§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. Article 8(5) of the Consumer Rights Directive: ‘(…) if the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall, at the beginning of the conversation with the consumer, disclose the identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call’. While these provisions focus on specific commercial practices or sectors, Article 7(2) has a general and broader scope and addresses any commercial practice. For example: A consumer authority acted against a trader who invited consumers to meetings offering them a free health check-up as part of an ‘I care for my health’ programme. The trader failed to disclose the fact that the main purpose of the meetings was to present products in order to sell them to consumers (193). 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)’. For example: A major newspaper teamed up with a telecom operator who finances a particular section of the newspaper under the title ‘The Digital Life’. This section and all of its material, including promotions of products which the telecom operator was about to launch, appear as the newspaper’s editorial content; the only disclosure to the public about the commercial nature of the presented material is the discrete appearance of the text ‘in collaboration with’ followed by the telecom operator's trademark. This practice was found to be in breach of Point 11 of Annex I UCPD (194). 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 2026-09-07