On February 9, 2021, the Italian Advertising Self-Regulatory Body (“IAP”) published a new regulation (the “Regulation”) aimed at governing commercial communications on food products and beverages to protect children and ensure healthy eating.

The Regulation broadens the rules already provided by Article 11 of the Self-Regulatory Code on Commercial Communications (the “IAP Code”), which prescribes that special consideration shall be given to messages aimed at minors below the age of 12 and teenagers. Among other things, Article 11 of the IAP Code already forbade commercial communications that encourage “the adoption of imbalanced eating habits or disregard for the need to follow a healthy lifestyle.” Article 11 of the IAP Code has now been amended so that that food product and beverage advertising aimed at children is also subject to the content of the Regulation, which is expressly referenced as being part of the IAP Code.

The Regulation largely incorporates the content of the Guidelines for marketing communication relating to food products and beverages, to protect children and their proper nutrition (the “Guidelines”), issued by the Italian Ministry of Health in 2015 together with the IAP and a group of trade associations, which—although not formally binding—highlight the importance of fair advertising of food products and of the monitoring activity carried out by the IAP.

Accordingly, Article 4 of the Regulation includes a ban on “statements or representations that could mislead children, including omissions, ambiguity, and exaggerations that are not obviously hyperbolic, particularly regarding the nutritional characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes, or rewards.” Further, the Regulation cites some general principles governing advertising, such as the principle of fair representation (Article 3) and the principle of transparency (Article 6).

In addition to the above, by issuing the Regulation the IAP sought to take up the call put out by Directive (EU) 2018/1808 (not yet transposed in Italy, except for very few provisions), which reiterates the importance of codes of conduct in offering protection to consumers and calls for self-regulation and co-regulation to reduce children’s exposure to inappropriate audiovisual commercial communications. Indeed, the 2018 Directive amended and updated the Audiovisual Media Services Directive (Directive (EU) 2010/13) introduces, among other things, an explicit reference to codes of conduct that operate to “effectively reduce the exposure of children to audiovisual commercial communications for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium, and sugar, of which excessive intakes in the overall diet are not recommended.

Accordingly, the Regulation moves in that direction by providing a specific rule under Article 5 relating to “Audiovisual commercial communications for food products and beverages containing fat, trans-fatty acids, sugar, and sodium or salt.” Specifically, Article 5 of the Regulation provides that audiovisual commercials aimed at children “must not emphasize the positive nutritional qualities” of food and beverages containing “fat, trans-fatty acids, sugar, and sodium or salt, of which excessive intakes in the overall diet are not recommended.” It does, however, allow for “highlighting the presence, absence, reduction, or replacement of one or more ingredients or their components within the limits permitted by current legislation.

Further restrictions are provided by the Regulation, which applies generally to any form of commercial communication, thus including, for example, advertising, sponsorship, and direct marketing, but also packaging, wrapping, and labeling—in other words, any message capable of leading to immoderate consumption that runs contrary to healthy eating behaviors.