Letters and emails between the European Commission and the Italian government seen by FoodNavigator show the Commission has repeatedly warned Italy that its law requiring food manufacturers to list factory names and addresses on pack is against EU law.

Despite the EU warnings, Italy’s law is in now place meaning food law enforcement officers are required by Italian law to issue fines of up to €18,000 to offending manufacturers.

How Italy sneaked in its law When member states wish to bring in a national law, they are required to notify the Commission so it can ensure the law does not contravene EU rules. Italy notified the Commission of its proposed law​​, which gave a negative opinion as it was against the EU’s regulation on Food Information to Consumers. Italy then withdrew the measure from the EU but proceeded to publish it in the Italian Official Journal without informing the Commission. A letter from the Commission to the Italian ambassador to the EU states it was “made aware of information in the public domain” ​that the Italy had adopted the decree on mandatory factory labelling. When Italy attempted to notify its regulation under a different provision, only to have this rejected again by the Commission, it then claimed the regulation was not new, and therefore should be considered under Article 114(4) of the Treaty on the Functioning of the European Union (TFEU). This article allows member states to bring in national measures they see as necessary to maintain in a harmonised area. According to food law expert and managing director of Hylobates Consulting Luca Bucchini, this procedure had “little credibility​” but had the benefit of buying Italy an extra six months. The final rejection came on 30 January in a letter signed by Vytenis Andriukaitis, which said the notification fell outside the scope of article 114(4), rendering it “inadmissible”.​ “The Commission will thus not examine the substance of the notification,” ​it said.

‘​Measures like this destroy the single market’​

So what does this tug-of-war between Italy and the EU mean? Bucchini puts it in no uncertain terms: “Measures of this type destroy the single market.​

“Such brazen flouting of EU law is very rare, and more commonly associated with Poland and Hungary. But the combination of the very weak legal and substantial arguments and the ruses used make this type of flouting almost unique.​

“The Commission has been patient with Italy, in this instance, but businesses are losing faith in its ability to protect the rule of law. This harms the EU but also Italian food businesses, which rely on the single market.​

“EU member states, from the North and South - Denmark, Germany, Spain and others - in formally opposing the Italian measures - were shocked and appalled by the measure, and that was before the ruse of publishing it nonetheless."​

Outside EU law, outside the EU?​

FoodNavigator contacted Federalimentare, the country’s national trade association, and the Italian authorities but was not able to confirm if some manufacturers have already been fined nor whether the government plans to keep the law in place.

According to European Court of Justice case-law on previous national measures that have been rejected by the Commission, however, these rogue laws are not applicable – even if formally they are on the books.

Bucchini is therefore urging Italian judges not issue fines to manufacturers. Authorities run the risk of having to pay legal costs and possibly damages if they try to enforce the regulation, he said.

FDE: ‘This sets a dangerous precedent'​

A spokesperson for the manufacturers’ trade association FoodDrinkEurope (FDE) said it was “obviously disappointed​” that the law went into effect despite the Commission's warnings.

In December last year, FDE filed an official complaint​​ on Italy’s place of production decree as well as its origin labelling decrees [see below] on the grounds the Italian government did not follow the proper rules and procedures.

“It is of serious concern if individual member states ignore these processes and go ahead regardless, as it sets a dangerous precedent and leads to further fragmentation of the single market. We trust that the Commission will continue to use all means to reverse this unacceptable situation,” ​the spokesperson added.

Not so COOL: EU fights back​

Another element of Italy’s food labelling battle is its recent slew of legislation on country of origin labelling (COOL) for dairy products​​, wheat for​ pasta and rice​​ and processed tomatoes and tomato-based products​​.

In a bid to stem this wave of national origin labelling – France, Portugal, Greece, Finland, Lithuania, Romania and Spain have also brought in national rules on origin labelling for various products such as processed dairy and meat – this week (16 April), the Commission got the backing of a qualified majority of member states for its implementing act on labelling the origin of the primary ingredient​​ in food.

The act lays down the rules for Article 26(3) of the Food Information for Consumers (FIC) Regulation N° 1169/2011, by clarifying what manufacturers can write on pack when the place of provenance or country of origin of the primary ingredient – tomatoes from China, for instance – differs from the product as a whole – say, lasagne from Italy.

The suggested wording is: "[Name of the primary ingredient] do/does not originate from [the country of origin or the place of provenance of the food]"​ or a similar phrase likely to have the same meaning for the consumer. Manufacturers can choose which geographical denomination to write, with options including the country, region, fishing area and ‘EU’ or ‘non-EU’. Click here to read what some of the 143 stakeholders ​​who gave feedback on the regulation had to say.

The Commission said: “The aim is to ensure that the information on the origin of a food is given in a manner which does not deceive the consumer and on the basis of clear criteria that ensure a level playing field for industry and improve consumers' understanding of the information related to the origin of foods.”​

This combination of voluntary and mandatory origin labelling is “the most suitable way forward at the EU level” ​and would ensure a high level of transparency regarding the origin of foods on the EU market, the Commission said.

The regulation, which does not apply to European quality schemes such as Protected Designated Origin (PDO) or Protected Geographical Indication (PGI), gives food manufacturers a two-year grace period to make their products compliant before it becomes law on 1 April 2020.

In a statement accompanying the act, the Commission namechecked Italy and its national rules.

“The legal acts adopted by the Italian authorities in the area of origin indications for food link the application of their provisions to the Commission's Implementing Act.​

“Hence, it can be expected that the Implementing Act will provide for harmonised rules applicable also in Italy. This should reduce the need for further resort to national provisions regulating origin indication.”​

The association that represents the interests of Italian farmers and producers, Coldiretti, however, does not seem to buy into this argument.

It slammed the Commission for “[missing] the opportunity to fight fake food with a transparent label that obligatorily indicates the origin of the ingredients used in all foods”.​

It added that that Italy’s “avant-garde​” national legislation on origin labelling would soon be strengthened on 9 May with sanctions aimed at meting out fines of €2,000 to €16,000 to offending firms.