updated 4th of February 2021
U-masks in the eye of the storm
The criminal investigation centres on the allegation that the ‘VIP’ masks were marketed with a level of protection against the Covid-19 virus that they appear not to have
The Milan Public Prosecutor’s Office has opened an investigation into the alleged crime of fraud in the exercise of trade, and the director of the company’s Italian branch has been placed on the register of suspects. To make matters worse, the crime is included in the list of offences that – if ascertained – could drag the company into the dock for criminal liability under Legislative Decree 231/2001 (Article 25 bis.1).
Product promises (in brief)
According to the manufacturer, the U-mask (U-mask Model 2), registered as a Class 1 Medical Device, is designed to ‘limit contagion between people and is a durable personal protection shield, perfect for reducing exposure to diseases and airborne contaminants’. Online, a comparison between U-masks Model 2 and FFP-2/N95 masks is also shown.
The advertisement promises: “microbes (including the H1N1 virus) are destroyed by the unique patent pending Biolayer inside U-mask“. The company’s patented BioLayer™ formula would kill pathogens instead of simply blocking them.
The advertising campaign worked: the mask is popular in Formula 1 (Ferrari, Mercedes and McLaren), very common among Italian MPs, it is used by the influencer couple par excellence, Ferragni and Fedez, just to give two coordinates of the phenomenon.
The alleged offence?
The criminal investigation was opened following a criminal complaint by a competitor company, with attached laboratory analyses showing that the filtering capacity of the biotech mask (with the filter lasting 150-200 hours) was 70-80%, compared to the officially advertised 98-99%.
Public Prosecutors Tiziana Siciliano and Eugenio Fusco have delegated the investigation to the local police and the judicial police of the Health, Environment and Labour Department. An evidence requisition has already been issued and a consultant has been appointed to carry out the necessary technical and scientific analyses.
If the facts brought to the attention of the Judicial Authority are ascertained, they will be classified as a crime of fraud in trade, which is covered by Article 515 of the Italian Criminal Code.
The prosecution’s theory is that the product, sold as an innovative mask capable of destroying micro-organisms instead of “merely” preventing contact, actually filters out less than the surgical masks sold for 50 cents.
In the company’s note, the company’s lawyer pointed out that the company’s official website does not ‘equate’ the masks with Ffp2 or Ffp3 masks, but speaks of filters lasting 150 to 200 hours.
Not bad. On the website, the comparison is visual and immediate.
If it were found that the filtering was lower, it would be difficult to reasonably exclude misleading consumers.
As a precautionary measure, the company has removed any express reference to equating filtering power with FFP3.
Added to this is the biological risk of contagion to which thousands of people are allegedly exposed, despite themselves, believing that they are protected. More protected.
The accusatory hypothesis is not unrealistic, since the objective element of the crime in question is the delivery of a different good (in terms of quality, in this case).
Moreover, for the purposes of Article 515 of the Criminal Code, the diversity of the goods must emerge not so much from the name of the products as from an analysis of the factual circumstances relating to quality, type, labelling, the overall name and the manner in which the goods in question were put on sale.
Pending the outcome of the investigations and the possible prosecution of those responsible, it should be noted that in this case, more than in others, the possible offence would certainly have been committed in the interest and to the advantage of the company. For the purposes of the company’s criminal liability (Legislative Decree 231/2001), it will be interesting to verify whether and to what extent the company had adopted effective and efficient Organisation, Management and Control Models, (compliance system).
All that remains is to await the outcome of the investigation.
Regardless of the judicial outcome of the case, in the interests of protecting health, the hope is that in these investigations the utmost transparency will be guaranteed regarding the results of the technical consultations carried out on the masks.
