Our blog series "Influencer Marketing" (*) explain important legal guidelines for influencers and advertisers to use this form of advertising in Switzerland. In this article, we look at advertising restrictions for certain products and services, e.g. alcohol.
Swiss advertising law applies to all media
Swiss advertising law does not contain any provisions that specifically address influencer marketing. Advertising in social media, e.g. by influencers, is covered by Swiss adervertising law. It applies if the overall impression of the online presence (i.e. the affected website or social media account) is directed at the Swiss public (e.g. through a combination of e.g. top-level domain .ch, account name with "Switzerland" or similar, language, currency for pricing, content and composition of followers, etc.).
In Switzerland, general advertising laws, which apply regardless of the medium used and the offer advertised, are contained primarily in the Federal Law against Unfair Competition (UWG) and are specified in detail, e.g. for price information in advertising, in the Price Disclosure Ordinance (PBV). In addition, the principles of the Swiss Commission on Fair Trading (SLK) contain guidelines for advertising communication on the Swiss market – including by influencers – as part of self-regulation. The SLK is planning to adapt the language of its principles in 2020, to unambiguously include new marketing models – such as influencer marketing.
Apart from advertising separation, Swiss advertising law contains few general guidelines for advertising. The most important generally applicable advertising regulations aim to prevent deception and misleading of the public: advertising statements must be true and clear. These guidelines serve to protect competition against distortion and take into account the interests of consumers (e.g. against aggressive sales methods, false claims, incorrect price indications, decoy offers etc.) and competitors (e.g. against unnecessarily disparaging statements, unjustified comparisons, exploitation of reputation etc.).
Consumer protection for certain products and services
In addition to general advertising law, Switzerland knows product and service specific advertising restrictions as well as few media-related regulations (to date, mainly for linear television and radio). Certain offers may not be advertised in Switzerland, or only to a limited extent - whether by means of influencers or other marketing measures.
Advertising in Switzerland (especially towards end consumers) is particularly regulated, for example for the following offers:
- Alcohol, especially spirits;
- tobacco products;
- pharmaceuticals;
- vehicles and their energy efficiency as well as financing possibilities via leasing;
- consumer credits;
- financial services;
- money games (e.g. lotteries).
Alcohol advertising in particular
Illustrative of the relevance of advertising bans on influencer advertising is the example of alcoholic beverages. As Swiss influencers have experienced for themselves, their presence in social media has also brought them into the focus of authorities: The case of a Swiss influencer who posed with a glass of gin and tonic on Instagram became public, whereupon the Swiss Customs Administration (EZV) accused her of violating the Federal Alcohol Act. The Alcohol Act restricts the advertising of spirits and beverages containing spirits, e.g. brandies, cognac, whisky, vodka, gin, alcopops or similar, but not beer, wine, fruit and fruit wine. Advertising for beer and wine is subject to less strict conditions than advertising for spirits and is primarily regulated by the Foodstuffs Act (LMG).
Influencer posts for spirits and spirit-containing drinks are particularly problematic because they regularly fall under the prohibited lifestyle advertising. As concrete support for influencers and other advertising actors, the EZV has drawn up guidelines which are intended to show influencers the "Dos & Donts" of advertising for spirits in their posts. The most important guidelines for influencer posts with spirits and drinks containing spirits are as follows:
Only product-related advertising: Advertising for spirits and spirit drinks may only contain information and representations that are directly related to the product and its characteristics. According to the guidelines, the following may be shown or described
- Spirits products and serving suggestions (e.g. glasses, cocktails, cocktail names with recipe information);
- links and hashtags with product-related wording;
- bar counter, hands of the serving bartender;
- flag of the country of production, ingredients and raw materials (e.g. wheat, vines, herbs, cereal fields), perceptible characteristics of the product (e.g. "aroma of pears")
- anecdotes of the company history with reference to the product, illustrations of production processes, distillery equipment, company buildings, bottling including employees, company founders, managing directors;
Prohibited are:
- Cocktail names without a recipe;
- puns or personifications (e.g. "the favourite of all whisky fans", "the pop star of vodkas."),
- consumer scenes, people (e.g. bartender's face), sounds or music that remind you of a certain lifestyle, holidays or leisure time etc.;
- view of the place of serving or origin (e.g. beach view, landscape views), landscapes where raw materials are growing;
- reference to holidays, seasons or occasions (e.g. Christmas decorations, sports events);
- imperceptible product characteristics (e.g. "royal", "seductive");
- non-product-related slogans (e.g. "made to celebrate");
- price comparisons or the promise of extras or other benefits.
Above all, the prohibition of consumption scenes and the depiction of persons makes it almost impossible for influencers to post lawfully for spirits and spirituous beverages.
Competitions with beverages as an advertising object or prize are prohibited and the purchase of such beverages may not be a condition of participation in any competitions.
Theoretically, a deliberate violation of the advertising restrictions is subject to a fine of up to CHF 40,000 and up to CHF 20,000 in case of negligence. In the Gin-Tonic case, however, the matter was legally settled for the influencer after the post was deleted and a warning notice issued. However, a further violation could then lead to legal proceedings. The EZV is trying to sensitise the industry and is working with influencers – who may well prefer such involvement in information campaigns to the threat of fines.
Although the advertising restrictions primarily address the advertisers as the influencer's clients (i.e. the actual providers), such bans also restrict the influencers in their ability to post and share as well as their interaction with their followers. After all, advertisers would be free to have their advertising posts pre-cleared by the EZV – an offer by the EZV used more frequently. The sharing of such pre-cleared posts on social media would be less risky for influencers than creating posts themselves.
Influencers and other advertisers face significantly fewer restrictions when advertising beer and wine. Swiss law prohibits any kind of advertising for beer and wine specifically aimed at young people under the age of 18. However, in contrast to spirits, there are no restrictions on the specific form of advertising for beer and wine.
Our advertising law team will be happy to advise you on your online campaign - with or without influencer marketing or contact one of our authors Delia Fehr-Bosshard or Ann-Sofie Benz.
(*) Other articles in the series:
Authors: Delia Fehr-Bosshard, Ann Sofie Benz