Section 1
Objective
1. The objective of this Decree is to protect economic operators engaged in commercial, industrial, artisanal or professional activity, consumers and, in general, the public interest, from deceptive advertising and its unfair consequences.
2. Advertising must be clear, truthful and fair.
Section 2.
Definitions
1. With respect to the present Decree it is to be intended that:
a) "advertisement" means any message disseminated, regardless of form, in the course of commercial, industrial, artisanal, or professional activities whose objective is to promote the sale of material goods or real property, the related transfer of rights and obligations, or the rendering of services.
b) "deceptive advertising" means any advertisement that in any way, including its presentation, induces or is likely to induce in error those to whom it is directed or those it is reaches, and that, because of its deceptive nature, is likely to effect the economic behavior of its recipients or cause harm to a competitor.
c) "advertiser" means the party who commissions the advertisement and its author, or the owner of the medium utilized to disseminate the advertisement in those instances where the owner does not allow for their identification.
Section 3
Evaluation criteria
1. In order to determine if an advertisement is deceptive it is necessary to consider all qualifying elements, with particular regard to:
a) the characteristics of the good or service advertised, such as: its availability, its nature, its functioning, its composition, the method and the date of production or the date in which the service is to be rendered, its functionality, the uses it can be put to, its quantity, its description, its geographical or commercial origin, the results that can be obtained by its use, or the test results and control characteristics underlying those tests which have been conducted to evaluate the good or service being advertised;
b) to the price or to the method utilized in its calculation, and to the conditions under which the good is sold or the service rendered;
c) to the identifying characteristics of the advertiser such as: name, financial capacity, professional skills, ownership of industrial trademarks or patents, and any other form of legal rights, prizes or acknowledgements claimed by the advertiser.
Section 4
Transparency in advertisements
1. Advertisements must be clearly recognizable as such; in particular, print advertisements must be distinguishable from other forms of non advertising communications through the use of graphical elements which are of immediate recognition.
2. The term "guarantee", "guaranteed" as well as any other similar terms can be used only if accompanied by affirmative claims regarding the content and the terms of the guarantee being offered. Whenever the brevity of the advertisement does not allow for the inclusion of these terms, the advertiser must complement a summarized version of the terms with a specific referral to a text that is easily accessible to consumers in which the full text version is contained.
3. All forms of subliminal advertisements are prohibited.
Section 5
Advertisements for products harmful to health and safety
1. Advertisements for products that are likely to endanger consumer health and safety are considered deceptive when, by omitting to highlight potential dangers, they induce consumers to ignore normal precautions or safety rules.
Section 6
Children and adolescents
1. An advertisements that is likely to reach children and adolescents is considered deceptive if it threatens, directly or indirectly, their safety, or if it takes advantage of their natural trustworthiness and lack of experience. Moreover, an advertisement is considered deceptive if, by utilizing children or adolescents, it takes advantage of the natural feelings that adults have for the young.
Section 7
Administrative and judicial remedies
1. The Competition Authority (hereinafter referred to as Authority), created by Article 10 of Law no. 287 of October 10th, 1990 has the power to enact the dispositions set out in this Section.
2. Competitors, consumers, associations and organizations representing their interests, the Minister of Industry, and other public administrations with respect to their legitimate institutional interest, also on the basis of complaints filed by the public at large, can request that the Authority inhibit the release and perseverance of deceptive advertisements and that the Authority eliminate the effects caused by deceptive advertisements.
3. The Authority can issue argumented administrative rulings to suspend the dissemination of deceptive advertisements in cases of particular urgency. In all instances the Authority informs the advertisers involved that an administrative investigation has initiated and, if the party who has commissioned the advertisement is not known, the Authority can ask the owner of the media utilized to disseminate the message for information that might lead to the identification of the advertiser.
4. The Authority can require that the advertiser provide proof regarding the material truthfulness of the claims contained in the message if, having taken into account the rights and legitimate interests of the advertiser and of any other party involved in the proceeding and the peculiarities of the case, such a request is deemed reasonable. If the proof is not provided or if it is deemed insufficient the claims will be considered false.
5. When an advertisement is disseminated or will be disseminated via the print media, radio or television, the Authority, before issuing a final ruling, requests the advice of the Media Authority.
6. The Authority's rulings are definitive and argumented. If the Authority deems that an advertisement is deceptive it rules in favor of the complainant and prohibits the release of the advertisement as well as its continued dissemination. In these instances the Authority can impose the publication of the ruling, in its full text or summary version, and can also impose the publication of a corrective statement so as to prevent the advertisement from producing further effects.
7. In those cases where the advertisement is part of the product packaging the Authority, when issuing rulings in conformity to paragraphs 3 and 5 of the present Section, has to take into account the technical requirements necessary for changing the packaging and thus must allow a reasonable amount of time for compliance purposes.
8. The procedural regulation is to be issued within 90 days of the issuing of the present Decree, in compliance with article 17, Section 1, of Law no. 400 of August 23rd, 1988, in such a way as to guarantee the right of full defense, to allow parties involved full access to the case file, and to establish the procedure for depositions.
9. The advertiser that does not comply with urgency rulings, prohibition rulings, or corrective statement rulings is subject to arrest for a period not to exceed three months and to a fine no greater than 5 million liras.
10. The owner of the media utilized for disseminating the advertisement who omits to answer inquiries put forth by the Authority on the basis of paragraph 3 of the present Section, can be fined an amount from 2 to 5 million liras.
11. Definitive rulings issued by the Authority can be appealed exclusively to the Administrative Court.
12. In those instances where advertisements have been subject to prior approval by administrative rulings that have taken into account the deception issue as well, the only recourse available for obtaining further protection for consumers, competitors and their associations or organizations on this issue is via an appeal filed with the Administrative Court in which the validity of the original ruling is contested.
13. The jurisdictional competence of Ordinary Judges remains untouched with regards to acts of unfair competition as specified by article 2598 of the Civil Code.
Section 8
Self-discipline
1. The parties involved can request that deceptive advertisements be inhibited by filing a complaint to voluntary, self governing, self disciplinary bodies.
2. Once a proceeding has been initiated by a self disciplinary body the parties involved can delay filing a complaint to the Authority until a final decision has been adopted.
3. In those cases where a complaint has already been filed with the Authority or will be filed by a legitimate party any interested party can request that the Authority suspend its own proceeding until the final decision has been adopted by the self disciplinary body. The Authority, having evaluated all of the relevant circumstances, can suspend its own proceeding for a period of time not to exceed 30 days.
Section 9
Effectiveness
The present Decree takes effect on the day following its publication in the Official Gazette of the Republic of Italy