Amendment of the Danish Marketing Practices Act: New disclosure requirements

The Danish Marketing Practices Act

The Danish Marketing Practices Act lays down the rules for corporate marketing to consumers and corporate behaviour in relation to each other. The purpose of the Act is to ensure good conditions for consumers and create a framework for effective competition between traders, including marketing on proper terms. Many provisions of the Danish Marketing Practices Act are based on EU law regulation, and the Act has in recent years been amended several times. The latest changes will take effect on January 17, 2020.

Stricter requirements for the consumers content to electronical marketing

The Danish Marketing Practices Act regulates when and how a trader may contact consumers to market his products. Section 10 (1) of the Danish Marketing Practices Act provides that electronic marketing, i.e. via e-mail, SMS, etc., may only be done after the consumer's prior consent. The consumer must at any time be able to easily withdraw his consent free of charge. In addition, consent must be freely given, specific and informed.

From January 17, 2020, section 10 (1) of the Danish Marketing Practices Act is amended, so that the trader is obliged when obtaining consent for electronic marketing to inform the consumer that the consumer can withdraw his consent at any time. This information must be stated directly in the consent text, and failure to comply with this requirement will invalidate the consent and make the electronic marketing illegal.

In addition, section 2 (14) of the Danish Marketing Practices Act is also amended so that the word "unequivocal" is added, meaning that the consent must now be freely given, specific, informed, and unequivocal. The amendment shall clarify that the consent must be obtained in an easily understandable language adapted to the consumer concerned.

The amendments are intended to bring the consent requirements of the Danish Marketing Practices Act into line with the consent requirements of the Data Protection Regulation and do not, as such, result in a change in the current legal status, but place higher demands on the trader to inform the consumer of his rights.

Penalty for aggressive trade practices

According to the Danish Marketing Practices Act, a trader must not use aggressive commercial practices to the detriment of consumers' financial interests. Aggressive commercial practices may, for example, mean that a trader makes it disproportionately difficult for the consumer to exercise his rights, for example to cancel a subscription or withdraw a consent. The amendment of the Act means that from 17 January 2020, the factors that are emphasized in assessing whether the trader has used aggressive commercial practices are directly stated in section 7 of the Danish Marketing Practices Act.

In addition, the penalty provision in section 37 of the Danish Marketing Practices Act is amended so that it is now again penalized if a trader uses aggressive or unfair trading practices against other traders.

Clarification of the definition of a consumer

From January 17, 2020, the definition of the term consumer in the Danish Marketing Practices Act is changed so that a consumer is now defined as a natural person. This is intended to remove any doubt as to which EU directive the law aims to implement and has no practical significance for traders. As a consequence of the new definition, it is now specifically added that a legal person who acts primarily outside his profession is equated with a consumer.

Extension of the limitation period in the Danish Marketing Practices Act

In addition, on December 13, 2019, the Danish Ministry of Industry, Business and Financial Affairs submitted a bill with the proposal to extend the statutory limitation period for misleading marketing from the current two years to five years, but only for certain forms of misleading marketing, namely misleading marketing of real estate (e.g. project sale), misleading marketing of credit agreements to finance or secure real estate (e.g. mortgages) and misleading marketing of current contractual relationships with a fixed price indication (e.g. telephone subscriptions with a fixed price but the possibility of price increases).

The Bill proposes that the new rules will enter into force on 1 July 2020.

IUNO's opinion

The amendments to the Danish Marketing Practices Act show the continued increased focus on consumer protection in relation to corporate marketing. Since non-compliance with the rules can lead to invalidation and since many of the rules of the Danish Marketing Practices Act are punishable, it is especially important that you as a trader know about the new rules and update your standard terms and consent forms.