Sale of expired food, not (always) a crime. Cassation

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Selling or holding to sell expired food does not necessarily constitute the offense under Article 5 of Law 283/1962, a recent Supreme Court ruling confirms. Brief reflections on the topic.

Article 5, the ‘Highlander‘ of food law

Article 5 of Law 283/62 can be awarded the title ‘Highlander‘. It has survived the decriminalization law (689/81), the First and Second Republics, as well as the various ritually aborted attempts to develop a food law code. Even to the ‘law cutter,’ the proxy law for legislative simplification branded by former minister Roberto Calderoli. (1)

It is prohibited to employ in the preparation of food or beverages, sell, hold for sale or administer as gratuity to its employees, or otherwise distribute for consumption, food substances:

(a) deprived even in part of its nutritive elements or mixed with substances of inferior quality or otherwise treated in such a way as to vary its natural composition, except as provided by special laws and regulations,
(b) in a poor state of preservation,

(c) with microbial loads exceeding the established limits
iti
[…],
(d) soiled, invaded by vermin, in a state of alteration or otherwise harmful, or subjected to processing or treatment aimed at masking a pre-existing state of alteration,
(e) adulterated, counterfeit, or unresponsive in nature, substance, or qualityto the name under which they are designated or required,
(f) artificially colored when the artificial coloring is not authorized or, in case it is authorized, without observance of the prescribed standards and without the indication in clear and legible characters, of the coloring itself,
(g) with the addition of chemical additives of any nature that have not been authorized […] or, where they have been authorized, without observing the prescribed standards for their use […],
(h) that contain residues of products, used in agriculture for the protection of plants and in defense of stored foodstuffs, toxic to humans […].’

Thus, the contravention offense under consideration-although obsolete in describing cases expressing the causation of food safety risk-is still in vogue. (2) So are the most serious crimes under the Criminal Code, referred to below.

Trade in harmful food substances, art. 444 c.p. ‘Anyone who possesses for trade, places on the market or distributes for consumption substances intended for food, which are not counterfeit or adulterated, but are dangerous to public health, shall be punished by imprisonment of six months to three years and a fine of not less than €51.65. The penalty is lessened if the harmful quality of the substances is known to the person purchasing or receiving them.’

Fraud in trade, art. 515 c.p. ‘Anyone who, in the course of business, or in a store open to the public, delivers to the purchaser a movable thing for another, or a movable thing, in origin, provenance, quality or quantity, different from that stated or agreed upon, shall be punished, if the act does not constitute a more serious crime, by imprisonment of up to two years or a fine of up to €2,065.83. If precious objects are involved, the penalty is imprisonment for up to three years or a fine of not less than €103.29.’

Sale of non-genuine foodstuffs as genuine, Article 516 of the Criminal Code ‘Whoever offers for sale or otherwise markets as genuine non-genuine foodstuffs shall be punished by imprisonment of up to six months or a fine of up to €1,032.91.’

Sale of industrial products with false signs, art. 517 c.p. ‘Anyone who offers for sale or otherwise puts into circulation intellectual works or industrial products, with domestic or foreign names, trademarks or distinctive signs, capable of misleading the buyer as to the origin, provenance or quality of the work or product, shall be punished, if the act is not provided for as a crime by another provision of the law, by imprisonment of up to two years and a fine of up to twenty thousand euros‘. (3)

In short, there is no shortage of criminal liability for illegal conduct in the food supply chain in Italy. In connection with the crimes of fraud and sale of non-genuine food, moreover, administrative liability is also added to the entities in whose interest the crimes were committed. Not to mention the administrative sanctions introduced over the past decades, most recently by Leg. 231/17. (4)

Sale of expired foodstuffs, the Supreme Court

The Court of Cassation, Third Criminal Section, in ruling 17063/2019, annulled without referral the 6.7.17 ruling of the Court of Bari. Apulian magistrates had declared the liability of Mr. Luigi Angelo Maria Ragone under Art. 5.1.b of Law 283/1962, for placing on sale (three months) after the expiration date four packages of milk (presumably UHT) ‘in a poor state of preservation‘ (without, however, ascertaining the actual microbiological non-conformity). Sentencing him to a €2,000 fine.

The lower court thus reiterated that the mere passing of the expiration date is not sufficient to integrate ‘the constituent element of the crime of poor food storage condition.’
Therefore, criminal liability arises only if ‘the state of poor preservation of foodstuffs is actually established.’ (5)

In the present case, laboratory tests had ‘foundnoabnormalities about the quality of the product.’ On the merits, ‘the only element from which the judge inferred poor preservation was the exceeding of the expiry date shown on the packages, no failure to comply with prescriptions dictated specifically to guarantee good preservation from a hygienic-sanitary point of view and aimed at preventing the dangers of their premature degradation or contamination or alteration having been established‘.

Indeed, the United Sections of the Supreme Court had already clarified that the poor state of preservation of food substances occurs in ‘situations in which the substances themselves, although they may still be perfectly genuine and healthy, are poorly preserved, that is, repaired or packaged or offered for sale without observance of those prescriptions–of laws, regulations, general administrative acts–that are dictated to guarantee their good preservation from the hygienic-sanitary point of view and that aim to prevent the dangers of their premature degradation or contamination or alteration‘. (6)

Sale or display of expired food, the administrative penalty

Legislative Decree 231/17 – in repealing the former ‘labeling decree’ (Legislative Decree 109/92) and implementing Reg. EU 1169/11 – has on closer inspection strengthened the coeval protection regime. Introducing far more onerous administrative penalties, which can be imposed by the supervisory authority in a shorter time frame than criminal justice.

Unless the act constitutes a crime., when a food isedited in any capacity or displayed for sale to the final consumer beyond its expiry date, pursuant to Article 24 and Annex X of Regulation [EU No. 1169/11], the transferor or person displaying the food shall be subject to an administrative fine of a sum of from 5,000 euros to 40,000 euros‘. (Legislative Decree. 231/17, Art. 12.3]

Therefore, the reservation of criminal law enforcement does not preclude the charge of the offense under Article 5 of Law 283/62 if storage conditions are found to be actually unsuitable to ensure the safety of the food. Even more serious offenses may be charged where concrete dangerousness is verified. But the assessment report must be timely and substantiated, otherwise violators will have an easy time thwarting the outcome of the inspection activity.

Dario Dongo

Notes

(1) On this subject see the writer’s previous articles, at https://ilfattoalimentare.it/piovono-pietre-su-calderoli-e-fazio-a-causa-della-bufala-sulla-presunta-abrogazione-della-legge-283-che-punisce-le-frodi-alimentari.html, https://ilfattoalimentare.it/serve-un-nuovo-pronunciamento-della-cassazione-per-confermare-la-validita-della-legge-283.html
(2) See reg. EC 178/02, Article 14
(3) Article 517bis of the Criminal Code(Aggravating Circumstances) further provides that ‘The penalties established by Articles 515, 516, 517 shall be increased 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.
In the same cases, the judge, in pronouncing sentence, may order, if the act is particularly serious or in case of specific recidivism, the closure of the establishment or business in which the act was committed from a minimum of five days to a maximum of three months, or the revocation of the license, authorization or similar administrative measure that allows the conduct of business in the establishment or business.’
(4) See in this regard thefree ebook ‘1169 penis. EU Reg. 1169/11, food information, controls and penalties’,
(5) Recalled in the same vein are the pronouncements of the Third Section of the Supreme Court no. 30858/08, Amantia and others (Rv. 240755), no. 2144/1996, Sanguineti (Rv. 204562), no. 30425/2012, Scognamiglio (not maximized
(6) Cf. United Sections, judgment no. 1/1995, dep. 1996, Timpanaro (Rv. 203094)

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