Unfair Commercial Practices And Misleading Advertising—New Powers Granted To The Italian Antitrust Authority

On September 21, 2007, the Italian Antitrust Authority (the "Authority" or "IAA") was given additional powers to curb unfair commercial practices and misleading advertising. The Authority has now been empowered to act ex officio without the express request of consumers and/or public entities.1

Unfair Commercial Practices

Scope of Application. In general terms, a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts, or is likely to materially distort, the economic behavior of consumers in their choice of a product offered for sale.2

There are two types of unfair commercial practices: "misleading practices," which may consist of "misleading actions" or "misleading omissions,"3 and "aggressive practices," which encompass harassment, coercion, or other forms of unlawful influence that cause consumers to make commercial decisions that they would not otherwise have made.4

According to such provisions, the subject of protection from such practices is the consumer, defined as the "physical entity that, in the context of commercial practices . . . , operates for purposes not included in its commercial, industrial, craft or professional activity."5 This appears to exclude from protection "professionals," expressly defined as "any physical or juridical entity that, in the context of commercial practices . . . , operates for purposes included in its commercial, industrial, craft or professional activity or acts in the name or on behalf of a professional."6

Blacklists. The new rules specifically identify a series of misleading and aggressive practices that can be considered misleading and aggressive without the need for demonstrating whether or not they are likely to distort or falsify consumer choice.

Misleading practices that have been blacklisted include: (i) use of a trademark without the necessary authorization; (ii) falsely declaring to be the subscriber of an ethical code; (iii) falsely declaring that a certain product will be available for a limited period of time; and (iv) falsely asserting that the sale of a product is lawful.

Aggressive practices blacklisted by the Code of Consumers include: (i) giving the impression that the consumer may leave the commercial premises only after entering into an agreement; (ii) repeatedly visiting consumers at their homes in violation of their express wishes; and (iii) addressing advertising campaigns to children in an effort to sell products to...