Establishment location and mandatory origin, non-compliant labels

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Labeling the location of the establishment, although voluntarily affixed, may result in an obligation to indicate the origin of the product. To which must be added-in many cases, as of 1.4.19-a mandatory indication of the origin or provenance of the primary ingredient. The shelves are redolent with non-compliant labels, due to bad advice from Italian authorities.

Indication of origin on labels, when the obligation is triggered

Indication of origin is still optional, for the generality of food products. Outside of the following:

– vertical regulations. That is, specific EU requirements for individual products or product categories,

– European quality schemes. Be they related to organic products and geographical indications. Namely, PDOs (protected designations of origin), PGIs (protected geographical indications) and TSGs (traditional specialties guaranteed),

– possible consumer confusion, ‘if the information accompanying the food or contained on the label as a whole might otherwise suggest that the food has a different country of origin or place of provenance.’ (1)

To this end, the European Commission has made it clear that the origin of the food must be mentioned on the label whenever it is different from that suggested. Even assuming the suggestion is made by the evocative images or wording in the mark. (2) Thus for example, the affixing of the tricolor mark with the name ‘Miracles‘ on Kraft Foods pasta made in Germany entails the obligation to indicate ‘Made in Germany.

Plant location. ‘Packaged in,’ but produced where?

Legislative Decree. 145/17 provided that ‘pre-packed food products intended for the final consumer or communities’ destined for the Italian market must bear on the label ‘the indication of the location of the production or, if different, packaging establishment‘ (Art. 3). This measure is, moreover, inapplicable, as noted above, due to its obvious conflict with European law. (3)

Labels of foods packaged in Italy but produced elsewhere that bear a statement such as ‘packaged (by…) in…, …, Italy‘ are clearly likely to mislead the average consumer about the actual origin of the product. In all these cases, it is therefore necessary to add the different country of origin of the food. As prescribed by Regulation (EU) No. 1169/11(Food Information Regulation, FIR, Article 26.2.a).

On closer inspection, the FIR provides that ‘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) However, this exclusion refers to the mandatory indication of the operator responsible for consumer information, i.e. the owner or operator of the trademark under which the product is sold. (5) And not also to a voluntary indication of the location, and possibly the owner, of the establishment where the product was packaged. (6)

Primary ingredient origin or provenance, where different from that of the product

When the country of origin or place of provenance of a food is indicated and is not the same as that of its primary ingredient:

(a) the country of origin or place of origin of that primary ingredient is also indicated; or

(b) the country of origin or place of origin of the primary ingredient is indicated as being different from that of the food.’ (7)

The reg. EU 2018/775 (Origin Planet Earth, OPT), effective 1.4.20, thus requires the origin or provenance of the primary ingredient to be indicated whenever it differs from the origin attributed to the product. (8)

Consequently, in the writer’s opinion, the indication on the label of the Italian location of the establishment – of production or packaging – triggers the obligation to also indicate the different origin of the primary ingredient. That is, the ingredient that accounts for ‘more than 50 percent of that food’ or is ‘usually associated with the name of that food by the consumer’ and for which ‘in most cases a quantitative claim is required.’ (9)

The control authorities responsible for supervising the application in Italy of EU Regulation 1169/11 and Legislative Decree. 231/17 of its implementation will have to apply a moratorium in any case. On behalf of the hundreds of thousands of operators in the Italian food supply chain who to date have indicated the location of the establishment on the label, relying on misinformation about the (in)applicability of Legislative Decree. 145/17 that those same authorities provided publicly. Waiting for the European Commission to bring order back to the Single Market to ensure legal certainty. (10)

Dario Dongo

Notes
(1) See reg. EU 1169/11, Art. 26.2.a. A useful rule to hinder the phenomenon of so-called ‘Italian sounding,’ i.e., the hypotheses of products presented as made in Italy (with explicit indications or the evocation of images or symbols) although made elsewhere
(2) Response by former European Commissioner Vytenis Andriukaitis to question proposed by the writer, through MEP Elisabetta Gardini. See previous article https://www.foodagriculturerequirements.com/archivio-notizie/europa-obbligo-di-indicare-il-paese-d-origine-sui-prodotti-italian-sounding#
(3) Legislative Decree 145/17 – like the DMs on wheat and semolina origin in pasta, rice, tomato in canned food – was adopted in violation of the rules requiring prior notification of national technical standards outlines to the European Commission. And the subsequent suspension of their legislative processes for a minimum period of three months (so-called standstill period). Failure to notify, as well as failure to comply with the standstill period, result in the ineffectiveness of national measures. Which, according to well-established case law of the EU Court of Justice, cannot be opposed to the administered and must be disapplied ex officio by the authorities. See, on all, the landmark ‘CIA Security International’ judgments of April 30, 1996 (C-194/94, para. 54) and ‘Ince’ of February 4, 2016 (C-336/14, para. 67). See also the previous article https://www.greatitalianfoodtrade.it/etichette/sede-dello-stabilimento-in-etichetta-controlli-a-rischio
(4) See reg. EU 1169/11, Art. 2.2.g
(5) Pursuant to Regulation (EU) No. 1169/11, Article 8.1
(6) Voluntary label information, as required by the Food Information Regulation in Article 36, in turn must be ‘unambiguous’. And labeling a food made abroad as ‘packaged in… Italy‘ is undoubtedly ambiguous, where not accompanied by specification of the product’s true country of origin
(7) See reg. EU 1169/11, 26.3
(8) Such a claim may, moreover, be offered in a completely generic manner, such as ‘with ingredient… of different origin (or provenance) (or EU/non-EU)’. See previous articles https://www.greatitalianfoodtrade.it/consum-attori/origine-ingrediente-primario-reg-ue-2018-775-call-for-action, https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-via-libera-da-bruxelles-all-italian-sounding
(9) See reg. EU 1169/11, 2.2.q
(10) See also the article https://www.greatitalianfoodtrade.it/etichette/sede-stabilimento-decreti-origine-scadenza-latte-gift-mette-in-mora-la-commissione-europea