2.9.2. Hidden marketing/failure to identify commercial intent

Under Article 7(2), failing to identify the commercial intent of a commercial practice is regarded as a misleading omission, when this failure is likely to cause the average consumer to take a transactional decision they would not have taken otherwise. The e-Commerce Directive (190), the Audiovisual Media Services Directive (191) and the e-Privacy Directive (192) similarly lay down certain requirements in this regard with respect to commercial communications and the sending electronic mail for purposes of direct marketing. A specific aspect of hidden marketing is also regulated by Article 8(5) of the Consumer Rights Directive. While these provisions focus on specific commercial practices or sectors, Article 7(2) has a general and broader scope and addresses any commercial practice. In addition to Article 7(2), the UCPD bans in all circumstances certain specific practices that involve failure to disclose commercial intent. Point No 11 of Annex I bans the use of ‘editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. Point No 22 of Annex I prohibits ‘falsely claiming or creating the impression that the trader is not acting for purposes related to his trade, business, craft or profession or falsely representing oneself as a consumer ’. Article 7(2), together with points 11 and 22 of Annex I, can be particularly relevant for online traders (see section 4.2.5 on social media and 4.2.6 on influencer marketing).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.