Updates in the ICC Advertising and Marketing Communications Code

On 19 September 2024, the ICC launched updated rules for advertising and marketing communications. From 1 January 2025, the revised rules will be applicable to the Swedish market. A summary of some of the updates follow in this article.

Under the Swedish Marketing Act, all marketing should be in accordance with good marketing practice. Examples of good marketing practice in the use of marketing claims in Sweden include the ICC Advertising and Marketing Communications Code (the “ICC Code” in the following). The revised rules therefore have a direct impact on marketing in Sweden.

The revision now in place has new or improved guidance on:

• Artificial intelligence (“AI”) and algorithms
• Influencer marketing
• Marketing to children and teens
• Environmental claims
• Diversity and inclusion
• Anti-corruption
• Disinformation

We will summarise the updates concerning AI and algorithms, influencer marketing and environmental claims in brief below.

AI and algorithms
The new rules with regard to AI and algorithms aim to make it clear that advertisers and marketers are responsible for the marketing communications they produce using AI and algorithms. This means that marketers who use algorithms or other AI instruments bear responsibility for the communication results they produce. In other words, responsibility for the results lays with the marketer and not the instrument as such.

In addition, the ICC Code now states that companies responsible for preparing, offering and commercialiing AI systems, applications and other technologies for the creation, improvement and delivery of marketing communications should provide reasonable transparency to the marketer. This responsibility applies to the extent that the activities or measures by, for example, developers of AI instruments such as algorithms, software or programming machines, are linked to and impact marketing communications.

Further, as regards results produced by social media algorithms, the responsibility rests with the companies that create and manage them.  In the case of user-generated content, which may accompany or relate to marketing communications (e.g. comments), responsibility lies with the individuals who created the content, given the lack of marketer control. As a  result, if the content is found to be emanating from a marketer or associated third party, or reused in their marketing communications, it becomes the responsibility of the marketer.

Influencer marketing
The new version of the ICC Code introduces updates and clarifications regarding influencer marketing, for example regarding identification, transparency and provisions to protect minors involved in influencer marketing.

The new version emphasizes that all influencer marketing communications should be designed and presented in such a way that they are immediately identifiable as such. This includes promotions of an influencer’s own products. Compared to the old version, the new version of the ICC Code provides more detailed guidance on how disclosures should be made, particularly in the context of social media, ensuring that such marketing is not obscured or hidden among other content. General disclosures on websites, in the terms and conditions at the end of a piece of content, buried in a string of hashtags, or in the ‘see more’ section are not sufficient.

Marketers and their influencers, as well as creators, should ensure the content is properly presented as marketing communications in accordance with the principles of identification and transparency. However, influencers should not create social media posts or other messages alleging the content is sponsored by a business when they have no agreement with the brand. Such false statements should be regarded as marketing communications promoting the influencer’s own activity or brand, and hence as misleading.

When the influencer is a minor, marketing communications should be based on a contract providing for explicit parental or guardian consent and protecting the minor against any undue exploitation. Marketing communications should clearly disclose the connection to the marketer, including if relevant, that the minor is receiving economic or other compensation. All content featuring minors should be age-appropriate and free from inappropriate products, language, themes or behaviour. The term “minors” here refers to persons of such age that they, under the applicable law, lack legal capacity to enter into a binding agreement, e.g. an influencer contract with a marketer.

Environmental claims
Environmental claims have a separate chapter in the ICC Code, and the 2024 version aims to stamp out ambiguity or false statements when making environmental claims.

The ICC Code states that all express or implied environmental claims should be substantiated by reliable scientific evidence. According to the Code, reliable scientific evidence is the type of evidence likely to be recognised by experts in the field. Such evidence may, depending on the claim, consist of tests, analyses, calculations, studies, reports, surveys or other information. Marketers need to monitor and review environmental claims regularly to ensure ongoing compliance, accuracy and relevance. This update aims to ensure that claims are not only truthful at the time they are made but also remain accurate and relevant over time.

The ICC Code also states that even “aspirational” claims should be specific, transparent and supported by substantiated evidence, and that they should avoid using vague, general or non-specific language. To substantiate aspirational claims or claims expressing goals or commitments related to achieving certain environmental metrics in the future, a marketer should be able to demonstrate that it has reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified.

Additional news is that a claim based on a combination of elements such as packaging and product combination may only be made if it really concerns both. This would not be the case, for example, if the claim only concerns the product packaging and the significant impacts of the packaging and product combination are different from the significant impacts of the packaging alone. Claims concerning a combination of elements, for example inclusion of recycled content in a product or product packaged in compostable packaging, should both be supported by appropriate scientific evidence and qualified as needed to properly convey relevant limitations (e.g. “Our products include 20% recycled content and our packaging is compostable in industrial facilities, which are limited and may not be available near you”).

Further, special care should be taken before claiming sustainability achievements. Marketers should be cognisant of ongoing work to establish relevant methods to measure and validate sustainability. Relevant limitations should be made clear. An unqualified “sustainability” claim may be understood to involve company actions beyond efforts to reduce environmental impacts, depending on the context. Hence, marketers making sustainability claims should be mindful that consumers may take away a broader corporate social responsibility message.

A specific claim about individual environmental attributes supported by reliable scientific evidence could be linked to a claim of “sustainability” (for example, “This part of our product is sustainable because it’s made of 100% post-consumer recycled content and is recyclable”); however, marketers should not state or imply that an entire product, facility or operation is “sustainable” without qualification simply because it has some positive environmental benefits. A product claimed to involve recycled or renewable content that is made from less than substantially all recycled or renewable content should avoid any risk of misleading consumers, e.g. by disclosing the percentage. A product claimed to be recyclable or compostable should disclose the extent of availability of these disposal methods if availability is limited. A claim that a product’s packaging is refillable, or reusable, should provide handling instructions to maintain safety.

In addition, marketers should ensure that the basis for any third-party certification is clear and certification of environmental claims should be based on reliable scientific evidence.

Conclusion
These updates in the 2024 ICC Code reflect the ICC’s commitment to maintaining high ethical standards in advertising and marketing communications, ensuring that the ICC Code remains relevant and effective in a rapidly changing global and evolving digital landscape. A Swedish version of the new ICC Code was recently published and as stated above, the revised rules will be applicable to the Swedish market from 1 January 2025.