Advertising Law in Poland

Illegal advertising regulation

In addition to the commercial practices set out in section – unfair practices, Polish Unfair Competition Act establishes provisions regulating illegal advertising. Unfair Competition Act regulations transposed MCA Directive.

Under Polish Unfair Competition Act the concept of advertising is extremely wide and includes any information presented in any form to promote goods, services, rights and obligation and which relates, for instance, to the characteristics of goods, including their composition, usage, quantity, price, origin and trademarks.

General prohibition of illegal advertising in Poland

The following shall be particularly considered acts of unfair competition in the field of advertising:

1. advertising in breach of the provisions of law, good practice or human dignity;
2. advertising misleading the customer and thus potentially influencing his / her decision on acquiring goods or services;
3. advertising appealing to feelings of customers through stimulating fear, taking advantage of superstitions or gullibility of children;
4. statements encouraging the acquiring of goods or services which have the appearance of neutral information;
5. advertising which is a material interference with the sphere of privacy, and in particular by pestering in public places bothersome to customers, sending goods which have not been ordered at the cost of the customer or abuse of technical means of information transfer.

In the evaluation of misleading advertising all its elements should be considered, in particular those concerning quantity, quality, ingredients, production methods, usefulness, applicability, repair and maintenance of advertised goods or services, and the behaviour of the customer.

Comparative advertising in Poland

Comparative advertising is any advertising enabling directly or indirectly to recognize a competitor, goods or services offered by a competitor. Under Polish Unfair Competition Act it shall be deemed act of unfair competition if it is contrary to good practice.

However the comparative advertising shall not be deemed contrary to good practice if it meets the following prerequisites:

• it is not misleading;
• in a reliable manner, verifiable on the basis of objective criteria it compares goods or services satisfying the same needs or designed for the same purpose;
• in an objective manner it compares one or several important, characteristic, verifiable and typical features of such goods and services, which may also include price;
• it does not result in mistakes in distinguishing between the advertiser and the competitor, or between their goods, services, trademarks, designations of enterprises or other differentiating designations on the market;
• it does not discredit the goods, services, activity, trademarks, designations of enterprises or other differentiating designations, as well as other circumstances relating to the competitor;
• in relation to goods with a protected geographical indication or appellation of origin it always applies to goods with the same indications;
• it does not make a dishonest use of the repute of a trademark, designation of an enterprise or another designation differentiating the competitor, as well as a protected geographical indication or appellation of origin of competitive goods;
• it does not present the goods or service as an imitation or copy of goods or service bearing a protected trademark, a protected geographical indication or appellation of origin or another differentiating designation.

Comparative advertising related to a special offer shall, depending on its conditions, clearly and unequivocally indicate the date of expiration of such offer or contain the information that the offer is valid until the stocks last or as long as services are rendered, and if the special offer is not yet valid, it shall also indicate the date from which the special price or other special conditions of the offer will be valid.

Specific sectorial regulation of advertising

1. Health and medical products

Advertising of a medicinal product cannot be misleading, should present a medicinal product objectively and should provide information on the rational use of the medicinal product. It cannot involve offering or promising any benefits either directly or indirectly in exchange for purchase or providing proof of purchase. It also cannot be directed at children or contain any element directed at them. When the short advertisement refers to full advertisement, apart from name of the product and international non-proprietary name, it may contain only a trademark not referring to therapeutic indications, pharmaceutical form, dose, advertising slogan or other advertising content.

Advertisement regarding pharmaceutical product subject to prescription or medical institutions requires previous administrative authorizations. On the contrary, the publicity of pharmaceuticals that are not subject to medical prescription shall not require a previous administrative authorization.

Entreprenur shall observe the limitations to sample distribution provided for in the Pharmaceutical Law. Moreover the advertising of a medicinal product to the general public cannot involve:

• presentation by well-known persons, scientists, persons with medical or pharmaceutical education or suggesting that they have such education or making references to recommendations of these persons;
• suggestion that:
  • a medical consultation or surgical operation is unnecessary, in particular by offering a diagnosis or by suggesting treatment by mail;
  • even a healthy person’s health can be enhanced by taking the medicinal product;
  • a person’s health could be affected by not taking the medicine;
  • a medicinal product is food, cosmetic or other consumer product;
  • the safety or efficiency of the medicinal product is due to the fact that it is natural;
  • the effects of taking the medicinal product are guaranteed, are unaccompanied by adverse reactions or are better than or equivalent to those of another treatment method or treatment with a medicinal product;
• content that
  • could, by citing detailed descriptions of cases and symptoms of illness, lead to erroneous self-diagnosis;
  • refers, in improper, alarming or misleading terms, to therapeutic indications;
  • contains improper, alarming or misleading terms, pictorial representations of changes in the human body caused by disease or injury or of the action of a medicinal product on the human body or parts thereof.

There is a prohibition on advertising medicinal products that have not been approved for sale in the territory of the Republic of Poland or have been approved for sale without the necessary authorisation or containing information not compatible with the product characteristics.

Another types of prohibited advertising is advertising to the general public of medicinal products that:

• are available on medical prescription only;
• contain psychotropic or narcotic substances;
• have placed on the lists of reimbursed medicines in accordance with separate regulations or can be dispensed without prescription with a name identical to those on the said lists.

2. Gambling

Act on Gambling prohibits to advertise and promote cylindrical games, card games, dice games, slot machine games and mutual wagering (betting). Advertising of mutual wagering, upon obtaining prior authorization, is allowed if the advertising:

• is not addressed to minors, does not represent minors and is not carried out with the participation of minors;
• does not combine arranging games or participating in games with physical or intellectual fitness or a chance to win an easy win;
• does not contain statements that participation in gambling has a relaxing, calming effect or is a way of resolving personal conflicts or financial problems;
• does not represent restraining or moderate participation in games in a negative way;
• does not encourage the payment of higher stakes as a factor increasing the chance of winning;
• does not evoke associations with:
  • sexual attractiveness,
  • relaxation or rest,
  • study or work,
  • professional, life or financial excess.

Also, additional limitations to channels and timeframe of advertising as well as to gambling sponsorship are introduced in the Act on Gambling

For instance advertising of gambling is prohibited:

• on television, radio, cinema and theater between 6:00 and 22:00 unless it is advertising conducted during broadcasts of sports events where the entity conducting the activity in the field of betting is a sponsor or a sponsor of the team or players taking an active part in a given sports event;
• in the youth and children’s press;
• on the covers of newspapers and magazines;
• in public places, with the exception of mass events and sports events where the entity conducting the activity in the field of betting is a sponsor or a sponsor of the team or players taking an active part in a given sports event, or is a sponsor of a sports association related to the organized party.

The gambling advertising must contain information, on:

• the consequences of participating in illegal gambling;
• risk related to gambling and
• having a permit to arrange mutual wagering.

3. Alcohol beverages

Entrepreneurs shall not advertise or promote alcohol beverages except for beer, if the advertising:

• is not intended for minors;
• does not present minors;
• does not combine alcohol consumption with physical fitness or driving;
• does not contain statements that alcohol has healing properties, is a stimulant, calming agent or a method of resolving personal conflicts;
• it does not encourage excessive alcohol consumption;
• does not represent abstinence or moderate alcohol consumption in a negative way;
• does not emphasize high alcohol content in alcoholic beverages as a feature that has a positive effect on the quality of alcoholic beverages;
• does not evoke associations with:
  • sexual attractiveness,
  • relaxation or rest,
  • study or work,
  • professional or life success.

Such beer advertising cannot be presented:

• on television, radio, in the cinema and theatre between 6:00 and 20:00, unless it is advertising carried out by the organizer of a competitive or professional sport event during the event;
• on video cassettes and other carriers;
• in the youth and children’s press;
• on the covers of newspapers and magazines;
• on advertising poles and boards and other fixed and movable surfaces used for advertising, unless 20% of the advertising space will be covered by visible and legible inscriptions informing about the harmfulness of alcohol consumption or about the prohibition of selling alcohol to minors;
• with the participation of minors.

It is also prohibited to promote or advertise products and services element of which exploits similarity or equality with designation of alcoholic beverages or a symbol objectively referring to it.

It is forbidden to advertise and promote entrepreneurs and other entities that use the name, trademark, graphic shape or packaging related to the alcoholic beverage, its producer or distributor in their advertising image.

It is also forbidden to inform about the sponsorship of sports events, music concerts and other mass events by producers and distributors of beverages whose main activity is the production or sale of alcoholic beverages containing from 8% to 18% alcohol, in any other way than by placing inside newspapers and magazines, on an invitation, ticket, poster, product or information board related to a specific event, the name of the manufacturer or distributor and its trademark.

In other words producers and sellers of alcohol stronger than beer may under strict limitations advertise the event and not the product.

Such information about sponsorship may be carried out on the radio and television, provided that it will be limited only to the name of the producer or distributor or its trademark, and this information will not be presented on television by a natural person or using the image of the human character.

Other information on sponsorship is strictly prohibited. The rules do not apply to advertising inside the premises of wholesalers, dedicated stands or points selling alcoholic beverages only, and at points selling alcoholic beverages intended for consumption at the point of sale.

4. Food advertising

Regulations on food advertising are laid down distributed among: Polish Food and Nutrition Safety Act, which includes limitations to advertising among others food supplements, infant formulas. Specific rules are also laid down in ministerial regulations to the act.

Please note that there are also different codes of conduct regarding food advertising.

5. Tobacco products advertising

It is forbidden to advertise tobacco products, electronic cigarettes, refill containers or tobacco props and to promote tobacco products, electronic cigarettes, refill containers or tobacco props, and to advertise and promote products imitating these products, or symbols related to the use of tobacco, tobacco products, electronic cigarettes or containers spare, in particular:

• on television, radio, cinemas, medical institutions, schools and educational institutions, in the children’s and youth press, in sports and recreational facilities and in other public places;
• in the press;
• on posters, including large-format posters;
• in the means of IT services.

Strict limitations as to the sponsorship held by tobacco company or the appearance of the boxes for tobacco products are imposed as well.

Specific advertising regulation by channel

Indirect marketing – Television and Radio Advertising

Polish Broadcasting Act of 29 December 1992 r. (Journal of Laws 1993 No 7, item 34 as amended, “BA”) sets very high standards for advertising through television and radio. When forming such messages Entrepreneurs shall take into consideration that:

• advertising should be easily recognizable;
• advertising and teleshopping should be clearly distinguishable from editorial material by visual, audio or spatial means;
• advertisements and teleshopping must not be longer than 12 minutes in any given clock hour unless:
  • it is the broadcaster’s announcement containing only information about additional products obtained directly from the program or
  • it is legally required markings of commercial communications, including indications of sponsors;

provided such communications not take more than 2 minutes within a clock hour.

• The technical requirements for TV and radio adverts is contained in Regulation of 30 June 2011 of the National Broadcasting Council on the manner of conducting advertising and teleshopping activities in radio and television programs [Journal of Laws 2011 No 150, item 895] issued pursuant to Article 16.7 of BA
• Pursuant to Article 16b of BA It is forbidden to advertise:
  • tobacco products, tobacco props, products imitating tobacco products or tobacco props and symbols related to the use of tobacco, to the extent regulated by separate provisions;
  • alcoholic beverages, to the extent regulated by separate provisions;
  • health services within the meaning of the provisions on medical activity, provided only on the basis of a doctor’s referral;
  • medicinal products, within the scope regulated by separate provisions;
  • cylinder games, card games, dice games, mutual wagering, slot machine games, within the scope regulated by separate provisions;
  • psychotropic substances or narcotic drugs and foodstuffs or other products, to the extent regulated by separate provisions;
  • services in the field of providing a solarium, to the extent regulated by separate provisions.

• It is also forbidden to air / broadcast adverts that are:

• • directly inciting minors to purchase products or services;
  • encouraging minors to put pressure on their parents or other persons in order to make them buy advertised products or services;
  • using minors’ trust in their parents, teachers and other people;
  • unjustifiably showing minors in dangerous situations;
  • interacting in a hidden way on the subconscious.

• Entrepreneurs cannot deliver advertising which:

• • violates human dignity;
  • includes content that discriminates on the basis of race, sex, nationality, ethnic origin, religion or belief, disability, age or sexual orientation;
  • hurts religious or political beliefs;
  • threatens the physical, mental or moral development of minors;
  • favours behaviours threatening health, safety or environmental protection.

• Pursuant to Article 16c of BA Entrepreneurs cannot advertise by way of:
  • covert commercial messages;
  • topic placement;
  • product placement (with below described exception).

Pursuant to Article 16a of BA Entrepreneurs can use product placement only in: cinematographic films, films or series produced for the use of audiovisual media services, as well as in sports and entertainment programs, or in the form of free access to goods or services for use in the program, in particular as a prize – excluding programs for children. Programs using product placement must be marked in television by a logo and in radio by audio signal of product placement at the beginning, at the end and when resuming after an advertising or teleshopping break.

The standards of product placement are set forth in the Regulation of 30 June 2011 of the National Broadcasting Council on detailed conditions for product placement [Journal of Laws 2011 No. 161, Item 977]

Indirect marketing – Press Advertising

Article 36 of the Press Law [Journal of Laws 1984 No. 5, Item 24 as amended] establishes that announcements and advertisements cannot be contrary to the law or principles of social coexistence and must be marked in such a way that there is no doubt that they do not constitute editorial material.

The publisher and editor are not responsible for their content.

Direct marketing – Outdoor Advertising

In Poland provisions regulating outdoor advertising are very dynamic and distributed. For instance pursuant to provisions of the Article 42a of the Act on Public Roads [Journal of Laws 2015, Item 460 as amended] light emitting adverts visible from the road and enabling the ongoing change of visual information cannot: display moving images; use visual effects and breaks between information displayed in succession and the minimum duration of presentation of visual information must be more than 10 seconds. Article 43 of the Act on Public Roads regulate the minimum distance of the advert from the road.

The standards for outdoor marketing are also governed by ministerial regulations and local government regulations which not only may regulate the measurements or visuals but also notification, authorisation and payment terms for outdoor advertising.

Entrepreneurs must also pay special attention to building permits which as a rule are necessary for putting up light billboards. It is necessary to report the intention to put up billboards without lightning as well as agreeing the location of the advertisement with the road manager.

Direct marketing – Street solicitation

Regulation regarding street solicitation is developed by local bylaws, therefore it is very fragmented and distributed among the Polish territory.

As a general rule, the distribution of leaflets and tracts on the streets does not require prior administrative permit, however whoever places an advertisement, poster, placard, appeal, leaflet, inscription or drawing in a public place not intended for that purpose, or exposes it to the public in another place without the consent of the administrator of this place commits a petty crime (minor offense) under Article 63a of Code of Petty Crimes [Journal of laws 1971 No. 12, Item 114 as amended] subject to restriction of liberty or fine.

Where permitted, when Entrepreneurs practices this kind of advertising, it must respect the standard established in Section 3.2.9 above.

Direct marketing – Mail/online Advertising

As a rule should be provided with consent of the addressee.