Legislative Decree. 116/20, Food packaging labeling. Inapplicable standards

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Italy’s implementation of the Circular Economy Package, as noted above, has introduced a wide range of innovations regarding the management of packaging and related waste.

This is followed by an analysis of the new food packaging labeling regulations introduced by the new ‘waste decree’ (Legislative Decree 116/20). Rules unenforceable due to lack of notification to Brussels, as well as questionable constitutionality in several other respects.

Packaging labeling, uncertain obligations

The Environment Code, as reformed by the new ‘waste decree’, requires producers to ‘indicate, for the purpose of identifying and classifying packaging, the nature of the packaging materials used, on the basis of Commission Decision 97/129/EC‘ (d.lgs 152/06, new art. 219, para. 5). Since, moreover, the management of waste materials has undergone and is subject to numerous evolutions, over time and in the territories, the original text of the rule referred to the ‘modalities established by decree of the Minister of the Environment and Protection of Land and Sea in consultation with the Minister of Productive Activities in accordance with the determinations adopted by the Commission of the European Union‘.

Legislative Decree. 116/20 instead deletes the reference to the secondary source of law (interministerial decree) mentioned above, referring to ‘the applicable UNI technical standards‘. That is to say, the methods of labeling packaging, prescribed by a provision of an act having the force of law (Legislative Decree 116/20) are ‘determined’ by reference to an indeterminate nucleus of technical standards of UNI (Ente Italiano di Normazione) that it is doubtful can be qualified as tertiary sources of law (1,2).

Classification and labeling of packaging materials

The nature of packaging materials should therefore be identified by operators-and communicated on their labels-on the basis of technical standards to be found through UNI’s database. Moreover, UNI technical standards are not collected in an easily accessible public register.

The application of Leg. 116/20 to the date of its formal entry into force (26.9.20) therefore postulates that operators-such as regulators, consumers and their associations-are able to orient themselves within the UNI Web site, find individual standards that are not easy to find (try to believe, at the http://store.uni.com/catalogo/index.php/?josso_back_to=http://store.uni.com/josso-security-check.php&josso_cmd=login_optional&josso_partnerapp_host=store.uni.com) and where appropriate purchase them.

Mission impossible

Thus, the Italian government has prescribed operators to retrieve and examine a set of technical standards of considerable complexity. And to apply the classification codes of packaging materials after exact identification of their composition based on the data sheets. However, the transmission of technical data sheets on the composition of materials, from their manufacturers to users, is not to date required by the reg. EC 1935/04, laying down general principles on Materials and Objects Intended to Come into Contact with Food (MOCA, or Food Contact Materials, FCM).

A mission impossible, all the more so where one considers that:

– the waste decree, adopted on 3.9.20, was published in the Official Gazette of the Italian Republic on 11.9.20 and came into force on 26.9.20, without even providing for a transitional period for the hundreds of thousands of operators subjected to them to adjust to the new provisions, (3)

responsibilities are loosely attributed to ‘producers‘. In blatant contrast to the food labeling burden-sharing criteria precisely set forth in Reg. EU 1169/11(Food Information to Consumers, Article 8).

Legislative Decree. 116/20, inapplicability of standards

Legislative Decree 116/20 has not been notified in advance to the European Commission, as required under penalty of inapplicability for all national technical regulations concerning the production and marketing of goods. (4)

Its regulations are therefore valid as waste paper, according to well-established European and national case law, until the measure undergoes ritual notification to the European Commission and subsequent green light, at the outcome of the so-called standstill period (5,6).

Other issues of constitutionality

Other questions of constitutionality may be raised in relation to Leg. 116/20:

Incompatibility of assignments of responsibility, as far as food packaging is concerned, with reg. EU 1169/11. Which has a superordinate role, in the hierarchy of sources of law, over the Italian constitutional rules themselves, (7)

Violation of the principle of legality, insofar as the precepts whose compliance is subject to administrative penalty are referred to in a generic and unknowable manner. (8)

Confindustria and Assolombarda

Confindustria and Assolombarda, in circulars and initial contacts with some members, have complained that the waste decree would fall out of the sky suddenly. With no opportunity to interject, as is customary, with the (in)competent administrations. And that at best an amendment (late, as the rules are already formally in place) of no more than 6 months could be obtained.

Carlo Bonomi, president of Confindustria and formerly of Assolombarda, has been distracted in the class battle to lay off employees as soon as possible and shift the costs of the crisis onto them. Better then to deal with the real issues, such as the problem at hand. And realize that there is no point in negotiating the transitional period of an illegitimate and unenforceable decree. Rather, we need to regain the lost dialogue with ministries to reconstruct its text so as to facilitate its proper implementation by all.

To the decree to come, the inevitable transition period

The transitional period for the application of the new requirements, in the decree to be notified to Brussels, should follow the common-sense criteria that the writer humbly proposed in 2004 and were actually taken up by the European Commission in Regulation (EU) 1169/11. (9) Where, in reporting on new food labeling measures, the European Commission is required to:

– establish ‘An appropriate transitional period for the implementation of the new measures, during which foods whose labels do not comply with the new measures may be placed on the market and after which stocks of such foods placed on the market before the expiration of the transitional period may continue to be sold until exhausted‘ e

– ensure ‘that these measures apply as of April 1 of a calendar year.’ (10)

Pending reforms and clarifications by the Italian government and the Ministry of Environment, before intervention by the European Commission or the judiciary.

Ad majora

Dario Dongo

Notes

(1) The Provisions on the law in general, so-called prelegislation (approved preliminarily to the Civil Code by Royal Decree No. 262, 16.3.1942) cite usages as (tertiary) sources of law (Art. 1). Providing that ‘In matters regulated by laws and regulations, usages are effective only insofar as they are referred to by them‘ (Art. 8). Article 9 of the Pre-Laws provides that ‘Uses published in the official collections of bodies and organs authorized to do so shall be presumed to exist until proven otherwise.’

(2) The UNI technical standards, in the present case, could possibly qualify as ‘customs,’ since they are not expressly referred to by the Civil Code and the prelegislations. And it is doubtful, however, whether such norms can be regarded as customary as they are lacking:

– The material element. That is, the consolidated application by industry operators, who instead are used to refer to a plurality of standards (UNI, but also CEN, ISO and other standards), subject to frequent changes and updates related to the evolution of packaging materials and their processing methods on different territories),

– the subjective element of the conviction of the mandatory nature of their application, which was in fact introduced through the new Legislative Decree. 116/20

(3) Legislative Decree No. 116 of September 3, 2020. ‘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)’. In Official Gazette General Series, no. 226′ of 11.9.20

(4) EU Dir. 2015/1535. As of the date of publication of this article, the TRIS(Technical Regulations Information System database) registry has no record of the Waste Decree (see https://ec.e uropa.eu/growth/tools-databases/tris/en/).

(5) A relevant precedent concerns Leg. 145/17, requiring the location of the establishment to be indicated on the labels of food products made and sold in Italy. The Civil Court of Rome ruled that the said decree was inapplicable because of its lack of notification in Brussels. Condemning the plaintiff, former Deputy Minister of Agriculture Andrea Olivero, to pay legal costs in favor of the writer and theGreat Italian Food Trade (GIFT) website. V. https://www.greatitalianfoodtrade.it/etichette/sede-stabilimento-decreto-inapplicabile-per-il-tribunale-di-roma

(6) The standstill period has a minimum duration of 3 months, which can be extended by the European Commission without the need to state reasons. During this period, the notifying member state must refrain from implementing the notified rules. While waiting for the Commission and other member states to comment on the congruity of national technical standards with the principle of free movement of goods in the EU and applicable European rules

(7) Italian Constitution, Article 10

(8) Italian Constitution, Article 25. See also Penal Code, Articles 1 and 199, and Law 689/81, Article 1. See doctrine and case law related to the concert of blank criminal rule, the application of which should obviously be extended to rules establishing administrative penalties

(9) Dario Dongo. Food labeling and advertising, principles and rules. Edagricole, Bologna, 2004. ISBN 978-8850651221

(10) Reg. EU 1169/11, Article 47.1

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.