The challenges of implementing EC food law in Italy

From 1 January 2005, food sector operators must comply with the provisions of regulation 178/02: the general duty of compliance (articles 14 and 17), traceability (article 18) and crisis management (article 19), writes Daniele Pisanello.​

The Community is not responsible for enforcement, so it is up to the Member states to decide on the penalties for breach of these obligations.

In Italy the adoption of the new food law is a top priority. A penalty framework for the breach of some of the provisions of 178/02 has been established in order to facilitate accountability and enforcement.

Businesses facing the risk of financial penalties will seek to meet the requirements of this general food law. But even so, the Italian legislative framework presents some doubts and difficulties.

The first of which concerns its application. The new penalties apply only if the act does not constitute an offence​. In case law, this offence exception​ applies when the act is the same as one which is governed by the criminal law.

In the case of doubt the competent authority will probably decide it is of a criminal nature and will forward it to the state prosecutors office with the accompanying time delays and uncertainty as to the basis for the penalty.

There are also other problems such as the provisions for traceability. Article 2 of 190/2006 imposes a monetary penalty on those food and feed business operators who dont fulfil the obligations of article 18 of Regulation (EC) 178/2002​.

However article 18 is an articulated rule, consisting of different elements which comprise the general statement of the obligations of traceability in all the phases of the so called food chain (article 18.1), up to the duty on operators to be able to identify any person from whom they have been supplied with a food, a feed, a food-producing animal, or any substance intended to be, or expected to be, incorporated into a food or feed​ (art.18.2,1).

Can these provisions really be the basis for penalties? Can the notion of being able to​ be ruled on and penalties imposed?

In terms of legal rights the answer could well be no​.

The penalties for traceability will therefore rest with the remaining provisions of article 18 relating to the duty on operators to arrange systems and procedures to identify any person from whom they have been supplied with a food, a feed or any substance intended to be incorporated into food or feed and to identify the other businesses to which their products have been supplied (articles 18.2 and 18.3).

Concerning breach of the duties of crisis management (article 19 reg.178/02), the Italian lawmaker has taken a completely different stance - a meticulous rehash of the subject matter.

Article 19 prescribes a series of duties if the food business operator considers or has reason to believe that a food, which it has imported, produced, processed, manufactured or distributed, is not in compliance with the food safety requirements and is no longer under the immediate control of the operator.

There are three clear duties: immediate withdrawal of the product, informing of the competent authorities and if there is a risk that the unsafe food stuff has already reached the consumer, communication to the consumer of the reason for withdrawal.

In Italy the failure to initiate the withdrawal procedures is punishable by a penalty from 3,000 to 18,000 euros, while the related duty of failing to inform the competent authorities carries a penalty from 500 to 3,000 euros. Meanwhile failure to communicate the reasons for withdrawal to the consumer carries a penalty which is drastically (and incomprehensibly) higher: from 2,000 to 12,000 euros.

In the midst of these observations there remains some doubt: any non observance of food safety requirements, even if there is only a minimal impact on human health, triggers an obligation to withdraw, inform the competent authority and, above all, inform the consumer. For example, if there is a lack of information relating to the presence of potential allergens or the presence of residues that are authorised but in quantities exceeding the permitted threshold, these food safety failures might come within the scope of the duties under article 19 and under the Italian jurisdiction attract the penalties provided for in law 190/06.

The problem becomes even more significant if the risk communication to the consumer is considered. The Italian lawmakers, with painstaking thoroughness, have sought to enforce this obligation with a penalty that in terms of gravity is head and shoulders above the penalty for failure to inform the competent authority.

As was seen in the case of Nestle and the packaging ink ITX used for their baby milk cartons, media and consumer group pressures prompted the communication of a risk. However in this, despite all the controversy, the EFSA found ITX presented a low health concern.

Under article 19, food operators facing an unqualified health risk may still be compelled to communicate any kind of risk by warnings via the media, the value of which on a cost benefit analysis seems arguable.

One final observation. The evolution of the European food policy from that which was based solely on risk analysis towards risk management, including crisis management, gives a partial result. The logic of the crisis management plan in the food sector is implicit in regulation 178/02 but neither this regulation, nor the Hygiene Package, nor 190/06 impose an obligatory duty of planning for withdrawal, which is central to the effective application of the rules of risk management.

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Daniele Pisanello is an associate and Melinda Geary is a consultant in the law firm BIN Avvocati Associati a full service business law firm with practice areas including commercial, commercial litigation, administrative and food law. Its offices are in Turin and Milan.​

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