News Legislative and Finance Rules 2007

Two legislative decrees approved on August 2, 2007 by the Italian Cabinet of Ministers on unfair commercial practices and on misleading and comparative advertising

Two legislative decrees were approved on August 2, 2007 by the Italian Cabinet of Ministers on unfair commercial practices and on misleading and comparative advertising, and namely:

- Legislative decree no. 146, which implements community Directive 2005/29/CE on unfair business-to-consumer commercial practices;
- Legislative decree no. 145 which regulates business-to-business misleading and comparative advertising.

Put together, the aforementioned two legislative decrees have innovated Italian advertising legislation.

Here are the most important novelties.

The central role of the Italian Antitrust Authority (Autorità Garante della Concorrenza e del Mercato) as a body which supervises advertising - both as regards business-to-business and business-to-consumer commercial relations - has been confirmed and, as hoped, its powers of intervention and inquiry have been extended (especially its power to act ex officio).

In the present case, Legislative Decree no. 146 has amended the previous legislation on misleading advertising contained in the Consumer Code (articles 18-27 of Legislative Decree no. 206 dated September 6 2005), extending the scope of protection thereof.

Not only is unlawful misleading and comparative now prohibited but “any action, omission, conduct or commercial statement, including advertising and marketing conducted for the purpose of promoting, selling or supplying products to consumers” (that is to say any unfair commercial practice which is a “breach of the duty of professional diligence” or is “false or significantly alters consumers’ behaviour towards a product”)is also prohibited.

Among those practices which are defined as being unfair, we also find “unfair” and “aggressive” practices, the former being divided into “misleading acts and omissions”.

Actions (or more accurately activities) aimed at promoting or selling products are considered to be misleading in the event that they:

• contain false information and are, therefore, not true
or
• mislead or are capable of misleading in any manner whatsoever (even in terms of the overall impression given thereby), the average consumer, even if the information is correct
and
• in any event induce or are capable of inducing consumers to take decisions of a commercial nature which they would not otherwise have taken.

The criteria which have been indicated in the directive and which have been introduced into Italian law are of an objective nature: It is not required, therefore, that actual losses be suffered, since the risk that the consumer may be misled constitutes, in itself, a misleading practice.

Omissions, i.e. information which has not been provided to the consumer, are considered misleading commercial practices when:

• Important information which the average consumer needs in order to make an informed decision is omitted;
• Such important information is concealed or presented in an obscure, incomprehensible, ambiguous or untimely manner;
• The commercial intent - when it is not evident from the general context - is not indicated.

A commercial practise is considered to be “aggressive” when “harassment or coercion (including physical force or mental duress) is applied which restricts or is capable of restricting the average consumer’s freedom of choice or conduct vis-à-vis a product and, therefore, induces, or is capable of inducing, the latter to take a decision of a commercial nature which he would not have otherwise taken”.

Legislative decree no. 145, by substantially reproducing those provisions and principles incorporated in the Consumer Code, specifically regulates the misleading and comparative advertising conducted by “professionals”, that is to say by commercial operators.

go back to News > Legislative and Finance Rules
go back to News Main Index