The Marketing Practices Act
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The Danish Marketing Practices Act (in Danish: “Markedsføringsloven”) states the rules of the interrelationship between business owners. The Act stipulates that business owners must always act in accordance with bona fide and established practices of the trade with reference to consumers, other businesses and public interest. The Act also contains several detailed clauses, many of which focus on implementing parts of the EU directive concerning unfair business-to-consumer commercial practises on the European market.
To whom does the Marketing Practices Act apply?
The Act applies to the activity of private businesses and to public activities to the extent that products and services are offered to the market with a business purpose. The term “marketing” also encompasses competitive and market-related business activities.
What is the main Content of the Marketing Practices Act?
Amongst other provisions, the Act contains the fundamental principle of good marketing practices according to which all marketing activities by persons and companies subject to the Act must be performed in accordance with bona fide and established practices of the trade or “good marketing practices”.
The term “good marketing practices” is linked to the development of the market and society in general and is thus not a static term, but a dynamic term which develops over time. However, at any certain time, it is determined with reference to consumers, other traders and public interests.
Despite its rather indefinable nature, theory and case law presume that the term certainly covers cases of derogative comments regarding other traders, unfairly profiting from another’s reputation, product replicas, general detrimental behaviour and utilisation and unreasonableness.
Besides the general rule of good marketing practices, the Act contains several special provisions regulating concrete sales promotions such as misleading and undue marketing, advertising identification, unsolicited communication with specific customers, consumer protection, guarantees and price information among others.
Who enforces the Rules of the Marketing Practices Act?
The Consumer Ombudsman is an independent regulator appointed by the Danish Ministry of Business and Growth who is authorised to observe and control the observance of the Act. In order to ensure that trade and business comply with the Act, including the general principle of good marketing practice, the Consumer Ombudsman may act on his own initiative or as a reaction to claims from business owners or consumers. Traders and consumers who are not based in Denmark are also entitled to file a complaint to the Consumer Ombudsman in cases where they for instance experience misleading marketing activities emerging from Denmark.
When deciding which issues to look into, the Consumer Ombudsman seeks out issues whose solution will benefit the collective interests of consumers. So when he assesses whether an enquiry should lead to further investigation, he stresses:
The relevance of the complaint, i.e. does the core of the problem constitute a real nuisance to many consumers, and has it resulted in many complaints;
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The gravity of the case for the individual consumer;
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The generality of the problem, i.e. whether the problem cuts across different trades or sectors.
However, business owners as well as consumers may also plead breaches of the Act and thus bring the violating business owner directly to the ordinary courts.
One of the Consumer Ombudsman's most important tasks is to communicate the dos and don’ts of marketing law to business and trade. The guidelines and guides issued by Consumer Ombudsman are not binding on the courts. However, the courts tend to follow the guidelines and guides.
What are the Consequences of Breach of the Act?
Anyone with a legal interest therein may bring a case concerning prohibitions, injunctions, damages and compensation before the courts. The Consumer Ombudsman may bring a case concerning prohibitions and injunctions before the courts.
The Consumer Ombudsman may issue an injunction if an action is clearly in conflict with the Act and cannot be settled with negotiation. A party upon whom an injunction is imposed may require that it be considered by the courts.
The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions of considerations.