Food Crimes: A False Alarm?

On 11 March 2021, Legislative Decree no. 27/2021 was published in the Official Journal, containing “Provisions for the adaptation of national legislation to the provisions of Regulation (EU) 2017/625”, relating to controls on the quality of food and feed, as well as on the good health of plants and animals. In a completely unexpected way (the provision, already removed from a first version of the legislative text, was reinserted at the last minute in the draft decree approved by the State-Regions Conference of 3 December 2020), art. 18, paragraph 1, letter b) of the legislative decree in question provided for the repeal – almost entirely – of Law no. 283 of 30 April 1962 which regulates hygiene standards for the production and sale of food substances and beverages, eliminating, among other things, the related criminal sanctions.

To understand the relevance of the legislation in question, it is sufficient to remember that art. 6 of law 283/1962 punishes with imprisonment of up to one year or with the application of a fine the violation of the previous art. 5, which prohibits the use in the preparation of food or drinks, as well as the sale or in any other way distribution, of food substances:

a) even partially deprived of their nutrients or mixed with lower quality substances;

b) in poor condition;

c) with microbial loads exceeding the established limits;

d) soiled, invaded by parasites, in a state of alteration or in any case harmful, or subjected to processing or treatments aimed at masking a pre-existing state of alteration;

e) with the addition of unauthorised chemical additives of any nature;

f) which contain residues of insecticides and other products used in agriculture, if toxic to humans.

As a result of this intervention, starting from 26 March 2021 – the date on which Legislative Decree no. 27/2021 should have come into force – the preparation, sale or distribution of food substances in the conditions listed above would no longer be a crime: within the general abolition of food crimes, a single criminal offence was saved, provided for by art. 10 of Law no. 283/1962, according to which anyone who produces or places on the market food substances or paper or packaging specifically intended to wrap the substances themselves, colored with unauthorized colors, is punishable by a fine.

At the last moment, however, the Legislator backtracked, adopting in extremis Legislative Decree no. 42, published in the Official Journal of 24 March 2021, dedicated to averting the consequences of this ill-advised decriminalization.

The risk of a clean slate had attracted the attention of the media in recent days, as well as of industry experts, and many had called for corrective action by the Government, highlighting the disruptive effect of a repeal of the law on food crimes not accompanied by either the transformation of criminal offences into administrative offences, or by an organic revision of the cases already existing and sanctioned by administrative means.

The new decree law, however, denounces the haste that characterized its genesis. While on the one hand the cancellation of food crimes and the rules relating to them has been avoided, with the sole exception of the contravention referred to in art. 4 of Law no. 283/1962, on the other hand the repeal of the rules relating to the verification activity carried out by the health authority in order to verify any violations has been confirmed. As a result of this cancellation, the stability of the food safety system will therefore have to be verified. The hope for an organic regulation of the sector lies in bill no. 283, which, in addition to providing for a profound revision and remodulation of food crimes, with a significant increase in penalties for the violation of some rules on the preparation and distribution of harmful foods, could also include provisions for the verification of their observance.