Consumer

TMC and expiration date

March 31, 2018

178

‘Best consumed within‘ o ‘To be consumed within‘. TMC (Minimum Conservation Period) and expiration date, rinspectively. (1) What rules and

responsibilities

to be borne by the operators?

TMC and expiration date, rules and responsibilities

EU Regulation 1169/11, so-called Food Information to Consumers (EU Reg. 1169/2011), requires the indication of expiration date on ‘very microbiologically perishable foods that could therefore pose an immediate danger to human health after a short period.’ Other food products, on the other hand, must display the so-called TMC on the label. (2)

The responsibility for determining the shelf life-in trade jargon, the shelf life-of foods rests, in almost all cases, with the operator responsible for label information. (3)

Some vertical regulations, on the other hand, impose ex lege durability of products. This is true at the European level for eggs only (28 days), in Italy also for fresh pasteurized milk-when of high quality (6 days) and for fresh pasteurized microfiltered milk (10 days). (4)

TMC and expiration date, the criteria to follow

The General Food Law prescribes in general terms to all operators in the supply chain – from the farm the fork – to place on the market food that poses no health risk to consumers and is otherwise fit for human consumption. In relation to theirintended use, also taking into account the accompanying information. (5)

‘Food business operators are better able than anyone else to devise safe systems for the food supply and to ensure the safety of the products supplied; they should therefore be legally responsible, in the main, for the safety of food.’ (6)

The Hygiene Package in turn gives wide latitude to operators in the responsible management of food safety. In general and specific terms, with precise reference to:

‘

(a) compliance with microbiological criteria for food products;

(b) the procedures necessary to achieve the objectives set to achieve the purposes of the

this regulation;

(c) compliance with food temperature control requirements;

(d) maintenance of the cold chain;

(e) sampling and analysis’. (7)

The determination of the
shelf life
must therefore come based on appropriate tests (both accelerated and forward), to be framed within the framework of HACCP manuals. These should provide, where appropriate, for the use of accredited laboratories for the specific tests to be carried out. Therefore, referring to industry best practices and international standards that may be applicable to the analytical methods adopted. (8)

TMC and due date, liability for exceeding deadlines

After the expiration date (not also the TMC) a food is considered risky ex lege, (9) triggering criminal (10) and administrative liability.

Indeed, Legislative Decree 231/17 punishes the transfer ‘for any reason whatsoever‘ or the display for sale to the final consumer of a food product beyond its expiration date-unless the act constitutes a crime-with a penalty of €5,000 to €40,000. (11)

Exceeding the TMC, on the other hand, may result – at the seller’s expense – in the violation of property rights, potentially in conflict with fair trade practices, as regulated by appropriate legislation. (12) No food safety risks are foreseen, subject to verification to be conducted on a case-by-case basis.

For further insights

on the topics discussed, please refer to our free eBooks ‘

1169 Penalties. Reg. EU 1169/11, food news, controls and penalties‘

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Food Safety, Mandatory Rules and Voluntary Standards”

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Dario Dongo

Notes

(1) The antinomy between TMC and maturity is most evident in the respective wording in the English text, Best Before and Use By

(2) Cf. reg. EU 1169/11, Articles 9 and 24. The manner of indication of TMC and expiration date is provided in Annex X of the said regulation. For more details, see also the article https://www.foodagriculturerequirements.com/archivio-notizie/domande-e-risposte/data-di-scadenza-o-tmc-risponde-l-avvocato-dario-dongo

(3) That is to say-according to reg. EU 1169/11, Article 8 – the operator presenting himself to consumers as the guarantor of the product. The brand owner first and foremost, whether manufacturer or packager or distributor. Subject to concurrent liability of the seller. See, in the latter regard, the article https://www.greatitalianfoodtrade.it/etichette/le-responsabilità-della-gdo

(4) See reg. EC 178/02, Article 14

(5) On the

shelf life

of different types of milk in Italy, see also the article https://www.foodagriculturerequirements.com/tmc-e-data-di-scadenza-del-latte-chiarimenti-dell-avvocato-dario-dongo

(6) See reg. EC 178/02, Recital 30. Reference is also made to the subsequent Article 17, according to which ”It is the responsibility of food and feed business operators to ensure that in the enterprises they supervise, food or feed meets the provisions of food law relevant to their activities at all stages of production, processing and distribution and to verify that these provisions are met.’

(7) See reg. 852/204 EC, Articles 3 and 4.

(8) Perishable products can be identified by resorting to the Ministry of Health Decree 16.12.93, according to which where the pH is 4.5 or less and the aW is 0.85 or less, the product is considered safe without the need for further treatment (Article1, item 2). Values outside this scale require special consideration, at CCPs(Critical Control Points)

(9) See reg. EU 1169/11, Article 24.1, read in conjunction with reg. EC 178/02, Article 14

(10) With particular reference to the crimes stipulated in the Criminal Code in Articles 439(poisoning of water or food substances) and 516(sale of non-genuine substances as genuine)

(11) Cf. d.lgs. 231/17, Article 12. On the other hand, violation of TMC regulations is punishable by a fine of €1,000 to €8,000

(12) See Directive 2005/29/EC, implemented in Italy in the so-called Consumer Code (Legislative Decree 206/05).