Legislative decree 231/17, while implementing Regulation EU No. 1169/11 in Italy, defines the distributor’s responsibilities in crystal clear terms.
The Food Information Regulation has introduced a criterion for attribution of responsibility – as it concerns the correctness and thoroughness of the communication – which is based on brand ownership and /or management. (1)
The responsible operator is in the first place the one who presents himself to the consumer as the guarantor of the quality of the food:
– the brand industry, on products bearing its trademarks. Whether they are made in-house or they are manufactured by third parties,
– the retailer on the s.c. private labels. Independently whether the brand is registered or not, or whether it coincides with the chain’s name, also regardless of who the actual holder is, (2)
–the importer, first and foremost on food commercialized by his own brand. In all other cases, in conjunction with all above subjects, depending on the situation.
Whatever the circumstances, the actual holder or manager of the brand that is used to commercialize the food has, in any case, the duty to refer his name or business name and address on the label.
The production site (or the packaging one, if different) must also be referred on the labels of products manufactured in Italy and intended for the domestic market.
Labels, retailers’ responsibilities
The distributor is always responsible to provide foods – whether gross or retail – which are compliant to the relevant EU and national provisions on consumer information. (3)
Whenever the label should miss a piece of compulsory information (4) – that is the info is defective, false, or misleading – the vendor takes up responsibility for its exposition on sale and is therefore subject to sanctions on behalf of the monitoring authorities. This also in the hypothesis in which the outlawed products should be sold by the factory brand or the importers.
The distributors concurring responsibility is therefore to be considered with attention in both modern distribution and online (e-commerce). More so, as the Food Information Regulation clearly recalls the retailers’ ‘professional quality’. (5)
The hypothesis of complicity in the criminal offence perpetrated by suppliers can also be configured in charge of the distributor. Especially modern distribution, whose proficiency level is comparable to that of brand industry.
Criminal responsibility on the part of the legal representative of the mass distribution entity (6) may arise either by way of guilt – for selling food containing harmful substances, (7) – or by way of arson, even eventual (8), in a food fraud.
Retailers’ responsibility, what solutions?
Contract terms that include distributor’s waivers, in regard of illegal acts carried out by the supplier on his own brand products, are declared invalid whenever such terms should aim to alter the distribution criteria of administrative/criminal responsibilities on the various operators. (9) This is due to a clear contrast with the imperative rules referred to in Article 8, Reg. EU 1169/11.
A revision of all retailers’ quality systems would be therefore appropriate and it should include punctual verification criteria of all food labels exposed on sale. This should be performed by operators who own the necessary competence on food law and, if needed, on biology and all technologies applicable to the different subjects.
In this perspective the various certification schemes (e.g. IFS, BRC, FSSC 22000) appear inadequate whenever a verification of compliance of food labels is unconditionally expected without having provided details on who would be responsible for it, what should be his professional requirements and the compliance check modalities.
(1) See Reg. EU 1169/11, Art. 8
(2) Even if the private label is commercialized through a Mass Distribution chain with an unregistered / fantasy name, the identification of the operator in charge must follow a substantial criterion, even beyond the appearance
(3) See Reg. EU 1169/11, Art. 8.3
(4) See Reg. EU 1169/11 articles 9 and 10
(5) Meaning that diligence, caution and proficiency must express the best science and experience applicable to the reference sector in the historic moment
(6) Except waivers hypothesis’ on the part of the legal representative, by means of specific power delegations, functions and responsibilities with regard to managers with precise expertise
(7) Crimes referred in articles 444 and 452 of the Italian Criminal Code can be found, for example, in cases of compulsory indications about allergic ingredients. The same happens in cases of lack of information which is relevant from a sanitary perspective
(8) The oblique intent, according to consolidated Law, coincides with aware acceptance of the risk. As well as the inevitable participation to unlawful gains, in cases of frauds (articles 515 and followings of the Italian Criminal Code)
(9) In such cases the competent Authorities, aside negotiated agreements that clearly result invalid as they oppose imperative laws, will have to evaluate the concurring responsibilities of both the Brand Industry and the retailer