Better late than never - six years afterentry into force of EU regulation 1169/11 - cd Food Information to Consumers (FIR) - Italy also introduces a specific sanctioning framework. To follow in preview, the analysis of the decree.
EU Reg. 1169/11, food labels and advertising, the sanctions decree
The Council of Ministers, on 11.12.17, approved the 'legislative decree laying down the disciplinary rules for the violation of the provisions of Regulation (EU) no. 1169/2011, relating to the provision of information on foods to consumers and the adaptation of national legislation to the provisions of the same regulation (EU) no. 1169/2011 and directive 2011/91 / EU'. (1)
A preliminary examination of the decree, with some critical notes, had already been offered on this site. What did he have in his time published in preview the text, now available in the final version. (2) We now proceed to the detailed analysis.
TITLE I - General principles
Field of application (article 1). The administrative sanctions introduced by the decree concern the violations of the rules on consumer information on food products, referred to in EU regulation no. 1169/2011 and directive 2011/91 / EU. (3) Subject to the application of criminal law, (4) and without prejudice to the sanctions specifically envisaged for violations of the regulation on Nutrition & Health Claims. (5) Also without prejudice to the competence of the Antitrust Authority, which monitors compliance with the Consumer Code.
Definitions and responsible operators (article 2). For the applicable definitions, reference is made to reg. EU 1169/11, article 2. It also applies to the operator responsible for the truthfulness and completeness of the information, which is the 'under whose name or business name the product is marketed or, if that operator is not established in the Union, the importer established in the territory of the Union; the food sector operator whose name or company name is shown in a registered or filed trademark is also identified as the responsible party. ' (6)
TITLE II - Sanctions
CHAPTER I - General criteria and responsibilities
Fair Information Practices (article 3). The violation of the general criteria of transparency and correct consumer information (7) is punished with a pecuniary administrative sanction ranging from 3 to 24 euros, 'unless the fact constitutes a crime and with the exclusion of specifically sanctioned cases'by other provisions of the decree.
Main (Article 4). Operators who affect information relating to food, (8) who supply food which they know or can presume to be non-compliant in terms of information, are punished with a fine of € 500 to 4.000. (9)
The modification of the information received on a food, if it can 'mislead the consumer or otherwise reduce the level of consumer protection', (10) is punished with a fine ranging from 2.000 to 16.000 euros.
B2B sales. Theomission of mandatory food information is subject to a penalty of between one thousand and eight thousand euros.
External packaging. Failure to affix the prescribed information on the external packaging of food pre-packaged products intended for B2B sale (food name, expiry date or TMC, particular storage or use conditions, name of the responsible operator) a fine of € 1.000-8.000 is also applied.
CHAPTER II - Mandatory information on the label, violation of general rules
Allergens (article 5). Therefailure to affix the mandatory information'relating to allergens involves the application of a penalty ranging from 5 to 40 euros. Unless the responsible operator 'has initiated the procedures provided for by Article 19 of Regulation (EU) no. 178/2002 before ascertaining the violation by the supervisory authority'.
Other mandatory information. Therefailure to affix'of one or more of the other mandatory indications - food denomination, ingredients list e additives, QUID, Expiration date or TMC, net quantity, particular conditions of storage (11) or use, name or business name and address of the responsible operator, (12) Country of origin or place of provenance where required, (13) instructions for use where necessary, alcoholic strength for beverages with an alcohol content> 1,2%, nutrition declaration - involves the application to the person responsible of a pecuniary administrative sanction from € 3.000 to € 24.000.
Readability and field of view (Article 6). The violation of the general criteria e specific to guarantee the legibility of the information on the label is punished with a sum of € 1.000-8.000. Same penalty if the information that must appear in the same field of vision (sales name and quantity, as well as the alcoholic strength for alcoholic beverages) is otherwise placed.
Distance selling (Article 7). The violation of the consumer information requirements prescribed in all cases of distance selling involves the application of a pecuniary administrative sanction from 2 thousand to 16 thousand euros.
CHAPTER III - Mandatory information on the label, violation of specific rules
Food denomination (article 8). Failure to comply with the prescribed criteria, or use of a protected denomination, a trademark or a fancy name in place of the denomination (legal, usual or descriptive), fine from € 2.000 to € 16.000.
Reduced penalty, from € 500 to 4.000, where the aforementioned violations are exclusively due to 'formal errors or omissions'.
Identical reduced penalty in the case of use of a name legally used in the (different) country of production and yet not clear or clarified to Italian consumers.
Violation of the specific rules on food names and complementary indications referred to in Annex VI of reg. EU 1169/11, fine from € 1.000 to 8.000. (14)
Ingredients list (Article 9). Violation of the provisions on the denomination of ingredients, penalty from € 2.000 to € 16.000. To a reduced extent, € 500-4.000, if the violation concerns only formal errors or omissions.
Violation of the specific provisions relating to the indication and designation of ingredients referred to in Annex VII of reg. EU 1169/11, € 1.000-8.000.
Allergens (article 10). Failure to comply with allergen labeling requirements, € 2.000-16.000.
QUID and net quantity (article 11). Unless the fact constitutes a crime, infringement of the rules on the quantitative indication of ingredients and net quantity, € 1.000-8.000.
Expiry date, freezing, TMC (article 12). Violation of rules on expiry date and date 'frozen (or deep-frozen) on', (15) € 2.000-16.000.
Unless the fact constitutes a crime, transfer 'for any reason' or display for the sale to the final consumer of a food after the expiry date, € 5.000 to € 40.000 (!).
Non-compliance on the minimum storage term, € 1.000-8.000. 2.
Country of origin or place of provenance (article 13). 'Unless the fact constitutes a crime', violations of the contents and methods of indicating the country of origin o place of origin 'referred to in article 26 of the regulation', € 2.000-16.000. (16) Only € 500-4.000, when it is exclusively a matter of formal errors or omissions.
Alcoholic strength (Article 14). Violation of the rules on the indication of alcoholic strength, € 500-4.000.
Nutritional declaration (Article 15). Incorrect methods of indication, content, expression and presentation of the nutritional declaration, € 2.000-16.000 (!!!).
CHAPTER IV - Voluntary information, violations
'Unless the fact constitutes a crime', the incorrectness of information provided on a voluntary basis on information generally envisaged as mandatory (17) is punished with the same sanctions referred to in the previous Chapters II and III (articles 5-15 of the decree).
Information on an optional basis contrary to the general criteria of truthfulness and transparency can in turn be sanctioned with a sum from € 3.000 to € 24.000.
The same penalty can be applied when the European Commission has defined the relevant ones rules, for non-compliance with the attributions 'vegetarian' and 'vegan' (article 16).
TITLE III - Adaptation of national standards
The analysis continues in the following article, specifically dedicated to national regulations on batch codes, vending machines and the sale of non-prepacked foods.
TITLE IV - Final provisions
Micro-enterprises (18) benefit from a reduction of up to half of each sanction administrative.
Supplies to NGOs - 'in view of the subsequent free transfer to destitute people' - are exempt from the penalties, except for cases of irregularities on allergens and expiration date.
The adequate written correction of non-compliant information '(19) finally excludes the application of the sanctioning provisions (article 27).
Dario Dongo
Footnotes
(1) The legislative decree was issued by virtue of a specific delegation conferred on the government pursuant to article 5 of law no. 12, cd European delegation law 2015 '
(2) See Press Release 11.17.12 Council of Ministers, 'Implementation of European standards', point 4, on http://www.governo.it/articolo/comunicato-stampa-del-consiglio-dei-ministri-n-61/8641. For the definitive text of the provision, see the Annex to this article
(3) Dir. 91/2011 / UE 'relating to the indications or marks that allow identification of the lot to which a foodstuff belongs', so-called batch directive
(4) In this regard, the crimes of commercial fraud (Article 515 of the Criminal Code), the sale of non-genuine food substances as genuine (Article 516), the sale of industrial products with misleading signs are cited (Article 517). With the aggravating circumstances referred to in the following article 517-bis ('if the facts envisaged by them concern foods or beverages whose designation of origin or geography or whose specific characteristics are protected by the regulations in force')
(5) EC Reg. 1924/06, reg. EU 432/12 and subsequent amendments
(6) See reg. EU 1169/11 (FIR), article 8
(7) See reg. UE 1169/11, article 7. For some concrete examples, see the articles https://www.greatitalianfoodtrade.it/senza-glutine-senza-esagerare, as well as those listed on https://www.foodagriculturerequirements.com/?lang=it&s=7.1.c
(8) Outside of distributors only, whose responsibilities are defined in the FIR in article 8.3
(9) It may be the case of a public retailer who transcribes the unlikely news received from the supplier on the cartel for sale of foods sold in bulk. For an example, see https://www.foodagriculturerequirements.com/fare-pane-viola-per-diabetici-e-obesi-magari-no-risponde-l-avvocato-dario-dongo
(10) See FIR, article 8.4. This is the typical case of the omission of essential mandatory information (e.g. expiry date, special storage conditions) on pre-wrapped items
(11) See paragraph 2 of article https://www.foodagriculturerequirements.com/export-in-austria-è-ora-di-rispondere-per-le-rime-ai-consulenti-di-gruppo-rewe
(12) The same penalty applies to a distributor who only indicates the name and address of the manufacturer and packager, without affixing his own, on products marketed under his own brand.
(13) See reg. EU 1169/11, article 26, and reg. UE 1337/13
(14) Identical penalties for the nano-material designation defect
(15) Date required only for unprocessed meat, meat preparations and fishery products
(16) NB: the European Commission has not yet implemented article 26.3 of reg. EU 1169/11
(17) See EU regulation 1169/11, article 36.1. This refers to all the information referred to in articles 9 and 10 of the FIR
(18) NB: micro-enterprises are those with less than 10 employees and an annual turnover (the amount of money raised in a specific period) or balance sheet (a statement of assets and liabilities of a company) of less than 2 million euros' (see Recommendation 2003/361 / EC
(19) Presumably the re-labeling, i.e. cancellation of irregular information and their replacement with correct information, which must in any case be affixed to an additional label
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
