Le LOBBY di Big food have managed to exclude the brands that evoke a specific territory from the obligation to indicate the different origin and provenance of the primary ingredient. (1) On closer inspection, however, the usual crafty ones, in making the pots, have forgotten the lids. The trademark suggestive of an origin other than the actual one implies in fact the duty to specify the truth 'Made in ... '. And from this last indication, which goes beyond the trademark, derives the obligation to specify the different origin or provenance of the primary ingredient.
Trademark and obligation to indicate the 'Made in'
The brand that evokes a territory - through graphic representations (e.g. tricolor) and symbols (e.g. Apulian trulli, Venice lagoon, Colosseum, Tower of Pisa) and / or names and writings (e.g. trademark 'Prego,Miracles,Italian', cd Italian sounding) - must be evaluated, like other non-mandatory news and images, as'voluntary information'.
'Food information provided on a voluntary basis meet the following requirements:
a) do not mislead the consumer [on origin and provenance, as well as on other essential information, ed.] as described in Article 7,
b) are neither ambiguous nor confusing for the consumer, e
c) are, where appropriate, based on relevant scientific data. ' (2)
The general rules of transparency information apply inter alia to labeling, but 'also:
a) advertising,
b) the presentation of the food, in particular its shape, appearance or packaging, the packaging material used, the way it is arranged or the context in which it is displayed. ' (3)
It follows that, where the trademark evokes a country or a production territory other than the actual one, the latter must be specified on the label. In the example of pasta 'Miracles', with the tricolor in the trademark, it is therefore mandatory to specify'Made in Germany'. For the express purpose of avoiding the consumer being led into confusion as to the origin and provenance of the product. According to Food Information Regulation, Article 26.2.a, as clarified by the former Commissioner responsible for the matter.
Conversely, the only indication The name or company name of the responsible operator does not in itself imply the obligation to indicate the country of production (pursuant to Article 2.2.g, EU Reg. 1169/11).
'The name, business name or address of the food business operator affixed to the label does not constitute an indication of the country of origin or place of provenance of the food within the meaning of this Regulation'. (4)
Trademark and obligation to indicate the different origin or provenance of the primary ingredient
The evocation of origin - graphic and / or literal - when limited to the trademark only, it is not in itself sufficient to trigger the obligation to indicate the different origin or provenance of the primary ingredient, with respect to theMade in'suggested. Thanks to the umpteenth denial of transparency on the label made with the OPT (Planet Earth Origin) regulation. (5)
'This Regulation does not apply (...) to trade marks, registered, where the latter constitute an indication of origin, pending the adoption of specific rules concerning the application of Article 26 (3) to such indications.(6)
Nonetheless, if the trademark evokes an origin (understood as a country of last substantial transformation) other than the real one, as seen in the paragraph above, it is necessary to specify the country of origin of the product. And this indication - eg. Made in Germany - it does not qualify either as a simple indication of the name or company name and address of the responsible operator, or as a trademark. It is therefore not excluded by the rules provided for by Regulation (EU) no. 2018/775, in force since 1.1.20. It follows that also in this case, if the origin and provenance of the primary ingredient is different from the origin of the product indicated on the label, it must in turn be specified. (7)
Dario Dongo
Footnotes
(1) See previous articles https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario, https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-vincitori-e-vinti, https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-via-libera-da-bruxelles-all-italian-sounding, https://www.greatitalianfoodtrade.it/etichette/igine-ingrediente-cercasi.
(2) See regulation (EU) no. 1169/11, art. 36.2
(3) See reg. EU 1169/11, article 7.4
(4) See reg. EU 2018/775, article 1.2. At the time, the writer had proposed to various representatives of the Italian production sectors to appeal to the EU Court against the EU regulation 2018/775 (OPT, Origin Planet Earth, for excess of power of the European Commission. Without, however, gathering support, not even from Coldiretti (sic!) See https://www.greatitalianfoodtrade.it/consum-attori/origine-ingrediente-primario-reg-ue-2018-775-call-for-action
(5) See previous notes 1 and 4
(6) See reg. EU 1169/11, article 2.2.g
(7) With regard to the application of reg. EU 2018/775, see https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/origine-materie-prime-reg-ue-2018-775-risponde-l-avvocato-dario-dongo
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
