Unfair commercial practices harming consumers and micro-enterprises

A “commercial practice” is any action, omission, conduct, commercial communication, as all forms of advertising (direct marketing and product package included) that a trader uses to promote, sell or provide goods or services to consumers. A commercial practice shall be unfair 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.

The Consumer Code distinguishes the misleading commercial practices from the aggressive ones. The former (articles 21-23) are practices that deceive or are likely to deceive the average consumer, because of their likelihood to pushing him to take a transactional decision that he would not have taken otherwise (whilst, in some cases, this practice definitely pushes the consumer to take such decision). The average consumer can be misled in relation to the price, the existence of the product on the market, its nature, the risks involved in using the product. The ICA considers as illegal also the commercial practices that lead the consumer to neglect ordinary rules of caution and watchfulness related to the usage of products that could be dangerous for his health and safety or practices that could, even indirectly, threaten the safety of children and teenagers.

If the trader uses harassment, coercion or other forms of undue influence, its behaviour shall be considered aggressive (articles 24-26). The aggressive nature of a commercial practice depends on its nature, its timing, its forms and the possible use of physical and oral threatening.

The Consumer Code, in accordance with the Directive 29/2005/CE, specifies which kind of commercial practices are to be considered misleading or aggressive in all circumstances. For example, practices are considered per se misleading if the trader promises to sell a product at a specified price and then refuses to take orders for a certain period of time; falsely claims that his product has got all public approvals; claims that he is about to cease trading when he is not. Practices are considered per se aggressive, for example, when the trader induces the consumer to believe he cannot  leave the premises until a contract is formed or conducts personal visits to the consumer’s home ignoring the consumer’s request to leave it or not to come back.

Misleading and illegal comparative advertising to the detriment of traders

The ICA protects traders from misleading advertising used by other traders and sets the conditions under which comparative advertising broadcast through any medium is considered lawful.

Advertising shall be considered misleading when it is likely to distort the economic behaviour of the trader it is addressed to or when it can harm a competitors. The misleading nature of advertising can concern the characteristics of goods and services, such as, inter alia, their availability, price or supply terms.

Comparative advertising is any advertising through which a trader promotes its goods or services by comparing them with goods or services offered by another competitor. This kind of advertising is allowed only when it is not misleading, it objectively compares goods or services meeting the same needs or is intended for the same purpose, it does not create confusion among traders and does not discredit competitors.