Amendments on the Commercial Advertising and Unfair Commercial Practices Regulation

Amendments were made on the Commercial Advertising and Unfair Commercial Practices Regulation (“Regulation”) which were published in the Official Gazette of 4 January 2017 and numbered 29938.

The Regulation was prepared in 2015 for the following purposes pursuant to the Law on the Protection of Consumers numbered 6502:

1. To define the principles that should be adhered by the advertisers, advertising agencies, medium corporations and all persons, establishments and corporations related to advertising,
2. To define the procedures of review that will be undertaken within the scope of these principles,
3. Protecting the consumers against the unfair commercial practices.

All kinds of commercial advertising and unfair commercial practice that are aimed at the consumers are within the scope of the Regulation. Therefore the Regulation is essential in terms of advertising practices of real and legal persons that operate for the consumers when taking into account the width of its purpose and scope. In addition sanctions such as administrative fines and/or cease and desist orders may be imposed in case of breach of the relevant articles of the Law numbered 6502.

In general, within the scope of the amendment the Article 8 on comparative advertising and the Article 9 on burden of proof and the Article 27 on advertising for electronic communication have been revised. These amendments shall be explained below:

Amendments on Comparative Advertising

Comparative advertising can be made if the conditions set out within the Article 8 of the Regulation are complied with. With the amendment, not being against the principles determined by the Board of Advertising is added to conditions such as not being deceptive and misleading, not causing unfair competition. Together with this, it is set out that comparative advertising can be made if the compared goods or services fulfil the same needs or if they are for the same purposes.

The effectiveness date of the provision which determines that the name, trademark, logo or other distinctive sign or statements together with commercial or company name of the competitors may be used within the comparative advertising provided that the conditions under the Article 8 is complied with, have been postponed to 1/1/2018. In addition, it is set out that real persons or establishments cannot be used in comparative advertising.

Final addition is the prohibition of price comparison within markets where administrative authorities make the price regulation and the effective market power obligations.

Amendment on Burden of Proof

With the amendment on the Article 9 on the burden of proof, it is determined that the advertisers are required to prove their claims within their commercial advertising. Nevertheless the burden of proof for comparative advertising and other types of advertising is differentiated within the Regulation.

With the amendment it is set out the specifications regarding provable facts, claims or sampled expressions should be proven via documents and information with scientific validity. Regarding comparative advertising, to prove these matters documents or information should be obtained from the related departments of universities or accredited or independent research, testing or evaluation institutions in any event.

Commercials on Electronic Communication Services

Specific articles on electronic communication services are added to the Regulation. Within this scope if internet speed or network coverage is used; the information that the promised speed or network coverage may change depending on circumstances such as geographical area should be provided. This information should be given in a way and period that could be understood by the average consumer.

Also it is stated that the perception that the internet speed achieved during testing or within laboratory conditions can be reached by all consumers should not be created within commercials. If these speeds are used within commercials information explaining that these have been reached during testing or within laboratory conditions should be given.

Finally if the service includes quotas such as fair usage, this information should also be provided specifically within commercials.