The Marketing Control Act

Act No. 2 of 9 January 2009 relating to the Control of Marketing and Contract Terms and Conditions, etc. (the Marketing Control Act)

The Act shall come into force on 1 June 2009 pursuant to Resolution no. 7 of 9 January 2009. See current Act No. 47 of 16 June 1972 relating to the Control of Marketing and Contract Terms and Conditions (the Marketing Control Act). See also Annex IX no. 30d and Annex XIX no. 7g, no. 2, no. 3a, no. 7d and no. 7f (Directive 2005/29/EC) to the EEA Agreement.

Chapter 1 - General provisions

Section 1 – The content of the Act

The Act relates to the control of marketing, commercial practices and contract terms and conditions in consumer relations, and requires traders to follow good business practice in their transactions with one another.

Section 2 – Good marketing practice, etc.

Marketing shall not conflict with good marketing practice. In the assessment, emphasis shall be given to whether the marketing offends against general ethical and moral views, and to whether it employs offensive means.

The marketer and the designer of the marketing shall ensure that the marketing does not conflict with the equality of the sexes and that it does not exploit the body of one of the sexes or convey an offensive or derogatory appraisal of women or men.

In determining whether the first or second paragraphs have been infringed, emphasis shall be given to whether the marketing stands out as particularly intrusive by reason of its design, format or scope, or other means employed.

Section 3 – Presentation and documentation of marketing

All marketing shall be designed and presented in such a way that it is clear that it is marketing.

Documentation shall be available to substantiate factual claims made in marketing, including as to the properties or effect of products. The documentation shall be in the possession of the advertiser at the time that the marketing takes place.

Section 4 – The geographical scope of the Act

The Act shall apply to acts and terms and conditions that are directed at consumers or traders in the realm, subject to the limitations imposed by other legislation.

With the exception of chapter 6, the Act shall also apply to acts and terms and conditions that take effect abroad, as long as they are also unlawful pursuant to the legislation of the country in which they take effect.

The King may by regulation provide whether and to what extent the Act shall apply to Svalbard and Jan Mayen.

Section 5 – Definitions

In this Act, the following terms shall have the following meanings:

(a)       “consumer”: a natural person who is not primarily acting for commercial purposes,

(b)       “trader”: a natural or legal person who is acting for commercial purposes, and anyone acting in the name of or on behalf of that person,

(c)       “product”: good, service, immovable property, rights and obligations,

(d)       “commercial practice”: any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers,

e)         “guarantee”: any obligation assumed by a trader towards a consumer in connection with the sale of goods, services or other products that grants the consumer supplementary rights.

Chapter 2 - Commercial practices that affect consumers

Section 6 – Unfair commercial practices

Unfair commercial practices shall be prohibited.

A commercial practice shall be unfair if it conflicts with good business practice towards consumers and is likely materially to distort the economic behaviour of consumers, causing them to make decisions they would not otherwise have made.

If a commercial practice is directed at a particular group of consumers, or if only a clearly identifiable group of consumers is particularly vulnerable due to mental or physical infirmity, age or credulity, and the trader should have understood this, the unfairness of the practice shall be assessed from the perspective of the consumer group in question. The protection of vulnerable groups shall not affect the common and legitimate practice of making exaggerated statements which are not meant to be taken literally.

A commercial practice shall always be unfair if it is misleading pursuant to section 7 or section 8, or aggressive pursuant to section 9.

The Ministry shall by regulation lay down the forms of commercial practice that are to be considered unfair in all circumstances.

Section 7 – Misleading acts

A commercial practice shall be considered misleading if it contains false information and is therefore untruthful, or if it is otherwise likely to deceive consumers in relation to one or more of the following elements:

a)         the existence or nature of the product,

(b)       the main characteristics of the product, such as its availability, benefits or risks, the product’s execution, quantity, composition, specifications, accessories, origin, method and date of manufacture or provision of the product, delivery, usage or fitness for purpose, results to be expected from its use, tests or checks carried out on the product, or after-sale service and complaint-handling,

(c)       the extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product,

(d)       the price of the product or how the price is calculated, or the existence of a price advantage,

(e)       the need for a service, parts, replacement or repairs,

(f)        the nature, attributes and rights of the trader or the trader’s agent,

(g)       the rights of the consumers, including the right to replacement or reimbursement, or the risks the consumers may face,

(h)        the trader’s duty to observe industry codes of conduct.

The practice shall nevertheless only be regarded as misleading if it is likely to cause consumers to make an economic decision that they would not otherwise have made.

Any marketing of a product, including comparative advertising, which creates confusion with the product or trade mark, trade name or other distinguishing mark of a competitor, shall also be considered misleading.

Section 8 – Misleading omissions

A commercial practice shall be considered misleading if, in its specific context and pursuant to an overall evaluation, it omits or hides material information that consumers require in the context to be able to make an informed economic decision, or if it presents the information in an unclear, unintelligible, ambiguous or unsuitable manner. In the assessment of whether information has been omitted, account shall be taken of limitations of space or time on the medium used to communicate the commercial practice, and of any measures implemented by the trader to make the information available to consumers by other means.

The practice shall nevertheless only be regarded as misleading if it is likely to cause consumers to make an economic decision that they would not otherwise have made.

In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

(a)       information about the main characteristics of the product, to an extent appropriate to the medium and the product,

(b)       information about the geographical address and identity of the trader and, if applicable, the geographical address and identity of the trader on whose behalf the person is acting,

(c)       information about the arrangements for payment, delivery, performance and complaint-handling, if these depart from the requirements of good business practice towards consumers,

(e)       for products and transactions involving a right of withdrawal or right of cancellation, information about the existence of such a right.

The same shall apply to information about the price inclusive of taxes or, if the nature of the product means that the price cannot reasonably be calculated in advance, about how the price is calculated. Where appropriate, all additional freight, delivery or postal charges shall be disclosed. If the charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable shall be disclosed.

“Invitation to purchase” shall mean a commercial communication which indicates the characteristics and price of the product in a way appropriate to the means of the commercial communication used and thereby enables consumers to make a purchase.

Section 9 – Aggressive commercial practices

A commercial practice shall be considered aggressive if it, in its specific context and pursuant to an overall evaluation, by harassment, coercion, including the use of physical force, or undue influence, is likely significantly to impair the freedom of choice or conduct of consumers with regard to a product. “Undue influence” shall mean exploiting a position of power in relation to consumers so as to apply pressure, even without using or threatening to use physical force, in a way which significantly reduces the ability of consumers to make an informed decision.

In determining whether a commercial practice is aggressive, account shall be taken of:

(a)       timing, location, nature and duration,

(b)       use of threatening or improper language or behaviour,

(c)       the exploitation by the trader of a specific misfortune or circumstance that is so serious that it may impair the consumer’s judgement, of which the trader is aware, to influence the consumer’s decision with regard to the product,

(d)       onerous or disproportionate non-contractual barriers imposed by the trader where consumers wish to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader,

(e)       any threat of unlawful acts.

The practice shall nevertheless only be regarded as aggressive if is likely to cause consumers to make an economic decision that they would not otherwise have made.

Section 10 – Price marking, etc.

A person who in the course of trade sells goods, services or other products to consumers shall, to the extent that this is practically possible, provide information about the prices in such a way that they can easily be seen by the customers.

The Ministry may by regulation provide more detailed rules relating to the implementation of the duty in the first paragraph.

In order to facilitate the evaluation of prices and the quality of goods and services by customers, the Ministry may by regulation order traders to implement measures in addition to those that follow from the requirement in the first paragraph. Such regulations relating to information measures may, among other things:

a)         order marking, notices or other information about price, commercial terms, quality and other properties,

b)         order grading and issue provisions relating to weights and measures and the provision of information about the price per unit (comparison price) of goods offered for sale.

Chapter 3 - Particular forms of marketing, etc.

Section 11 – Demand for payment for goods, services or other products without prior agreement, etc.

It shall be prohibited in the course of trade:

a)         to demand payment for goods, services or other products without prior agreement,

b)         to deliver goods, services or other products with a demand for payment without prior agreement.

In the event of a delivery made contrary to sub-paragraph (b) of the first paragraph, the recipient shall not be obliged to pay, unless otherwise provided by law.

It shall be prohibited in the course of trade to refer consumers who contact traders in connection with an agreement between the parties to a telephone number that charges the consumer a higher price than the basic rate.

Prior to entering into an agreement, the trader shall seek the consumer’s explicit consent for any payment in addition to the remuneration agreed upon for the contractual service. If such consent is not obtained, but is inferred by using default options which the consumer must reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this additional charge.

The Ministry may by regulation issue more detailed provisions on the requirement to document concluded contracts and to store such documentation.

Section 12       The right to opt out of marketing by telephone or addressed mail

Consumers may opt out of marketing by telephone or addressed mail by registering their names, addresses and telephone numbers in the central direct marketing opt-out register (the Central Marketing Exclusion Register). A person who registers in the Central Marketing Exclusion Register may specify that the opt-out is nevertheless not to apply to marketing for the purposes of raising funds for voluntary organisations.

Traders who conduct marketing by telephone or addressed mail shall update their address registers using the Central Marketing Exclusion Register before a consumer is contacted for the first time, and subsequently on a monthly basis.

Both consumers and other natural persons may opt out by contacting the trader directly.

The King may issue regulations providing more detailed rules relating to the Central Marketing Exclusion Register.

Section 13 – Effects of opt-out

It shall be prohibited in the course of trade to direct marketing by telephone or addressed mail to natural persons who have opted out of such marketing via the Central Marketing Exclusion Register or by contacting the trader.

The first paragraph shall not prevent a person who has opted out from expressly requesting traders or organisations to contact him/her despite the opt-out.

An opt-out via the Central Marketing Exclusion Register shall not apply to marketing by telephone or addressed mail in the context of existing customer relationships in which the contracting trader has obtained the contact details of the customer in connection with a sale. The marketing may in such cases only relate to the trader’s own goods, services or other products that correspond to those on which the customer relationship is based. At the time that the name, address and telephone number are obtained, and at the time of any subsequent marketing communication, the customer shall be given a simple and free opportunity to opt out of receiving such communications.

The first to third paragraphs shall apply correspondingly to fundraising activities by voluntary organisations.

Section 14      Prohibition on telephone marketing at certain times

It shall be prohibited in the course of trade to direct marketing by telephone at consumers on Saturdays, Sundays or public holidays, or on weekdays before 09:00 or after 21:00.

Section 15 – Restrictions on the use of certain methods of communication

It shall be prohibited in the course of trade, without the prior consent of the recipient, to direct marketing communications at natural persons using electronic methods of communication which permit individual communication, such as electronic mail, telefax or automated calling systems (calling machines).

The prior consent requirement specified in the first paragraph shall not, however, apply to marketing where the natural person is contacted orally by telephone.

The prior consent requirement specified in the first paragraph shall also not apply to marketing by means of electronic mail where there is an existing customer relationship and the contracting trader has obtained the electronic address of the customer in connection with a sale. The marketing may only relate to the trader’s own goods, services or other products corresponding to those on which the customer relationship is based. At the time that the electronic address is obtained, and at the time of any subsequent marketing communication, the customer shall be given a simple and free opportunity to opt out of receiving such communications.

“Electronic mail” shall in this section mean any communication in the form of text, speech, sound or image that is sent via an electronic communications network, and that can be stored on the network or in the terminal equipment of the recipient until the recipient retrieves it. This includes text and multimedia messages sent to mobile telephones.

The provisions of the E-commerce Act, including section 9 on electronic marketing, shall apply in addition to this provision.

Section 16 – Requirement of disclosure in connection with unsolicited marketing by telephone or addressed mail

Traders who conduct unsolicited marketing by telephone or addressed mail shall disclose the provider of the personal information on which the communication is based.

In the event of unsolicited telephone marketing directed at consumers, the trader shall immediately introduce himself/herself and inform the consumer of the commercial intent of the call. If the call is being made on behalf of another party, the recipient of the call shall be informed of this. The trader shall give notice of the right to opt out pursuant to section 12. Arrangements shall be made to permit the recipient easily and freely to opt out by contacting the trader.

Section 17 – Delivery of unaddressed advertising material and free newspapers

It shall be prohibited in the course of trade to deliver or to instruct an intermediary to deliver unaddressed advertising material or free newspapers to consumers who have clearly stated that they object to this. An intermediary shall not, however, be liable for the delivery if the intermediary has been informed, and has reason to believe, that the material being delivered is not advertising material or a free newspaper.

Inserts distributed with newspapers and other printed matter that are covered by editorial responsibility shall not be considered unaddressed advertising material or a free newspaper pursuant to this provision.

Section 18 – Additional advantage when marketing to consumers

Traders who in marketing offer consumers an additional advantage or an opportunity to obtain such an advantage, for example in the form of discounts, gifts, participation in competitions or games, shall ensure that the terms and conditions for making use of the offer are clear and easily accessible to the consumers.

Chapter 4 - Special provisions relating to the protection of children

Section 19 – General provision

When a commercial practice is directed at children, or may be seen or heard by children, particular care shall be exercised with regard to the impressionability, lack of experience and natural credulity of children.

In the assessment of whether a commercial practice contravenes provisions in or introduced pursuant to this Act, account shall be taken of age, development and other factors that make children particularly vulnerable.

Section 20 – Unfair commercial practices affecting children

In the assessment of whether a commercial practice is unfair pursuant to section 6, emphasis shall be given to whether the commercial practice is directed especially at children. Even if the commercial practice is not directed especially at children, emphasis shall be given to whether the practice, by virtue of its nature or the product, is likely to influence children, and to whether the trader can be expected to foresee the particular vulnerability of children to the practice.

It shall be prohibited to include in advertising direct exhortations to children to purchase advertised products or to persuade their parents or other adults to buy the advertised products for them.

Section 21 – Special provisions relating to good marketing practice towards children

In an assessment pursuant to section 2 of marketing directed at children, emphasis shall be given to, among other things, whether the marketing:

a)         encourages breaches of the law, dangerous behaviour or breaches of ordinary safety norms,

b)        plays on social insecurity, a bad conscience or poor self-confidence,

c)         employs frightening means or is likely to cause fear or anxiety, or

d)        employs aggressive means like violence, sexuality or drugs.

Chapter 5 - Control of contract terms and conditions, etc.

Section 22 – Unfair contract terms and conditions

Terms and conditions which are applied or are intended to be applied in the course of trade with consumers may be prohibited if they are deemed to be unfair to consumers and if general considerations call for such a prohibition. The same shall apply to terms and conditions applied to organisations that are not primarily acting in the course of trade, as long as the contract is to serve the personal purposes of the members.

In the assessment of fairness, emphasis shall be given to the balance between the rights and obligations of the parties, and to the clarity of the contractual relationship.

The first and second paragraphs shall not apply to the content of terms and conditions relating to prices, or to the content of terms and conditions relating to pay and work in employment relationships. The King may issue rules specifying particular contractual relationships to which the first and second paragraphs shall not apply.

Section 23 – Requirements relating to guarantee conditions in consumer relationships

If a guarantee is provided, the guarantee conditions shall provide the following information in a clear and plain manner:

a)         the content of the guarantee, including any limitations and special conditions,

b)         that the rights of the consumer under the applicable legislation, which shall be specified, apply in addition to the guarantee, and that these rights are not affected by the guarantee,

c)         what is required in order to make use of the guarantee, including the duration and geographical scope of the guarantee and the name and address of the guarantor.

d)         the maximum time limit for lodging a complaint under current and more precisely specified legislation, if this is longer than the guarantee period,

e)         that a complaint may in any event be lodged about the product in its entirety under the applicable legislation, which shall be specified, if the guarantee is limited, for example if the guarantee applies only to a part of the product, or if the guarantee only covers some of the repair costs.

Where marketing prior to conclusion of a contract is directed at Norwegian consumers, the guarantee conditions shall be drawn up in Norwegian.

Before the contract is concluded, the guarantor shall inform the consumer of the guarantee and of the consumer’s right to receive the guarantee conditions. When the consumer so requests, he or she shall be provided with the guarantee conditions in a legible form that is stored on paper or in another durable medium that is accessible to the consumer.

Section 24 – Application of the Competition Act

Section 10 of the Competition Act shall not apply to the use of contract terms and conditions that have been negotiated in cooperation with the Consumer Ombudsman.

Chapter 6 - Protection of the interests of traders

Section 25      Good business practice

No act shall be performed in the course of trade which conflicts with good business practice among traders.

Section 26      Misleading business methods

It shall be prohibited in the course of trade to use an incorrect or otherwise misleading representation which is likely to influence the demand for or supply of goods, services or other products. In this chapter, “representation” shall mean any form of announcement or statement made orally, in writing or otherwise, thus including descriptions, pictures, demonstrations, the form, size or type of packaging, etc.
The Ministry may by regulation issue more detailed provisions relating to comparative advertising.

Section 27      Insufficient guidance, etc.

It shall be prohibited in the course of trade to use any representation which is likely to influence the demand for or supply of goods, services or other products when the representation must be considered unfair because it does not provide reasonable or sufficient guidance or introduces irrelevant matters.

Section 28      Trade secrets

A person who has obtained knowledge or possession of a trade secret in connection with an employment or business relationship or a position of trust shall not exploit the secret unlawfully in the course of trade.

The same shall apply to any person who has obtained knowledge or possession of a trade secret through another person’s breach of a confidentiality obligation or otherwise through the unlawful act of another person.

Section 29      Technical aids

A person who has been entrusted with technical drawings, descriptions, formulas, models or similar technical aids in connection with an employment or business relationship or a position of trust shall not use these unlawfully in the course of trade.

The same shall apply to any person who has obtained possession of technical drawings, descriptions, formulas, models or similar technical aids through the unlawful act of another person.

Section 30      Copying the products of another person

It shall be prohibited in the course of trade to use copies of distinguishing marks, products, catalogues, advertising materials or other produced items in such a manner and under such circumstances that the use must be considered an unfair exploitation of the efforts or results of another person, and to present a risk of confusion.

Section 31       Application of incorrect geographical descriptions to wines and spirits

It shall be prohibited in the course of trade to apply a geographical description to a wine or spirit which does not originate from the geographical location designated by the description. This shall apply even if the actual place of origin is also stated, or if the geographical description has been translated or is followed by an expression like “kind”, “type”, “imitation”, or something similar.

Chapter 7 - Enforcement

Section 32 – Administration, organisation, etc.

The Consumer Ombudsman and the Market Council shall monitor compliance with the provisions of this Act, with the exception of Chapter 6.

The Consumer Ombudsman shall be appointed by the King during a cabinet meeting for a term of six years without the possibility of reappointment.

The Market Council shall consist of a chairperson, a deputy chairperson and seven members, all with personal deputies, all of whom shall be appointed by the King. The term of office of the members shall be four years. The Market Council is quorate when the chairperson or deputy chairperson and at least four other members or deputy members are present. Decisions shall be made by ordinary majority voting. In the event of a tied vote, the chairperson’s vote shall be decisive.

The King may issue more detailed regulations regarding the organisation and activities of the Consumer Ombudsman and the Market Council.

If a trade operation that is subject to this Act is also subject to regulatory or control provisions in other Acts, the King may issue more detailed rules concerning the mutual delimitation of the areas of responsibility of the various authorities concerned, and concerning the cooperation between them.

Section 33 – Duty of disclosure

All persons are obliged to provide the Market Council or the Consumer Ombudsman with the information that these authorities require to be able to perform their statutory duties, including information required to determine whether a commercial practice is unfair. The Market Council and the Consumer Ombudsman may request that the information be submitted in writing or orally within a prescribed time limit.

The Market Council and the Consumer Ombudsman may conduct such investigations and inspections, including requests for the delivery of documents, objects, samples of goods, etc., as they consider necessary in order to perform their statutory duties. If necessary, assistance may be requested from the police.

Section 34 – The area of responsibility of the Consumer Ombudsman

The Consumer Ombudsman shall monitor compliance with the provisions in chapters 1 to 5 of this Act and regulations issued pursuant to this Act. The Consumer Ombudsman shall additionally carry out such monitoring as is assigned to the Consumer Ombudsman by other rules and regulations.

The Consumer Ombudsman shall carry out monitoring pursuant to the above provisions based on the consideration of the interests of consumers. Monitoring pursuant to section 2, second paragraph, shall nevertheless be based on the consideration of equality between the sexes, with a particular emphasis on how women are portrayed. Monitoring pursuant to section 10 and the related regulations shall be based on the consideration that consumers must be able to obtain information in the market and easily compare prices.

Section 35 – Processing of cases by the Consumer Ombudsman (the negotiation model)

The Consumer Ombudsman shall, at his own initiative, or in response to requests by third parties, seek to influence traders to comply with the provisions that the Ombudsman is to monitor pursuant to section 34, including by negotiating with the traders or their organisations.

If the Consumer Ombudsman concludes that an act contravenes the provisions mentioned in section 34, he shall seek to persuade the trader to enter into a voluntary settlement to terminate the practice. The same shall apply in relation to the terms and conditions mentioned in chapter 5. The Consumer Ombudsman may require the trader to provide written confirmation that the infringement will cease.

If no voluntary settlement is reached, or if the conditions in section 36 are satisfied, the Consumer Ombudsman may submit the case to the Market Council for a decision. In cases as described in section 37, the Consumer Ombudsman may himself+++ make decisions prohibiting unlawful acts or unfair contract terms and conditions.

The Consumer Ombudsman may submit to the Market Council cases involving matters of principle related to infringement of chapters 1 to 5 or section 3-1, second paragraph, of Act No. 127 of 4 December 1992 relating to broadcasting (the Broadcasting Act), or of regulations issued pursuant to section 3-1, fourth paragraph, of the Broadcasting Act. This shall apply even if a voluntary settlement has been reached.

Section 36 – Cases in which it is not necessary to attempt to reach a voluntary settlement

If the Consumer Ombudsman concludes that an act contravenes the regulations issued pursuant to section 6, fifth paragraph, section 10, or regulations issued pursuant to section 10, section 11, section 12, section 13, section 14, section 15, section 16, section 17, section 18, first and second paragraphs, or section 20, second paragraph, he shall not be obliged to seek to reach a voluntary settlement pursuant to section 35, second paragraph. The same shall apply if the act or the contract term or condition is substantially identical to acts or terms or conditions that the Market Council has previously prohibited, or if the trader is acting in contravention of a written confirmation provided pursuant to section 35, second paragraph.

Nor shall the Consumer Ombudsman be obliged to seek to reach a voluntary settlement if a trader does not, within 48 hours of receiving a request for documentation relating to an allegation of a specific effect used in marketing, send him such documentation. The same shall apply in special cases in which an allegation of a specific effect clearly cannot be documented.

Section 37 – The competence of the Consumer Ombudsman to make decisions

The Consumer Ombudsman may make a decision pursuant to section 39 if no voluntary settlement is reached and the Consumer Ombudsman anticipates that waiting for the decision of the Market Council will be inconvenient or damaging.

The Consumer Ombudsman may also make a decision pursuant to section 39 if the Ombudsman considers the act or the contract term or condition to be substantially identical to acts or terms or conditions that the Market Council has previously prohibited.

The Consumer Ombudsman shall inform the Market Council of the decision. The person at whom the decision is directed may appeal the decision to the Market Council.

Section 38 – The Market Council

The Market Council shall deal with cases submitted to it by the Consumer Ombudsman. If the Consumer Ombudsman decides not to submit a case to the Market Council, the case may be submitted by a trader or a consumer who is affected by the practice or the term or condition, or by a group of traders, consumers or employees. The Market Council may require the Consumer Ombudsman to submit specified cases to the Market Council.

Further, the Market Council shall deal with appeals against decisions of the Consumer Ombudsman pursuant to section 37, and with cases submitted to the Market Council pursuant to section 35, fourth paragraph.

Section 39 – Decisions of the Consumer Ombudsman and the Market Council

The Consumer Ombudsman and the Market Council may, if they conclude that intervention is required in view of the considerations set out in section 34, second paragraph, make individual decisions to impose:

a)         a prohibition pursuant to section 40,

b)        an order pursuant to section 41,

c)         an enforcement penalty pursuant to section 42,

d)        an infringement penalty pursuant to section 43.

Decisions of the Market Council shall not be appealable.

Decisions may also be directed at accessories. However, this shall not apply to decisions prohibiting advertising that contravenes section 3-1, second paragraph, of Act No. 127 of 4 December 1992 relating to broadcasting (the Broadcasting Act) or advertising that contravenes regulations issued pursuant to section 3-1, fourth paragraph, of the Broadcasting Act. Section 48, fifth paragraph, shall apply correspondingly.

Section 40 – Decisions to prohibit

Acts that contravene the provisions mentioned in section 34, first paragraph, may be prohibited. The use or intended use of terms and conditions as described in section 22 may also be prohibited.

Section 41 – Decisions on orders

Orders may be imposed that are considered necessary to ensure compliance with a prohibition imposed by or pursuant to this Act.

An order may be made requiring the disclosure of price information pursuant to section 10, first paragraph, and pursuant to regulations issued pursuant to section 10, second and third paragraphs.

Section 42 – Decisions on enforcement penalties

To ensure compliance with decisions made pursuant to sections 40 and 41, an enforcement penalty shall be fixed that the person at whom the decision is directed will be required to pay in the event of breach of the decision. The fixing of the enforcement penalty may be omitted if special circumstances so indicate.

The enforcement penalty may be fixed as a running charge or as a lump sum. When determining the enforcement penalty, emphasis shall be given to the consideration that it must not be profitable to breach the decision.

A final decision requiring payment of an enforcement penalty shall constitute a ground for enforcement of the amount due.

In special cases, accrued penalties may be reduced or waived.

The King may by regulation provide more detailed rules relating to the imposition of an enforcement penalty.

Section 43 – Decisions on infringement penalties

In the event of intentional or negligent infringement of regulations issued pursuant to section 6, fifth paragraph, section 10, or regulations issued pursuant to section 10, section 11, section 12, section 13, section 14, section 15, section 16, section 17, section 18, first paragraph, or section 20, second paragraph, which either is considered material or has taken place repeatedly, an infringement penalty may be fixed that is to be paid by the person at whom the decision is directed.

In the determination of the amount of the penalty, emphasis shall be given to the severity, scope and effects of the infringement.

Payment of the infringement penalty shall fall due four weeks after the decision is made. A final decision relating to an infringement penalty shall constitute a ground for enforcement of the amount due.

The King may by regulation provide more detailed rules relating to the assessment of infringement penalties.

Chapter 8 - Cross-border enforcement, etc.

Section 44 – Scope

The provisions in this chapter apply to acts undertaken in the course of trade that contravene provisions which pursuant to the EEA Agreement protect the collective interests of consumers, as these provisions have been incorporated into Norwegian law.

Sections 45 and 46 shall apply to acts that contravene provisions implementing the EEA legislation that is included in Annex 1 to Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of consumers’ interests. The provisions shall only apply to acts performed in the course of trade in Norway that produce their effects in another EEA state or acts performed in the course of trade in another EEA state that produce their effects in Norway.

Section 47 shall apply to acts that contravene provisions implementing the EEA legislation that is included in the annex to Regulation (EC) No 2006/2004 of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws. The provision shall only apply if the legal breach affects consumers that are resident in another member state than the one where the legal breach originated or took place, where the trader is established, or where the evidence is located.

The Ministry shall issue regulations providing which provisions protect the collective interests of consumers at any given time pursuant to the second and third paragraphs.

Section 45 – Right to submit cases to the Consumer Ombudsman and the Market Council

Foreign authorities and organisations that are included on the list of qualified entities that is published by the EU Commission in the Official Journal of the European Communities and its EEA Supplement pursuant to the provisions of the EEA Agreement may submit a case to the Consumer Ombudsman and the Market Council with a view to securing a prohibition on acts as described in section 44, second paragraph.

Section 46 – Authorisation of authorities and organisations

The Ministry shall authorise Norwegian authorities and organisations that are permitted to act as a party to cases in other EEA states with a view to securing a prohibition on acts as described in section 44, second paragraph. The Ministry shall inform the Standing Committee of the EFTA States of the names and objectives of the designated authorities and organisations with a view to their inclusion on the list referred to in section 45.

The Ministry may by regulation provide more detailed rules relating to approval pursuant to the first paragraph.

Section 47 – Incorporation of the regulation on cooperation between national authorities responsible for the enforcement of consumer protection laws

Annex XIX no. 7f to the EEA Agreement (Regulation (EC) No 2006/2004) on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) shall have the force of law subject to the adaptations that follow from the annex itself, from Protocol 1 to the Agreement and otherwise from the Agreement.

The Ministry shall designate the relevant authority that is to enforce the provisions of the Regulation and a central liaison office.

Chapter 9 - Penalties and civil sanctions

Section 48 – Penalties

A person who materially infringes section 6, fourth paragraph, see also first paragraph, regulations issued pursuant to section 6, fifth paragraph, section 11, section 13, section 15, section 20, second paragraph, section 26, section 27, section 28, section 29, or section 30, shall be subject to fines, imprisonment of up to six months, or both, unless a stricter penal provision applies.

Negligent material infringement of section 7 or section 8, see also section 6, fourth paragraph, see also first paragraph, section 11, first paragraph, section 26 or section 27 shall be subject to fines, imprisonment of up to six months, or both, unless a stricter penal provision applies.

In the assessment of whether an infringement is material, particular emphasis shall be given to the scope and effects of the infringement and the degree of guilt. If the person or business has previously been ordered to pay a fine or infringement penalty for infringement of this Act or regulations issued pursuant to this Act, penalties pursuant to the first and second paragraphs may be applied even if the infringement is not material.

A person who intentionally or negligently breaches a decision made pursuant to this Act shall be subject to fines, imprisonment of up to six months, or both, unless a stricter penal provision applies.

No penalty shall be imposed in relation to an infringement committed by a sales assistant, office assistant or similar subordinate employee if the infringement has essentially resulted from that person’s dependent relationship with the trader.

No penalty shall be imposed in the event of an infringement of section 28 if knowledge or possession of the trade secret was acquired in a position of employment or trust, or through a breach of duty in such position, and more than two years have elapsed since the position ceased to exist.

Section 48a – Penalities and civil sanctions in the event of unlawful use of geographical descriptions

Use of geographical descriptions in infringement of sections 25, 26 or 31 shall be subject to fines or imprisonment of up to one year.

In the case of aggravating circumstances, the punishment shall consist of fines or imprisonment of up to three years. In the assessment of whether aggravating circumstances exist, particular emphasis shall be given to the damage to the injured party, including the harm to said party’s business reputation, the gain obtained by the infringing party, and the scope of the offense in general.

In the case of infringement of the first and second paragraphs, prosecution may be waived if it is deemed to be not required in the public interest, cf. section 62a of the Criminal Procedure Act.

Provisions regarding sanctions in response to trademark infringement in chapter 8 of the Trademarks Act, except for sections 60, 61 and 61a, shall apply correspondingly to the use of geographical descriptions in infringement of sections 25, 26, or 31. 

Section 48b Remuneration and compensation in the event of infringement of certain provisions in chapter 6

In the event of wilful or negligent infringement of sections 28, 29 and 30, the infringing party shall pay to the injured party:

a) Remuneration equivalent to a reasonable license fee for use, as well as compensation for damages resulting from the infringement that would not have occurred in the event of licensing

 

b) Compensation for damages resulting from the infringement, or

 

c) Remuneration corresponding to the gain obtained as a result of the infringement.

Remuneration and compensation shall be set in accordance with the element in litras a through c that is most beneficial for the injured party.

The first paragraph shall apply correspondingly for cases involving aiding and abetting.

The first and second paragraphs shall apply correspondingly to infringements of sections 25 and 26 that consist of imitating another party’s product, distinguishing marks, advertising material or other produced items.

Section 49      Rules relating to criminal procedure

The prosecuting authority may in connection with criminal proceedings apply for a court order to secure the cessation of the unlawful act and to prevent its repetition.

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