ITALY Law and Practice Contributed by: Massimo Tavella, Jacopo Ciani and Barbara Mazzi, Tavella Avvocati Associati
Tavella Avvocati Associati Via del Lauro 14 – 20121 Milano Italy
Tel: +39 02 89 05 00 40 Fax: +39 02 87 16 36 02 Email: info@tavella.law Web: www.tavella.law
1. Legal Framework and Regulatory Bodies 1.1 Primary Laws and Regulation In Italy, advertising practices are primarily regulated by the Consumer Code (Legislative Decree No 206/2005), and Law Decree No 147/2005 on comparative adver - tising. The Consumer Code transposes EU Directive 2005/29 into the Italian national legal system and applies to B2C advertising, prohibiting both mislead - ing and aggressive commercial practices that could distort consumers’ economic behaviour. Decree No 147/2005 provides for the same discipline but applied to B2B relationships. The same practices may be sanctioned also under the unfair competition (pass - ing-off) tort pursuant to Article 2598 Italian Civil Code. Sector-specific norms exist for industries such as pharmaceuticals, food and beverages, financial and insurance services or for influencer marketing, nutri - tion and health claims or prize contests and promo - tions. Beyond state regulation, Italy has a system of adver - tising self-regulation which is part of the EASA (Euro - pean Advertising Standard Alliance). The Italian Adver - tising Self-Regulation Authority (IAP) applies the Code of Marketing Communication adopted for the first time in 1966, now in its 71st edition (the “IAP Code of Mar - keting Regulation” or “IAP Code”). 1.2 Enforcement and Regulatory Authorities Regulatory authorities charged with enforcement of laws and regulations governing advertising practices are as follows.
• AGCM ( Autorità Garante della Concorrenza e del Mercato ), the Italian Competition Authority, is the administrative authority responsible for enforcing the Consumer Code’s provisions on unfair com - mercial practices. It can investigate, issue sanc - tions (including fines up to EUR10 million), and order to stop or modify unlawful advertisements. • Specialised sectoral regulators, such as AGCOM (media), AIFA (pharmaceuticals), IVASS (insurance), CONSOB (financial services) and Ministry of Health (food, health products), may intervene when adver - tising touches upon their areas of competence, providing their opinion. • Compliance with the IAP Code of marketing regulation is granted by a review board and a jury, an independent body that evaluates complaints regarding marketing communication allegedly breaching the IAP Code of Marketing Regulation. 1.3 Liability for Deceptive Advertising Liability for misleading or unlawful advertising in Italy can fall on multiple actors, depending on their role and level of involvement: • advertisers are directly liable, being the originators of the content and the parties who benefit eco - nomically from the advertising; • advertising agencies or content creators can also be held responsible, particularly if they played a key role in developing, designing or disseminating the misleading content; • publishers, broadcasters and online platforms may be held liable if they disseminate advertisements that clearly violate regulations, and fail to act expe -
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