Packaging labeling, theoretical postponement to 31.12.21. Government tort is renewed

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The packaging labeling regulations introduced by Leg. 116/20 are inapplicable, as this writer has already pointed out, because of the lack of due prior notification to Brussels. (1) The Italian government, instead of repealing the illegitimate decree, merely provides for its partial postponement to Dec. 31.12.21 with the Milleproroghe 2021 decree. But Legislative Decree 116/20 continues to be worth waste paper, and it is time to expose ministerial malfeasance instead of enforcing illegitimate regulations.

Legislative Decree. 116/20, packaging labeling standards

Legislative Decree 116/20-in transposing two of the four directives that make up the so-called Circular Economy Package-introduced additional requirements, not provided for in the reference directives, regarding packaging labeling (2,3,4). Introducing a requirement for operators in Italy and on goods destined only for the Italian market to report:

(1) directions to encourage the proper disposal of packaging materials, after use, on only the packaging or packages intended for the final consumer(Business to Consumer, B2C). Referring to ‘separate collection‘, the family to which the material belongs (e.g., glass), and a wording such as ‘check the provisions of your municipality‘ (Legislative Decree 116/20, Article 3.3.c, first sentence),

(2) alphanumeric coding identifying each of the materials used, according to the criteria in Decision 129/97/EC, on all packaging (primary, secondary and tertiary). In both scenarios of destiny to consumers (B2C) and others (B2B, Business to Business. d.lgs. 116/20, Article 3.3.c, second sentence).

Milleproroghe 2021

The so-called Milleproroghe decree, the historical emblem of Italian mala-administration, also introduces various amenities in 2021. These include the partial suspension of the environmental labeling requirement for packaging. (5) I.e., the suspension of the application of only the labeling requirements set forth in point 1 of the above paragraph, and not also those set forth in point 2 below (provided for in the first and second sentences of point c, respectively, in the third paragraph of Article 3, in Legislative Decree 116/2020.

Two details not to be overlooked:

– the rules in question have been formally applied since 9/26/20 (subject to the illegality of the entire decree). Tens of thousands of operators in the food and packaging supply chain have therefore invested substantial resources in putting news on labels that consumers will see appear and disappear, with unchanged futility. On the whim of emeritus imbeciles who in the midst of the Covid-19 emergency and without even consulting trade associations came up with prescriptions not even envisioned by the European legislature,

the entire Legislative Decree 116/2020 is worth waste paper. Any national standard containing ‘technical specification’ related to products-including those pertaining to marking and labeling and ‘other requirements’ (including aspects related to environmental and consumer protection)-must in fact be notified in advance to the European Commission and be subject to a standstill period minimum of three months, pending its green light from Brussels, under penalty of ineffectiveness. (6)

‘Member States shall immediately notify the Commission of any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case mere information on the standard itself is sufficient. They shall also briefly inform you of the reasons why it is necessary to adopt such a technical rule unless they already result from the project’ (dir. 2015/1535, article 5.1).

Social partners concerned

CONAI, in collaboration with the Italian Packaging Institute, published an excellent Environmental Labeling Guidelines document on 16.12.20. (7) And promoted a working table involving UNI, Confindustria and Assolombarda, Federdistribuzione. With the goal of reaching a shared reading of the regulations under consideration.

Recycling Italy is increasingly effective, as shown in the 11th 10.12.20 Report by FISE UNICIRCULAR and Sustainable Development Foundation. (8) The recycling rate on plastic-compared to other materials such as steel (82 percent), paper (81 percent), glass (77 percent), and aluminum (70 percent)-is still unsatisfactory, at 46 percent in 2019. But the problem must be solved by first working on reduction and reuse, the items at the top of Lansink’s scale, as well as consumer education (which certainly does not come through mandatory alphanumeric code labeling).

Legality

Restoring legality is a priority. Illegal rules must be reported to the European Commission, and any authority, including supervisory authorities, has a duty to disapply them according to well-established case law of the European Court of Justice (9,10).

The industrial representatives, instead of begging milleprorogas to donkeys, would do well to sue them for abuse of office and hold them accountable for the damage caused to the community of industries and businesses involved in this umpteenth debacle.

Dario Dongo

Notes

(1) Dario Dongo. Legislative Decree. 116/20, Food packaging labeling. Inapplicable standards. GIFT (Great Italian Food Trade). 3.10.20, https://www.greatitalianfoodtrade.it/imballaggi/d-lgs-116-20-etichettatura-degli-imballaggi-alimentari-norme-inapplicabili

(2) Legislative Decree 3.9.20, no. 116. Implementation of Directive (EU) 2018/851 amending Directive 2008/98/EC on waste and implementation of Directive (EU) 2018/852 amending Directive 1994/62/EC on packaging and packaging waste (20G00135)

(3) Dario Dongo, Giulia Torre. Circular Economy Package, implementation in Italy in September 2020. GIFT (Great Italian Food Trade). 2.10.20, https://www.greatitalianfoodtrade.it/progresso/pacchetto-economia-circolare-attuazione-in-italia-a-settembre-2020

(4) Luca Foltran, Dario Dongo. Circular economy, ABC EU package. GIFT (Great Italian Food Trade). 6.6.18, https://www.greatitalianfoodtrade.it/imballaggi/economia-circolare-abc-pacchetto-ue

(5) Decree Law 3.12.20, no. 183, c.d. Milleproproghe 2021. See Article 15, Paragraph 6

(6) EU Directive 2015/1535, which provides for an information procedure in the field of technical regulations and rules on information society services . See Articles 1.1.c(definitions, technical specification), 1.1.d(definitions, other requirements), 5(procedure)

(7) CONAI. Guidelines for environmental labeling , http://www.progettarericiclo.com//docs/etichettatura-ambientale-degli-imballaggi

(8) Marta Strinati. Waste recycling, where do we stand. The 2020 Report.GIFT(Great Italian Food Trade). https://www. greatitalianfoodtrade.it/mercati/riciclo-dei-rifiuti-a-che-punto-siamo-il-rapporto-2020

(9) See, on all, the judgments of the EU Court of Justice CIA Security International (30.4.96, C-194/94, paragraph 54, at https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:61994CJ0194_SUM&from=FR) and ‘Ince‘ (4.2.16, C-336/14, paragraph 67, at http://curia.europa.eu/juris/document/document.jsf?text=&docid=174105&doclang=IT)

(10) Dario Dongo. Establishment location on label, controls at risk. GIFT(Great Italian Food Trade). 2.7.19, https://www.greatitalianfoodtrade.it/etichette/sede-dello-stabilimento-in-etichetta-controlli-a-rischio