Prepackaged weight control and the 'rule of five'

Dear Dongo Lawyer, 

Our food industry received the following non-compliance complaint during a customer audit regarding the control of pre-packaged products:

• 'For weight control, a class III scale is used, with e = 2 and d = 2. These characteristics, according to the provisions of the reference legislation for the control of pre-packaged fixed-weight products, make the scale non-compliant for weight control of a 250 g product.'.  

Now, after researching the issue further, it turns out that it's the rule of fifths, according to which e< etne/5, but I've found explicit reference to this rule only in Welmec 6.4 and in no other standard or directive. Can you point me to any other regulatory references?

Thank you, Federico

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

WELMEC (European cooperation in Legal Metrology), the association of legal metrology authorities of the EU Member States, has published Guide No. 6.4 Guide for packers and importers of ℮-marked prepacked products – for the specific purpose of providing operators with practical instructions on how to apply the current European legislation, in view of the use of the brand ℮ on pre-packaged products.

European Metrology: The 'Rule of the Fifth'

The so-called 'rule of the fifth' - That  WELMEC 6.4 translates into operational terms (e ≤ TNE/5) – is established in the Directive 76 / 211 / EEC, in Annex II at point 1 (Requirements for measuring actual content):

'The actual contents of prepackaged packaging can be measured directly by means of weighing instruments or volumetric measuring instruments or, if it is a liquid, indirectly by weighing the prepackaged product and measuring the density.

Whatever method is used, the error committed in measuring the actual contents of a pre-packaged package must be at most equal to one fifth of the maximum permissible error less than the nominal quantity of pre-packaged packaging.

The measurement method may be the subject of specific legislation in each Member State.'.

Application of European metrological standards in Italy

Le European metrological standards mentioned above – which concern pre-packaging subject to European metrology (marked with the ℮ mark, next to the indication of the quantity)  – have been verbatim incorporated into the Italian legal system:

• la law 25 October 1978, n. 690, in implementing Directive 76/211/EEC, provides in Annex II, point 1, that the error committed in measuring the actual content must be at most equal to one fifth of the maximum permissible error less than the nominal quantity;
• il Ministerial Decree 27 February 1979, which constitutes its implementing regulation, reiterates this concept in Annex II (Reference method for the statistical control of prepackaged EEC packaging).

Metrology, national standards

Le metrological standards national receips are instead contained in the DPR 391 / 1980 that in Article 9 (Manufacturer control tools) indicates the following:

• 'a legal weighing instrument used for measuring or checking the actual contents of individual pre-packages is considered appropriate […] if it is of the non-automatic type duly approved, equipped with metric marks, and with an indicating device having a value division in accordance with that indicated in the table' enclosed therein, of which to follow.

Conclusions

In the case in question, applying European metrological standards:

• the TNE (Tolerable Negative Error) for a nominal quantity of 250 g (range 200–300 g) is 9 g;
• applying the rule of fifths, the limit is therefore 9/5 = 1,8 g;
• a scale with e = 2 g exceeds this value.

La non-compliance detected in the audit therefore appears to be founded - not on a mere voluntary guideline, but on a requirement contained in Directive 76/211/EEC and in Law 690/78. solution It is typical to equip oneself with an instrument (even a class III one, provided it is regularly approved and subject to periodic checks) with e = 1 g, or a class II one, for the control of that format.

Cordially 

Dario Dongo 

Credit cover Anna shvets

References 

Council Directive of 20 January 1976 on the approximation of the laws of the Member States relating to the making-up by weight or by volume of certain prepackaged products (76/211/EEC). Consolidated text: 07/26/2019. http://data.europa.eu/eli/dir/1976/211/2019-07-26 

Decree of the President of the Republic of 26 May 1980, n. 391. Metrological discipline of the pre-packaging in volume or mass of pre-packaging of a type other than the EEC one. Normative (last updated to the document published on 02/08/2018). https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.del.presidente.della.repubblica:1980-05-26;391!vig= 

Law 25 October 1978, n. 690

Adaptation of the internal system to the directive of the Council of the European Communities no. 76/211 / EEC relating to the preconditioning by mass or by volume of some prepackaged products. Normative (last updated to the document published on 02/15/2010). https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1978-10-25;690~art2-com2 

Ministry of Industry, Trade and Crafts. Ministerial Decree of February 27, 1979. Provisions regarding EEC pre-packaging, governed by Law No. 690 of October 25, 1978. (079A2462) (GU General Series n.75 of 16-03-1979)

WELMEC. (2015). WELMEC 6.4: Guide for packers and importers of ℮-marked prepacked products (2015 ed.). https://www.welmec.org/welmec/documents/guides/6.4/Guide_6.4_2015_Guide_for_packers_and_importers_of_e-marked_prepacked_products.pdf 

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