The omission of notice implies misleading advertising

09 February 2011

Licia Garotti, Linda Brugioni

It is also worth quoting a recent decision concerning misleading advertising in the field of food law.

The decision deals with the advertising of a dietary supplement.

Under the health regulation, there is no duty for the producer to indicate contradications on the packaging of a dietary supplement, provided that such product is consumed according to the correct dosage established by Health Ministry guidelines and indicated in the internal leaflet.

However, although the product is harmless for the general public, it might not be so for groups of consumers affected by specific diseases that may have a negative reaction to some ingredients of the supplement. This aspect involves the general principle regarding the public interest to preserve the health of consumers and should be taken into account in the advertising for this product.

In the concerned decision, the Administrative Appeal Court (Consiglio di Stato, sez. VI, July 27, 2010, n. 4894) confirmed the decision of the Italian Competition Authority (AGCM – Autorità Garante della Concorrenza e del Mercato), which considered the advertising of a dietary supplement as misleading because it did not provide notice of possible harm to a specific group of consumers.

It has therefore become a fact that the producer’s duty of transparency in advertising does not correspond to the producer’s duty of information for drugs which may be a health hazard.

Thus, although the dietary supplement is harmless if used correctly and there is no duty to indicate the contradication on the product’s label according to health regulations, a lack of correct information in the advertisement will be considered as harmful for certain consumers, who could be induced by the persuasive power of advertisement to use the product even if dangerous for them.