Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (a)

(1) Attributing certain qualities to a product, whereas in reality such qualities are contradicted by scientific studies, constitutes a misleading commercial practice.

(2) The omission to mention potential side effects and risks related to the use of a product prior to the sale of such a product, although consumers can take note of this information in a document provided by the trader, constitutes an unfair commercial practice.

 

This case relates to the commercial practices established by the defendants, companies active in the sector of cosmetic products. The Italian Competition Authority decided to start investigation proceedings on 19 March 2010 further to a complaint that contested the alleged misleading nature of an advertisement of a product offered by the defendants.

The defendants, producer and distributor of cosmetic products, advertised on the internet and in leaflets a product distributed under the trade mark "Hypoxi". The skin care product in question was advertised as a replacement for an operation such as liposuction. By using the product, consumers were promised reduction of body fat and cellulite, without further necessity for dieting or body exercises. Results were alleged to be visible after several weeks.

Scientific studies proved, however, that results were only visible and could only be maintained when the product was used in combination with an adapted diet and regular physical exercise, contrary to what the advertisement stated. Further, the product was advertised as "a therapeutic product", whereas in reality it was a mere cosmetic product.

Moreover, it was established that the consumer was not informed of the potential side effects and risks related to the use of the product prior to the purchase of the product. The only possibility for the consumer to take note of such information was to read a FAQ-document that was provided by the defendants.

 

(1) It was ruled that given the fact that the product was presented to the consumers as the only therapeutic product allowing the consumer to get rid of body fat and cellulite without further necessity of diets or physical exercise, whereas in reality, scientific studies had proved that the product only had real effects when combined with diet and regular physical exercise, the consumer is misled by the defendant. The misleading character of the advertisement was all the more true now that the product was presented as being "therapeutic", leading the consumers to believe that the product had certain medical characteristics (as opposed to its mere cosmetic nature).

(2) The Authority stated that a correct advertisement should clearly indicate to the consumers what potential side effects and risks related to the (mis)use of the product are. Such information must be communicated prior to the sale of such product. Consequently, only indicating such information in a FAQ-document which was not provided by the defendants prior to the sale of the product, does not suffice to comply with this obligation. This is al the more true, stated the Authority, as consumers are unlikely to take note of the FAQ document after they have bought the product.

 

(1) Does attributing certain qualities to a product, whereas in reality such qualities are contradicted by scientific studies, constitute a misleading commercial practice?

(2) Does the omission to mention potential side effects and risks related to the use of a product prior to the sale of such a product, although consumers can take note of this information in a document provided by the defendant, constitute an unfair commercial practice?

 

URL: http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/10472BBBA2C1E1D7C125781C004F1943.html

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Based on the gravity and duration of the practice, the Italian Competition Authority decided to impose a financial sanction upon the defendants, amounting to 80.000 EURO.