By Elena Varese and Andrea Michelangeli

The Istituto di Autodisciplina Pubblicitaria, i.e. the Italian advertising standards authority (“IAP“) has recently issued a new piece of regulation aimed at specifically providing guidance on the commercial communication of food and beverage products addressed to children, which entered into force on 9 February 2021 (“Regulation“), thus extending the protection already guaranteed to children by Article 11 of the IAP Advertising Code.

The enactment of the Regulation is part of the initiative, endorsed also by other national legal systems, aimed at contrasting and/or restricting the advertising of junk food in order to help protecting children from developing unhealthy eating habits. For instance, the UK government is currently moving in the direction of a total ban of online advertising of such type of food products regardless of the relevant audience (children or adults), with relevant consultations in this regards still ongoing.

In such context, although adopting a less restrictive approach than the one envisaged in the UK, the Regulation overlooks through a more in-depth perspective the issue of the exposure of children to food and beverage advertising from various angles, with the belief and objective that responsible and correct commercial communication can indeed make a significant contribution to the protection of minors from the risk of obesity and overweight, which are proven to be associated with reduced life expectancy and represent a risk factor for various chronic diseases. This issue has become even more contemporary in the COVID-19 era, where there would be evidence that overweight or obese people would be exposed at a greater risk of becoming seriously ill after contracting the virus.

As anticipated, the Regulation enlarges the protection reserved to children enshrined in Article 11 of the Italian Advertising Code, which provides that commercial communications should avoid material that could cause psychological, moral or physical harm to children (i.e. minors of less than 12 years of age), and should not exploit the credulity, inexperience or sense of loyalty of children or young people. Drawing from the provisions already included in the IAP Advertising Code as well as from the case-law of control bodies in relation to the protection of minors, the Regulation offers an organic framework of the matter, introducing, inter alia, provisions ruling that:

• audio-visual commercial communication intended for children, or likely to be received by them, must not accentuate the positive qualities of the nutritional aspects of food products or beverages dependent on fat, trans-fatty acids, sugar, sodium or salt (e. HFSS products), the excessive intake of which in the general diet is not recommended, although it may highlight the nutritional aspects dependent on substances other than those above-mentioned (Article 5 of the Regulation);
• commercial communication of foods and beverages intended for children, or likely to be received by them, must always be recognisable as such. With regards to those media in which, in addition to the commercial communication, other information and content is conveyed, the commercial communication concerned must be clearly distinguished by appropriate means (Article 6 of the Regulation);
• under no circumstances an immoderate or unbalanced consumption, in contrast with correct eating behaviours, must be suggested (Article 7, No. 3, of the Regulation);
• situations that might suggest that failure to consume the advertised product will result in rejection by friends or exclusion from a peer group or community must be avoided (Article 7, No. 6, of the Regulation);
• scenes of children consuming food alone in front of a screen, encouraging a particularly inactive lifestyle, must be avoided (Article 7, No. 10, of the Regulation).

It must be recalled that the IAP Advertising Code is not binding for non-members of the IAP itself. However, as all the main Italian TV and media players have adhered to the IAP, the provisions contained in the Regulation will likely have an actual impact on the advertising of food and beverage products addressed to children. In the meantime, hard law provisions coming from the Italian legislator in this regard are much awaited considering the importance of the matter, which deals with the health and safety of the youngest generations, already affected by a desk-bound lifestyle which is more and more characterizing our current society, especially since the COVID-19 outbreak started in 2020.

If you would like to know more about this topic, and food law in general, please contact elena.varese@dlapiper.com and andrea.michelangeli@dlapiper.com.