New Legal Framework for Advertising - International Law Office

Introduction
General Requirements
Language Requirements
Television Advertising
Tobacco and Alcohol Advertising

Introduction

On September 15 2003 the president of Ukraine signed a new Law on Advertising, which was passed by the Parliament on July 11 2003.

The adoption of the law has put an end to protracted debates between businesses involved in advertising activities - mainly television and radio companies, print mass media, advertising agencies, associations of advertisers, associations of broadcasters and mass media, and producers of alcoholic beverages and tobacco products - and members of Parliament and government authorities. While the participants in these debates have often held diametrically opposing views, a consensus on the majority of contentious issues in the draft law has finally been reached.

However, the law nonetheless contains several ambiguous provisions which create serious difficulties both for advertisers and for regulatory authorities. Until a uniform approach is formulated and the regulatory authorities have expressed their opinion on the interpretation of these provisions, such uncertainties may have a negative effect on the Ukrainian media and advertising market.

The law differs significantly from its predecessor, particularly as regards issues such as the language of advertisements, television and radio advertising, outdoor advertising, and the advertising of certain products such as alcoholic beverages and tobacco products.

General Requirements

The basic principles of advertising include legality, accuracy and authenticity, and a requirement to utilize forms and methods which will not cause damage to the recipients. Advertisements should comply with general principles of fair trade and competition, and should not undermine consumer confidence in advertisements.

Advertisements should not contain any information or images which violate generally recognized rules of ethics, morality and humanity. It is also prohibited to:

• disseminate information on prohibited goods which cannot be produced or circulated in Ukraine;
  
  
• make discriminatory statements about a person's origin or parentage, social status, race, nationality, sex, political convictions, religious beliefs, education, language, occupation, residence and so on;
  
  
• promote activities which may result in a violation of law, cause damage to people's health or to the environment, or encourage people to neglect safety measures;
  
  
• use methods of subliminal advertising;
  
  
• make discriminatory statements about persons who do not consume the goods and services being advertised;
  
  
• advertise goods which are subject to mandatory state certification, or the production or sale of which is subject to licensing or authorization, without the necessary certificate, licence or authorization;
  
  
• use the image or name of an individual without his or her permission;
  
  
• imitate or copy text, images, music or sound effects which are used for the advertisement of other goods, unless otherwise provided by Ukrainian IP law; or
  
  
• disseminate advertisements containing elements of cruelty, violence, pornography or disparagement.

The law contains further prohibitions and restrictions with respect to the content of advertisements.

Language Requirements

Pursuant to Article 6 of the law, all advertisements disseminated in Ukraine must be exclusively in the Ukrainian language. Registered trademarks may be used in advertisements in their original language, provided that they are also dubbed into Ukrainian. Trademarks registered in the name of Ukrainian companies may be used only in Ukrainian.

This requirement appears to be the most controversial, as it may create substantial restrictions to the free use of trademarks in advertisements and even cause consumer confusion.

In addition, under the current wording it is still unclear whether such trademarks must be translated or transliterated into Ukrainian.

Television Advertising

Pursuant to Article 13 of the law, television and radio broadcasters are substantially restricted in the amount of airtime they can give to advertising. In particular, the total length of advertisements on a certain television channel or radio station should not exceed (i) 15% of its daily airtime a day and (ii) 20% of its hourly airtime.

The former restriction does not apply to dedicated advertising channels and radio stations, but it is unclear whether the latter restriction applies to such channels and radio stations. This shortcoming may prove problematic for such specialist broadcasters.

Tobacco and Alcohol Advertising

The law contains several strict requirements on the advertisement of tobacco products and alcoholic beverages. The advertising of tobacco products, trademarks and other related IP rights on television and radio is completely prohibited. In addition, the advertisement of alcoholic beverages, trademarks and related IP rights on television and radio is prohibited between the hours of 6:00am and 11:00pm.

The advertising of tobacco and alcohol products, trademarks and related IP rights is also prohibited:

• on the front and back pages of newspapers;
  
  
• on the front and back covers of magazines and other publications;
  
  
• through indoor advertisements;
  
  
• on public transport; and
  
  
• through advertising events (except for specialized exhibitions).

It is also prohibited to:

• advertise tobacco products and alcoholic beverages in printed mass media and publications directed at minors, or in sections of printed mass media and publications directed at minors;
  
  
• use an image of a minor in advertisements for tobacco products or alcoholic beverages;
  
  
• show people smoking or drinking in such advertisements; and
  
  
• advertise tobacco products or alcoholic beverages within 300 metres of a kindergarten, school or other educational institution for minors.
  

For further information on this topic please contact Sergiy Tkachenko at Shevchenko, Didkovskiy & Partners by telephone (+380 44 230 6000) or by fax (+380 44 230 6001) or by email (lawfirm@shevdid.com).