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.