Italian sounding vs. Made in Italy: The final ‘coup de grâce’ from the EU Italy

The European Commission has recently published the draft Regulation for the application of Article 26(3) of Regulation no. 1169/2011 concerning the country of origin or place of provenance of the primary ingredient of a food where the latter is different from that given for the same food. The scope of the Regulation is to implement the provisions concerning the information to consumers as to the country of origin or place of provenance of products packaged in a country but manufactured with material coming from another country. The draft, available for public consultation (only in English) until 1 February 2018, has caused significant reactions among Italian food manufacturers and manufacturers’ associations due to the significant impact it may have on genuine “Made in Italy” food.

Transparency and consumer protection were the inspiring principles of Regulation 1169/2011, where Article 26(3) stated that “Where the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient: (a) the country of origin or place of provenance of the primary ingredient in question shall also be given; or (b) the country of origin or place of provenance of the primary ingredient shall be indicated as being different to that of the food.” This implementing act, however, not only seems to be in conflict with the above-mentioned principles, but also appears to be a trigger for de-regulation, jeopardizing Italian genuine products. In particular the real “Made in Italy” is ever more frequently under attack by imitation and counterfeited products and it appears to be the primary impacted target of the new set of rules. While most of the main Italian manufacturers’ associations have expressed their appreciation for a harmonized approach at the EU level aimed at ensuring correct information to consumers and avoiding the adoption of national mandatory provisions which may result in a detriment for competition, some significant remarks have been made to the draft text.

One of the most frequently recurring remarks is in respect of recital 8 for “customary names and generic names”: according to the new rules, customary and generic names do not fall under the scope of the Regulation and as a consequence, products such as pasta, mozzarella, mortadella are exempted from any obligation of the indication of origin of the wheat, milk and or pork that such products are respectively made with. Furthermore, for generic names including geographic terms that literally indicate an origin but that, as a matter of fact, are not perceived as such, the indication of origin or place of provenance of the food is not mandatory. For example, commonly known names like bresaola della Valtellina or scamorza abruzzese can be used without any obligation of indication of the provenance of the raw material, even if imported from abroad.

Almost all manufacturers’ associations have objected that the use of geographical indications in the context of product names is particularly common in many food sectors and the relevant denominations (e.g. panettone di Milano, pesto alla genovese, ragù alla bolognese) are not only historically linked to a place, be it a city or a region, but through the years they have become a common heritage of the food production. For this reason, according to most manufacturers’ associations, recital 8 should be further specified by making reference to historical links with a geographical area, such as the original place of production of the food or its regional manufacturing practice. On the contrary, the exclusion of registered trademarks and PGIs from the scope of the draft Regulation is a more controversial issue: whilst manufacturers’ associations consider the exclusion appropriate and in line with the existing legislative framework on the assumption that trademarks are intended to distinguish products of a certain business rather than to provide information about the origin or provenance of those products, consumers and consumers’ associations consider the exclusion particularly dangerous, since food business operators may be led to prioritize their business to the detriment of transparency and safety and thus to register their trademarks rather than to provide complete information, particularly if the outward origin of the product is appealing or if consumers may be induced to rely on an alleged origin.

Other remarks appear to be more business-oriented rather than originating from the need to increase consumer protection. For example, some manufacturers’ associations have pointed out that the indication of the origin of a primary ingredient in the same visual field of that of the country of origin or place of provenance of a food, even if given by non-scriptural means could result in excessive costs for the industry and may be misleading as regards the quality or the safety of a food product.

In any case, within the new legislative framework, Italian names or Italian-style colors recalling an alleged origin of products will no longer be reliable as to the real origin of food products, and even trademarks, which should allow consumers to identify a particular commercial source or trade origin in connection with specific goods will not give any certainty that a product, or at least its primary ingredient, is of Italian origin.

The Regulation which will soon come into force is the last act of other measures undertaken by the European Union. CETA (Comprehensive Economic and Trade Agreement) with Canada entered into force in September 2017 and other economic partnership agreements with Japan and Mercosur have explicitly authorized the poor imitation of Italian pre-eminent food products through the exploitation of the Bel Paese’s typicalities.

Coldiretti, the primary Italian farmers’ association, assessed that the volume of fake “Made in Italy” to be worth approximately a 60 billion Euro. For almost two out of three products marketed abroad, Italy is recalled through words, colors, images, and designations used incorrectly since the relevant products do not have any real connection with Italian production. Products most frequently imitated are cheeses (parmigiano, provolone, gorgonzola), but also pork cold cuts and olive oil are often victims of the same practices. Against generic references to geographical macro areas (such as “EU” or “non-EU”) and the possibility for manufacturers to use unclear, cryptic statements as suggested in the draft of Regulation, the only guarantee of the Italian provenance of a product is the “100% Made in Italy” trademark.