Advertising labeling: the latest explanations of the FAS

Legal Digest News
On November 14, 2023, by Order No. 821/23 of the Federal Anti-Monopoly Service (FAS) of Russia, the Guidelines on Compliance with mandatory requirements "The Concept of advertising" were approved.

The Guidelinescontain detailed examples of information that is and is not advertising. This Order is useful to all companies that are faced with the dissemination of information, including advertising.

The urgency of the issue arose in September 2022, when the requirements for labeling online advertising came into force. The most acute period for everyone connected with advertising on the Internet occurred after September 1, 2023, when new fines were introduced for the absence of advertising labeling. It is premature to say that the published document solves all the problems with the differentiation of advertising and other information. But, at a minimum, it sets the main guidelines and clarifies the concepts of "indefinite range of persons", "advertised object", "sponsored products", "social advertising", "advertising in communications operator messages", the use of souvenir and branded products in the course of an entrepreneur's activity.

Two sections of the Guidelines are dedicated to the natural integration of advertising, regarding which the opinions of business and officials often differ, as well as the most acute issue of recent months - the differentiation of advertising and information materials, including the FAS told about reposts and personal pages in social networks.

The Guidelines consider the following issues:

  • the concept of advertising;
  • the concept of the advertised object;
  • the concept of sponsored advertising;
  • the concept of social advertising;
  • differentiation of advertising and informational messages;
  • differentiation of advertising and informational materials;
  • information integrated into works of culture, science and art.

We would like to draw your attention to the following provisions of the Guidelines:

  1. The fact of publishing information for a fee is not included in the list of signs of advertising.
  2. An indefinite range of persons means those persons who cannot be determined in advance as the recipient of advertising information and a specific party to the legal relationships arising from the implementation of the advertised object. Therefore, advertising refers to certain non-personalized information aimed at promoting a certain advertised object, even if it is sent to a certain address list. Such information may be published in the mass media or other publicly accessible places (for example, on advertising structures), where it is addressed to any persons by virtue of the method of its placement.
  3. The application of logos or trademarks on souvenir gifts, clothing is carried out for advertising purposes, at the same time, these products can also be used by the legal entity itself (its employees) for their own needs when organizing the work of the enterprise, directly carrying out their activities. In this case, the information printed on such products will not be considered as advertising. However, the distribution of such products among an indefinite range of persons, including as gifts to contractors, consumers, may be the basis for the recognition of such distribution actions as advertising.
  4. The advertised object is a product, means of individualization of a legal entity and (or) a product, a manufacturer or seller of a product, the results of intellectual activity or an event (including a sport contests, concert, competition, festival, risk-based games, betting) to attract attention to which the advertisement is directed.
  5. Sponsored advertising is a type of advertising and it is subject to both the general requirements imposed by the Federal Law "On Advertising" and the special requirements established by the said Federal Law.
  6. Social advertising is not advertising, it is not subject to both general and special requirements imposed by the Federal Law "On Advertising".
  7. Advertising should not include information disseminated through SMS messages or PUSH notifications sent by mobile operators to their subscribers, containing information about the procedure for fulfilling or changing the conditions for fulfilling obligations to provide "basic" services under the terms and subject of the concluded contract.
  8. At the same time, information disseminated through SMS messages or PUSH notifications about additional services offered by mobile operators to subscribers with whom they have concluded a contract for the provision of services may be considered as advertising.
  9. Limited integration implies that the Federal Law "On Advertising" is not applied to information about certain persons or goods that simultaneously meets two criteria: firstly, it is naturally integrated into a work of science, literature, art and, secondly, it is not in itself information of an advertising nature.
  10. Uniform information about manufactured or sold goods published on the website of the owner of the aggregator of information about goods (services), as well as pages of the owner of the aggregator of information about goods (services) on social networks on the Internet, in the official application for mobile devices, does not apply to advertising, if the specified information is intended to inform visitors to the site.
  11. The information provided by the search system at the user's request does not fall under the concept of advertising, since the purpose of disseminating this information is a direct request for its provision, and such information is not subject to the requirements of the Federal Law "On Advertising".

Therefore, the Guidelines contain detailed examples of information that is and is not advertising. It is useful for companies engaged in the dissemination of information, including advertising. We recommend reading the text of the Guidelines, it covers such issues as the concept of advertising, the differentiation of advertising and informational materials, sponsored and social advertising, limited integration and other important provisions.