Please find below this week's main EU regulatory developments related to advertising.

	Online advertising - Council adopts new cookies rule
	Domestic appliance advertising - EU extends energy labelling requirements to advertising
	Tyre advertising - Council adopts Tyre labelling Regulation

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Kind regards,
Malte

Online advertising

Council adopts new cookies rule

On 20 November, the Council of Ministers formally adopted the Telecoms Package, with only one abstention (The Netherlands). The text adopted is that agreed by the institutions on 5 November in conciliation (See EU Brief 09/11/09). It includes an amendment to the e-Privacy Directive, whereby online marketers will have to obtain internet users’ consent in order to place cookies on their computers. Cookies – the strings of letters and numbers used to optimise navigation of the internet (e.g. remembering passwords and language settings) – are commonly used to target online ads on the basis of users’ interests.

Until now, the e-Privacy directive stated that users must be given the “right to refuse” cookies. The amended Directive clarifies that placing cookies on users’ computers is only allowed “on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information”.

This “consent” is still interpreted elsewhere in the Directive (Recital 66) as “the right to refuse”. However, this interpretation is in the preamble of the Directive and therefore not legally binding. Member States could therefore seek to interpret “consent” as an “opt-in” requirement. In any case, the revised Directive makes it clearer that operators need to obtain the informed consent of users before dropping certain cookies.

This requirement does not apply equally to all types of cookies. Those used simply to enable the user to use a website properly (e.g. language settings or shopping cart functionality on www.amazon.com) are not subject to this consent requirement. The intention of the strengthened rules in the revised directive is to enforce users’ right to refuse “third party” cookies in particular. These are typically used in online advertising to track user behaviour across multiple sites, enabling targeted advertising.

Some Member States may consider that the consent requirement is fulfilled by using browser settings, i.e. if a user sets his browser to accept cookies this is taken as consent. This option is envisaged in the preamble to the revised directive, but only “where technically possible and effective”. The problem is that most browsers are not able to recognise and block all types of cookies. In particular “Flash” cookies, which can be used for targeted advertising purposes, generally escape browser control.

Should Member States not accept browser settings as satisfying the consent requirement, it is as yet uncertain how this consent would be given: possibly by means of pop-up windows, or a landing page containing relevant information and giving the user the choice whether to accept or refuse all cookies.

Next steps: The Telecoms Package will be formally adopted by the EP on 24 November, and signed by both Institutions on 25 November. It will enter into force the day following its publication in the Official Journal of the EU (expected for December), but Member States will have until June 2011 to transpose it into national legislation.

	WFA Priorities:
WFA will work with members and industry partners to establish a pragmatic interpretation of the new cookies rule in national implementing legislation, and to devise workable solutions to meet the new requirements.

Domestic appliance advertising

EU extends energy labelling requirements to advertising

On On 17 November 2009, the Commission, Council and European Parliament reached an agreement on the proposal to revise the Energy Labelling Directive, adopting an amendment that will extend the requirement to indicate the energy class of the product from the label to advertising.

This Directive sets a series of requirements for the labelling of household appliances (refrigerators, freezers, washing machines, driers, dishwashers, ovens, lighting sources), including an “A-G” energy efficiency rating label. The proposal extends the scope of the Directive to cover all “energy-related products”, (i.e. products having an impact on energy consumption during use). Although the most immediate plans are for products such as windows, insulation materials and showerheads, the intention is for future EU legislation to cover all energy-related products in the household, commercial and industrial sectors.

The inter-institutional agreement reached means that advertisements for any “energy-related” products to be covered by the Directive in the future will need to indicate the energy class of the product.

	Next steps:
The agreement will be formally adopted by the Council and the European Parliament in the coming weeks. The revised Directive will enter into force the day following its publication in the Official Journal of the EU. Member States will then have twelve months to transpose it into national legislation.

Tyre advertising

Council adopts Tyre labelling Regulation

On 20 November 2009, the Council of Ministers formally adopted the Tyre labelling Regulation, on the basis of the agreement reached with the European Parliament in October (See EU Brief 01/10/09). Despite calls for an inclusion of energy information in ads for tyres, the deal struck specifically excludes “advertisements in billboards, newspapers, magazines, radio broadcasting, television and similar online formats” from its scope of application.

The Regulation aims to apply a labelling system similar to that used for household appliances, using classes ranging from best-performance (green “A” class) to worst (red “G” class). During the debates in the European Parliament, several MEPs had called for an extension of this energy labelling (originally limited to packaging and point of sale) to “technical promotional literature”, and it remained uncertain whether commercial communications were covered by this wording.

In the text adopted by the Council advertising is excluded explicitly and "technical promotional material" is defined as "technical manuals, brochures, leaflets and catalogues (whether these appear in printed, electronic or online form), as well as websites, the purpose of which is to market tyres to end-users or distributors and that describe the specific technical parameters of a tyre."

	Next steps:
The agreement must still be formally endorsed by the European Parliament. The EP vote in Plenary will take place on 25 November 2009. The Regulation will apply across the EU from 1 November 2012.

			View WFA Advocacy priorities		European Action Group Meeting 2 Dec 2009 - Brussels, 10:30 - 13:00