FAS Russia's activity on enforcement of the advertising legislation (October 2007)

In the Russian Federation, the Federal Antimonopoly Service (FAS Russia) and its regional offices are responsible for enforcement of the advertising legislation. 

Within the limits of their authority, the antimonopoly bodies prevent, reveal and terminate violations of the advertising legislation of the Russian Federation by physical or legal persons and initiate and consider cases related to violations of the advertising legislation of the Russian Federation.

According to Article 6 of 2006 Federal Law «On Advertising», the advertising legislation of the Russian Federation consists of the above Federal Law. Relationship developed in course of production, placement and distribution of advertisements can also be regulated by other federal laws, regulatory legal acts of the President and the Government of the Russian Federation passed under the above Federal Law.

Prior to 2006, advertising in the Russian Federation was governed by the Federal Law «On Advertising» adopted in 1995. Maintaining the overall continuity of advertising regulating principles, the new act clarified a number of general requirements to advertising and introduced several additional requirements to advertising of specific goods, for instance, advertisements of biologically active food supplements or promotion events.

Due to adoption of the new Federal Law «On Advertising» in 2006, the Government of the Russian Federation passed a Decree «On Approving the Rules of Legal Investigation by the Antimonopoly Service of the Cases Initiated for Breaching the Advertising Legislation of the Russian Federation», where effectively established the procedures for considering petitions about violations of the advertising legislation and procedures for legal investigation of the advertising violations. 

If a violation of advertising law is revealed, the antimonopoly authorities must initiate a case for breaching the advertising legislation. The case will then be considered by a Commission comprising officers of the antimonopoly body chaired by the Head of Deputy Head of FAS Russia or its regional offices. 

Having considered the case, the Commission may find the advertisement improper, breaching certain statutory provisions, and issue a determination to the subject of advertising activity requesting it to stop violating the antimonopoly legislation. Upon receiving the above determination, the person in question must eliminate the violations in the advertisement within the period designated in the determination. Failure to fulfill the determination is liable with administrative charges - fine from 200 000 to 500 000 Rubles.

In addition, based on the case disposal, the Commission can make a decision to initiate an administrative violation case for improper advertisements. Administrative cases are considered by an antimonopoly officer (the Head or Deputy Head of an antimonopoly body) single-handedly. Based on the vase disposal, (s)he makes a decision on imposing a fine for violating the advertising legislation. The sum of fine is determined in accordance with the Code of Administrative Violations of the Russian Federation -from 40 000 to 500 000 Rubles.

The Commission can also file a lawsuit to bind the person who violated the advertising legislation to make a retraction of the advertisement in question (counter advertising).

The antimonopoly body can discover the facts indicating violations of the advertising legislation of the Russian Federation independently or based on petitions submitted by citizens, legal persons or other government agencies. 

The law states the following general advertising requirements:

Under Article 5 of the Federal Law «On Advertising», an advertisement must be bona fide and accurate. Unfair and false advertising is forbidden. 

Unfair advertising contains incorrect comparison of the advertised goods with the goods in circulation produced by other manufacturers; discredit or defame a person or taint one's business reputation.

False advertising contain incorrect data regarding various aspects, for instance: advantages of the advertised goods over the goods in circulation produced by other manufacturers; any product characteristics, including, its nature, composition, conditions of use, and shelf life; product range and complete set; goods cost and price, payment procedures, discounts, conditions of goods delivery, exchange, repair and maintenance; research and test findings; actual demand for a particular advertised product; manufacturer or seller of the advertised goods. 

In addition, advertising of any goods cannot involve demonstrating smoking and drinking alcoholic beverages, including beer and beer-based beverages; also, with few exceptions, advertisements cannot use images of medical or pharmaceutical workers.

Advertisements that lack part of substantive information about the advertised goods, terms of their purchasing and usage, which result in distorting the meaning of information and customers misleading, are forbidden. 

In the Russian Federation it is forbidden to advertise goods, if their production and (or) sales is banned under the legislation of the Russian Federation, and their production and (or) sales requires licensing or obtaining other special permits and such permits have not been granted. 

Investigating cases of breaching the above provisions, the antimonopoly authorities often need to obtain various expert opinions or research findings supporting or contesting the advertising statements. Such research can be undertaken by the claimants who petitioned to an antimonopoly body regarding the violation, or the advertisers wishing to confirm well-founded nature of the statements used in the advertisements. In addition, the antimonopoly authorities can independently commission research or expert examination by a specialized organization. 

When dealing with advertisements that require understanding of customers' perception of an advertisement, sociological surveys (public opinion polls) can be organized. For instance, there may be a need to analyze advertisements that use trademarks of the goods which are forbidden for advertising, or there are limits to their advertising in a particular time and place. At the same time, advertisers state that rather than advertising forbidden goods, they display the advertisements of other goods, which advertising is no prohibited. (Under the guise of advertising drinking water, sweets or entertainment, the advertisers often display outdoor advertisements of alcoholic beverages with the same title, which is forbidden).

In such circumstances, sociological surveys help define customers' perception of an advertisement with higher degree of certainty and specify the object which is actually advertised. 

Another way to learn how advertisements are perceived by the customers is to discuss them at a meeting of the Expert Councils, formed by the antimonopoly authorities. Such Councils are advisory and consultative bodies called together as and when necessary by FAS Russia and its regional offices. They comprise representatives of the antimonopoly authorities and experts in various fields: psychology, linguistics, sociology, as well as representatives of public associations, and subjects of advertising activities. Decisions made by the Expert Councils are nonbinding for the antimonopoly authorities; however they provide weighty arguments in investigation of the cases on particular advertisements.