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Case detail

B a c k

Directive article Article 5 2. (b)
Article 6 1. (b)
Article 7 1.
Article 7 2.
National ID PS1898
Country Italy Decision date 08/10/2010
Common name "POOL PHARMA-KILOCAL" Decision type Administrative decision, first degree
Court Autorità Garante della Concorrenza e del Mercato (Rome) Plaintiff(s) Italian Competition Authority
Court translation Italian Competition Authority Defendant(s) Pool Pharma S.r.l
Subject health and safety
Keywords administrative authorityauthorisationmisleading advertisingmisleading omissions

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Headnote

It is an unfair commercial practice to advertise a dietary product, stating that no health risks are involved with this product and that the product can be used as a remedy for improper dietary habits, while such product characteristics are not proven by the trader.

Facts

The present case dealt with an advertisement on diet-stimulating products. Following two complaints reported by a consumer and a competing trader on 9 March 2010 the Italian Competition Authority decided to launch an investigation proceeding against the defendant (a diet-stimulating products dealer) regarding several advertisings put out on television, press, radio and internet.

According to the complaints, the defendant advertised the diet stimulator "Kilocal" suggesting that it did not involve risks and that it remedied improper dietary habits.

 Conversely, the defendant argued that the product "Kilocal" was regularly registered with the Ministry of Health. Regarding its ability to reduce calories, the defendant referred to a technical report filed with the IAP (Institute of Advertising Self-Regulation), which the defendant considered as a sufficient documentation to demonstrate the ascribed effects of the product. The disputed advertising was launched after the decision of IAP. Moreover, in the advertisement, the product was presented as a mere nutrition supplement. In this respect, the defendant further held, that expressions contained in the advertising and considered misleading by the Italian Competition Authority, were mere exaggerations and could not qualify as a misleading commercial practice.

The Authority asked the Ministry of Health for the necessary information.
On 19 May 2010 the defendant offered commitments to correct its practice. The Italian Competition Authority assessed the suitability of such commitments and within the limits of EU law, did not make the commitments offered by the defendant binding .

Since the practice was carried out by television, press, radio and internetthe opinion of the Italian Communication Authority was subsequently requested on 26 June 2010.

Legal issue

Is it an unfair commercial practice to advertise a dietary product, stating that no health risks are involved with this product and that the product can be used as a remedy for improper dietary habits, while such product characteristics are not proven by the trader?

Decision

The Italian Competition Authority found an unfair commercial practice consisting in misleading advertising regarding the diet stimulator "Kilocal".

According to the Authority an average consumer was deceived to believe that the diet stimulator "Kilocal" did not involve health risks.

In a short reasoning, the Authority established that the advertising violated the Guidelines of Ministry of Health, which prescribe that a product's counter-indications should be mentioned in the event of long-term use of the product.

Consequently, the Authority found that the advertising could mislead an average consumer. A consumer could believe that the product was a remedy for improper dietary habits. The advertising also violated the Guidelines of Ministry of Health by omitting the information that the product cannot supplement a healthy diet and regular exercise.

The indications that the product must be considered only as a nutrition supplement and that it must be associated with a low-calory diet and a proper lifestyle, were often entirely omitted (as was the case in the radio advertising) or unreadable (as was the case in the TV spots).

The Authority also found further omissions in all advertisings. They did not contain any reference to the need to consult a doctor in case of use of the product over period of three weeks, which was a requirement pursuant to the above mentioned Guidelines.

As a result, taking into account the gravity and duration of the commercial practice, the Authority concluded that the defendant had breached the prohibition on unfair commercial practices.
 

  URL Decision Decision full text
EN N/A
IT http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/0132E3F06AA58E77C12577BB00288CDE.html

Result

The Italian Competition Authority decided to fine the trader and it issued a cease-and-desist order regarding the criticized practices. The fine imposed was EUR 200.000.

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