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COVID-19, commercial communication: A new normal?

Thursday, March 11, 2021 @ 10:27 AM | By Emanuela Truffo


Emanuela Truffo %>
Emanuela Truffo
Beyond any reasonable doubt, the COVID-19 pandemic imposed a new normal to our life in many fields, including business strategies, from product development to marketing and communication choices. What is not clear is if the legal framework has changed. Or if change is afoot.

Before the COVID-19 pandemic, the (Italian) legal framework regarding the Investment Adviser form (ADV) and commercial communication was well defined and developed; the interests of the parties were clear:

Consumers

They have the right to be properly informed. Assuming that between entrepreneurs and consumers there are asymmetries, the rules governing ADV and other commercial communications — no matter what media are used — are focused on reducing the gap between consumers and entrepreneurs, thus putting the former in the best possible position to make their purchasing decision;

Business players

They have the right to promote their own products/services. Of course, they are allowed to highlight the pros and soften the cons. However, they are required to tell truth and are interdicted from using misleading wording;

Market

Any single business belongs to a community that should be defended against any act of unfair competition. And a misleading commercial campaign is one of the best examples of unfair competition on the market, sanctioned by article 2598 of the Italian Civil Code. The fairness between the market players is considered material by the ADV companies, the largest part of which are members of Institute of Advertising of Self Discipline (IAP) and follow the self-regulatory code approved by IAP updated on a regular basis.

The Italian case law in the last 10 to 15 years has been consistent in balancing the interests at play, basically analyzing ADV and commercials from the consumer perspective. Any restrictive order issued by Italian courts or by the Italian Competition Authority (AGCM) was based on the lack of transparency in the message which impaired free self-determination in the purchasing attitude of target consumers.

Does the legal framework described above change because of the pandemic?

No, not at all.

Since March-April 2020, the AGCM was involved in a bunch of cases regarding ADV campaigns and commercial online communications (both websites and social media) by companies offering miracles for fighting the virus, despite the fact science was unable to find the answer.

Among others, AGCM strongly deplores the misuse of new media for promoting:

  • Innovations supposed to heighten immunity against COVID-19;
  • Diets alleging to help fight the virus;
  • Equipment supposedly able to eliminate COVID-19 virus from surfaces and closed spaces.

The minimum common denominators of the decisions mentioned above are the lack of scientific evidence regarding the real effectiveness of the products promoted, evidence hidden through misleading wording and rhetorical tricks.

The AGCM enforced the legal framework known and developed before the COVID-19 era, stating that telling the truth is not enough to comply with communication and marketing rules.

The way you tell the truth is more often than not far more important than the content of your message.

COVID-19 has given us a new normal but it seems to have no impact on the communication rules. At least in Italy.

Emanuela Truffo is a partner at Studio Legale Jacobacci e Associati in Milan, Italy. She specializes in contentious and non-contentious intellectual property matters and commercial litigation across a wide range of local and international practices. She has developed expertise in negotiation and drafting of agreements such as licence, non-disclosure, non-compete and coexistence agreements concerning IP rights and copyright as well as for commercial transactions.

Photo credit / Nuthawut Somsuk ISTOCKPHOTO.COM

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