Legislative Decree no. 145 of 2 August 2007
Only the Italian text is authentic
LEGISLATIVE DECREE No 145 of 2 August 2007
Implementing Section 14 of Directive 2005/29/EC amending Directive 84/450/EEC on misleading advertising (Official Gazette No 207 of 6/9/2007)
1. The purpose of this Directive is to protect traders against misleading advertising and the unfair consequences thereof and to lay down the conditions under which comparative advertising is permitted.
2. Advertisements must be transparent, truthful and accurate.
For the purposes of this Directive:
(a) ‘advertising’ means the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations;
(b) ‘misleading advertising’ means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor;
(c) ‘trader’ means any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and anyone acting in the name of or on behalf of a trader;
(d) ‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor;
(e) 'advertiser' means the principal commissioning the advertisement and its author and, if they cannot be identified, the owner of the medium used to disseminate the advertisement or the person responsible for radio and TV broadcasting.
Elements for the assessment
1. In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning:
(a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;
(b) the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided;
(c) the nature, attributes and rights of the advertiser, such as his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions.
Conditions under which comparative advertising is lawful
Comparative advertising shall, as far as the comparison is concerned, be permitted when the following conditions are met:
(a) it is not misleading within the meaning of Sections 21, 22 and 23 of Legislative Decree No 206 of 6 September 2005 enacting the "Consumers' Code";
(b) it compares goods or services meeting the same needs or intended for the same purpose;
(c) it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;
(d) it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;
(e) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;
(f) for products with designation of origin, it relates in each case to products with the same designation;
(g) it does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
(h) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name;
2. The requirement of verifiability pursuant to paragraph (1) (c) shall be deemed met when the data used to illustrate the properties of the goods or services advertised are demonstrable.
3. Any comparison referring to a special offer must clearly and unequivocally indicate the deadline date for the offer or, if the special offer has not yet started, the starting date of the period in which the special price or other particular conditions shall apply or, if relevant, the fact that the special offer depends on the availability of the goods and services.
1. Advertisements must be clearly recognisable as such.
Press advertisements must be distinguishable from other forms of public notices, and use graphical forms that are easily perceptible.
2. The terms "guarantee", "guaranteed" and similar expressions may only be used if they are accompanied with specific details of the substance of the guarantees and the formalities relating to the guarantee offered. When the advertisement is too short to publish these details in full, the summary reference to the substance and the procedures for claiming against the guarantee most explicitly refer to a text which the consumer can easily obtain, setting out all the details.
3. All forms of subliminal advertising are prohibited.
Advertising of products that are dangerous to health and safety
1. Any advertisement is deemed to be misleading when it fails to indicate that a product advertised is likely to threaten the health or safety of the public in such a way that the public may be led to neglect the normal rules of prudence and vigilance.
Children and adolescents
1. Any advertisement is deemed to be misleading when, being likely to be seen by children and adolescents, it exploits their natural credulity or lack of experience or which, by using children and adolescents in the advertisements, without prejudice to the provisions of section 10 of Law No 112 of 3 May 2004, exploits the natural sentiments of adults towards children.
2. Any advertisement is deemed to be misleading when, being likely to be seen by children and adolescents, it may, even indirectly, place their safety in jeopardy.
Administrative and judicial protection
1. The Competition Authority, hereafter the "Authority", shall exercise the powers set forth in this section.
2. The Authority, acting on its own authority or at the request of any individual or organisation having a legitimate interest, shall prohibit the continuation and eliminate the effects of misleading advertising. In the performance of the tasks referred to in paragraph (1) above, the Authority may use the Guardia di Finanza (Customs and Excise Police) exercising their own powers to assess value added tax and income tax liability.
3. The Authority may issue a reasoned measure ordering the provisional suspension of misleading and comparative advertising in cases of particularly urgent need. At all events, it shall serve notice of the commencement of proceedings on the trader concerned, and if the principal is unknown the Authority may request the owner of the medium advertising the unfair practice to supply all the information needed to identify the principal. The Authority may also request anyone to supply information and documents relevance for the purposes of identifying infringements. The provisions of section 14 (2), (3) and (4) of Law No 287 of 10 October 1990 shall apply.
4. In the event of failure to comply without good reason with the determinations of the Authority pursuant to section 14 (2) of Law No 287 of 10 October 1990, the Authority shall impose an administrative fine of between €2,000 and €20,000. In the event that the information or the documentation is untruthful, the authority shall impose an administrative fine of between €4,000 and €40,000.
5. The Authority may require the trader to furnish evidence as to the accuracy of factual claims in advertising if, taking into account the legitimate interest of the advertiser and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case. If the evidence is not provided or is deemed to be insufficient the factual data shall be deemed to be inaccurate.
6. When the advertisement has been or is intended to be disseminated in the periodical or daily press, or by radio or television or any other telecommunications medium, before issuing its measure, the Authority shall request the opinion of the Communications Regulatory Authority.
7. Except when the commercial practice is manifestly unfair and of a serious nature, the Authority may require the trader responsible for the unlawful misleading or comparative advertisement to give an undertaking to end the infringement and to cease its dissemination, or to modify such that the unlawful parts are removed. The Authority may order the trader to publish a statement of the commitment entered into with the Authority, at the trader's expense. In this case, having assessed the appropriateness of such commitments, the Authority may make them mandatory on the trader and lay down the procedure to be followed without proceeding to investigate the infringement.
8. If the Authority deems the advertisement to be misleading or the comparative advertisement unlawful it shall prohibit its dissemination, in the event that it has not yet been brought to the attention of the public, or ban its further dissemination in the event that a the practice has already begun. Under the same measure the Authority may order the trader, at the trader's expense, and may also order the offender to publish the Authority's resolution, or an extract of it, or a specific corrective statement, to ensure that the misleading or unlawful comparative advertisement cease to procure any effects.
9. In its measure prohibiting the dissemination of the advertisement, the Authority shall also impose an administrative fine of between €5,000.00 and €500,000.00, to take account of the seriousness and the duration of the infringement. In the case of the advertisements which may place health or safety in jeopardy, and those which may directly or indirectly reach children or adolescents the penalty shall not be less than €50,000.00.
10. In cases relating to advertisements forming part of product packages, when the Authority issues the measures referred to in paragraphs (3) and (8), it shall set a deadline for its instructions to be acted upon, taking account of the time materially needed for compliance.
11. The Competition Authority shall issue its own regulations within ninety days of the date of publication of this decree governing the procedure for investigations, in a way which gives all the parties the opportunity to put their cases and to be fully acquainted with all the case papers and the transcripts.
12. If the trader fails to comply with the emergency measures or injunctions or instructions to remove the effects referred to in paragraph (3), (8) and (10) above, and in the event of failure to comply with the commitments undertaken pursuant to paragraph (7), the Authority shall impose an administrative fine of between €10,000 and €150,000. In the event of repeated non-compliance, the Authority may order the trader to suspend trading for a period which shall not be more than thirty days.
13. Appeals may be filed against decisions adopted by the Authority solely before the Administrative Courts. With regard to the administrative fines imposed as a result of infringements of this decree, the provisions of Chapter I, Subchapter I, and Sections 26, 27, 28 and 29 of Law No 689 of 24 November 1981, as subsequently amended, where applicable, shall apply. The administrative fines referred to in this section must be paid within 30 days of the service of notice of the Authority's measure.
14. In the event that the advertisement has been approved with an administrative measure, which is also designed to ascertain its non-misleading character or the lawfulness of the comparative advertisement, the protection of the persons and organisations having a legitimate interest can be provided by appealing against the aforementioned measure before the Administrative Court.
15. The ordinary courts of law retain jurisdiction to take cognisance of acts of unfair competition provided by article 2598 of the civil code and, with regard to comparative advertising, of acts infringing copyright law provided by Law No 633 of 22 April 1941, as subsequently amended, and trademark protection provided by Legislative Decree No 30 of 10 February 2005, as subsequently amended, and denominations of origin recognised and protected in Italy and other distinctive signs of competing companies, goods and services."
16. For the enforcement of this decree, the number of posts established by Section 11(1) of Law 10 October 1990, no. 287, is increased by 20 staff units, two of them for a management role. With the same aim, the number of fixed-term contracts provided by Section 11(4) of Law 10 October 1990, no. 287, is increased by 10 staff units, and 10 additional staff units can be seconded to the Authority. The financial burdens coming from this provision will be covered by the resources pursuant to Section 10(7-bis) of Law 10 October 1990, no. 287.
1. The parties having a legitimate interest may request the voluntary and autonomous self-regulatory bodies to prohibit the continuation of misleading advertising or comparative advertising deemed to be unlawful.
2. Once the preceding has begun before a self-regulatory body the parties may agree not to apply to the Authority until the final ruling has been issued, or they may request the preceding lying before the Authority to be suspended, in the event that has not yet commenced, also through another party having a legitimate interest, while awaiting the ruling of the self-regulatory body. The Authority, after having examined all the circumstances, may decide to suspend the proceeding for a period of not more than 30 days.
1. The implementation of this decree shall not create any new or greater burdens on public finances. This decree, bearing the Seal of State shall be entered in "Raccolta Ufficiale" of Laws of the Italian Republic. Compliance and enforcement are mandatory.