Sanctions reg. EU 1169/11, analysis of the decree

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Better late than never – six years afterEU Regulation 1169/11 – the so-called Food Information to Consumers (FIR) – cameinto force, Italy too is introducing a special sanction framework. A preview of the decree analysis follows.

Reg. EU 1169/11, food labels and advertising, the sanctions decree

The Council of Ministers, on 11.12.17, approved the ‘legislative decree. Laying down the penalty rules 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‘. (1)

A preliminary review of the decree, with some critical notes, was already offered on this site. Which had at the time published a preview of the text, now available in its final version. (2) We now proceed to the detailed analysis.

TITLE I – General Principles

Scope (Article 1). The administrative penalties introduced by the decree relate to violations of the rules on consumer information on food products, as set out in EU Regulation No. 1169/2011 and Directive 2011/91/EU. (3) Subject to criminal law enforcement, (4) and subject to penalties specifically provided for violations of the Nutrition & Health Claims regulation. (5) Also without prejudice to the jurisdiction of the Competition and Market Authority (Antitrust), which oversees compliance with the Consumer Code.

Definitions and responsible operators (Article 2). For applicable definitions, reference is made to reg. EU 1169/11, Article 2. Likewise for the operator responsible for truthfulness and completeness of information, which is the ‘under whose name or business name the product is marketed or, if such operator is not established in the Union, the importer established in the territory of the Union; the food business operator whose name or business name is indicated in a registered or filed trademark is also identified as the responsible party.’ (6)

TITLE II – Sanctions

CHAPTER I – General criteria and responsibilities

Fair information practices (Article 3). Violation of the general criteria of transparency and correct information to consumers (7) is punished with an administrative fine from 3 thousand to 24 thousand euros, ‘unless the fact constitutes a crime and excluding the cases specifically sanctioned‘ by other provisions of the decree.

Accountability (Article 4). Operators influencing food information, (8) who supply food of which they know or can presume non-compliance in information, shall be punished with a fine of €500 to €4,000. (9)

Changing the information received about a food, if it may ‘mislead the consumer or otherwise reduce the level of consumer protection,’ (10) is punishable by a penalty of 2,000 to 16,000 euros.

B2B Transfers. Theomission of mandatory food information is subject to a penalty of one thousand to eight thousand euros.

Outer packaging. Failure to affix the prescribed information on the outer packaging of prepacked foods intended for B2B sale (food name, expiration date or TMC, special conditions of storage or use, name of responsible operator) is also subject to a penalty of €1,000-8,000.

CHAPTER II – Mandatory label information, violation of general rules

Allergens (Article 5). ‘Failure to affix mandatory indications‘ regarding allergens carries a penalty of 5 thousand to 40 thousand euros. Except where the responsible operator ‘has initiated the procedures stipulated in Article 19 of Regulation (EU) No. 178/2002 prior to the establishment of the violation by the supervisory authority‘.

Other mandatory information. The ‘Failure to affix‘ one or more of the other mandatory indications – food name, ingredient list and additives, QUID, expiry date or TMC, net quantity, special conditions of storage (11) or use, name or business name and address of responsible operator, (12) country of origin or place of provenance where prescribed, (13) directions for use where required, alcoholic strength for beverages with alcohol content >1.2%, nutrition declaration – results in the imposition of an administrative fine of €3,000 to €24,000 on the responsible party.

Readability and field of view (Article 6). Violation of the general and specific criteria for ensuring the readability of label information is punishable by a sum of €1,000-8,000. Same penalty if information that must appear in the same field of view (sales name and quantity, as well as alcohol content for alcoholic beverages) is otherwise placed.

Distance selling (Article 7). Violation of the consumer information requirements prescribed in all cases of distance selling shall result in the imposition of a fine of 2 thousand to 16 thousand euros.

CHAPTER III – Mandatory label information, violation of specific regulations

Food Denomination (Article 8). Failure to meet the prescribed criteria, i.e., use of a protected name, trademark or fancy name in place of the name (legal, customary or descriptive), penalty from € 2,000 to 16,000.
Reduced penalty, from €500 to €4,000, where the above violations are solely due to ‘formal errors or omissions’.
Identical reduced penalty in case of use of name legally used in the (different) country of production and yet not clear or clarified to Italian consumers.
Violation of specific rules on food names and supplementary indications in All. VI of reg. EU 1169/11, fine from € 1,000 to 8,000. (14)

Ingredient list (Article 9). Violation of ingredient naming regulations, penalty from €2,000 to €16,000. In a reduced amount, €500-4,000, if the violation involves only formal errors or omissions.
Violation of the specific provisions on the indication and designation of ingredients in Annex VII of Reg. EU 1169/11, € 1,000-8,000.

Allergens (Article 10). Failure to comply with allergen labeling requirements, € 2,000-16,000.

QUID and net quantity (Article 11). Unless the act constitutes a crime, violation of the rules on quantitative indication of ingredients and net quantity, € 1,000-8,000.

Expiration date, freezing, TMC (Article 12). Violation of rules on expiration date and ‘frozen (or deep-frozen) on’ date, (15) € 2,000-16,000.
Unless the act constitutes an offense, transfer ‘for any reason’ or display for sale to the final consumer of a food beyond the expiration date, € 5,000 to € 40,000 (!).
Non-conformity on minimum shelf life, € 1,000-8,000. 2.

Country of origin or place of provenance (Article 13). ‘Unless the act constitutes an offense’, violations on content and manner of indication of country of origin or place of provenance ‘referred to in Article 26 of the Regulation’, €2,000-16,000. (16) Only €500 to €4,000, when dealing exclusively with formal errors or omissions.

Alcoholic strength (Article 14). Violation of regulations on the indication of alcoholic strength, € 500-4,000.

Nutrition statement (Article 15). Inexact manner of indication, content, expression and presentation of the nutrition declaration, € 2,000-16,000 (!!).

CHAPTER IV – Voluntary information, violations

‘Unless the act constitutes an offence,’ the impropriety of voluntary reporting of information generally provided as mandatory (17) is punishable by the same penalties as in Chapters II and III above (Articles 5-15 of the Decree).
Information on an optional basis contrary to the general criteria of truthfulness and transparency may in turn be sanctioned with a sum of €3,000 to €24,000.
The same penalty may apply, when the European Commission has defined the relevant standards, for failure to comply with the ‘vegetarian’ and ‘vegan’ attributions (Article 16).

TITLE III – Adjustment of national standards

The analysis continues in the article to follow, specifically devoted to national regulations on lot codes, vending machines and the sale of non-prepackaged food.

TITLE IV – Final Provisions

Microenterprises (18) benefit from reductions of up to half of any administrative penalty.

Supplies to NGOs- ‘with a view to subsequent free transfer to needy people’-are exempt from penalties, outside of only cases of irregularities on allergens and expiration date.

Finally, the ‘appropriate written rectification of non-compliant information’ (19) excludes the application of the penalty provisions (Article 27).

Dario Dongo

Notes

(1) The legislative decree was enacted by virtue of special delegation of authority to the government ‘pursuant to Article 5 of Law Aug. 12, 2016 no. 170, so-called 2015 European delegation law’

(2) Cf. Press Release 11.17.12 Council of Ministers, ‘Implementation of European Standards’, item 4, at http://www.governo.it/articolo/comunicato-stampa-del-consiglio-dei-ministri-n-61/8641. For the final text of the measure, see the Appendix to this article

(3) Dir. 91/2011/EU ‘on indications or marks identifying the lot to which a foodstuff belongs‘, so-called lot directive

(4) Cited in this regard are the crimes of fraud in trade (Art. 515 Penal Code), sale of foodstuffs not genuine as genuine (Art. 516), and sale of industrial products with false signs (Art. 517). With the aggravating circumstances set forth in Article 517-bis below (‘if the acts provided for therein relate to food or beverages whose designation of origin or geographical origin or specificity are protected by the regulations in force‘)

(5) Reg. EC 1924/06, reg. EU 432/12 as amended

(6) See reg. EU 1169/11 (FIR), Article 8

(7) See reg. EU 1169/11, Article 7. For some concrete examples, see the articles https://www.greatitalianfoodtrade.it/senza-glutine-senza-esagerare as well as those listed at https://www.foodagriculturerequirements.com/?lang=it&s=7.1.c

(8) Outside of only distributors, whose responsibilities are defined in the FIR in Article 8.3

(9) This may be the case when a public shopkeeper transcribes on the sale sign of food sold in bulk the far-fetched news received from the supplier. For an example, see https://www.foodagriculturerequirements.com/fare-pane-viola-per-diabetici-e-obesi-magari-no-risponde-l-avvocato-dario-dongo

(10) Cf. FIR, Article 8.4. This is the typical case of the omission of essential mandatory information (e.g., expiration date, special storage conditions) on prewrappers

(11) See paragraph 2 article https://www.foodagriculturerequirements.com/export-in-austria-è-ora-di-rispondere-per-le-rime-ai-consulenti-di-gruppo-rewe

(12) Identical punishment shall apply to a distributor who indicates only the name and address of the manufacturer and packager, without affixing his or her own, on products marketed under his or her own brand name

(13) Cf. reg. EU 1169/11, Article 26, and reg. EU 1337/13

(14) Identical penalties for failure to designate nano-materials.

(15) Prescribed date only for meat, meat preparations, and unprocessed fishery products.

(16) NB: The European Commission has not yet implemented Article 26.3 of Reg. EU 1169/11

(17) See EU Regulation 1169/11, Article 36.1. This refers to the set of information in Articles 9 and 10 of the FIR

(18) NB: Micro-enterprises are defined as those with ‘less than 10 employees and a turnover (the amount of money made in a specific period) or balance sheet (a statement of a company’s assets and liabilities) of less than 2 million euros annually’ (cf. Recommendation 2003/361/EC

(19) Presumably re-labeling, i.e., deletion of the irregular information and its replacement with the correct information, which must still be affixed on an additional label

 

ANNEXThe text of the legislative decree ‘laying down the sanction discipline for the violation of the provisions of Regulation (EU) No. 1169/2011 (…)’, as approved by the Council of Ministers on 11.12.17