Fed up with not being able to run a prize promotion across Europe because of differing laws? Well, get ready to be fed up some more as Brussels ditches one harmonising initiative and starts another.
Topic: Promotion Marketing
Who: The European Commission
When: Spring 2001
In the past we admit that here at marketinglaw we have not reported in a particularly optimistic vein on EU attempts to achieve a level playing field for promotion marketers across Europe. We would like to be able to report that our pessimism was misplaced and that there have been exciting new and positive developments. At this time we can certainly report that there have been new developments. However, they give us no reason to expect any new, harmonic dawn for pan European promoters just around the corner.
At the last count the so-called Expert Group of civil servants from each EU state was continuing its slow and largely ineffectual voyage around the current regulatory regimes in Europe affecting promotional techniques such as two for the price of one, price discounts and prize events. Their attempts to fulfil their brief by coming up with solutions to disparities seemed to have largely failed when we were told to expect early publication of a consultation document on the topic. This initiative, we were told by the Commission Directorate General responsible, DG Markt, would entail the making of positive proposals for the liberalisation and harmonisation of promotion marketing rules across Europe. It would also form the launch pad, it was said, for a promotion marketing directive.
But that was over 6 months ago, and now it looks doubtful as to whether the consultation paper will appear at all. Why? Because a different EC Directorate General, DG Sanco (responsible for health and consumer protection) has come up with another approach altogether to furthering the single market in this area. What’s more, it seems that Sanco’s plans have such a level of support and head of steam compared with the lumbering DG Markt project that the latter now appears unlikely to ever see the light of day.
So what is DG Sanco’s brave new proposal? This appears to have at its core a new EU wide duty to trade fairly. Around this would be constructed a "general regulatory framework" along the lines of that operated by for example the FTC in the USA. This would, to quote DG Sanco, be comprehensive and flexible, cover the whole transaction relationship, and achieve clarity and certainty of rights and obligations.
So far so nirvana, but how will this be achieved? There will be detailed tests for the key elements of fair commercial practice, e.g. misleading and deceptive practices, undue influence and information disclosure. These would provide the legal basis for EU self regulation through codes of conduct, as well as resolve the main outstanding areas of national legal diversity in relation to key categories of commercial practices. There would also be non binding practical guidance, introduced ideally with sector-specific "stakeholder participation." Enforcement would also be streamlined to overcome national barriers to pan European co-operation.
All heady stuff, so where do we go from here? Yes, you guessed it, another consultation paper, to be published, it says here, in May 2001, though at the time of writing this has not yet materialised.
Why this matters:
Two things are clear. First, the DG Sanco "fair trading" initiative can certainly do no worse than DG Markt’s miserably slow and unproductive "Expert Group" project. Whether its fine words will result in anything better in fact will have to be seen. Secondly, by the time we have an agreed and implemented "Fair Trading Directive" and all the detailed tests, codes and non binding guidance in place, inconsistent national promotion marketing laws might have long gone. Witness the now high likelihood that Germany’s notorious unfair competition legislation will be swept away by 2002.