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Italian chocolate sector stuck in political deadlock

Related tags Cocoa butter European union Italy

Chocolate lovers are probably blissfully unaware of the intrigue
and intricacies currently afflicting the Italian chocolate sector,
writes BIN Avvocati Associati advocate Daniele Pisanello.

But the world famous snack is currently mired in political deadlock and legal tangle.

While the European Commission has said that some of Italy's provisions, such as its usage of the word 'pure', conflicts with Community legislation, Italy's parliament remains unmoved.

At European level, the definitions and common rules for the composition, manufacturing specifications, packaging and labelling of cocoa and chocolate based products was established on 24 July 1973 by Council Directive 73/241/EEC. In Italy this law was regulated by a 1976 law until its recent repeal to reflect the new Directive of 2000/36.

This updated the rules 'to take account of technological progress and changes in consumer tastes and bring into line with general Community Legislation on foodstuffs'​.In effect, the rules at European level now provide for the addition to chocolate products of vegetable fats other than cocoa butter, (up to a maximum of 5 per cent is permitted) and with a corresponding obligation to set out on the label 'contains vegetable fats in addition to cocoa butter'​ .

This has to be put alongside the list of ingredients, clearly separated from that list, in lettering at least as large, in bold, and near the sales name.

In implementing the new Directive of 2000/36, the production and marketing in Italy of cocoa and chocolate products is now governed by a 2003 regulation which controls 'the use of the expression 'pure chocolate',​ limiting any mention of 'pure' only to chocolate products 'which do not contain vegetable fats other than cocoa butter'.

The breach of this regulation is punishable by a fine from 3,000 to 8,000.

On 5 July 2005 however the European Commission raised the issue of the incompatibility of this 'pure chocolate' provision with Community legislation. In response, the Italian Government proposed the repeal of articles 6 and 7, paragraph 8 of the 2003 regulation.

However by an almost unanimous vote of the Italian Parliament the proposal was rejected and the law relating to 'pure chocolate' remains unchanged.

The issue of 'pure chocolate' emerged in the hearing, indirectly, of the case on 'chocolate substitutes', ruled on by the European Court of Justice in its decision of 16 January 2003 relating to Italys (now repealed) 1976 law. Italy was censured for prohibiting cocoa and chocolate products which comply with the requirements of Directive 73/241/EEC, and to which vegetable fats other than cocoa butter have been added, from being marketed in Italy under the name used in the Member State of production and by requiring that those products may only be marketed under the name 'chocolate substitute'.

The court found this amounted to a quantitative restriction prohibited by article 28 of the European Community Treaty.

The Court reasoned that the addition of vegetable fats does not substantially alter the nature of those products, for which appropriate labelling is informative of the presence of vegetable fats other than cocoa butter, and is sufficient to ensure correct information and therefore the protection of the consumer. It noted that the protection of consumer interests could be met by a less restrictive measure which is the inclusion on the label of a neutral and objective statement informing consumers of the presence in the product of vegetable fats other than cocoa butter.

When this issue next comes before the Court, it appears the question remains open as to whether the prohibition of the use of the word 'pure' for products made with the addition of vegetable fats other than cocoa butter can be considered information that is 'correct, neutral, objective and does not mislead the consumer' to satisfy Directives 2000/36 and 2000/13.

This is not an issue related to the 'sales name' as in the above case C-14/00, but rather the interpretation of the labelling and marketing rules in which the general principle is that 'the labelling and methods used must not be such as could mislead the purchaser to a material degree, particularly as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production'​.

In the case of a finding against it, Italy will have to repeal articles 6 and 7, paragraph 8: but then consideration of any misleading references as to 'pure' might fall within the jurisdiction of the antitrust authority, the office responsible for the prevention of misleading publicity or possibly the authority for unfair competition.

However, should that occur, the break down in consumer protection for food products will be even more apparent. On the one hand, consumers of chocolate products will not be able to rely on a reference which at the outset refers to the purity of the main ingredient in the chocolate. On the other, there are goods which are not harmonised at European level, and in which the definitions of quality in many cases are established by law, such as the names of baked goods - pandoro, panettone and amaretto - or of set quality standards which authorise the use of such claims for delicatessen products such as seasonal prosciutto crudo or salami.

Even if the Italian regulations are found to be in conformity with Community Legislation, not all the problems will be solved. Stop to think of the problems in the relationship between this prohibition and the use of brands, national and communitarian, registered or future, in which there is reference in whole or in part to 'pure'.

BIN Avvocati Associati is a law firm with experience in fields including commercial litigation, company and corporate governance, project finance and food law. It has offices in Turin and Milan​.

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