Switzerland: Prohibited and controlled advertising


Prohibited products and services

What products and services may not be advertised?

Certain products are banned from public advertising altogether, such as prescription drugs. Further, there are several restrictions concerning broadcast advertising: in addition to alcohol and tobacco, advertisements for gambling and lotteries without licence, for political parties and political persons either holding or running for office, and for religious beliefs, are prohibited. Topics that are subject to the popular vote and religious denominations as well as the people and institutions representing them may also not be advertised on the radio or television.

Prohibited advertising methods

Are certain advertising methods prohibited?

Any aggressive methods, such as exercising physical or psychological pressure, cornering prospective clients or in any other way limiting their free decision-making abilities, are prohibited. Spam emails are allowed only if the sender of the advertisement is visibly and correctly recognisable, the message includes a ‘remove me’ or ‘unsubscribe’ option that, when clicked, removes the recipient from the mailing list and if the recipient has given either prior consent to their inclusion in the mailing list or has previously purchased something from the sender. Additionally, mass advertising is restricted, and with the newly adopted article 45a of the Telecommunications Act, telecommunications service providers are now obliged to combat unfair mass advertising. Further, newly adopted provisions of the Federal Act against Unfair Competition (UCA) restrict advertising calls and add a respective opt-in obligation. They also prohibit spoofing in connection with advertising calls. There are a few more specific rules such as, for example, prohibiting the use of loudspeakers on motor vehicles as well as individual cantonal regulations. Furthermore, the guidelines of the Swiss Commission for Fairness ban gender-discriminatory advertising and consider advertising as sexist and, thus, unfair, if it lacks a natural link between the person embodying the gender and the advertised product.

Protection of minors

What are the rules for advertising as regards minors and their protection?

There is no special law concerning the protection of minors in Switzerland: thus, such regulation in the area of advertising falls under the provisions of the UCA. Products unsuitable for minors may not be advertised in media aimed at this target group. Material unsuitable for children must be clearly marked as such. Advertising must not exploit the inexperience and credulity of minors and may especially not display the performance and use of the product in an exaggerated or false manner. It is not appropriate to compromise the social values of minors by, for example, undermining the authority of their parents, displaying violent content or linking the product to social standing. 

The Federal Radio and Television Act stipulates specific rules on advertising to minors in broadcasting, such as the rule that programmes for children may not be interrupted by advertising at all. The advertising of tobacco products directed at minors is prohibited. There are industry codes self-restricting the advertisement of further goods to minors, such as e-cigarettes.

Credit and financial products

Are there special rules for advertising credit or financial products?

In general, the UCA is also applicable to the advertising of credit or financial products. In public advertising of consumer credit, the name of the company of the creditor must be easily and clearly recognisable. The law requires clear indications in the advertisement concerning the net amount of the credit, its total costs and the actual annual interest, as well as at least one example calculation. The Swiss Banking Association advises its members to refrain from any targeted advertising. It further discourages any sort of misleading statements such as ‘savings credit’ and any statements that could encourage uneconomical behaviour.

The advertising of financial instruments is further regulated by financial market regulations (such as the Federal Act on Financial Services or the Federal Banking Act). For example, any advertisement for financial instruments in the sense of financial market law must be readily recognisable as such. Advertisements for financial services (eg, asset management, investments advice) must be marked as such. Non-compliance is punishable with fines of up to 100,000 Swiss francs.

Therapeutic goods and services

Are there special rules for claims made about therapeutic goods and services?

Specific provisions for the advertising of therapeutic goods and services are included in the Federal Ordinance on the Advertising of Medicinal Products, the Federal Ordinance on Medical Devices and the Federal Act on Medicinal Products and Medical Devices. Furthermore, such advertising also falls under the general legal provisions of the UCA.

The applicable law differentiates clearly between advertising targeted at professionals and advertising targeted at the general public. It contains specific provisions and lists regulating what may or may not be advertised or included in such advertising. Advertising directed at the general public for prescription-only medicinal products is prohibited. Advertising for over-the-counter medicinal products to the general public is, in principle, permitted. However, medicinal products which have not (yet) obtained a marketing authorisation in Switzerland may not be advertised.

Food and health

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

Advertising of foodstuffs is regulated by the Federal Act on Foodstuffs and the Ordinance on Foodstuffs and Commodities. Claims concerning the effects or properties of a food that, according to current scientific knowledge, it does not possess, or that are not sufficiently scientifically substantiated are prohibited. Health claims are explicitly prohibited in the advertising of foodstuffs save for a list of authorised nutrition claims. Advertisers may apply for special approval for claims from the Federal Health Ministry. Any nutrition or health claims must be correct and formulated in a way that they are understandable to consumers. Advertisements may not claim possible health hazards in the case of non-consumption of the product and must always include indications on the importance of a varied and balanced diet and a healthy lifestyle. Any health-related claims may not be associated with claims concerning weight loss or the duration and extent thereof.


What are the rules for advertising alcoholic beverages?

Advertisements for alcoholic beverages are, among others, regulated by the Federal Act on Foodstuffs and the Federal Act on Alcohol. As a general rule, advertising for alcoholic beverages must not be directed at children or adolescents and may not include any type of health claims. Additionally, many cantons and municipalities have chosen to issue a general prohibition for public advertising of alcoholic beverages.

The advertising of alcoholic beverages of more than 15 per cent by volume is subject to severe restrictions: for example, advertising is permitted only if its content is directly related to the product; it is prohibited to advertise spirits on the radio or television, on public buildings, on sporting grounds or on public transport.


What are the rules for advertising tobacco products?

Advertising tobacco products is specifically regulated in the Federal Ordinance on Tobacco Products and Products Containing Tobacco Substitutes. It is prohibited to advertise tobacco products on the radio or television and to direct such advertisements towards children and adolescents. All advertisements are subject to a declaration requirement as well an obligation to display warnings.

The organisation ‘Swiss Cigarette’ has established an agreement with the Swiss Commission for Fairness that further specifies and limits tobacco advertising. It particularly states that a general warning must always be in the three official Swiss languages and take up at least 10 per cent of the advertising surface.

In October 2021, the Federal Parliament has passed a revised Tobacco Product Act which will prohibit tobacco advertising on posters, in cinemas, on sports grounds, in and on public buildings and in and on public transport; tobacco advertising aimed at minors; and sponsorship of events for young people or of events of an international character. This Tobacco Product Act constitutes a counter-proposal to the people’s initiative 'Children without Tobacco', which aims at even stricter regulation of the advertisement of tobacco products. Hence, the content and date of coming into force are unknown at present and dependent on the outcome of voting in February 2022.

Against the applicable provisions in the Federal Act on Foodstuffs, based on a recent decision of the Federal Supreme Court, e-cigarettes containing nicotine can now be sold and advertised in Switzerland without particular restrictions as regards the protection of minors if they meet the technical requirements of an EU or EEA member state. However, one of the applicable soft law codes prohibiting sales and advertising to minors has recently been extended to 'other nicotine-containing products' such as e-cigarettes. Under the new Tobacco Products Act, e-cigarettes are intended to be regulated extensively (including their advertising).


Are there special rules for advertising gambling?

The offering and advertising of money games are subject to the strict regulation of the Money Games Act. Advertising is allowed only for licensed money games and if it is not misleading or intrusive. In addition, the advertising must not be directed at minors or persons barred from playing money games. The Act further prohibits advertising that implies that the players’ knowledge, skills or other characteristics influence their chances of winning without this actually being the case. There are additional restrictions on the form and time of the advertising. Inadmissible advertising to blocked or underage persons is punishable by a fine of up to 500,000 Swiss francs.


What are the rules for advertising lotteries?

Lotteries are also regulated by the Money Games Act. In general, the running of lotteries must be licensed. As regards the advertising of lotteries, this can be referred to the respective rules applicable to money games. Accordingly, advertising must not be carried out in a misleading or intrusive manner and may not be directed at minors or blocked persons.

Promotional contests

What are the requirements for advertising and offering promotional contests?

The Money Games Act has lifted the previously existing general ban on games of chance for sales promotion. Provided that promotional contests are carried out for a short period only and do not create any danger of excessive gambling, they are exempted from the scope of the Act and the respective rules on licensing and advertising do not apply. Case law will have to show what the terms ‘promotional’, ‘short period’ and ‘danger of excessive gambling’ mean. However, stricter rules apply to media companies: they are permitted to offer and advertise promotional contests only if participation is free and unconditional on purchase.

The UCA requires that all participants in a competition be informed in detail about the conditions of participation and winning. Any ambiguities and misleading information are not permitted in the case of games and promotional contests.

Indirect marketing

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Sponsorship in radio and television broadcasts is permitted; however, it must be clearly distinguishable from advertising and the editorial content. Sponsors must be named at the beginning and end of broadcasts and advertising statements may not be included in broadcasts. Companies whose products fall under an advertisement prohibition may usually not act as sponsors. Product placements constitute sponsorship and may not have any advertising effect for the sponsor and towards third parties. Broadcasts with product placements must indicate this at the beginning thereof. Product placement is prohibited in children’s shows.

Other advertising rules

Briefly give details of any other notable special advertising regimes.

Owing to their recognised need to protect their local language, some cantons have special provisions under which advertisements are required to be in a certain language.

Certain professions such as lawyers and doctors are subject to advertising restrictions. In addition, political advertising on the radio and television is banned; however, it is allowed in other media.

According to the Coat of Arms Protection Act, federal, cantonal and communal coats of arms or related symbols and characteristics may not be used in advertising by private persons.

Jones Day -  Armelle Sandrin-Deforge and Karim Tarantino


🟠 Barcelona 7.7.2022: X JORNADA TÈCNICA DEL GECCC - Visions i opinions de com pot ser la producció primària d’aliments en el segle XXI a Catalunya


Visions i opinions de com pot ser la producció primària d’aliments en el segle XXI a Catalunya 

7 DE JULIOL, IEC, Carme, 47, 08001-BARCELONA, Sala PI I SUNYER 

 🟠 09:45-10:00 Presentació del GECCC i de la Jornada Javier Martín-Vide (GECCC-UB) 

🟠 10:00-10:25 La incertesa ambiental en el segle XXI a Catalunya Marc Prohom (SMC) 

🟠 10:30-10:55 La producció d’aliments al camp i al mar, segons l’informe MedECC Robert Savé (GECCC-IRTA) 1

☕ 11:00-11:25 Cafè 

🟠 11:30-11:55 Tot el menjar vindrà del camp/mar? Realitat o ficció Anna Palli (IRTA) 

🟠 12:00-12:25 La legislació alimentària com a marc equitatiu i sostenible per a la producció i la disponibilitat d'aliments Lluis González Vaqué (Fundació Triptolemos) 

🟡 12:30-13:15 Debat general 

🟩 13:20 Clausura 

Organitza: Grup d’Experts en Canvi Climàtic de Catalunya (Coordinador: Robert Savé)

📧 Contacte

Secretaria tècnica del Grup d’Experts en Canvi Climàtic de Catalunya:

Rosa M. Bosch Casadevall


USA: Appeals court rejects challenge to California’s ban on foie gras


The US Court of Appeals for the Ninth Circuit on May 6 rejected a challenge to California’s ban on foie gras. A three-judge panel of the court ruled by a 2-1 margin that the foie gras ban was not pre-empted by federal law and did not violate the dormant Commerce Clause of the US Constitution. The statute provides that a product may not be sold in California “if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” The panel found that the plaintiffs in the case had not shown any cognizable burden on interstate commerce resulting from the law and also found that the state has an interest in public health and in preventing animal cruelty. The panel also upheld the district court’s ruling that the ban should be read as applying to sales in the state but not to online, phone and fax sales from out of state to California buyers.

Source: https://www.dlapiper.com/en/us/insights/publications/2022/05/food-beverage-news-trends-may-19/


💡 FRANCIA: ¿Una buena idea para mejorar la comprensión de la fecha de caducidad ("use by") en el etiquetado alimentario?


No cabe duda de que las fechas de durabilidad, reguladas siguiendo las normativas de la Unión Europea, confunden más que informan al consumidor y esta desorientación tiene un impacto notable, por ejemplo, en el despilfarro y perdidas de alimentos.

El hecho de que Francia en cumplimiento de lo previsto en la Directiva (UE) 2015/1535, de 9 de septiembre de 2015, por la que se establece un procedimiento de información en materia de reglamentaciones técnicas y de reglas relativas a los servicios de la sociedad de la información[1] un proyecto de Decreto sobre normas detalladas para informar a los consumidores sobre la idoneidad de los productos alimenticios para el consumo después de su fecha de duración mínima.

Al hacerlo, Francia, cumplió su obligación, impuesta a todos los Estados miembros de la Unión de informar a la Comisión de su intención de adoptar una normativa técnica antes de propulgarla.

Dicho proyecto incluye una interesante propuesta[2], que si no se plantean objeciones será aplicable a todos los productos alimenticios preenvasados con una fecha de duración mínima:

«El Decreto se adopta de conformidad con el artículo L. 412-7 del Código de Consumo derivado del artículo 35 de la Ley n.º 2020-105, de 10 de febrero, de lucha contra los residuos y de economía circular. Especifica las indicaciones que deben seguir los profesionales cuando opten, según lo permite el artículo L. 412-7 del Código de Consumo, por informar a los consumidores de que un producto alimenticio sigue pudiendo consumirse una vez transcurrida su fecha de duración mínima.

Se ofrecen tres posibilidades:

- añadir las palabras «Para un sabor óptimo», antes de indicar la fecha de duración mínima,

- la indicación «Este producto podrá consumirse después de esta fecha» o cualquier indicación que tenga el mismo significado para el consumidor, en el mismo campo visual que la fecha de duración mínima, o

- la combinación de estos enunciados.


Opinamos que esta proposición podría ser copiada por otros Estados o, incluso mejor: que se modificara el Reglamento vigente en materia de etiquetado alimentario para incluir esa solución; y decimos solución porque os consumidores a menudo confunden las fechas de caducidad[3] con las fechas de duración mínima, lo que lleva a desechar productos que todavía pueden consumirse y a desperdiciar alimentos. 

Por consiguiente, Francia propone una indicación adicional a la fecha de duración mínima prevista en el Reglamento (UE) n.º 1169/2011, a fin de informar de forma más clara de que el producto sigue pudiendo consumirse una vez superada su fecha de duración mínima.

Se trata de una indicación que podrán colocar voluntariamente los operadores, a la espera de la finalización de la revisión del Reglamento (UE) n.º 1169/2011 anunciada sobre este asunto.

Luis González Vaqué              





[2] Texto del proyecto notificado disponible (en español) en: https://app.box.com/s/b0mecbcetu3khvjvgf94j2aa9kjs4m5f 

[3] “Fecha de caducidad” es una errónea versión, nunca corregida por las autoridades competentes, de “the minimum durability date – use by date”.





Bill No. 22,964 is pending in congress to amend the recently approved law on cannabis for medicinal and therapeutic use and hemp for food and industrial use. The reform is motivated by the partial veto of the executive power that modified article 5 of bill No. 21,388.

Article 5, which was initially approved, interpreted hemp cultivation as comparable to other traditional crops, considering that it lacks psychoactive effects such as those of cannabis. Therefore, Bill No. 21,388 did not require special licenses for the cultivation of hemp, remaining subject to the licenses and permits required for any productive agricultural or agro-industrial activity.

In exercising the veto, the executive power raised health and safety concerns regarding the free cultivation of hemp. Therefore, said article was modified to include the requirement of licenses for the cultivation, production, and commercialization of the hemp plant. The proposed reform seeks to modify article 5 again to eliminate the requirement of licenses for this type of cultivation. The rationale for the proposed reform is that the modification caused by the veto created inconsistencies in the law and a regulatory vacuum. In this regard, the law requires licenses, but does not regulate them in any way, unlike the licenses for medicinal and therapeutic cannabis, which are included in the law.


🍽️ NOVEDAD EDITORIAL: DIETAS: Una Inmersión Rápida de Abel MARINÉ FONT (Autor)

En nuestra sociedad actual en la que muchos, no todos, pueden decidir qué, cuándo y cuánto comen, la demanda de información sobre alimentos y dietas es creciente, y no siempre está guiada por la racionalidad y criterios científicos, sino por percepciones emocionales, influidas por modas y mitos en torno a la alimentación. Es evidente que los resultados de la investigación científica, y más en temas como los alimentarios, que tienen impacto social e interés para la salud de la población, no se pueden quedar en los estrictos límites de los expertos y sus publicaciones especializadas. El objetivo de este libro es contribuir a la difusión al público en general de los hechos y criterios que deben regir la elección y formas de consumo de lo que comemos. Todo ello presentado de manera clara, rigurosa, sin simplificaciones y con los debidos matices. El contenido incluye las bases científicas de una alimentación correcta, la influencia de los tratamientos tecnológicos y culinarios en la composición y el valor nutritivo de los alimentos, la dieta mediterránea como un modelo conveniente de alimentación de proximidad, la alimentación a seguir según la edad y en situaciones o ámbitos determinados, las dietas adecuadas en diversas patologías, las alimentaciones no convencionales o alternativas, y los nuevos alimentos o dietas.



Agri-food: Unfair Commercial Practices Act curbs purchasing power; more opportunities for sustainability agreements


Competition law and the agri-food sector do not always go together well. The Authority for Consumers & Markets [ACM (NL)] has fined various companies in the agri-food sector in the past, e.g. in the sweet pepperonion sets and onion sectors, for violating the cartel prohibition. Sustainability initiatives such as Kip van Morgen also failed when they ran into a negative ACM ruling based on the cartel prohibition. ACM has paid no specific attention in recent decades to the excessive purchasing power of retailers. But the relationship between competition law and the agri-food sector is changing rapidly. Developments such as Paris Agreement, the Urgenda rulings and the Glasgow Climate Pact necessitate (sector-wide) cooperation in the food supply chain in order to fast-track certain climate and sustainability objectives. Will competition law go with the flow? The (excessive) purchasing power of retailers in this sector is also increasingly the focus of attention. What effect will the new legislation, such as the Wet oneerlijke handelspraktijken landbouw- en voedselvoorzieningsketen (Unfair Commercial Practices in the Agricultural and Food Supply Chain Act – the “UCP Act”), have in this regard? The answers to these questions, the trends in competition law in the agri-food sector, and the assessment of sustainability initiatives are addressed below.

The UCP Act: will ACM take enforcement action?

The UCP Act entered into force on 1 November 2021. The UPC Act aims to strengthen the position of farmers, market gardeners and fishermen in relation to larger buyers, such as purchasing groups. ACM is in charge of enforcing the UCP Act. If buyers fail to comply with the UCP Act, food suppliers may file an (anonymous) report with ACM. ACM may impose an order subject to a penalty or a fine on a buyer (such as a retailer) that is guilty of violating the UCP Act.

The UCP Act contains two lists of unfair commercial practices (UCPs). The black list is a list of UCPs that are considered unlawful by definition. The UCPs on the grey list are conditionally unlawful. In other words, such practices are permitted only if they have been clearly and unambiguously agreed in advance in writing between the supplier in question and the buyer. More information can be found in this article and this blog. Since 1 November 2021, the UCP Act applies to all new agreements between suppliers and buyers that fall within the scope of the UCP Act. All agreements entered into before 1 November 2021 must be brought in line with the UCP Act by 15 April 2022 at the latest. Market parties therefore still have some time to amend their existing contracts where necessary. ACM is informing market parties about the UCP Act and its enforcement. The question whether the Act will be a success greatly depends on ACM’s approach. See in this regard: Will ACM use the Unfair Commercial Practices in the Agricultural and Food Supply Act to tackle the purchasing power of retailers?

Where enforcement of the UCP Act comes down to sector expertise, ACM has not been idle in recent years. In 2017, ACM was instructed in the Coalition Agreement to investigate and, where necessary, tackle unfair commercial practices and distorted market power in the food supply chain. ACM has therefore been conducting a survey for over two years now in the form of the Agro-Nutri Monitors. ACM published its (second) Agro-Nutri Monitor 2021 in November. More information can be found in this blog. We previously also wrote about the Agro-Nutri Monitor 2020. ACM reported in November 2021 that its survey had shown that the main obstacle to more sustainable agriculture is the higher price of sustainable products. According to ACM, many consumers are unwilling to pay for such products if a cheaper, regularly produced alternative is available.

New UCP Act disputes committee

With the introduction of the UCP Act, a new disputes committee is being set up in the Netherlands. The committee will be in charge of resolving disputes between suppliers and customers relating to the UCP Act. For the supplier, the disputes committee should serve as a low-threshold alternative to civil proceedings or the filing of a complaint with ACM. The question is whether the disputes committee will have the desired effect. During a pilot within the framework of the Fair Practice Code, not a single complaint was received from a supplier. The possibility for suppliers to complain anonymously, promised in the draft regulations for the disputes committee, is inadequate according to suppliers: a supplier can submit an anonymous complaint only via an authorised representative, and the supplier must first file a complaint with the buyer itself. The legislature will have to clarify this issue in the final regulations.

More scope for sector-wide sustainability initiatives

It has been debated for years that competition law is too often a Waterloo for sustainability initiatives: see hereherehere and here. Market-wide agreements are usually highly desirable or even essential in order to stimulate sustainability. In practice, sustainability initiatives often appear or prove to be difficult to fit into the competition-law framework. Sustainability initiatives that the ACM (or the NMa) has assessed against the cartel prohibition in the past are a mixed bag. ACM blocked most agreements on limiting catches and making shrimp fishing more sustainable. The Kip van Morgen initiative referred to above, also failed ACM’s test. That did not apply to an agreement to reduce the use of antibiotics in livestock farming (the Den Bosch Agreement) and sector-wide agreements to replace the castration of piglets without anaesthesia with anaesthetised castration.

The question whether sustainability initiatives are consistent with the cartel prohibition set out in Article 6 of the Mededingingswet (Dutch Competition Act) and Article 101 TFEU is usually answered on the basis of the exception ground in Article 6(3) of the Dutch Competition Act or Article 101(3) TFEU. That exception ground is also referred to as the efficiency defence. In recent years, it has become clear that ACM strictly assesses the efficiency defence in sustainability initiatives. That was the case with shrimp fishery, but also with Kip van Morgen. In sum, ACM accepts the efficiency defence only if the welfare of consumers is demonstrably increased. One of the reasons for ACM’s critical approach is probably its desire to prevent what is known as the greenwashing of cartel agreements.

At the same time, there is a risk of legitimate cooperation to achieve sustainability goals not getting off the ground either, or less quickly, because competition law is considered too great an obstacle. There has been a remarkable development in this regard. In many cases it is now easier to quickly demonstrate that sustainability initiatives in the agri-food sector are consistent with the cartel prohibition. The application of competition law to the agri-food sector is regulated in Regulation 1308/2013 (the “CMO Regulation”). The CMO Regulation also regulates practices that are excluded from the application of the cartel prohibition. Since December 2021, the statutory framework for the assessment of sustainability initiatives in the agri-food sector has changed at the European level. The exceptions to the cartel prohibition in the CMO Regulation have been expanded. Article 210a was added to the CMO Regulation on the basis of Regulation 2021/2117. That article provides:

Vertical and horizontal initiatives for sustainability

Article 101(1) TFEU shall not apply to agreements, decisions and concerted practices of producers of agricultural products that relate to the production of or trade in agricultural products and that aim to apply a sustainability standard higher than mandated by Union or national law, provided that those agreements, decisions and concerted practices only impose restrictions of competition that are indispensable to the attainment of that standard.

Under Article 210a of the CMO Regulation, sustainability initiatives are now exempt from the cartel prohibition in all EU Member States, subject to certain conditions. This applies to both horizontal initiatives and agreements (between competitors) and vertical initiatives and agreements (between different links in the chain). Initiatives that are eligible for the exception must be aimed at:

  • Environmental objectives, including climate change mitigation and adaptation, the sustainable use and protection of landscapes, water and soil, the transition to a circular economy, including the reduction of food waste, pollution prevention and control, and the protection and restoration of biodiversity and ecosystems;
  • The production of agricultural products in ways that reduce the use of pesticides and manage risks resulting from such use, or that reduce the danger of antimicrobial resistance in agricultural production; and
  • Animal health and animal welfare.

Under Article 210a of the CMO Regulation, it is no longer necessary to first put forward an efficiency defence in order to declare certain sustainability initiatives consistent with the cartel prohibition: because certain cases are exempted from the cartel prohibition under Article 210a of the CMO Regulation, benchmarking against the criteria of Article 6(3) of the Dutch Competition Act/Article 101(3) TFEU (the efficiency defence) is no longer necessary in those cases. This will save the parties involved a great deal of time and money. The Commission will publish guidelines explaining the conditions of Article 210a of the CMO Regulation by 8 December 2023. The Commission has invited market participants in the agri-food sector to share their experiences with the Commission. Stakeholders have until 23 May 2022 to do so.

Examples from Germany

In Germany, a number of sustainability initiatives were recently assessed under the cartel prohibition. The German Competition Authority (“Bka”), for instance, recently approved two sustainability initiatives, although it did consider another initiative to be in violation of the cartel prohibition.

Bananas and minimum wages

On 18 January 2022, the Bka ruled that there were no competition law objections to an initiative in which German retailers set common standards for wages in the banana sector. According to the Bka, it is important in this regard that (i) no sensitive competitive information is exchanged and (ii) no compulsory minimum prices or are introduced.

Animal welfare

That same day the Bka decided that the Tierwohl initiative, in which four large German supermarkets agreed to introduce an animal welfare supplement for pigs and poultry, was not in violation of the cartel prohibition. The supplement is linked to criteria relating to the conditions in which the animals are kept by the Tierwohl participants. It serves as a reward for pig and poultry farmers that improve these conditions. Although the supplement is factored into the price that consumers pay for the meat, the Bka has so far tolerated the initiative, in light of the pioneering nature of the initiative. The Bka did, however, state in its decision that more room must be given to competitors in the future, because animal welfare is increasingly a factor that consumers take into account.

Dairy price supplements

One week later it became apparent that not all price supplements presented as sustainability initiatives are consistent with the cartel prohibition. In late January, the Bka ruled that a system of price supplements for dairy products was in breach of the cartel prohibition. The price supplements served to compensate for what Agrardialog Milch considered the unprofitable price of raw milk. The supplement was to become part of a new financial model aimed at increasing and stabilising the price of raw milk across the sector. According to the Bka, these price supplements are not permissible at present, because sustainability standards do not play a role in this new financial model. Moreover, the model allegedly does not provide for “specific criteria for the production of raw milk, taking sustainability aspects into account”. This is where the Tierwohl initiative, which does contain specific sustainability criteria, differs from Agrardialog Milch’s raw milk price supplement.

Remarkably, the Bka has not (yet) assessed the above three initiatives directly against Article 210a of the CMO Regulation. This appears to be a missed opportunity, since that article had already entered into force by the time the Bka took its decisions. In its Tierwohl decision, the Bka did, however, announce that it would assess the initiative against Article 210a of the CMO Regulation in future.

Will competition authorities provide guidance?

We can imagine that competition authorities (including ACM) will be willing and able in future to provide guidance to companies on sustainability initiatives and the application of Article 210a of the CMO Regulation; all the more so because they too are aware that it will most likely be months, if not more than a year, before the Commission publishes its guidance on Regulation 2021/2117, whereas the climate crisis is definitely a hot topic. And ACM cannot really refuse such requests for guidance: it has repeatedly stated that it encourages sustainability initiatives and wishes to support companies in that respect. In its draft Sustainability Initiatives Guidelines, ACM noted that it “supports companies in their assessment of sustainability agreements”. Be that as it may, Article 210a of the CMO Regulation creates a new scope to quickly exempt sector-wide sustainability agreements (that apply in all EU Member States) from the cartel prohibition. That is in any event good news for the achievement of climate objectives, among other things.

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