New regulations for product placement in audio-visual content

In The Netherlands, product placement is only allowed in entertainment-like television programmes offered by commercial media services. The Dutch Media Act 2008 – applicable to linear broadcasting and non-linear (on-demand) offering of content – states that product placement means the inclusion of, or reference to, a product, a service or a trade mark within the scope of a programme in return for payment or for similar consideration. The Dutch Media Authority elucidates the regime for product placement in the new Regulations on product placement for commercial media services 2014 (http://www.cvdm.nl/wp-content/uploads/2015/07/Regeling-Productplaatsing.pdf) that entered into force on 1 August 2015.

Product placement vs. sponsoring

Product placement differs from sponsoring. Sponsoring is the (financial) contribution to the production or acquisition of a programme. Sponsored programmes have to be clearly identified as such at the beginning and/or end of a programme. The sponsor's products, services and name or trademark may be displayed within the programme, provided that viewers are not encouraged to purchase goods or services from the sponsor. The sponsor's products or services are not allowed to be incorporated in the storyline. Product placement on the other hand, regards the situation in which a product, service or trademark does form part of a programme's storyline. The provider of goods or services contributes specifically (financially or otherwise) for this type of use.

Public media services (broadcasters) in The Netherlands are subject to substantially more stringent rules when it comes to product placement and sponsoring. Product placement is not allowed at all and the possibilities for sponsoring are restricted to programmes of an informative or educational nature. The sponsor's services or goods may never be included within such a programme in the event that the sponsor has contributed financially. Displaying the sponsor's name or trademark within the programme is still allowed under certain circumstances, provided that there is no undue prominence.

The new regulations

• The new regulations clarify the type of commercial media services' programmes in which product placement is allowed, i.e.:
• films, series, sports programmes and light entertainment programmes. Light entertainment programmes are programmes of an amusing nature which do not inform consumers or inform or analyse news, current events of politics; and
• programmes whose main purpose is to entertain, despite the fact that these programmes contain news or current events.

The regulations also indicate how product placement is allowed:

• a product (including its features) may be mentioned, discussed or actively used – although not too long and frequently –, but specific commendations are not allowed;
• product placement must be integrated in the programme in a natural manner, taking account of the context and the format and structure of the programme;
• product placement shall not be allowed if the content of the programme is affected by the product placement in a way which causes the media services' independency to be at stake;
• product placement for medical treatments is not allowed; and
• programmes including product placement should be clearly identified as such at the beginning and at the end of the programme.

Review of European media law

The European Commission recently revealed its plans for a 'Digital Single Market' (http://europa.eu/rapid/press-release_IP-15-4919_en.htm) – an ambitious project aimed at reforming the legal framework applicable to e-commerce (both B2B and B2C) and digital media within the EU. Its purpose is to enhance consumer protection and reduce barriers for both providers and customers. An important pillar of the Digital Single Market is the review of EU media law. Specific proposals in this regard are expected to be made in 2016. The Audiovisual Media Services Directive (2010/13/EU), which has largely influenced the Dutch Media Act 2008, is likely to be amended – possibly also where it regards the rules for advertising and product placement. Until that time, the new regulations as discussed will somewhat clarify the rules for product placement in The Netherlands.