The Spanish Competition Authority (CNMC) has set its focus on 360º marketing and already sanctioned several production companies for broadcasting undercover advertising. One of such sanctions was recently analysed by the Supreme Court, which confirmed the 324,000 euros fine that the CNMC had imposed on Mediaset for undercover advertising of parapharmaceutical products on the program ‘Sálvame Diario‘. The rise in penalties for concealed advertising urges to establish increasingly robust legal clearance processes in order to avoid ever higher fines.    

In its ruling, the Supreme Court analyses several mini-sections broadcasted under the title Me encanta cuidarme (“I love taking care of myself”) within the programme Sálvame Diario. In these sections, a doctor talked with the host about certain health and wellness issues, such as ageing, sleep quality and obesity. On the other hand, over an hour later, the same channel broadcasted advertisements for various parapharmaceutical products for the treatment of the aforementioned health problems.

Although Me encanta cuidarme had no advertising content at first sight, since there was no direct or indirect presentation of products, according to the Supreme Court’s ruling of 10 March 2020, it qualified as concealed advertising. Why? Because of its combination and thematic connection with other sections in which products were indeed promoted.

When confirming the infringement declared by the CNMC, the Supreme Court stressed that, despite not presenting any product, the section Me encanta cuidarme qualified as an advertising communication, because it was part of a multi-format or multi-channel advertising campaign, also known as 360º marketing. The analysis formerly carried out by the CNMC was paramount for the Supreme Court’s ruling. This assessment highlighted the following aspects of the advertising campaing:

  • The health issues discussed in the section correlated to the telepromotions broadcasted afterwards. For example, when the section commented on the dangers of obesity and the most effective tools to fight it, subsequent telepromotions advertised parapharmaceutical products specifically related to fat burn and weight loss;
  • Both the health micro-space and the subsequent telepromotions of parapharmaceutical products used the hashtag #meencantacuidarme;
  • The program’s slogan, Me encanta cuidarme, was remarkably similar to the slogan used by the pharmaceutical company responsible for the subsequent telepromotions – Nos encanta cuidarte (“We love taking care of you”);
  • Cross-references were made between the health micro-space and the telepromotions: “As the Doctor told us earlier…”
  • During the section, references were made to social networks and external websites which were somehow related to the parapharmaceutical brand responsible for the subsequent advertisments.

Thus, this type of advertising, which uses all the tools available to approach the consumer -think of television, newspapers, magazines, e-mail, websites, social networks, mobile applications, etc.- multiplies the strategic and creative possibilities, but also the legal challenges. It must be borne in mind that when carrying out an advertising campaign in multiple media or supports, all the regulations applicable for each and every one of them must be complied with.

As evidenced by this case, the first question that arises is the sufficient identification of the advertising content as such to guarantee correct consumer information. This obligation is omnipresent in advertising and consumer regulations, applying to all media, channels and formats. Not in vain, the Supreme Court itself stresses in this last ruling that the definition of concealed advertising in the General Audiovisual Communication Law does not include (and therefore does not exclude) any particular program or format.

When qualifying the content at hand as advertising, the Supreme Court resorted to evidence principles already set forth on other occasions (for example, Supreme Court ruling No. 1552/2019 of 11 November). Thus, case law points out that content that does not directly or indirectly promote a product, service or brand may acquire an advertising nature as part of a multi-format campaign, by way of remittance or reference to other channels through which a promotional activity is carried out. According to our courts, in addition to the direct reference or mention, some indications of the existence of this type of interconnection are:

  • The content coincidence or complementarity with other advertising spaces or channels, to which reference is made or which are transmitted through the same channel, even if their broadcast is separate in time with respect to the content under analysis.
  • The visual inclusion of products, which are not verbally mentioned, but that can be acquired through another platform that is either directly or indirectly referenced.
  • The use of titles, slogans or hashtags creating a certain sense of unity or connection, either because of their similarity or by establishing parallelisms or puns.

Furthermore, we should not forget that sanctioning a content as concealed advertising leaves the door open to the imposition of sanctions for other infringements, since the qualification of a content as advertising makes it subject all the regulations applicable on the matter. Therefore, when launching a campaign, in addition to its sufficient commercial identification, we must respect the restrictions regarding the inclusion of certain products or content, broadcasting schedules and channels, the time length of the promotion, the requirement to obtain certain licenses or authorizations, etc., by carrying out a complete legal analysis including all 360º of the legal system.

Cristina Mesa Sánchez
Polina Shishkunova

Intellectual Property Department