Labelling, advertising and presentation of foodstuffs: some clarifications provided by the Italian Ministry of Economic Development on the coordination of the EU Regulation 1169/2011 with the Italian legal provisions

01 December 2014

The application of most of the provisions of Regulation (EU) no. 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers (the "Regulation") is approaching.

As a matter of fact, 13 December 2014 is the date that the major part of the rules of the Regulation become effective , following a transitional period since 12 December 2011 that allowed businesses to take the necessary measures to comply with it.

As discussed in the 2014 Second Edition of Food Law Digest , the Regulation re-organizes the legislation on labelling, presentation and advertising of foodstuffs by repealing and modifying several pieces of EU legislation .

In order to coordinate the Regulation with the national rules implementing the previous set of EU law, Article 38 of the Regulation foresees that “as regards the matters specifically harmonised by this Regulation, Member States may not adopt nor maintain national measures unless authorised by Union law”.  On the other hand, paragraph 2 of Article 38 states that “Member States may adopt national measures concerning matters not specifically harmonised by this Regulation provided that they do not prohibit, impede or restrict the free movement of goods that are in conformity with this Regulation”.

On 31 July 2014, the Italian Ministry for the Economic Development (the “Ministry”) circulated an interpretative note to business associations clarifying which legal provisions would "survive" the Regulation, which ones would be deemed as repealed (either because contrary to the Regulation or because completely replaced by it) and which would need a brand new piece of national legislation because they were not harmonized under the Regulation.

Moreover, the Ministerial note reported that the Italian Government was proactively taking part to the working group of the European Commission (DG Health and Consumer) for the draft of updated guidelines to the interpretation of the Regulation .  Therefore, the evaluation on the coordination of the national legislation with the Regulation might be further clarified once the work on the updated guidelines was completed.

The Italian Legislative Decree no. 109 of January 27, 1992 (the “Decree”) providing the Italian legal frame work concerning to labelling, advertising and presentation of foodstuffs is the subject matter of the Ministerial note. In this respect, we outline below the most relevant provisions included in the Decree which were considered by the Ministerial note as still effective also further to the application of the Regulation.

It should be noted, however, that the Ministerial note pointed out the need of issuing a new legal act updating the provisions of the Decree as soon as the Commission working group activity was completed.

a) Article 3 of the Decree – Information on pre-packaged foodstuff

Generally speaking Article 9 of the Regulation on the mandatory particulars for foodstuffs substantially replaces the content of the above mentioned Italian provision.  However, Article 3 of the Decree includes further indications than those mentioned in the Regulation.  In particular, the most relevant are:

(i) the indication of the manufacturing or packaging plant:

The Ministry clarified that it would still be possible to provide an indication of the manufacturing or packaging plant on a voluntary basis but that this indication should not occupy the space dedicated for the mandatory information. Moreover, if a business wished to include in the labelling also the name of the manufacturer together with the manufacturing plant, this indication should not be confused with the compulsory indication of the food business operator (“FBO”), i.e., the subject responsible for the correct labelling of the product .

(ii) the indication of the batch of the product:

The Ministry explained that since such indication is compulsory under the EU Directive 2011/91 (on indications or marks identifying the lot to which a foodstuff belongs) this provision remains effective.

(iii) the use of the Italian language for said information

Paragraph 2 of Article 3 requires that the information “shall be indicated in Italian; however it is allowed to indicate the information by using several foreign languages.  Should there be expressions not having an Italian equivalent, it is permitted to use the original indication”. The Italian language required for the labelling information could still apply, since it is compliant with the provision of the Regulation allowing for Member States to impose within their territories the use of one or more EU languages (Article 15 of the Regulation).

b) Article 4 of the Decree: sale name of the food

The Ministry considers that this provision is met by Article 17 of the Regulation, which makes reference to the name of the food.  The Regulation provision is, in fact, broader than the National rule and covers both the name of the final product (i.e., the sale name of the food) and the relevant ingredient. The Ministry, however, would consider it opportune to maintain the Decree’s specification according to which “within the sale name and on the label of the final product only the generic name of the ingredient used should be kept”.  In these respects, the Ministry requested from the European Commission (DG Health and Consumer) confirmation on the compliance of this rule with the Regulation and is waiting for a reply.

c) Article 5 of the Decree: ingredients of foodstuffs

With specific reference to dehydrated ingredients, the Italian rule (paragraph 6), differs from the Regulation (Annex VII) which requires that their indication should occur by using their “original name”. The Ministry has also asked from confirmation to the European Commission on this point.  However, in waiting for a reply, the Ministry has indicated that there would be no reason for not allowing said specification, which would be effective also further to the application of the Regulation.

d) Article 10 bis of the Decree: "use by" date

Paragraph 5 of this Article states that “it is forbidden to sell products bearing a “use by” date from the day after or the same day of the expiry date”.  This provision does not have a corresponding one in the Regulation; however the Ministry considers that this specification should be effective further to the application of the Regulation:

e) Articles 11 and 13 of the Decree: indication of the plant and indication of the batch of the product

In these respect, the relevant evaluation described under Article 3 (point a) above) applies, and therefore under the outlined conditions these rules would be considered as still effective.

f) Article 14 of the Decree: modalities for indicating the compulsory information for pre-packaged products

Paragraph 7 bis of this Article states that “the packaging of any kind, intended for the consumer, containing pre-packaged products, may not contain the information prescribed in Article 3 (i.e., information on pre-packaged foodstuff), as long as they appear on the wrapping of food products contained therein; if the information is not verifiable, the packaging must include at least the name of the products and the date of minimum durability or the expiry date of the product having the shorter durability”. This specific provision is not included within the Regulation.  The Ministry has requested that the European Commission provide confirmation on the compliance of this rule with the Regulation, explaining that this rule would be an exception justified by the national tradition of including seasonal promotional gifts in the packaging of other products.

g) Articles 15 and 16 of the Decree: automatic dispensers and the sale of food in bulk

As the Regulation does not provide specific provisions on labelling and presentation of foodstuffs marketed through automatic dispensers or the sale of food in bulk, the rules indicated within the Decree appear to remain effective.  However, such rules will have to be in compliance with the Regulation provisions on allergens.

h) Article 17 of the Decree: products not intended for the consumer

The Regulation only covers products intended for business-to-business relations in terms of the FBO’s obligations, should the product not be directly marketed to the final consumer (paragraphs 6 to 8 of Article 8).  Therefore, the above mentioned provision of the Decree will remain effective, as long as their application complies with the relevant rules of the Regulation on the FBO’s obligations.

i) Article 18 of the Decree: sanctions

As discussed in the 2014 Second Edition of Food Law Digest, sanctions are a non-harmonized topic under the Regulation and are, thus, left to the discretion of the Member States.  In light of the above, the sanction regime set by Article 18 would still remain effective.
In this regard, the Ministerial note affirms that the Government is now working on a newly drafted legislative decree specifically focused on the sanctions for breaches of the Regulation, which would replace Article 18 of the Decree.

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