I five investigative proceedings of the Antitrust on the origin of the wheat in pasta Made in Italy: inaugurated 2020 with lively debates on the role of the Italian Competition Authority (AGCM). And some uncertainties on the labeling of food products, on the eve of the application of Regulation (EU) 2018/775. Some notes on rules, scourges, self-flagellations and stone guests.
Pasta Made in Italy:, origin of wheat and semolina
The indication of origin of wheat, as well as semolina, in the label of pasta is a very topical issue:
- in Italy, many insist on believing in the validity of a inter-ministerial decree signed by Paolo Gentiloni and Carlo Calenda, who unlawfully extended the transitional application of Ministerial Decree 31.3.20 to 26.7.17. Ignoring that the aforementioned Ministerial Decree, bearing the obligation to indicate the origin of wheat and semolina in pasta, is inapplicable ab origins for non-compliance with the EU rules on the mandatory notification of national technical standards to the European Commission, (1)
- in Europe, starting from 1.4.20 the reg. UE 2018/775 which requires to communicate the different origin or provenance of the primary ingredient, with respect to the origin of the product, where the latter is declared on the label (also through citation, not mandatory, of the factory location). (2)
The wheat in the pasta, the investigations of the AGCM
The Guarantor Authority for Competition and the Market - a few months before the date of application of reg. EU 2018/775 - had launched an investigation into the labels and advertising of pasta in the Italian market. With the aim of assessing whether the information offered on a voluntary basis - as regards the location of the supply chain - met the general criteria of transparency and non-misleading. (3) With regard to communication as a whole, also taking into account the emphasis (in words and images, graphics and positioning) attributed to the various messages. From the perspective of the average consumer, to whom these products are aimed.
'It is considered deceptive a commercial practice that contains information that does not correspond to the truth or, even if in fact correct, in any way, even in its overall presentation, induces or is capable of inducing (...) the average consumer (...) to take a decision of a commercial nature that otherwise would not have taken ' (Legislative Decree 206/05, article 21, Deceptive actions).
The investigations therefore, they did not take into account the verification of compliance with the rules relating to the indication of origin (EU regulation 1169/11, article 26). And they involved numerous operators, whose business practices were found to be correct from every point of view. Outside of the 5 subjects against whom an investigation was instead opened.
On closer inspection, among other things, the Authority fell into two macroscopic errors of law, in stating that:
- semolina would be a product 'not transformed', as it is a mono-ingredient and'the mechanical transformation of durum wheat into semolina does not substantially change the characteristics of the semolina compared to those of the starting durum wheat', (4)
- the 'decree pasta origin 'would be in force until 31.3.20. (5) Thus neglecting its inapplicability and consequent duty of non-application ex officio by all public officials and authorities of any kind. (6)
Who is afraid of the Antitrust Authority?
Three famous Italian industries pasta (Divella, Cav. Giuseppe Cocco and De Cecco) - in the company of two foreign groups of the large-scale retail trade (Auchan and Lidl Italia) - ended up on the Antitrust grill. Due - as reported in the AGCM press release - of the misleading information about the origin of durum wheat used in the production of durum wheat semolina pasta'.
Self-flagellation however, it should be noted, it was everyone's choice except the leader of the discount in Italy. That is to say that - for fear of the Antitrust sanctions - three glorious Italian pasta industries have undertaken not only to correct the shape of their labels, but to renounce their history and the key messages of their commercial policy. With grotesque results, compared to which the fine of € 1 million inflicted on Lidl Italia (equal to 0,021% of the turnover of € 4,7 billion) seems like fresh air.
De Cecco SpA
The consultants by De Cecco have shown total ignorance of the concepts on which the company has invested millions of euros in advertising in recent years. But they even managed to convince the owners to backtrack from the declarations made public in the last 15 years, about the essential value of the pasta transformation phase.
The shame is to have made the commitment, 'for the purpose of updating and restyling of the packages', to eliminate from the front of the labels the image of the tricolor, as well as the words'De Cecco method','recipe for over 130 years' And 'Made in Italy:'. And it is pure madness, considering that the 'De Cecco method' is also celebrated in some scientific studies as the only one, in the industrial production of Italian pasta, to best preserve the characteristics of the wheat (thanks to the times, as well as to the low drying temperatures).
Just why the company has undertaken to report on the front of the package the words'The best Italian, Californian and Arizona grains', among other things, it is completely pointless to give up the flag. Which serves exactly to distinguish a pasta made in Italy - in Fara San Martino moreover, with spring water (!) - from those manufactured in Turkey or Egypt (where other industries also operate, obviously at competitive costs).
Pastificio Artigiano Cav. Giuseppe Cocco Srl
The lawyers of Cav. Giuseppe Cocco declare of 'contest in full'the violations ascribed. But they follow the ritual formula, 'for a collaborative spirit', the commitment to modify the pasta packaging and the information on the website. The origin of the grain is highlighted on the site and inserted on the front of the label, with the addition of the wording 'water from the Fara San Martino spring, Arizona extra durum wheat semolina and static drying at low temperature'.
But why self-flagellating by assuming the commitment to eliminate voluntary information, not even specifically referred to the product, according to which '… In Fara San Martino making pasta is an ancient tradition'? Fara San Martino (CH) in Abruzzo, like Gragnano in Campania (NA), is traditionally recognized in literature, as well as on Wikipedia, as'the city of pasta'. And moreover, as the AGCM itself recognizes, the use of foreign wheat mixed with our own has been used (at least) since the 7th century. (XNUMX)
Divella SpA
Divella it is the only one of the three industries to have maintained a coherent position, without renouncing to assert its reasons. It therefore undertook to insert the words'durum wheat semolina pasta grown in Italy and EU and non-EU countries'on the front label. With indication of the origin of the raw material also on the website, and related training to the staff dedicated to call center.
The position of Divella, however, remains firm in point of law. The 'DIVELLA' trademark is excluded from the scope of application of reg. EU 2018/775, which in fact expressly excludes'trademarks, registered, where the latter constitute an indication of origin'. The identity and pride of the historic Apulian brand do not touch.
The stone guests
Il mainstream media - unfortunately, like the trade press, he presented the five cases with a simple and uncritical copy and paste of the Antitrust press release. With the effect of:
- amplify an altogether banal case, relating to the subjective interpretation of labels in any case compliant with both European rules and inapplicable Italian rules, (1)
- to attribute to the Antitrust a different role from the actual one. Not the supreme censor of industrial activities but an entity that operates at the service of the community, communicates with operators and collects their commitments. With an approach based on moral suasion.
But it is surprising that no one has intervened publicly to highlight that:
- the Italian industries involved in the proceedings have always and in any case respected the applicable regulations, beyond the subjective interpretations of the clarity of the labels. When, on the other hand, it is enough to cross the Brenner to find the Kraft paste with the 'Miracoli' brand waving the tricolor without even having the glue of the packages Made in Italy:,
- De Cecco and Cav. Coconut they decided of their own free will (albeit improvised) to substantially reform their labels. The Antitrust has done nothing but take note of their commitments.
The stone guest is the industrial association system that has not spent a word in support of the historical brands on which the history of Made in Italy:. After having, among other things, silently witnessed the desecration of European law in a series of national decrees that caused burdens and uncertainties to the industries represented. Starvation or conflicts of interest?
Dario Dongo and Martina Novelli
Footnotes
(1) Who is writing - out of love for legal certainty alone and without receiving any external support - he ultimately asked him European Ombudsman. In order for the European Commission to initiate an infringement procedure (US Pilot) against the Italian Republic, for repeated violation of the obligations of prior notification in Brussels of a series of national technical regulations. V. https://www.greatitalianfoodtrade.it/etichette/sede-stabilimento-decreto-origine-e-scadenza-latte-gift-denuncia-la-commissione-al-mediatore-europeo
(2) Regarding the application of reg. EU 2018/775, see the guidelines published by the European Commission (2020 / C 32/01), on https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=OJ:JOC_2020_032_R_0001&from=E. Summary and comments on https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-reg-ue-2018-775-linee-guida-commissione-europea
(3) The criteria of transparency and non-misleading of commercial information are established in the Consumer Code (Legislative Decree 206/05 and subsequent amendments, articles 18 and following), as well as in the Food Information Regulation (EU reg. 1169/11, article 36)
(4) See. AGCM provision 20.12.19 towards LIDL Italia Srl, note 3 (p. 3). This assumption, it should be noted, is in clear contrast with the criteria of added value and the so-called 'tariff jump'. Where the greater value assumed by the product following processing and the passage from one category to another, in the Customs Code (EU Reg. 952/13), qualifies the transformation as substantial
(5) Ditto cs, conclusive evaluations, paragraph 53 (p. 19)
(6) Dongo, Dario (2019). Food Regulations and Enforcement in Italy. Reference Module in Food Science. Elsevier, pp. 1–5. doi: https://doi.org/10.1016/B978-0-08-100596-5.21172-4
(7) See document referred to in note 4, point 13 (p. 4, 5)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in International Relations at the Sapienza University of Rome, she followed the Master in Law & Foody Safety of the University of Bologna.
