The Italian Competition Authority (AGCM) takes action against online sellers of dietary supplements for regulatory non-compliance resulting in misleading actions

Further to a notice filed by European Specialist Sports Nutrition Alliance (ESSNA), the AGCM -the authority in charge with the enforcement of laws on deceptive advertising and deceptive commercial practices pursuant to the Italian Consumer Code, as well as with the assessment of the correct use of nutrition or health claims - has started an investigation on the online sale of dietary supplements on the Italian market, supposedly not complying with Italian regulatory provisions on dietary supplements, and resulting in misleading actions.

Labelling notification of dietary supplements

Article 10(1) of Legislative Decree No. 169 of 21 May 2004 (implementing the Directive (EC) 2002/46) stipulates that "at the moment of first commercialisation of a [food supplement] the concerned enterprise shall inform the Ministry of Health by submitting a copy of the labelling used for such product".

The notification must be performed by the food business operator responsible for the commercialisation in Italy of the related food supplement. More specifically, in light of Article 8(1) of Regulation (EU) No 1169/2011, "the food business operator responsible for the food information shall be the operator under whose name or business name the food is marketed or, if that operator is not established in the Union, the importer into the Union market".

The AGCM decisions

Three decisions based on similar grounds have been published in the AGCM's bulletin No. 23 of 18 June 2018, delivered in three set of proceedings started against different online sellers of dietary supplements. The products were dietary supplements, mainly intended to enhance exercise and athletic performance, sold on the Italian market by online sellers located respectively in the United Kingdom (decision No. 27194), Slovenia (decision No. 27195), and Portugal (decision No. 27196).

While the circumstances of these cases were not identical, similar conclusions have however been drawn based on the lack of compliance with the regulation requiring the notification of the products' labelling, which was found in all instances, and the similar qualification of such behaviour by the AGCM as misleading advertising.

The AGCM found that the sellers put on the Italian market, selling online from abroad, dietary supplements whose labelling had not been notified to the Ministry of Health. The AGCM pointed out that the notification is a condition for lawful commercialisation of the food supplement on the Italian market, and that it is intended to enable the Ministry of Health's vigilance, preventing manufacturers from placing on the Italian market products that for their content and indication of use, as disclosed by the labelling, are not consistent with the Italian regulation on food supplements. The AGCM stated that, according to the claims showed in the investigated professionals' websites, the presentation of the products would "have misled the consumers as to the actual features of the products, creating the wrong impression that the sale of the advertised products is lawful and is thus performed in full compliance with the applicable regulation. Therefore consumers may be prompted to choose the advertised dietary supplements on the basis of an erroneous understanding, so that their economic behaviour is adversely affected".

However, a clear statement that the products were fully compliant with Italian law was put forward in only in one case, while for the others the same conclusion was drawn on the ground that the overall presentation and promotion of the products in the respective websites would have generated in the consumers an unjustified reliance on the products' regulatory compliance.

Comments

The number of dietary supplements - and the variety of uses for which they are promoted - has significantly increased in the last few years, as well as the direct number of purchases of said products through the web.

In this context, the AGCM’s role is generally to ensure that consumers obtain accurate information concerning dietary supplements so that they can make informed decisions concerning these products. Indeed, the AGCM’s enforcement action is mainly focused on detecting and removing false and misleading claims (e.g., weight loss supplements and products advertised as guaranteeing immediate results or supplements which could cause serious health risks).

The cases at stake are quite different from the ones described above. Once a lack of regulatory compliance is found, the potential impact on consumer protection must be carefully considered for the specific consequence on a case by case basis. In the present proceedings, the AGCM was of the opinion that the lack of compliance would have inevitably misled the consumers on an essential feature of the products, even when no advertising claims were specifically made in that sense. It is reasonable that regulatory compliance with the requirements provided by the law for the commercialisation of a product is usually assumed by consumers. However, the conclusion that any lack of compliance automatically amounts to misleading advertising appears to be far-fetched. In the present case, indeed, it is disputable that there was an advertising claim specifically referring to notification in the labels of the product labels. Nor the mention of the ministerial notification is mandatory under Italian law; therefore the omission cannot be regarded as inevitably misleading, due to the lack of information on an "essential feature" of the products.

The AGCM decisions may be appealed before the Regional Administrative Court of Lazio and it would be of interest to observe the thoughts of the administrative judges in relation to the above mentioned issues.

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