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Prof. Alessandro Palmieri

Prof. Alessandro Palmieri. ITALIAN EXPERIENCE Second Annual Unfair Commercial Practices Conference March 13 th , 2014 Budapest. MISLEADING HEALTH ADS IN ITALY A CONTINUOUS FIGHT. WATER OF WEALTH. WATERS OF HEALTH. ITALIAN EXPERIENCE. GENERAL FRAMEWORK. LEGISLATION.

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Prof. Alessandro Palmieri

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  1. Prof. Alessandro Palmieri ITALIAN EXPERIENCE Second Annual Unfair Commercial Practices Conference March 13th, 2014 Budapest

  2. MISLEADING HEALTH ADS IN ITALYA CONTINUOUS FIGHT

  3. WATER OF WEALTH

  4. WATERS OF HEALTH

  5. ITALIAN EXPERIENCE

  6. GENERAL FRAMEWORK

  7. LEGISLATION • Consumer Code (as amended in 2007 and subsequently) • Prohibition and Enforcement • sec. from 18 to 27 quater • Part II – Education, Information, Commercial Practices, Advertising • Title III - Commercial Practices, Advertising and other Commercial Communications • Other provisions • sec. 2(2)(c-bis): consumers’ bill of rights • sec. 140-bis(2)(c): class action

  8. ENFORCEMENT BY AGCM • Consumer code • sec. 27 : AGCM main enforcer • Injunctions: orders to cease the practice and/or measures capable to reduce the negative effects of the practice • Fines: from 5,000 to 5,000,000 € • Authority’s decisions are subject to judicial revision before the Administrative Courts

  9. ENFORCEMENT BY COURTS OF ORDINARY JURISDICTIONS • Individualsuits • Collectiveactions • Class actions • Milan Court of Appeals: do-it-yourself detection test of flu viruses • Collectiveinjuctions

  10. HEALTH PROTECTION • Consumer Code • sec 2(2)(a): the list of fundamental rights starts with the protection of health • Section 21(3) “It is considered to be an unfair commercial practice, in relation to products likely to harm the health and safety of consumers, to fail to state this likelihood such that consumers are induced to neglect to observe the normal standards of prudence and vigilance” [translation by the AGCM] • Provision not covered by UCP Directive

  11. Products likely toharm the health and safety • A) Failure to state the risks; • B) Ambiguous statements: • unclearness of the words used to describe the risks, or • reassurance for the absence of risks • e.g. AGCM Case PS2115 – Red Bull (2009): advertising claim regarding an energy drink which foregrounded the beneficial effects on driving performance during prolonged trips

  12. Incentives to get involved into objectively hazardous activities

  13. Advertising ofdrugs and medical devices • Fairness must be assessed only by the Ministry for Health • (Regional Administrative Court for Lazio, judgment no. 6962 of 2012)

  14. HEALTH CLAIMS • Several harsh rulings by the AGCM an infringement of the rules and principles that pertain to health claims (as well as to nutritional claims) may amount to the commission of an unfair practice

  15. DATA AVAILABLE FOR 2012

  16. Agel Case • AGCM Case PS 4893 – Agel Enterprises (2012) • Multilevel distribution scheme for the promotion and distribution of nutritional supplements: unlawful • (A) features of a typical pyramid scheme; • (B) claims • not approved at the European level • not supported by adequate scientific evidence

  17. Concurring competence ofHealth Authorities? • Project of the Italian Government to introduce specific sanctions for incorrect health claims (May 2013 • Initiative proved to be not successful • the Italian Government, following the advice of AGCM, announced the withdrawal of the draft (January 2014)

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