172 WINE LAW his individuality in terms of what he wears, drives, eats—his home, his car, his pattern of food serving, his hobbies”3. While the capitalist and lasses-faire system was considered the only feasible option for many decades, it soon became apparent that a view of consumers as powerful actors in the market dynamics4 was simplistic at best. Consumers were rather passive subjects and, thus, easy prey for corporations willing to influence their behaviour5. Particularly in the EU, but also in countries such as Japan6, there was a growing awareness of the need to regulate the market to grant consumers a right of protection against the imbalance in their approach to and by corporations. The assumption and approach have been rather typical of most European constitutional systems, which not only provide for a level playing field but also asymmetric regulation whenever one of the parties involved is physiologically in a disadvantage position compared to the other(s)7. More recently, in the wake of joint studies by sociologists and economists8, regulators have learned that consumers are not only at a disadvantage when it comes to negotiation instruments, but are also inclined to behave irrationally, which naturally puts them at additional risk – hence the need to consider this factor when issuing new rules. One suggested approach to resolve this issue is two-tiered: providing for laws that prevent abusive behaviour by corporations while simultaneously informing consumers and “nudging” them towards a pro-active and rational stance9. However, nudging is a delicate issue. Scholars have been divided on the most appropriate approach and debated on whether “authoritarian paternalism” was 3 V. LEBOW, Price Competition, in Journal of Retailing, 1955. 4 W. H. HUTT, Economists and the Public. A Study of Competition and Opinion (1936), London, 1990. 5 G. KATONA, The Powerful Consumer, New York, 1960; P. LAZERSFLED, The Psychological Aspect of Market Research, in Harvard Business Review, I, 1934. A true “revolt” against consumerism is the focal point of a famous essay (N. KLEIN, No logo. 10th Anniversary Edition, Basingstoke, 2009). 6 G. LEMME, Gli strumenti di tutela del consumatore come perno della regolazione del mercato e delle sue criticità: Italia e Giappone a confronto, in I. BAGHI, V. GABRIELLI & G. LEMME, Consumatori e imprese irresponsabili. Italia e Giappone a confronto, Milan, 2018. 7 See art. 3 of the Italian Constitution, which provides, in §2, for specific actions to compensate disadvantages that prevent actual equality. The Spanish Constitution (art. 51) specifically regulates consumer rights. 8 D. KAHNEMANN & A. TVERSKY, Prospect Theory: An Analysis of Decision under Risk, in Econometrica, 1979; R. H. THALER, The Winner’s Curse. Paradoxes and Anomalies of Economic Life, Princeton University Press, 1992 and Misbehaving. The Making of Behavioral Economics, New York, 2005. 9 R. H. THALER & C. R. SUNSTEIN, Nudge. Improving Decisions about Health, Wealth and Happiness, New York, 2008; C. R. SUNSTEIN, Why nudge?, New Haven – London, 2014; N. RANGONE, Tools for Effective Law: A Focus on Nudge and Empowerment, in Conc. e Mercato, 2017.
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