The Norwegian Consumer Authority’s Guideline on Labelling Retouched Advertising
From July 1st, 2022, the Marketing Control Act Section 2 Second Paragraph has required a standardized label to be applied to all advertising in which body shape, size, or skin is altered through retouching or other manipulation.
The purpose of this new legal rule is to combat body-image pressure in society which can be attributed to idealized people in advertising. The requirement to label retouched or manipulated advertising is set to raise awareness among consumers, particularly children and youths, that the persons in the advertisement deviate from reality. The aim is to reduce the use of idealized bodies that are retouched in advertising.
The Norwegian Consumer Authority has been given the responsibility to supervise and ensure that traders and other actors comply with the labeling requirement. For more information regarding the Norwegian Consumer Authority, see further down.
The guideline is mainly meant for advertisers and persons who design advertising. However, also others may find the guideline helpful in understanding the labeling requirement for retouched and manipulated advertisements.
What is “retouching or other manipulation”?
“Retouching or other manipulation” means alterations made during or after the taking of a picture or film which alters the person’s body shape, size, or skin. Since the rule also mentions “manipulation”, the use of filters and lenses that alternates the appearance of a person in the photo or film is also covered by the labeling requirement.
Thus, there is a duty to label retouched or manipulated advertisements when alterations cause the body of the person in the advertisement to deviate from reality.
What forms of advertising must be labelled?
The Marketing Control Act does not define what “advertising” is. However, it can be said to be any action that takes place intending to promote a trader’s sale of goods or services.
The Marketing Control Act is industry-neutral and sector-wide, which means that the Act covers all types of products, such as goods and services. Furthermore, the Marketing Control Act is technology-neutral and, therefore, applies to all types of marketing, regardless of where and how it is presented.
Thus, the labeling requirement applies to all types of advertisement, hereunder still and moving pictures and films, displayed in traditional and social media, such as (non-exhaustive list):
- Physical advertising material used in shops, stands, fairs, and customer events, for example, advertising brochures, product packaging, etc.
- TV and cinema advertising
- Billboards (superboards, etc.)
- Advertisement screens and posters
- Websites, for example, online shops
- Invitations to customer events and newsletters
- Posts, stories, reels, and so forth, on Instagram, TikTok, Snapchat, YouTube, etc.
- Stock images
The labeling requirement applies for advertising published from July 1st, 2022, cf. the Regulations Relating to the Labelling of Retouched Advertising Section 2 (hereinafter the Regulation) (only available in Norwegian). The rule does not have a retroactive effect. If a trader has launched advertising material that is retouched or manipulated before July 1st, for example, product packaging, this must not be labeled. On the other hand, if old advertising material is relaunched after July 1st, for example, the advertisement has been «off the screen» for a while, it is considered launched as new advertisement material, and the labeling requirement applies.
Primarily, portrait pictures of employees or others, for example on a website of a business, are information regarding the trader. Therefore, these types of pictures are exempt from the labeling requirement. However, retouched or manipulated portraits must be labeled if used in advertising. The assessment of whether a portrait picture is considered used in the advertisement must be assessed in each case, and if it is intended to promote the sale of products or services of the trader.
What changes must be labelled?
Following the Marketing Control Act Section 2 Second Paragraph, all retouching and other forms of manipulation of the “body shape, size, or skin” in advertising, are required to be labeled. The term “body” includes head and face. In other words, the labeling requirement applies whenever alterations have been made to the person in the advertisement’s body or face shape, body or face size, or the body’s skin.
The Regulation do not specify any requirements of the scope of the alterations before the labeling requirement is triggered. As a result of that, the advertisement must be labeled if one removes one single pimple, tattoo, wound, etc. Furthermore, one is required to label the picture or film regardless of if the alteration contains beautification or not.
Provided below are some examples of retouching and manipulation which triggers the labeling requirement. Certain types of retouching and manipulation will fall into both the “shape” and “size” categories. Note that these are only examples and that other alterations to body shape, size, or skin may also fall within the provision, requiring the advertisement to include the standardized label.
Examples of “shape” retouching:
- Changing face shape, for example, narrower jaw, higher cheekbones, or smaller nose.
- Removing body mass, for example, around the waist, or from the thighs, or upper arms.
- Altering shoulder width.
- Lengthening arms, or legs.
- Changing the shape of eyebrows or teeth.
- Changing hair shape, for example, by increasing hair volume, concealing a receding hairline, or hair loss.
Examples of “size” retouching:
- Enlarging lips, muscles, breasts, eyes, eyelashes, or eyebrows.
- Reducing the size of breasts, feet, or hands.
Examples of “skin” retouching:
- Smoothing skin, for example, by adding makeup digitally.
- Removing or adding wrinkles, freckles, moles, or birthmarks.
- Removing or adding scars, individual, or multiple pimples, acne, cellulite, bruises, wounds, or stretch marks.
- Altering skin color, for example making the skin look more tanned or paler, or changing lip color.
- Removing or smoothing skin imperfections, such as pigment spots, sun damage, or burst blood vessels.
- Removing or adding body hair.
What changes do not have to be labelled?
Color on other body parts than the skin
The Marketing Control Act Section 2 Paragraph Two states that alterations in the “shape, size, or skin” of a body must be labeled. Because of the wording in the rule, it does not cover retouching or manipulation of the color of body parts that are not regarded as “skin”.
This means that alterations in the color of hair, teeth, eyes, eyebrows, eyelashes, or body hair do not have to be labeled. However, as soon as the shape or size of teeth, eyes, eyelashes, or eyebrows is altered, the advertisement must be labeled.
Actions before the picture or film is taken, such as makeup, styling, cosmetic treatments, lighting (reflectors, flash, LED light), and more, do not have to be labeled.
The removal of elements that are not considered natural parts of the body, such as yogurt, crumbs, snot, and more, falls outside the scope of the rule. Therefore, the labeling requirement does not apply to the removal of such elements. However, in some cases, the picture or film must be labeled when such removal has been done. In this assessment, one must look at how extensive the removal is on, especially, the skin, and whether this can cause body-image pressure.
General post-editing of pictures or films, for example, brightness, contrast, saturation, black and white editing, among other things, does not have to be labeled. However, general post-editing may in some cases, especially if the post-editing appears as speculative in the shape, size, or skin of the body, be labeled. Whether post-editing prompts the advertisement to be labeled must the assessed from case to case. Relevant considerations are the extent of the editing and whether it is likely to entail body-image pressure.
Retouching or manipulation of other matters than a person in the photo or film does not have to be labeled, such as buildings, nature, etc. If one or more people are completely removed from the picture or film, there is no requirement to label the advertisement.
The purpose of the label requirement is to counteract body-image pressure and applies to alterations in the relevant advertising person’s body, size, or skin. Changing other matters in the picture or film does not contribute to body-image pressure.
Parodic or humoristic
Retouching or manipulation with a parodic or humoristic purpose, does not have to be labeled when this type of alteration makes it obvious that the body has been retouched or manipulated. Alterations done with the purpose to be parodic or humoristic are not likely to create body-image pressure and therefore fall outside the scope of the rule. However, these advertisements must be assessed individually.
Who is responsible for labelling retouched advertising?
The obligation to label retouched or manipulated advertising applies to advertisers and others who create advertising.
An “advertiser” may be a person, business, or organization, that purchases marketing services to have their advertising distributed to consumers.
“Others who create advertising” are often one that receives some form of payment, such as influencers, profiles, YouTubers, photographers, graphic designers, filmmakers, and so on.
If a Norwegian advertiser receives and uses advertisement material from foreign advertisers, the Norwegian advertiser is responsible for assessing whether the advertisement needs to be labeled. Foreign advertisers and creators must label retouched or manipulated advertisement if it is targeted toward Norwegian consumers, see Section 4 First Paragraph in Marketing Control Act.
Actors who do not sell goods or services to consumers must not label retouched or manipulated pictures or films with the label. These actors can be political parties, clubs and associations, non-profit organizations, and the like. If these actors sell goods or services to consumers, such as calendars, books, or clothing, the labeling obligation will occur if the advertisement is retouched or manipulated.
Regarding influencers, profiles, YouTubers, and others
Influencers, profiles, YouTubers, and others, often collaborate with advertisers and create the advertisement on behalf of the advertiser. In case the advertisement contains retouched or manipulated bodies, their own or others, the labeling requirement will apply.
“Advertising” entails all actions that promote a trader’s sale of a good or service, and where an influencer, profile, YouTuber, or other, receives money or other benefits to mention or expose. It is advertising regardless of whether what is posted is the influencer’s honest opinion or whether the advertiser decides how the advertisement should be designed. For more information, see our guide on advertising in social media (only available in Norwegian).
If the influencer, profile, YouTuber, or other, publishes self-promotion, they are considered as an advertiser. Self-promotion is advertising for one’s own business.
If a film on YouTube, or a similar platform, contains a clearly defined advertising segment where consumers immediately realize that they are seeing advertising, it is sufficient that only the advertising segment is labeled with the standardized label in that film. If the entire film is a collaboration between the YouTuber and advertiser, and the YouTuber has retouched or manipulated parts of the whole film, the film must be marked with the label. Read about the requirements that apply to the labeling of films further down.
Administrative decisions regarding the breach of Section 2 Second Paragraph may also be directed at accessories to the offense, see the Marketing Control Act Section 39 Third Paragraph.
Concerning the labeling requirement, this means that a person or company who contributes to the display of unlabeled advertising to Norwegian consumers can be held liable for this. Therefore, one has the responsibility to label or remove unlabeled advertising one becomes aware of. Those who may be subject to complicity should take responsibility for labeling retouched or manipulated advertising before it is published in Norway.
The accessory liability includes physical persons, for example, the general manager, the chair of the board, or board members of a company. It also applies to other companies that have contributed to the offenses, such as broadcasters, advertising agencies, editors, and publishers.
About the label
*Translated into English: “RETOUCHED PERSON ADVERTISEMENT”
The Regulation set out requirements regarding the design, size, and placement of the label. Following are the requirements that follow from the Regulation Section 1:
Requirements applicable to static and moving pictures:
- The label must cover approximately 7 % of the image surface.
- The label must contrast with the background. The label will be available in light and dark versions. Use the label which will be most visible against the background in the individual pictures.
- The label must be placed in the upper left corner of the advertising, below any username and any filters used on social media platforms, unless another mandatory label is displayed in this corner. In such a case, the label must be placed in a different corner.
Requirements applicable to films:
- The label must cover approximately 7 % of the image surface.
- The label must contrast with the background. The label will be available in light and dark versions. Use the label which will be most visible against the background.
- The label must be placed in the upper left corner of the advertising, below any username and any filters used on social media platforms, unless another mandatory mark or label must be displayed in this corner. In such a case, the label must be placed in a different corner.
- The label must be displayed for the entire duration of the film.
The Marketing Control Act Section 3 First Paragraph requires marketing materials to be identified as such. Since the label contains the word “REKLAME” (advertisement), the use of the label will also fulfill the requirement to identify advertising. In practice, this means that posts published on social media, by for example influencers, do not have to be additionally labeled as advertising. See also our Guidance on Labelling in Social Media (only available in Norwegian).
The label must be applied in addition to any marks or labels which an advertiser, broadcaster, or others, is required to display by other legal provisions, for example, the product placement provisions of the Broadcasting Act.
The standardized label must be displayed for the entire duration of the film, even if the retouched or manipulated person is not visible during the whole film.
The label is available both in the Regulation as an attachment and on our website. Also, we have developed a dedicated service to help advertisers and others that creates advertising to add the label to pictures and films. The Norwegian Consumer Authority emphasizes the independent responsibility of advertisers and influencers to ensure that advertising is correctly labeled following the legal provisions.
The role of the Norwegian Consumer Authority
The Norwegian Consumer Authority is an independent administrative body with the responsibility of supervising measures in the market and seek to exert influence on traders to observe the regulatory framework. The Norwegian Consumer Authority is also responsible for the public complaints processing service for consumer cases. The Marketing Control Act regulates how the Norwegian Consumer Authority operates and is the most important law the Norwegian Consumer Authority enforces. For more information, see our website.
As stated in the introduction, the Norwegian Consumer Authority enforces the labelling requirement.
Dialogue with commercial parties and the provision of reliable information are important tools in this respect.
Breaches of the legal provision may result in financial penalties in the form of enforcement penalties or infringement penalties.
An enforcement penalty is a penalty intended to ensure future compliance with legal obligations. The Norwegian Consumer Authority issues accruing and one-off enforcement penalties under Section 41 Second Paragraph of the Marketing Control Act.
The Norwegian Consumer Authority may also penalize commercial parties by imposing an infringement penalty under Section 42 First Paragraph first sentence of the Marketing Control Act. An infringement penalty is a penalty for a previously committed violation and is therefore not dependent on the issue of a preceding decision which is then breached.
Decisions of the Norwegian Consumer Authority can be appealed to the Market Council.
Documentation in connection with an inspection
If the Norwegian Consumer Authority suspects that a picture or a film has been retouched, the person subject to the labelling requirement must prove that this is not the case. Therefore, the Norwegian Consumer Authority recommends saving all original files and keeping these available for submission to the Norwegian Consumer Authority on request.