Philip Morris International’s Italian affiliate company Philip Morris Italia S.r.l (PMI) was found guilty of a breach of the Consumer Code as a result of 'hidden advertising.' There were a number of magazine articles that appeared in various publications in Italy, which on their face were about other subjects (e.g., how to freshen up a used car, how to cook at the right temperature), but also used part of the article to extol the virtues of IQOS, Philip Morris's heated tobacco product. The Italian Competition Authority held that this was a violation of non-transparent advertising and was in breach of the Consumer Code. PMI was fined 500,000 Euros (the maximum), and the publisher was fined 50,000 Euros.
Plaintiff
National Consumers Union (Unione Nazionale Consumatori)
Defendant
Conti Editore S.r.l.
Philip Morris Italia S.r.l.
Legislation Cited
Consumer Code
Regulation on preliminary investigation procedures concerning misleading and comparative advertising, unfair commercial practices, violation of consumer rights in contracts, violation of the prohibition of discrimination and unfair terms
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
Heated tobacco products (HTPs) are tobacco products that require the use of an electronic device to heat a tobacco insert (stick or pod of compressed tobacco). HTP systems are fully integrated so that the heating device and tobacco insert for each system must be used together.
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Therefore, it appears evident that the explicit indication of the brand, the description with emphatic tones of IQOS device's characteristics, the obtainment of advantages derived from its use as well as the mention of the particular favor that the product has also achieved with consumers, correspond, on the other hand, to typical promotional-commercial methods, entirely clashing with the context of the articles. It can therefore be implicitly deduced also from the defense considerations made by Conti Editore, where the professional states that his conduct “gave the consumer greater information than those available on the market, making it possible for them to make their own decisions even more freely and consciously”."
"With reference to the case in point, although the preliminary evidence is not the result of an explicit agreement between the companies and the publishing house, the circumstantial elements gathered throughout the proceedings support the subsistence of a clear promotional intent and therefore the dispute of non-transparent advertising. To this effect, preliminarily, it is shown that through an e-mail obtained during the inspection, the need was warranted to help the company Sport Network S.r.l. - advertising agent of Conti Editore S.r.l. to increase its advertising revenues also through publication of advertorials according to the editorial line established during the meeting of February 2018, the same time period as publication of the article “A ruote fumanti (ma non troppo).” Returning to the disputed articles, it is highlighted, to begin with, that in the same articles, the reference to the IQOS device is extraneous to the content of the article and emphasized. If, in fact, the point of the article “A ruote fumanti (ma non troppo)” was to inform the readership about the criteria adopted to determine the value of used cars and the consequences on that assessment of smoking in the car - and this can be inferred from the inclusion of the same in a broader journalistic reportage on the theme - it is unclear why it was necessary to specify to the public that the smoke-free tobacco products were of a specific brand and to boast about the specific technical characteristics. In fact, the article, after mentioning electronic cigarettes among the valid alternatives to traditional smoking, in particular smoke-free tobacco products, it specifies that among these “IQOS stands out, the innovative Philip Morris International device that heats without burning dedicated tobacco sticks, eliminating the most harmful substances of cigarettes - ash and smoke - the thing that harms Italians' cars most.” After the description of the product characteristics, it mentions the “double advantage” of its use, “for the pocketbook, on one hand, and for the reduced harm to the health of those getting in the car, on the other hand.” The article closes later with the statement to entice purchase of the product: “After all, why miss out when there are valid alternatives?” "
"Preliminarily, it was observed that hidden advertising constitutes an unfair practice because it deprives the reader of his natural defenses that are up when it is clear that the product or service being lauded is an advertisement. This behavior is especially insidious because it can wrongly condition the reader because it can circumvent or cancel out many of the reader's defenses against frank advertising. With regard to the commercial intent pursued and not expressed, the principle of transparency [is relevant], in particular in the case of misleading omissions, pursuant to article 22, subsection 2, Consumer Code. The criterion lies in the necessity that the commercial practices, and in particular advertising communications, must be recognizable as such and distinct from any other type of communication, such that the user can realize that there is a promotional purpose of the communication transmitted and accordingly calibrate his level of attention and trust."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Philip Morris International’s Italian affiliate company Philip Morris Italia S.r.l (PMI) was found guilty of a breach of the Consumer Code as a result of 'hidden advertising.' There were a number of magazine articles that appeared in various publications in Italy, which on their face were about other subjects (e.g., how to freshen up a used car, how to cook at the right temperature), but also used part of the article to extol the virtues of IQOS, Philip Morris's heated tobacco product. The Italian Competition Authority held that this was a violation of non-transparent advertising and was in breach of the Consumer Code. PMI was fined 500,000 Euros (the maximum), and the publisher was fined 50,000 Euros.