Nowadays, advertising is one of the important mechanisms for promoting the company and its products/services on the market. Advertising on television allows you to reach a huge audience and, despite the growth of Internet penetration, remains the most popular way of promoting.
According to the legislation of Ukraine, the duration of television advertising cannot exceed 15 minutes in 1 hour and must be placed between programs and broadcasts. Advertising is completely prohibited during the broadcast of the speech of the President of Ukraine, the Prime Minister or sessions of the Verkhovna Rada of Ukraine.
Children’s programs up to 30 minutes can not be interrupted for advertising, and films and series – only once every 20 minutes.
But, according to the Law “On Advertising”, pronouncing in the program/broadcast the name, name of the sponsor, objects of intellectual property rights that belong to the sponsor is not considered advertising at all.
There are a number of requirements and rules for advertising, but the most stringent applies to manufacturers of alcohol and tobacco products, medicines, and financial services.
The prohibitions on advertising alcohol and tobacco products and how to circumvent them
Advertising of alcohol and tobacco products is prohibited on television and radio from 6:00 to 23:00, and completely on the means of internal and external advertising, on and in public transport, in all publications that are intended for persons under the age of 18.
Advertising must not show under-age persons; the process of smoking or drinking alcohol (this prohibition also applies to advertising of any other products), etc. In this case, the list of prohibitions is very long.
Of course, the mandatory disclaimers in advertising such products:
“Smoking can cause cancer” (“Куріння може викликати захворювання на рак”) or “Excessive consumption of alcohol is harmful to health,” (“Надмірне споживання алкоголю шкідливе для вашого здоров’я”).
Such text should be executed in black letters on a white background.
So how do you get around almost continuous bans?
A popular option for manufacturers of alcoholic beverages is sponsoring television, radio programs, concerts, and other events using intellectual property rights objects (as usually, Trademarks) under which alcoholic beverages are produced.
But even to “sponsoring” there are a number of requirements: advertising information about the sponsor cannot be reported, the maximum is the name and/or TM. The sponsor can be indicated at the beginning and/or end of the message. Also, it is necessary to confirm the rights to TM – it is possible with a certificate of registration or with a submitted application with confirmation of paid fees. Sponsorship information should not contain images, statements that are used with the product (bottles, drinking process, names, type of product, production technology).
And most importantly – no agitation for consumption of alcoholic beverages.
But for tobacco products, this option is not available, as well as advertising on the Internet, except for sites that are designed for people over 18 years of age.
Features of pharmaceutical advertising
In this case, it is necessary to take into account the current laws, namely: the Laws On Advertising, On Medicines, Fundamentals of the Legislation of Ukraine on Health Care, On Protection of Consumer Rights, On Protection of Personal Data, On Copyright and Related Rights, On ensuring the functioning of the Ukrainian language as the state language, On Protection Against Unfair Competition, etc.
In Ukraine, there is no separate legislation regarding the regulation of pharmaceutical advertising on the Internet. When advertising on the Internet, you should follow common approaches.
In fact, in drug advertising, there are more prohibitions and requirements than “permissions”.
Permitted advertising of medicines, medical devices, and methods of prophylaxis, diagnostics, treatment and rehabilitation that are approved for use in Ukraine, as well as drugs that are dispensed without a prescription and are not listed as prohibited for advertising. Accordingly, advertising of the latter is prohibited, and drugs are not yet approved for use.
Advertising should be served so that it is clear to the consumer that the message is an advertisement, and the advertised product is a medicine. Mandatory is an indication of the need for consultation with a doctor and disclaimer:
“Self-treatment can be harmful to your health” (“Самолікування може бути шкідливим для вашого здоров’я”).
The size of the inscription is at least 15% of the entire advertising area.
It cannot be indicated appeals to the fact that consultation with a specialist is not necessary in case of using this medicine or that the use is guaranteed success in overcoming the disease.
Comparison of drugs/products, the image of the human body and its parts is prohibited.
It is also impossible to cite examples of successful use of the drug, to allow assertions about the possibility of making a diagnosis on your own, to provide recommendations from medical workers, doctors, etc.
The information provided in advertising should not be misleading regarding the effectiveness of the drug, its composition and patent protection. Images, as well as references to famous people, heroes, authoritative organizations, are prohibited.
For non-compliance with the rules, the law provides for penalties.
Penalties for False Advertising
Mostly, the fines for violating advertising laws are specified in the Law on Advertising.
The fines for advertising tobacco products are separately listed in the Code of Administrative Offenses.
Responsibility for violation of the rules lies with advertisers, manufacturers, and distributors of such advertising – disciplinary, civil, administrative, as well as criminal.
So, advertisers will be to blame for:
– ordering advertising of products whose production and/or circulation is prohibited;
– providing false information to the advertising producer necessary for the production of advertising;
– an order for distribution of advertising prohibited by law;
– non-compliance with requirements regarding the content of advertising;
– violation of the procedure for the distribution of advertising if the advertisement is distributed by them independently.
The penalty for such actions is five times the cost of distributed advertising.
Failure to comply with legislative requirements regarding advertising and any other activities for advertising tobacco products (as well as intellectual property rights under which products and products are sold) will result in a fine from 85 to 170 hryvnias for natural persons and from 1,700 to 4,250 UAH for officials of the advertiser and/or distributor advertising.
Advertising of any goods or services (except advertising of tobacco products) that contain images of tobacco products or the smoking process – from 1,700 to 4,250 UAH of fine for officials of the advertiser and/or distributor of advertising.
Failure to comply with the requirements of the law in sponsoring any activities using intellectual property under which tobacco products are produced entails a fine of 1,700 to 4,250 UAH for officials of the advertiser and/or distributor of advertising.
And regulatory authorities closely monitor compliance with the rules of advertising.
New Language Act: How It Will Affect Advertising Requirements
On April 25, 2019, the Law “On ensuring the functioning of the Ukrainian language as the state language” was adopted.
According to the new Law:
– the language of telecommunication services is Ukrainian;
– the language of advertising is Ukrainian;
– intellectual property rights objects in advertising can be used in the language in which they are granted legal protection;
– violation of the standards entails either a warning or a fine from 3,400 to 5,100 UAH if the violation is committed for the first time. In case of repeated violation within one year – from 8,500 to 11,900 UAH, etc.
– all content on the Internet should be duplicated in Ukrainian, if the company operates in Ukraine.
Elena Polosmak, Managing partner of Crane IP Law Firm