The analysis of the so-called sanctions decree – approved on 11.12.17 by the Council of Ministers – for the implementation of EU Regulation 1169/11 continues. (1)
This was followed by an explanation of TITLE III – Adjustment of national rules on consumer information on food products, and related penalties.
CHAPTER I – National standards, adjustment
Lot or batch of products, identification (Article 17). ‘Batch, or lot, means a set of sales units of a foodstuff, produced, manufactured or packaged under substantially identical circumstances.’
Food products may not be offered for sale without displaying the lot to which they belong.
The batch is determined and affixed under its own responsibility by the producer, or packer, or first seller established in the EU.
It must appear on the label or package of prepacked foods, or on the package or container of non-prepacked foods. (2)
Lot indication must be ‘easily visible, clearly legible and indelible’. (3) It shall be preceded by the letter “L,” except where it is stated in a manner that is otherwise easily distinguished from other labeling indications. (4)
‘Lot indication is not required :
(a) when the date of minimum durability or expiration date appears with at least the day and month mentioned;
(b) for single-serving ice cream, sold as is, and provided that it appears on the overall packaging; (c) for agricultural products, on leaving the farm in the following cases:
1) sold or delivered to storage, packing or packaging centers;
2) initiated toward producer organizations;
3) collected to be immediately integrated into an operational system for preparation or transformation;
(d) for non-prepacked food products referred to in Article 44 of Regulation (EU 1169/11);
(e) for packages and containers whose largest side has an area of less than 10 cm2‘. (5)
Vending machines (Article 18). In the case of distribution of non-prepacked food by means of vending machines or automated commercial premises, the following information must be displayed in Italian – on the vending machines and in relation to each individual product:
– FOOD NAME,
– ingredients list,
– allergens,
– name or company name or registered trademark and location of the company responsible for operating the facility.
Subject to additional mandatory indications provided for the sale through vending machines of specific categories of food. (6)
Non-prepacked food (Article 19). An appropriate sign attached to the containers or ‘other equivalent system, including digital, easily accessible and recognizable‘ in the sales compartments where bulk and pre-wrapped food products are displayed (7) must bear at least the following indications:
– food name,
– ingredients list,
– allergenic ingredients,
– Storage arrangements for rapidly perishable food products, where necessary (?),
– Expiration date for fresh pasta and fresh pasta with filling,
– Actual alcoholic strength by volume for beverages with an alcohol content greater than 1.2 percent by volume
– Frosting percentage (tare) of frozen frosted products,
– ‘unfrozen’ designation where appropriate. (8)
A single sign or a special register or other equivalent system, including digital’ – kept prominently displayed near the display counters – may alternatively be used to display the above mandatory information in relation to ice cream, pastry, bakery, fresh pasta and delicatessen products. Provided, it should be noted, that allergens are referred to individual products.
This is without prejudice to the additional mandatory indications prescribed for non-prepacked products. And any requirements set out in the production specifications for PDO and PGI products.
In the case of direct supply to communities, (9) the news may be transferred to the business documents, including telematically. (10)
For beverages sold by tapping, the sign may be affixed directly on or beside the facility.
Non-prepackaged drinking water served by communities must bear the sales designations ‘treated drinking water’ or ‘treated and carbonated drinking water’ (where carbon dioxide is added), where applicable.
Confectionery and bakery products sold by the piece or in bulk, ‘generally intended for consumption immediately after purchase,’ although originally pre-packaged, may carry the mandatory information on the sign or container only, as long as it is easily visible and legible.
In the stages prior to delivery to consumers and communities, the basic information required for non-prepacked foods (name, ingredient list, allergens) — in addition to the name or company name or registered trademark and address of the FBO and batch code — can only be provided on commercial documents, even in telematic mode. Provided that such documents precede or accompany individual deliveries.
Allergens, information in public establishments. As already indicated in note Min. Sal. 6.2.15, the statement on the presence of allergenic ingredients must always be provided in writing – in Italian and easy to read – ‘so that it can be traced back to each food, before it is served to the final consumer by communities.’ Through a ‘menu or register or special sign or other equivalent system, including digital, to be kept well in view.’ Where digital systems are used, the news must also appear on readily available paper records.
‘Thawed,’ requirement for written information from communities. Public establishments as well as operators of canteens and catering establishments are also required to inform patrons when food is thawed. (11)
B2B sales to entities other than collectivities (Article 20). In cases where food products-including semi-finished products-are transferred to industry, intermediate commercial users and artisans (for their ‘professional uses’ or with a view to further processing), notification of the name, allergens, net quantity, name or company name or registered trademark of the operator and batch is prescribed. Also through commercial documents and by electronic means. Subject to the general duty to pass on all news that the receiver must in turn pass on to the final consumer. (12)
CHAPTER II – National standards, penalties
Lot, penalties (Article 21). Omission of lot, penalty from 3,000 to 24,000 euros. Use of modalities different from those prescribed, penalty € 1,000-8,000.
Vending machines, penalties (Article 22). Failure to indicate allergens on individual foods, fine of €5,000-40,000 ‘unless the act constitutes a crime’. Other violations, including failure to use Italian language, €1,000-8,000.
Non-prepacked food and food offered by communities, penalties (Article 23). Failure to indicate allergenic ingredients in individual products, fine of € 3,000-24,000 ‘unless the act constitutes a crime’.
Allergen indication in a manner that differs from those established, penalty of € 1,000-8,000 which is halved in case of only formal errors. (13) Omission of mandatory information in B2B supplies prior to delivery to final consumer and community, €500-4,000.
B2B transfers to non-collective traders, penalty (Article 24). Omission of information due, €500-4,000.
Microenterprises, it is recalled, benefit from penalty reductions of up to one-third. (14)
The analysis continues, in the article to follow, by way of explanation of the final rules of the decree (mutual recognition, competent authorities, procedures, transitional period).
Dario Dongo
Notes
(1) ‘Legislative decree on the penalty regulations for violation of the provisions of Regulation (EU) No. 1169/2011 on the provision of food information to consumers and the adaptation of national legislation to the provisions of the same Regulation (EU) No. 1169/2011 and Directive 2011/91/EU‘
(2) Subject to some simplifying assumptions, which we have already mentioned in previous article
(3) The requirement of indelibility can also be fulfilled by handwriting in the case of handcrafted productions. In any case, indelibility must be verified on each package, with particular attention to thermal printing inks that may sometimes be illegible as a result of simple handling and manipulation activities of the packages
(4) For example, by identification of the sales unit by quoting expiration or TMC with day and month. NB: The lot serves the primary function of facilitating the management of any food security crisis. Consequently, its coding on a daily basis may be inadequate, in the case of large production and/or packaging volumes
(5) Without prejudice to the duties of traceability and identification of the batch to which it belongs, which are essential for the management of any corrective actions (pursuant to EC Reg. 178/02, Article 19), by means of appropriate codes to be shown on the outer packaging
(6) For example, the indication ‘product to be consumed only after boiling’, in addition to various others, to be placed on the front of raw milk dispensing machines (see State-Regions Agreement 25.1.07, Ministerial Order 10.12.08)
(7) As well as ‘products not constituting sales units’ referred to in reg. EU 1169/11, Article 2.2,e (e.g., canned fish or vegetables in large ‘over-the-counter’ packages, sold after splitting and prewrapping at the buyer’s request)
(8) See reg. EU 1169/11, Annex VI, point 2
(9) Collectivity is defined as ”any establishment (including a vehicle or a fixed or mobile sales counter), such as restaurants, canteens, schools, hospitals and catering enterprises where, as part of a business activity, food is prepared for immediate consumption by the final consumer‘ (EU reg. 1169/11, Art. 2.2.d)
(10) With due care to provide timely updates, in case of changes in mandatory information (with special attention to allergens)
(11) Without prejudice to the cases of derogation in EU Regulation 1169/11, Annex VI, Part A point 2 (the application of which to administered foods deserves appropriate clarification)
(12) Cf. reg. EU 1169/11, Article 8.8. In fact, B2B supplies can take advantage of the exemption mentioned in Article 20 in the only case where the ultimate destination of the products is a collective (as they are not obliged to report the full list of ingredients)
(13) E.g., indication of ‘Kamut TM’ instead of ‘khorasan wheat’
(14) See Sanctions Decree, Article 27.3. Microenterprises are defined as those with fewer than 10 employees and annual turnover or budget of less than 2 million euros
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
