ELIG Gürkaynak Attorneys-at-Law | View firm profile
Turkey's main
regulation regarding advertisements, the Regulation on Commercial Advertisement
and Unfair Commercial Practices ("Regulation") was amended with another
regulation published on the Official Gazette of 4 January 2017, effective
immediately. Those who advertise their products and services, advertisement
agencies and the media that publishes such advertisement should abide by the Regulation.
The main
amendments realized on the Regulation are with regard to (i) comparative
advertising and (ii) proof conditions with regard to the assertions in the
advertisements. Aside from these, what should be disclosed when announcements
regarding marketing techniques that give the right to join a lottery or to a
competition through collecting a certain number of coupons, labels etc., or
through the purchase of the advertised product has been amended. Previously,
the obligation was to declare (i) the beginning and end dates of the promotion,
(ii) the announcement technique of the lottery result and (iii) the dates and
conditions of the delivery of the service products. The amendment is vague as
to whether "the announcement technique of the lottery result" should be
disclosed-the requirement itself has been deleted, but have been replaced with
"disclosure of conditions regarding the delivery of the service or the goods or
the disclosure of the announcement method of such."
Another novelty
brought about by the amendment is with regard to the regulation of
advertisements regarding electronic communication services. Generally, the
amendments impose obligation to disclose to the consumer that the speed
promised with the advertisement can be subject to change due to infrastructure
related issues and that the perception regarding all consumers may enjoy the
speed levels tested in laboratories should not be created.
–
Amendments on Comparative Advertising
Compliance with
the principles (with regard to comparative advertising) set out by the
Advertisement Board has been added as one of the conditions under which
comparative advertisements can be made. Such amendment brings about the
expectation that the Advertisement Board will draft principles under which
comparative advertisement can be made.
Although the
trademark or commercial titled of the competitor product can be used in the
comparative advertisement, with the amendment, real person or institutional
witnesses cannot be used in comparative advertisements. Previously, this
paragraph was to enter into force as of 31 December 2016. With the amendment,
the entry into force of this requirement has been postponed to 1 January 2018.
Further, the new
amendments emphasize the principle that food supplements cannot be subjects of
comparative advertisements. The newly added principles provide that health
declarations within food commercials cannot be compared and nutrition
declarations can only be compared in compliance with the relevant legislations.
Comparative advertisement cannot be made with regard to sectors whose price
regulations and significant market power obligations are determined by the
administrative authorities.
– Amendments on Burden of Proof
The
new proof system proposed by the amendments will be deemed easier by companies
subjected to it. Previously, any assertions in advertisements were to be proven
with reports obtained from universities, accredited testing institutions or
independent research institutions. With the amendments, this requirement is
introduced for comparative advertisements. For the rest of the advertisements
the rule is changed. Such a high standard of proof can, now, be required where
deemed necessary. However, the rule is to prove all assertions through
information and documents which have scientific validity.
The amendments
regarding the burden of proof will especially beneficial for the incumbents of
the Regulation. As for comparative advertisements, the future may bring further
principles, as the Regulation has been amended to provide that those willing to
engage in comparative advertisements should also comply with the principles set
out by the Advertisement Board.
Authors: Gönenç
Gürkaynak, Esq., Ç. Olgu Kama and Burcu Ergün
First
published in Mondaq on January 9, 2017.