Food System

Precooked bread, Council of State edict and EU food safety rules

November 10, 2021

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The Council of State, in ruling 7.10.21 no. 6677, confirmed the requirement of ‘prior packaging‘ of partially pre-baked bread, frozen and unfrozen, obtained by completion of baking.

However, the Italian administrative judge, in his 14-page reasoning, overlooked the rules developed in the EU over the past two decades to guard food safety.

Table of Contents

Pre-baked bread sold in bulk, the casus belli

Carabinieri from the Lecce NAS, following an inspection visit to a supermarket on 12.1.20, seized 23 kilograms of precooked bread for sale in the displays. After finding that a customer, without using the gloves provided at the point of sale, had touched several units of non-pre-packaged bread before choosing the indi-purchased ones.

The Prevention Department of ASL Lecce then suspended the self-service sale of bread and bakery products in bulk and placed for sale in special dispenser shelves of the drawer type, by order 30.1.20. (1).

The Apulia Regional Administrative Court, in a ruling on 14.7.20, rejected the distribution operator’s appeal. Excluding that food safety requirements could be met ‘through the use of pre-packaging placed at the place of sale and used by the customer who learns the loose bread from the appropriate containers.’

Council of State, ruling 7.10.21

The Council of State’s ruling on the case merely refers to the requirements of Law 580/1967 (Art. 14), taken up in Presidential Decree 502/1998 (Art. 1) and in the recent DM 131/2018. (2) Indeed, these regulations prescribe that:

– bread made from partially baked bread must be offered for sale after packaging, and

– packaging at the point of sale is allowed only if it is ‘impossible‘ to perform it in a different area.

In the present case, the failure to take precautions to prevent consumers from touching loose bread other than purchased bread would be ‘wholly unsuitable to guarantee the most basic food safety requirements.’

The health edict on pre-cooked bread

‘Factual circumstances such as the distance from the sales counter, the illustration of the packaging procedure, and the structure of the dispensers, are completely irrelevant in the face of the established unsuitability of the practice in question to prevent contact of the bread by the customer who then places it back in the same dispenser (from which other unsuspecting consumers subsequently pick it up)‘ [Council of State, Judgment 6677/2021].

Food hygiene and safety, EU regulations

Instead, the good hygienic practices that the Council of State has aprioristically declared ‘irrelevant‘ constitute the first expression of self-control on which the regulations to guard food hygiene and safety are rooted. Indeed, it is the responsibility of food business operators ‘toidentify any hazard that must be prevented, eliminated or reduced to acceptable levels‘ (EC Reg. 852/04, Art. 5.2).

The European legislature of the 21st century – in EC Regulations 178/02 (General Food Law) and 852/04 (Hygiene 1), which rank higher in the hierarchy of sources than constitutional laws – therefore introduced the criterion of risk analysis as the concrete basis on which operators must organize appropriate hygienic measures, as appropriate. Also referring to the best practice manuals of trade associations. (3)

EU Court of Justice, the official interpretation

The EU Court of Justice – called upon to rule on a case similar to the one under consideration – predictably ruled in the opposite direction to that of the Council of State. And since the decisions of the European Court of Justice (ECJ) serve as a source of law, the Italian courts will also have to comply with them. (4)

‘The fact that a potential purchaser may have theoretically touched the foodstuffs for sale with his bare hands or sneezed on them does not, in itself, permit a finding that such foodstuffs have not been protected from any form of contamination likely to render them unfit for human consumption, injurious to health, or contaminated in such a way that they cannot reasonably be consumed under such conditions (…).

Instead, it is necessary to consider the measures that these operators have taken (…) in order to prevent, eliminate or reduce the risk to an acceptable level‘. (5)

Among other things, the European Commission updated guidelines in 2020 to simplify food safety management in retail establishments. (6)

Conclusions

National regulations on the sale of bread meet the political need to protect Italian bakers from industrial competition, including foreign competition. Through requirements, commercial in nature, aimed at preventing consumers from confusing fresh bread with pre-baked bread (therefore subject to separate area sales, prepackaging and labeling). Therefore, the sale of loose, non-fresh bread can result in an administrative fine of up to 1,549 euros. (7)

Food safety, conversely, has nothing to do with it. Fruits and vegetables are generally sold in bulk on a free service basis – like candy, in chain stores that base their business model, precisely on do-it-yourself – without ever triggering memorable food safety crises or censure of the Italian toughest courts. Therefore, it is to be ruled out-as reiterated by the EU Court of Justice itself-that the sale of non-pre-packaged bread can in itself constitute any violation of health regulations.

Dario Dongo