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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
Harmful and offensive advertising is regulated by the above-mentioned rules and regulations.
According to the Consumer Code, harmful and offensive advertising may fall under the definition of aggressive advertising commercial practices that, as such, are prohibited. The aggressive nature of a commercial practice depends on its nature, timing, form and the possible use of physical and verbal threatening. In particular, a commercial practice can be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, whether by harassment or coercion, including the use of physical force or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise. The Consumer Code, in accordance with the Directive 29/2005/CE, specifies which kind of commercial practices are to be considered aggressive in all circumstances.
In addition:
pursuant to the IAP Code, marketing communication should:
- not offend moral, civil and religious beliefs;
- respect human dignity in every form and expression and should avoid any form of discrimination, including that of gender; and
- not contain statements, audio or visual treatments depicting physical or moral violence or, that may be considered indecent, vulgar or repugnant to prevailing standards.
pursuant to Legislative Decree no. 208/2021, marketing communication must:
- not undermine respect for human dignity;
- not involve or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief disability, age, or sexual orientation;
- not encourage behaviour which is detrimental to health or safety; and
- not encourage behaviour which is seriously detrimental to the protection of the environment.
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
A commercial practice shall be unfair and, therefore, prohibited under the Consumer Code, when it is contrary to the requirements of professional diligence and it materially distorts or is likely to materially distort the economic behaviour of the average consumer whom it reaches or to whom it is addressed, inducing the consumer/addressee to undertake a commercial decision that he or she would not otherwise have undertaken.
“Professional diligence” is the normal standard of skill and care that consumers reasonably expect from a trader, taking into consideration the general principles of fairness and good faith in the trader’s field of activity.
Misleading actions, misleading omissions and aggressive practices fall within the definition of “unfair commercial practices”. In particular, a commercial practice is considered to be:
misleading if it contains false information, although factually correct, in any way, including in its overall presentation, misleads or is likely to mislead the average consumer and, in any case, induces or is likely to induce him to take a commercial decision that he would not otherwise have taken.
a misleading omission when the trader, taking into account all the characteristics and circumstances of the case, as well as the limitations of the medium of communication:
- omits relevant information that the average consumer needs in that context to take a commercial decision;
- omits or presents in an obscure, incomprehensible, ambiguous or untimely manner the relevant information regarding the product or service; or
- does not indicate the commercial nature of the practice itself,
and, thereby, induces or is likely to induce the average consumer to undertake a commercial decision that he or she would not otherwise have made.
- aggressive when, taking into account all the characteristics and circumstances of the case, through harassment or coercion, including the use of physical force or undue conditioning, restricts or is likely to considerably restrict the freedom of choice or behaviour of the average consumer in relation to the product and, therefore, induces them or is likely to induce them to take a commercial decision of that they would not otherwise have taken.
The Consumer Code also contains a list of practices that are, in any case, considered misleading or aggressive and therefore prohibited, regardless of whether they have any effect on the consumer’s behaviour. Among the practices considered misleading per se, include:
- presenting the rights conferred on consumers by law as an inherent feature of the offer made by the trader;
- exhibiting a trust mark, quality mark or equivalent mark without having obtained the necessary authorisation;
- making factually inaccurate statements regarding the nature and extent of risks to the personal safety of the consumer or his or her family if he or she did not purchase the product;
- promoting a product similar to one made by another manufacturer in such a way as to deliberately mislead the consumer into believing, contrary to the truth, that the product is made by the same manufacturer; and
- stating, contrary to the truth, that a product can cure diseases, dysfunctions or malformations.
Similarly, the IAP Code prohibits misleading commercial communication. In particular, marketing communication:
- must be honest, truthful and correct; and
- must avoid statements or representations that could mislead consumers, including omissions, ambiguity or exaggeration that is not obviously hyperbolical, particularly regarding the characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes or awards.
In assessing whether or not a marketing communication is misleading, the benchmark is the reasonable consumer belonging to the relevant target group.
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
Alcohol
Alcohol advertising is regulated by the IAP Code and by Law no. 125/2001 on alcohol and alcohol-related problems.
According to the IAP Code, marketing communication concerning alcoholic beverages should not be in contrast with the obligation to depict styles of drinking behaviour that project moderation, wholesomeness and responsibility. This principle aims to safeguard the primary interest of the population in general, and of children and young people in particular, in a family, social and working environment safeguarded from the negative consequences of alcohol abuse.
In particular, marketing communications must not:
1. encourage excessive, uncontrolled, and hence harmful consumption of alcoholic beverages;
2. depict an unhealthy attachment or addiction to alcohol, or generally lead people to believe that resorting to alcohol can solve personal problems;
3. target or refer to minors, even only indirectly, or depict minors or people who clearly appear to be minors, consuming alcohol;
4. make direct use signs, symbols, drawings, fictitious characters or real people of primary appeal to minors, that may arouse the direct interest of minors;
5. associate the consumption of alcoholic beverages with the driving of motorised vehicles;
6. induce the public to believe that the consumption of alcoholic beverages promotes clear thinking and enhances physical and sexual performance, or that the failure to consume alcohol implies physical, mental or social inferiority;
7. depict sobriety and drinking alcohol in moderation as negative values;
8. induce the public to disregard different drinking styles associated with the specific features of individual beverages and the personal conditions of consumers; and
9. stress high alcoholic strength as being the principal feature of a beverage.
In addition, Law no. 125/2001 prohibits advertising of alcoholic beverages and spirits if such advertising:
1. is broadcast within programmes aimed at minors and during the 15 minutes before and after the broadcast of the same or in cinemas during the projection of movies mainly intended for minors;
2. represents minors consuming alcohol or positively represents the consumption of alcoholic or spirit;
3. in places mainly attended by under 18 years old people;
4. is on radio or television between 4 pm and 7 pm (advertising of spirits only); and
5. is made on daily and periodical magazines intended for minors.
Finally, any audiovisual commercial communications must:
1. not be expressly addressed to under‐age people, or, in particular, must not display under‐age people drinking alcoholic drinks;
2. not link the use of alcoholic drinks with significant or improved physical performance or with driving a car;
3. not give the impression that the use of alcoholic drinks could contribute to a social or sexual success;
4. not make consumers believe that alcoholic drinks could provide therapeutic, stimulating or calming effects or that they could help solve situations of psychological conflict;
5. not encourage the excessive and uncontrolled use of alcoholic drinks or display abstinence or moderate drinking in a negative light;
6. not display the presence of a significant alcohol content as a positive feature of the product.
Tobacco and related products, such as vapes and nicotine pouches
Advertising of tobacco and other related products is prohibited. In particular:
1. labelling of unit packages and outer packaging of tobacco products shall not show any element or feature (including wording, symbols, names, trademarks, figurative or other signs) that promotes a product or encourages its consumption by giving an incorrect impression as to its characteristics, health effects, risks or emissions, or suggests that a particular tobacco product is less harmful than others, or aims to reduce the effect of certain harmful elements of smoking or has health properties or produces other health or lifestyle benefits.
2. any form of audiovisual commercial communication for cigarettes and other tobacco products or products containing nicotine (including those for electronic cigarettes and refill liquid containers) is prohibited, even if made in an indirect form, through the use of names, trademarks, symbols or other characteristic elements of tobacco products or of companies whose main activity consists in the production or sale of such products, when by forms, manner and means employed or on the basis of any other unambiguous element such use is suitable to pursue a purpose of advertising of the products themselves.
Additionally, commercial communications (howsoever performed) that have the direct or indirect purpose or effect of promoting electronic cigarettes and refill liquid containers are prohibited.
Medicines, medical devices and surgical or medical procedures
In Italy, the relevant legislation advertising of medicines is contained in:
i. Legislative Decree no. 219/2006 – Codice del Farmaco (“Drug Code”);
ii. the Guidelines issued by the Ministry of Health;
iii. the IAP Code,
The Drug Code regulates advertising:
- aimed at the general public, which can be carried out only under certain conditions; and
- directed only at persons authorised to prescribe or dispense medicines.
Under Article 118 of the Drug Code, advertisements aimed at the public require prior authorisation from the Ministry of Health. The marketing authorisation holder or the entity responsible for placing the product(s) on the market shall apply for authorisation to carry out health advertising by submitting all the information relating to the company itself, the product advertised, the type of advertising and its means of dissemination.
A specific application shall be made for each single message (i.e. a single text, even if it is intended for several media). One message may advertise several products, provided that all the products advertised belong to the same advertising company or at least the same advertising company is responsible for placing them on the market. In this case, the latter company shall submit the application for authorisation.
Authorisation is not needed for advertisements in the daily or periodical press that merely reproduce – without modification – the indications, contraindications, appropriate precautions for use, interactions, special warnings, and undesirable effects described in the leaflet, with the possible addition of a photograph or graphic representation of the outer packaging or primary packaging of the medicine.
Whilst prescription-only medicines may not be advertised to consumers, over-the-counter medicines (“OTC”), medical devices and surgical and medical procedures can be advertised. However, a high standard of substantiation is required, consisting of trials conducted on people if relevant. In particular, “new” or “breakthrough” claims usually require at least one experimental human study (ideally double-blind and placebo-controlled) and often observational human studies.
In particular, marketing communication relating to OTC should include the name of the medicinal product as well as the common name of the active ingredient; this latter information is not compulsory if the medicinal product contains more than one active ingredient or the communication is intended solely as a generic reminder of the product’s name.
Moreover, marketing communication relating to OTC and curative treatments should not:
• suggest that the efficacy of the product is free from adverse effects or that its safety or efficacy is due to the fact that it is a natural substance;
• claim that efficacy of the medicine or treatment is equal to or better than that of other products;
• suggest that a medical consultation or surgical procedure is unnecessary or lead consumers to make an incorrect self-diagnosis;
• exclusively or principally address children or lead minors to use the product without appropriate adult supervision;
• make use of recommendations by scientists, health professionals or persons well-known to the public, or refer to the fact that the medicinal product has been approved for sale, or improperly or misleadingly report certificates of recovery;
• compare the product to foodstuff, cosmetics or other consumer products;
• suggest that the product may improve normal good health, or that avoiding the use of the product can be harmful, unless the message refers to vaccination;
• use improper or misleading depictions of changes in the human body caused by disease or injury, or due to the effects of the product.
According to the IAP Code, marketing communication relating to medicinal products and curative treatments should consider the sensitivity of the matter and display the utmost sense of responsibility; it must also accurately reflect the details contained in the fact sheet summarising the product specifications.
Such marketing communication should draw the consumer’s attention to the need for caution in using the product, explicitly and clearly encouraging consumers to read the packaging warnings and advising against the improper use of the product.
High fat, salt and sugar (“HFSS”) foods
Audiovisual marketing communication for food products and beverages containing fats, trans-fatty acids, sugars, sodium or salt is regulated by the Regulation governing marketing communication for food products and beverages to protect children and ensure healthy eating, issued by the IAP.
In addition to the general principles applicable to marketing communication addressed to children, it is stated that advertising of HFSS foods directed to children must not emphasise the positive nutritional qualities of food products or beverages high in fats, trans-fatty acids, sugars, sodium or salt as the excessive intake of these substances is not recommended as part of an overall diet; however, it is possible to highlight those nutritional aspects linked to substances other than those indicated above.
Highlighting the presence, absence, reduction or replacement of one or more ingredients or their components within the limits of current regulations is permitted.
Gaming and gambling services
Legislative Decree no. 87/2018 expressly prohibits any form of advertising, including indirect, related to games or bets with money winnings, however carried out, including sports, cultural or artistic events, television or radio broadcasts, daily and periodical press, publications in general, billboards and the Internet. As of 1 January 2019, the prohibition also applies to sponsorship of events, activities, demonstrations, programs, products or services and all other forms of communication with promotional content, including visual and acoustic quotes and the overlay of the name, brand, symbols, activities or products whose advertising is prohibited.
Furthermore, the Italian Competition Authority (“AGCM”, Autorita’ Garante della Concorrenza e del Mercato), is also in charge of protecting consumers from misleading advertising, disseminated by any means. The AGCM issued Guidelines with the aim of coordinating the new provisions of the above-mentioned Decree with the sector-specific regulation and EU principles. Notably, the Guidelines provide interpretative clarifications regarding the objective, subjective and territorial scope of the prohibition, stating that the prohibition includes not only information communication provided by legal gaming operators on gaming sites or at physical gaming points, such as odds, possible winnings and possible bonuses, but also “information services comparing odds or commercial offers of different competitors, as long as they are carried out in compliance with the principles of continence, non-misleading and transparency.”
Adult and sex-related goods and services
The assessment on the viability of this kind of advertising shall be made on the ground of the rules of criminal law prohibiting conduct resulting in crimes against public morality and decency; in addition, any advertising consisting of a conduct affecting the generally recognised standards of social behaviour shall be considered unlawful.
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Do any specific rules apply to advertising featuring prices?
Under the Consumer Code, any information to consumers, including invitation to purchase and the relevant indication of price, shall be given in the Italian language.
With regard to price advertising, the Italian Consumer Code provides that:
• in order to improve consumer information and to facilitate price comparisons, the products offered by traders to consumers shall bear, in addition to the indication of the sale price, the indication of the price per unit;
• following the implementation of the Omnibus Directive, any announcement of price reduction shall be accompanied by the indication of the previous price (meaning the lowest price applied within 30 days before the reduction).
Prices must be advertised correctly, honestly, clearly and truthfully, so as not to confuse consumers, inducing them to undertake a commercial decision that they would not have taken.
Indeed, it is considered an “unfair commercial practice” to:
- mislead the consumer in relation to the price or how it is calculated, or the existence of an advantage related to the price, thus inducing the consumer to undertake a commercial decision that would not have been taken; or
- omit information as to the price is considered a misleading omission.
In addition, there is a specific duty of care in relation to the invitation to purchase, which, as specified, must contain the indication of price.
“Invitation to purchase” means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase.
Pursuant to the Consumer Code, it is considered an “unfair commercial practice” to make an invitation to purchase products at a specified price:
- without disclosing the existence of any reasonable ground the trader may have for believing that they will not be able to supply the products at that price; or
- refusing to show the advertised item to consumers, refusing to take orders for it or deliver it within a reasonable time, or demonstrating a defective sample of it, with the intention of promoting a different product.
“Free” claims
Under the Consumer Code, describing a product as “free” or “no charge”, if the consumer has to pay an extra charge over the normal cost required to pick up or have the product delivered, is considered an unfair commercial practice.
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
Testimonials and other forms of recommendation of a product, with a promotional intention, should be distinguishable as such as well as authentic and responsible.
Neither the IAP Code nor the Consumer Code prohibit payments being made in exchange for a testimonial. However, failing to disclose such payments is likely to be a misleading omission and is in breach of the IAP Code.
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Do any specific rules apply to environmental or “green” advertising claims?
Over the past few years, the awareness of companies and consumers on the issue of eco-sustainability and the commitments to be made in relation to policies directed to the so-called “green transition” has increased. Environmental claims have therefore become an important advertising tool capable of guiding consumer purchasing choices.
Environmental advertising (“green” claims) commonly includes those claims that:
- refer, implicitly or explicitly, to the relationship between product/service and the environment,
- promote an environmentally friendly lifestyle, and
- present a corporate image characterised by environmental commitment.
The environmental merits of a product boasted in advertisements can be decisive in guiding consumers’ purchasing decisions and certainly deserve to be communicated in order to publicise and share the commitment of companies that achieve concrete and significant results for environmental protection.
In addition to the general set of rules on misleading advertising provided for by the Consumer Code, the IAP Code contains a specific discipline aimed at regulating environmental advertisement. In particular, the IAP Code imposes precise standards of fairness, so that “ecological” slogans do not become slogans without concrete meaning for the purpose of characterisation and differentiation of products and companies. Advertising claiming or suggesting environmental or ecological benefits must:
- be based on truthful, pertinent and scientifically verifiable evidence and
- ensure a clear understanding of which aspects of the product or activity the claimed benefits refer to.
As long as it meets these requirements, environmental advertising is permitted.
The AGCM has also set up general requirements that “green” claims must comply with. In particular, it clarified that environmental claims “must report the environmental benefits of the product in a timely and unambiguous way, be scientifically verifiable and properly expressed”, and that “a correct environmental claim should convey information adequately documented, scientifically ‘verifiable’ and limited to specific aspects that can be verified in a comparative key with respect to homogeneous products “.
This means that:
- the documentation relating to any declared environmental quality must be made available on request, specific and clear, and not subject to misinterpretation;
- it is advisable to avoid the use of generic expressions such as “sustainable” or “ecological”, since they could be deceptive for the consumers; and
- it should be specified whether the claim covers the entire product or lifecycle, or only a part of it.
“Greenwashing”, i.e. the marketing strategy aimed at giving an environmentally positive image to a company or to a product, even in default of objective criteria or reliable and/or verifiable scientific data, is considered misleading advertising that can be sanctioned and is prohibited.
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
According to the IAP Code, marketing communication must be clearly distinguishable as such. In the media and in marketing communication where news and other editorial matter are presented to the public, the marketing communication must be clearly distinguishable through the adoption of appropriate measures.
With reference to certain forms of marketing communication on the Internet, the most important and suitable measures are indicated in the Digital Chart Regulations.
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How is influencer/brand ambassador advertising regulated?
The use of influencers in advertising is regulated by the Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet, issued by the IAP.
According to the Digital Chart, marketing communication distributed over the internet, in whatever form it may be, must clearly state its promotional nature through the adoption of suitable measures. In particular, when a celebrity, influencer, blogger, or similar user of the internet (be they human or virtual), whose actions might potentially influence the commercial choices of the public, accredits a product or a brand within their own content, as a form of marketing communication, one of the following labels must be clearly inserted at the beginning of the post, or in another message posted online:
– “Pubblicità [Advertising]”,
– “Promosso da … brand [Promoted by … brand]”
– “Sponsorizzato da … brand [Sponsored by … brand]”, or
– “in collaborazione con … brand [In partnership with … brand]”;
and/or within the first three hashtags of a post, provided it is clear and prominent, one of the following labels should be inserted:
– “#Pubblicità [#Advertising]”,
– “#Sponsorizzato da … brand [#Sponsored by … brand]”, or
– “#ad”, “#adv” together with “#brand”.
In this so-called “call to action”, the advertiser and/or the influencer must urge audiences to reveal the promotional nature of the content related to a brand/product/service published by them following the invitation of these subjects, through the adoption of practices stated above.
For content available for “a limited time”, for instance social media stories, one of the above labels should be superimposed in a clear and legible manner for any promotional content.
If the influencer is merely invited to take part in an event, posts and other messages produced by the influencer online that convey information about a product or brand in relation to the event must inform the audience that they are attending at the advertiser’s invitation.
For videos produced and disseminated online having a marketing communication nature, a prominent written disclosure must be inserted in the description of the video and in its opening scenes, that makes the promotional end-purpose of the video evident (by way of example: “brand presents…”, or “in partnership with… brand”).
In a live stream these warnings, even verbal, should be repeated periodically. In particular, the public must be informed about the inclusion of an advertiser or the videomaker’s products/brands for promotional purposes through ad hoc disclaimers in the video’s opening and closing shot, or when the products/brand feature in shots.
Conversely, should the relationship between the influencer and advertiser not be underpinned by an existing agreement, but consist merely of the advertiser occasionally sending the influencer its products free of charge or for a modest consideration, posts, videos or other messages distributed online in which the influencer mentions or represents these products must feature a written or verbal disclaimer of the following type: “product sent by… brand”, or equivalent.
Disclosures of the promotional nature must also be maintained in the case of sharing or “reposting” of the content on other online platforms and interfaces, including social media.
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
Product placement
Legislative Decree no. 28/2004 regulating filmmaking activities provides that for films that contain shots of brands and products, that are consistent with the narrative context, there shall be an appropriate notice disclosing the participation of the manufacturer of said brands and products in the production costs of the film. The rule applies only to domestic films intended primarily for movie theatres.
The above-mentioned Decree allows the depiction of brands and products in films under the following circumstances:
• the presence of the brands must be clear, truthful and correct;
• it must integrate into the development of the action, without interrupting the narrative context;
• inclusion must be indicated in the credits, with references to the advertiser companies;
• compliance with advertising communication regulations is required.
Product placement in TV shall comply with the general principle that advertisements must be recognisable as such. Product placement in programmes aimed at children is prohibited, and the inclusion of cigarettes or tobacco products or prescription medicines is prohibited in all cases.
Product placement is therefore allowed provided that:
• the editorial independence of the television enterprise is not compromised;
• the purchase of the goods or services is not directly encouraged; and
• undue prominence is not given to the products being placed.
When a programme is commissioned or produced by the television enterprise, viewers must be informed of product placement at the beginning of the broadcast, at the end, and at the resumption after an advertising break.
Subliminal advertising
Subliminal advertising is prohibited.
Outdoor advertising
Outdoor advertising is subject to local authority consent for the display of billboards and posters in public spaces. Displaying of advertising on the walls of buildings or on fences without the consent of the owner is not allowed.
Further rules apply with regard to certain specific-sector products.
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
The principles contained in the Consumer Code as well as in the IAP Code apply and cover all kind of advertising.
Advertising through audiovisual media is regulated by Legislative Decree no. 208/2021, implementing EU Directive 2018/1808 and providing the principles substantiating advertising on audiovisual means, the duration and frequency of advertising breaks as well as other aspects, such as product placement. According to the Legislative Decree no. 208/2021, audiovisual commercial communications:
- must be readily recognisable as such;
- are prohibited from including any hidden or subliminal commercial messages; and
- shall maintain a sound level not higher than the ordinary sound level of the programs.
For online marketing, the IAP has issued a Digital Chart Regulations on the Recognisability of Marketing Communication Distributed over the Internet (the “Digital Chart”). Under the Digital Chart, marketing communication distributed over the Internet, in whatever form it may be, must clearly state its promotional nature through the adoption of suitable measures; in addition, it provides for some rules to be followed by celebrities, influencers, bloggers, or similar users of the internet, who accredit a product or a brand within their own content, as a form of marketing communication.
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Are there specific rules for direct marketing such as email, SMS and direct mail?
The general rules on advertising content under the Consumer Code and IAP Code apply to direct marketing.
Direct marketing that makes use of personal data is subject to data protection and privacy laws, that state that direct marketing messages require consent of the recipient, as well as to e-commerce rules and regulation.
Clear records of consent should be kept.
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
Italian legislation applies strict standards for advertising addressed to minors, in consideration of their vulnerability and of the possibility of being more easily manipulated by advertisers.
Under the Consumer Code, any advertising which:
- is capable of reaching children or teenagers, and which threaten their security or abuse their natural credulity or lack of experience, is considered an “unfair commercial practice”; or
- includes a direct exhortation to children to buy or persuade their parents or other adults to buy for them the advertised products is considered an aggressive commercial practice and, as such, unfair.
In addition, the IAP Code requires that special care should be taken in messages directed to children, i.e. less than 12 years of age, and young people or to which they may be exposed. Such messages should avoid material that could cause psychological, moral or physical harm, and should not exploit the credulity, inexperience or sense of loyalty of children or young people.
In particular, marketing communication must not suggest:
- violating generally accepted rules of social behaviour;
- acting dangerously or seeking exposure to dangerous situations;
- that failure to possess the promoted product means either their own inferiority or their parents’ failure to fulfil their duties;
- that the role of parents and educators is inadequate in supplying healthy nutritional advice;
- adopting poor eating habits or neglecting the need for a healthy lifestyle.
Finally, specific rules are set forth in order to regulate marketing communication for food products and beverages directed to children, or to which they might be exposed.
More specifically, the IAP encourages educational messages promoting a healthy and balanced diet, and physical exercise and states that advertising of food products must:
- avoid statements or representations that could mislead children, including omissions, ambiguity or exaggerations that are not obviously hyperbolic, particularly regarding the nutritional characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes or awards,
- not suggest that failure to consume the product might mean either their own inferiority or a failure by their parents or educators to fulfil their duties;
- not belittle the role of parents and other educators in providing good dietary advice;
- not suggest adopting poor eating habits or neglecting the need for a healthy lifestyle.
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How is comparative advertising regulated?
Under the Italian legal system and, in particular, pursuant to Legislative Decree no. 145/2007, implementing Directive 2005/29/CE, comparative advertising is only permitted when the following conditions are met:
- it is not misleading under the Consumer Code;
- it compares products meeting the same needs or intended for the same purpose;
- it objectively compares one or more material, relevant, verifiable and representative features of those products, which may include price;
- it does not create confusion among traders:
- between the advertiser and a competitor, or
- between the trade marks, trade names, other distinguishing marks or products of the advertiser and those of a competitor;
- it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor;
- for products with designation of origin, it relates in each case to products with the same designation;
- it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; and
- it does not present products as imitations or replicas of products bearing a protected trade mark or trade name.
Similarly, the IAP Code states that comparative advertising is permitted when it helps to explain the technical or financial features and benefits of promoted products and services, objectively comparing the relevant basic, technically verifiable and representative features of competitive goods and services, that meet the same needs or are intended for the same purpose.
Comparisons should be fair and not be misleading, nor generate the risk of confusion, or discredit or denigrate others. Comparisons should not draw unfair advantage from the notoriety of others.
“Verifiability”
The contents of marketing communication must be capable of substantiation; such substantiation should be available to the competent bodies of the IAP to prove the truthfulness of the data, descriptions, statements, illustrations used and the consistency of any testimonies.
“Enforcement”
Whoever finds an advertisement to be deceptive or otherwise conflicting with the principles of truth and correctness may complain to the IAP.
In determining whether an advertising is misleading, the IAP will consider any information concerning the characteristics of the product advertised and how such characteristics are communicated to consumers. The contents of a marketing communication must be capable of substantiation to prove the truthfulness of the data, descriptions and statements.
Consumer associations, companies and any other entity alleging a prejudice from an allegedly non-compliant marketing communication may report to the IAP competent body by completing a form available on the IAP’s website.
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
Yes. Marketing communication relating to prize promotions involving competitions or premium operations, should provide consumers with clear and simple information on eligibility to participate, closing dates and prizes.
For competitions, the information should include:
• the number and total value of prizes,
• the procedure for awarding prizes, and
• the media to be used for publicising the results.
See further points below.
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
Prize draws are regulated by Presidential Decree no. 430/2001, which requires that promoters provide consumers with the regulations of the competition, in order to enable them to correctly being aware of any applicable rules.
The regulations must contain:
- the promoting entity or entities;
- the duration and the territorial scope of the draw; and
- the nature and indicative value of the individual prizes, as well as the deadline for their delivery.
The promotional communication of the event, if it does not contain or is not accompanied by the rules of the event, shall at least state:
- the conditions for participation,
- the duration of the event, as well as for prize contests, and
- the total value of the prizes offered.
Advertising messages that do not contain all the required indications are, in any case, permitted, if, in relation to the different characteristics of the media and of the spaces used, they contain at least specific reference to the regulations, with an indication of how the same may be acquired or consulted by the consumers.
Prize draws and operations which are in breach of the above-mentioned rules are prohibited.
Some additional rules are also provided for by the Italian Consumer Code and the IAP Code. In particular:
- according to the Italian Consumer Code, stating that contests or prize promotions are held, without then awarding the described prizes or a reasonable equivalent, is an unfair commercial practice;
- under the IAP Code, marketing communication relating to prize promotions involving competitions or premium operations, should provide consumers with clear and simple information on eligibility to participate, closing dates and prizes. For competitions, the information should include the number and total value of prizes, the procedure for awarding prizes and the media to be used for publicising the results.
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
Prize draws and operations must be communicated to the Ministry of Enterprises and Made in Italy. The relevant advertising does not need to be registered.
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
As stated above, IP law can be relevant with regard to comparative advertising and particularly when there is a risk of confusion between the advertised trade marks and other distinguishing marks or features of a competitor, or when the comparative advertising is capable of jeopardizing the trade marks, trade names and the products of a competitor.
IP law can also be relevant with regard to the potential infringement of a competitor’s reputation or when advertising of products with designation of origin makes reference to products with the same designation.
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
In principle, the same legal rules governing the traditional formation and performance of contracts apply to advertising.
It is important to examine the rules applied to contracts performed through an offer addressed to a non-identified potential buyer (ad incertam personam). In this respect, an offer included in an advertisement may qualify as a “public offer”. When such an offer includes the essential terms of a contract (price, delivery, payments, etc.), it is considered a contractual offer from a legal standpoint. A public offer is legally binding from the moment it has been made public. Upon acceptance of such a public offer by a third party and, more specifically, when such acceptance is communicated, the agreement is deemed to be entered into. The withdrawal of the public offer must be made according to the same terms of the offer.
A special offer must indicate in a clear and unequivocal way the date until which it is valid or, where appropriate, that the special offer is subject to the availability of the goods and services, and, where the special offer has not yet begun, the starting date from which the special price or other specific conditions shall apply.
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
As stated above, marketing communication should not offend moral, civil and religious beliefs. Marketing communication should respect human dignity in every form and expression and should avoid any form of discrimination, including that of gender.
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]
Whoever finds an advertisement to be deceptive or otherwise conflicting with the principles of truth and correctness may complain to the IAP. In determining whether an advertising is misleading, the IAP will consider any information concerning the characteristics of the product advertised and how such characteristics are communicated to consumers. The contents of a marketing communication must be capable of substantiation to prove the truthfulness of the data, descriptions and statements.
Consumer associations, companies and any other entity alleging a prejudice from an allegedly non-compliant marketing communication may report to the IAP competent body (“The Committee”) by filling a form available on the IAP’s website.
The Committee may:
- invite the concerned entity to amend the advertisement, or
- prohibit the dissemination of the same (such prohibition may be challenged within 10 days), or
- involve the internal Grand Jury that starts a brief procedure with all parties that are entitled to submit their allegations and defences.
It is also possible to make a complaint directly to the Grand Jury.
The average length of a procedure before the IAP is approximately 3 to 12 months, depending on the complexity of the matter and associated circumstances.
The decision issued by the Grand Jury is binding, although there is not a strict legal obligation to comply with it. This means that, since compliance with good rules in communication is a common interest (manufacturers’ interest in fair competition, consumers’ interest in non-deceptive advertising, and the media’s interest in correct advertising) decisions of the Grand Jury (consisting of a desisting order) are usually commonly accepted by all operators and by manufacturers.
There is an administrative fee associated with making the complaint which is roughly EUR 4.000,00. It is not possible to make a complaint on an anonymous (“no name”) basis.
Italy: Advertising & Marketing
This country-specific Q&A provides an overview of Advertising & Marketing laws and regulations applicable in Italy.
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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
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Do any specific rules apply to advertising featuring prices?
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
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Do any specific rules apply to environmental or “green” advertising claims?
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
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How is influencer/brand ambassador advertising regulated?
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
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Are there specific rules for direct marketing such as email, SMS and direct mail?
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
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How is comparative advertising regulated?
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]