Advertising, Marketing & Promotion Comparative Guide

1 Legal framework

1.1 What are the main legislative and regulatory provisions that govern advertising in your jurisdiction?

At the constitutional level, the right to advertise in Switzerland is encompassed in:

• the freedom of expression and information; and
• the freedom to engage in commerce.

However, various general and industry-specific laws and regulations impose certain limits on advertising in Switzerland. For example:

• the Federal Act against Unfair Competition, as the primary regulation governing advertising activities, contains basic principles which:
• • protect good faith in business; and
  • prohibit unfair business practices;
• the Federal Code of Obligations includes provisions relating to contractual relationships which may be relevant to advertising;
• the Federal Act on Data Protection sets out rules on the use of personal data; and
• the IP acts set limits with respect to the use of third-party intellectual property in marketing activities.

In addition, Swiss law contains various product and service-specific advertising regulations (eg, on gambling, alcohol, tobacco, pharmaceuticals, foodstuffs and utility products, telecommunications and financial products), as well as regulations for broadcast advertising.

The advertising rules in Switzerland:

• can be private law, public law or criminal law in their nature; and
• can be found at the federal, cantonal and municipal levels.

1.2 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have particular relevance for advertising in your jurisdiction?

As a general rule, all marketing and communication measures directed at Swiss consumers are subject to Swiss law. According to the Federal Act on Private International Law, Swiss law is applicable both:

• where Swiss advertisers and media place ads; and
• where foreign advertisers and media actively target their ads at Swiss consumers (eg, through 'Swiss advertising windows' with respect to audio-visual content).

In connection with television advertising, the European Convention on Cross-Border Television, which has been ratified by Switzerland, contains several advertising principles on:

• television;
• the duration, form, scope and labelling of television advertising and teleshopping; and
• sponsorship on television.

Switzerland has also concluded a large number of bilateral agreements which may have an impact on the protection of rights and their marketing in Switzerland and abroad, in particular for the protection of intellectual property. These include:

• free trade agreements (mostly within the framework of the European Free Trade Association); and
• a variety of bilateral agreements on trade and economic cooperation.

Further, the guidelines of the Swiss Commission for Fairness in Commercial Communication, the Swiss advertising self-regulatory body, are mainly based on the International Chamber of Commerce (ICC) Consolidated Code of Advertising and Marketing Communications Practice. Thus, any adjustments to the ICC code will have an impact on the relevant self-regulatory practices of the commission.

1.3 What industry codes or guidelines have relevance for advertising in your jurisdiction?

The basic principles which the Swiss Commission for Fairness in Commercial Communication publishes and enforces (see question 1.2) set out rules on:

• the protection of personality rights;
• data protection;
• comparative advertising;
• the reproduction of ads of others;
• lotteries;
• guaranteed acceptance of returned products;
• gender discrimination;
• the separation of editorial material from commercial communications; and
• direct marketing.

In addition, the commission applies the ICC Consolidated Code of Advertising and Marketing Communications Practice.

Additional self-regulatory advertising rules may apply, depending on:

• the industry;
• the product or service;
• the claims; and
• the form of advertising.

1.4 Which bodies are responsible for implementing and enforcing the advertising regime in your jurisdiction? What is their general approach in doing so?

The Swiss Parliament is responsible for regulating advertising in various fields at the federal law level. Where the Swiss Parliament does not regulate in a certain area and where the Federal Constitution and other applicable laws provide room for such regulations, the cantons and municipalities may issue their own regulations.

Industry-specific laws – such as the Federal Act on Foodstuffs and Utility Articles and the laws regulating advertising on radio and television – do not provide for a private cause of action. They are enforced by government agencies on their own initiative or upon notice by third parties. Government agencies tend to have a broad understanding of the term 'commercial communication' and their enforcement activity can be high at times, in particular with respect to deceptive price techniques in advertising.

Other laws, such as the Federal Act on Data Protection and the Federal Act against Unfair Competition, provide for both:

• private causes of action; and
• government (administrative or criminal) enforcement.

In the case of trademark or copyright infringement, only the owner or exclusive licensee of the respective IP right has a right of action.

In addition, the Swiss Commission for Fairness in Commercial Communication can make recommendations regarding the fairness of specific advertising activities or campaigns. Although the recommendations of the commission are not binding, they are widely respected and adhered to in practice. Most of the complaints in 2022 dealt with:

• the violation of the rules on gender discrimination (sexism);
• aggressive selling methods;
• the definition of 'commercial communication'; and
• the scope of application of the self-regulatory rules.

Meanwhile, there have also been some decisions in the context of green/environmental marketing and influencer marketing.

2 Authorisation and clearance

2.1 Do advertisers need any kind of licence or authorisation in order to operate in your jurisdiction?

Generally, there is no need for advertisers to acquire a licence or authorisation to operate in Switzerland. However, whether advertisers need a licence or authorisation to offer a product or a service through advertising activities depends on the industry-specific regulations. For example, a licence is required for the offering of a money game (eg, gambling, betting, lotteries). Similarly, in the pharmaceuticals industry, only products which are authorised and open to public advertising may be advertised.

2.2 Do ads require any kind of clearance before they can be released in your jurisdiction?

There is no general clearance obligation for any advertising under Swiss law. However, there are situations in which such clearance or pre-approval is required.

In the pharmaceuticals industry, the advertising of certain products (eg, sleeping drugs, sedatives, laxatives and anorectics with a potential for abuse and addiction) is subject to pre-approval by Swissmedic, the Swiss regulatory and supervisory authority for pharmaceutical products and medical devices.

The Alcohol Division of the Swiss Federal Office of Customs and Border Security allows ads for alcoholic beverages to be voluntarily submitted for clearance – in particular, to evaluate whether they comply with the advertising provisions of the Federal Alcohol Act. The Alcohol Division's approval or rejection is binding upon the advertiser, but decisions denying clearance can be appealed to the Federal Administrative Court and ultimately to the Federal Supreme Court.

Some authorities, such as the Federal Office of Communications (which enforces television and radio advertising laws), issue non-binding, non-prejudicial advice in voluntary, informal consultations if asked to do so by advertisers, television operators or their external lawyers.

Some cantonal and municipal laws require pre-approval for certain types of advertising in outdoor areas – in particular, for advertising and promotional activities on public property.

3 General advertising regime

3.1 What general rules and requirements apply to ads in your jurisdiction?

The Federal Act against Unfair Competition includes basic principles on advertising in Switzerland. Advertising claims must not:

• be false or misleading; or
• violate by other means the basic principles of good faith in business relationships.

This act specifically prohibits false or misleading statements about the essential characteristics, benefits, risks, composition, method or date of manufacture, suitability for a particular purpose, quantity, specification or geographical origin of the advertised products or services.

Based on the Federal Act against Unfair Competition, an implementing Ordinance on Price Disclosure has been issued. This ordinance contains detailed requirements on the disclosure of prices and (permitted) discounts to such prices. Compliance with this ordinance is closely monitored by the State Secretariat for Economic Affairs (SECO). SECO is entitled to take legal action (civil and criminal) if it finds that the reputation of Switzerland is at stake – for example, by online businesses targeting Swiss consumers with misleading or incomplete price disclosure.

Other relevant basic laws (apart from industry-specific regulations) applicable to advertising include:

• the Federal Act on the Protection of Trademarks and Indications of Source;
• the Federal Act on Copyright and Related Rights;
• the Federal Act on Data Protection; and
• the Federal Act on Radio and Television.

3.2 What rules and requirements apply to puffery in your jurisdiction?

According to the Federal Act against Unfair Competition, factual statements must be true under all circumstances.

Obvious exaggerations (puffery) do not need substantiation and are generally permissible if recognised as such by the relevant public.

3.3 Under what circumstances must claims in ads be substantiated?

Only factual statements can be proved false or true, if challenged. Therefore, non-factual statements and obvious exaggerations (puffery; see question 3.2) do not need substantiation.

However, depending on the overall impression that such statements or exaggerations create, they may still be considered misleading or unnecessarily degrading under the Federal Act against Unfair Competition.

In case of litigation, the court may request the advertiser to prove the accuracy of factual statements contained in the advertising if this appears appropriate in the individual case, taking into account the legitimate interests of the advertiser and other persons involved in the litigation.

3.4 What rules and requirements apply to the use of the following? (a) Test results; (b) Survey results and (c) Testimonials.

(a) Test results

Manufacturers of products or providers of services are generally allowed to use tests or opinions of experts for advertising purposes.

However, the Swiss Commission for Fairness in Commercial Communication has, taking into account the relevant provisions of the Federal Act against Unfair Competition, established general guidelines for tests used in advertising. Such tests must:

• stand up to the basic principles of:
• • neutrality (testing only through independent testing institutes);
  • objectivity (no deceptive testing – for example, by ignoring important data);
  • transparency (disclosure of methodology);
  • competence (testing institute with the required skills); and
  • relevance (testing of properties relevant for the consumer); and
• be communicated in a true, complete and comprehensible manner.

Further, the Federal Act on Medicinal Products and Medical Devices and the respective Advertising Ordinance prohibit advertising which mentions or refers to:

• scientific publications;
• clinical studies;
• expert opinions; and
• testimonials or recommendations of:
• • scientists;
  • healthcare professionals;
  • well-known personalities; or
  • medical-pharmaceutical laypersons.

(b) Survey results

The same principles as mentioned under question 3.4(a) apply.

(c) Testimonials

Testimonials must be true and justified by the experience of their authors or statement originator. Advertisers must therefore be able to prove the authenticity of the testimonial at any time.

Furthermore, testimonials or expert opinions may be used only if the author of a statement explicitly agrees with such use. Further restrictions apply in particular in the food and pharmaceuticals industries. Testimonials which state, for example, that a pharmaceutical product has a guaranteed effect are prohibited. In addition, health-related information on food packages must not be presented as recommendations from doctors or other medical professionals.

3.5 What rules and requirements apply to the protection of minors?

There is no specific standalone law in Switzerland for the protection of minors from certain types of advertising. However, there are several provisions that address the protection of minors.

As a general rule, under the Federal Act against Unfair Competition:

• advertising for products and services which are not suitable for minors must not be shown on media directed at minors;
• advertising content which is unsuitable for minors must be clearly identified; and
• advertising must not:
• • exploit the inexperience and impressionability of minors;
  • undermine social values transmitted to them through education at home or in school; or
  • depict violence.

Furthermore, the Federal Act on Radio and Television includes specific provisions to protect minors from harmful advertising and stipulates, for example, that:

• advertising must not impair their physical or mental development;
• broadcasts for children must not be interrupted by ads; and
• sales offers must not be directed at minors.

Another example is the new Federal Tobacco Products Act, effective as of mid-2024, which includes some additional prohibitions on tobacco advertising which is easily accessible to minors.

3.6 Are certain forms of advertising prohibited in your jurisdiction?

Aggressive advertising methods – such as the exertion of physical or psychological pressure which impairs the freedom of choice of the relevant public – are prohibited in Switzerland.

Special federal rules also apply to:

• mass advertising by email, which is allowed only if:
• • the recipient has provided his or her consent;
  • the identity of the sender is visible and correct; and
  • there is an unsubscribe function;
• door-to-door selling;
• advertising calls; and
• the use of loudspeakers in public places or on cars.

Also, cantonal laws may provide for further prohibitions.

4 Misleading advertising

4.1 On what grounds will an ad be found to be misleading in your jurisdiction? How does the process unfold?

Advertising must be true and clear. All information reasonably essential to the purchase of a product or service must be disclosed in an understandable and clear manner. If this is not the case, there is a risk that an ad will mislead the relevant public. A consumer should not be disappointed with respect to his or her expectations.

Anyone whose customers, credit, professional reputation, business operations or other economic interests are threatened or injured by misleading advertising may:

• assert legal claims provided for in the law before a competent court; or
• file a complaint with the Swiss Commission for Fairness in Commercial Communication (see question 9).

4.2 If an ad is found to be misleading, what are the consequences for the advertiser?

In actions for unfair competition, potential remedies include:

• preliminary or permanent injunctions;
• money damages (including the disgorgement of profits);
• impoundment of infringing articles; and
• costs and attorneys' fees.

Typical injunctions will:

• prohibit a threatened infringement; or
• order the defendant to cease and desist from an ongoing infringement.

Depending on the circumstances of the case, the advertiser might also lose a specific licence. Further, misleading advertising may also lead to reputational damage.

4.3 Can the advertiser appeal the decision? If so, what is the process for doing so?

Provided that all formal legal requirements are met, both court decisions and recommendations of the Swiss Commission for Fairness in Commercial Communication can be appealed (see question 9).

5 Specific advertising regimes

5.1 What rules and requirements apply to the following types of advertising in your jurisdiction, and what best practices should be considered in each case? (a) Comparative advertising; (b) Promotional marketing (eg, competitions, lotteries and sweepstakes); (c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing); (d) Native advertising; (e) Influencer advertising; (f) Ambush marketing; (g) Country-of-origin marketing; and (h) Green marketing.

(a) Comparative advertising

In principle, comparisons can be made through advertising activities with competitors (and their products, works, services, prices), as such comparative advertising can also contribute to improved competition and transparency in the relevant market. However, a comparison will be considered unfair under Swiss law if it:

• is inaccurate, misleading, unnecessarily imitating, disparaging or suggestive; or
• favours third parties accordingly.

From a practical point of view, advertisers should always ensure that:

• the products or services which are compared objectively allow for a comprehensive and conclusive factual comparison;
• relevant facts are not suppressed; and
• the products or services of others are not unnecessarily defamed.

The guidelines of the Swiss Commission for Fairness in Commercial Communication further specify the requirements for comparative advertising.

(b) Promotional marketing (eg, competitions, lotteries and sweepstakes)

Prize draws (ie, promotions where the winner is decided purely by chance, being selected at random from a pool of entries at the end of the promotion period) which are linked to the purchase of a promotional product without providing a non-purchase method of entry are permitted as long as the following requirements are met (in which case Swiss gambling law does not apply):

• The prize draw is conducted over a short period of time (in any event less than six months);
• The prize draw is for the purpose of sales promotion;
• There is no risk of excessive gambling (there is a high risk if multiple entries disproportionately increase the chances of winning);
• Participation takes place exclusively through the purchase of products or service offers; and
• The products or services are offered at prices that are in line with or below market prices.

(c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing)

Interest-based advertising is subject to applicable data protection law. Under Swiss data protection law, the general principles of data processing must be complied with (particularly lawfulness, proportionality and recognisability of purpose). Each person whose data is processed must therefore be informed of the processing, at least by means of a privacy notice, so that it is also recognisable to them – for example, that their data is being processed for marketing purposes.

Furthermore, there is a general regulation in the Federal Telecommunications Act for all online tracking methods (eg, via third-party cookies), which are usually used for targeted and interest-based advertising in real time. According to this provision, website operators in Switzerland must:

• inform users about online tracking methods used;
• state the purpose for which they are used; and
• provide a means through which users can reject the use of such methods.

In contrast to the European Union, Switzerland follows the opt-out principle in this regard and has no formal requirements (a reference in the privacy notice is sufficient).

(d) Native advertising

Consumers must be able to recognise:

• advertising or commercial communication as such: and
• the identity of the advertiser.

The reference to commercial communication should also be clearly visible and understandable for the relevant public.

This also applies when a person uses a blog or a user account, a profile or a similar form of affiliation to a social media platform or to a media portal in order to carry out or enable advertising for third parties. Where specific content is not clearly recognisable as a commercial communication, the relationship with the respective third party must be disclosed.

Adherence to these principles ensures that consumer trust is not exploited through a lack of experience or knowledge. It is essential to understand the relevant public (average consumer) in the individual case.

(e) Influencer advertising

If an influencer refrains from disclosing an advertising contribution as such, he or she acts unfairly under Swiss law. Such advertising will be seen as influencing market conditions whereby consumers are not aware of a contribution being made to the influencer. Swiss law is quite liberal as to how paid posts must be labelled. The fact that a post is paid must be recognised by the average consumer. Even an implied disclosure may suffice.

As a rule of thumb, an influencer can assume that if he or she makes a post to which he or she has contractually committed, the post must be labelled as advertising. However, if the influencer makes a post only on occasion (eg, if an athlete wears sponsored gear but engages in normal activity while doing so), or if a personal opinion or recommendation is actually given, a post need not be labelled as commercial.

(f) Ambush marketing

If the media attention for an event is exploited without a legal connection to such event, regulations under IP law, unfair competition law and potentially contract law must be taken into account.

Where protected signs and/or works protected by copyright are used, the respective rights holder may:

• prohibit the advertiser from further using these signs or works; and
• potentially also:
• • request damages; and
  • file a criminal complaint.

From an unfair competition law perspective, marketing measures which may lead to confusion with the offer or business operations of another party are considered unlawful. Further, anyone that pretends to have such a connection may also violate the event organisation's personal rights.

(g) Country-of-origin marketing

There is no obligation for advertisers to indicate the country of origin in which a product is manufactured. Only where a specific claim is made or where the advertising raises any expectation with respect to the origin do specific regulations apply. The Federal Act on the Protection of Trademarks and Indications of Source includes specific requirements on the use of geographical indications.

(h) Green marketing

If advertisers use special sustainability efforts or credentials (eg, 'climate-neutral production') in advertising, they must be able to substantiate the accuracy of such green claims, such as by referring to internationally recognised certifications. The advertising of products which implies that they have no environmental impact should not be used without qualification unless a very high standard of proof is available.

Advertisers should always make clear to the relevant public whether:

• the product is produced without or with reduced carbon dioxide emissions; or
• some of those emissions are offset during production.

6 Direct marketing

6.1 What rules and requirements apply to the following types of direct marketing in your jurisdiction, and what best practices should be considered in each case? (a) Telemarketing; (b) Email marketing; (c) Direct mailings; and (d) Opt-out marketing.

(a) Telemarketing

In principle, products or services can be offered through telemarketing.

Anyone that fails to observe a note in the telephone directory that a customer does not wish to receive advertising communications from persons with which he or she has no business relationship and that his or her data may not be passed on for the purposes of direct advertising acts unfairly under Swiss law. Persons without a directory entry are treated in the same way as customers with a directory entry and note.

Unless and to the extent that the EU General Data Protection Regulation does not apply, Swiss data protection law does not require express consent, except in the cases provided for by law (eg, in connection with the processing of sensitive personal data). However:

• the principles of data processing must be complied with; and
• the processing and possibly responsible person must fulfil its legal obligations (eg, the duty to inform, answer rights to information, respond to the right to object).

(b) Email marketing

The delivery of advertising emails is permitted only if:

• either:
• • the affected person has given his or her consent; or
  • there is a client relationship;
• the correct sender is evident; and
• there is a reference to an easy and free rejection or unsubscribe option.

(c) Direct mailings

The principles applicable to telemarketing (see question 6.1(a)) also apply to direct mailings.

(d) Opt-out marketing

From a Swiss unfair competition law perspective, a person that obtains contact information from customers when selling products, works or services and provides for an opt-out possibility may send those customers mass advertising for their own similar products, works or services without the consent of those customers.

Furthermore, obligations under applicable data protection laws must be complied with.

7 Indirect marketing

7.1 What rules and requirements apply to the following types of marketing in your jurisdiction, and what best practices should be considered in each case? (a) Product placement; (b) Sponsorship; and (c) Loyalty programmes.

(a) Product placement

Product placement is considered a type of sponsorship in Switzerland. According to the Federal act on Radio and Television, product placement in general may be inserted into programmes. As is the case with sponsorship engagements, product placement in broadcasts:

• must not encourage the conclusion of transactions concerning products and services; and
• must be aimed at promoting the image or brand of the sponsor.

Therefore, products and services:

• must be integrated in a natural way into the broadcast; and
• must not be given undue prominence.

Furthermore, clear reference must be made to product placements at the start and end of the broadcast and after each commercial break. A single reference suffices for product placement, production aids (prop placement) and prizes with a value of up to CHF5,000.

Product placement is not permitted in children's programmes, documentary films or religious broadcasts, unless the sponsor merely provides products or services of low value free of charge.

On product placements in the context of influencer marketing, see question 5.1(e).

(b) Sponsorship

Advertising must be:

• clearly separated from the editorial part of a programme; and
• clearly recognisable as such.

In addition, advertising of the following on radio and television programmes is not permitted:

• tobacco products;
• alcoholic beverages (subject to defined exceptions);
• political parties;
• persons holding or running for political office;
• topics that are the subject of referendums; and
• religious denominations and the institutions and persons representing them.

In addition to the special provisions of the Federal Act on Radio and Television, sector-specific provisions apply.

(c) Loyalty programmes

There is no standalone law dealing with loyalty programmes in general. The general unfair competition law rules apply. The Federal Act against Unfair Competition prohibits, for example, promising a prize in a competition which can only be redeemed by:

• purchasing products or services;
• using a value-added service number for which a charge is made; or
• participating in a sales event.

Insofar as loyalty programmes are of such a nature that a certain exclusive group of consumers receives special price advantages (eg, by belonging to a members' club or by collecting discount points), it must be assessed in the individual case whether the provisions of the Federal Price Disclosure Ordinance apply. This ordinance contains specific rules applicable to price advertising (see question 3.1).

In an individual case, the Federal Gambling Act may also apply.

8 Industry-specific regimes

8.1 What regulatory regimes apply to advertising in the following industries in your jurisdiction, and what best practices would you highlight? (a) Gambling (including lotteries); (b) Alcohol; (c) Tobacco; (d) E-cigarettes; (e) Pharmaceuticals (prescription and over-the-counter); (f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements); (g) Food; and (h) Financial products and services.

(a) Gambling (including lotteries)

The offering and advertising of gambling are regulated by the Federal Gambling Act. Advertising is allowed only for money games for which there is a licence. In addition, advertising must not be:

• intrusive or misleading; or
• aimed directly at minors or persons barred from gambling.

In addition, advertising related to sports organisations and athletes (especially through sponsorship contracts) is prohibited in most cases.

(b) Alcohol

The Federal Alcohol Act, the Federal Act on Foodstuffs and Utility Articles and the Federal Act on Radio and Television contain specific rules on the advertising of alcoholic beverages.

In general:

• the advertising of alcoholic beverages may not be directed at minors; and
• spirits may not be advertised:
• • on television or radio;
  • in public buildings/places;
  • on sports fields; or
  • on public transport.

Television and radio ads for beer and wine are allowed, subject to specific rules (eg, a prohibition against specifically addressing minors). In connection with the advertising of alcoholic beverages, cantonal and municipal regulations must also be consulted, as many cantons and/or municipalities prohibit this type of advertising altogether in public places or at public events.

(c) Tobacco

According to the new Federal Tobacco Products Act, effective as of mid-2024, the following are prohibited:

• tobacco advertising on television and radio;
• ads (including national sponsorship engagements) directed at and addressed to minors;
• presentation of free samples;
• poster advertising;
• advertising spots in cinemas;
• advertising in public places; and
• sponsorship engagements of international events taking place in Switzerland.

(d) E-cigarettes

Under the new Federal Tobacco Products Act, e-cigarettes and other products that are comparable to classic tobacco products (eg, vape products, nicotine pouches) are no longer (as previously) classified under the Federal Act on Foodstuffs and Utility Articles, but directly fall within the scope of the Federal Tobacco Products Act. See question 8.1(c).

(e) Pharmaceuticals (prescription and over-the-counter)

The Federal Act on Medicinal Products and Medical Devices and the Federal Ordinance on Advertising of Pharmaceuticals regulate advertising practices in:

• the pharmaceuticals industry; and
• the medical devices and supplies industries.

Those regulations prohibit, in particular:

• misleading advertising;
• advertising which is contrary to public order and morality;
• advertising which may encourage consumers to make excessive, abusive or inappropriate use of medicinal products; and
• advertising of medicinal products which are not approved for the Swiss market.

The laws also distinguish between:

• advertising to professionals; and
• advertising to the public.

The advertising to the public of prescription pharmaceuticals is prohibited. The advertising of over-the-counter drugs is generally permitted, subject to certain restrictions; but the advertising of drugs which are not yet approved is not permitted.

(f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements)

Under the Federal Act on Foodstuffs and Utility Articles, references which attribute to foodstuffs and supplements the qualities of preventing, treating or curing a human disease, or which create the impression that such effects exist, are prohibited. The Federal Act on Foodstuffs and Utility Articles also defines the permitted references to health-related advertising without reference to disease. Permitted are references to the effect of supplements with a nutritional or physiological effect to promote the health of the population and nutritional and health claims. Permitted health claims are:

• regulated by the Federal Department of Internal Affairs; and
• subject to a licensing requirement.

Any health-related advertising must be accurate and worded in a manner which the relevant public can understand. According to the Federal Ordinance on Food Supplements, the labelling and presentation of food supplements and advertising may not contain any statement claiming or suggesting that a balanced, varied diet generally does not provide adequate amounts of nutrients.

(g) Food

The Federal Act on Foodstuffs and Utility Articles regulates advertising for foodstuffs. The act provides as follows:

• Deceptive or misleading advertising or presentation of foodstuffs is prohibited;
• Products that are not foodstuffs must not be named or advertised in a manner that leads to confusion with foodstuffs; and
• Advertising claims regarding the effect or properties of food products which have not been or cannot be sufficiently proven on a scientific basis are prohibited.

Furthermore, the comments made in question 8.1(f) also apply to health claims in connection with foodstuffs.

(h) Financial products and services

In general, the Federal Act against Unfair Competition also applies to advertising related to financial products. In ads directed to the public for consumer loans/credits, the lender's company name must be immediately and clearly identifiable. The law also requires that clear notices be included in ads:

• stating:
• • the net amount of the loan;
  • the total cost; and
  • the actual annual interest; and
• providing an example of a calculation.

Any misleading statements – for example, in connection with credit savings – and any advertising statements that could lead to non-economic behaviour are prohibited.

Furthermore, in connection with the advertising of financial instruments, the relevant financial market regulations must also be complied with (in particular the Federal Act on Financial Services). Accordingly:

• financial instruments must be clearly and recognisably identified as such; and
• financial services within the meaning of the act must also be identified as such.

9 Enforcement

9.1 On what grounds can the following parties take action against ads in your jurisdiction? (a) Competitors; (b) Consumer associations; and (c) Members of the public.

(a) Competitors

Competitors have standing to claim infringements of the Federal Act against Unfair Competition if an ad:

• is false or misleading; and
• threatens or infringes the business or the economic interests of the competitor.

With respect to IP laws, and to the extent that the competitor is the owner or exclusive licensee of a trademark or work of authorship, the competitor has standing in a trademark or copyright infringement action when asserting that its rights are infringed or threatened by an ad.

(b) Consumer associations

Associations of national or regional importance which are dedicated to consumer protection under their statutes have the right to take action if their economic interests are threatened or infringed by unfair competition.

(c) Members of the public

Members of the public are also entitled to take action within the possibilities of the Federal Act against Unfair Competition, insofar as their economic interests are threatened or infringed due to unfair advertising.

9.2 What mechanisms are available to them to do so, and what are the pros and cons of each?

Consumers and competitors are entitled to bring a complaint before the Swiss Commission for Fairness in Commercial Communication. The commission acts relatively quickly and the procedure is free of charge. However, the remedies are very limited; the commission may only issue recommendations which are also non-binding. Nevertheless, these recommendations have a great practical impact, as they are ultimately also published and discussed in public.

A competitor, consumer or consumer association may also file a lawsuit with a competent court. Declarative relief, injunctive relief and damages are available; and it is possible to request provisional injunctions and, in case of urgency, even ex parte injunctions. In provisional measure proceedings, the claims need only be made credible; and only in the following ordinary proceedings is the standard of proof required. In ordinary proceedings, the claimant may also claim damages.

Finally, filing a criminal complaint may be appropriate, depending on the circumstances of the individual case. Criminal proceedings tend to be less costly but take time. In practice, it will not suffice to trust that the criminal authorities will invest substantial resources in prosecuting claims related to allegedly infringing advertising. The aggrieved party should be prepared to present the relevant facts on its own.

9.3 How does the procedure typically unfold and how long does it take?

A complaint before the Swiss Commission for Fairness in Commercial Communication must state the reasons why a certain ad is unfair. The commission will notify the person responsible for the ad and allow that person to respond to the complaint within an (extendable) deadline of 14 days. Subsequently, one of the three chambers of the commission will make a recommendation. If the proceedings were arbitrary in some way, either party may request a rehearing by the commission en banc, which will then either confirm or lift/change the recommendation. Recommendations are issued relatively quickly, in many cases within four to six months.

In actions for unfair competition before a competent court, the claimant must prove all necessary elements of the cause of action – for example, showing that the ad:

• makes false claims; or
• creates an overall impression which misleads the consumer.

The court may, however, require the advertiser (defendant) to prove statements of facts made in the ad if it deems such burden-shifting fair and reasonable, considering the legitimate interests of the advertiser (defendant) and the claimant. The duration of court proceedings depends on many factors, such as:

• the complexity of the facts and legal issues;
• the number of exchanges of writs; and
• the competent court and its workload.

However, super-provisional measures (ex parte) may be taken by the court within a few days.

With respect to a criminal complaint, the competent criminal authority:

• first assesses whether there is indeed a suspicion of criminal behaviour; and
• then potentially opens criminal proceedings and orders any appropriate measures.

The duration of criminal proceedings also depends on several factors, such as:

• the complexity of the facts and legal issues;
• the nature of proof; and
• the competent criminal authority and its workload.

9.4 What costs are incurred?

Proceedings before the Swiss Commission for Fairness in Commercial Communication are generally free of charge. There are some exceptions – for example, where the claimant is a competitor. The costs of proceedings before a competent court depend, in turn, on:

• the complexity of the matter; and
• the time required (also for the party representatives).

The cantons have also issued different fee regulations which must be consulted in each individual case. In principle:

• the court costs are imposed on the losing party; and
• the losing party must also remunerate the other party.

In criminal proceedings, the costs under certain circumstances may be imposed on the private claimant.

9.5 What defences are typically raised by the advertiser?

The defences raised by the advertiser will depend on the nature of the litigation. In misleading advertising cases, the advertiser often tries to prove that the respective advertising was not misleading by referring to the relevant public/average consumer and their understanding/perception. Where damages are claimed, the advertiser typically claims that the damages have not been sufficiently substantiated by the claimant. No punitive damages can be claimed under Swiss law. Claims for damages must always be supported by convincing evidence.

9.6 What remedies are available?

The applicable laws and the sector-specific regulations provide for a large number of remedies, each of which must be examined on a case-by-case basis. Potential remedies may include:

• (super-)provisional measures and/or permanent injunctions;
• damages (including the disgorgement of profits);
• the impoundment of infringing articles; and
• rectifications.

Typical injunctions will:

• prohibit a threatened infringement; or
• order the defendant to cease and desist from an ongoing infringement.

The Swiss Commission for Fairness in Commercial Communication cannot issue any sanctions but can only make recommendations.

Criminal provisions merely contain monetary sanctions.

9.7 Can the decision be appealed? If so, what is the process for doing so?

Recommendations of the Swiss Commission for Fairness in Commercial Communication may be appealed to the plenary assembly of the commission (see question 9.3).

In civil court proceedings, cantonal law designates the court (sometimes a commercial court) which has sole competence over disputes arising from the Federal Act against Unfair Competition, provided that the amount in dispute exceeds CHF 30,000. Decisions of courts of first instance can be appealed to the Federal Supreme Court through an appeal in civil matters within 30 days of the opening of the complete reasoned decision of the lower court, provided that the remaining requirements for the right of appeal are also met.

In criminal proceedings, a decision of a lower cantonal court may be appealed first to the higher cantonal court and then to the Federal Supreme Court.

10 Trends and predictions

10.1 How would you describe the current advertising landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

A new data protection law regime came into force in Switzerland in September 2023 which:

• sets higher requirements for transparency, information and confidentiality in connection with the processing of personal data; and
• increases the sanctions in case of non-compliance.

This is likely to put more pressure on advertisers to comply with the respective law.

The new Federal Tobacco Products Act will take effect in mid-2024. It will restrict the advertising of e-cigarettes and products comparable to tobacco products in many respects.

Green marketing is on the rise. Although there are currently no plans to introduce new regulations in this regard, the competent authorities are closely monitoring advertisers' activities in this respect, in an effort to prevent the relevant public from being deceived. Advertisers would be well advised to be transparent and substantiate any green claims.

The competent authorities will also continue to monitor activities relating to influencer marketing, in order to prevent the relevant public from being deceived in this respect.

11 Tips and traps

11.1 What are your top tips for companies that advertise their products and services in your jurisdiction and what potential sticking points would you highlight?

• Advertisers should:
• • always be transparent and clear in their commercial communications; and
  • be aware of any sector-specific regulations applicable to the products and/or services they advertise.
• Special attention should be paid to price advertising, as Swiss law has more detailed and stricter regulations in this regard than other jurisdictions.
• When rolling out a campaign on an international level, advertisers should keep in mind that Switzerland is not part of the European Union, and that advertising in Switzerland is subject to its own regulatory regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.