SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
1.11 Politics, Regulation and Enforcement The latest government in Spain is formed by the union of various progressive political parties, which on sev - eral occasions have announced their concern about the advertising of certain products that may affect children and their development. Thus, new regulations have been adopted on online advertising, markets in crypto-assets, gambling, influ - encers, and the food and drinks industry. According to Spanish regulations, “misleading adver - tising” is defined as advertising that in any way induc - es or is likely to induce erroneous conclusions in users when such advertising refers to: • the characteristics of goods, activities or services; • the price, legal and financial conditions of pur - chase; • the use and delivery of the products; or • the performance of the services and after-sales services. 2. Advertising Claims 2.1 Deceptive or Misleading Claims The most important principle is the principle of truth - fulness. According to this principle, the advertiser has the obligation to make every effort to ensure that all messages included in the advertisement are under - standable to the consumer and to prevent promi - nent messages from obscuring the main message addressed to the consumer. Thus, advertisers must be able to justify their claims if required to do so and in any case in the event of a complaint. The substan - tiation must be based on objective, true and demon - strable facts. Autocontrol has established that advertising must be analysed globally, including all its elements. If such analysis concludes that the overall meaning of the advertisement conveys a credible message, the advertisement will not be considered misleading. 2.2 Regulation of Advertising Claims Advertising claims are not subject to specific regula - tion; instead, the general rules apply, including the
principle of truthfulness that all advertising and claims must respect. 2.3 Substantiation of Advertising Claims The advertiser must be prepared to substantiate the claims at the time of disclosure of the advertisement, as the burden of proof as to the truthfulness of the claim is on the advertiser. For this purpose, disclaimers and footnotes can be used to disclose any information that is relevant to the advertised offer. When it comes to substantiating claims, various forms of evidence are admissible. Tests, studies, and techni - cal or scientific data are common methods, but any material that supports the claim’s veracity can be used. It is important to note that if an advertising claim relies on specific tests, studies, or scientific data, the advertiser must disclose who conducted the research and its completion status. 2.4 Product Demonstrations Advertising that depicts or demonstrates the perfor - mance of a product must not be misleading and must reflect the actual use and experience that the con - sumer would have with the product. Advertisements for products primarily intended for children, such as toys, must not be misleading as to their characteristics (eg, size), their safety, or the capacity and skills necessary for the child to use them without causing harm to himself/herself. The use of expressions or claims that incite children to buy the advertised products or persuade their parents or other adults to buy the advertised products for them is pro - hibited. In relation to medical devices, the Medical Devices Act (Royal Decree 1591/2009) allows products that do not comply with its provisions to be demonstrated at fairs and exhibitions, provided that sufficiently visible notic - es are placed on the products themselves expressly stating that the products cannot be marketed until all requirements of the applicable law are met. Under no circumstances is the use of the products by patients permitted in these demonstrations.
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