The contamination of wheat with mustard finally emerged, as, moreover, could and should have been predicted long ago. (1) Due to the risk of severe allergic reactions-even life-threatening-all operators who process wheat, semolina, flour or products containing them (e.g., pasta, bread, baked goods) must:
– perform analysis on its products and
– provide for the immediate public recall of foods where the allergen may be present but is not declared on the label.
This note, which is recommended for wide dissemination in every production and distribution context, is transmitted by Food Allergy Italia to the Directorate General for Hygiene, Food Safety and Nutrition (DGISAN) of the Ministry of Health, so that urgent action is taken to safeguard allergy sufferers. And action should be taken against those who have so far been peddling bad advice, citing the non-existence of a duty to recall unsafe food.
1) Mustard not declared in pasta. Alert in Italy and France
The risk of contamination of wheat with the mustard allergen was foreseeable and expected after various agronomic specifications included its use as a green manure crop. (1) However, the milling industries have neglected the agronomic practices of their suppliers and only a few weeks ago decided to share that there is a real risk on semolina and flour already delivered (see next paragraph).
The Ministry of Health has registered the ‘Recall for risk of presence of allergens‘ of some pasta references on its website, November 2021. Web pages related to each call are inaccessible, at the time this article is written. The news in each case concerns three brands:
– Nature calls Selex. 6 organic pasta formats (whole wheat spaghetti, penne rigate, whole wheat fusilli, whole wheat farfalle, whole wheat elicoidali) recalled 5.11.21,
– Knowledge of Flavors (Selex). Gragnano IGP Pasta, Spaghettoni and Calamarata. Recall 5.11.21
– Consilia. Consilia know how to choose, pasta Farfalle No. 265. Consilia, organic whole wheat penne rigate. Recalls 12 and 14.11.21
2) RASFF, the silent notification.
TheRapid Alert System on Food and Feed (RASFF) portal reports news of the public recall of Italian pasta-distributed also in France, through Dimar SpA Cash in Albenga (SV)-because of contamination of pasta food with mustard (up to 0.40 mg/kg). However, without publishing the names of the operators and brands involved. (2)
Moreover, the notification to Brussels – registered on 4.11.21 and ‘validated’ by the Commission on 19.11.21, with a slowness that is ill-suited to the management of a food safety risk classified as ‘serious‘ – covers all the cases recalled in the previous paragraph.
The credit for the recalls goes to the Selex group, which performed self-check laboratory tests and found the contamination of pasta made by
– Newlat Food S.p.A., in the Fara San Martino (CH) plant where Delverde brand pasta is produced,
– Award-winning Afeltra pasta factory in Gragnano (NA),
– Pastificio Lucio Garofalo S.p.A. (EBRO Group) in Gragnano (NA),
– Pasta Zara, Riese (TV).
3) Unreported allergens, corrective actions.
Food that contains any of the allergens specified in the exhaustive list in Annex II to Reg. EU 1169/11-without reporting its presence on the label, with graphic evidence of the keyword identifying the substance-qualifies as ‘food at risk.’ (3)
Where the responsible operator-the owner of the brand under which the product is sold-knows or has reasonable cause to believe that a foodstuff that has escaped its availability poses a risk to public health, it has a duty to:
– Immediately activate the (commercial) recall of the product batch(es),
– Immediately notify the appropriate ASL (with respect to your location) of the withdrawal,
– Informing consumers by any suitable means if the risky products may have reached the retail consumption level,
– provide for the public recall of products, (4) if all other measures are insufficient to ensure a high level of food safety. (5)
The Selex group, in the recalled cases, has shown excellent proof of responsibility. Both in performing analyses, sharing test reports with suppliers, and searching for other batches produced with the same semolina. Both in the prompt activation of the recall, with notification to the relevant ATS of test reports, distribution lists and signs displayed at points of sale.
4) Roles and responsibilities of the large-scale retail trade
The large-scale retail trade, large-scale organized distribution, in turn has a duty to ensure that the food it distributes fully complies with all applicable regulations. (6) Faced with an emerging risk such as the one under consideration, the large-scale retailer must therefore in turn apply HACCP and arrange the most appropriate controls on all categories of products potentially at risk.
The distributor-in addition to having primary responsibility for the corrective actions referred to in the preceding paragraph, on foods under its own brand name(private label)-must still participate in the activities of segregation of risk products and recall or recall, if they have been activated by the responsible operator or ordered by the health authority. Reference is made to what has already been written on this subject. (7)
5) Be wary of bad advice
The above rules have applied uniformly in the EU since 1.1.2005. Nevertheless, Italmopa, the Confindustria association of mills in Italy, relied on the bad advice of Prof. Lawyer Paolo Borghi. To theorize that ‘Reg. EU no. 1169/2011, there is no requirement for labelling indications in case of accidental contamination by one or more of the allergenic substances listed in Annex II of the same regulation, including soy and mustard itself‘.
Delirium is reached in the statement-which reads in the email of large mills registered with Italmopa, to its industrial customers – according to which ”in the event of a control analysis from which a positive result is found, however, there is no legal requirement to recall the product, unless it is a product intended for a particular category of consumers (i.e., it is declared to be intended for “mustard intolerant or allergic”).‘ False. Incitement to commit a crime. (8) On the other hand, the corrective actions referred to in paragraphs 3 and 4 are dutiful, urgent and imperative.
Interim conclusions
Food allergies are one of the most dangerous diseases because of the severity of the effects and the immediacy of the immune reaction that can trigger them. The prevalence is higher in children, compared with adults. Anaphylactic shock is common, sometimes followed by coma and death. Waffling is dangerous; life is not to be trifled with.
Food labels and records of public establishments must come up to date with an essential statement, ‘Contains (or May Contain) Mustard‘. Without referring to the ambiguous concept – therefore prohibited (under EU Reg. 1169/11, Art. 36) – of ‘traces‘, in fact lacking scientific consensus and legal references. (9)
Dario Dongo
Notes
(1) Dario Dongo, Andrea Adelmo Della Penna. Mustard. Allergy prevalence, agricultural uses, contamination risks. GIFT (Great Italian Food Trade). 9/19/21, https://www.greatitalianfoodtrade.it/sicurezza/senape-prevalenza-allergie-usi-in-agricoltura-rischi-di-contaminazione
(2) European Commission. Mustard undeclared in paste from Italy. RASFF notification 2021.6286. 19.11.21, https://webgate.ec.europa.eu/rasff-window/screen/notification/513275
(3) Reg. EC 178/02, so-called General Food Law, Article 14. Indeed, food safety risk assessment must consider the vulnerabilities of certain categories of consumers, such as precisely allergy sufferers, and the information accompanying the food
(4) The product recall form prepared by the Ministry of Health is available at https://www.salute.gov.it/imgs/C_17_pagineAree_4633_listaFile_itemName_0_file.pdf
(5) Reg. EC 178/02, Article 19. For further study please refer to our ebook ‘Food Safety, Mandatory Rules and Voluntary Standards ‘ https://www.greatitalianfoodtrade.it/libri/sicurezza-alimentare-regole-cogenti-e-norme-volontarie-il-nuovo-libro-di-dario-dongo
(6) Dario Dongo, Pier Luigi Copparoni. Distributor responsibility, insights. GIFT(Great Italian Food Trade). 5/22/18, https://www.greatitalianfoodtrade.it/etichette/responsabilità-del-distributore-approfondimenti
(7) Should the GDO activate the recall on products never displayed on the shelf? Attorney Dario Dongo replies. FARE(Food and Agriculture Requirements). 4.8.21, https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/la-gdo-deve-attivare-il-richiamo-sui-prodotti-mai-esposti-a-scaffale-risponde-l-avvocato-dario-dongo
(8) NB: Awareness of the concrete risk of contamination of its products–in cases of failure or delay in activating the public recall–may lead to charges of the crime of injury and/or malicious homicide, in case of adverse reactions, against the legal representative of the company
(9) Dario Dongo. May contain allergens, ABC. GIFT(Great Italian Food Trade). 6/24/18, https://www.greatitalianfoodtrade.it/salute/può-contenere-allergeni-abc
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
