Digital label for alcoholic beverages, replies lawyer Dario Dongo

Dear Dario,

our alcoholic beverage industry is evaluating the possibility of creating a digital label for information on recycling (environmental labelling), which can be accessed via URL or QR code to be inserted on the label.

In this regard, I ask you if you think it is correct that:

• the URL inserted on the label leads to a page preceded by the age verification page, as well as the cookies page,
• the 'landing page' introduces a gallery of products where the consumer must find the individual product of interest, and then access information on recycling.

Many thanks, Gregory

The lawyer Dario Dongo, Ph.D. in international food law, answers

Dear Gregory,

First of all, it is useful to remember the legal context of reference and the ratio of the provisions on environmental labelling.

1) Circular Economy Package, PPWR

Circular Economy Package has reformed the regulations on waste and packaging management, through directives (EU) 2018/851 and 2018/852. Packaging and Packaging Waste Regulation (PPWR) will in turn reform these directives, if and when it is finally passed. (1) With the aim of promoting the ecological transition, from a linear economy model to a circular economy system.

Environmental labelling of packaging has also been applied with varied criteria and methods in the different Member States. This causes uncertainty for operators and obstacles to the free movement of goods. (2) But above all, consumers tend to get lost in understanding which different parts of the packaging should be disposed of in which separate waste collection containers, with a view to their recycling.

2) Environmental labelling, the criteria

The information to be included in the environmental labeling - and refer to each component of the packaging that can be separated manually (e.g. bottle, cap, carton) - must include:

• type of packaging (written description or graphic representation),
• alphanumeric code identifying the packaging material (3),
• family of material(s),
• information on collection. (4)

3) Digital environmental labelling

A circular of the former Ministry of Ecological Transition (MITE), as we have seen, has also introduced an exception to the environmental labeling requirements. (4) And therefore - according to the former MITE now MASE (Ministry of the Environment and Energy Security) - in environmental labeling it is 'it is possible to favor information digitalisation tools (e.g. APPs, QR codes, websites), in line with the process of technological innovation and simplification'.

The derogation in question, as has also been noted, is unconstitutional and inapplicable (since an act of secondary legislation, such as a ministerial circular, cannot modify a legislative provision). All the more reason therefore, we must have regard to the content of the relevant European directives, whose ratio it's crystal clear:

• allow consumers to dispose of waste correctly (Circular Economy Package),
• provide consumers with clear and non-misleading information (Omnibus Directive EU 2019/2161). (5)

4) URL, QR Code, cookie policy, privacy

The URL and QR Code that leads to it must be understood as a digital extension of a physical label. The consumer must be able to access all the information required as mandatory without any interference, obstacle or condition. This applies to environmental labeling but also – in the case of beers, wines and alcoholic beverages (6) – to the nutritional declaration and the ingredient list.

It must be understood therefore prohibited:

– hinder access to mandatory information with requests for consent to cookie policies (inadmissible) and to privacy which is completely inviolable, in these cases (7),

– force the consumer to perform a search on a company website or even just search for the product in a digital catalogue, to access the required information.

5) Digital label, conclusions

The QR Code and/or URL used to provide mandatory information must direct the reader immediately and directly to the specific information relating to the individual product. Any possible obstacle - including the attack of cookies or even worse, the collection of personal data - must be sanctioned by the Market and Competition Authorities (AGCM, Antitrust) and Privacy, respectively.

cordiality

Dario

Footnotes

(1) Dario Dongo. Packaging Regulation (PPWR), the European Parliament waters down the proposal. GIFT (Great Italian Food Trade).

(2) Dario Dongo. Environmental labeling in France, obligations for operators from other Member States. FARE (Food and Agriculture Requirements). 14.1.23

(3) Dario Dongo, Giulia Torre. Environmental packaging labeling, the ministerial ABC. GIFT (Great Italian Food Trade).

(4) Dario Dongo, Giulia Torre. Environmental labeling of packaging, new rules at the start on 1.1.23. GIFT (Great Italian Food Trade).

(5) Dario Dongo, Alessandra Mei. Unfair commercial practices, the Consumer Code in the digital age. GIFT (Great Italian Food Trade).

(6) Dario Dongo, Alessandra Mei. New EU rules on wine labelling, guidelines from the European Commission. GIFT (Great Italian Food Trade).