- 02/12/2016
- Posted by: Marta
- Categories: Insights, News
The Ministries of Economic Development (MISE) and of Health, with a belated circular of 16 November (see previous article) tried to clarify the criteria for exempting micro-enterprises from the obligation to affix the nutrition table. Recalling that, starting from 13 December 2016, the nutritional table will be mandatory on most prepackaged foods (EU regulation 1169/2011, art. 9.1.l).
It is worth remembering that to date the violation of these rules does not have a sanctioning regime (since the so-called "bridge circular", Application of article 18, in the matter of sanctions, of Legislative Decree 27 January 1992, n. 109 to violations of the provisions of Regulation (EU) no. 1169/2011, is clearly inapplicable). This circular therefore has only one indicative and coordination value between Food Safety Operators (FBO) and control authorities.
However, in some passages the ministerial interpretation appears to be excessively rigorous, albeit relatively indeterminate, and sometimes in conflict with the criteria defined in the 'Food Information to Consumer' regulation, which remains a source of superior law and therefore mandatory.
Food hygiene or nutritional information?
In particular, the analogical interpretation of the exemption, made with reference to the previous legislation on the hygiene of food of animal origin (EC regulation 853/2004) is erroneous.
The EU regulation 1169/11, in fact, provides for the derogation from the nutritional table obligation for "foods, also packaged in an artisanal way, provided directly from the manufacturer of small quantities of products to the final consumer o to local sales structures retail (note the period disjunction, ed) and provide directly to the final consumer. "
A completely different context from that of selling small quantities locally, at the time foreseen in the Hygiene Package (EC reg. 853/2004, 854/2004).
The ratio of a much more stringent derogation in the health sector was in fact to mitigate the risks associated with the direct sale of products of animal origin, taking into account the specific problems linked to their intrinsic vulnerability.
In recalling the "local level of sales structures" envisaged in the Hygiene Package, the ministries have developed a concept of dubious compatibility with the European standard object of the interpretation in question (EU regulation 1169/11).
In fact, there is no European interpretation that defines the presence of a “local level” referable to direct sales, nor its spatial delimitation.
Indeed, if such a reading ever emerged, it would be in clear contrast with the primary normative source. Since EU regulation 1169/11 is very clear in stating that direct sales between producer and consumer should be always exempt from mandatory nutritional table (provided that the individual requirements of thesmall quantity manufacturer ').
It follows that distance selling, including through e-commerce, as well as direct sales in the context of artisans 'and agricultural producers' fairs outside their own region (with mobile counters or the like), must always be considered exempt, provided that in fact, the requirement of direct sales and without intermediaries occurs (this being the only requirement required by the European legislator).
As for the "local sales structures", The" local level "refers to the structures themselves (eg trattorias, restaurants, traditional retail, but also large-scale distribution), so as to equate them to" direct sales ".
The above deserves effective clarification by our administration, in the name of legal certainty, which is increasingly necessary in a production sector. - the Italian agri-food industry - which needs wings rather than ballast.
Dario Dongo
