Marketing Control Act

by the Norwegian Parliament

Chapter 1. Control of Marketing

Section 1. General provisions

In the conduct of business no act may be performed which is in conflict with good business practice among businesspersons or which is unfair on consumers or which is otherwise in conflict with good marketing practice. The advertiser and any person who creates advertising shall ensure that the advertisement is not in conflict with the inherent equality of the sexes and that it does not exploit the body of either sex or imply any offensive or derogatory judgement of man or woman. In determining whether paragraph one or two has been infringed, emphasis may be placed on whether the advertising appears particularly obtrusive by reason of its design, format, extent or other measures. All marketing shall be designed and presented in such a way that it clearly appears as marketing. When a businessperson addresses a consumer orally for marketing purposes, he or she shall immediately introduce himself/herself and inform the consumer that the communication is for marketing purposes.

Section 2. Misleading business methods

It is prohibited in the conduct of business to use an incorrect or otherwise misleading representation which is likely to influence the demand for or supply of goods, services or other performances. This also applies to any other procedure that may have such an influence on the demand or supply if, as a result of its design or by virtue of other circumstances, it is likely to mislead consumers. The announcement or any other notification of a sale, clearance sale or any other form of sale in the retail trade at reduced prices may only be made when the prices of the goods offered have actually been reduced. The Ministry can issue regulations containing more detailed provisions on comparative advertising.

Section 2a

Demand for payment for goods, services or other performances without prior agreement, etc. It is prohibited in the conduct of business: a) to demand payment for goods, services or other performances without prior agreement, and b) to deliver goods, services or other performances with a demand for payment without prior agreement.

If deliveries are made contrary to paragraph one point b), the recipient is not obliged to pay for them, unless otherwise stipulated by law.

The Ministry can issue regulations containing more detailed provisions on the duty to draw up and store documentation on agreements which have been entered into.

Section 2b. Restrictions on the use of certain methods of communication

It is prohibited in the conduct of business to direct marketing at natural persons using methods of telecommunication which permit individual communication, such as electronic mail, telefax or automated calling system (calling machine), without the prior consent of the recipient.

The prior consent required in accordance with paragraph one is, however, not applicable to marketing where the natural person is contacted orally by telephone.

The prior consent required under paragraph one is not applicable to marketing by use of electronic mail when a customer relationship exists and the business that is party to the contract has obtained the electronic address of the customer in conjunction with the sale of a product, service or performance. The marketing can only relate to goods, services or performances similar to those that the business has previously sold to the customer within the existing relationship. At the time that the electronic address is first obtained and on each subsequent occasion that such marketing is addressed to the customer, the customer shall be given the opportunity, in a simple way that is also free of charge, to decline to receive such marketing.

Electronic mail is understood in this provision to be any approach in the form of text, speech, sound or image that is sent via an electronic communication network and which can be stored on the network or in the terminal of the recipient until such time as the recipient downloads it. This shall include text and multimedia messages sent to a mobile telephone (SMS and MMS).

The provisions of the E-commerce Act, including Section 9 on electronic marketing, shall also apply in addition to this provision.

The Ministry can issue regulations containing more detailed provisions on the scope of paragraph one.

Section 2c. Delivery of unaddressed advertising material

It is prohibited in the conduct of business to deliver or to give an intermediary the assignment to deliver unaddressed advertising material to consumers who have clearly stated that they object to this. An intermediary who delivers unaddressed advertising material shall not be liable for this, however, if he/she has been informed and has reason to believe that the material being delivered is not advertising material. Inserts distributed with newspapers and other publications are covered by editorial liability and are not considered unaddressed advertising material under this provision.

Section 3. Insufficient guidance, etc.

It is prohibited in the conduct of business to use any representation which is likely to influence the demand for or supply of goods, services or other performances, when the representation does not provide adequate or sufficient guidance or introduces irrelevant matter and must therefore be considered unfair. The same shall apply to any other procedure that may have such an influence on demand or supply if it exploits the lack of experience or knowledge of consumers and must therefore be considered unfair.

Section 4. Premiums

It is prohibited in the conduct of business to seek to promote the sale of one or more items of goods, services or other performances (the main performance) by offering a premium or permitting a premium to be offered to the consumer. A premium shall be understood to be any additional performance (item of goods, service etc.) which is related to the sale of the main performance when there is no natural connection between the performances. Payment of money shall, however, be considered a premium only when there is no natural connection with the payment for the main performance or where stamps, coupons or similar documents are used, the primary function of which is to serve as evidence of the right to the payment of money. When a particularly low price is charged for the additional performance, this shall also be considered a premium. The provisions of Section 5, final paragraph, shall apply accordingly.

Section 5. Lotteries

It is prohibited in the conduct of business to seek to promote the sale or purchase of one or more items of goods, services or other performances by initiating lotteries or other arrangements in which it is decided wholly or in part by chance who is to receive a benefit (prize, reward, premium or other). These provisions shall not apply to offers of rewards or prizes which publishers of periodicals present in their magazines or papers for the solving of puzzles, participation in competitions or similar achievements on the part of the readers. The value of the prizes and the size of the rewards may not exceed limits stipulated by the Ministry.

Section 6. Gifts, etc. to employees

It is prohibited in the conduct of business to offer or to present any gift or similar benefit to any person employed by or acting on behalf of another person when this is done without the knowledge of the latter and the gift or benefit is intended to and likely to mislead the recipient in his or her position of employment, trust or service into giving the donor or any other person an unjustified advantage. This prohibition shall apply correspondingly to any gift or similar benefit which is given after the disloyal act has been committed if the gift or benefit must be regarded as an unfair reward.

Section 7. Trade secrets

A person who has gained knowledge or possession of a trade secret in connection with a position of employment or trust or with a business relationship must not use the secret unlawfully in the conduct of business. The same shall apply to any person who has gained knowledge or possession of a trade secret through breach by another person of his or her professional secrecy or otherwise through the unlawful act of another person.

Section 8. Technical aids

A person who has been entrusted with technical drawings, descriptions, formulas, models or similar technical aids in connection with a position of employment or trust or with a business relationship must not use these unlawfully in the conduct of business. The same shall apply to any person who has obtained possession of technical drawings, descriptions, formulas, models or similar technical aids through the unlawful act of another person.

Section 8a. Copying products of another person

It is prohibited in the conduct of business to make use of copies of distinguishing marks, products, catalogues, advertising material or any other production in such a manner and under such circumstances that this must be considered an unfair exploitation of the efforts or results of another person and entails the risk of confusion.

Section 9. Incorrect geographical descriptions for wine and spirits

It is prohibited in the conduct of business to make use of geographical descriptions for wines or spirits which do not originate from the geographical location designated by the descriptions. This shall apply even when the actual origin is also stated or when the geographical description has been translated or is followed by an expression such as "kind", "type", "imitation" or similar.

Chapter II. Supervision of Contract Terms and Conditions

Section 9a. Unfair contract terms and conditions

Terms and conditions which are applied or are intended to be applied in the conduct of business with consumers can be prohibited if the terms and conditions are considered unfair on consumers and if general considerations call for such a prohibition. When determining whether the terms and conditions of a contract are unfair, emphasis shall be placed on the balance between the rights and obligations of the parties and on whether the contractual relationship is clearly defined or not.

Section 9b. Scope

The provisions of this chapter do not apply to terms and conditions of work and pay in an employment relationship. The King can decree that the provisions of this chapter shall not apply to other special contractual relationships.

Chapter II a. Guarantees, etc.

Section 9c. The use of guarantees, etc., with regard to consumers

It is prohibited in the conduct of business to use the word guarantee or a corresponding expression in the sale of goods, services or other performances if the recipient is not provided with any rights in addition to those which he or she otherwise enjoys or if those rights are limited. In the marketing of guarantees, information shall be provided on any essential limitations in the guarantee. If information on the guarantee period is provided in the marketing, information shall also be provided on the maximum time limit for the lodging of a complaint under the legislation currently in force.

Section 9d. Requirements concerning guarantee conditions in the relationship with the consumer

If a guarantee is provided, the following information must be given in a clearly and easily comprehensible way in the guarantee conditions: a) the contents of the guarantee, including possible limitations and special conditions; b) that the rights of the consumer according to current or more precisely specified legislation can be enjoyed in addition to the guarantee and that these rights are not affected by the guarantee; c) what is necessary for the consumer to be able to make use of the guarantee, including the duration and geographical scope of the guarantee as well as the name and address of the guarantor; d) the maximum time limit for the lodging of a complaint under the current or more precisely specified legislation if this is longer than the guarantee period; e) that a complaint can be lodged about the performance in its entirety according to the current or more precisely specified legislation, irrespective of whether the guarantee is limited, for example by the fact that the guarantee only applies to a part of the performance or that only parts of the repair costs are covered by the guarantee. Where the marketing before the agreement is entered into is directed at Norwegian consumers, the guarantee conditions shall be drawn up in Norwegian. Before the agreement is entered into, the guarantor shall inform the consumer of the guarantee and that the consumer has the right to receive a copy of the guarantee conditions. When the consumer requests this, he or she shall be given the guarantee conditions in legible form and stored on paper or another permanent medium that the consumer has at his or her disposal.

Chapter II b. Acts that are Damaging to the Collective Interests of Consumers

Section 9e. Scope

The provisions of this chapter are applicable to acts that are in conflict with the provisions which, in accordance with the EEA agreement, protect the collective interests of consumers as these provisions are transposed into Norwegian law, provided that the acts are performed in the conduct of business in Norway and produce their effects in another EEA state or are performed in the conduct of business in another EEA state and produce their effects in Norway. The Ministry issues regulations determining the provisions which at any given time protect the collective interests of the consumers as referred to in paragraph one.

Section 9f. Right to bring cases before the Consumer Ombudsman and the Market Council

Foreign authorities and organisations designated in the list of qualified entities, which is published by the EU Commission in the Official Journal of the European Communities and, in accordance with the provisions of the EEA agreement, in the EEA supplement to this, can bring cases before the Consumer Ombudsman and the Market Council with a view to having a prohibition imposed on acts as referred to in Section 9e.

Section 9g. Approval of authorities and organisations

The Ministry issues approvals to Norwegian authorities and organisations so that they can act as party to cases in other EEA states with a view to having a prohibition imposed on acts as referred to in Section 9e. The Ministry informs the standing committee of the EFTA states of the names and purposes of the designated authorities and organisations with a view to their inclusion on the list referred to in Section 9f. The Ministry can issue regulations laying down more detailed rules concerning approval as referred to in paragraph one.

Chapter III. The Market Council and the Consumer Ombudsman

Section 10. Administration, organisation, etc.

The Market Council and the Consumer Ombudsman shall assist in the implementation of the provisions of this Act. The King can issue more detailed regulations regarding the organisation and activities of the Market Council and the Consumer Ombudsman.

Section 11. The Market Council

The Market Council shall consist of nine members, who are appointed by the King and each of whom shall have their own personal deputy. The term of office of each member is four years, however in such a way that a shorter term may be stipulated for some of the members when the Council is appointed for the first time. The King shall appoint the leader and the leader's deputy.

Section 12. Decisions made by the Market Council

The Market Council may prohibit any act which the Council considers in conflict with any provision contained in or issued pursuant to Chapter I or Section 9c when it considers its intervention to be justified in the interests of consumers, or, in relation to Section 1, paragraph two, in the interests of non-discrimination between the sexes. The Market Council may also prohibit a party appearing before the Market Council from using terms and conditions as stated in Chapter II or which do not meet the requirements stated in Section 9d, or from committing any act which is conducive to such use. The Market Council can further prohibit a practice that is in conflict with the provisions mentioned in Section 9e first paragraph if the practice is performed in the course of business in Norway and is damaging to the collective interests of consumers in another EEA state. The Market Council may furthermore prohibit any acts considered by the Council to be in conflict with any rules, the supervision of which has been delegated to the Consumer Ombudsman by regulations issued pursuant to Section 3-1, paragraph four, of Act No. 127 of 4 December 1992 relating to Broadcasting, if this is warranted in the interests of consumers or the interests of non-discrimination between the sexes. The Market Council can issue orders concerning any measures that it considers necessary for ensuring that the prohibition is complied with. A decision under paragraph one, points one to three, five or six, can also be issued against activities and individuals that have contributed to the execution of the act or to the use of the terms and conditions. Section 17, paragraph four, shall apply accordingly. A quorum is constituted at the Market Council when its leader or the leader's deputy and no fewer than four additional members or deputy members are present. Decisions are reached by simple majority. In the event of a tie, the leader shall have the casting vote. The grounds for a decision shall be stated at the time that it is made. No appeal can be filed against a decision of the Market Council.

Section 13. The Consumer Ombudsman

The Consumer Ombudsman shall, in the interests of consumers, seek to prevent market abuses in conflict with the provisions stipulated in or pursuant to Chapter I or Section 9c of this Act. Furthermore, the Consumer Ombudsman shall, in the interests of non-discrimination between the sexes and with particular emphasis on the portrayal of women, ensure that the provisions of Section 1, paragraph two are not violated. The Consumer Ombudsman shall, acting on his own initiative or on the basis of communications from others, urge all businesspersons to conduct their activities in accordance with the provisions of this Act. The Consumer Ombudsman shall also ensure that the terms and conditions mentioned in Chapter II or which do not meet the requirements stated in Section 9d are not used in any way that may harm consumers and shall contribute to this end through negotiations with businesspersons or their organisations. The Consumer Ombudsman can, upon request from an authority or organisation designated in Section 9f with a view to protecting the collective interests of consumers in another EEA state, deal with cases involving acts as mentioned in Section 9e, paragraph one. The Consumer Ombudsman shall furthermore inspect all advertising according to regulations issued pursuant to Section 3-1, paragraph four, of Act No. 127 of 4 December 1992 relating to Broadcasting, when this is called for in the interests of consumers or of non-discrimination between the sexes. If an amicable settlement is not achieved, the Consumer Ombudsman may submit the case to the Market Council for a decision in accordance with Section 12. With the consent of the leader of the Market Council, the Consumer Ombudsman may place before the Market Council cases of principle concerning infringements of Sections 1 to 5 or Section 9 c, or infringements of the regulations issued pursuant to Section 3-1, paragraph four, of Act No. 127 of 4 December 1992 relating to Broadcasting. This shall apply irrespective of whether an amicable settlement has been reached or the businessperson declares that the marketing measure has been discontinued. The Market Council may refrain from dealing with a case submitted according to paragraph five if it finds that there is insufficient information on the matter for it to reach a decision. If the Consumer Ombudsman decides not to submit a case to the Market Council, the case may be submitted by a businessperson or a consumer who is affected by the practice or the terms and conditions or by a group combining businesspersons, consumers and/or employees.

Section 14. Decisions made by the Consumer Ombudsman

The Consumer Ombudsman can make a decision on a prohibition as referred to in Section 12, paragraph one, first, second, third and fourth sentences, if an amicable settlement is not reached and the Consumer Ombudsman considers that waiting for the decision of the Market Council will result in a disadvantage or a damaging effect. Any decision which the Consumer Ombudsman may make concerning a prohibition as stated in Section 12, paragraph one, first and second sentences, may also be directed against any person who has co-operated in the practice, cf. Section 12, paragraph two. The Consumer Ombudsman may also make a decision as stated in paragraph one when the Ombudsman considers the marketing or the contract term or condition to be substantially identical to marketing or to terms or conditions against which the Market Council has previously issued a prohibition. The Consumer Ombudsman shall state the grounds for his decision at the time that it is made. The Ombudsman shall notify the Market Council of the decision. An appeal against the decision may be lodged with the Market Council. The Market Council can require the Consumer Ombudsman to submit matters as further specified to the Market Council.

Chapter IV. Obligations of Disclosure and Secrecy

Section 15. Disclosure

All persons are obliged to furnish the Market Council or the Consumer Ombudsman with the information that these authorities may require in order to be able to perform their legally prescribed duties, including information necessary for determining whether a representation is incorrect or misleading. The Market Council or the Consumer Ombudsman may request the information to be submitted in writing or orally within a stipulated time limit. The authorities mentioned above may conduct any examination and inspection, including requests for the handing over of any documents, objects, samples of goods, etc., which they consider necessary in order to perform their legally prescribed duties. If necessary, assistance may be requested from the police. The Market Council or the Consumer Ombudsman may request that information shall be given to or an examination shall be undertaken by other public authorities specifically charged with the duty to assist in the implementation of this Act.

Chapter V. Sanctions

Section 16. Enforcement charge

Any decision under Sections 12 and 14 against marketing in conflict with Sections 1 to 5 or against unfair contract terms and conditions as stated in Section 9a shall specify an enforcement charge payable by the party against whom the decision is directed in the event that the party in question fails to comply with the decision or co-operates in the execution by a third party of the act against which the decision is directed. The same applies to decisions under Sections 12 and 14 against violations of the provisions in Chapter IIa. The same shall apply when decisions are made in accordance with Section 12, paragraph 1, third sentence and Section 14, paragraph one, first sentence. In the event that the party against whom the decision is directed has to withdraw advertising campaigns or similar, the party concerned shall be granted a period of time to do this. Specification of the enforcement charge may be omitted if this is warranted by special circumstances. If the party against whom the decision is directed or any person acting on behalf of the party in question fails to comply with the decision or co-operates in the execution by a third party of the act against which the decision is directed, the Consumer Ombudsman shall issue an order for an enforcement charge unless otherwise warranted by special circumstances. An order may not be issued pursuant to a decision made more than three years ago, nor may an order be issued for infringements that have ceased more than two years ago. The party in question shall be given a time limit not exceeding three weeks to declare whether the order is accepted. Acceptance of an order provides the basis for enforcement of distraint. If the order is not accepted, the Consumer Ombudsman shall bring an action to establish the liability for payment of the enforcement charge. The Consumer Ombudsman may refrain from bringing an action if this is warranted by special circumstances. In addition to judging the legal validity of the order, the Court may, within the context of the submissions of the parties, examine the aspects involved in the determination of the enforcement charge. Conciliatory proceedings before the Conciliation Board are not required. No appeal may be lodged against orders issued by the Consumer Ombudsman and its decision to bring an action. The King can issue regulations containing rules on the size of the enforcement charges and on the duty to pay interest on unpaid enforcement charges, etc.

Section 17. Punishment

A person who intentionally infringes Sections 2 to 9 of this Act or any decision made pursuant to this Act shall be punishable by a fine, by imprisonment of up to six months or both unless penal provisions calling for more severe punishment are applicable. An accessory to the infringement is liable to the same punishment. A person who negligently infringes Sections 2, 2a paragraph one and 3 and decisions made pursuant to this Act shall be punishable by a fine, by imprisonment of up to six months or both unless penal provisions calling for more severe punishment are applicable. An accessory to the infringement is liable to the same punishment. Infringements of paragraphs one and two are considered a misdemeanour. Punishment shall not be imposed on a sales assistant, office assistant or similar junior employee if they have committed an infringement that resulted essentially from his or her dependent relationship with the principal. Punishment shall not be imposed in the event of the infringement of Section 7 when knowledge or possession of the trade secret has been acquired in a position of employment or of trust or through a breach of duty in a position of this kind and more than two years have lapsed since the position ceased to exist.

Section 18. Rules of penal procedure

No steps will be taken by the public prosecutor against infringements of Sections 7, 8 or 8a of this Act unless this is requested by the injured party. The same shall apply to infringements of Sections 2 or 3 when the act committed involves injurious statements made about another businessperson or about circumstances which concern that person specifically. In connection with criminal proceedings the public prosecutor may apply for an injunction to ensure the cessation of the unlawful act and to prevent its repetition.

Chapter VI. Definitions. Delimitation in relation to the Acts relating

to Competition in Commercial Activity and to Price Policy. Entry into Force

Section 19. Definitions

Under this Act, a practice is considered to have been performed in the conduct of business whether it was performed by the businessperson himself or herself or by a person acting on his or her behalf. All business enterprises are subject to the Act even if the entity (company, institution, establishment or other) which conducts the operation is a non-profit organisation. Under this Act, representation means any announcement or statement made orally, in writing or otherwise, including descriptions, pictures, demonstrations, the form, size or layout of packaging, etc.

Section 20. Delimitation in relation to the Acts relating to Competition in Commercial Activity and to Price Policy

The provisions in Section 1 of this Act shall not apply to the substance of offers, demands or agreements concerning prices and terms and conditions of business of businesspersons, nor shall the provisions apply to the establishment or implementation of agreements to restrain competition or to a refusal to maintain business connections. The provisions in Section 9a of this Act shall not apply to the substance of terms and conditions governing prices, discounts, bonuses and profits. The provisions of this Act do not restrict the powers prescribed in or pursuant to the Act relating to Competition in Commercial Activity (the Competition Act) and the Act relating to Price Policy. If a business operation that is subject to this Act is also subject to provisions concerning regulation and control contained in other Acts, the King can issue more detailed rules concerning the mutual delimitation of the areas of responsibility of the authorities concerned and concerning the co-operation between them.

Section 21. Entry into force, etc.

This Act shall come into force on the date stipulated by the King.