Legislative decree n. 231 approved by the Council of Ministers on 11 December 2017, containing the disciplinary rules for the violation of the provisions of Regulation (EU) no. 1169/2011, and the adaptation of national provisions on the provision of food information to consumers and Directive 2011/91/EU concerning the terms or brands which identify the lot to which a foodstuff belongs and the related sanctions.
The provisions of the Legislative Decree do not undermine the application of the Consumer Code and criminal law with respect to food safety and trade protection.
Brief general overview
According to the Decree, the responsible entity is the food business operator, as provided by Art. 8 of Regulation no. 1169, and therefore the operator under whose name or business name the food is marketed or, if that operator is not established in the European Union, the importer into the EU market, as well as the operator whose name or business name is a registered trademark.
The provisions of greater importance in the context of the decree are those contained in the second title, dedicated precisely to penalties and divided in turn into four chapters, respectively concerning violations of the general provisions on food information, mandatory information on food and of the relative modalities of expression, of obligatory indications and voluntary information regarding foods.
The penalties for the violation of the obligations to implement fair information practices and to provide food compliant with the legislation concerning information and requirements, as well as for the prohibition to change the information on food can vary from a minimum of € 500.00 to a maximum penalty of € 16,000.00.
On the other hand, the sanctions related to the violation of the provisions concerning the mandatory information referred to in Art. 9 of the Regulation are higher; in particular, the violation of the obligation to indicate the presence of an ingredient that causes allergies or intolerances may result in the application of an administrative sanction ranging from a minimum of € 5,000.00 up to a maximum of € 40,000.00 (this sanction does not apply if the responsible party has initiated the recall procedures of the product itself before the breach has been verified by the control authority), while the violation of the obligation to show the other indications may involve the application of a fine between € 3,000.00 and € 24,000.00. Not only the failure to indicate, but also the irregular presentation and placement of mandatory indications can lead to penalties.
Equally important - up to a maximum of € 16,000.00 - are the sanctions resulting from the violation of the obligations to correctly indicate the name of the food and the correct indication of the ingredients, their contents, as well as the date signifying the minimum conservation period or the ‘use by’ date, indication of the country of origin or place of provenance, and finally on the subject of nutritional declarations.
Particular attention should be paid to article 16 of the Legislative Decree which regards violations of information provided on a voluntary basis, which pursuant to Regulation no. 1169 must not mislead the consumer and must be based on relevant scientific data: in case of violation, a fine of up to € 24,000.00 may be imposed. The meaning of such a provision is very clear: to dissuade the food business operator from providing information that is misleading and confusing, sometimes even intended to alter the consumer's choice, and to pushing him/her to act with competence and responsibility.
The Decree also contains rules relating to the indications for identifying the lot to which a foodstuff belongs and the related sanctioning rules, as well as a series of norms aimed at regulating the indications connected to the sale of non-prepacked products with reference to the so-called Single Cartel of ingredients, first introduced in 1994 and now having a more analytical discipline in relation to the indications that must be included as well as the methods of showing said indications to users.
The Decree provides for a mutual recognition clause on the basis of which the rules for the adaptation of national legislation to the provisions of Regulation no. 1169 do not apply to foodstuffs lawfully manufactured or marketed in another member state of the European Union, in Turkey, or to products manufactured within the member states of the European Free Trade Association, party to the Agreement on the European Economic Area.
The competent authority for the imposition of sanctions is the Department of the Central Inspectorate for Quality Assurance and the repressed frauds of agri-food products (Dipartimento dell’Ispettorato centrale della tutela della qualità e repressioni frodi dei prodotti agroalimentari), without prejudice to the competence of the Antitrust Authority for misleading advertising and consumer protection, as well as the competence of the bodies responsible for ascertaining violations according to current legislation, such as health inspectors.
The Decree will come into force on 9 May 2018.
With the present Decree, the regulatory framework provided by Regulation no. 1169 is completed with the related sanctions, thus achieving the full implementation of one of the main objectives of the Regulation, consisting in "providing the final consumer with the basis for making informed choices".
It is undeniable that the new discipline will require a substantial commitment from food business operators in terms of full and uniform implementation of regulatory rules in order to ensure correct and accurate communication of the indications aimed at protecting the health of consumers and their right to receive adequate information. It may result partially challenging due to some apparent gap of the decree, pending any clarification by the competent authorities, as in the case of Article 19 concerning the sale of non-prepacked products. The rule in question regulates the content and presentation of the Single Cartel, i.e. the notice to the consumer with the list of ingredients used in some preparations (and so far limited to ice cream, pastry, bakery and gastronomy products), considerably expanding the range of products covered. However, there is no express reference to alternative food marketing formulas, such as distance selling or home delivery services, which now represent a significant segment of the market.
The decree in question must then be read in conjunction with Legislative Decree n. 27 of 7 February 2017 containing the disciplinary rules for the violation of the provisions of Regulation (EC) no. 1924/2006 on nutrition and health claims made from food products.
The challenge for those who will deal with the new legislation in various capacities, is to contribute to the improvement of an increasingly regulated and constantly evolving sector.