Focaccia with 'type 2 flour'? Lawyer Dario Dongo answers

Dear Dario,

I submit to you the label of a focaccia, called 'stirata romana', which lists in the ingredients "type 2 flour, soy flour, malt, brewer's yeast, salt, extra virgin olive oil" and reports two dates, "production" and "expiry". How should the authorities behave in official controls?

Many thanks, Gianluca

Lawyer Dario Dongo, PhD in international food law, answers

Dear Gianluca,

the label you described has serious and irremediable non-conformities. The control bodies must seize the goods and order the recall of the goods. Here's why.

1) Ingredient list and food safety

The list of ingredients It is the identity card of food products, the first and crucial information to allow consumers to use individual foods safely. (1)

Risk analysis food safety must in fact consider, among other things, the information accompanying the food. (2)

The presence of allergens must always be reported in writing – on the label or on sales signs and menus, in the case of foods sold loose or served by collectives – and highlighted.

2) 'Type 2 flour'?

The degree of sifting of flours (type 00, type 1, type 2, wholemeal), as we have seen, represents:

– mandatory information on the label of bread and flour products only;

– optional information, on labels and advertising, about other foods (e.g. pizza, focaccia and other baked products). (3)

3) Intolerable omissions

The label the one under examination is characterised by some intolerable omissions:

– identity of the cereal from which the first ingredient derives. The operator has added an optional news item, 'Type 2', omitting the essential one, 'wheat';

– vegetal origin of the malt. Is it barley, wheat, rye or oats (each of which can trigger allergic reactions) or rice? (4)

– the lack of graphic evidence of the key words aimed at identifying and distinguishing the allergens from the other ingredients reported in the specific list. (5)

4) Focaccia label, other non-conformities

Other violations of the Food Information Regulation (EU) No 1169/11, on the pinsa label, concerns:

– sales name. The food must be designated by its legal name or, in its absence, by its usual name. Where this is missing, as in the case of 'stirata romana' (which is doubtful to be understood by Italian consumers), a descriptive name must be used (e.g. leavened baked product) which in this case is missing;

– minimum shelf life or expiry date. Food Information Regulation prescribes the use of a specific wording, 'to be consumed preferably by ...'('best before ...') or, for products that are rapidly perishable from a microbiological point of view, 'to be consumed within'('use-by'). (7) Other wordings, such as 'Expiration date' in the case in question, they are not conversely permitted; (8)

– food additives. The 'brewer's yeast' is not a simple ingredient but a food additive, the name of which must therefore be preceded by the indication of its functional category, which in this case is 'leavening agent'; (9)

– order of ingredients. The list of ingredients must be compiled in decreasing order of weight with respect to the quantities used for each of them in the formulation phase, or recipe of the product. It seems unlikely, in this case, that the extra virgin olive oil was used in a smaller quantity than the salt. To be verified.

5) Actions in case of confirmed non-conformity

Official Controls Regulation (EU) No 2017/625, in Article 138, indicates the actions that the supervisory authorities must take 'in case of ascertained non-conformity'. (10) Such actions include:

- 'treatments on goods, modification of labels or corrective information to be provided to consumers'

- 'the recall, withdrawal, removal and destruction of goods, authorising, where appropriate, their use for purposes other than those originally intended'. (11)

6) Withdrawal and recall

The commercial withdrawal immediate disposal of products that have already left the direct availability of the responsible operator is mandatory in the event of serious risks such as the one identified in this case (failure to indicate allergens on the label).

The public appeal it is also necessary, pursuant to the General Food Law where the products may have already reached final consumers, as any other action would be inadequate to guarantee a high level of food safety. (12)

7) Corrective measures, free transfer of goods

The competent authorities they must therefore proceed to:

– seizure of risky food products in the operator's possession;

– order of withdrawal or recall, as the case may be, of those already distributed (see previous paragraph);

– immediate notification to the competent health authorities in the territories involved (e.g. local, regional, national, EU);

– verification of traceability records and effectiveness of corrective actions ordered;

– prescription for modification of labels.

The goods subject to confiscation (administrative or penal) can be transferred to public bodies or charitable organizations, within the terms of their durability, after integrating the mandatory information on the label. (13)

8) Sanctions

The institution of the warning It is not applicable, please note, where the products at risk have already left the direct availability of the operator, as there are irremediable violations of the law. (14)

The distributors (retail) who have displayed such products for sale are jointly responsible and must in turn be sanctioned, it is recalled, for failure to monitor the legal conformity of the goods they market.

The determination of the amount of the sanctions must consider the extreme seriousness of the failure to indicate allergens on the label. This violation of the law indeed exposes allergic consumers to life-threatening danger.

9) Other official acts

The facts described highlight the total ignorance, on the part of the responsible operator, of the requirements based on hygiene and food safety. The health authority must therefore proceed with thorough checks on the company, its facilities and self-control procedures.

As a result of the necessary checks on the production site, the health authority - in addition to prescribing the adjustments to the procedures, and applying the main administrative sanctions - should have, for an appropriate period of time:

– the isolation or closure of all or part of the activities of the operator concerned or of its establishments, premises or other premises;

– cessation for an appropriate period of time of all or part of the activities of the operator concerned

– the suspension or withdrawal of the registration or authorization of the establishment, plant, headquarters. (16)

Cordially

Dario

Footnotes

(1) Dario Dongo, Andrea Adelmo Della Penna. EU, food allergens guidelines are needed. Position papers. FT (Food Times). November 1, 2024

(2) See also the previous article by Dario Dongo. Controls, the role of the health administration. GIFT (Great Italian Food Trade).

(3) Is it mandatory to indicate the type of flour? Lawyer Dario Dongo answers. DO (Food and Agriculture Requirements). 4.10.24

(4) The origin must be reported in relation to all ingredients of vegetal origin, including oils, fats and fibres. See also the previous article by Dario Dongo. Vegetable fibers and extracts, which ones? GIFT (Great Italian Food Trade). 1.11.17

(5) Allergens, graphic evidence? The lawyer Dario Dongo responds. FARE (Food and Agriculture Requirements). 22.7.24

(6) Dario Dongo. Food name. FT (Food Times). August 21, 2017

(7) Dario Dongo. Use-by date and TMC, EFSA guidelines for reducing food waste. FT (Food Times). December 20, 2020

(8) Expiry date on the label, the lawyer Dario Dongo replies. FARE (Food and Agriculture Requirements). 29.5.20

(9) Dario Dongo. Ingredient List, ABC. GIFT (Great Italian Food Trade).

(10) Regulation (EU) 2017/625 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products. Latest consolidated text at 28.1.22 https://tinyurl.com/bahtp8s6

(11) Reg. (EU) 2017/625, Article 138, paragraph 2, letters c,g

(12) Reg. (EC) 178/02, article 19

(13) See the paragraph 'Gadda Law, destination of confiscated food to charitable organizations' in the previous article 'Law 1407/60, mandatory confiscation for non-EVO oil? The lawyer Dario Dongo answers'. DO (Food and Agriculture Requirements). 21.6.21

(14) Dario Dongo, Andrea Sodero. Official controls. Law 71/2021, conversion of DL 42/2021, and warning to operators. GIFT (Great Italian Food Trade).

(15) Dario Dongo. The responsibilities of the large-scale retail trade. GIFT (Great Italian Food Trade).. 17.3.18

(16) Reg. (EU) 2017/625, Article 138, paragraph 2, letters h,i,j