Legislative Decree 231/17, in implementing the EU Regulation 1169/11, defined the responsibility of distributor In terms never so clear.
Labels, responsibility
The Food Information Regulation introduced a criterion for assigning responsibility, with regard to completeness and correctness of information provided on food products, which is based on ownership and/or management of the brand. (1)
Therefore, the person responsible is first and foremost the one who presents himself to the consumer as a guarantor of the food’s qualities:
– thebranded industry (IDM), on products bearing their trademarks. In both cases where they are made and/or packaged on the farm, or manufactured by a third party,
– the distributor on the private label, or MDD (Distributor’s Mark). Regardless of whether the trademark is registered or not, whether it coincides with the name of the chain, and even who the actual owner is. (2)
– the importer,primarily on foods marketed under its brand name. In all other cases, in conjunction with the above subjects, as appropriate.
Whatever the case may be
, the owner or de facto manager of the brand under which the food is marketed has a duty in any case to state on the label its name or business name and address
.
The location of the plant
– of production or packaging, if different – must also be stated, on the
labels
of products made in Italy and intended for the domestic market.
Labels, responsibility GDO
The distributor is in any case and in any case prohibited from supplying-at wholesale, as at retail-‘food whose non-compliance‘ with European and national consumer information standards heknows or presumes. (3)
Where the label lacks mandatory information (4)-that is, the information is false, or misleading-the distributor assumes responsibility for its display for sale and is therefore subject to sanction by the supervisory authority. Even in the event that the outlawed products are sold under the brand name industry (IDM) or importer’s trademark.
The concurrent liability of the distributor should therefore be carefully considered, in modern distribution as well as in the online (ecommerce). All the more so since the
Food Information Regulation
expressly recalls its ‘
professional capacity
‘. (5)
Hypotheses of aiding and abetting the crimes committed by suppliers may also arise against the distributor. Especially modern distribution, whose level of professionalism is comparable to that of the branded industry.
Criminal liability of the legal representative of the GDO (6) may arise either by way of guilt – for sale of harmful food substances, pursuant to Art. 452 of the Criminal Code (7) – or by way of malice, even in a contingent capacity (8), in the crimes of fraud, Art. 515 of the Criminal Code et seq.
GDO accountability, what solutions?
The contractual clauses that provide for the distributor’s indemnity with respect to offenses committed by the supplier on products under its own brand name are null and void – for manifest contravention of the mandatory rules of law set forth in EU Regulation 1169/11, Article 8 – where they aspire to alter the criteria for attributing administrative and/or criminal responsibilities to the various operators. (9)
Hence, the appropriateness of reviewing of retail quality systems, which should include timely criteria for verifying the compliance of labels of all foods displayed for sale by operators with the necessary expertise on food law and, where applicable, biology and technologies applicable to the different references.
The various certification schemes (e.g., IFS, BRC, FSSC 22000), from this point of view, appear deficient where they claim in apodictic terms to verify the compliance of food labels, without providing details as to who should do this and based on what professional requirements.
Dario Dongo
Notes
(1) See reg. EU 1169/11, Article 8
(2) When even MDD is marketed at a retail chain under an unregistered fictitious name, or under a trademark registered by a third party, in the opinion of the writer, the identification of the person responsible must follow a substantial criterion, even beyond the form
(3) See reg. EU 1169/11, Art. 8.3
(4) Reg. EU 1169/11, Articles 9 and 10
(5) That is, diligence, prudence, and expertise must come imbued with the best science and experience applicable at the historical moment to the relevant field
(6) Without prejudice to assumptions of indemnification of the legal representative, by virtue of special delegations of powers, functions, and responsibilities to executives with special competencies
(7) Crimes under Articles 444 and 452 of the Criminal Code may occur, for example, in cases of failure to comply with the manner of specific mandatory indication of allergenic ingredients. As well as in https://www.greatitalianfoodtrade.it/etichette/controlli-il-ruolo-dellamministrazione-sanitaria/
(8) Contingent intent, according to established doctrine and case law, coincides with the conscious acceptance of risk. And the inevitable participation in the illicit profits, in the cases of fraud in trade and similar offenses (Articles 515 et seq. of the Criminal Code)
(9) The competent administrative or judicial authority in such cases, apart from negotiation agreements that are evidently null and void for being contrary to mandatory rules of law, will, if anything, have to assess the concurrent liability of IDM and GDO
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
