[co-author: Carlotta Busani]*

In the aftermath of this year investigation against business operators not complying with the requirement of Italian law on label notification (see here), the Italian Competition Authority  ("Authority") - in charge of protecting consumers from misleading advertising, comparative advertising which may bring discredit on competitors’ products or cause confusion, as well as unfair commercial practices among undertakings - now tackles the unfair and misleading practices in advertising food supplements by overemphasizing alleged curative effects and by resorting to unauthorized claims. This is in a nutshell the decision issued by the Authority on 13 September 2018.

Not only. The Authority also stated that promoting food supplements through a channel that has an informative content, but is actually aimed at disguising the real promotional purposes pursued by professionals is a hidden advertising and must be sanctioned.

1. Disseminating messages claiming therapeutic effects of food supplements "Life 120"

The contested practice concerned the diffusion of advertising claims made for several food supplements sold under the brand "Life 120", which were alleged to cure serious diseases (tumours, diabetes, etc.).
 

The claims were broadcasted by television during the program "Il cerca salute" and podcasted at the website Life120.it.

By way of example, some of food supplements at stake were described as being required "to provide all the nutrients necessary to fight degenerative diseases", allowing "our body to reactivate its repairing functions and to regulate all its hormonal functions".
 

The food supplement "OMEGA 3 LIFE" was claimed to exert a protective effect against atherosclerotic disease and against the onset of thrombus, as well as suitable to fluidify the blood and reduce triglycerides and cholesterol, blood sugar levels, improving the insulin response.

In the opinion of the Authority, those effects conveyed the message that the intake of the advertised food supplements could, on the one hand, cure or prevent the onset of degenerative diseases and, on the other hand, improve the overall functionality of the body. It is worth noting that Article 6 of the Legislative Decree No. 169/2004 prohibits the presentation and the advertising of food supplements as having therapeutic effects. Therefore the advertising of a food supplement as having a therapeutic effect is in breach of the law and may be regarded as misleading.

The Authority noted that some of the health claims made for the food supplements did not appear in the list of authorised claims according to:
 

1.1 Comment

The Authority's decision is in agreement with the current European and national legislation applicable to food supplements. In fact, unlike medicinal products, food supplements are characterized as products based on nutrients or other substances with a nutritional or physiological effect, designed and proposed to facilitate the smooth performance of the functions of the body without any therapeutic purpose.
 
The central difference between food supplements and medicinal products lies in the purpose of use. In fact, food supplements are aimed at maintaining a good state of health and/or supporting physiological functions. By contrast, pharmaceutical products are compounds which exert a pharmacological effect and that are intended to cure a disease.

Accordingly, the regulation prohibits advertising food supplements, attributing them therapeutic effects or the property of preventing a disease. This notwithstanding, food supplements may be useful even in the context of a therapeutic treatment, in order to preserve the patient's well-being and support physiological functions during the therapy. It would appear that in the case at stake the claims made for Life 120 food supplements went well beyond that point.

The decision is also in line with the Authority's enforcement action in this area, mainly focused on detecting and removing false and misleading health claims in the advertising. The Authority’s role is to ensure that consumers obtain accurate information concerning food supplements so that they can make informed decisions concerning these products. In particular, in its decisional practice the Authority pointed out that many food supplements are of unproven value or have been connected to serious health risks highlighting in several occasions that the use of deceptive, false, or misleading claims for example in food supplements advertising is widespread and potentially very dangerous.

2. Hidden advertising of "Life 120" Food Supplements

The Authority also sanctioned the unfair practices of Life 120 Italia S.r.l., Welcome Time Elevator S.r.l. and Adriano Panzironi with a total amount of 326,000 Euros.

The Authority has identified these sanctions, in view of the lack of transparency in the way to promote food supplements in the TV program "Il cerca salute", which has an apparently informative content, but is actually aimed at disguising the real promotional purposes pursued by professionals.

In order to ascertain the existence of the so-called hidden advertising, the Authority had to ascertain (a) the commercial nature of the communication and (b) its recognisability.

As far as the promotional nature is concerned, the Authority observed that Mr. Panzironi claims the therapeutic efficacy of a series of mineral and vegetable substances, also contained in the "Life 120" food supplements (referred to in the transmission as "our food supplements"). In addition to being a professional journalist, he is also a director of Welcome Time Elevator S.r.l. and holds control of Life 120 Italia S.r.l.s., which deal, respectively, with the marketing of food supplements and publishing activities.

Instead, the advertising is hidden within an informative context and is therefore not recognizable. The format of "Il cerca salute" is set up as a transmission of health topics in which Mr. Panzironi claims the possibility of preventing diseases, and does not inform about the economic interest in the marketing of food supplements. Even the indication "the inclusion of products for commercial purposes in the programme" was not considered sufficient by the Authority. In fact, this is attributable to the advertising spots included in the programme and not to the programme as a whole.

In the opinion of the Authority, therefore, the practice disorients the consumers, circumventing their natural mechanisms of defence and reaction, determining a false conviction, suitable to condition their economic choices and behaviours.

Finally, also the broadcasting companies were sanctioned 5,000 Euros. These companies were in fact challenged for their negligent behaviour. In the opinion of the Authority, they should have verified the contents broadcasted in order to guarantee the consumers a critical level to decode the communications.

2.1 Comment

In principle, the journalist responsible for any statement they make on medicinal products, as well as the benefits and possible contraindications. The discussion of diseases and their prevention and cure is also a material part of the public discussion. It is in the interest of the public, while at the same time expression of the freedom of speech of the individuals who at different title may be involved.

However, the above holds true as long as there is a separation between the company and the journalist, this is to say, the contents and messages delivered to the public are independently developed by the latter under his/her responsibility.

The hidden advertising phenomenon is widespread, in particular around social media, and the Authority has already raised concerns about it. The decision at stake falls within the Authority's enforcement action aimed at contrasting this particularly insidious practice, preventing customers to exercise the necessary critical control of information provided by traders, essential for decoding commercial behaviour aimed at the promotion of certain goods and / or services, all the more important in this case as it relates to health issues.

*Trainee Solicitor

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