Commercial law. Legal regulation of advertising (lecture notes)

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Commercial law. Legal regulation of advertising (lecture notes)

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LECTURE No. 47. Legal regulation of advertising

Advertising - information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object of advertising, generating or maintaining interest in it and promoting it on the market (Article 13 of the Federal Law of March 2006 38 No. XNUMX-FZ "On Advertising").

Legal regulation of advertising is carried out in order to:

1) protection against unfair competition in the field of advertising;

2) prevention and suppression of inappropriate advertising that can mislead consumers of advertising;

3) prevention of advertising that can harm the health of citizens, property of citizens or legal entities, the environment or harm the honor, dignity or business reputation of these persons, infringing on public interests, the principles of humanity and morality.

The Federal Law "On Advertising" sets out the main conditions for advertising:

1) advertising must be legal;

2) advertising must not harm the moral health of society, give rise to aggression and violence, promote war or ethnic strife;

3) advertising should not call for violation of environmental standards;

4) advertising must be directly recognizable, i.e. understandable without the use of any special knowledge or technical means;

5) advertising should be carried out mainly in Russian or the language of the people living in the Russian Federation;

6) advertising of goods subject to certification must be accompanied by the note "subject to mandatory certification".

The federal law "On Advertising" applies to (Article 2 of the Federal Law "On Advertising"):

1) political advertising;

2) information, the disclosure or dissemination or communication to the consumer of which is mandatory in accordance with federal law;

3) reference and information and analytical materials that do not have as their main purpose the promotion of goods on the market and are not social advertising;

4) messages of state authorities, local governments, municipal bodies that are not part of the structure of local governments, if such messages do not contain information of an advertising nature and are not social advertising;

5) signboards and signs that do not contain information of an advertising nature;

6) announcements of individuals and legal entities not related to the implementation of entrepreneurial activities;

7) information about the product, its manufacturer, importer or exporter, placed on the product or its packaging;

8) any elements of product design placed on the product or its packaging and not related to another product;

9) a mention of a product, means of its individualization, a manufacturer or a seller of the product, which are organically integrated into works of science, literature or art and in themselves are not promotional information.

In the advertisement of goods in the case of their remote sale, information about the seller of such goods must be indicated: name, location and state registration number of the entry on the creation of a legal entity; surname, name, patronymic, main state registration number of the entry on the state registration of an individual as an individual entrepreneur (Article 8 of the Federal Law "On Advertising"). An advertisement announcing a stimulating lottery, contest, game or other similar event, the condition for participation in which is the purchase of a certain product, must indicate:

1) the timing of such an event;

2) a source of information about the organizer of such an event, about the rules for holding it, the number of prizes or winnings based on the results of such an event, the timing, place and procedure for obtaining them (Article 9 of the Federal Law "On Advertising").

A self-regulatory organization in the field of advertising is an association of advertisers, advertising producers, advertising distributors and other persons created in the form of an association, union or non-profit partnership in order to represent and protect the interests of its members, develop requirements for compliance with ethical standards in advertising and ensure control over their implementation ( article 31 of the Federal Law "On advertising"). In accordance with Art. 32 of the Federal Law "On Advertising" these organizations have the right to:

1) represent the legitimate interests of its members in their relations with federal government bodies, government bodies of constituent entities of the Russian Federation, local government bodies;

2) participate in the consideration of cases by the antimonopoly body;

3) appeal to the arbitration court regulatory legal acts;

4) take measures of responsibility in relation to its members, including expulsion from members of a self-regulatory organization;

5) develop, establish and publish the rules of professional activity in the field of advertising, binding on all members of the self-regulatory organization;

6) exercise control over the professional activities of the members of the organization in terms of compliance with the requirements of the law and professional ethics;

7) consider complaints against the actions of members of the organization;

8) develop and establish requirements for persons wishing to join a self-regulatory organization;

9) collect, process and store information about the activities of its members;

10) maintain a register of persons who are members of a self-regulatory organization.

The antimonopoly body exercises, within its powers, state control over compliance with advertising legislation, including:

1) warns, detects and suppresses violations by individuals or legal entities of the legislation of the Russian Federation on advertising;

2) initiates and considers cases on signs of violation of the legislation on advertising. The antimonopoly body is also entitled to:

1) issue binding orders to stop violations of advertising legislation;

2) bring claims to a court or arbitration court for a ban on the dissemination of advertising carried out in violation of the law;

3) file suits with a court or arbitration court for a public refutation of false advertising;

4) apply to the arbitration court with applications for declaring as invalid, in whole or in part, normative and non-normative legal acts that contradict the legislation on advertising;

5) apply measures of responsibility;

6) apply to the arbitration court with applications to invalidate the permit for the installation of an advertising structure.

Decisions, prescriptions of the antimonopoly body may be challenged in court or arbitration court within 3 months from the date of the decision, prescription.

Violation by individuals or legal entities of the legislation of the Russian Federation on advertising entails liability in accordance with the law.

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