BLACK FRIDAY AND CYBER MONDAY – WHAT DO COMPANIES NEED TO BE AWARE OF?

Christine Jans gives some advice on what need to pay attention to on Black Friday, which this year is the 23rd of November, and Cyber Monday, which is the 26th of November. Both days each year break the turnover records and are some of the busiest days for the retail industry. This blog post sums up the essentials rules, that companies must be in relation to marketing legislation.

Black Friday and Cyber Monday have become two of the biggest days of trading, and the sharp competition makes the companies do everything possible to attract the consumers’ attention. Unlike Black Friday, all trading on Cyber Monday happens online. Regardless of whether the trading happens physically in-store or online and regardless of the nationality of the company, the companies must comply with the rules in the Danish Marketing Practices Act, because the companies market itself on the Danish market.

The companies commercial practice may not contain incorrect or misleading information. Nor is misleading permitted by refraining from or hiding essential information or by presenting essential information in an unintelligible, ambiguous or inexpedient way.

Messages regarding savings

Companies must not have misleading messages regarding savings, and the consumers shall be able to trust the companies’ offers so that they can decide on a correct and proper basis. It is misleading to promote a larger saving than the consumer gets in reality. Read more about a company that recently paid a fine (DKK 103.594) for violating the rules on marketing here.

Companies can have various sale forms such as before- and after prices, quantity discount, combinations sale and short 2-3 days sale. The product must have had the same price for minimum six weeks before a company may name it “a normal price” (four weeks for staple- and seasonal goods) and an offer may only be market as a sale, if the offer lasts maximum two weeks (one week for staple goods).

Companies must be aware of the fact that if the sale forms are combined with each other, for example, marketing of short-term sale such as “Black Friday” or “weekend sale”, on the same product, and it happens so often that the product can no longer be linked with real “normal price”, the price comparison can be misleading which causes a risk of being fined.

Surreptitious advertising

Surreptitious advertising is forbidden. Commercial interest in a mention must appear clearly for the receivers.

Many companies use social media for marketing. Companies can legally engage others to advertise for the company, but it must be obvious when a company is behind a message and thus encourages consumers and influencers to share, like or post something on social media. If an influencer or consumer posts something by appointment with the company or because there is a commercial intention with the posts, this must appear clearly in the post. A post shall only be market, if the commercial interests do not appear clearly in the post.

An example in relation to consumers could be that a company encouraged the following:

“Check in on Facebook or Instagram and get 15% discount” or “Post a picture of yourself with our new products and get a discount”. The person is then obliged to note that this is marketing of the company.

The Danish Consumer Ombudsman has specifically assessed the use of influencers and when a post must be marked:

  • A company pays an influencer to promote the company or its product(s)
  • An influencer has an agreement regarding the promotion of a company ongoingly, for example as an ambassador
  • An influencer arranges contests/giveaways for a company
  • An influencer receives payment for linking to a company’s webshop where the click on links leads to purchase (advertising links)
  • An influencer gets percentages on the purchase of products in the company for subsequently mentioning the products

Regarding consumers and influencers, the advertisement mark must be striking, and it must be obvious who is being marketed. An advertisement post on social media would be sufficiently marked, if it is clearly noted at the beginning of the text related to the post, that it is an advertisement by using the words “commercial promotion” or “advertisement”. If the post lacks a marking it will be surreptitious advertisement, which causes a risk of being fined.

Read the Danish Consumer Ombudsman’s guidelines for price marketing here.

Read the messages from an information meeting held by the Danish Consumer Ombudsman regarding surreptitious advertisement on social media here.

For more information, please contact Christine Janschristine.jans@synchlaw.dk, +45 6058 8862.

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