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.
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.
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