What are the main legal controls on advertising and marketing of alcohol in your jurisdiction?
Local legislation considers as "alcoholic" beverages with alcoholic content exceeding 1,2º and as "super-alcoholics" those with more than 21 per cent of alcohol in volume. All commercial communication relating to such products is subject to a range of restrictions set both, by Italian Statute Law as well as by Industry Self-Regulation.
In general terms, advertising and marketing of alcohol will have to comply with the domestic provisions governing the promotion and the selling of food and beverages (as laid down in Law no. 283 of 1962, specifically in Article 13) and with the local regulations implementing the EU Directives on labelling and advertising of food products (Legislative Decree no. 109 of January 27th, 1992, Article 2). Additional relevant requirements and prescriptions may be found in the Italian Consumer Code (Legislative Decree no. 206 of 2005).
Specifically the topic is subject to the restrictions set by Law no. 125 of March 30th, 2001 (a general policy law meant to prevent addiction and to favour rehabilitation).
What are the main regulatory controls on advertising and marketing of alcohol in your jurisdiction?
The Italian legal framework assigns control functions to a special Authority (AGCM = Commissioner for Market and Fair Competition) which is called to react – either ex officio or on complaint of an interested subject – against illicit comparative or misleading advertising and is entitled: to issue cease injunctions (in order to stop illegal campaigns), to apply fines (from Euro 5.000 up to Euro 500.000), to suspend offenders from business and to provide both, for public announcement of violations sanctioned as well as for corrective advertising.
When the questioned commercial communication is performed through particular media (such as TV, Radio or Press), another Authority (AGCOM = the Communication Commissioner) will become involved. It has competence as to issuing regulations and guidelines for advertising diffused via such media.
The Institute for Advertising Self-Regulation (IAP) administers the Code of Marketing Communication Self-Regulation (CAP) which sets general principles and specific requirements for advertising and marketing of alcoholic beverages.
What are the main principles of alcohol advertising regulation in your jurisdiction?
(a) Law no. 283 of 1962 requires all advertising for food products to be correct, transparent, truthful and not misleading. In addition, Legislative Decree no. 109 of 1992 (implementing the EU Directives nos. 89/395 and 89/396), while confirming such requirements, also calls for proper and correct consumer information with respect to labelling and advertising of alcoholic beverages.
(b) Since July 30th, 2008 Ministerial Decree, jointly issued by the State Departments for Labour, Public Health and Welfare, obliges the owners of entertainment premises to properly inform their customers about beverages' alcoholic content (this also with the aim of allowing them adequate control on compliance with the restrictions set by the local Traffic Code on "drink and drive").
(c) The 'Consumer Code' (Legislative Decree no. 206 of 2005, implementing EU Directive no. 2005/29/EC on Unfair Commercial Practices) considers as unfair and misleading a commercial practice, which omits to provide – when relating to products potentially harmful to consumers' safety or health – adequate information and therefore induces consumers to ignore risks or ordinary rules of caution.
(d) Law no. 125 of 2001 already did provide for specific limitations with respect to TV and Radio advertising of alcoholic beverages. According to Article 13 advertising for alcoholic and 'super-alcoholic' drinks (i. e. those with a high grade of alcoholic content as most of the spirits) was totally banned:
- during TV programs for children as well as during the 15 minutes preceding and following the broadcasting of such programs,
- when claiming (without an explicit approval of the State Department for Public Health) therapeutic benefits deriving from alcoholic beverages,
- when showing children consuming alcoholic drinks or suggesting to consider such use as a positive attitude,
- advertising (both direct as well as indirect) of alcoholic beverages may not be performed in places primarily attended by children,
- commercial communication for high grade alcoholics is banned during programs aired on TV/Radio (from 4 to 7 pm).
- such advertising is also not allowed in the press (for publications mainly targeted to children) as well as at cinemas running movies specifically directed to an audience of children.
(e) Nowadays the issue is dealt with by the "Consolidated Act on Audio-Visual and Broadcasting Services" (Legislative Decree no. 177 of 2005), recently amended (through Legislative Decree no. 44 of 2010) in the context of the domestic implementation of the EU Directive on Audio-Visual Media Services.
The Act puts a special focus on commercial communication performed via audio-visual media services and sets the general principles and criteria to be observed for such communication. Article 36-bis requires commercial communication:
- not to encourage conduct likely to cause harm to safety or health,
- when referring to alcoholic beverages, not to target and address specifically minors of age or encourage excessive consumption of such beverages.
Furthermore Article 37 sets that commercials meant to advertise alcoholic beverages:
- may not expressly target minors and may not present them while consuming such beverages,
- may not establish any connection between consumption of alcoholics and physical strength or car driving,
- have to strictly avoid any suggestion that consumption of alcoholics contributes to social or sexual success,
- must restrain from associating alcoholic beverages with therapeutic, stimulating, relaxing effects and from suggesting their capacity of resolving psychological conflicts,
- must not encourage uncontrolled or excessive consumption of alcoholics and must not present abstinence or sobriety in a negative light,
- must restrain from associating indications about the beverage's alcoholic content with positive qualities of an alcoholic product.
(f) The Code of Marketing Communication Self-Regulation explicitly states (see Article 22) that advertising of alcoholic drinks shall not be targeted, albeit indirectly, to minors and must not:
- " - encourage the excessive, uncontrolled, and hence damaging consumption of alcoholic beverages,
- depict situations suggesting either an unhealthy attachment or an addiction to alcohol, or the belief that resorting to alcohol can solve personal problems,
- target or refer to minors even only indirectly, or depict minors consuming alcohol,
- associate the consumption of alcoholic beverages with the driving of motorized vehicles,
- lead the public to believe that the consumption of alcoholic beverages promotes clearness of mind and enhances physical and sexual performance, or that the failure to consume alcohol implies physical, mental or social inferiority,
- depict sobriety and abstemiousness as a negative value,
- induce the public to disregard the different drinking styles associated with the specific characteristics of individual beverages, and to ignore the personal conditions of the consumer,
- stress the alcoholic strength of a beverage as the main theme of the advertisements".
(g) On March 16th, 2007 the Sate Departments for Home Affairs and for Sports and Youth have jointly reached an agreement with some of the particularly involved Trade Associations (e. g. those of the local producers or importers of beer, wine or spirits, of the entertainment industry, of the barmen) on promoting a special Ethic Code, which in the following was also adopted by other interested associations (e. g. that of the driving schools) as well as by Town Councils.
Such Ethic Code is aimed at:
- promoting responsible drinking and driving both, in general as well as through periodic educational/informational campaigns (targeting especially young people),
- favouring certain restrictions on sales of alcoholic beverages in entertainment premises (also if performed through vending machines),
- convincing customers, when leaving premises open to the general public, to spontaneously undergo quick tests and inviting those showing excessive alcohol consumption to restrain from driving,
- offering special benefits (as free access or reduced tickets, one free non-alcoholic drink, etc. ) to the so-called 'designated driver' (i. e. one person volunteering to not consume alcoholics during the entire stay) of a group entering an entertainment premise,
- increasing control in order to prevent sales of alcoholic beverages to minors of age,
- excluding discount (or below-the-cost) promotions with respect to alcoholic drinks.
(h) Audio- and Videotex services: According to Ministerial Decree no. 385 of 1995 such "services and information should be directed, as a rule, to people older then 18 years" and "are not allowed to stimulate the use of alcoholic beverages and tobacco products ...". These provisions were repealed by Ministerial Decree no. 145 of March 2nd, 2006, which introduced a broader regulation now governing all services, provided by means of electronic communication and involving for users additional costs/payments; the regulation includes services provided through SMS, MMS, dial-up systems and interactive digital TV. Article 3 of the Decree explicitly sets that such services may not induce the consumption of alcoholic beverages.
How would you assess the pressure for tighter regulation in your jurisdiction?
As far as the institutions of the EU are concerned it appears that Directorate General for Health & Consumers is monitoring the problem of alcohol related harm and is trying to achieve standards of good practices and written alcohol policies. A progress report of such efforts is due in 2012. Despite huge efforts and pressure performed by interested stakeholders such as Eurocare - The European Alcohol Policy Alliance (a network of some 50 voluntary and non governmental organisations promoting the ELSA project, i. e. 'Enforcement of national Laws and Self-regulation on advertising and marketing of Alcohol'), additional harmonized legislation and new regulations as to alcohol advertising don't seem to be on the horizon in a near future.
I also don't foresee that in Italy the issue will be addressed by new provisions.
Please describe any recent interesting, significant, or archetypal examples of an alcohol advertisement that has been banned in your jurisdiction.
(i) The Review Board of the local Institute for Advertising Self-Regulation in 2010 questioned and halted TV commercials through which female models promoted a wine brand with slogans such as: "I drink wine X with my hip hop trainer, because when we're alone the music changes", "I drink my wine X with my guitar player, because he knows how to touch the right strings", "Whom are you drinking your wine X with?" In the Board's view the commercials infringed on Article 22 of the Code, which requires alcohol advertising "not to be in contrast with the obligation to depict styles of drinking behaviour that project moderation, wholesomeness and responsibility" and to avoid encouraging "the belief that the consumption of alcoholic beverages promotes clear thinking and enhances physical and sexual performance". The advertiser challenged the Board's injunction before the Jury, but had his opposition dismissed (through decision no. 45 of May 3rd, 2010). The Jury was not impressed by the warning message "Drink responsibly" in small type.
(ii) In January 2011 the Review Board forced a local beer producer to change the commercial communication on its website, where a certain brand was promoted by claiming nutritional capacities and health benefits. The messages were considered as misleading and in violation of Article 22 of the Code.
(iii) Through decision no. 128 of June 24th, 2010 the Commissioner for Market and Fair Competition served a broadcasting company with 75.000 Euro fine for airing a commercial for an alcoholic beverage during a 'protected air time period' (from 4:00 to 7:00 pm). The Commissioner applied a 'reduced' fine considering that the commercial had been aired only three times (at 6:57 pm and at 6:59 pm).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.