Misleading advertising is expressly prohibited by the Consumer Code (Legislative Decree No. 206 of 6 September 2005), which classifies it as a misleading commercial practice (Article 21).
The misleading nature of a promotional message may stem not only from the lack of truthfulness in the information conveyed to the consumer (for example, the product lacking the advertised qualities), but also from the recipient’s inability to recognise its advertising nature.
In this second case, the conduct in question constitutes hidden advertising, which may consist of the promotion of a product through the use of editorial content, the costs of which are borne by the trader without this fact being apparent from elements clearly identifiable by the consumer (Article 23 of the Consumer Code).
Another form of advertising that contravenes the principle of transparency is subliminal advertising, which is expressly prohibited by Legislative Decree No. 145/2007. This form of advertising uses elements of irrational suggestion capable of operating below the consumer’s threshold of awareness and interfering with their freedom of choice. Recently, the use of AI systems that manipulate individuals through subliminal techniques has been explicitly included among the practices prohibited by the AI Act (Regulation (EU) 1689/2024).
The use of hidden advertising has gradually intensified with the spread of social networks and, in particular, with the phenomenon of influencer marketing, in which advertising collaborations are very often not adequately disclosed (on these aspects, see B. Cunegatti, D. Sborlini, F. Serpieri, L'uso delle immagini di persone nel digital marketing, Editrice Bibliografica, Milan, 2025, regarding the use of personal images in digital marketing).
It is against this backdrop that the ruling handed down by the Council of State on 10 April 2026 should be viewed; the ruling found that the activities carried out by certain sales representatives of a company marketing slimming and body care products constituted a case of hidden advertising.
These individuals (acting on specific instructions from the company itself) had published a series of posts on their Facebook and Instagram profiles in which they did not explicitly state their role but presented themselves as ordinary consumers and, whilst documenting their daily lives and personal experiences, described the benefits of taking the company’s products (for example, as part of a weight-loss programme).
The Council of State found that the improper and misleading nature of the practice described was evident from the sales representatives’ use of communication logs that blurred the lines between their private and professional lives, with the aim of concealing the promotional intent of the information shared on social media.
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