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Italy loses EU court battle to retain 'unlawful' chocolate sales name

By Ben Bouckley , 30-Nov-2010
Last updated the 30-Nov-2010 at 14:24 GMT

Italy has lost a long-running legal battle after the European Court of Justice (ECJ) ruled that the nation's chocolate producers were guilty of breaking union regulations relating to pack labelling.

As with other foods, the EU has harmonised labelling and sales names of chocolate products throughout member states, with the aim of ensuring that consumers receive accurate pack information and ensuring a competitive single market for goods.

But despite European Commission (EC) opposition, Italy introduced national legislation in 2003 to protect domestic chocolate producers, which allowed them to use the sales name ‘puro’ (pure) for products using cocoa butter alone to provide fat content.

Italy voted to keep the law in 2006 despite warnings that it risked infringing EU directive 2000/36 and ECJ case law, given that use of ‘pure’ discriminates against rival products within the union containing substitute vegetable fats – erroneously suggesting that the latter are somehow not genuine, given that ‘puro’ implies purity.

Italy undermining EU law

Consequently, the ECJ ruled last Thursday that that Italy had failed to fulfil its obligations under EU law, altering and undermining “harmonised definitions adopted at Community level”.

The ECJ’s judgement read: “Given that…'puro’ means unadulterated, untouched and therefore genuine, consumers are led to believe that goods which, while complying with the directive…relating to sales names, contain vegetable fats other than cocoa butter and are impure…unadulterated, processed and not genuine.”

An ECJ spokeswoman told FoodNavigator.com that Italy now faced sanctions if it failed to comply with the judgement. “Now that the court has made its judgement the matter has been passed back to the EC, which will ensure that the Italian government complies with the ruling. It’s in their hands now.”

Unlawful implication

EU directive 2000/36 covers cocoa and chocolate products for human consumption, and states that chocolate products containing a maximum of 5 per cent of some ‘substitute vegetable fats’ can retain their sales names unchanged, but must add a packaging note stating, ‘contains vegetable fats in addition to cocoa butter’.

According to a separate ECJ statement, products such as Italian chocolate using cocoa butter alone are allowed to advertise this on the label in “correct, clear and objective terms that do not mislead the consumer”.

However, the court adjudged that the Italian fault was one of implication, given that chocolate products with added vegetable fats still qualify as chocolate, and a difference in their sales name, as against cocoa butter-only products, was not justified.

Accordingly, the ECJ held that EU law makes no provision for ‘pure chocolate’ as a sales name and does not permit its introduction on a national level, as per the Italian case.

‘Puro’ really that pure?

The court also noted that, in using ‘puro’ as an adjective, Italian chocolate makers fell foul of quality compliance criteria in Article 3(5) of Directive 2000/36, which sets out a greater minimum content for dry cocoa solids in products where qualitative “information or descriptions” are used.

“The Italian legislation makes the use of ‘puro’ subject simply to the presence of cocoa butter by way of fat, said the ECJ’s judgement, “and there is no requirement to comply with the higher minimum content for dry cocoa solids.”

In January 2006 Italian MPs voted almost unanimously to uphold the country’s definition of ‘pure chocolate’, and producers thereafter applied unsuccessfully for (TSG) Traditional Specialty Guaranteed labelling status. This demands that products must be either traditional or established by custom, while their names must express the specific character of foods.

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