The five Antitrust investigative proceedings on the origin of wheat in Made in Italy pasta ushered in 2020 with lively debates on the role of the Antitrust Authority (AGCM). And some uncertainties about food labeling on the eve of the implementation of Regulation (EU) 2018/775. Some notes on rules, scourges, self-flagellations, and stone convicts.
Made in Italy pasta, origin of wheat and semolina
Indicating the origin of wheat, as well as semolina, on pasta labels is a hot topic:
– in Italy, many people persist in believing in the force of an interministerial decree signed by Paolo Gentiloni and Carlo Calenda, which illicitly extended the transitional application of Ministerial Decree 26.7.17 to 31.3.20. Ignoring the fact that the aforementioned Ministerial Decree on mandatory indication of origin of wheat and semolina in pasta is inapplicable ab origine due to non-compliance with EU rules on mandatory notification of national technical standards to the European Commission, (1)
– In Europe, as of 1.4.20, reg. EU 2018/775, which requires disclosure of the different origin or provenance of the primary ingredient, as opposed to the origin of the product, where the latter is declared on the label (including through non-mandatory citation of the location of the establishment). (2)
Wheat in pasta, AGCM investigations
The Competition and Market Authority – a few months ahead of the implementation date of Reg. EU 2018/775 – had launched an investigation into pasta labeling and advertising in the Italian market. With the aim of assessing whether the information offered on a voluntary basis-regarding the location of the supply chain-met the general criteria of transparency and non-misleading. (3) Having regard to the communication as a whole, also taking into account the emphasis (in words and pictures, graphics and positioning) given to the various messages. From the perspective of the average consumer, to whom these products are targeted.
‘It is considered deceptive ‘a commercial practice that contains information that is untrue or, although factually correct, in any way, including in its overall presentation, induces or is likely to induce (…) the average consumer (…) to take a decision of a commercial nature that he or she would not otherwise have taken’ (d.lgs. 206/05, Article 21, Deceptive Actions).
Thus, the investigations were independent of the verification of compliance with the rules pertaining to the indication of origin (EU Reg. 1169/11, Article 26). And they involved numerous operators whose business practices were found to be fair in every respect. Outside of the 5 individuals against whom an investigation has been opened instead.
On closer inspection, among other things, the Authority fell into two macroscopic errors of law in stating that:
– semolina would be an ‘unprocessed‘ product because it is a mono-ingredient and ‘the mechanical processing of durum wheat into semolina does not substantially change the characteristics of the semolina from those of the starting durum wheat‘, (4)
– the ‘ dough origin decree ‘ would be in effect until 3/31/20. (5) Thus neglecting its inapplicability and consequent duty of ex officio disapplication by every public official and authority whatsoever. (6)
Who is afraid of antitrust?
Three famous Italian pasta industries (Divella, Cav. Giuseppe Cocco and De Cecco) — in the company of two foreign supermarket groups (Auchan and Lidl Italia) — have ended up on the Antitrust grill. Due-according to the AGCM press release-to ‘misleading information about the origin of durum wheat used in the production of durum wheat semolina pasta.’
Self-flagellation, however, it should be noted, was the choice of everyone except the leader of the discount store in Italy. That is to say that–for fear of antitrust sanctions–three glorious Italian pasta industries have committed themselves not only to form corrections on their labels, but to reneging on their history and the key-messages of their commercial policy. With grotesque outcomes, compared to which the € 1 million fine instead imposed on Lidl Italy (equal to 0.021% of its € 4.7 billion turnover) seems like fresh air.
De Cecco S.p.A.
De Cecco’s consultants have shown total ignorance of the concepts on the basis of which the company has invested millions in advertising, in recent years. But they even managed to convince the ownership to backtrack on statements made publicly over the past 15 years about the essential value of the pasta processing stage.
The shame is having made a commitment, ‘for purposes of updating and restyling the packaging,’ to remove the image of the tricolor from the front of the labels, as well as the words ‘De Cecco method,’ ‘recipe for over 130 years,’ and ‘Made in Italy. And it is sheer madness, considering that precisely the ‘De Cecco method’ is also celebrated in some scientific studies as the only one, in the industrial production of Italian pasta, that best preserves the characteristics of the wheat (thanks to the timing, as well as the low drying temperatures).
Precisely because the company has pledged to include the words ‘The best grains from Italy, California and Arizona‘ on the front of the package, among other things, it is completely meaningless to forgo the tricolor. Which serves exactly to distinguish a pasta made in Italy – in Fara San Martino moreover, with spring water (!) – from those made in Turkey or Egypt (where other industries also operate, at obviously competitive costs).
Pastificio Artigiano Cav. Giuseppe Cocco S.r.l.
The lawyers of Cav. Giuseppe Cocco state that they ‘dispute in full‘ the violations ascribed. But they follow up the ritual formula with, ‘out of a spirit of cooperation,’ a commitment to change the pasta packaging and information on the website. The origin of the wheat is highlighted on the site and included on the label front, with the words ‘water from the spring of Fara San Martino, semolina from extra durum Arizona wheat and static low-temperature drying‘ added.
But why self-flagellate by making a commitment to eliminate the voluntary information, not even specifically referring to the product, that‘…in Fara San Martino making pasta is an ancient tradition‘? Fara San Martino (CH) in Abruzzo, like Gragnano in Campania (NA), is traditionally recognized in literature, as well as in Wikipedia, as ‘the city of pasta.’ And moreover, as the AGCM itself acknowledges, the use of foreign wheat mixed with domestic wheat has been in use (at least) since the 19th century. (7)
Divella S.p.A.
Divella is the only one among the three industries that has maintained a consistent stance and has not given up making its case. It therefore pledged to include the words ‘pasta made from durum wheat semolina grown in Italy and EU and non-EU countries‘ on the front label. With indication of raw material origin also on the website, and related training to dedicated call center staff.
Divella’s position , however, remains firm in point of law. The trademark ‘DIVELLA’ is excluded from the scope of reg. EU 2018/775, which in fact expressly excludes ‘trademarks, registered, where these constitute an indication of origin.’ The identity and pride of the historic Apulian brand cannot be touched.
The Stone Convitees
The mainstream media-like, unfortunately, the trade press-presented the five cases with a simple, uncritical copy-paste of the Antitrust press release. With the effect of:
– amplify an all-too-trivial case concerning the subjective interpretation of labels that nonetheless comply with both European rules and inapplicable Italian rules, (1)
– Giving the Antitrust Authority a role other than its actual role. Not the supreme censor of industrial activities but a body that works in the service of the community, dialogues with operators and collects their commitments. With a moral suasion approach.
It is surprising, however, that no one has publicly intervened to point out that:
– the Italian industries involved in the proceedings have always and in all cases complied with the applicable regulations, beyond subjective interpretations of label clarity. When, on the other hand, it is enough to cross the Brenner Pass to find Kraft’s ‘Miracles’ brand pasta waving tricolor without even having the glue of Made in Italy packaging,
– De Cecco and Cav. Coconut have decided of their own free (albeit improvident) will to reform their labels substantially. The Antitrust Authority merely took note of their commitments.
The stone guest is the industrial association system, which has not spent a word in support of the historic brands on which the history of Made in Italy is based. After, among other things, silently witnessing the desecration of European law in a series of national decrees that have caused burdens and uncertainties for the industries represented. Starvation or conflict of interest?
Dario Dongo and Martina Novelli
Notes
(1) The writer-for the sake of legal certainty alone and without receiving any external support-has most recently approached the European Ombudsman. For the European Commission to initiate infringement proceedings(EU Pilot) against the Italian Republic for repeated violation of its obligations to notify Brussels in advance of a number of national technical regulations. V. https://www.greatitalianfoodtrade.it/etichette/sede-stabilimento-decreto-origine-e-scadenza-latte-gift-denuncia-la-commissione-al-mediatore-europeo
(2) About the application of reg. EU 2018/775, see the guidelines published by the European Commission (2020/C 32/01), at https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=OJ:JOC_2020_032_R_0001&from=E. Summary and comments on https://www.greatitalianfoodtrade.it/etichette/origine-ingrediente-primario-reg-ue-2018-775-linee-guida-commissione-europea
(3) The criteria for transparency and non-deceptiveness of commercial information are set out in the Consumer Code (Legislative Decree 206/05 as amended, Articles 18 et seq.), as well as in the Food Information Regulation (EU Reg. 1169/11, Article 36)
(4) See AGCM order 20.12.19 against LIDL Italia S.r.l., footnote 3 (p. 3). This assumption, it should be noted, is blatantly at odds with the criteria of value-added and the so-called ‘tariff leap’. Where the increased value assumed by the product as a result of processing and the change from one category to another, in the Customs Code (EU reg. 952/13), qualifies processing as substantial
(5) Idem c.s., concluding remarks, para. 53 (p. 19)
(6) Dongo, Dario (2019). Food Regulations and Enforcement in Italy. Reference Module in Food Science. Elsevier, pp. 1-5. doi: https://doi.org/10.1016/B978-0-08-100596-5.21172-4
(7) See document referred to in footnote 4, item 13 (p. 4, 5)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Graduated in International Relations at the Sapienza University of Rome, she followed the Master in Law & Foody Safety of the University of Bologna.
