The investigation—prompted by a notice filed by the European Specialist Sports Nutrition Alliance (ESSNA)—follows a spate of incidences that the AGCM ruled to be in breach of labelling notification requirements, which were deemed as misleading.
The AGCM said that the products presented on the online sellers’ websites would have “misled the consumers as to the actual features of the products, creating the wrong impression that the sale of the advertised products was 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.”
Similar conclusions reached
Detailed in the AGCM’s bulletin dated 18 June, the Authority made a set of decisions based on similar reasoning, deciding on outcomes that involved different online sellers of dietary supplements.
Whilst one online business sold supplements claiming to enhance athletic performance, a number of online sellers located in the United Kingdom, Slovenia and Portugal were guilty of selling products to the Italian market.
The AGCM acknowledged that circumstances of each cases varied. However, similar conclusions were reached based on the lack of compliance with labelling notification requirements, which was found in all instances.
The AGCM added that in only one of the cases, a statement confirming the product’s full compliance with Italian law was put forward.
They added that the same assumptions were made with the other two cases based on the overall online presentation and product promotion, which suggested to consumers that the products were regulatory compliant.
Commenting on the Hogan Lovells blog, representatives from the Italian legal law firm described an outcome where a lack of compliance equals misleading advertising as “far-fetched”.
“In the present proceedings, the AGCM found that the lack of compliance would have inevitably misled consumers regarding an essential feature of the products, even when no advertising claims were specifically made in that sense,” they said.
They added that it was reasonable that regulatory compliance for the commercialisation of a product was 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, it is disputable that there was an advertising claim specifically referring to notification on the product labels or a reference that the ministerial notification is mandatory under Italian law.
The representatives agreed that the omission could not be regarded as inevitably misleading due to the lack of information regarding an essential feature of the products.
Current EU law
Citing Article 10(1) of Legislative Decree 169 of 21 May 2004 (implementing EU Directive 2002/46/EC concerning food supplements), the AGCM said it was the food business operator’s responsibility to inform the Ministry of Health of the food supplement commercialisation.
This could be done by submitting a copy of the labelling used for such product.
More specifically, Article 8(1) of Regulation (EU) No 1169/2011, states "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".
Under Italian law, the AGCM’s rulings may be appealed before the Regional Administrative Court of Lazio.