Who: Regional Administrative Court of Lazio
Where: Italy
When: 3 January 2017
Law stated as at: February 2017
What happened:
Chewing gums can not replace your good old toothbrush, despite numerous slogans stating the contrary in TV adverts and publicity by Daygum Protex, Daygum XP, Happydent White, Vivident Xylit and Mentos Pure White. This was in essence the Italian Competition Authority’s ruling, which accused the company Perfetti Van Melle of having misled millions of consumers for almost two years.
On 3 January 2017, the Regional Administrative Court of Lazio, upheld that ruling. The court reiterated that the misleading elements identified by the Competition Authority were fully in line with the provisions of the European laws on nutritional and health-claims and of the European Food Safety Authority (EFSA). This decision comes more than three years after the appeal to the administrative court by Perfetti Van Melle, the company owning the brands in question.
The story dates back to September 2013, when the Competition Authority, following the advertising campaigns for various products under the Vivident, Happydent, Daygum and Mentos brands made from 2011 to 2012, ordered Perfetti Van Melle to pay a fine of 180,000 Euros. The Competition Authority found that presenting the product as suitable for maintaining oral hygiene, and the positioning within the adverts of sugar-free chewing gum/chewing gum containing xylitol alongside/together with toothbrushes and dental visits, was misleading.
According to the EFSA, even if sugar-free chewing gums do reduce dental plaque, this effect is only achieved after 20 minutes of chewing three times a day after each meal. The beneficial effect of xylitol against plaque is recognised, but there is no evidence that sugar-free chewing gums containing xylitol perform this function.
Shortly after the 2013 decision by the Competition Authority, Perfetti Van Melle issued a statement in which it stressed that its “product labels had been held as conforming [to requirements] by the Ministry of Health“, reiterating that the Advertising Self-regulatory Authority had never considered the advertisements in question as incorrect. The company asserted that its communication strategy was based on scientific assumptions and that the adverts always reminded the public to use chewing gums only when the toothbrush option is not available. The appeal to the Regional Administrative Court was based on the same objections. However, those objections were rejected by the judges.
Why this matters:
The unfair commercial practices of Perfetti Van Melle were twofold: (i) using health-claims aimed at attributing, benefits for dental health that chewing gum does not in fact provide and (ii) using chewing gum alongside images of toothbrushes or dental surgeries implicitly or explicitly affirming that they can be considered on equal footing.
The decision also ends hinting that health claims should be authorised by EFSA. The decision of the Regional Administrative Court is an important precedent that will have to be taken into account in future advertising campaigns by companies operating in similar sectors.
