Bird & Bird Newsletter Food & Beverages

06 May 2011

Licia Garotti, Linda Brugioni

Labelling of foodstuffs – Part 1

No purity in chocolate

While tasting a chocolate bar, remember that you are most probably eating also a small percentage of illipe, palm oil, sal, shea, kokum gurgi, mango kernel and not just cocoa butter. You may be lucky and you may have found a chocolate bar made only with cocoa butter, but no indication of “purity” in the sales name will guide you from now on in Italy, except from the ingredients list.

In fact, the European Court of Justice lined up for “impureness” in the “chocolate war” and, in the EU Commission v. Italian Republic case[1], held that the Italian law providing the faculty for chocolate producers to add the adjective “pure” to the sales name of their chocolate products not containing vegetable fats other than cocoa butter infringes the European legislation on cocoa and chocolate products (Directive 2000/36/EC) and on labelling presentation and advertising on foodstuffs (Directive 2000/13/EC).

The dilemma “pure” – “non pure” chocolate is not a new issue.

The long-running chocolate war began in 1973 when the UK and Ireland joined the European Union. They were told that their chocolate, made with vegetable fat, could not be exported to other member states where chocolate can only be called “chocolate” if it is made with pure cocoa butter.

However, this strict initial position slowly changed in the (alleged) interests of an efficient single market by allowing chocolate made with vegetable fat to be exported freely.

The current legislation, Directive 2000/36, prescribes common rules regarding the addition to cocoa and chocolate products of vegetable fats other than cocoa butter. In particular, it allows the marketing of chocolate products containing an addition of certain vegetable fats other than cocoa butter up to 5% of the product.

On this point the Directive does not preclude the labelling of chocolate products to indicate that vegetable fats have been added to the chocolate product, provided that such information on the addition of such substances is “correct, neutral and objective”.

With this decision, the European Court of Justice did not consider the expression “pure” added to the sale name adopted by Italy (Italian Law March 1, 2002 no. 39) as correct neutral and objective, since such indication in the sale name suggests mistakenly to the consumer the existence of two kinds of chocolate, pure chocolate and non pure chocolate. In fact the previous European case law on this point already clarified that the use of a limited percentage (5%) of vegetable fats other than cocoa butter “does not per se bring about sufficient alteration of those products to justify a difference in their sales name”. Therefore the authorization by the Italian Government to allow the chocolate producers to add the adjective “pure” to their product voluntarily would create a distinction that does not exist at a European level.

This decision, though, seems just another battle in the “chocolate war”.

Labelling of foodstuffs – Part 2

The new Italian Law on labelling and quality of foodstuffs

On the last 6th of March the Law no. 3/2011 (the “Law”) on labelling and quality of foodstuffs entered into force.

The new piece of legislation provides the mandatory indication of origin of all foodstuffs together with a number of measures aimed at ensuring the transparent information in the food sector.

In particular, Article 4 of the Law requires the mandatory indication of the place of origin or provenance of the product, the indication of the possible use of genetically modified organism in any phase of the food chain, from the place of initial production to the final consumption.

This indication will be added to the others already included in the label, as the list of ingredients, the net quantity and the nominal quantity, the expiring date, etc.

The Law also clarifies that for the non transformed product, the place of origin indicated on the label is the place where the production is performed, whereas for the transformed product the place of origin indicated in the label is the place of the last substantial transformation and the place of cultivation of the main raw material.

The enforcement of such provision is delegated to ministerial decrees of implementation of the general principles addressed by the Law; thus, although in force, the above indicated provisions are not effectively actuated.

Finally, Article 5 also indicates that the information on the origin and provenance of the raw material are necessary in order to not mislead the consumer and their omission is considered as a misleading business practice punished according to the provisions of the Consumer Code.

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[1] European Commission v. Italian Republic C – 47/09, decision of the European Court of Justice of November 25, 2010.