SWITZERLAND Law and Practice Contributed by: Lukas Bühlmann, Michael Reinle and Michael Schüepp, MLL Legal
provided it was applied for 30 consecutive days. If this requirement is not met, the alternative rule continues to apply, limiting the duration of advertising to half the time the earlier price was charged and to a maximum of two months. According to the alternative rule, a reduced-price campaign may only last for a maximum of two months. The campaign period is calculated in the following way: if the ordinary price prior to the reduced price was charged for two months, the reduced price may last for one month (50% of the period for which the ordinary price was charged prior to the campaign). This also means that a new reduced-price campaign for the same product cannot immediately follow another one. Additional Requirements Reduced-price campaigns must also comply with Article 3 (1)(f) UCA. Products and services must not be offered under the cost price repeatedly and in a manner that deceives the consumer about the per - formance of the advertising company or competitors. Finally, a free offer must comply with Article 3 (1) (g) UCA if it is a premium offer – eg, “purchase one product X and receive another product for free” (ie, as premium). The premium must not deceive the con - sumer about the effective value of the offer. There is no deception if the value of the main product and the premium are known or declared. 7.5 Automatic Renewal/Continuous Service Offers Generally, such provisions are subject to contractual freedom. However, mandatory legal provisions and the following restrictions must be observed. Contractual relationships between a marketer and a consumer are often governed by general terms and conditions. Based on Article 8 UCA and the case law of the Federal Supreme Court, general terms and conditions can be subject to ex post judicial control. In particular, this control applies the so-called rule of unusualness: a clause, the content of which the approving party did not expect and could not reason - ably have expected under the circumstances, shall not
be valid. This can be the case if a clause is unusual and unrelated to the business. According to the Federal Court, automatic contract renewals are not unusual per se. However, whether a provision is unusual is determined from the point of view of the approving party at the time of the con - tract’s conclusion. Furthermore, Article 27 of the Swiss Civil Code and Articles 19 and 20 of the Code of Obligations must be taken into account both for general terms and condi - tions and for individual agreements. These provisions prevent an excessive contractual binding of a contrac - tual party. This could become relevant in the event of continued renewal of a contract and the associated obligation that a consumer enters into. A parliamentary initiative to restrict automatic renewal of service contracts has been debated in parliament. However, both chambers of parliament rejected an amendment of the Swiss Civil Code. There are no specific rules or guidance regarding the use of AI in the development of advertising content. The general rules apply – in particular, that the content must not be false or misleading (see 2.1 Deceptive or Misleading Claims ). 8.2 AI-Related Claims There are no specific rules or guidance related to mak - ing such claims. The general rules apply, in particular that the claim must not be false or misleading (see 2.1 Deceptive or Misleading Claims) . 8.3 Chatbots There are no specific rules or guidance regarding the use of chatbots. The general rules apply, in particu - lar the provisions of the DPA. It is worth highlighting that there is a specific duty to inform about automat - ed individual decisions which produce legal effects or similarly significantly effects (Article 21 (1) DPA). In such cases, the data subject shall also have the opportunity to state their position upon request and 8. Artificial Intelligence 8.1 AI and Advertising Content
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