Expiration date and penalties

I'm wondering what penalties apply if the expiration date on food products on sale in supermarkets is exceeded.

Thank you very much, [signed letter]

The lawyer Dario Dongo, Ph.D. in Agri-Food Systems, answers

The expiry date, it should be remembered, is mandatory in the labelling of products that are rapidly perishable from a microbiological point of view, which 'They could therefore constitute, after a short period, an immediate danger to human health' (EU Regulation 1169/11, Article 24.1). In practice, the expiry date is mandatory on all products subject to the cold chain.

Exceeding the expiration date and presumption of risk

Food Information Regulation (EU) No 1169/11 introduced, in Article 24, an irrebuttable legal presumption according to which products that are rapidly perishable from a microbiological point of view are presumed to be unsafe – pursuant to the General Food Law (EC Regulation No 178/02), Article 14 – from the day following the use-by date.

This rule – in clear conflict with the general principle of risk analysis on which modern European food law is based – constitutes a serious limitation on any option for reusing foods that are approaching their expiry date. It is completely unreasonable, precisely because shelf life is often established with a conservative approach that responds to commercial rather than food safety considerations.

In any case, the supervisory authority that detects the presence of expired foods at a food business or distribution operator is required to apply a fine, unless the operator is able to demonstrate that the foods – specifically segregated – were not intended for specific treatments and/or different (non-food) uses, in compliance with specific procedures.

Expiration date and penalties

Legislative Decree 231/17 – which implements Regulation (EU) No. 1169/11 in Italy and establishes its sanctions regime – states the following in Article 12:

• 'Unless the act constitutes a crime, when a food is sold for any reason or displayed for sale to the final consumer beyond its expiry date, pursuant to Article 24 and Annex X of the Regulation, the seller or the person displaying the food is subject to an administrative pecuniary sanction of payment of a sum ranging from 5.000 euros to 40.000 euros.'(Article 12).

The display for sale of expired food is therefore generally subject to the significant administrative penalty mentioned above. This does not affect the application of criminal law in the more serious cases covered by:

• Article 5, paragraph 1, letter 'd', of Law 283/1962, which punishes the possession for sale of foodstuffs'soiled, infested with parasites, in a state of alteration or otherwise harmful'. This situation may arise in the event of hygiene or storage defects that do not pose a concrete risk to public health (e.g. mold, yeast, non-specific non-pathogenic bacterial load);

• Article 444 of the Criminal Code (trade in food substances hazardous to health), also punishable by negligence pursuant to Article 452 of the Criminal Code, where the proliferation of pathogens (e.g. listeria, salmonella, E. coli) is found.

Cordially

Dario Dongo

Picture of Marjan Blan su Unsplash

References

• Legislative Decree No. 231 of December 15, 2017. Sanctions for violations of Regulation (EU) No. 1169/2011 on the provision of food information to consumers and the adaptation of national legislation to the provisions of Regulation (EU) No. 1169/2011 and Directive 2011/91/EU. Legislation (last updated July 13, 2024) https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2017-12-15;231

• 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. Consolidated text: 04/01/2025 http://data.europa.eu/eli/reg/2011/1169/2025-04-01