The Council of Ministers approved, on 25.2.20, a draft bill on agribusiness crimes. After a brief examination of crimes against agribusiness property, the part of the measure dealing with ʹcrimesagainst public safety and healthʹis now explained. (1)
Poisoning of water or food and contamination, adulteration or corruption of water, food and medicines
The crime of ‘poisoningofwater or food‘ is punished with the punishment already provided (imprisonment of not less than fifteen years or life imprisonment, in case of death of one or more persons). Without limiting its punishability to the stage ʹbeforethey are drawn or distributed for consumptionʹ(in amendment to the current text of Article 439 of the Penal Code).
The crime ofʹcontamination, adulteration or corruption of water, food and medicineʹreplaces the crime of ʹadulterationor counterfeiting of foodstuffsʹ. (art. 440 c.p.). Such activities are punished when a danger to public health results from them, includingin the stages after ʹbefore [food substances, now water, food and medicine, ed.] are drawn or distributed for consumptionʹ. The main penalty already established, imprisonment of three to ten years, remains unchanged.
Criminal responsibility is extended ʹto any person who, in the course of a business activity, produces, processes or makes up food, medicine or water intended for food in violation of food or medicine safety laws or regulations, or otherwise unfit for human consumption or harmful, making it dangerous to public healthʹ (new hypothesis of Article 440, Paragraph 2 of the Criminal Code).
The new crime of ‘Importing, exporting, trading, transporting, selling or distributing dangerous food, medicine or water‘ applies, ‘outside the cases of conspiracy to commit the crimes stipulated in Art. 439 and by Art. 440‘, a ‘anyone who, in the course of a business activity, imports, exports, ships in transit, places in temporary storage or customs warehousing, transports, holds for trade, trades, Administers, sells or distributes poisoned, counterfeit, adulterated, contaminated, corrupted, processed or compounded food, medicine or water in violation of laws and regulations on food or medicine safety or otherwise unfit for human consumption or harmful, dangerous to public health’. And ‘shall be punished by imprisonment from two to eight yearsʹ(new Article 440-bis of the Criminal Code).
Introduction of new criminal offenses
In addition to the previous offenses are the additional criminal offenses set forth below.
Failure to recall hazardous food, medicine or water. ‘Apart from cases of complicity in the crimes provided for in Articles 440 and 440-bis, a punishment of imprisonment from six months to three years shall be imposed on a trader who, having knowledge of the dangerousness for consumption of the food, medicine or water held or disposed of by him, fails to arrange, immediately, for its withdrawal from the market or recall from purchasers or current holders or to inform immediately the administrative authority in charge of food and medicine safety.
To the same punishment shall be subject the trader who fails to observe the measures given by the competent authority for the elimination of the danger referred to in the first paragraph‘ (Article 440-ter).
A critical element can be seen in entrusting the judiciary with the assessment of whether or not the prerequisites from which the obligation to trigger corrective action arises, pursuant to Reg. EC 178/02 (Article 19). Where – in the application practice of general and specific food safety regulations – there are still significant divergences in approach between the same health authorities on the different levels (local, regional, national and EU).
Misleading or dangerous commercial information. ‘Whoever, outside of the cases referred to in Articles 440-bis, 440-ter, 441 and 443 by means of false or incomplete commercial information concerning food, water or medicines jeopardizes the safety of their consumption with danger to public health, shall be punished by imprisonment from one to four years‘ (Article 440-quater).
This offense would therefore occur in all cases of deficient or false information-in labels and sales signs, but also in registers and/or menus of public establishments and other collectivities (e.g., canteens, catering) that assume a https://www.greatitalianfoodtrade.it/etichette/controlli-il-ruolo-dellamministrazione-sanitaria/. Information including news regarding the presence of allergens in foods for sale and serving stands out.
Health disaster. ‘When the acts referred to in Articles 440, 440-bis, 440-ter, 440-quater, 441, 443, and 445 result from negligence in the serious or very serious injury or death of three or more persons and the serious and widespread danger of similar events to the injury of other persons, the punishment of imprisonment from six to eighteen years shall beʹ (Art. 445-bis. See footnote 2).
Notions of unsafe or unsuitable food, adulteration
Public health and the safety of water, food and medicines receive protection based on the following definitions.
– The ‘danger to public health shall also be assessed by taking into account the cumulative consumption in normal quantities of the water, food and medicines distributed or sold and shall be ascertained by reference to the time of their distribution, sale or release for consumption,
– the food is considered adulterated or treated in violation of food safety laws and regulations even when the conduct referred to in Article 440 is carried out through the administration to the live animal or use in connection with the pre-harvest plant of prohibited substances or in quantities exceeding those permitted,
– food is considered unfit for human consumption when it is putrefied, spoiled, decomposed or contaminatedʹ(Article 445-ter).
The above definitions broadly capture the concepts of ‘food at risk‘ in Regulation (EC) No. 178/02, Article 14. Omitting, however, to:
– recall the need to ensure food safety for ‘vulnerable categories of consumers’,
– Distinguish between the concepts of danger and risk. A crucial aspect of assessing the concrete exposure of public health to an actual (and not abstract) risk,
– update these concepts with respect to their most up-to-date notions contained in Regulation (EU) 2017/625.
Specific incidental penalties
Conviction for the crimes specified in new Articles 439, 440, 440-bis, 440-ter, and 445-bis of the Criminal Code entails the application of certain specific accessory penalties. (3) The ban on obtaining (for a period ranging from 1 month to 5 years, according to Article 30 of the Criminal Code):
– ʹregistrationsor measures, however named, with authorizing, granting or enabling content, for the conduct of business activitiesʹ;
– ʹaccess to grants, loans or subsidized loans or other disbursements of the same type, however denominated, granted or disbursed by the state, other public bodies or the European Union, for the conduct of business activitiesʹ.
Temporary closure of the establishment or business where the act was committed, from 1 to 12 months, may be ordered by the court ʹifthe act is particularly serious or in case of specific recidivismʹ.
On the other hand, permanent closure-i.e., revocation of authorizations, licenses, or similar administrative measures permitting the operation of the activity-can be ordered upon the occurrence of both conditions of particular seriousness of the act and specific recidivism (Article 448, paragraphs 3 and 4, Criminal Code).
Culpable crimes against public health
Prison sentences for more serious culpable offenses against public health are subject to harsh aggravation (Article 452 of the Criminal Code) Imprisonment of 3 to 8 years, instead of 1 to 5, for ʹepidemicʹ (art. 438 c.p.) and ʹwater or food poisoningʹ with death of one or more persons (439, paragraph 2, Criminal Code). Imprisonment of 2 to 6 years for the crime of poisoning water or food from which, on the other hand, no human death resulted (art. 439, c. 1, Penal Code).
On the other hand, the culpable attribution of the other crimes against public health (referred to in Articles 440, 440-bis, 440-ter, 441, 443, and 445 of the Criminal Code) is subject to a more pronounced reduction in penalties. Which sell reduced by two-thirds (instead of one-third to one-sixth). Be that as it may, on the basis of more severe edictal penalties.
The need for an organic reform of food law and penalty regimes seems clear. (4) And it is equally clear that there is a need to ensure that magistrates in charge of deciding complex issues such as those under consideration are adequately trained in food law and and basic technical knowledge about hygiene and safety, self-control, and risk management systems.
Dario Dongo and Camilla Fincardi
Notes
(1) ʹOfcrimes of common danger against public health and safety of water, food and medicinesʹis the new title given in the draft bill to Chapter II, Title VI, Book II, of the Penal Code).
NB: The text adopted by the CoM will be subject to political scrutiny, in Parliament, which could result in changes, including substantial ones
(2) Articles 441, 443, and 445 of the Criminal Code cover, respectively, the crimes of ‘adulteration or counterfeiting of other things to the detriment of public health,’ ‘trading in or administering faulty medicines,’ and ‘administering medicines in a manner dangerous to public health‘
(3) The accessory penalties already provided for in Art. 448 c.p., paras. 1 and 2:
– Publication of the judgment,
– Disqualification from 5 to 10 years from the profession, art, industry, trade or commerce as well as disqualification from the executive offices of legal persons and enterprises,
– Publication of the judgment in at least two newspapers with national circulation
(4) The need for an organic reform of food law in Italy has been repeatedly urged, including by this writer, for several reasons. V. https://www. greatitalianfoodtrade.it/idee/al-nuovo-governo-alcune-proposte-per-il-settore-agroalimentare, https://www.foodagriculturerequirements.com/approfondimenti_1/al-governo-che-verrà-alcuni-spunti-di-programma-per-il-made-in-italy-agro-alimentare. With invitation to consider, among other things, the adoption of governance criteria whose deficiency is reaffirmed
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in Law at the University of Bologna and in Italian-French law at the Université Paris Nanterre, she is currently enrolled in the Master in Law and Food Safety Consultant at the University of Bologna.
