other form of marketing is restricted) and
businesses around advertising, and specifically limiting user engagement techniques, such
around targeting of advertising to consumers as the ability of alcohol manufacturers to use
based on their activity online or personal data online posts by users in their own marketing
they have shared. or stimulate viral campaigns through user
engagement.
The good news is that there are policy options
available for governments and that many of • Adopting new monitoring techniques,
these are described in this publication. For including use of artificial intelligence to
some product categories, such as tobacco and supplement online inspections by humans,

Overview Restrict Monitor Enforce Annex

Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options vi

and requiring online platforms and product those duties and enforcing the law. It is possible
manufacturers to disclose permitted for governments to do all of these things while
marketing. also respecting other rights, such as privacy
rights and the right to free expression. In fact, it
• An array of enforcement mechanisms, most is essential for governments to act using a
obviously to be applied to the advertisers / rights-based approach to keep pace with the
product manufacturers themselves, but also broader digital transformation while protecting
to online platforms and other actors in the public health.
marketing supply chain.

But a mindset shift founded on rights and duties

is also necessary. Protecting the right to the
highest attainable standard of health and the
rights of children means placing strong and Dr. Ruediger Krech
proportionate legal duties on companies in the Director, Health Promotion Department
product and marketing supply chains, monitoring World Health Organization

Overview Restrict Monitor Enforce Annex

Acknowledgements vii

Acknowledgements
This publication was authored by Dr. Elisabet and Helena Wilson (Ministry of Health and
Ruiz Cairó, consultant, and Dr. Benn McGrady, Care Services of Norway), Monique Muggli
Head of Unit, from the Public Health Law (Campaign for Tobacco-Free Kids), Prof. Paula
and Policies Unit (LAW), Health Promotion O’Brien (Melbourne Law School, The University
Department. of Melbourne), Katherine Shats (UNICEF), and
Fiona Sing (University of Auckland).
At various stages of preparation, the publication
benefited from comments, discussions and WHO also recognizes the valuable
inputs from Ma Luján Abramo (Global Health contributions from colleagues across WHO: Dr.
Advocacy Incubator), Jorge Alday, Dr. Tom Eric Carlin, Dr. Nina Chad, Dr. Tim Chadborn,
Carroll, Trish Cotter, Dr. Alexey Kotov, and Dr. Katrin Engelhardt, Dr. Carina Ferreira-
Dr. Nandita Murukutla (Vital Strategies), Dr. Borges, Kathrin Hetz, Daniel Hougendobler,
Tazeem Bhatia, Sakhi Dodhia, Rachel Elsom, Daniel Hunt, Kritika Khanijo, Monika Kosinska,
Dr. Tharindu Fernando, Jennifer Garry, Clive Dr. Ruediger Krech, Alicia Nicolaï, Paba
Henn, Diya Mukherjee, and Casey Sharpe Piyarathne, Kathryn Robertson, Sebastian
(United Kingdom Office of Health Improvement Rositano, Dr. Juan Tello, Amber Van Den
and Disparities), Prof. Nicholas Carah (School Akker, Dr. Kremlin Wickramasinghe, Olga
of Communication and Arts, The University Zhiteneva, and the Legal Team from the WHO
of Queensland), Jeff Chester, Dr. Katharina FCTC Secretariat.
Kopp, and Dr. Kathryn Montgomery (Center for
Digital Democracy), Sandra Lárudóttir Gjernes

Overview Restrict Monitor Enforce Annex

Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options viii

Abbreviations
AANA Australian Association of National Advertisers
AI Artificial intelligence
AiMCO Australian Influencer Marketing Council
ARB Advertising Regulatory Board of South Africa
ASA Advertising Standards Authority of the United Kingdom of Great Britain and
Northern Ireland
ASAS Advertising Standards Authority of Singapore
ASCI Advertising Standards Council of India
AVMS Directive EU Audiovisual Media Services Directive
CAP Code Code of Non-broadcast Advertising and Direct & Promotional Marketing
CETA EU-Canada Comprehensive Economic and Trade Agreement
CJEU Court of Justice of the European Union
CPC Consumer Protection Cooperation network
DMA EU Digital Markets Act
DMCA Digital Millenium Copyright Act of the United States
DSA EU Digital Services Act
EU European Union
FDA Food and Drug Administration
FTA Free trade agreement
FTC Federal Trade Commission
GDPR EU General Data Protection Regulation
ICPEN International Consumer Protection and Enforcement Network
ISBA Incorporated Society of British Advertisers
ISP Internet service provider
OECD Organisation for Economic Co-operation and Development
SCAP Singapore Code of Advertising Practice
TERM Tobacco Enforcement and Reporting Movement
TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights
UCPD EU Unfair Commercial Practices Directive
UN United Nations
UNICEF United Nations Children’s Fund
WHO FCTC WHO Framework Convention on Tobacco Control
WTO World Trade Organization

Overview Restrict Monitor Enforce Annex

Executive summary ix

Executive summary
WHO guidance addresses
restrictions on marketing
(including digital marketing) in the
and robust restrictions or bans on alcohol
marketing.

contexts of tobacco and nicotine Prior to the internet, the technical difficulty
products, alcohol, unhealthy foods and of implementing marketing restrictions was
beverages, and breast-milk substitutes. relatively low. Traditional media (such as
newspapers, television and radio) was highly
concentrated, meaning that enforcement efforts
In the WHO Framework Convention on Tobacco could be focused on a limited set of actors in
Control (WHO FCTC), Parties recognize that a the marketing supply chain. The advertisers
comprehensive ban on domestic and cross- themselves, such as tobacco companies, often
border advertising, promotion and formed part of highly concentrated industries,
sponsorship would reduce the consumption of thereby limiting the number of actors against
tobacco products. The Action Plan to which marketing restrictions might be enforced.
Effectively Implement the Global Strategy to But the advent of digital media and new
Reduce the Harmful use of Alcohol as a Public marketing techniques has increased exposure
Health Priority proposes that Member States to marketing, increased the power of marketing,
implement comprehensive and robust and has resulted in Member States taking action
restrictions or bans on alcohol marketing. The to update marketing restrictions, monitor digital
Set of Recommendations on the Marketing of marketing and enforce restrictions.
Foods and Non-Alcoholic Beverages to
Children calls for global action to reduce the Digital marketing is pervasive. Display
impact on children of marketing of foods high advertising features prominently on websites.
in saturated fats, trans-fatty acids, free sugars Search engines make search ads appear.
or salt. The International Code of Marketing of Native ads, which are designed not to look like
Breast Milk Substitutes recommends commercial content, appear in online news
prohibiting marketing of breast milk and similar sites. Influencers offer product
substitutes to ensure the protection of endorsements through social media platforms
exclusive breastfeeding for the first six with differing degrees of disclosure regarding
months of life and continued breastfeeding of the commercial character of the endorsements.
24 months or beyond. The Set of Advertising features in apps, such that use
Recommendations on the Marketing of Foods of some apps is suspended while ads are
and Non-Alcoholic Beverages to Children calls displayed. Products are placed in online content,
for global action to reduce the impact on including content directed at children or to
children of marketing of foods high in which children are exposed. And online retail is
saturated fats, trans-fatty acids, free sugars or increasingly integrated with digital marketing.
salt. The Action Plan to Effectively Implement Through digital marketing, consumers are
the Global Strategy to Reduce the Harmful use therefore more frequently and intensively
of Alcohol as a Public Health Priority proposes exposed to advertisements than through
that Member States implement comprehensive marketing in traditional media.

Through digital marketing, consumers are therefore more

frequently and intensively exposed to advertisements than
through marketing in traditional media.

Overview Restrict Monitor Enforce Annex

Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options x

The pervasiveness of digital marketing can be web search history, browsing history, use of
seen in Figure 1. apps and wearables such as smartwatches.

Digital marketing is also powerful. Digital The contexts in which marketing occurs, such
platforms such as social media platforms as on social media, can also differ substantially
facilitate user engagement and participation in from marketing in ‘traditional media’. This
unique ways. Marketing is targeted at recipients combination of targeting and context can lead
based on collection and use of their personal and recipients to view marketing and identify with it
other data, much of which has been gathered in personalized ways that differ from responses
in digital spaces such as through smartphones, to marketing in traditional media.

Figure 1. The pervasiveness of digital marketing

More than traditional marketing, digital marketing exposes consumers to advertisements frequently
and intensively through multiple channels.

Display advertising is prominent on websites

Search ads appear on search engines

Native ads are designed to not look like commercial content and appear on sites
like online news

Influencer product endorsements are offered through social media platforms

In-app advertising is featured in many applications

Products are placed in online content, sometimes directed at children

Online retail is increasingly integrated with digital marketing

Overview Restrict Monitor Enforce Annex

Executive summary xi

WHO’s guidance on marketing restrictions • Define a jurisdictional scope (the geographic

on tobacco and nicotine products, alcohol, scope of restrictions or prohibitions) enabling
unhealthy food and beverages, and breast-milk enforcement within that scope.
substitutes, and international legal obligations
stemming from WHO instruments, differ • Restrict the use of commercial user-
across these contexts, and there is no cross- generated content in digital marketing.
cutting WHO guidance on how to restrict digital
marketing. Nonetheless, the growth of digital • Restrict targeting techniques in specific
marketing and the way some Member States contexts where marketing is permitted
have regulated it so far provide policy options to protect children and other vulnerable
for countries to consider. populations.

In Member States, digital marketing is often • Establish mechanisms that better enable
regulated through a variety of laws under the marketing to be monitored in the online
supervision of multiple government agencies, environment, including dark and ephemeral
thus requiring legislative coordination. marketing.
Collectively, these laws contain many elements,
and often: • Delegate authority for enforcement and define
enforcement measures against unlawful
• Have a broad scope of application covering marketing practices.
all forms of digital marketing, including
influencer marketing, and technological Figure 2 summarises some of the functions of
innovations in marketing. laws regulating digital marketing.

Overview Restrict Monitor Enforce Annex

Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options xii

Figure 2. Scope and Functions of laws that regulate digital marketing

Digital marketing is often regulated through a range of laws, supervised by multiple government
agencies, thus requiring legislative coordination. Collectively these laws often exhibit the following
features and functions.

Scope of Can have a

broad scope
Have a defined a
jurisdictional scope
digital covering all forms of
digital marketing, including
enabling enforcement
within that scope.

marketing
influencer marketing, and
technological innovations
in marketing.

laws Read more on

Defining digital
Read more on
Jurisdictional
marketing in Section 3 scope in Section 5

Functions of digital marketing laws

Restrict Monitor Enforce
Adopt comprehensive Establish mechanisms that Delegate authority for
restrictions on specific better enable marketing to enforcement and define
product categories. be monitored in the online enforcement measures
environment, including against unlawful
Restrict the use of dark and ephemeral marketing practices.
commercial user-generated marketing.
content in digital marketing.

Restrict targeting techniques

in specific contexts where
marketing is permitted to
protect children and other
vulnerable populations.

Read more on Find tools and information Read more on

Legislating to Restrict in on Monitoring in Section 8 Enforcement in
Sections 6 and 7 Section 8

Overview Restrict Monitor Enforce Annex

Executive summary xiii

This publication examines how restrictions on enforcement authority to agencies other than
digital marketing are implemented by Member health agencies and respond to policy concerns
States as part of broader marketing restrictions, more general than marketing of the specific
describes current challenges specific to digital products mentioned.
marketing and provides policy options to be
considered in addressing those challenges. The involvement of different laws and
Policy options are summarized in Annex 1. authorities can result in gaps in the coverage
of laws, as well as gaps in monitoring and
There is no single, simple step Member States enforcement activities carried out by different
can take that will address the challenges government agencies. Each applicable law will
associated with digital marketing, and as is define different restrictions, impose different
the case with traditional marketing, there will sanctions in case of non-compliance, and assign
always be some gaps in implementation and authority to different agencies.
some level of non-compliance with restrictions.
Nonetheless, this publication has identified Legislative coordination is a policy option
policy options and approaches that Member available to Member States to close these gaps,
States can adopt to strengthen the design and and involves considering how laws restricting
implementation of restrictions. marketing of specific product categories can
be coordinated with other more general laws
Coordinating fragmented laws applicable to governing marketing to achieve a Member
digital marketing (Please refer to Section State’s policy goal. For example:
4.). At the national level, digital marketing
regulation is typically fragmented, as many Laws restricting marketing of specific product
pieces of legislation and government agencies categories can:
are involved. Some Member States have sector
specific restrictions on marketing in place to • Define forms of marketing that are prohibited
some degree, such as laws governing marketing or restricted with respect to specific product
of tobacco products, alcoholic beverages, foods categories or explicitly define forms of
and non-alcoholic beverages and breast-milk marketing that are allowed for specific
substitutes. The implementation of these laws product categories.
is typically assigned to health agencies such
as ministries of health or regulatory agencies, • Include cross references to general
although other actors may also be involved. marketing laws where appropriate to
establish restrictions.
But laws and rules applicable to digital
marketing practices can also be found in laws • Establish any rules specific to the product
or other instruments that are not specific category that enable health agencies to
to alcohol, tobacco, foods and non-alcoholic supervise the market and supply chain for
beverages or breast-milk substitutes, for the products in question, such as by:
example those governing advertising, consumer
protection, broadcasting, data protection or the • Requiring public disclosure of marketing
internet. These laws and rules are important by brands, manufacturers, distributors
components of some marketing restrictions in and retailers so as to facilitate monitoring
that they regulate digital marketing, prohibit of marketing.
specific advertising practices, impose disclosure
obligations, regulate targeted advertising and • Using supply side controls such as
the use of profiling techniques for advertising licensing measures or strict liability
purposes, and grant strengthened protection to provisions to place responsibility on
children in advertising. These laws also allocate

Overview Restrict Monitor Enforce Annex

Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options xiv

brands, manufacturers, distributors and In legal terms, countries have the policy
retailers, where appropriate. option to legislate, adjudicate disputes and
sanction digital marketing within their scope of
• Allowing consumers, civil society jurisdiction to cover:
organizations and economic operators
(usually competitors) to bring actions • actions by their nationals
for violation of sector specific marketing
restrictions before national courts. • actions occurring inside their territory

• Establish the jurisdictional reach (the • actions that have effects or likely effects in
geographic scope) of sector specific their territory
marketing restrictions.
Member States also sometimes define a
• Allocate enforcement authority among jurisdictional scope that is more limited than
government agencies, by means such as this, but that can be effectively enforced by
using cross-references to other legislation public authorities, such as to cover actions
to allocate enforcement authority to non- targeting consumers in their territory but not
health agencies, where appropriate. all actions that have effects in their territory.
Although all actors involved in digital marketing
• General marketing laws can: (brands, advertising agencies, websites, search
engines, social media platforms, influencers,
• Restrict or prohibit the marketing of specific distributors, retailers) may be liable for
product categories. violations of the law, laws and enforcement
actions often focus first on those actors
• Include cross references to sector specific directly linked to the products themselves
laws to enable agencies with enforcement (manufacturers, distributors, retailers).
powers to enforce those sector specific These actors often have assets located in the
restrictions through marketing laws. jurisdiction, manufacture, import or distribute
the products posing risks to health, and fall
As this suggests, health agencies can take an within the oversight of health agencies. Put
important first step by considering how sector differently, there are often actors within a
specific laws interact with other relevant jurisdiction against which the laws can be
laws governing digital marketing and move enforced.
towards overcoming any challenges posed by
fragmentation. Restricting digital marketing to children and
other vulnerable populations (Please refer to
Defining an effective jurisdictional scope for Section 6.). Comprehensive product-specific
regulation of digital marketing and enforcement restrictions on marketing are likely to cause
(Please refer to Section 5.). Questions often the greatest reduction in exposure of children
arise concerning whether and how a country and other vulnerable populations to digital
has jurisdiction over marketing in digital marketing.
environments. This concern results from the
cross-border nature of digital marketing, as Where comprehensive restrictions are not
brands, ad agencies, publishers (websites, in place, protecting vulnerable populations,
search engines, social media platforms, including children, is a challenge in the
influencers) and customers are often established regulation of digital marketing. In the context
in different countries. of partial restrictions, requiring effective age-

Overview Restrict Monitor Enforce Annex

Executive summary xv

verification mechanisms to prevent access to • Defining vulnerable populations in need

age-restricted content online is a first step. To of strengthened protection from targeted
protect vulnerable populations, one policy option advertising in the law.
is to ban all targeted advertising of specific
product categories through restrictions on data • Banning targeting of vulnerable populations
collection, processing and use. with respect to specific product categories.

In the absence of a ban on targeted advertising • Require that advertisers proactively target
of specific product categories, countries policy advertising of specific product categories
options include: away from defined vulnerable populations.

• Restricting data collection by brands/ Please refer to Figure 3 to understand how to

advertisers of specific product categories to restrict digital marketing to children and other
reduce the power of their marketing through vulnerable populations.
targeting.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options xvi

Figure 3. Restricting digital marketing to children and

vulnerable populations

Digital
marketing to
children and
vulnerable
populations

Comprehensive restriction
on marketing of specific
product categories

In the absence of
comprehensive
restriction

Partial restrictions

How are these

adapted to the digital
environment?

Develop effective Require

age-verification advertisers to
mechanisms Restrict data Ban targeting target specific
collection, of vulnerable product
Define vulnerable
processing populations categories away
populations
and use from vulnerable
populations

Overview Restrict Monitor Enforce Annex

Executive summary xvii

Restricting influencer marketing and user marketing, by reference to whether the

engagement (Please refer to Section 7.). Laws content is commercial in character. In this
governing digital marketing also address respect, marketing involves some commercial
influencer marketing and user engagement element, such as the exchange of payment,
techniques, particularly on social media gift or incentive for marketing undertaken.
platforms. • Prohibiting or restricting the possibility of
using user-generated content for specific
Governments have policy options to restrict product categories, by restricting online
marketing by influencers or use of user- competitions, sharing users’ comments
generated content, including: on a product, permitting users to share
an advertiser’s content, or from engaging
• Regulating influencers directly, especially actively with consumers in social media.
those influencers that are a national or
present in the jurisdiction. • Regulating online platforms to prevent
prioritization or personalization of content
• Prohibiting advertisers from using influencers where sector-specific restrictions apply.
for prohibited forms of marketing (in line
with prohibitions on paid ads on social media • Prohibiting marketing through user accounts
platforms). on online platforms (in line with prohibitions
on paid ads).
• Regulating online platforms and placing
obligations on them with respect to influencer Please refer to Figure 4 to better understand
marketing. how to restrict influencer marketing and user
engagement.
• Drawing a distinction between marketing
and user-generated content that is not

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options xviii

Figure 4. Restricting influencer marketing and user engagement

Influencer
marketing
and user
engagement

Comprehensive restriction
on marketing of specific
product categories

In the absence of
comprehensive
restriction

Partial restrictions

How are these

adapted to the digital
environment?

Distinguish between marketing Prohibit advertisers from

and user-generated content that Regulate influencers, online using influencers, the use of
is not marketing platforms with respect to user-generated content for
influencer marketing, and to specific product categories
prevent personalization of and marketing through user
content where sector-specific accounts on online platforms
restrictions apply

Overview Restrict Monitor Enforce Annex

Executive summary xix

Monitoring digital marketing (Please refer to or ad libraries/repositories available to the

Section 8.). Digital marketing is often visible general public. Disclosures could include the
only to individual consumers and for short content of the advertisement, where, when
periods of time, meaning that authorities are and for how long the advertisement was
not ordinarily exposed to the same digital available, and the patterns used to target
marketing as consumers. Monitoring approaches the advertisement to consumers. Figure 5
include online inspections using a variety of summarizes the monitoring approaches of
online profiles or the use of artificial intelligence digital marketing.
tools to detect prohibited content. Cooperation
between public authorities and non-State actors, Laws may also allocate monitoring functions
in particular civil society, may also facilitate the among public authorities. This includes
monitoring of digital marketing. defining the appropriate monitoring functions
of the Ministry of Health or health-related
Imposing disclosure obligations on advertisers agencies and delegating monitoring functions
and platforms is a policy option to support to other relevant government agencies where
monitoring. Disclosure can be undertaken appropriate, with a clear separation of functions
through reports addressed at public authorities and coordination mechanism.

Imposing disclosure obligations on advertisers and platforms

is a policy option to support monitoring.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options xx

Figure 5. Monitoring digital marketing

Monitoring approaches
include:

Online inspections Artificial intelligence tools Cooperation

A policy option to support monitoring is imposing disclosure

obligations on advertisers and platforms

Disclosures can include: They can be undertaken through:

• The content of the advertisement • Reports addressed at public authorities
• Where, when and for how long it was • Ad libraries or repositories available to
available the general public
• Patterns used to target the
advertisement to consumers

Enforcing digital marketing rules (Please refer functions to Ministries of Health and to other
to Section 8.). Enforcement measures relating to government entities, with a clear separation of
digital marketing restrictions are diverse. These functions and coordination mechanisms.
include voluntary measures adopted by online
platforms, tools established in industry self- Options for enforcement procedures include
regulatory instruments and sanctions provided allowing a variety of information sources
by law. In order to facilitate enforcement, Member that can constitute a basis for investigation
States can allocate appropriate enforcement and enforcement, granting authorities broad

Overview Restrict Monitor Enforce Annex

Executive summary xxi

investigative powers, and granting legal standing measures include automated preventive
to consumers, civil society organizations and warnings, warning letters, content moderation
economic operators to bring actions for violation obligations, orders for amendment or removal of
of digital marketing rules. Countries may also marketing, civil or criminal liability, and blocking
consider establishing an administrative dispute and filtering measures, amongst others. Figure
settlement mechanism where appropriate. 6 summarizes the enforcement measures and
procedures.
Enforcement measures can be imposed against
all actors in the marketing supply chain including In some instances, cross-border cooperation on
upon brands, online platforms and/or influencers. enforcement matters can be useful to ensure the
They can be adopted before the product is effectiveness of enforcement measures through
marketed as preventive measures, or after the entire marketing supply chain.
publication as reactive measures. Enforcement

Figure 6. Enforcing digital marketing rules

Enforcement requires:

Enforcement Enforcement
measures procedures

These include: These include:

• Sanctions provided by law • Allowing a variety of information sources
to constitute a basis for investigation and
• Voluntary measures adopted by online enforcement
platforms
• Granting authorities broad investigative
• Tools established in industry self- powers
regulatory instruments
• Granting legal standing to consumers, civil
Member States can allocate enforcement society and economic operators to bring
functions to Ministries of Health and other actions for digital marketing rule violation
government entities, with clear separation of • Establishing an administrative dispute
functions and coordination. settlement mechanism where appropriate

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options xxii

Legal considerations in restricting digital Sector specific marketing restrictions have been
marketing (Please refer to Section 9.). National implemented in many countries that comply
constitutions and legislation, international with these domestic and international legal
human rights law and international trade obligations. Any prior litigation that Member
agreements all establish legal duties, rights and States have had with respect to marketing
restrictions on government action that may be restrictions may be relevant in designing and
relevant to controlling digital marketing. implementing restrictions on digital marketing.
Marketing restrictions will generally be lawful
In designing and implementing marketing if the measures are non-discriminatory and
restrictions governments may need to consider, appropriate and necessary to attain the public
in particular, their duty to protect the right to health objectives pursued, proportionate to
health, food, privacy, consumer protection and those objectives, and if they provide adequate
children’s rights. However, they may also need procedural safeguards. A government’s legal
to consider limits imposed by the freedom of position may be strengthened by, among other
speech, the freedom to conduct a business, things, establishing clear health objectives and
the right to property and commitments and collecting evidence of the risks associated with
exemptions provided in trade agreements, while digital marketing (exposure, power, consumer
keeping in mind that those rights and freedoms perceptions and behaviour) and the impact of
are not absolute and can ordinarily be restricted any restrictions.
for public health reasons.

Overview Restrict Monitor Enforce Annex

1. Introduction 1

1. Introduction
WHO guidance addresses
restrictions on marketing
(including digital marketing) in the
Digital marketing is often regulated through a
variety of laws under the supervision of multiple
government agencies, thus requiring legislative
contexts of tobacco and nicotine coordination. These laws typically:
products, alcohol, unhealthy foods and
beverages, and breast-milk substitutes. • Have a broad scope covering all forms
of digital marketing and allowing for
technological innovation.
The WHO guidance on marketing restrictions
and the contexts in which that guidance is set • Define a jurisdictional scope (the geographic
differs across each of these product categories. scope of restrictions or prohibitions), enabling
But digital marketing has become increasingly enforcement within that scope.
important to each product category because
it increases the power of marketing through • Regulate the use of commercial user-
consumer targeting and user engagement generated content in digital marketing.
techniques and increases exposure to marketing
because of how pervasive marketing is in digital • Restrict targeting techniques in specific
environments. contexts where marketing is permitted.

There is no cross-cutting WHO guidance on how • Establish mechanisms that better enable
to restrict digital marketing. This publication marketing to be monitored in the online
seeks to fill that gap by describing: environment, including dark and ephemeral
marketing.
• how marketing, including digital marketing, is
typically regulated at the national level; • Delegate authority for enforcement and define
enforcement measures against unlawful
• challenges posed by digital marketing, marketing practices.
monitoring compliance with the restrictions
and enforcing them; By describing these practices and policy options,
this publication provides information on the
• policy options available to Member States; and question of how to restrict digital marketing.
This publication describes how governments
• legal considerations that Member States may have and can restrict digital marketing
wish to take account of in policy design and without prescribing or recommending a single
implementation. generalizable approach, or set of approaches, for
all Member States to follow.

Digital marketing is often regulated through a variety of laws

under the supervision of multiple government agencies, thus
requiring legislative coordination.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 2

2. Audience, scope and

methodology
A range of policy options are presented
throughout the paper. The options
most relevant or appropriate for each
application to marketing restrictions in the
context of existing WHO guidance.

Member State may differ depending Finally, comparative legal analysis is used to
on domestic circumstances, including describe legal considerations for governments
priorities and capacities. The publication when restricting digital marketing. This
is primarily aimed at government analysis draws on case law from different
officials designing or implementing jurisdictions to consider the potential legal
marketing restrictions, including policy challenges to restrictions on digital marketing
and legal officers. and the legal considerations governments may
wish to consider.

Comparative legal analysis is the primary Notably, this publication does not evaluate the
methodology underpinning this publication. evidence of the risks posed by digital marketing
This methodology involves comparing laws to health, or the evidence of the impacts of
and legal approaches to restricting digital restricting digital marketing, or of different
marketing in different jurisdictions in order to approaches to restricting digital marketing.1
describe the most prominent legal approaches. These are empirical questions beyond the scope
This comparison and analysis are carried out of this publication.
point-by-point to produce a description specific
to a given point or issue. The most prominent This publication does not seek to extend or
approaches are highlighted, meaning that the alter the scope of existing WHO guidance on
methodology favours presentation of common restricting marketing. Nor does this publication
approaches over presenting and considering change the media neutrality of existing WHO
every approach. Similarly, the methodology guidance on restricting marketing. WHO
groups issues for analysis, rather than purely guidance (and legal instruments) on marketing
describing country approaches side-by-side. of tobacco and nicotine products, alcoholic
beverages, unhealthy foods and beverages to
Comparative legal analysis is supplemented children, and breast-milk substitutes, apply
with legal reasoning by analogy. This involves irrespective of the medium through which
drawing on analogous laws from other marketing is transmitted. The purpose of
domains, such as regulation of gambling this publication is not to suggest that digital
advertising or restrictions on digital content, in marketing should be restricted above and
order to analyse their relevance and potential beyond other media. Rather, this publication

1 Evidence has however been evaluated in other WHO documents on specific risk factors; see Scope and
impact of digital marketing strategies for promoting breast-milk substitutes. Geneva: World Health
Organization; 2022 (https://www.who.int/publications/i/item/9789240046085, accessed 16 March 2023);
Digital marketing of alcohol: challenges and policy options for better health in the WHO European Region.
Copenhagen: WHO Regional Office for Europe; 2021 (https://apps.who.int/iris/handle/10665/350186,
accessed 16 March 2023).

Overview Restrict Monitor Enforce Annex

2. Audience, scope and methodology 3

seeks to assist Member States to address the by their nature, purely voluntary approaches
reality that restrictions on digital marketing that are not enforced through law do not apply
often lag behind restrictions on other media consistently across the marketing supply chain,
in the sense that comparable restrictions are leaving space for economic operators to opt in
either not legislated, that digital environments or out of the restrictions. With this in mind and
are not monitored in a comparable way, or recognizing that the purpose of this publication
restrictions are not enforced as effectively as is to support governments in restricting digital
for other media. marketing, the focus is on legislation, regulation,
monitoring and enforcement. In short, the goal
Similarly, this publication does not seek to of this publication is to illustrate how marketing
alter WHO guidance on mandatory versus restrictions can be legislated, regulated,
voluntary approaches to restricting marketing. monitored and enforced across a range of
Nonetheless, it is worth observing that product categories in the digital environment
approaches enforced through law and applied and to present these as policy options for
to all actors in the marketing supply chain are Member States to consider in their specific
designed to regulate actors in the marketing national contexts.
supply chain in a consistent way. In contrast,

This publication seeks to assist Member States to address the

reality that restrictions on digital marketing often lag behind
restrictions on other media.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 4

3. Defining marketing,
including cross-border
marketing and digital
marketing
T here is no uniform definition of
marketing, cross-border marketing,
or digital marketing within WHO. These
concepts are defined in this report by
reference to several WHO instruments
and reports.

3.1 How is marketing defined in this report?

The notion of marketing is understood in a broad promote or sponsor a product, a service or a
sense in WHO instruments as comprising any brand. The following table summarizes how
form of commercial communication to advertise, marketing is defined in WHO instruments.

Table 1. Marketing definition in WHO instruments

WHO instrument Marketing definition

International Code on Article 3 defines marketing as “product promotion, distribution, selling,

Breast-Milk Substitutes advertising, product public relations, and information services”.
(1981)

Click to view

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3. Defining marketing, including cross-border marketing and digital marketing 5

WHO Framework The FCTC does not use the term “marketing”.
Convention on Tobacco
Article 13 of the WHO FCTC requires Parties to undertake a
Control (WHO FCTC)
comprehensive ban on “tobacco advertising, promotion and
sponsorship”.
Article 1(c) of the WHO FCTC defines tobacco advertising and promotion
as “any form of commercial communication, recommendation or action
with the aim, effect or likely effect of promoting a tobacco product or
tobacco use either directly or indirectly”.
Article 1(g) of the WHO FCTC defines tobacco sponsorship as “any form
of contribution to any event, activity or individual with the aim, effect or
Click to view likely effect of promoting a tobacco product or tobacco use either directly
or indirectly”.
Marketing under the WHO FCTC can be understood as comprising all of
the above-mentioned elements.

Global Strategy to Marketing is defined as “any form of commercial communication or

Reduce the Harmful Use message that is designed to increase, or has the effect of increasing,
of Alcohol (2010) the recognition, appeal and/or consumption of particular products and
services. It could comprise anything that acts to advertise or otherwise
promote a product or a service”.
Paragraph 29 of this instrument provides a non-exhaustive list of
elements that constitute marketing, including “linking alcohol brands
to sports and cultural activities, sponsorships and product placements,
and new marketing techniques such as e-mails, SMS and podcasting,
social media and other communication techniques”, as well as marketing
messages on satellite television and the internet, and sponsorship of
Click to view sports and cultural events.

Set of Recommendations Paragraph 12 defines marketing as “any form of commercial

on the Marketing of communication or message that is designed to increase, or has the effect
Foods and Non-alcoholic of increasing, the recognition, appeal and/or consumption of particular
Beverages to Children products and services. It could comprise anything that acts to advertise
(2010) or otherwise promote a product or a service”.
Paragraph 13 provides a non-exhaustive list of examples of marketing
techniques, including “advertising, sponsorship, product placement,
sales promotion, cross-promotions using celebrities, brand mascots or
characters popular with children, web sites, packaging, labelling and
point-of-purchase displays, e-mails and text messages, philanthropic
activities tied to branding opportunities, and communication through
“viral marketing” and by word-of-mouth”.

Click to view

Marketing is therefore characterized by three undertaken via written or oral messages, via
main elements: traditional or modern media platforms, and
via advertising, promotion or sponsorship
1. It includes any form of commercial activities.
communication: marketing activities can be

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 6

2. It has as its aim, effect, or likely effect 3. Marketing can aim at advertising a specific
increasing the recognition, appeal and/or product, normalising the product category
consumption of a product, a service or a brand: more generally, or increasing brand
the intention is not a necessary element for a recognition for brands that include several
message to constitute marketing, and even the products in brand portfolios.
hypothetical effects of a communication can
lead to a message being defined as marketing.

3.2 Digital marketing

For purposes of this report, digital marketing marketing is typically cross-border in nature, as
refers to marketing distributed in a digital form. websites, apps and social media platforms are
Digital marketing is distributed to the public often accessible worldwide. Digital marketing
through digital channels, such as display on may overlap with traditional marketing, such as
websites, apps, social media platforms, games with QR codes or other links in physical content
and films, and accessible through digital devices (posters, magazines, events…) to digital content.
such as desktops, laptops and mobile phones.
Digital marketing evolves over time with The digital marketing supply chain involves a
technological developments in digital platforms. variety of actors, as Figure 7 illustrates. Yet, the
Digital marketing is also characterized by supply chain is increasingly disintermediated by
collection and processing of data, which gives a few actors that assume most of the activities
a degree of control over its distribution in within that process.
terms of customization and targeting. Digital

Figure 7. Digital marketing supply chain

Advertiser Ad Ad server
agency
Demand Side
Platform

DSP

Demand side Supply side

SSP

Ad exchange
(Bidding)
Supply Side Ad server Publisher
(website, online
Platform platform, search
engine, etc.)

Overview Restrict Monitor Enforce Annex

3. Defining marketing, including cross-border marketing and digital marketing 7

The actors in the digital marketing supply chain advertisers fall within both supply chains and
cannot be understood without considering digital marketing restrictions can often be
those in the product supply chain, which enforced against them directly.
are summarized in Figure 8. For example,

Figure 8. Typology of actors in the product supply chain

Manufacturers use the raw materials to manufacture the final product that will
be distributed, marketed and ultimately sold to customers.

Importers/Exporters are the persons or businesses responsible for

transporting goods from one country to another. An importer or exporter is
present in the product supply chain whenever marketing is cross-border.

Distributors are persons or businesses that ensure that the final goods are
distributed to retailers. They often promote the products too.

Retailers/licenced venues are the persons or businesses responsible for the

point-of-sale marketing and sale of the product to customers. Retailers can have
a physical and/or online presence.

Customers are the final recipient of the product; those who buy goods or services.

Users are persons that are active in online settings (websites, search engines, online
platforms, etc.) either to post online content, to interact with content posted online
(liking and sharing content), or just to see that content without any interaction.

Brands a brand is a name, symbol or other marker that distinguishes one business’s
good or service from others. The (tobacco/nicotine/alcohol/food and beverages/
breast-milk substitutes) brands are usually responsible for the manufacturing of the
product. However, brands may also be responsible both for the production and the
distribution of the product, or they may also conduct the sale of the product. The term
“brand” can therefore refer to manufacturers, distributors and/or retailers. Brands
may also license production or distribution to third parties.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 8

WHO instruments and reports addressing WHO documents refer to marketing techniques
marketing have not addressed digital marketing that use digital technologies, although without
in a comprehensive way. As Table 2 illustrates, precisely defining this notion.2

Table 2. Digital marketing in WHO instruments

Document Digital marketing references

WHO FCTC (2005) Article 13(4)(e) of the WHO FCTC requires Parties to comprehensively
ban tobacco advertising, promotion and sponsorship on radio, television,
print media “and, as appropriate, other media, such as the Internet”.
The WHO FCTC guidelines for implementation of Article 13 state that a
comprehensive ban on tobacco advertising, promotion, and sponsorship
should cover traditional media “and all media platforms, including
Internet, mobile telephones and other new technologies as well as films”.
The WHO FCTC requires Parties to ban “advertising, promotion and
sponsorship originating from [their] territory with cross-border effects”
Click to view
(out-flowing marketing) (1). The WHO FCTC Article 13 Guidelines adopt
a broad understanding of what constitutes cross-border out-flowing
marketing. It includes, for example:
• printed publications targeting or used in other jurisdictions and
originating from the Party’s territory;
• internet communications, whether the material is targeting persons
outside or inside the Party’s territory; or
• broadcasted material that could be received in another jurisdiction (2).

The WHO FCTC also notes the sovereign right “to ban those forms of
cross-border tobacco advertising, promotion and sponsorship entering
their territory” (in-flowing marketing) (3). In-flowing marketing includes:
• publications printed or produced in other jurisdictions and entering
the territory of a Party or targeting persons in that Party’s territory;
• all internet content that is accessible within a Party’s territory; and
• any audio, visual or audiovisual material received in a Party’s
territory, whether it targets persons in that territory or not (4).

2 An exception can be found in the 2022 WHO report “Scope and impact of digital marketing strategies for
promoting breastmilk substitutes”, where digital marketing is defined as “promotional activity, delivered
through a digital medium, that seeks to maximize impact through creative and/or analytical methods”.
However, this definition is not comprehensive either, as it does not define the methods that are used in
digital marketing and does not refer to data processing. The 2022 WHO Europe report “Digital marketing of
alcohol: challenges and policy options for better health in the WHO European Region” does not define digital
marketing but provides several examples of techniques that fall within the scope of digital marketing, such as
digital sponsorship, viral content, augmented reality, native advertising, online contests, influencer marketing,
or localized digital marketing, amongst others.

Overview Restrict Monitor Enforce Annex

3. Defining marketing, including cross-border marketing and digital marketing 9

Global Strategy to Paragraph 29 refers to “new marketing techniques”, which include

Reduce the Harmful Use “e-mails, SMS and podcasting, social media and other communication
of Alcohol (2010) techniques”.
Paragraph 17 of the Action Plan 2022-2030 for the implementation
of the Global Strategy to Reduce the Harmful Use of Alcohol (2022)
provides that “satellite and digital marketing present a growing
challenge for the effective control of alcohol marketing and
advertising”. Although it does not define digital marketing as such, it
provides some of its features:
• It can be implemented through social media platforms;
Click to view • It comprises an infrastructure that allows programmatic native
advertising, is data-driven, and is participatory.

Framework for This document defines digital marketing through a non-exhaustive

Implementing the Set of list of examples: branded pages on social media platforms, personal
Recommendations on the websites, messaging services, pop-up advertisements, search engine
Marketing of Foods and advertisements, and advergames.
Non-Alcoholic Beverages
to Children (2012)

Click to view

International Code of The Code bans advertising or other form of promotion of breast-milk
Marketing of Breast-Milk substitutes to the general public, but does not directly address specific
Substitutes (1981) strategies used in digital marketing.
Following a mandate from the World Health Assembly in 2020, it has
however been exposed that digital marketing is extensively used for
the promotion of breast-milk substitutes (5).

Click to view

Digital marketing is thus addressed differently digital marketing. However, some examples of
in each of the instruments described above. marketing and digital marketing techniques that
Approaches to digital marketing will continue will be mentioned in this report are provided in
evolving in the future, making it difficult to the following table.
define a comprehensive list of different types of

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 10

Table 3. Examples of digital marketing

Name Definition

Display advertising is online advertising using banner ads

and other visual ad formats (6). It is usually interactive
Display advertising
and can be displayed on websites, apps, or social media
platforms.

Native advertising is a technique that embeds branded content

designed to resemble non-commercial online content and
Native advertising
similar to the platform in which it is published, for example,
news articles or social media posts (7).

Social media advertising includes all advertising posted on

Social media social media platforms, including influencer advertising,
advertising native advertising, display advertising and branded pages of
manufacturers.

Influencer advertising is a form of social media advertising

involving user-generated ads, endorsements and product
placement aimed at social media users that have a large
Influencer
number of followers and can thus influence consumer trends.
advertising
Influencer advertising does not include all content posted by
influencers, but solely content involving some commercial
relationship between a brand and an influencer (8).

Search advertising is advertising placed amongst search

engine results. It is targeted to meet the keywords used by
Search advertising the consumer (9). Search advertising can be merely included
among the search results or prioritized to appear as a first
result (10).

Video advertising is advertising that occurs before,

during and/or after a video stream on the internet. It also
Video advertising
encompasses online display advertisements that have video
within them.

Audio advertising refers to advertising in audio content such

Audio advertising
as podcasts, digital radio, and streaming music services.

In-app advertising refers to advertising placed within a mobile

app, generally allowing app developers to keep their content
In-app (or mobile free for users. It is a popular monetization strategy for app
app) advertising developers, in which app developers get paid to serve ads on
their app. These ads include video units, display ads and native
ads.

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3. Defining marketing, including cross-border marketing and digital marketing 11

E-mail advertising is a type of marketing performed via email

whereby the recipient should have consented to receive
Email advertising promotional messages from a brand. It is the act of sending
promotional messages to people in via e-mail, using manual
or automated messaging (11).

SMS messaging SMS messaging advertising is the process of communicating

advertising (or business news, sales, promotion or other relevant
text messaging information to customers via SMS text messages on their
advertising) mobile devices (12).

Online retail is a form of electronic commerce which enables

Online retail consumers to buy goods or services from a seller over the
internet using a web browser or a mobile app.

In the digital environment, product placement typically occurs

Product placement through brand placement in on-demand videos and influencer
content.

Advertising in augmented reality environments (AR

advertising) uses a smartphone camera to superimpose
Advertising in
virtual objects, products or game characters with some
augmented reality
marketing content onto the real-world environment. For
environments
example, AR advertising could add a cigarette to a user’s
picture to make the user look as if she/he was smoking.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 12

4. Coordinating fragmented
laws applicable to digital
marketing
M arketing practices are generally
not regulated by a single piece of
legislation. Instead, rules applicable to
are also relevant. This section describes each
of these bodies of law to illustrate how some
jurisdictions have regulated this area. As is
marketing practices are usually illustrated below, the diversity of laws involved
incorporated into consumer protection necessitates legislative and institutional
laws, to media (broadcasting) laws or coordination.
laws specific to tobacco control,
alcohol or foods and beverages The following figure depicts relevant laws that
(sector-specific laws). frequently regulate digital marketing practices
in Member States. These laws are described in
the following sub-sections. Member States can
When examining digital marketing, rules assess what their current legal environment
applicable to data protection and to digital is in this regard using the Legal Environment
markets, telecommunications, or the internet Assessment provided in Annex 2.

...rules applicable to marketing practices are usually

incorporated into consumer protection laws, media
laws or laws specific to tobacco control, alcohol or
foods and beverages.

Overview Restrict Monitor Enforce Annex

4. Coordinating fragmented laws applicable to digital marketing 13

Figure 9. Laws regulating digital marketing

Sector- Advertising Consumer Broadcasting Data Digital

specific laws/codes protection laws protection markets
laws laws laws laws

Jurisdictional Broad or Variable - Narrow Narrow - often Broad - Broad -

based on sometimes - often based on sometimes sometimes
reach
connecting only national based on nationality global global
factors advertising, nationality
sometimes all
advertising,
often not
clarified in the
law

Topics Prohibited Prohibited Prohibited Prohibited Consent Disclosure

or restricted advertising advertising advertising requirements, obligations,
covered
advertising practices, practices, practices, child health child
child protection data, child protection,
practices, disclosure
protection, protection automated
disclosure obligations, disclosure decision-
obligations, child obligations making,
provisions protection, consent
protecting allowed requirements
vulnerable advertisements
populations

Enforcement Ministry Ministry of Ministry of Ministry of Data Ministry

of Health Consumer Consumer Communication, protection of Trade,
authority
or health Protection, Protection, Ministry of authorities Ministry of
agency with Ministry of Ministry of Economic Economic
express Economic Economic Affairs, Ministry Affairs,
delegation Affairs, Affairs, of Industry, competition/
of powers advertising Ministry of Ministry of antitrust
to other associations... Trade... Trade... authorities...
authorities
where
needed

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 14

4.1 Advertising laws and codes

Some jurisdictions have adopted advertising to it, for example in Norway and Sweden (23).
laws, either applicable to advertising in general However, some laws include specific provisions
or advertising by specific sectors. Advertising on digital advertising. The PRC Advertisement
standards and codes have also been developed by Law provides that internet advertising should
some advertising associations representing the not affect the user’s normal use of the internet,
interests of the advertising and media industry. and that pop up advertising should include
obvious signs for turning it off. The law also
contains detailed rules for endorsers (that are not
4.1.1 General advertising laws and codes restricted to online endorsers) (24), and for e-mail
advertising (25). The Estonian Advertising Act
Some countries have specific laws on advertising was amended in 2018 to prohibit the advertising
applicable to all advertising and media including of alcohol in social media networks, except on the
Spain (13), China (14), Azerbaijan (15), Georgia (16), website and social media account of the alcohol
or Lithuania (17). Advertising laws typically: handler (26). Alcohol digital marketing rules have
also been introduced in general advertising laws
• Prohibit illicit advertising, which can be defined in the Russian Federation, for example (27).
in accordance with certain values, certain
advertising practices or certain products. Many advertising associations have also
For example, the Spanish law on advertising established advertising codes. These are often
qualifies subliminal advertising as illicit not legally binding in the sense that they do not
advertising (18). create general advertising laws applicable to all
economic operators, but they can be compulsory
• Prohibit misleading advertising, which is for undertakings that belong to the association
sometimes defined by reference to consumer or advertising sector. Examples of such codes
protection laws (19). include:

• Restrict the advertising of specific products. • United Kingdom: United Kingdom Code of Non-
For example, Viet Nam’s advertising law bans Broadcast Advertising, Sales Promotion and
the advertising of cigarettes, some alcoholic Direct Marketing (CAP Code), established by the
beverages, breast-milk substitutes for children Advertising Standards Authority (ASA) (28);
under 24 months old, dietary supplements
for children under 6 months old and artificial • Singapore: Singapore Code of Advertising
feeding bottles and pacifiers (20). Practice (SCAP), established by the Advertising
Standards Authority of Singapore (ASAS) (29);
• Impose or prohibit the use of disclosures or
claims for certain advertisements. For example, • Australia: Australia Association of National
the Advertisement Law of the People’s Republic Advertisers (AANA) Code of Ethics (30);
of China (PRC Advertisement Law) requires
advertising for prescribed drugs and medical • South Africa: Advertising Regulatory Board
devices to include certain health claims (21). (ARB) Code of Advertising Practice (31);

• Provide an enhanced level of protection for • India: Advertising Standards Council of India
vulnerable populations, such as children (22). (ASCI) Code for Self-Regulation in Advertising
(32); and
Advertising laws do not typically refer to digital
marketing, but they have in practice been applied

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4. Coordinating fragmented laws applicable to digital marketing 15

• Spain: Code of Advertising Behaviour the Chilean Law on the nutritional composition of
Autocontrol (33). foodstuffs and their advertising (36).

All these codes require advertising to be honest, These laws regulate the advertising of specific
decent, and truthful (34). Other typical provisions products in at least three ways:
in advertising codes concern the identification of
advertisements to enable consumers to recognize • They plainly prohibit the advertising,
them, the prohibition of misleading or harmful promotion and sponsorship of that product
advertising, or specific rules for advertising aimed category. This is typically the case with
at children. tobacco products (37) but is also found in
some alcohol control laws (38) and breast-
milk substitutes laws (39).
4.1.2 Sector- and product-specific marketing
laws and codes • They strictly regulate such advertising by
requiring or prohibiting the use of health
In the absence of general advertising laws, some claims or warnings,3 prohibiting certain
jurisdictions adopt laws regulating marketing messages,4 providing strengthened protection
in specific sectors or with respect to specific for children,5 or restricting digital marketing
product categories. Under a broader approach, explicitly.6
jurisdictions can regulate the marketing of all
health-related products and services. Mexico has • They explicitly define what advertising is
followed this path by adopting the Regulation permitted by requiring, for example, that
of the General Law on Health in Matters of advertising may only contain factual or
Advertising (35). Under a narrower approach, informative data and objective qualities.7
jurisdictions regulate the marketing of one product
category. Examples of this model are the European
Union (EU) Tobacco Advertising Directive and

3 For example, the Mexican General Health Law requires the use of health claims in advertising, both in
traditional and digital media; in Chile, the Law on the composition and advertising of foodstuffs requires all
food advertising in mass media to include a health warning promoting a healthy lifestyle; in Viet Nam, the
Decree on nutritious products for infants, feeding bottles and teats requires complementary foods for under
24 month infants to include the claims “breast milk is the best food for health and all-sided growth of infants”
and “the product is a complementary food and may be used as a supplement to breast milk for infants over 6
months”(Art. 6(2)(a) and (b)).
4 In Chile, the law on the composition and advertising of foodstuffs prohibits breast-milk substitutes advertising
that disincentivizes breastfeeding.
5 In Chile, the law on the composition and advertising of foodstuffs prohibits the advertising of food high
in calories, fat, sugar or salt in schools; the offer of such products for free to children under 14; their
advertising if targeted at children under 14; or the use of promotional elements such as toys, accessories
or other incentives.
6 Finland’s Alcohol Control Act incorporates special regulations on social media alcohol advertising; see
Section 7.
7 For example, in France, alcohol advertising can only describe the alcohol content, origin, name, composition
of product, name and address of manufacturer, agent and stockists, the method of production, methods
of sale, and methods of consumption. Alcohol advertising can also refer to production areas, awards
obtained, designations of origin or geographical indications, and objective references related to the
product’s colour, smell and taste; see Code de la santé publique (https://www.legifrance.gouv.fr/codes/ id/
LEGITEXT000006072665, accessed 16 March 2023), Art. 3323-4.

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In some jurisdictions where marketing is not distributors, importers and any other seller of
comprehensively restricted, law requires tobacco products (41).
manufacturers to provide clear and transparent
information about their marketing campaigns.8 Typically, sector specific laws such as those
For example, in the United States, tobacco governing tobacco advertising are set out in
manufacturers are obliged to report on their legislation governing that sector more broadly,
domestic advertising and promotional activity such as a national tobacco control law. Unlike
to the Federal Trade Commission (FTC), which laws governing advertising more broadly, sector
then publishes regular reports aggregating all specific laws of this type usually sit within the
information received (40). In Nigeria, a disclosure domain of ministries of health or other health-
obligation applies to manufacturers, wholesale related agencies.9

Figure 10. Policy options in sector-specific advertising laws

Regulate the advertising of Regulate the Ban advertising

advertising of one or of one product
health-related matters.
product category. category.

For example, Mexico

For For example,
example, tobacco products
foodstuffs in Ethiopia,
in Chile Senegal,
Mauritius

Beyond formal legal instruments, some bodies that a media service code may be made to
have also adopted codes to regulate advertising ensure that commercial communications protect
practices of specific products including, but not the interests of the audience. This may result
limited to, those that are harmful to health (42). in prohibitions or restrictions of commercial
communications relating to foods or beverages
The adoption of such codes may be contemplated of public concern in respect of the general
in the law itself. For example, the Online Safety public health interests of children, in particular
and Media Regulation Bill in Ireland provides infant formula, follow-on formula, or foods

8 This obligation applies to tobacco products, for example, in Canada, Ireland, Israel, Nigeria, Thailand, and the
United States.
9 Note that health-related agencies may operate under ministries other than the Ministry of Health. For
example, food safety authorities sometimes sit within ministries of agriculture or trade.

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4. Coordinating fragmented laws applicable to digital marketing 17

and beverages which contain fat, trans-fatty messages that will be sent; requester’s name
acids, salts or sugars (43). It also provides that and contact information (physical mailing
commercial communications relating to those address and either a telephone number,
products may be prohibited or restricted in an e-mail address or a website URL); a
programmes or user-generated content through statement that the recipient may unsubscribe
an online safety code (44). Where industry at any time (50).
codes are adopted, linking them to laws and/
or making them enforceable through legislation • Requirement of clear identification of the
is a policy option for governments to consider. message. For example, the Singapore Spam
The merits of this approach may depend on a Control Act requires all unsolicited commercial
range of factors, including the extent to which communications to be titled “ADV”, so that
industry codes are government led and capable recipients know they are an advertisement
of government objectives, such as a high level before opening the message (51).
of health protection. Where this is not the case,
governments might opt to regulate marketing • Availability of a facility to unsubscribe
directly through law. at any moment. For example, in Chile,
SMS advertising needs to include a quick
mechanism for recipients to be able to
4.1.3 Standalone laws prohibiting specific request not to receive such commercial
advertising techniques: Spam control laws communications (52).

Some jurisdictions have adopted specific

legislation to control one specific digital 4.1.4 Digital marketing codes and guidance
marketing practice, “spam”, which can be defined
as “unsolicited commercial communication Some governments have adopted guidelines on
sent in bulk by email or by text or multimedia digital advertising in order to clarify application
messaging to mobile telephone numbers”45. of advertising and consumer protection laws. For
Examples of jurisdictions that have adopted example, the Department of Consumer Affairs
such legislation are Singapore (46), Australia of India has released a set of guidelines called
(47), Japan (48), and Canada (49). In other “Endorsements know-hows!” for celebrities,
jurisdictions, direct marketing and/or spam influencers and virtual influencers on social
advertising are regulated within more general media. They clarify the extent and content of
laws, such as on data protection or consumer disclosure obligations to ensure that endorsers
protection.10 do not mislead consumers. Non-compliance
with those obligations constitutes a violation of
Anti-spam laws usually impose three main the Consumer Protection Act (53). The United
obligations. States FTC has adopted the Guides Concerning
the Use of Endorsements and Testimonials
• Requirement of expressed consent from in Advertising, which address the application
recipients before sending unsolicited of Section 5 of the FTC Act to, among others,
messages. The request for consent must be influencer advertising (54).
clear and specific. For example, Canada’s anti-
spam law requires the request for consent to Some advertising associations have also
include: a clear and concise description of the adopted publications focusing on digital
purpose in obtaining consent; a description of marketing or on specific features of digital

10 For example, South Africa includes provisions on unsolicited direct marketing via e-mail or SMS in its data
protection legislation; Chile includes such rules in its consumer protection law.

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marketing, such as influencer advertising or disclosures in digital advertising”, which

social media advertising. These codes have been provides recommendations to better identify
adopted by several bodies, as the examples digital advertising (61). This is particularly the
below illustrate. case regarding influencer marketing, which is
often addressed through specific guidelines on
• The European Advertising Standards labelling and disclosure recommendations (62).
Alliance published, in 2008, a Digital For example, in India, the ASCI Guidelines for
Marketing Communications Best Practice Influencer Advertising in Digital Media require
Recommendation (55). all advertisements published by social media
influencers or their representatives on the
• The Singapore ASAS adopted, in 2016, influencer’s account to carry a clearly identifiable
the Guidelines on Interactive Marketing disclosure label (63). These guidelines contain
Communication and Social Media, which were specific rules to determine whether a disclosure
added to the SCAP (56). is required and where the disclosure has to
appear (64). They also permit a limited number
• The Australian Influencer Marketing Council of labels to be used as disclosure (65).
(AiMCO) adopted, in 2021, the Australian
Influencer Marketing Code of Practice (57). In addition to advertising industry codes, some
online platforms, including Facebook, Instagram,
• The United Kingdom Incorporated Society of Twitter or Google, have adopted their own
British Advertisers (ISBA) adopted, in 2021, voluntary, intra-firm advertising and promotion
the Influencer Marketing Code of Conduct (58). codes. These may implement national laws but
may also restrict marketing to a greater extent
• The Indian ASCI adopted, in 2021, the than what is required by national legislation.
Guidelines for Influencer Advertising in Digital One limit of those voluntary rules is that social
Media (59). media platforms often do not restrict branded
pages and accounts of restricted products (for
Sometimes, specific sections on digital marketing example, e-cigarettes brands accounts and
have been added to general marketing codes pages) as falling under their advertising bans.
without adopting a new instrument to address Therefore, exposure to marketing remains.
this issue (60). Different platforms also have different policies,
meaning that deferring to them is not a policy
Whatever the approach, all provisions on option likely to produce a consistent approach to
digital marketing focus on the identification of regulation of marketing. Rather, voluntary rules
advertisements. For example, in the United typically implement mandatory measures in
States, the FTC has published the report some countries.
“.com Disclosures: How to make effective

4.2 Consumer protection laws

Consumer protection laws regulate marketing and misleading, deceptive or unconscionable
activities, and commercial practices more actions and omissions. The main rule is that
generally, including when carried out through advertising cannot mislead consumers as
digital marketing. These instruments are regards the composition and characteristics of a
targeted at brands advertising their products. product, its purpose or its price (66).
They usually prohibit unfair commercial practices

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4. Coordinating fragmented laws applicable to digital marketing 19

Box 1. Case study: the EU Unfair Commercial Practices Directive

Region: EU

Law: The EU Unfair Commercial Practices Directive (UCPD)

In the EU, the UCPD is structured as follows (67):

1) a list of unfair commercial practices that are always prohibited (blacklisted practices); and
2) a prohibition of any other commercial practice not included in the list that is misleading or
aggressive.

The UCPD contains rules on two elements that can have implications for digital marketing.

• Disclosure obligations: The blacklist of unfair commercial practices includes using editorial content
in the media to promote a product without making that clear (68), providing search results in
response to a consumer’s online search query without clearly disclosing any paid advertisement
or payment for achieving higher ranking of products (69), falsely claiming that a product cures
illnesses, dysfunction or malformations (70), or hidden advertising (71). Social media platforms
present increased risks for hidden advertising, native advertising, or problematic algorithmic
practices. Therefore, all forms of commercial communications in social media must be clearly
disclosed to avoid falling within one of those categories (72). The failure to disclose information
may also lead to misleading advertising. For example, marketplaces must clearly inform whether
the third party offering the product is a trader or not (73). Online interfaces showing several
search results must inform about the parameters determining the ranking of products and the
relative importance of those parameters (74). As influencers fall within the notion of “trader”
under the UCPD, they also have an obligation to declare any commercial practice and make clear
that a brand has paid for the promotion of a product (75). However, the UCPD does not impede
influencers from conveying their personal opinion on unhealthy products if there has not been
any agreement with the producer (76).

• Prohibition of unsolicited messages or exhortation: the UCPD prohibits persistent and unwanted
solicitations (77), or direct exhortation to children to buy advertised products (78), Displaying
advertisements in the inbox of an email service in a form similar and in the same position as
real emails falls within the concept of persistent and unwanted solicitations if the display of the
advertising is frequent and if the consumer has not given consent (79).

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4.3 Audiovisual, broadcasting and other media laws

Audiovisual media legislation usually regulates programmes, videos and advertising which
conditions to advertise products, including those may impair their physical, mental or moral
that are harmful to health in television, on- development (85).
demand audiovisual media services, and video-
sharing platforms. These rules are targeted Other jurisdictions cross-reference sector-
at advertisers. The EU Audiovisual Media specific rules in their broadcasting laws.
Services Directive (AVMS Directive) provides an For example, in Argentina, the Audiovisual
interesting regulatory example in that regard Media Services Law provides that those who
(80). It regulates the advertising of harmful produce, distribute, broadcast or benefit
commodities in the following manner. economically from the broadcasting of tobacco
and alcohol advertising have to comply with
• Tobacco products: all advertising, sponsorship the laws regulating those products (86).
and promotion is prohibited (81). It further provides that audiovisual media
services licensees or authorized audiovisual
• Alcoholic beverages: advertising on TV, media services can only broadcast alcohol
on-demand audiovisual media services and and tobacco advertising that complies with
video-sharing platforms cannot be specifically the laws regulating those products (87). The
aimed at children and cannot encourage Law to Fight against Alcoholism prohibits any
immoderate consumption of alcohol (82). marketing communication targeting minors
under 18, featuring minors under 18, implying
• Unhealthy food and beverages: self-regulatory that alcohol strengthens physical or intellectual
codes should reduce the exposure of abilities, using alcohol as a sexual stimulant,
children to advertising of unhealthy food and using violence, and not including health
beverages (83). warnings specified in the law (88). The Tobacco
Advertising Law bans all advertising, promotion
• Other unhealthy commodities: advertising on and sponsorship of tobacco products (89). Non-
TV, on-demand audiovisual media services compliance with the Audiovisual Media Services
and video-sharing platforms should not Law may result in sanctions for audiovisual
encourage behaviour prejudicial to health or media service providers, including warnings,
safety (84); video-sharing platforms should fines, advertising suspensions, and licence
take measures to protect minors from withdrawals (90).

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4. Coordinating fragmented laws applicable to digital marketing 21

Figure 11. Policy options for regulating the advertising of specific

product categories through media laws

Reference to the sector-specific Regulating the advertising of specific

law in the broadcasting law products in audiovisual media law

Argentina EU
The broadcasting media law The audiovisual media law is
incorporates sector specific used to establish any applicable
restrictions by reference, thereby restrictions on marketing in the
bringing those restrictions within audiovisual context
the scope of the broadcasting
media law for enforcement
and other purposes

4.4 Data protection laws

Digital advertising is also subject to privacy (91). Targeted advertising through the use of
or data protection laws which determine how personal data increases the power of marketing,
brands and online platforms can obtain data especially on children (92). Several elements
and to what extent users must be aware of their in data protection laws can affect how digital
data being processed. For example, alcoholic advertising is conducted:
beverages brands gather data from social media,
apps, e-commerce, or social listening strategies. Concept of personal data
This data allows brands and platforms, amongst
others, to understand the brands or topics Legislation can have a broader or narrower
that can be better leveraged for marketing, to approach to personal data. For example, some
profile users and target advertising to them and rules govern a broad range of online identifiers
develop promotional campaigns that are highly such as cookies, IP addresses and radio
personalized in terms of individual profiles, frequency identification tags, which play a crucial
activities, behaviours and geographical location role in profiling and targeted advertising (93).

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Sensitive or special personal data interpretation provides a strengthened layer of

protection for vulnerable consumers.
Enhanced protection for sensitive personal
data, including health data, is provided in a Some data protection laws protect sensitive
number of jurisdictions and may influence data from profiling and automatic decision-
targeted advertising of tobacco, nicotine, alcohol, making. For example, in the EU, the General
unhealthy food and beverages, and breast-milk Data Protection Regulation (GDPR) prohibits
substitutes (94).11 For example, protecting the automated decision-making based on sensitive
collection, use or disclosure of information data (96).
about addictions or medical history by requiring
explicit consent, prohibiting use or disclosure Concept of consent
of sensitive personal data in some settings
(e.g. contact details of nursing mothers to While all data protection laws define consent
producers of breast-milk substitutes) or general as the main criterion for the processing of
prohibitions on use or disclosure of sensitive personal data, they do not all have the same
personal data except for specified purposes understanding of what consent is. A stricter
(e.g. for provision of health care) can avoid that interpretation of this term contributes to more
information being used for targeted advertising informed consumers and reduces the risk
directed at vulnerable consumers. of unintended processing of personal data.
Several jurisdictions require that consent
However, protecting sensitive personal should be freely given, specific, informed and
data may not be sufficient in itself to avoid unambiguous (97).12
vulnerable consumers from being exposed to
advertising of harmful commodities. Artificial The need for consent for targeted and
intelligence (AI) allows linking observable behavioural advertising has been recently
behaviour (online activity, purchases, likes reaffirmed in the EU. In January 2023, The
and shares…) to inferred non-observable Irish Data Protection Commission imposed
sensitive data (psychological attitudes, health a €390 million fine on Meta (parent company
condition, sexual orientation, religious and of Facebook and Instagram) for violating the
political preferences…). In most jurisdictions, GDPR through its targeted and behavioural
this type of data collection and use would fall advertising policy (98). Meta did not ask for
outside the scope of protections for sensitive consent when processing personal data for the
or personal data. This is no longer the case purpose of behavioural advertising and, instead
in the EU, where the Court of Justice of the solely required customers to accept the terms
European Union (CJEU), in the Vyriausioji of reference. Meta considered the contract with
tarnybinės etikos komisija judgment of 1 August its customers was based on the premise of the
2022, has established that such inferred data provision of a personalized service that includes
also constitutes sensitive personal data and is personalized or behavioural advertising. The
subject to increased protection (95). This broad European Data Protection Board and the Irish
Data Protection Commission did not accept

11 Enhanced protection for sensitive personal data is granted in the EU, Thailand or Brazil, for example.
12 Each of the conditions are typically provided in the law. For example, in the GDPR, consent has to cover all
processing activities carried out for the same purpose, the data subject has to be informed of the existence
of the processing operation and its purposes, and consent should be given by an unambiguous indication of
the data subject’s agreement to the processing of personal data, such as a written or oral statement, but not
a pre-ticked box or inactivity. The data subject also needs to be informed of the existence of profiling and the
consequences of such profiling.

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4. Coordinating fragmented laws applicable to digital marketing 23

Meta’s reasoning. They decided that Meta is children and adolescents’ personal data must
required to obtain consent to provide targeted take account of their best interests. This results
and behavioural advertising. Similarly, in July in the following requirements (103).
2022, the Italian authority issued a formal
warning against TikTok for basing t11 Enhanced
protection for sensitive personal data is granted
in the EU, Thailand or Brazil, for example. • Specific consent must be granted by at
rocessing of personal data for the purposes of least one parent or responsible person.
targeted advertising on its legitimate interests
and not on consent. The Italian authority was • The controller must publish information
also concerned by the protection of children, on the kind of data collected, their use,
as difficulties in implementing effective age and the procedure to exercise data
verification mechanisms in the platform entailed rights.
the risk that personalized advertising would
be served to children without consent (99). A • Information on data processing must
limitation of the extent to which data protection be published in a simple, clear and
laws restrict targeting of digital marketing accessible manner.
is that the obtaining consent is sufficient to
process data for marketing purposes. Individual • Controllers cannot subject games, apps
users may receive numerous consent requests, or other activities to more children
making their acceptance routine and thus and adolescents’ data processing than
limiting the protective purpose of legislation. strictly necessary.

Protection of vulnerable data subjects, in

particular children
The above-mentioned data protection rules
Most data protection laws, but not all of them, may help to protect children from targeted
provide stricter rules for the processing of advertising, as they restrict the amount of data
children’s data (100).13 These rules generally collected and the ability of brands to personalize
require consent from the holder of parental their advertisements to target children
responsibility to process children’s data (101). more effectively, thus reducing the power of
They sometimes also require information marketing. However, the effective protection
addressed to children to be accessible to them of vulnerable data subjects, including children,
(102). Brazil’s data protection law has strict rules requires the ability to properly identify them
on children’s data protection. The processing of which can constitute a challenging task.

4.5 Digital markets laws

A recent development influencing digital digital markets. Instruments in the EU and in the
marketing concerns the adoption of laws United States illustrate this point.
addressing online platforms and regulating

13 The age covered by child-protection clauses varies from one law to the other. For example, Australia
defines rules for children under 15 years old, the EU grants strengthened protection to children under 16
years old, and Thailand establishes two sets of rules (minors and under 10 years old).

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Box 2. Case study: the EU digital markets and digital services acts

Region: EU

Law: Digital Markets Act and Digital Services Act

In the EU, two parallel instruments have been adopted, the Digital Markets Act (DMA) and the Digital
Services Act (DSA) (104). Both instruments introduce rules for digital services including digital
advertising.

The DSA primarily concerns online intermediaries and platforms – such as online marketplaces, social
networks, content-sharing platforms or app stores. The DMA governs gatekeeper online platforms
providing core platform services. These are digital platforms that function as bottlenecks between
businesses and consumers for important digital services, such as search engines or social networks
with a strong turnover or capitalization.14

The DMA complements the GDPR, as it adds new consent requirements for the processing of personal
data (105). It also adds disclosure obligations by requiring gatekeepers to submit to the European
Commission an independently audited description of any techniques of profiling of consumers that the
gatekeeper applies in its core platform services. An overview of such description should be publicly
available (106).

The DSA has a more direct impact on digital marketing by regulating two main aspects. On the one
hand, it provides detailed rules for online platforms to make users aware that they are viewing
advertising (107). Article 24 requires online platforms engaging in advertising to disclose the authors
and the parameters used to determine the recipient of the advertisement. Very large online platforms
(as defined in Article 25(1) of the DSA) that use recommender systems should display the parameters
used for such systems (108). Very large online platforms that display advertising should also create
and make publicly available a repository containing information on the advertisement displayed in
their interfaces. Such repository should provide whether the advertisement was targeted at specific
categories of recipients and, if so, the main parameters used for the targeting (109).

On the other hand, the DSA limits targeted advertising. Providers of online platforms cannot present
advertising based on profiling when they are aware with reasonable certainty that the recipient of the
service is a minor (110). Moreover, they cannot present advertising based on profiling conducted using
sensitive data (111).

14 Under the DMA, a gatekeeper is a provider of core platform services that serves as an important gateway for
business users to reach end users, enjoys a durable position in its operations and has a significant impact in
the internal market (Art. 3).

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4. Coordinating fragmented laws applicable to digital marketing 25

In the United States, a Digital Advertising Act Google, Meta or Amazon to divest significant
was proposed in May 2022 (112). This proposal portions of their advertising businesses (113).
regulates competition and anticompetitive This would result in companies collecting and
practices among digital advertising platforms, processing a more limited amount of data and
rather than data protection and targeting therefore not being able to fully personalize and
practices. Digital advertising is dominated by target their advertising.
a few undertakings that are active in all sides
of the supply chain. The proposed Act would Similar legislation has been proposed in
prohibit large digital advertising companies other jurisdictions, such as Republic of
from owning more than one part of the digital Korea and Australia (114). Rules regulating
advertising ecosystem, which is comprised of digital markets therefore have the potential
the digital advertising exchange, the sell-side to limit targeted advertising and strengthen
brokerage, the buy-side brokerage, and the disclosure obligations.
buyer or seller of digital advertising space.
The Digital Advertising Act would also require A recent development in the regulation of
medium and large digital advertising companies digital markets concerns the adoption of
to abide by several obligations to protect their content moderation laws, which are examined
customers and competition. If adopted, this in section 8.
instrument would require companies such as

4.6 Observations and policy options

A variety of laws influence how digital (informing that an advertisement is an
marketing can be conducted. Different laws advertisement, or that their data will be
regulate different aspects of digital marketing, processed for advertising purposes),
thus leading to a strong fragmentation. An to governments (reporting marketing
examination of all those instruments reveals expenditure for certain products) or to the
three main categories of rules. public more generally (having advertising
repositories available for everyone).
• Advertising restrictions: some laws either
fully ban the advertising of certain products However, each of the applicable laws will vary in
or specific marketing techniques, either they terms of:
regulate the content of advertising, marketing
techniques, or advertising to vulnerable • their addressees (brands, audiovisual media
consumers. or online platforms)

• Strengthened protection of relevant interests: • their jurisdictional reach (broader or

most laws provide strengthened protection narrower)
either for vulnerable populations, in particular
children, or for legitimate interests, such as • the authorities competent for their
health data in data protection laws. administration (government, advertising
associations, online platforms)
• Disclosure obligations: several laws
impose disclosure obligations to consumers • the enforcement measures.

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Box 3. Policy options

Legislative coordination to restrict data protection, media, digital markets /

marketing and allocate authority regulation of the Internet) to create sector-
for effective monitoring and specific restrictions where they do not
enforcement otherwise exist and enable their monitoring
and enforcement. Alternatively, include
Restrict digital marketing of specific product cross-references in laws applicable to
categories in a sector specific law specifying: marketing to sector specific laws establishing
marketing restrictions to ensure coordination
• prohibited and restricted practices and bring sector specific restrictions within
the scope of laws applicable to marketing and
• jurisdictional reach their enforcement regimes.

• liability provisions Adopt a broad and (non-exhaustive) definition

of marketing covering digital marketing
• enforcement powers, procedures and and future innovation to the greatest extent
measures (including those linked to other possible.
provisions of sector specific laws, such as
licensing measures) Include enabling provisions in legislation
granting regulatory powers to government
Include cross-references in sector specific agencies that enable them to adapt to future
laws to other relevant laws governing innovations in digital marketing, including
marketing, coordinating the substantive by prohibiting and restricting practices and
restrictions, monitoring and enforcement. using monitoring mechanisms.

Strengthen existing laws applicable to Where industry codes are in place, link them
marketing (including consumer protection, to formal laws to make them enforceable.

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5. Defining an effective jurisdictional scope for regulation of digital marketing and enforcement 27

5. Defining an effective
jurisdictional scope for
regulation of digital
marketing and enforcement
D igital marketing often involves more
than two jurisdictions, as brands,
advertising agencies, publishers and
regulate digital marketing? Who can
investigate and gather information? Who
can impose sanctions and enforce those
customers may all be established in sanctions? Governments have adopted
different territories. This characteristic different approaches to this issue, as the
raises jurisdictional concerns: who can following sub-sections reveal.

5.1 The concept of jurisdiction

The concept of jurisdiction in public international in country A but they have a well-established
law comprises three different elements: reputation among the youth and their posts
jurisdiction to legislate, to adjudicate and to reach country A. Is country A’s legislation
enforce (115). These three types of jurisdiction applicable to this advertising campaign? Can
are also of relevance to private law concerns a tobacco manufacturer, advertising agency,
and must be considered when examining influencer or platform, be made subject
marketing regulation. to country A’s rules prohibiting tobacco
advertising?
Jurisdiction to legislate: when does a State have
jurisdiction to restrict marketing? Jurisdiction to adjudicate: when is a court or
a tribunal competent to rule on a marketing
The first type of jurisdiction defines the limits on dispute?
the law-making powers of governments. Rules
on jurisdiction to legislate determine which The second type of jurisdiction regulates the
activities a State can regulate and whether a authority of the judiciary. Rules on jurisdiction to
State’s regulation can have extra-territorial adjudicate determine when a court or a tribunal
effects. may hear a case, determine which law should
govern the dispute, and rule on the merits.
Example:
Example:
Country A has a comprehensive ban on tobacco
advertising. A tobacco manufacturer established An alcoholic beverage manufacturer established
in country B launches an advertising campaign in country A advertises its products through a
using influencers. None of those influencers live social media platform established in country B.

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The advertisement is targeted at an audience prohibits all unhealthy food advertising targeting
comprising customers residing in several children under 12. The cereal manufacturer is
countries. The advertisement has, in particular, found to have violated the law and is ordered to
reached citizens of country C, which bans take down the campaign, publish a corrective
alcoholic beverage advertising. Can a court statement warning against the impact of
from country C adjudicate a dispute about unhealthy food, and pay a fine. The cereal
the compliance by the alcoholic beverages manufacturer does not follow the required
manufacturer with the law? actions. Can the authorities of country B enforce
these sanctions against company A? Otherwise,
Jurisdiction to enforce: when are authorities are there any other mechanisms to implement
competent to enforce sanctions imposed for a such sanctions?
failure to comply with marketing regulation?
The scenarios above underline some of the
The third type of jurisdiction defines the limits on questions that can arise when adopting and
the executive branch of government responsible implementing legislation in a digital context, as
for implementing the law. Enforcement actions take place in several jurisdictions and
jurisdiction in international law is almost the question of what authorities are competent
exclusively territorial. The police or similar to address arises. While the three categories of
forces may only operate within the limits of their jurisdiction are distinct, laws need to address all
territory, in the absence of an authorisation from of them in their provisions, to avoid situations
other States or a special permissive rule under where the law defines a number of prohibited
international law (116). practices but does not grant the necessary
powers to public authorities to implement,
Example: monitor and enforce the rules. It is thus relevant
to describe if and how different countries have
A cereal manufacturer established in country A approached this question. This section examines
has launched an advertising campaign on social the jurisdiction to regulate and adjudicate. The
media. This campaign targeted children aged jurisdiction to enforce is addressed in Section 8.
5-10, in violation of country B’s legislation, which

5.2 Jurisdictional rules in practice

Laws regulating digital marketing use a variety combine traditional connecting factors found
of approaches to jurisdiction. These approaches in public international law, namely nationality
are classified, for the purposes of this and territoriality (117), and connecting factors
publication, depending on the factors that enable specifically addressing the online environment.
an authority to act (exercise jurisdiction). They

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5. Defining an effective jurisdictional scope for regulation of digital marketing and enforcement 29

Figure 12. How to define the jurisdictional scope

Jurisdictional
scope includes:

Jurisdiction
to legislate

Jurisdiction Jurisdiction
to enforce to adjudicate

These combine three key

connecting factors
Nationality Targeting

Territory

• Undertakings established • Advertising activities • Advertising targeted

in the country conducted in the country at nationals in the
country
• Requires a legal
presence in the country

No references to jurisdiction does not elaborate on whether this prohibition

applies to advertising produced and published
Several laws leave the question of jurisdiction in another jurisdiction but targeted at, or visible
open. In such cases, the law simply provides an from, Thailand.
obligation or a prohibition but does not clarify the
territorial scope of the rule. There are numerous Nationality as the connecting factor
examples of this scenario. The Tobacco Products
Control Act of Thailand provides that “no person Some laws provide for the exercise of
shall advertise or convey any marketing message jurisdiction over natural and legal persons that
for tobacco products” (118). However, the act have the nationality of the country, wherever

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they are located and wherever their activities Targeting as the connecting factor
are conducted. Nationality is understood
here in a broad manner, as it may cover the A broader jurisdictional claim is established
nationality of natural persons, the place of by laws that subject all advertising directed at
establishment of legal persons but also the their nationals, wherever the undertakings are
place of residence. established and wherever the advertisements
are produced, edited or published. It assesses
In Australia, the Competition and Consumer jurisdiction based on the effects that an online
Act provides the extended application of action has produced in a certain territory.
the Act, including most of its consumer law,
to conduct outside Australia by Australian The Mexican Regulation to the General Health
citizens, legal persons incorporated or Law on Advertising follows this approach.
carrying on business in Australia or persons It provides that “advertising aimed at being
ordinarily resident in Australia (119). disseminated in the national territory,
independently of its origin, must abide by
EU Member States laws transposing the this law, the regulation and other applicable
AVMS Directive also define the place of provisions” (124). Similarly, the ASCI code
establishment of service providers as the for self-regulation in advertising “applies to
main connecting factor to exercise jurisdiction. advertisements read, heard or viewed in India
However, they do so by following a broad even if they originate or are published abroad
interpretation of the notion of “place of as long as they are directed to consumers in
establishment”. For example, the Spanish India or are exposed to significant number of
Law on Audiovisual Communication (120) consumers in India” (125).
determines the place of establishment based
on the provider’s central establishment, where Combining several connecting factors
the provider conducted its first activities, or
where the satellite uplink used by the provider More complex jurisdictional clauses result from
is based. Video-sharing platforms are also the combination of a variety of connecting factors,
considered to be established in Spain if they which allows broader jurisdictional claims.
have a parent company, a subsidiary or a
partner company in Spain. A service provider The Singapore Spam Control Act combines
established in another EU Member State that territoriality and nationality as a basis for
targets its services to the Spanish market is jurisdiction. In accordance with section 7, the Act
also subject to some of the rules provided in does not apply unless an electronic message has
the law (121). Similar provisions are found a Singapore link. It is considered that a message
in other national laws transposing the AVMS has a Singapore link if one of the following
Directive (122). conditions is met (126).

Territory as the connecting factor • The message originates in Singapore.

Other instruments bring conduct within their • The sender of the message is an individual
jurisdiction where that conduct occurs in the physically present in Singapore when the
territory concerned. For example, the PRC message is sent.
Advertisement Law provides that “advertisers,
advertising agents and advertisement • The sender is:
publishers shall abide by this law in engaging
in advertising business within the territory of • an entity formed or recognized under the law
the People's Republic of China” (123). of Singapore; or

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5. Defining an effective jurisdictional scope for regulation of digital marketing and enforcement 31

• An entity with an office or a place of • paid-for marketing communications from or

business in Singapore. by marketers targeting people in the United
Kingdom; and
• The computer, mobile phone, server or
device used to access the message is located • direct marketing communications (e-mails
in Singapore. or SMS advertising) sent from marketers
established in the United Kingdom.
• The recipient of the message is an individual
physically present in Singapore when the Consequently, non-paid for marketing
message is accessed. communications on websites, apps or cross-
border platforms from or by marketers based
• The recipient of the message is an entity that outside the United Kingdom as well as paid-for
carries on business in Singapore when the marketing communications on websites, apps
message is accessed. and cross-border platforms not targeted at
British consumers are excluded from the CAP
The CAP Code of the United Kingdom combines Code’s jurisdiction.
traditional jurisdictional rules (undertakings
established in the United Kingdom, marketing Courts and tribunals may also combine several
communications sent from the United connecting factors to adjudicate a dispute. For
Kingdom) and the targeting factor (marketing example, a French tribunal ruled on a dispute
communications targeting British consumers). opposing the association Addictions France
In accordance with its jurisdictional rules, the and Meta (established in Ireland) on influencer
CAP Code applies to: alcohol advertising. The tribunal decided that
it could adjudicate the dispute because the
• non-paid marketing communications from concerned influencers were French, and the
or by marketers with a United Kingdom content posted was directed at French users
registered company address; (127).

• marketing communications appearing on

a website with a “.uk” top-level domain,
regardless of where marketers are based;

Box 4. Case study: Defining a global jurisdictional scope in Brazil

Country: Brazil

Law: Law of the Internet

Brazil’s Law of the Internet considers Brazilian data subjected to Brazilian jurisdiction, wherever
it is actually stored (128). In accordance with this legislation, the collection, storage, retention and
treating of personal and communications data by connection providers and internet application
providers, where at least one of those activities is conducted in the national territory, is subject to
Brazilian law, even if the activities are carried out by an entity established abroad, provided that it
offers services to the Brazilian public or that at least one member of the same economic group is
established in Brazil.

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Brazil illustrates broad jurisdictional rules in has a much more limited extraterritorial effect,
data protection legislation. However, this is not as it applies to natural persons residing in
an exception, and the same model has been Nigeria or Nigerian citizens residing outside
followed by other countries such as Colombia, of Nigeria and no further provisions are
Mexico, or Thailand, and by the EU (129). By established on extraterritorial scope in respect
contrast, the Nigerian Data Protection Regulation of controllers and processors (130).

5.3 Challenges and policy options

Governments have a variety of options when The choice between one or the other of those
deciding how to exercise jurisdiction over digital options will depend on a variety of factors, as
marketing practices. Box 5 summarizes them. described below.

Box 5. Policy options

Exercise jurisdiction over digital Where appropriate and enforceable

marketing practices under a sector-specific law, go beyond the
jurisdictional reach of other marketing laws in
Define a broad jurisdictional scope so far as they apply to that specific sector.
encompassing all restricted digital, or at
least that targeted at nationals or reaching In the absence of a broad jurisdictional scope,
nationals. establish a more limited jurisdictional scope
that is effectively enforceable.

Level of consumer protection • global advertisements not targeted at any

country in particular but which advertise
Different approaches will achieve different services or goods that are available in the
levels of protection. Laws that only regulate State.
undertakings established or marketing goods
produced in the regulating State will cover Adopting a broad interpretation of a connecting
only a sub-set of digital marketing, as digital factor or combining several connecting factors
marketing is frequently conducted by actors that may contribute to having a more encompassing
are located, incorporated or established outside approach. However, countries may also consider
that State. While the targeting criterion is better adopting more extensive connecting factors.
adapted to the digital landscape, it still leaves For example, digital marketing practices can
several actions unregulated, such as: be covered by a State’s laws as soon as the
advertising is visible, or accessible, within that
• advertisements not directed at one’s nationals State’s jurisdiction (whether by reference to
but still visible from one’s jurisdiction; or nationality, residents or territory) (131).

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Enforcement capacity remit of health agencies requiring other

government agencies to monitor and enforce
When defining jurisdictional rules, account must the restrictions under other laws and, if so,
be taken of enforcement capacity. For example, whether the jurisdictional limits of those
rules defined in data protection laws have been other laws are broad enough to effectively
described as “jurisdictional trawling” because enforce the sector-specific restrictions
they are so expansive that they cannot be without leaving gaps.
effectively enforced. The enforcement challenge
does not mean that regulators should not Given that many sector-specific laws will link
advocate for broad jurisdictional rules, but rather to other laws and depend on their enforcement
that they must ensure that sufficient enforcement by agencies other than health agencies, one
capacities are allocated. In some circumstances, policy option is for health agencies to consider
it may be more appropriate to define a more how gaps can be filled through sector-specific
limited jurisdictional scope that can be effectively laws. The Legal Environment Assessment tool
enforced by authorities against local actors. This provided in Annex 2 can be used to develop an
is particularly the case considering that, for the overview of existing legislation and gaps. For
products examined in this publication (tobacco, example, governments use sector-specific laws to
nicotine, alcohol, food and beverages, breast- create additional enforcement powers for health
milk substitutes), there is ordinarily some kind of agencies, or other agencies where possible.
material retail in the country. Alternatively, governments might use licensing
or other laws to regulate the conduct of the
Jurisdictional consistency among applicable laws domestic product supply chain in a way that fills
enforcement gaps.
As highlighted in the previous section, the
domestic regulation of digital marketing is often Overlaps of jurisdictional claims
strongly fragmented. This fragmentation raises
concerns in terms of jurisdiction, as each of the Regulators also need to be aware that broad
applicable laws may have different jurisdictional jurisdictional rules will necessarily lead to
limits. For example, the data protection law may overlaps of jurisdictional claims. Taking the
have broad extra-territorial effects whereas the example of the cereals advertising above, if
consumer protection law may limit jurisdiction to the cereal manufacturer has a global presence,
actions undertaken within the national borders. virtually all regulators could claim jurisdiction
over its marketing activities. The manufacturer
This highlights the role of coordination between would then be required to comply with all
sector-specific laws and other laws regulating marketing rules for all its digital marketing
digital marketing, as well as between government practices. This may result in the strictest
agencies. The following issues may be considered regulation becoming the global standard if
in designing sector-specific laws. implementing it is the only way to comply with
all requirements. This is not necessarily a bad
• Whether sector-specific restrictions will be thing from a consumer protection perspective,
stand-alone restrictions to be monitored and as it may lead to a race to the top. In terms of
enforced through health agencies and, if so, enforcement, it may however lead to several
what will be the jurisdictional limits. enforcement authorities claiming jurisdiction to
prosecute an undertaking for the same activity.
• Whether sector-specific restrictions will In such case, enforcement cooperation may be
be linked to other legislation outside the needed.

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6. Restricting digital
marketing to children and
other vulnerable populations:
targeting and data protection
In the absence of comprehensive
restrictions on marketing,
governments frequently restrict
group in instruments regulating
marketing in this partial way. For
example, sector-specific marketing
marketing to vulnerable groups. restrictions or other laws might:
Children are the most often protected

• Prohibit marketing being directed at children, such as marketing in conjunction with

children’s content (as opposed to behavioural targeting).

• Prohibit marketing that appeals to children, although this leaves open to argument the
question of what content is considered to appeal to children.15

• Prohibit marketing to which children are exposed.

In the physical environment, these rules or permitting certain types of marketing only
are implemented through, among others, in specific settings. The question that follows
verifications of official identifications when is how to implement these approaches to
entering certain premises or buying certain protecting vulnerable populations, including
products, watersheds on broadcast advertising, children, in the digital environment. Policy
the prohibition of advertising in certain media, options depend on being able to identify

15 For example, the ASA considered that a Heineken advertising on Twitter using a goat character, the G.O.A.T.
acronym (Greatest of all times), and garage music was not likely to have more appeal to people aged
under 18 than to over 18; see ASA ruling on Heineken UK Ltd [website]. London: Advertising Standards
Authority; 2022 (https://www.asa.org.uk/rulings/heineken-uk-ltd-g22-1155950-heineken-uk-ltd.html,
accessed 16 March 2022). By contrast, the ASA considered that a Captain Morgan advertising campaign
on Snapchat allowing users to add a pirate lens to their picture to look like Captain Morgan was of
particular appeal to children due the bright colour and character features of the lens, and to the fact that
Snapchat is particularly popular among under 18; see ASA ruling on Diageo Great Britain Ltd [website].
London: Advertising Standards Authority; 2018 (https://www.asa.org.uk/rulings/diageo-great-britain-
ltd-a17-390017.html, accessed 16 March 2023).

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6. Restricting digital marketing to children and other vulnerable populations: targeting and data protection 35

vulnerable populations including children. In this to regulate collection, processing and use of
context, national laws seek to establish effective personal data (6.2).
online age-verification mechanisms (6.1) and

6.1 Protecting children from accessing content: online

age-verification mechanisms

Partial restrictions that seek to protect children approach to recognizing the age of users which
from marketing depend on the ability of involves that:
economic operators to identify children. This is
true if economic operators are to ensure that • either online service providers are able to
marketing is not directed at children or that establish age with a level of certainty that
children are not exposed to it, as well as in the is appropriate to the risks to the rights and
context of online retail. freedoms of children that arise from the data
processing; or
The first policy option to protect children from
accessing age-restricted content is to require • they must apply the higher standards
effective age-verification mechanisms in specific applicable to children to all users (135).
contexts. For example, while most social media
platforms include a minimum age between 13 A similar problem is encountered by online
and 16 years old, they solely require entering marketplaces, which may sell products such
a valid date of birth when signing up, without as tobacco or alcoholic beverages that may
requesting any proof of the veracity of such not be sold to children. In these contexts, in
information (132). Children can therefore easily order to enforce sales restrictions in the digital
register on social media under false ages, environment, effective mechanisms to verify age
leading to marketing being directed at them are required. Usual methods in age-restricted
or them being exposed to marketing that they sectors involve requiring a passport, ID or driving
should otherwise be protected from (133). licence copy, as established for example in British
rules on online gambling. Under such rules,
This problem is encountered in all age- operators must verify, at a minimum, the name
restricted sectors. The overall consequence address and date of birth of a customer before
of these challenges is that even if advertisers allowing him or her to gamble. If operators think
formally restrict advertisements to consumers there may be fraudulent activity, they may also
above a certain age, these will de facto be ask for a selfie to verify identity (136).
visible to children (134). In this respect, partial
restrictions that permit marketing to adults However, these types of mechanisms do not
but not children are likely to result in children prevent all under-age activity and there is
being exposed to a greater volume of marketing concern that detection may be more difficult
than comprehensive restrictions. An option given the anonymity experienced in digital
provided in the United Kingdom code of practice environments. Several options exist including:
for online services is to adopt a risk-based

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• using biometric data to verify age: speech, fingerprints, facial traits, iris or ear features
(137);

• conducting long-term age assessments that go beyond signing up in an online platform:

once a user has signed up, the platform can still take messages, posts and activity into
account to reassess the age (138);

• requiring users to enter the age on the device upon acquisition and using that birthdate to
allow or deny installing applications (139);

• requesting an ID scan, verifying its authenticity and matching it to the user through a live
picture with a webcam or a phone camera (140);

• requiring a picture or a video of the user and verifying it with an age-checking AI technology
(141); or

• for online purchases, using credit card details to verify age (142).

One challenge with these approaches, however, These recommendations are made in
is that they require consumers (including parallel to a legal dispute in France, in which
children) to share highly sensitive data. This can pornographic sites have challenged the legal
run contrary to the objectives underpinning data requirements for age verification which are
protection and privacy laws, thereby requiring general in nature, arguing instead, that French
governments to balance those objectives against law should specify distinct methods for doing
effective age-gating (143). AI technologies have so.16 The dispute highlights one challenge in
also raised concerns about potential biases legislating for effective age-gating, which is
and discrimination, as the accuracy of facial that imposing a general obligation may leave
analysis software can depend on the individual’s open the space for argument on whether
gender or skin colour, amongst others (144). an economic operator has taken sufficient
Accordingly, the French Commission on steps. On the other hand, requiring specific
Informatics and Liberty has recommended that techniques may not be future proof as ways to
age-verification systems comply with principles circumvent those techniques become known
such as proportionality, minimal intervention, over time. This also highlights the absence of
robustness, simplicity, or standardisation. It an international standard or other instrument
also recommends prioritising third-party age- that could evolve over time and be a point of
verification systems, which would avoid directly reference for domestic laws or regulations.
providing personal data to the site the user is
trying to enter (145).

16 A dispute is currently open in France for the failure of pornographic sites to effectively verify age. Legal
concerns are related with the absence of guidance in French legislation on age-verification tools, the
proportionality of remedies adopted for failure to effectively verify age, and the impact of such remedies
in the freedom of expression; see Tribunal judiciaire de Paris, Jugement de transmission de la question
prioritaire de constitutionnalité, MG Freesites LTD c. ARCOM, 4 October 2022, and Conseil d’État, aff. N°
463163, 29 November 2022, FR:CECHR:2022:463163.20221129.

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6. Restricting digital marketing to children and other vulnerable populations: targeting and data protection 37

6.2 Protecting vulnerable groups from being reached by digital

marketing: regulating the collection, processing and use of
personal data
In the digital context, the collection of personal These approaches are often found in laws that
data based both on personal characteristics govern data protection and seek to address
(age, gender, origin, location…), behavioural broader concerns around privacy.
aspects (friends, networks, sports…) and
online activities (pages liked, people followed,
interactions with content…) allows brands to 6.2.1 Defining vulnerable populations in the
target their advertising at the person most digital environment
sensitive or vulnerable to a certain product or
marketing technique. For example, an alcohol Traditional marketing rules (partial restrictions)
brand may target an advertisement linking frequently provide strengthened protection
alcohol to social and sexual success to a person to children. Consumer protection and other
that frequently attends social events. Similarly, laws may also provide protection to vulnerable
a breast-milk substitutes brand may target its groups. For example, this can be observed
advertisements to all women aged 25 to 35 in the context of retail banking and financial
years old, or to women that have interacted services, or with respect to service or sale of
with pregnancy content online (search results, alcohol to those who are intoxicated or have
content on social media, etc.). In addition an alcohol use disorder. However, vulnerable
to concerns that targeting can increase the populations in need of strengthened protection
power of marketing generally, there is a risk may be broader in the digital environment and
that targeting stimulates demand among governments may wish to consider differences
vulnerable populations. Targeting is also poorly between traditional media and digital media in
understood in the sense that the processes defining vulnerable populations.
(algorithms) used to push content to users and
their effects are not in the public domain. The very functioning of the online environment
has introduced the concept of “digital
In this context, governments have used a vulnerability”. The personalized environment
variety of approaches to regulate targeting, created by online platforms and marketplaces,
including: the need to consent to complex terms and
conditions with limited possibility to go
through them, as well as the speed at which
online purchases occur, can contribute to
• Limiting the collection and processing the vulnerability of all consumers (146).
of data that might be used for Additionally, online platforms have the ability
purposes of targeting in the context of to analyse when consumers are particularly
specific population groups or product vulnerable because of stress, anxiety or other
categories. circumstances that are specific at a certain
time (147). This broad concept of vulnerability
• Prohibiting use of personal data / is not recognized in current legal instruments
targeting for specific population groups although the review of the Australian Privacy Act
and / or product categories. may include a non-exhaustive list of individual
characteristics and situational factors that
indicate that an individual may be experiencing

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vulnerability. External comments submitted for vulnerability provisions have been identified in
the review of this instrument mentioned that the legislation related to digital marketing.
concept should embrace the ways in which data
is processed to target consumers and create please add before note 16 and update number:
vulnerability, that it should not be confined to "17 People targeted most aggressively by
mental or physical capacity, nor be associated alcohol companies are those who already buy
to a specific group. Taking other instruments as alcoholic products in high amounts. "Online
a model, such as the Australian Banking Code targeted advertising may also exacerbate
of Practice or the General Insurance Code of discrimination that is already present offline.
Practice, vulnerability factors in the new Online The intentional or unintentional discrimination
Privacy Act could include domestic violence, resulting from targeted advertising can exclude
financial abuse, language and literacy barriers, minorities from opportunities (ie housing) and
or cultural background amongst others (148). push them towards exploitative products (e.g.
payday loans). This can be done by explicitly
Legislation can also have special regard for targeting or excluding an advertisement, for
populations that are intrinsically vulnerable example, based on ‘ethnic affinity’. But even
in a specific sector, notably consumers of where there is no discriminatory intention, the
dependence-forming substances (149). While no system is optimized to show advertisements
examples have been found in current legislation, to users that are most likely to click on them,
it is technically possible to restrict alcoholic which can lead to racist or sexist predictions. In
beverages advertising from being targeted at the United States, Meta and the US Department
people with drinking disorders or people who for Housing and Urban Development reached
abstain (150),1717 unhealthy food advertising a settlement in 2022 to restrict Meta’s ability
from being targeted at children, and advertising to use certain targeting tools in housing ads.
of breast-milk substitutes or infant and young Meta announced it would extend similar
child food products from being targeted at measures to employment and credit ads (151).
pregnant women or mothers of children aged Similar concerns can be raised for tobacco,
under 3 years. Laws and regulations could also nicotine, alcohol, food and beverages and
restrict advertising from reaching populations breast-milk substitutes. For example, food and
that are most at risk of being influenced by such beverage brands have intensified marketing
practices and thus developing certain health efforts towards racial minorities in the United
conditions. Sector-specific vulnerability has States, leading to increased exposure to digital
been recognized in other areas, such as energy marketing of unhealthy foods (152). In short,
or the financial sector and there is a live laws could recognize a range of characteristics
debate about prohibiting targeting of weight as a source of vulnerability for purposes of
loss advertisements to people with eating restrictions on marketing specific product
disorders18. But to date, no sector-specific categories.

17 People targeted most aggressively by alcohol companies are those who already buy alcoholic products in
high amounts.
18 In the EU, the Electricity Markets Directive and the Gas Directive require Member States to ensure there
are adequate safeguards to protect vulnerable customers, leaving the definition of vulnerable customers
to Member States; this vagueness aims at protecting against energy poverty. The Basic Payment Account
Directive requires Member States to ensure that unbanked vulnerable consumers (people with no access
to a basic bank account) are sufficiently informed about the availability and characteristics of payment
accounts with basic features. See Sajn N. Vulnerable consumers. Brussels: European Parliament ; 2021
(https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/690619/EPRS_BRI(2021)690619_EN.pdf,
accessed 16 March 2023).

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6. Restricting digital marketing to children and other vulnerable populations: targeting and data protection 39

Once a country has defined specific vulnerable collected and processed by manufacturers of
groups to be afforded strengthened protection, specific product categories. For example, the
it may consider the policy options below to food industry continuously monitors children
protect those groups more effectively. and teens. They follow their interactions with
acquaintances, their engagement with digital
devices and platforms, and their relationship
6.2.2 Limiting the collection and processing of with brands. Through branded mobile apps they
personal data that may be used for targeting track children’s geolocation, purchasing and
eating patterns, and interact directly with them.
Where comprehensive restrictions are not in Manufacturers therefore amass big amounts
place, targeted advertising for specific product of data that are then used to develop the most
categories can be regulated by restricting data effective marketing strategies (156).
collection and processing.

On the one hand, general data protection laws 6.2.3 Limiting the use of personal data for
in some jurisdictions restrict data collection targeted advertising
and processing. Data protection and privacy
laws often grant a special level of protection to In addition to restricting the collection or
sensitive data, which generally includes health processing of data, governments can limit
data. Thus, these laws can prohibit the collection, the use of personal data in marketing. In this
processing, use or disclosure of personal data context, a comprehensive ban on all targeted
in ways that can reveal information on health marketing of tobacco, nicotine, alcohol,
conditions that could be used for marketing unhealthy food and beverages, and breast-
purposes. Data protection and privacy laws milk substitutes is a policy option open to
also restrict the processing of children’s data. governments. A ban on targeted advertising in
This can contribute to protecting them from general has been advocated in Europe and in
profiling and targeted advertising (153). For the United States (157). Imposing such a ban
example, in the EU, the AVMS Directive prohibits to specific product categories would partially
personal data of minors collected or generated implement those calls.
by audiovisual media service providers and by
video-sharing platform providers from being A comprehensive ban on targeted advertising
processed for commercial purposes, such as would not per se affect contextual advertising.19
direct marketing, profiling and behaviourally For example, a banner advertising a fast-food
targeted advertising (154). The United Kingdom restaurant could be displayed when visiting
has developed a code of 15 standards that the website of a cinema located nearby that
organizations providing online services likely to restaurant. Hence, restrictions on contextual
be accessed by children in the United Kingdom advertising may still be needed even where a
should conform to. The code includes taking comprehensive ban on targeted advertising is in
the best interests of the child as a primary place (158).
consideration, transparency obligations, and
switching geolocation or profiling off by default, Where a general ban on all targeted advertising
amongst other requirements (155). is not in place, countries can still ban marketing
targeted at specific population groups. This
On the other hand, Member States could can be implemented through data protection
also consider restricting the data that can be laws. For example, In the EU, the AVMS

19 Contextual advertising is advertising that is shown in accordance with the website being visited or the
content being viewed.

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Directive requires Member States to ensure the digital environment. For example, in the
that audiovisual commercial communications on United States, Utah has recently adopted a law
alcoholic beverages are not specifically aimed at prohibiting children under 18 years old to use
minors (159). Moreover, personal data of minors social media between 10.30 pm and 6.30 am and
collected or generated by audiovisual media requiring social media services to block Utah
service providers and by video-sharing platform minors from accessing their accounts during the
providers cannot be processed for commercial watershed, a default setting that only parents
purposes, such as direct marketing, profiling and or guardians can modify (165). However, use
behaviourally targeted advertising (160). of watershed times is less adapted to regulate
targeting.
Alternatively, these types of restrictions can be
implemented through the standards established
in sector specific laws. For example, in Brazil, 6.2.4 Targeting marketing away from vulnerable
a 2014 resolution considers all commercial populations
communications targeted at children and
adolescents to be abusive (and therefore Proactively targeting marketing away from
prohibited) (161). Similarly, in Chile, the Law children and other vulnerable populations is
on nutrition and composition of foodstuffs and another practice available for advertisers. A
their advertising bans advertising of food high very broad example of this can be found in
in calories, fat, sugar or salt directed at children the above-mentioned law adopted in Utah,
under 14 (162). which also prohibits social media platforms
to display any advertising on accounts held
Whether digital marketing is ‘directed at’ by Utah minors (166). In this case, brands or
children might involve analysis of the content online platforms are required to process users’
of the marketing and the contexts in which data to determine their age and make sure that
it appears. For example, in 2018, the ASA certain advertisements do not reach children.
considered that rum advertising by Diageo In a narrower example, the ASA has highlighted
on Snapchat was directed at people under 18 the merits of taking several factors into account
because it provided a lens that allowed users to in addition to age when targeting age-restricted
look like buccaneers (163). But beyond content advertising. Those factors should be interest-
and context, the prohibition of marketing based. For example, an alcoholic beverages
directed at children implies a prohibition on advertiser may target its campaign at customers
targeting of children (even though these laws that have a registered age above 18 years old
do not explicitly focus on targeting in digital and are interested in house buying. Conversely,
marketing). Similarly, in determining whether they may de-select from their campaign
marketing ‘appeals to’ children, the primary customers that have a registered age above 18
consideration might be the content of that years old but are interested in a clothing brand
marketing, but how marketing is targeted may that is particularly appealing to teenagers (167).
also be a relevant consideration.
Whether an advertiser has taken steps to
Other jurisdictions protect children from target marketing away from vulnerable
marketing by providing watershed times in their populations might be a factor for consideration
legislation. For example, the United Kingdom in determining whether marketing is ‘directed at’
prohibits TV and on-demand programme or ‘appeals to’ a vulnerable group. Alternatively,
services provided between 5.30 am and 9 pm positive obligations could be established to
from including advertisements for less healthy target marketing away from these groups to
food and drink products (164). These watershed reduce their exposure. Please see a summary
times are intended to reduce exposure to graphic in Figure 13.
marketing and might be transposed into

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6. Restricting digital marketing to children and other vulnerable populations: targeting and data protection 41

Figure 13. Restricting digital marketing to children and

vulnerable populations

Digital
marketing to
children and
vulnerable
populations

Comprehensive restriction
on marketing of specific
product categories

In the absence of
comprehensive
restriction

Partial restrictions

How are these

adapted to the digital
environment?

Develop effective Require

age-verification advertisers to
mechanisms Restrict data Ban targeting target specific
collection, of vulnerable product
Define vulnerable
processing populations categories away
populations
and use from vulnerable
populations

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Box 6. Policy options

collection, processing and use, sector

Restrict targeted advertising specific laws or a combination of the two
and protect children and other
vulnerable populations from In the absence of a comprehensive ban on
unlawful digital targeting of specific product categories:
marketing practices:
• Restrict data collection by brands /
Implement comprehensive advertisers of specific product categories
restrictions on marketing of specific
product categories to ensure a high • Define vulnerable populations in need of
level of health protection and reduce strengthened protection from targeted
exposure of children and other vulnerable advertising
groups to marketing of those products
• Ban targeting of vulnerable populations with
In the absence of comprehensive respect to specific product categories
restrictions:
• Require that advertisers proactively target
• Require effective age-verification advertising of specific product categories
mechanisms by law to protect children away from vulnerable populations.
from accessing age-restricted online
content and to limit their exposure to Figure 13 summarizes these policy options
marketing
• Ban targeted advertising of specific product
categories through restrictions on data

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7. Restricting influencer marketing and user engagement 43

7. Restricting influencer
marketing and user
engagement
B eyond paid marketing directly by
brands on digital platforms, social
media platforms enable advertisers
can be considered paid-for advertisement
subjected to marketing restrictions.20 This can be
contrasted with user-generated content, which
to market their products through is not distributed pursuant to a commercial
other means, including influencer relationship and is not restricted in the same
marketing and user-engagement. way as influencer marketing.
Influencer marketing involves a direct
commercial collaboration between For purposes of this discussion, user-generated
a brand and an influencer to market content is material produced or shared by
a product or the brand itself. User consumers (users), which does not qualify
engagement techniques encourage users as advertising or prohibited promotion by
to participate actively with a brand or the user because there is no commercial
product online, including by commenting, relationship with the brand, but this content
sharing or liking content. nonetheless contributes to promoting products
and normalising their consumption (168).
Brands themselves can also produce their
Today, national laws restrict influencer own content in their social media profiles,
marketing, including by requiring disclosure which might not always be characterized as
where social media posts by an influencer are advertising or prohibited promotion, but may
linked with a commercial relationship and by still be a way to promote their products, as such
applying marketing restrictions to influencers. content contributes to brand recognition and
As a general rule, where there is a commercial the normalization of products. This content can
relationship (a material connection) between typically be liked and shared by consumers and
an influencer and an advertiser the content is thus capable of broad dissemination.

20 What constitutes a material connection may vary from one country to the other but India, for example,
includes the following non-exhaustive list: monetary or other compensation; free products, discounts,
gifts; contest and sweepstakes entries; trips or hotel stays; media barters; coverage and awards; family,
personal or employment relationships. See Endorsements know-hows!. Delhi: Department of Consumer
Affairs; 2023 (Endorsement Know-Hows (consumeraffairs.nic.in), accessed 16 March 2023). In France, the
proposal for a law to fight against scams and the excesses of influencers in social media defines influencers
as a natural or legal person that creates and disseminates content through online communication tools
against remuneration or for a benefit in kind in order to promote goods, services or a cause (Article 1)
[unofficial translation by the authors]. See Proposition de loi visant à lutter contre les arnaques et les
derives des influenceurs sur les reseaux sociaux [Proposal for a law to fight against scams and the
excesses of influencers in social media], 2023 (790-i-380-PPL-Delaporte-Vojetta- influenceurs réseaux
sociaux_pastillé_publication (assemblee-nationale.fr), accessed 11 April 2023).

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Where countries decide to regulate user- dispute before the Italian Competition Authority.
generated content, a distinction needs to be In this case, the competition authority alleged
drawn between two categories of content. that British American Tobacco Italia (BAT) and
individual social media influencers violated
• The use of user-generated content for the Italian Consumer Code through Instagram
commercial purposes, which is subject posts promoting a heated tobacco product.
to restrictions in some jurisdictions. This Influencers encouraged their followers to post
category includes: sharing users’ comments content using several hashtags without asking
of a product by the brand; organising contests them to disclose the commercial nature of the
that require users to promote the brand; posts. Influencers then re-posted the ‘best’
allowing users to ‘like’ and share the brand’s user-generated content (169). Ultimately, BAT
posts and content; etc. and the influencers committed, amongst other
things, to removing the posts, using appropriate
• User-generated content that is not of a hashtags in future influencer advertising, and
commercial nature. This category includes asking followers to use hashtags when sharing
users’, including influencers’, comments content. The regulatory authority declined to
or posts regarding a certain product find an offense following these commitments.
without being linked to that product by any This case illustrates how user-generated
commercial relationship. content can be used for commercial purposes
and the challenges this poses to the application
The need to identify commercial user-generated of marketing rules. Some jurisdictions have
content was at the heart of the Glo Hyper attempted to regulate this area.

Box 7. Case study: Finland's regulation of social media marketing of

alcoholic beverages

Country: Finland

Law: Alcohol Control Act

In 2015, Finland regulated social media under its Alcohol Act (170). The provision prohibits
marketing alcoholic beverages if:

“The advertising commercial operator in an information network service administered by itself uses
any textual or visual content produced by consumers or places into the service textual or visual
content, produced by itself or by consumers, which is intended to be shared by consumers”.

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7. Restricting influencer marketing and user engagement 45

Restrictions:

The amendment to the Alcohol Control Act limits social media advertising and prohibits user-
generated content in alcohol marketing by advertisers It prohibits the advertising of alcohol in
and with games, lotteries and competitions in any media, including online. Alcoholic beverages
brands cannot distribute content that has been originally uploaded by a consumer via their own private
profile, such as comments, pictures or videos containing alcoholic beverages. The amendment also
restricts any content that is intended to be shared by consumers. Alcoholic beverages brands must
therefore disable the sharing function on all their advertisements on social media, but users are still
allowed to “like” contents. Sponsored advertisements in social media are allowed but the advertiser
must ensure that the advertising is targeted at people of legal drinking age and the sharing function
should be removed from sponsored ads. These restrictions apply to domestic marketing in Finland
as well as any marketing from outside aimed at an audience in Finland. However, enforcing this
legislation to inflowing marketing is challenging. An assessment of the implementation of this law has
also revealed that brands elude legislation by using tags and hashtags, collaboration with retailers and
restaurants, and sponsorship of music and sports events, all of which are still permitted.

Despite the practical difficulties, the Finnish case provides an example of how jurisdictions can
regulate user engagement by advertisers, including their use of third-party user-generated content,
and thus ensure a more comprehensive approach to the regulation of digital marketing.

Ireland has also attempted to regulate user- The distinction between commercial and non-
generated content in its Online Safety and commercial content will also determine whether,
Media Regulation Bill 2022, which provides the and to what extent, such content is protected by
possibility to adopt online safety codes prohibiting the freedom of expression.
or restricting commercial communications
relating to unhealthy foods and beverages in Whether online platforms that host user-
user-generated content (171). generated content could themselves be
liable for such content depends on content
The distinction between commercial and non- moderation rules applicable in the country.21
commercial user-generated content is important In most jurisdictions, online platforms are not
for liability purposes. In the first case, brands, generallyeld liable for content posted on their
online platforms and influencers might be held sites by users. There can be caveats to this
liable for their commercial conduct violating general rule in specific contexts such as with
rules on the use of user-generated content respect to distribution of child pornography,
for commercial purposes. In the second case, incitement to violence or disinformation, but these
however, brands are not ordinarily held liable for caveats have not altered the general rule when it
the content posted by users about their products, comes to user generated content relating to the
where the brands do not control the content. types of marketing addressed in this publication.

21 The legal debate whether platforms should be responsible for content posted by users is currently ongoing
in the United States under the Supreme Court’s cases Twitter v Taamneh and Gonzalez v Google; Chotiner
I. Two Supreme Court cases that could break the Internet. The New Yorker. 25 January 2023 (Two Supreme
Court Cases That Could Break the Internet | The New Yorker, accessed 16 March 2023).

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Box 8. Policy options

Regulate influencer marketing Draw a distinction between

and protect user-generated marketing and user-generated
content from being used for content that is not marketing, by
commercial purposes in reference to whether the content is
digital marketing: commercial in character

Implement comprehensive Prohibit or restrict advertisers

restrictions on marketing of from using user-generated
specific product categories to ban content. For example, Member
influencer marketing and user States may restrict the possibility of
engagement for commercial advertisers of using user-generated content
purposes. for any commercial purposes, restrict
advertisers from conducting online
Regulate influencers directly, competitions, sharing or publishing users’
such as where those influencers comments relating to a product, limit the
are a national or present in the ability of users to share an advertiser’s
jurisdiction content, or restrict advertisers from
engaging actively with consumers in social
Prohibit or restrict advertisers media
from using influencers for
prohibited forms of marketing Consider regulating online
i.e. extend marketing restrictions platforms to prevent
applicable to advertisers to use of prioritization or personalization
influencer marketing of content where sector specific restrictions
apply e.g. prohibit prioritization or
Regulate online platforms, personalization of content on tobacco or
placing obligations on them with nicotine products
respect to influencer marketing,
including an obligation to disclose Figure 14 summarizes these policy options.
marketing and prevent or remove
prohibited influencer marketing

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7. Restricting influencer marketing and user engagement 47

Figure 14. Restricting influencer marketing and user engagement

Influencer
marketing
and user
engagement

Comprehensive restriction
on marketing of specific
product categories

In the absence of
comprehensive
restriction

Partial restrictions

How are these

adapted to the digital
environment?

Distinguish between marketing Prohibit advertisers from

and user-generated content that Regulate influencers, online using influencers, the use of
is not marketing platforms with respect to user-generated content for
influencer marketing, and to specific product categories
prevent personalization of and marketing through user
content where sector-specific accounts on online platforms
restrictions apply

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8. Tools to effectively monitor

and enforce restrictions on
digital marketing
T he enforcement of digital marketing
restrictions comes with a variety
of challenges. First, monitoring digital
a complex governance framework (8.2).
Third, the fact that digital marketing is
transmitted across borders can be a
marketing is complex because most challenge to enforcement, as it requires
practices are opaque (8.1). Second, a enforcement cooperation among police
variety of enforcement measures can be and judicial authorities (8.3).
adopted by a variety of actors, creating

8.1 Monitoring digital marketing

Health agencies are often responsible for technological innovation in marketing and the
monitoring digital marketing of tobacco, nicotine, need for potential legislative or policy reforms.
alcohol, food and non-alcoholic beverages,
and breast-milk substitutes. Monitoring those However, monitoring digital marketing is difficult
practices is a precursor to enforcement of because of the large amount of online content
applicable rules and, hence, to deter violations. and the nature of that content, as most online
It is also a good way to keep an eye on marketing is opaque (172).

• Marketing is often only visible to the consumer who is being targeted and not to
enforcement authorities.

• Enforcement authorities and consumers do not necessarily see the same content because
consumers are targeted under specific algorithms based on their interests and online
activity.

• Marketing is often ephemeral in nature (displayed for short periods of time) (173).

Despite these challenges, approaches to

monitoring include:

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8. Tools to effectively monitor and enforce restrictions on digital marketing 49

• online inspections by enforcement authorities,

• use of AI tools to identify online content,

• placing disclosure obligations on online platforms, and

• placing disclosure obligations on manufacturers, distributors or retailers of products

concerned. Figure 15 summarizes the different approaches.

One approach to address monitoring is to is also developing an app to automatically

designate a group of inspectors to monitor scan advertising of unhealthy products in
online content to detect any unlawful digital children’s phones (176). However, AI systems
marketing activities. For example, Singapore also present some limitations, as they are not
and Bahrain have both specific monitoring able to assess the context in which a certain
teams that visit media platforms and monitor content is posted and are sometimes biased,
advertising based on keyword searches (174). leading to discrimination (177). These limitations
However, this approach is resource intensive may however be less relevant for monitoring
in the sense that the volume of online content advertising than for monitoring civil and political
concerned is large, making it difficult to monitor online content.
all content. Inspectors may also face privacy
challenges when creating individual profiles The imposition of disclosure obligations,
to access and monitor social media. The use such as through establishment of advertising
of individual inspectors is also easier in some archives, is another important development
contexts than others. For example, monitoring that supports monitoring. Article 30 of the DSA
digital marketing of tobacco products is often requires very large online platforms to publish
easier than monitoring digital marketing a repository detailing all advertisements sold
of nicotine products because the tobacco on their service and certain information, such
market is highly concentrated with a few large as the identity of the ad buyer, the period the
manufacturers whereas the market for nicotine ad was displayed, audience demographics, and
products is diverse and small scale. Similarly, information about how the ad was targeted.22
this may be easier if licensing measures act as a Although the EU is not the first jurisdiction to
complementary control on a sector. enact such a rule, it is the first time archives
are required for all advertisements and not only
The use of AI for monitoring purposes is political advertisements.23 This instrument can
another approach. For example, AI has been be useful to law enforcement officers, to monitor
used in Viet Nam to sample digital content and compliance with advertising regulations. For
recognize breast-milk substitutes advertising example, in a complaint for declaratory and
(175). The WHO Regional Office for Europe injunctive relief before the United States District

22 A similar, more rudimentary, system has been established by Facebook through its Ad Library; see
Carah N and Brodmerkel S. Regulating platforms’ algorithmic brand culture: The instructive case
of alcohol marketers on social media. In: Flew T and Martin FR, editors. Digital platform regulation:
Global perspectives on Internet governance. Cham: Palgrave Macmillan. 2022; 111-131. https://doi.
org/10.1007/978-3-030-95220-4_6, p. 126.
23 Canada and the State of Washington have established political ads archives.

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Court of Columbia, the Campaign Legal Center advertisers, but they do not necessarily
used the advertising archives voluntarily indicate specific patterns of targeting,
established by Facebook to allege a violation of volume of reach, or which particular
federal election law during the 2018 electoral population groups have been reached by
campaign through a series of Facebook ads the advertisements. Hence, while disclosure
(178). obligations may generally be effective at
monitoring digital marketing, they may
A limitation with the archives required by the be of less relevance if applied to sectors
DSA is that they are only imposed upon large where there are only partial restrictions.
online platforms but not upon manufacturers, For example, disclosure of food and non-
distributors or retailers. In the context of alcoholic beverages marketing by large
sector specific restrictions, another approach online platforms might not permit regulators
is to require economic operators in that to observe whether the marketing has been
sector to disclose marketing practices to targeted at children.
government. For example, in Canada tobacco
manufacturers and importers must provide A policy option to partially address these
the government with information about their challenges is to make the reports and
tobacco products, including their marketing repositories public, or permit sharing with civil
campaigns (179). The same obligation is society organizations to enable them to conduct
imposed in other countries. These sector the analysis and monitoring.
specific marketing reports and repositories
have inherent limitations in that: Policy options to support monitoring of online
content, including ephemeral content, consist
• They rely on information provided by of a combination of all previous approaches,
manufacturers and online platforms applied to all actors in the supply chain, as
and require authorities to verify that the Figure 15 illustrates:
information is complete and accurate.
• the use of AI tools allowing the monitoring of
• They tend to involve a high amount of large amounts of advertisements;
information and require authorities to
dedicate considerable resources for the • the selection of humans in charge of
analysis and monitoring. overseeing AI decisions; and

• They provide information on the content • the obligation to keep and publish content
of marketing campaigns launched by archives for potential investigations.

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8. Tools to effectively monitor and enforce restrictions on digital marketing 51

Figure 15. Monitoring digital marketing

Monitoring approaches include:

Online inspections Artificial intelligence tools Disclosure obligations

• on manufacturers,
distributors or retailers
• on online platforms

In addition to public monitoring, other actors may

be responsible for monitoring digital marketing,
as Figure 16 illustrates.

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Figure 16. Other actors responsible for monitoring digital marketing

Online platforms, Online platforms Advertising Civil society,

hosting services have developed their associations may academia and
and internet service own terms of use, conduct their own the general
providers (ISPs) which usually involve monitoring public, including
are generally not conducting their own competitors, may
subject to a general monitoring monitor digital
duty to monitor the marketing through
information they advertising
transmit or stock, repositories if they
although they may be are granted access
required to conduct to them.
targeted or temporary
monitoring

Non-State actors have proved particularly active

at monitoring digital marketing, as the following
box illustrates.

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8. Tools to effectively monitor and enforce restrictions on digital marketing 53

Box 9. Case study: Non-State actors in the enforcement of digital marketing

restrictions

Non-State actors in the enforcement of digital marketing restrictions

The WHO FCTC recommends rigorous monitoring by multiple stakeholders, including non-State
actors, to enforce existing regulations and facilitate international cooperation (180). One example
of civil society led monitoring in formal partnership with Member States is the Tobacco
Enforcement Reporting Movement (TERM), a continuous, real-time digital monitoring system
that catches tobacco marketing as it happens. TERM can provide immediate information to
governments so they may act in real-time. TERM data is made available to policymakers via situation
reports and to media and other stakeholders via publications (181). Currently operational in Mexico,
India and Indonesia, its modular approach is replicable anywhere and to products beyond tobacco. It is
a freely available resource to governments and their partners.

Civil society also monitors the implementation of the International Code of Marketing of
Breast-Milk Substitutes. In Viet Nam, for example, the Virtual Violations Detector (VIVID)
automatically scans potentially unlawful advertising of selected breast-milk substitutes
brands on Facebook (182). The app also allows any person to upload additional content for
verification. While the app was initially limited to breast-milk substitutes in Viet Nam, it has now been
extended to tobacco and alcoholic beverages in several different countries.

International organizations can also contribute to developing effective monitoring tools. The
WHO Regional Office for Europe is developing the CLICK monitoring framework, which is a tool
to monitor digital marketing of unhealthy products to children and adolescents (183). CLICK
consists of an app that maps exposure to digital marketing and screen-captures content that
children see on their smartphones. The CLICK monitoring framework is currently under development.

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In a system where monitoring is also conducted than monitoring social media advertising. The
by non-State actors, granting legal standing to appropriateness of one monitoring tool or
those actors to bring claims against unlawful another may depend on factors such as:
digital marketing practices may also facilitate
enforcement. This possibility is already provided • the amount of advertising available
by advertising associations, such as the ASA or
ASCI, which usually allow any person to bring a • the presence of user-generated content to be
claim under their dispute settlement systems. monitored

The variety of existing monitoring mechanisms • the frequency at which advertising rotates
also reveals that different tools may be adapted content
to different digital marketing techniques.
For example, monitoring display advertising • the visibility and transparency of advertising.
may be easier and require less robust tools

8.2 Defining an institutional framework to enforce digital

marketing rules

Enforcing digital marketing rules can be a 8.2.1 Enforcement by advertising associations

complex task partly because of the fragmented
governance frameworks described above. In some countries laws governing advertising,
Different bodies of law may be administered and or rules established by advertising associations,
enforced by different government agencies and may be a single entry-point or the primary entry
might have different jurisdictional limits. Different point to address prohibited marketing.
laws can also enable government agencies to
take different actions to address or prevent In the case of advertising associations, they
prohibited marketing and may establish different enforce their own advertising rules. The ASA is
penalties or sanctions for violators. In addition, a prominent example and Figure 17 summarizes
enforcement in some countries can involve its enforcement procedure (184).
advertising associations and public authorities.

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8. Tools to effectively monitor and enforce restrictions on digital marketing 55

Figure 17. Enforcement procedure in the ASA

Complaint
lodged
Investigation
A complaint can A complaint is
be lodged by not necessary for
the public or the the ASA to open
industry. an investigation.

ASA communicates
Decision with advertisers, ad
Following ASA may ask agencies, media, etc
the investigation, for interim asking for answers
a recommendation measures until and evidence.
is sent to the ASA the investigation
Council, which takes is complete.
the final decision.

If the rules have

been broken,
the ad must Independent
be removed or review Monitoring
amended. compliance
Advertisers can
request a review
of the decision

If they do not, the The ASA verifies

ASA can refer that changes
the advertisers have been made
to higher bodies, to the ads.
such as Trading
Standards or Ofcom.

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The ASA allows the public and the industry to complaints, media reports, internal
lodge complaints, which can be a mechanism recommendations from consumer protection
to partially delegate monitoring. For example, authorities, or information from other
complaints lodged by Campaign for Tobacco- domestic or foreign authorities. By contrast,
Free Kids, Action on Smoking and Health and other laws may limit the categories of
Stopping Tobacco Organizations & Products actors entitled to request an investigation to
against British American Tobacco’s use of competent authorities.
influencer marketing to advertise e-cigarettes
on Instagram led to the ASA ruling against the • What are the investigative powers of
tobacco manufacturer (185). competent authorities? Consumer protection
authorities are frequently able to request
One distinct feature of this example is that the documents, testimonies or information from
ASA is not completely independent from British the undertakings concerned and from third
law in the sense that the possibility of reference parties, including ISPs. However, in some
to government authorities exists in the event jurisdictions, such as in Canada, authorities
of non-compliance with an ASA decision. This need to obtain approval from a court to
links the CAP Code with consumer law and laws exercise such powers. Data protection laws
governing consumer protection, broadcasting typically provide large investigative powers
and telecommunications. The links between upon data protection authorities.
the ASA and formal legal frameworks are even
stronger for broadcast advertising. Since 2004, • What are the enforcement powers of
the ASA has the sole responsibility for regulating competent authorities? Consumer protection
broadcast advertising in the United Kingdom. authorities may have administrative, civil
Although broadcasters can be referred to Ofcom, and/or criminal enforcement powers, with
the government’s Office of Communications, for strong differences across jurisdictions.
further action when needed, this is extremely Data protection authorities often have
rare (186). Linking self-regulatory codes to corrective powers to issue warnings or
formal laws may be a policy option to support erasure mandates, and they typically have
enforcement of those codes (assuming they have the power to adopt monetary penalties too.
a sufficiently high level of protection to achieve Some data protection laws, such as the Thai
government objectives). Data Protection Act, also grant authorities
with criminal powers . Under the DSA,
the European Commission and national
8.2.2 Enforcement of laws and regulations digital service coordinators can request
commitments and make them binding, and
Several authorities within a government they can adopt a variety of sanctions such as
are involved in the enforcement of different interim measures, fines or periodic penalty
aspects of digital marketing laws. These include payments.
consumer protection, health, culture, anti-trust
and data protection officers, amongst others. The • Do competent authorities have adjudication
enforcement of digital marketing rules by public powers? Under data protection laws,
authorities is hence fragmented. Differences some jurisdictions, such as Nigeria, have
across laws concern: even established an administrative panel
responsible for conducting the investigations,
• Who can trigger investigations? Under hearing parties’ allegations and adopting
consumer protection laws, investigations decisions.
can usually be triggered by a variety of
information sources, including individual, Figure 18 summarizes the differences
consumer organisations or business across laws.

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Under these circumstances, it is necessary Additionally, regulatory fragmentation also

to clearly define what health ministries and results in a strong need for enforcement
authorities can and should do to monitor digital cooperation among all authorities involved in
marketing. Their role is most relevant in the digital marketing within one jurisdiction (187).
enforcement of sector-specific marketing laws, Sector-specific legislation can also favour this
which should create broad enough powers cooperation by linking rules to other applicable
and ensure an adequate level of public health legislation and highlighting the role of other
protection. authorities to implement certain laws.

Figure 18. Differences across laws

Who can trigger What are the What are the Do competent
investigations? investigative enforcement authorities have
powers of powers of adjudication
competent competent powers?
authorities? authorities?

8.3 Defining appropriate enforcement measures

The enforcement of digital marketing rules can • their aim: some of them are directed towards
result in a variety of measures, which can be preventing the activity to be conducted in the
distinguished based on several features: first place (preventive measures) whereas
others aim at sanctioning unlawful practices
• their potential object: each enforcement that have been undertaken (sanctions).
measure is likely to be more successful
towards some digital marketing techniques A summary of the enforcement measures
than others; that may be adopted in the context of digital
marketing is available in Table 4. These are
• the potential enforcers: some of these enforcement measures specific to digital
measures can be adopted by online platforms marketing but other sanctions such as fines,
themselves, whereas others need to be licence suspensions or civil or criminal liability
ordered by advertising associations or by are also provided in national laws (188).
public authorities; they usually do not require
any court order before adoption, but they may
do so in some countries; and

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Table 4. Enforcement measures for the enforcement of digital

marketing rules

Preventive
Reactive

Remedy Definition Where is For which Who can

this remedy marketing implement the
provided? technique is the measure?
measure most
useful?

Content Monitoring and removing Law, self- Social media Online

moderation content from an online regulation platforms
Influencer
platform.

Example EU: in the Eva Glawischnig-Piesczek v Facebook Ireland Limited judgment, the CJEU
ruled that online platforms do not have general content moderation obligations, but
they may be required to monitor a specific case (189).

Preventive Warnings shown to users Self- Social media Online

warnings before uploading a post regulation platforms
Influencer
or when searching certain
content. Search
advertising

Example Instagram uses preventive warnings when users try to post potentially offensive
comments (190). Instagram also uses pop-up warnings when users search certain
materials, such as hashtags associated with images that could harm wildlife or the
environment (191).

Filtering Removing content from an Law, self- Social media Online

online platform. regulation platforms
Influencer

Example EU: Directive 2019/790 on copyright and related rights requires content-sharing
platforms to conduct preventive monitoring of all the contents which their users wish
to upload, in order to be exempted from all liability for giving the public access to
copyright-protected works in breach of copyright (192).

Warning Letter sent by public Law, self- All Governments

letter authorities to undertakings regulation
Advertising
and requiring them to
associations
submit answers, documents
or other evidence following
an alleged unlawful
practice.

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8. Tools to effectively monitor and enforce restrictions on digital marketing 59

Remedy Definition Where is For which Who can

this remedy marketing implement the
provided? technique is the measure?
measure most
useful?

Example United States: in 2018, the FTC and the FDA jointly issued warning letters to
manufacturers, distributors and online retailers for selling e-liquids used in
e-cigarettes with labelling and/or advertising that resembled kid-friendly food
products, such as candies, cookies or juices (193).

Naming and Public lists of persons and/ Self- Influencer Governments

shaming or undertakings that are regulation
Advertising
not complying with the law.
associations

Example India: the ASCI has a list of social media influencers and brands that are in breach
of ASCI Guidelines for Influencers Advertising in Digital Media. The influencers
and brands included in that list were contacted by the complaints handling team,
directing them to comply with the guidelines, but the said brands and influencers
failed to respond or comply with requests (194).

Amendment of Request to modify Law SMS and e-mail Governments

advertisement the content of an advertising
Advertising
advertisement.
associations

Example Australia: the Australian Ad Standards Community Panel found that Heart Attacks
Diner had violated the AANA Food and Beverages Advertising and Marketing
Communications Code through a website advertising campaign that encouraged
excess consumption through representation of a disproportionate burger size. The
advertiser was required to add a disclaimer to the image indicating that the product
was not intended for regular consumption (195).

Withdrawal of Measure aimed at the Law Display Governments

advertisement website operator (or host) advertising
Advertising
to remove a non-compliant
Search associations
advertisement from the
advertising
platform where it is posted. Online
platforms

Example France: in Comité national contre le tabagisme v. BAT France, the tribunal of
Nanterre (France) declared that BAT France had violated the Public Health Code’s
provisions on vaping by promoting Vype in its website instead of merely presenting
the product. BAT France was requested to delete certain elements from its website
and was imposed a pecuniary sanction (196).

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Remedy Definition Where is For which Who can

this remedy marketing implement the
provided? technique is the measure?
measure most
useful?

Restrictions Ban of a certain category of Law, self- All Governments

on future advertisement in the future regulation
Advertising
advertisement
associations
Online
platforms

Example India: in 2020, the ASCI found that several liquor brands had conducted surrogate
advertising in digital media during the Indian Premier League (IPL) 2020, that is,
using a liquor’s brand name to sell other products, such as music CDs, water, other
non-alcoholic beverages or merchandising (197). As a result of such investigation,
the ASCI banned surrogate advertising of twelve liquor companies during the IPL
2021 (198).

Removal of Removing content in search Self- Search Search

brand from browsers or from hashtags regulation advertising engines
future search search in social media;
Social media Social media
index downgrading content from
platforms
search index.

Example Instagram removes false posts from its hashtag search (199).

Account Account suspension implies Law, self- Search Online

suspension that advertisements from regulation advertising platforms
the suspended account
Social media
stop running and new
advertisements are not Influencer
accepted; related accounts
and new accounts created
by the same undertaking
are also automatically
suspended.

Example Google ads policy provides the suspension of an advertiser’s account for policy
violations. Suspensions may or may not be preceded by prior warnings depending on
the seriousness of the violation (200).

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8. Tools to effectively monitor and enforce restrictions on digital marketing 61

Remedy Definition Where is For which Who can

this remedy marketing implement the
provided? technique is the measure?
measure most
useful?

Blocking Technical measures to Law Online retail Governments

and filtering restrict access to information
Display Internet
measures typically hosted in another
advertising Service
jurisdiction. The measure
Providers
is generally requested by
public authorities, following
a court order or not, and
implemented by the ISP
through hardware or
software products that block
specific targeted content
from being received or
displayed on the devices of
customers of such ISP (201).

Example Russian Federation: the Federal Act on the Protection of Children from Information
Harmful to their Health and Development prohibits, among others, the distribution
of information, including on the internet, inducing children to desire tobacco and
alcoholic beverages (202). The blocking measure is taken by the Roskomnadzor,
which is a federal executive authority affiliated to the Ministry of Communications and
Mass Media of the Russian Federation.

Take down of Shutting down a website Law Online retail Governments

the brand’s where a product has been
Social media Internet
account or unlawfully advertised.
Service
website
Providers

Example Singapore: an enforcement action against the illegal sale of electronic cigarettes
over the internet in Singapore led to shutting down the three websites where such
cigarettes had been sold, in addition to fines addressed at the persons convicted
(203).

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Remedy Definition Where is For which Who can

this remedy marketing implement the
provided? technique is the measure?
measure most
useful?

Remedies Restrictions on product Law All Governments

linked to distribution for violation of
product digital marketing regulations.
distribution Restrictions may include:
e.g. through
licensing laws • Attaching conditions to
licensing, where licensing
systems are in place such as
for tobacco and alcohol.
• Creating strict liability
obligations that make
domestic manufacturers
or distributors liable for
violations of marketing
restrictions by related
entities or entities with which
they are in a commercial
relationship.

• Applying penalties at point

of release from customs or
excise controls.
• Adopting mandatory
product recalls, especially
for food products that are
not typically subject to
customs or excise bonding
arrangements.

Countries will frequently include a variety of e-liquids used in e-cigarettes with labelling
enforcement measures in their toolbox and the and/or advertising that resembled kid-
appropriateness of one measure over the other friendly food products, such as candies,
will be based in each country’s context. However, cookies or juices. The products were sold
countries may consider the following elements through multiple online retailers. The
when designing their enforcement toolbox. warning letters specified that the failure
to correct violations could result in further
Enforcement measures might be enforcement actions (204).
progressive, ranging from less to more
intrusive. An example of this approach Countries might adopt both preventive
could be found in the United States and reactive measures. Preventive
in 2018. The FTC and the FDA jointly measures are adopted before the
issued warning letters to manufacturers, publication of the advertisement. These
distributors and retailers for selling measures are more effective at preventing

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harm, as the unlawful advertisement does should also be imposed with caution. In
not reach consumers. Reactive measures some jurisdictions, the urgent blocking
are adopted once the unlawful marketing of unlawful material can be adopted
has been published. They do not prevent by administrative authorities, police
the advertisement from reaching authorities or public prosecutors without
consumers unless they are sufficient to a court order. In others, administrative
dissuade a violation. This reactive rather authorities may adopt a blocking order,
than preventive quality has inherent limits but they are required to obtain subsequent
considering how fast online content can be judicial approval of their order. Lastly,
spread worldwide. some jurisdictions require a court order
to block content (205). The procedure
Enforcement measures reflect the to be followed may also depend on the
enforcement capacity of the country. grounds justifying the blocking order (for
Preventive measures may require example, whether it is child pornography
stronger monitoring systems and good or intellectual property infringement).
cooperation mechanisms with online
platforms whereas reactive measures Enforcement measures should be
require less sophisticated monitoring compatible with fundamental rights
mechanisms and can rely on external protected in the country. For example,
complaints filed by citizens or civil society. Switzerland allows blocking measures
Depending on the legal system, some in the online gambling sector. The
enforcement measures may only be Swiss Gambling Law only allows Swiss-
adopted following a court order and may approved gambling companies to the
therefore be difficult to implement if the market and the Gambling Surveillance
judicial system in the country is slow. Authority adopts blocking measures
Other enforcement measures will in such against unauthorized companies in
cases be more appropriate. Switzerland. In practice, these measures
mean that the domain names are blocked.
Enforcement measures should be The Federal Tribunal confirmed the
proportionate, as, in case of a legal validity of such measures in May 2022, as
challenge, they will be balanced against it considered they did not violate economic
competing interests and rights. Hence, the freedoms and they were proportionate
procedure followed to adopt a measure, (206).
the period given to the addressee
of the measure to comply with it, or The power to impose enforcement
the scope of the measures should be measures might be granted to the most
considered to evaluate the lawfulness appropriate authority, which can be
of the measure. For example, under the health authorities, consumer protection
Australian Online Safety Act 2021, public authorities, data protection authorities
authorities can compel ISPs to remove or others. Countries should therefore
serious harmful content within 24 hours evaluate what is the enforcement capacity
of receiving a formal notice. Whether of health authorities and how they can
24 hours is a reasonable period may share their enforcement powers with
depend on the harm to be avoided and other governmental bodies.
the safeguards provided. Blocking orders

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8.4 Enforcing digital marketing rules in a cross-border context

Because digital marketing often involves actors marketing in question. This presence provides
located in a variety of jurisdictions, public a variety of opportunities for enforcement
authorities may first want to enforce their laws by government agencies. At times, having
through domestic supply chains including a local point of enforcement is facilitated by
manufacturers, distributors and retailers (8.4.1). integration of marketing and retail activities.
Where the advertiser does not have a domestic Digital marketing has become logistical, in
presence in the country where the marketing is the sense that marketing on digital platforms
conducted, public authorities will often need to increasingly integrates the promotional aspect
enforce laws (8.4.2) and judgments (8.4.3) across of the advertisement with the logistical aspect
borders. Enforcement cooperation is needed in of organising a purchase. Online platforms do
such a situation and can take a variety of forms: not only show advertisements but also allow
international agreements, regional mechanisms, the purchase of the product proposed through
memoranda of understanding, informal direct links to retail apps and websites (208).
exchanges of information, extradition treaties, This evolution constitutes an opportunity for
mutual legal or administrative assistance enforcement authorities, as they can prosecute
agreements, etc (207). retailers or distributors of products for their
conduct. These entities are ordinarily located
within the jurisdiction, as compared to brands or
8.4.1 Enforcement through the entire supply online platforms, that may be located abroad.
chain
In some instances, governments have also taken
Provided they are appropriately coordinated steps to ensure that economic operators have
with laws restricting marketing, a variety of a domestic presence. For example, in India,
different laws governing actors in the domestic significant social media intermediaries have to
supply chain might be used to enforce bans or appoint a nodal contact person resident in India
restrictions on digital marketing. These include for coordination with law enforcement agencies
licensing laws governing manufacturers, (209).24 Significant social media intermediaries
distributors, retailers and licensed venues, tax also have to appoint a resident grievance officer,
administration laws governing release of excise who receives and resolves complaints by users,
goods into the marketplace, or e-commerce and receives and acknowledges any order, notice
laws governing contractual terms in online or direction from competent authorities or courts
marketplaces. The supply chains of products for (210). Türkiye requires social media platforms
which marketing is restricted ordinarily have with more than one million daily users to appoint
a domestic presence within the jurisdiction, a local representative (211). In Indonesia, all
including distributors, retailers, licensed venues electronic systems operators that are accessible
or assets (such as the products themselves). from Indonesia have to register with the Ministry
In many instances, those present in the of Communication and Information Technology
jurisdiction will be engaged in the prohibited (Kominfo) and obtain an ID certificate.25

24 Significant social media intermediaries are those with 500.000 users or more.
25 Electronic systems operators include, amongst others, social media platforms, digital marketplaces, search
engines, financial service providers, data processing and communication service providers; see Schmon
C and Pedersen H. Platform liability trends around the globe: recent noteworthy developments [website].
San Francisco: Electronic Frontier Foundation; 2022 (https://www.eff.org/deeplinks/2022/05/platform-
liability-trends-around-globe-recent-noteworthy-developments, accessed 17 March 2023).

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One question that may arise from time to time jurisdiction applicable to activities across global
is whether domestic operators in the supply supply chains (215).
chain have effective control over incoming
marketing that violates bans or restrictions. As these examples illustrate, there are legal
In this respect, to ensure protection of the approaches across different sectors to hold
rule of law and that liability is appropriately domestic actors liable for actions that occur
attributed, natural and legal persons are only abroad in their supply chains. These approaches
held liable for acts that are within their control. regulate the offering of goods or services in the
For example, a distributor might not have control domestic market, often based on the actions of a
over marketing created by the manufacturer manufacturer occurring abroad. In each of these
and distributed from abroad that enters the examples, the domestic activities and presence
State in which a distributor has rights to of an economic operator are used to establish
distribute a product. Therefore, there may be liability and effect enforcement. Domestic
limitations on the extent to which the distributor economic operators then manage their legal
can be held personally liable. However, some risk through contractual terms, foreign supplier
potential mechanisms for attributing liability to liability insurance and other techniques.
distributors in this example are described below.
In this context, and based on these examples,
In this example, distributors have control over domestic laws can be used to control
product distribution (the act of placing the product distribution and sale in countries
product on the market) and distribution can receiving incoming marketing. For example,
be further controlled in the event of unlawful if linked through legislation, licensing and tax
marketing in the same jurisdiction while also administration laws could be used to secure
respecting the principle of effective control. In payment of penalties or to suspend or prevent
this respect, it is commonplace in some areas of operation of a business in the supply chain.
law for domestic importers and distributors to be
liable under domestic law for acts that begin or
are completed earlier in the supply chain. In the 8.4.2 Enforcing laws across borders
context of product liability, for example, domestic
distributors and other actors in the supply chain Where it is not possible or practical to enforce
may be held liable for damage (personal injury) laws against actors in the domestic supply chain,
caused by a product they distribute even though it may be necessary to undertake some form of
they have not manufactured it or altered the foreign investigation and or enforcement. In this
product so as to cause the damage. Depending respect, when a jurisdiction seeks to enforce its
on national or sub national laws, this may include laws, it will frequently need to investigate and
strict liability (where no fault by the distributors collect data from other jurisdictions.
need be established for liability to arise) (212).
In the food safety context, some States have Enforcement cooperation is needed in all areas
established supplier verification programs that of consumer protection (216). Enforcement
require importers to take proactive steps for cooperation can be implemented through a
verification of supplier compliance with food variety of means.
safety standards (213). Similarly, laws relating
to sanctions and to addressing bribery and • Domestic legislation: for example, the
corruption often extend up the supply chain, US Safe Web Act 2006 gives the FTC the
making a domestic operator liable for actions of authority to provide evidence to foreign law
suppliers in some circumstances on the basis enforcement agencies regarding consumer
that there is a relationship of agency between protection matters (217). The FTC can
the two (214). Additionally, anti-corruption share confidential information on consumer
and bribery laws often create extraterritorial matters with foreign authorities, conduct

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investigations to assist such authorities, and for example, or enable government to seize
redress harm in the United States caused by property.
foreign business or vice versa (218).
However, where court orders or judgements
• Memoranda of Understanding (MoU): for are necessary to compel enforcement and
example, the Mexican Office of the Federal an actor has no assets in the jurisdiction, the
Prosecutor for the Consumer signed an question arises of whether this judgment can be
MoU with the Superintendence of Industry enforced in another jurisdiction. Traditionally,
and Commerce of Colombia to strengthen the recognition and enforcement of judgments
cooperation for protecting consumer rights rendered by foreign courts has been a matter
(219). exclusively governed by the domestic law of
each country. Consequently, judgments rendered
• Bilateral agreements: for example, the by courts of one jurisdiction could ordinarily
EU and Canada have developed a system not be enforced by the courts of another. This
of information exchange and enforcement is particularly an issue in areas that have a
measures on dangerous consumer products transborder character, such as regulating digital
based on the EU-Canada Comprehensive marketing. Jurisdictions have recently made
Economic and Trade Agreement (CETA). efforts to harmonize this field.

• Regional cooperation networks: several At the global level, the most relevant instrument
regions have developed enforcement is the Hague Convention on Recognition and
cooperation networks, such as the Enforcement of Foreign Judgments in Civil
Consumer Protection Cooperation (CPC) and Commercial Matters of 2019 (220). The
network in the EU, the Ibero-American convention has been signed by six parties so far
Forum of Consumer Protection Agencies, (Costa Rica, Israel, Russian Federation, Ukraine,
comprising agencies in Latin America, Spain United States and Uruguay) (221) and only the
and Portugal, or the African Dialogue’s EU has ratified it, although it has not deposited
Principles on Cooperation in Consumer the instrument of accession yet (222) It will
Protection Enforcement (Livingstone come into force after two States deposit their
Principles). At a more global scale, the instruments of ratification, acceptance, approval
International Consumer Protection and or accession (223).
Enforcement Network (ICPEN) represents
70 countries around the world. Several international agreements have been
concluded with the same purpose at the regional
Cooperation often covers all stages of the level (224). In addition to global and regional
enforcement procedure, from the notification efforts, jurisdictions can also conclude bilateral
of a potential violation to consumer redress, agreements on the recognition and enforcement
covering information sharing and investigative of foreign judgments. Some jurisdictions use
powers. all these mechanisms. For example, Argentina
has entered into regional agreements for
enforcement of foreign judgments, while also
8.4.3 Enforcing judgments across borders maintaining bilateral agreements with other
countries. Even so, large geographical gaps
Where government agencies levy a sanction or remain, meaning that the agreements in place
penalty against an economic operator and the do not cover all countries.
operator does not comply, authorities typically
seek enforcement through domestic courts. Where no global, regional or bilateral agreement
Court orders can compel payment of fines, has been concluded, the recognition and
enforcement of foreign judgments is subject to

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8. Tools to effectively monitor and enforce restrictions on digital marketing 67

domestic law. For example, the recognition and Either way, whether through an agreement
enforcement of foreign judgments in Australia or by ad hoc means, foreign enforcement is a
is governed by the Foreign Judgments Act 1991 relatively burdensome process for a government
and by common law principles (225). so it is often less certain that the desired
outcome will be achieved.

Box 10. Policy options

Type of policy: Strengthen the operators to bring actions for violation of

enforcement of digital marketing digital marketing rules.
rules:
• Consider establishing an administrative
Allocate appropriate enforcement functions to dispute settlement mechanism, where
the Ministry of Health or responsible health- appropriate.
related agencies. • Cooperate with other countries through
bilateral, regional and global mechanisms
Delegate enforcement functions to other to facilitate the enforcement of laws and
government entities (data protection, judgements across your country’s borders
consumer protection, finance authorities…)
where appropriate, with a clear separation of Develop and implement enforcement
functions and coordination with responsible measures that can be applied to all actors in
health agencies the supply chain of the products concerned,
including, where appropriate, brands,
Develop and implement an effective manufacturers, distributors and retailers
enforcement procedure.
Consider introducing strict liability provisions
• Allow a variety of information sources applicable to brands, manufacturers and
(individual, consumer organizations, distributors to make them responsible for
computers, media, internal authorities, unlawful digital marketing of their products
foreign authorities) that can constitute a carried out by related entities
basis for enforcement action.
• Grant authorities broad investigative Cooperate with advertising associations and
powers to gather information, request online platforms to ensure that enforcement
documents, ask for testimonies, etc. measures are implemented by all actors
• Grant legal standing to consumers, civil involved (such as where online platforms
society organizations and economic themselves are not liable for the content but
must implement enforcement action).

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9. Legal considerations in
restricting digital marketing
Restrictions on digital marketing protect public depending on national law and the international
health and children’s rights, amongst others.26 commitments undertaken. Additionally, although
However, depending on domestic law and legal issues may be common to some Member
international commitments, other interests States, the application of relevant laws may
and legal rights may need to be considered by differ from one jurisdiction to another. Moreover,
governments when restricting digital marketing. how Member States choose to restrict digital
This can include both domestic and international marketing is likely to differ from one to another.
legal obligations, particularly those arising For these and other reasons, this section is not a
under international and national human rights definitive statement or opinion on the likelihood
(or constitutional) laws (9.1) and international of legal issues arising, or how they will be
trade and investment obligations (9.2). resolved. Rather, the intention is to highlight the
issues and prominent arguments and authorities
The relevance of these legal issues will for consideration by government.
differ from Member State to Member State,

9.1 Human rights

Even though marketing restrictions further Nonetheless, it is worth mentioning the
the right to the highest attainable standard of arguments and how they have been dealt with
health and protect rights of the child, economic in such broader context.
operators have historically challenged
marketing restrictions. These challenges have Enforcing restrictions in the digital context may
come on human rights grounds, including that also raise specific issues, such as to ensure
marketing restrictions limit free expression, that enforcement actions are proportionate to
the right to conduct a business or property the objective pursued. Where a right is affected
rights. For most countries, these arguments by restrictions on marketing, the success
are not specific to digital marketing and may of the defence will often revolve around the
be levied against marketing restrictions more proportionality of the measure, its necessity,
generally. Where this is the case, the approach rationality or reasonableness. All these terms,
of courts to these broader issues will likely also although not identical, describe a measure
be relevant to restrictions on digital marketing. that pursues a legitimate objective which is

26 The WHO-UNICEF-Lancet Commission has called for an optional protocol to the Convention on the Rights
of the Child to protect children from the marketing of a range of products, including tobacco, alcohol,
formula milk, sugar-sweetened beverages and gambling, and from potentially damaging social media and
the inappropriate use of their personal data; see Clark H, Coll-Seck AM, Banerjee A, Peterson S, Dalglish
SA, Ameratunga S et al. A future for the world’s children? A WHO-UNICEF-Lancet Commission. Lancet.
2020; 395(10224): 605-658. https://doi.org/10.1016/S0140-6736(19)32540-1, p. 607.

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9. Legal considerations in restricting digital marketing 69

necessary to reach that objective and does not considered a strong interest that grants a broad
go beyond what is necessary (that is, that there margin of discretion to governments. Figure 19
are no less restrictive measures achieving the provides an example of a proportionality test.
same objective). Public health protection is often

Figure 19. Example of a proportionality test

Is there a legitimate Is the measure Is the measure

public health appropriate proportionate to
objective? to reach that attain the objective
objective? pursued? Are there
less restrictive
measures?

In practice, governments can strengthen their In the context of digital marketing, freedom
legal positions by defining their policy objectives of expression and opinion might be relevant
in a clear and precise manner that reflects a considerations in two specific circumstances.
theory of change (a theory of how the intended
interventions will achieve their policy objectives).
Doing so can help ensure that the legitimate
interest and its proportionality are later upheld by • Brands may claim that restrictions on
courts in case of a legal challenge. digital marketing interfere with their
exercise of the right.

9.1.1 Freedom of expression or commercial • Endorsers, such as influencers, may

speech claim that restrictions on digital
marketing interfere with their right.
Freedom of expression and opinion is recognized
in several international human rights instruments
and often protected in national constitutions (226).
In such situations, the first question for
governments to consider will often be whether

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the conduct restricted falls within the scope of The freedom of commercial speech is not an
the right. absolute right, as it can be limited to protect the
reputation or honour of persons, social safety,
In some countries, marketing practices or public order (231). Hence, it is the least
conducted by brands are considered to fall protected form of expression under the freedom
within the scope of freedom of commercial of expression (232).30
speech,27 which is often protected by the
freedom of expression. This approach is The freedom of expression can be restricted
followed, for example, in the European region under certain conditions, which typically
(227),28 Colombia (228), the United States (229), require assessing whether the limitation is
and Canada (230). However, two caveats need to imposed by law, pursues a legitimate interest
be underlined. and is proportionate. For example, in Philip
Morris, the CJEU examined a rule prohibiting
the labelling of any element to promote tobacco
products or encourage their consumption on
• The level of protection granted to this their packaging (233). The CJEU admitted that
right is subject to limits. this rule was an interference with the freedom
of expression. However, it also considered the
• Any restriction to the freedom of following elements.
commercial speech by a national
regulation needs to be balanced • The prohibition was established in the EU
with other human rights that may be Tobacco Products Directive.
pursued by the said regulation, notably
the right to health.29 • The essence of tobacco manufacturers’
freedom of expression was not affected by
the rule.

27 For a counter-example, see the Supreme Court of Sri Lanka, which held that advertising does not fall
within the scope of the freedom of speech because it is not intended to safeguard the natural right of an
organized freedom loving society to impart and acquire information about a matter of common interest;
Supreme Court of the Democratic Socialist Republic of Sri Lanka, The Lion Brewery Ceylon Ltd., et al. v.
Hon. Attorney General, et al., S.C. (S.D) Nos. 13-22/05, 16 January 2006.
28 Both in the EU and in the Council of Europe.
29 But also the right to life, the right to privacy, or the rights of the child, amongst others. See, for
example, on the links between alcohol marketing and human rights: Realising our rights: How to protect
people from alcohol marketing. Alcohol Focus Scotland. 2022 (https://www.alcohol-focus-scotland.
org.uk/media/440171/realising-our-rights-how-to-protect-people-from-alcohol-marketing.pdf?utm_
source=Report&utm_medium=PDF&utm_campaign=Alcohol+Marketing, accessed 17 May 2023).[30].
30 Supreme Court of Justice of Argentina, Nobleza Piccardo S.A.I.C. y F. c/ Provincia de Santa Fe, CSJ N 188/2006
(42-N)/CSI, 27 October 2015, p. 43: “the speech that the plaintiff considers impaired has the sole purpose
of fomenting the consumptions of goods and services (…) [but] does not bear a close relationship with the
functioning of the republic and democratic system. This entails that there is no constitutional foundation
for granting it a protection as intense as other manifestations of ideas that comprise part of the necessary
participation and deliberation in any democratic society (…)”; Supreme Court of Appeal of South Africa, BATSA
v. Minister of Health, No. 463/2011, 2012, paras 25-26: “when commercial expression is used, as alleged here,
for the purposes of inducing people to engage in harmful and addictive behaviour, its value becomes tenuous”;
Provincial Court of Nova Scotia (Canada), R v Mader’s Tobacco Store Ltd, NSPC 29 (2013), para. 25: “the sale of
addictive and harmful products is not closely linked to the core values of s. 2(b) and clearly does no merit the
stringent scrutiny accorded to political speech for example, but it does merit scrutiny”.

Overview Restrict Monitor Enforce Annex

9. Legal considerations in restricting digital marketing 71

• The interference with the freedom of extent user-generated content is protected

expression met an objective of general and the second concerns whether enforcement
interest, namely the protection of public mechanisms or actions are disproportionate to
health (234). the goal.

The CJEU then balanced human health To what extent is user-generated content
protection and the right to health, on the one protected by the freedom of expression?
hand, and the freedom of expression, on the
The question may arise whether limitations
imposed upon the content that can be uploaded
Online platforms can adopt on social media violate freedom of expression.
Here, this question is focused on content
safeguards to ensure the uploaded by users other than brands where
lawfulness of filtering those users are not in a commercial relationship
mechanisms, such as with brands, for example in the context of
an online contest or other viral campaigns.
appropriate targeting of the It can for example be argued that filtering
measures, as well as effective mechanisms developed by online platforms
complaint and redress to avoid unlawful content limit the freedom
of expression. However, online platforms can
mechanisms adopt safeguards to ensure the lawfulness
of such mechanisms, such as appropriate
targeting of their measures, as well as effective
other hand (235). Following this analysis, complaint and redress mechanisms (237).
the CJEU in Philip Morris concluded that
the interference of the EU Tobacco Products The proportionality of restrictions to
Directive with the freedom of expression was the freedom of expression imposed by
proportionate. enforcement measures

The proportionality assessment can be pivotal Enforcement measures imposed upon online
to this analysis. For example, a complete ban on platforms to moderate content, amend or
the advertising of tobacco products was found remove unlawful advertising can also be
to be disproportionate by the Supreme Court challenged for restricting the platform’s
of Canada, as it was not established that pure freedom of expression. Several factors may
information or brand-preference advertising be relevant to whether restrictions are
was connected to an increase in consumption. proportionate, including the time available
Following this finding, the Canadian Parliament for platforms to moderate the content. For
adopted a new instrument permitting example, some laws on content moderation
information and brand-preference advertising require online platforms to remove unlawful
in certain media and certain locations and content within a few hours from the moment
prohibiting other forms of advertising. This new they are notified of the violation, increasing
law was considered constitutional (236). the risk that freedom of expression will be
inadvertently impeded. The proportionality
As this discussion suggests, where marketing of such measures will often depend on the
restrictions of some type are already in place it balance between the interest being protected
is possible that courts have already considered and the freedom being restricted. In this
issues regarding freedom of expression. In the regard, while measures that restrict political
digital context, there are two additional issues speech will often be closely scrutinized by
that might arise. The first concerns to what

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 72

courts, measures restricting commercial (243), such as trademarks, which are frequently
speech may be more likely to be upheld. displayed in marketing.

In the tobacco-control context, legal challenges

9.1.2 Freedom to conduct a business asserting the right to property have been made
with respect to restrictions on use of descriptive
The freedom to conduct a business, or freedom trademarks in names (244), restrictions on
of enterprise,31 is not recognized as a human use of trademarks on packaging (plain /
right in all systems.32 This freedom is not standardized packaging) (245) and restrictions
recognized in international human rights on use of promotional brands (246). Along
instruments, which protect the right to pursue a similar lines, governments may need to consider
chosen occupation (238). how restrictions on digital marketing affect
intellectual property rights. Restrictions on
Where the freedom to conduct a business is digital marketing might limit use of trademarks
recognized, restrictions on marketing may in a number of contexts. Limitations may arise
also be considered to restrict this right. where a manufacturer or advertiser’s website
Consequently, brands might invoke the freedom is taken down or a digital marketing campaign
to conduct a business to contest the validity is filtered, if only descriptive information is
of such legislation. However, the freedom to permitted on the regulated product with no
conduct a business is generally not considered further commercial elements, and/or if the
to be absolute (239). Hence, restrictions are use of characters or celebrities, as well as the
ordinarily lawful if they respect the essence use of certain innovative marketing techniques
of the freedom, if they are appropriate and (participatory online campaigns or contests, for
necessary to achieve a legitimate objective, and example) is restricted.
if they are reasonable and proportionate (240).
Moreover, the freedom to conduct a business In considering these types of claims, courts
has to be balanced with other protected might:
interests, such as the right to health (241).
• Define the nature and extent of the property
rights in question (particularly whether
9.1.3 Right to property rights holders have a positive right to
use a trademark in the course of trade, or
The right to property is recognized in many whether the right is limited to the right to
national constitutions as well as several global exclude use by third parties under certain
and regional human rights instruments (242). conditions) (247).
Investment treaties also protect the property
rights of foreign investors under certain • Determine the impact of the regulation in
conditions. The right to property, and other question on the property rights invoked
legal protections of property rights, are often (in the examples given above, trademark
considered to include intellectual property rights rights could be used or licensed other than

31 This expression is used in Spanish (“libertad de empresa”) and French (“liberté d’entreprise”).
32 For example, in the European region, the freedom to conduct a business is guaranteed in the EU but not in
the Council of Europe. See Charter of Fundamental Rights of the European Union, OJEU C 202, 7 June 2016,
p. 389 (http://data.europa.eu/eli/treaty/char_2016/oj, accessed 17 March 2023), Art. 16; in the Council of
Europe, this freedom is essentially protected through the right to property; Usai A. The freedom to conduct
a business in the EU, its limitations and its role in the European legal order: A new engine for deeper and
stronger economic, social and political integration. German Law Journal. 2013; 14(9):1867-1888, p. 1868.

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9. Legal considerations in restricting digital marketing 73

on the regulated products and trademark • Consider whether the essence of the right
rights could still be asserted to prevent remains intact and/or whether the right should
unauthorized use by third parties). be weighed against the right to health (249).

• Evaluate whether that impact violates the The case law reveals that the right to property
right to property, for example whether the is limited. Courts tend not to find a violation
rights holder is deprived of their property, of this right when States regulate the use of
as compared to that right being regulated or property in the public interest to prevent harm
limited in some way (248). to third parties.

9.2 International trade

International trade agreements govern the ways may need to consider trade obligations when
in which States Parties may restrict or regulate restricting digital marketing.
trade in goods and services, including through
the use of tariffs (customs duties) and non-tariff The World Trade Organization (WTO) Agreement
barriers to trade, such as regulatory measures. is the central multilateral agreement governing
Trade agreements can also impose positive international trade. Through several WTO
obligations, such as obligations to ensure ‘covered agreements’, WTO law establishes
minimum standards of protection for intellectual principles and rules relevant to non-tariff
property rights. Accordingly, governments measures, such as regulations. Core principles
of WTO law include:

• non-discrimination (for example, that imported goods are not treated less favourably than
like domestic goods, either on the face of a measure or through its effect);

• a prohibition on quantitative restrictions, such as quantitative limits on the import of

goods; and

• necessity (for example, that regulations should not be more trade restrictive than necessary
to achieve a legitimate objective such as protection of human health).

WTO law also obliges Members to ensure In general, marketing restrictions have not been
minimum standards of protection for the subject of WTO disputes. The exception
intellectual property rights, including to this concerned tobacco plain packaging in
trademarks, and trade secrets. These and other Australia, which prohibited marks on tobacco
obligations are enforced through a system of packaging and products other than word
dispute settlement, permitting one Member marks in a standardized font, style and size. In
(government) to bring a claim against another, Australia – Tobacco Plain Packaging several
seeking an order that any measure violating Members challenged those restrictions,
WTO law be brought into compliance. including on grounds that they unjustifiably
encumbered use of trademarks in the course
of trade under Article 20 of the Agreement on

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 74

Trade Related Aspects of Intellectual Property provides an example of a customs union

Rights (TRIPS). In adjudicating the claim, the with relevant commitments. The EU Tobacco
WTO panel stated that Advertising Directive prohibits all marketing of
tobacco products across all media, including
[A] determination of whether the use of a digital marketing. The AVMS Directive restricts
trademark in the course of trade is being marketing of alcoholic beverages as well as
‘unjustifiably’ encumbered by special food and non-alcoholic beverages in traditional
requirements should involve a consideration and non-traditional media, including on-
of the following factors: (a) the nature and demand services and video-sharing platforms.
extent of the encumbrance resulting from Other instruments apply to digital marketing
the special requirements … (b) the reasons and regulate how certain practices are to
for which the special requirements are be conducted, including whether consent is
applied, including any societal interests they required, whether the practice is restricted
are intended to safeguard; and (c) whether for children or whether disclosures need to
these reasons provide sufficient support for be made.33 Where the EU has not legislated,
the resulting encumbrance (250). its Member States remain free to regulate
digital marketing, but they must do so while
This approach, which is similar to a ensuring EU free movement rules. The CJEU
proportionality test, applies generally to has sometimes considered that advertising
restrictions on use of trademarks and not legislation constitutes a restriction to the free
only to restrictions on product packaging movement of goods. In such situations, the
(251). Accordingly, WTO Members may wish Member State needs to demonstrate that the
to consider whether this test is satisfied when restrictive legislation is justified on public health
implementing restrictions on marketing that grounds and that it is proportionate.34
impede use of trademarks, in addition to
ensuring that restrictions are non-discriminatory
and not more trade restrictive than necessary to
protect health.
Governments can strengthen
In addition to obligations under WTO law, their legal positions by
many countries are also parties to free trade
agreements (FTAs), or members of customs defining their policy objectives
unions. These agreements involve commitments in a clear and precise manner
above and beyond those of WTO law, with some that reflects a theory of change
agreements including specific obligations on
issues such as broadcasting and e-commerce.
It is not possible to generalize about the legal
obligations in these agreements, but the EU

33 Such provisions can be found in the Unfair Commercial Practices Directive, the General Data Protection
Regulation, the e-Commerce Directive or the Digital Services Act, for example.
34 See, for example, CJEU, C-262/02 Commission v France, C-429/02 Bacardi France, C-405/98 Gourmet,
or C-1/90 and C-176/90 Aragonesa de Publicidad Exterior, where the restrictions to the free movement
of goods were justified. Compare with CJEU, Case 152/78 Commission v France, where the restriction
constituted a mean of arbitrary discrimination.

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References 75

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 88

Online-version_Digital-Mktg_March2019. 184 How we handle complaints [website].

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Guidelines and Digital Media Ethics Code) borders. Paris: OECD; 2003. https://
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Overview Restrict Monitor Enforce Annex

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Overview Restrict Monitor Enforce Annex

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Nations General Assembly Resolution using law to challenge public health

2200A (XXI); https://www.ohchr.org/en/ regulation. The Journal of Law, Medicine &
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ECHR rulings Markt Intern Verlag GmbH influence of commercial speech doctrine
and Klaus Beermann v Germany, Appli- on the development of tobacco control
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233 CJEU, C-547/14 Philip Morris [2016]
228 Constitutional Court of Colombia, EU:C:2016:325.
Judgment C-830/10, 20 October 2010; see
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Prohibition of Tobacco Advertising: The
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The Journal of Law, Medicine & Ethics. EU:C:2016:325, para. 156. On the
2022; 50(2):259-264. balance between the right to health and
freedom of expression, see also CJEU,
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O’Brien P, Room R and Anderson-Luxford of Justice of Panama, Rodriguez Robles
D. Commercial advertising of alcohol: & Espinosa on behalf of British American

Overview Restrict Monitor Enforce Annex

References 93

Tobacco Panama, S.A. v. The Ministry of 43; British American Tobacco (UK) v. The
Health, Case No. 192 -11, 28 May 2014. Secretary of State for Health (Court of
Appeal).
236 Supreme Court of Canada, Canada
(Attorney General) v JTI-Macdonald Corp. 246 British American Tobacco Colombia v.
[2007] 2 SCR 610. Ministerio de Salud, Consejo de Estado
(2015).
237 See, similarly, CJEU, C-401/19
Poland v Parliament and Council [2022] 247 High Court of Australia, JT International
EU:C:2022:297. v Commonwealth of Australia [2012] HCA
43; British American Tobacco (UK) v. The
238 International Covenant on Economic, Secretary of State for Health (Court of
Social and Cultural Rights, Art. 6(1). Appeal).

239 CJEU, C-544/10 Deutsches Weintor [2012] 248 British American Tobacco (UK) v. The
EU:C:2012:526. Secretary of State for Health (Court of
Appeal); CJEU, C-491/01 BAT [2002]
240 CJEU, C-477/14 Pillbox 38 [2016] EU:C:2002:741; CJEU, C-220/17 Planta Ta-
EU:C:2016:324, paras. 161-162; Consti- bak [2019] EU:C:2019:76; Supreme Court
tutional Court of Colombia, C-830/10, 20 of Justice of Panama, Rodriguez Robles
October 2010. & Espinosa on behalf of British American
Tobacco Panama, S.A. v. The Ministry of
241 CJEU, C-544/10 Deutsches Weintor [2012] Health, Case No. 192 -­11, 28 May 2014.
EU:C:2012:526, para. 48; Supreme Court
of Spain – Civil Division, STS 891/2010, 249 CJEU, C-477/14 Pillbox 38 [2016]
3 January 2011; Constitutional Court EU:C:2016:324 ; Supreme Court of Justice
of Peru, judgment 32-2010-PI/TC, 5000 of Panama, Rodriguez Robles & Espinosa
ciudadanos contra el artículo 3° de la Ley on behalf of British American Tobacco
N.° 28705, 19 July 2011. Panama, S.A. v. The Ministry of Health,
Case No. 192 -­11, 28 May 2014; British
242 Universal Declaration of Human Rights, American Tobacco Colombia v. Ministerio
Art. 17; African Charter on Human and de Salud, Consejo de Estado (2015).
People’s Rights, Art. 14; American Con-
vention on Human Rights, Art. 21; Arab 250 Panel Report, Australia—Certain Measures
Charter on Human Rights, Art. 31; Euro- concerning Trademarks, Geographical
pean Convention of Human Rights, First Indications and other Plain Packaging
Protocol, Art. 1; Charter of Fundamental Requirements applicable to Tobacco
Rights of the European Union, Art. 17. Products and Packaging, WTO Docs WT/
DS435/R, WT/DS441/R, WT/DS458/R,
243 See, for example, Charter of Fundamental WT/DS467/R, Add.1 and Suppl.1 (28 June
Rights of the European Union, Art. 17(2): 2018), para. [7.2430].
“Intellectual property shall be protected”.
251 Ibid, para. 7.2233.
244 CJEU, C-491/01 BAT [2002]
EU:C:2002:741; CJEU, C-220/17 Planta
Tabak [2019] EU:C:2019:76.

245 High Court of Australia, JT International

v Commonwealth of Australia [2012] HCA

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Annex 1 - Policy options

outlined in this report
Topic Policy options

Legislative 1.1) Restrict digital marketing of specific product categories in a sector specific
coordination law specifying:
to restrict • prohibited and restricted practices
marketing • jurisdictional reach
and allocate • liability provisions
authority
• enforcement powers, procedures and measures (including those linked to
for effective
other provisions of sector specific laws, such as licensing measures)
monitoring and
enforcement 1.2) Include cross-references in sector specific laws to other relevant laws
governing marketing, coordinating the substantive restrictions, monitoring and
enforcement.
Or,
2.1) Strengthen existing laws applicable to marketing (including consumer
protection, data protection, media, digital markets / regulation of the Internet)
to create sector-specific restrictions where they do not otherwise exist and
enable their monitoring and enforcement.
2.2) Include cross-references in laws applicable to marketing to sector specific
laws establishing marketing restrictions to ensure coordination and bring
sector specific restrictions within the scope of laws applicable to marketing and
their enforcement regimes.
3) Adopt a broad and (non-exhaustive) definition of marketing covering digital
marketing and future innovation to the greatest extent possible.
4) Include enabling provisions in legislation granting regulatory powers to
government agencies that enable them to adapt to future innovations in
digital marketing, including by prohibiting and restricting practices and using
monitoring mechanisms.
5) Where industry codes are in place, link them to formal laws to make them
enforceable.

Jurisdiction 1) Define a broad jurisdictional scope encompassing all restricted digital, or at

least that targeted at nationals or reaching nationals.
2) Where appropriate and enforceable under a sector-specific law, go beyond
the jurisdictional reach of other marketing laws in so far as they apply to that
specific sector.
3) In the absence of a broad jurisdictional scope, establish a more limited
jurisdictional scope that is effectively enforceable.

Overview Restrict Monitor Enforce Annex

Annex 1 - Policy options outlined in this report 95

Bans or 1) Establish comprehensive restrictions on digital marketing of specific product

restrictions on categories to ensure a high standard of protection for public health.
digital marketing 2) Use broad prohibitions and avoid providing lists of prohibited activities that
could be interpreted as exhaustive.

In the absence of comprehensive restrictions to digital marketing of specific product categories:

Targeted 1) Require effective age-verification mechanisms by law to protect children

advertising and from accessing age-restricted online content and to limit their exposure to
protection of marketing.
children and 2) Ban targeted advertising of specific product categories through restrictions
other vulnerable on data collection, processing and use, sector specific laws or a combination of
populations the two.
3) In the absence of a comprehensive ban on targeting of marketing applicable
to specific product categories:
• Restrict data collection by brands/advertisers of specific product categories.
• Define vulnerable populations in need of strengthened protection from
targeted advertising.
• Ban targeting of vulnerable populations with marketing for specific product
categories.
• Require that advertisers proactively target advertising of specific product
categories away from vulnerable populations.

User-generated 1) Regulate influencers directly, such as where those influencers are a national
and influencer or present in the jurisdiction.
content 2) Prohibit or restrict advertisers from using influencers for prohibited forms of
marketing i.e., ensure marketing restrictions applicable to advertisers extend to
use of influencer marketing.
3) Regulate online platforms, placing obligations on them with respect to
influencer marketing, including an obligation to disclose marketing and prevent
or remove prohibited influencer marketing.

4) Draw a distinction between marketing and user-generated content that is not

marketing, by reference to whether the content is commercial in character.
5) Prohibit or restrict advertisers in specific sectors from using user-generated
content, such as by restricting the possibility of using user-generated content
for any commercial purposes, by restricting online competitions, sharing or
otherwise publishing users’ comments relating to a product, permitting users
to share an advertiser’s content, or from engaging actively with consumers in
social media.
6) Consider regulating online platforms to prevent prioritization or
personalization of content where sector specific restrictions apply e.g., prohibit
prioritization or personalization of content on tobacco or nicotine products.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 96

Monitoring 1) Require disclosure obligations to enable more effective monitoring:

• Require advertisers to disclose all their advertisements in digital media.
• Require online platforms to disclose all relevant advertisements on their
platforms.
• Disclosure should include the content of the advertisement, where, when
and for how long the advertisement was available, and the patterns used to
target the advertisement to consumers.
• Require advertisers and online platforms to submit this information to
public authorities and/or to make this information publicly available
through ad repositories.

2) Allocate appropriate monitoring functions to the Ministry of Health or

responsible health-related agencies.
3) Delegate monitoring functions to other government entities (data protection,
consumer protection, finance authorities…) where appropriate, with a clear
separation of functions and coordination with responsible health agencies.
4) Designate a group of inspectors exclusively tasked with monitoring digital
marketing. Grant them explicit powers to have anonymous accounts to inspect
social media and broad investigative powers more generally.
5) Develop AI-based monitoring tools to facilitate monitoring. Explore the
possibility of working with non-State actors in this area.
6) Encourage civil society to monitor ad repositories where these are publicly
available and grant them legal standing to bring complaints (see Enforcement).

Overview Restrict Monitor Enforce Annex

Annex 1 - Policy options outlined in this report 97

Enforcement 1) Allocate appropriate enforcement functions to the Ministry of Health or

responsible health-related agencies.
2) Delegate enforcement functions to other government entities (data
protection, consumer protection, finance authorities…) where appropriate,
with a clear separation of functions and coordination with responsible health
agencies.
3) Define an effective enforcement procedure.

• Allow a variety of information sources (individual, consumer organizations,

computers, media, internal authorities, foreign authorities) that can
constitute a basis for enforcement action.
• Grant authorities broad investigative powers to gather information, request
documents, ask for testimonies, etc.
• Grant legal standing to consumers, civil society organizations and economic
operators to bring actions for violation of digital marketing rules.
• Consider establishing an administrative dispute settlement mechanism,
where appropriate.
• Cooperate with other countries through bilateral, regional and global
mechanisms to facilitate the enforcement of laws and judgements across
your country’s borders.

4) Develop and implement enforcement measures that can be applied to

all actors in the supply chain of the products concerned, including, where
appropriate, brands, manufacturers, distributors and retailers.
5) Consider introducing strict liability provisions applicable to brands,
manufacturers and distributors to make them responsible for unlawful digital
marketing of their products carried out by related entities.
6) Cooperate with advertising associations and online platforms to ensure that
enforcement measures are implemented by all actors involved (such as where
online platforms themselves are not liable for the content but must implement
enforcement action).

Legal 1) Assess which constitutional and international human rights are applicable in
considerations your country and can justify restrictions (right to health, rights of the child, right
to food).
2) Assess which constitutional rights and freedoms, international human
rights, and trade obligations may be relevant to your ability to restrict digital
marketing (freedom of expression, right to property, trade obligations).
3) Base policy objectives and digital marketing restrictions on a theory of
change
4) Collect and consider evidence of the risks associated with digital marketing
(exposure, power, consumer perceptions and behavior) and the impact of
restrictions.
5) Define proportionate rules and provide procedural safeguards to restrictions.

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 98

Annex 2 – Assessing a
country’s legal environment
The following table is designed to be used to support desk research and/or semi-structured key
informant interviews to map the existing legal environment relevant to digital marketing.

Applicable legislation to digital marketing:

Is digital marketing If yes, please explain:

regulated in your country?
No Yes Applicable laws Competent authorities

Sector-specific laws:

Advertising laws:

Data protection laws:

Digital markets laws:

Audiovisual/Broadcasting laws:

Other laws:

What do these laws Product-specific restrictions:

regulate?
Prohibited or restricted marketing practices:

Disclosure obligations:

Regulation of targeted marketing and profiling techniques:

Data protection for marketing purposes:

Protection of vulnerable groups:

Other:

Are there any coordination If yes, please explain:

mechanisms across laws?

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Annex 2 – Assessing a country’s legal environment 99

Is there an advertising If yes, please explain:

association in your country?
Does the advertising association regulate digital marketing?

What is the relationship between the advertising association and the

State?

What are the regulatory, monitoring and enforcement powers of the

advertising association?

Current challenges in digital marketing:

Does the laws’ scope of If yes, please explain:

application cover marketing
practices taking place How is jurisdiction established in your legislation?
outside of your jurisdiction?
No Yes Do authorities effectively enforce marketing practices taking place
abroad?

Are children protected If yes, please explain:

against digital marketing?
What additional safeguards are provided to children?
No Yes
Does legislation provide mechanisms to verify the age of viewers of
websites, search engines and online platforms?

Does your legislation provide If yes, please provide details:

additional safeguards against
digital marketing for other
vulnerable groups?
No Yes

Is user-generated content If yes, please provide details:

regulated in your legislation?
No Yes

Are there any tools available If yes, please provide details:

in your legislation to easily
update rules on digital
marketing?
No Yes

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Restricting digital marketing in the context of tobacco, alcohol, food and beverages, and breast-milk substitutes: existing approaches and policy options 100

Monitoring and enforcing digital marketing restrictions:

Which authorities monitor Advertising associations:

and enforce digital marketing No Yes
practices?
If yes, please provide details:

Public authorities:
No Yes
If yes, please provide details:

Private undertakings (i.e. online platforms, search engines, etc.):

No Yes
If yes, please provide details:

How does your country Individual inspectors (if so, please provide details – how many
monitor digital marketing inspectors, to which authority are they attached…):
practices?
Artificial intelligence:

Disclosure obligations:

Other:

Which enforcement measures

does your country’s
legislation provide against
unlawful marketing practices?

Against whom can these Product manufacturer: No Yes

measures be enforced? Advertiser: No Yes
Online platform/search engine/website: No Yes
Influencer: No Yes
Retailer: No Yes

Can measures be enforced If yes, please explain:

even where the addressee is
not in the jurisdiction? Does your country have any enforcement cooperation mechanisms
with other countries?
No Yes

Does your legislation have a broad jurisdictional reach allowing to

enforce provisions abroad?

In practice, how is enforcement across borders undertaken?

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Annex 2 – Assessing a country’s legal environment 101

Legal considerations in digital marketing regulation:

Is your country a party to any If yes, please provide details:

global/regional human rights
instruments?
No Yes

Is your country a member of If yes, please provide details:

the WTO?
No Yes

Is your country a member If yes, please provide details:

of any regional economic
integration organisation Which REIO does your country belong to?
(REIO), or free trade
agreement? Does this REIO have any obligations of relevance to digital marketing,
such as commitments on broadcasting, e-commerce or others?
No Yes

Does any of the FTAs your country has concluded have obligations of
relevance to digital marketing, such as commitments on broadcasting,
e-commerce or others?

Has there been any case If yes, please provide details:

law in your country on
the interaction between Is there any case law challenging restrictions on marketing on human
marketing and human rights? rights grounds?

No Yes

Is there any case law challenging restrictions on digital marketing or

other digital communications on human rights grounds?

Has there been any case If yes, please provide details:

law in your country on the
interaction between digital
marketing and international
trade rules?
No Yes

Overview Restrict Monitor Enforce Annex