An evaluation of the applicable sanctions regime for the related violations of Regulation No. 1169/2011 under Italian law

21 April 2014

In 2014 most of the provisions of the Regulation (EU) no. 1169/2011 on the provision of food information to consumers (the "Regulation") will become effective.[1]

Although the Regulation has been in force formally since 12 December 2011, it provided for a period of "study and understanding" of its content, allowing the food companies to analyse and comply with the rules.  The Regulation basically combines two directives in one piece of legislation: (i) Directive 2000/13/EC on the labelling, presentation and advertising of foodstuffs and (ii) Directive 90/496/EEC on the nutrition labelling for foodstuffs.

Although the Regulation includes several provisions already within the previous legislation, it introduces some interesting new rules, such as:

• the compulsory indication of nutritional information on the food product;
• the compulsory indication of ingredients causing allergies or intolerances;
• the obligation to not include information liable to mislead the consumer;
• a minimum dimension for the indication to be included in the labelling;
• the compulsory indication of the origin of other meat than beef, i.e., swine, sheep, goats and poultry meat; and
• the definition of the entity responsible for the provision of information on the food product.

In view of the next deadlines provided by the Regulation for entering its "active" phase (in particular, December 2014 when most of the rules will become effective), the Italian food industry has been particularly concerned about the consequences of possible violations of the Regulation.

The Regulation, does not supply any indications about a sanction regime, which means that such regimes are not harmonized at a European level.  Some rules within the Regulation, however, should be considered for attempting a definition of such regime.

Specific reference is made to Article 8 of the Regulation, introduces the definition of the food business operator (“FBO”) as the subject responsible for the correct indication of the labelling, and Article 38, which provides for Member States to issue legislation on matters not expressly harmonized by the Regulation.

As far as the FBO is concerned, the Regulation defines it as "the operator under whose name or business name the food is marketed or, if that operator is not established in the Union, the importer into the Union market".

The Regulation identifies the FBO as the entity liable for possible sanctions, making possible complaints more effective.

As far as Article 38 of the Regulation is concerned, the ability left to Member States to rule on non-harmonized matters implies that the sanction regime connected to violations of the Regulation should be defined at a national level.  Therefore, Member States can either issue a new legislation coordinating with the rules of the Regulation or maintain possible existing rules, if they do not clash with the Regulation.

In Italy, no specific piece of legislation has been issued since the Regulation's entry into force (i.e., 2011).  Therefore, it would be reasonable to consider the sanctions provided for under the previous legislation as still applicable – provided they are consistent with the Regulation, particularly in respect of the definition of FBO as the entity responsible for the food information.

Two regimes of sanctions could be considered as relevant in Italy.

The first regime was included within the administrative system set both by the Italian legislative decree no. 109/1992 (on the labelling, presentation and advertising of foodstuffs) and by the Italian legislative decree no. 77/1993 (on nutritional information to be provided for foodstuffs).  Article 18 of the decree no. 109/1992 foresees monetary sanctions, which vary according to the nature of the rule violated.

For violations causing the consumer to be misled in the cases indicated in Article 2 (e.g., when the information suggests that the food has peculiar characteristics it does not actually have) a monetary sanction of up to €18,000 is set.  For violations concerning the list of compulsory information on the product, the expiry date of the food product and the manner of indicating the compulsory information the monetary fine is up to €9,500, whereas any other violation is punishable with a fine up to €3,500.  Article 10 of legislative decree no. 77 /1993 also provided for monetary fines but are not as severe as under decree no. 109/1992.

The second sanction regime is provided under criminal law.

Article 515 of the Criminal Code concerning fraud during a business activity is considered as relevant.  The relevant criminal conduct would include the delivery of a product different or having different characteristics, as per origin, provenance, quality or quantity, than those promised or declared.  The sanctions are a fine of €2,065 and imprisonment for up to two years.

It should be pointed out that if the crime is performed by representatives of a food company for its benefit, it may create administrative liability of the company under the Italian legislative decree no. 231/2001, if it cannot be demonstrated that the company performed all the actions set by the decree aimed at preventing the crime. The relevant sanctions connected to the crime under Article 515 of the Italian Criminal Code are monetary fines, the amount of which could be quite substantial.

There are, however, several issues which remains unclear on the coordination of the Regulation and the previous regime.

In relation to the coordination with the criminal law regime, it should be noted that the responsibility under criminal law is personal; hence all the subjects cooperating in the crime are considered criminally liable.  This principle does not accord well with the definition of FBO under the Regulation, which appears to set out the liability of a sole subject, i.e., the subject whose name or business name is indicated for the commercialisation of the product.

Moreover, it is unclear which kind of sanction could be issued for violations of those rules newly introduced by the Regulation and that were not included in the previous national legislation.  On this point, it is the food industry's hope that the above mentioned national rules will be properly revised by a new piece of legislation.  However, so far, the legislative process is in a very preliminary stage.  At present, the Italian Parliament is debating the draft of a law which provides a mandate to the Government for setting specific rules on sanctions for the violations of some EU regulations (including also the Regulation).

If no further progress takes place in the coming months, the actual impact of the new Regulation will be clarified on a case by case basis before the Italian Courts and the Italian competent administrative authorities.

[1]In fact, the Rules on the designation of minced meat have been effective since 1 January 2014.  The remaining provisions will be effective from 13 December 2014 with the exception of the obligatory indication of a nutritional declaration, which will be effective from 13 December 2016.