Food law

We give advice to clients both in drafting new food labels and in updating labels which are already in use, as well as in planning promotional campaigns. In particular, we assist FBOs in adjusting their food labels and food information to comply with the ever changing “horizontal” and “vertical” rules on food information to consumers: these are the main needs of food businesses after the EU Reg. No. 1169/2011 has definitely and fully entered into force.

Continuously monitoring the legal compliance of all the product-related information set of a FBO is all the more necessary also because of the delegated and executive Regulations frequently adopted by the EU Commission, on the legal basis of the same EU Reg. No. 1169/2011 (e.g. on meat origin, on gluten-free indications, on engineered nanomaterials, etc.), and because of the national laws and decrees also frequently approved on this matter (e.g., the 2016 Italian decree on mandatory indications of country of origin of milk, and the forthcoming decree on mandatory indication of the name and address of the production facility).

In the broader framework of legal assistance on labelling and on food information, our law firm also helps FBOs in the choice and use of both unregulated claims and nutritional or health claims, which is a crucial issue in food marketing, and which must also take into account the rules and limitations provided for in EC Reg. No. 1924 of 2006. Some of those claims (namely, the health claims) can be lawfully used only if previously authorized by the European Commission, or – in some cases – by the competent national authorities, following a complex administrative procedure. Using claims with no legal advice and assistance could easily result for a FBO in violations and sanctions (in Italy, for example, after the entry into force of ministerial decree No. 27 of 2017, a FBO could be punished both by the national Antitrust Authority and by the Health controls authority).

Dealing with food marketing and with food labelling, one of the most important market affirmation tools – for those FBOs producing traditional and quality food in limited geographical areas – are PDOs and GIs, both protected by the EU law. Our law firm is able to assist businesses, associations of companies and consortia interested in starting the registration process of a PDO or of a GI, or in avoiding conflicts (of their product names, or of their trademarks) with a new PDO or GI. Also a FBO who is interested in entering a new market needs prior protection of its Italian or EU trademarks, and hence requires qualified assistance which our law firm can provide thanks to the expertise of its “of counsel” food lawyers.

More generally, every marketing activity is vital for a food business. Communication to consumers by any means (including the internet) must be planned so as to avoid it being considered as an “unfair commercial practice”: sanctioning procedures must be prevented and, in case an inquiry is opened it must be addressed in the most competent way.

An enterprise, which has invested both in financial and in human resources with the aim of carrying out a project or of having a successful trademark on the market, has important corporate assets to protect. Before starting a dispute, there is the need of a thorough assessment of Court and/or out-of-Court initiatives that can be undertaken in order to protect the enterprise’s know-how, or brand.

Contractual relations with suppliers are fundamental resources of any food business, not only because they ensure continuity of production, but also because by an accurate selection of raw materials and ingredients, by correctly setting the contractual relationship, by an effective management of audits, etc., FBOs are able to better comply, in turn, with their own obligations (e.g. traceability) and to guarantee the best quality standards to customers.

Our law firm ‒ who is fully aware of the main issues of the food supply chain ‒ is able to support FBOs in managing contracts which allow the establishment and the continuation of B2B commercial relationships, so as to prevent disputes with suppliers and possible failures to comply with quality standards expected by customers. If a dispute arises, a correct contractual relationship also allows a more rapid solution, or a more effective indemnification.

Food is somewhat a very “sensitive” product, especially if considered from a liability perspective: entering the human body, possible hazards (such as chemical, bacterial or physical ones) can bring very serious consequences to consumers’ health. Therefore, FBOs are subject to a higher economic and financial risk than operators in other industry sectors, also since food production (and related phases: for example conditioning, packaging, stocking, transports) has become increasingly complex. Such economic risk is even higher in cases of mass torts, especially in those countries where class actions are provided for by national law. Also this kind of disputes can be addressed with the legal assistance of our “of counsel” food lawyers.

Beyond that, the many legal obligations of FBOs, provided in order to protect general interest, to prevent frauds and to protect health, imply that such operators are continuously subject to a risk of sanctions. Duties concerning microbiological criteria, food additives and flavours, fair information practices, material and articles intended to come into contact with food, mandatory self-control, etc. are only a few examples of what kind of restraints are imposed on FBOs ‒ who are expected to know and abide by them ‒ with serious penalties in case of breach. In such case, our law firm is able to help right from the very beginning (official control phase), by supporting the operator when dealing with the control authority, and by ensuring a prompt and effective assistance in the possible dispute. However penalties can often be prevented if protocols, procedures and internal production processes are correctly revised and managed with a specialized legal advice.

The general rule about food is the freedom of marketing it, provided that it is consistent with the pertinent food legislation, and that it is not unsafe or unfit for human consumption. However, this rule does not apply to all foodstuffs: the food industry is actually a constant driver of great innovation, so that technological food and ingredients can be found on the market more and more frequently, and even “traditional” food products are often manufactured through new, and high-tech, production processes. The marketing of technological and of biotech food, e.g. resulting from genetics or nanotechnology, cannot be effectively carried out unless the FBO is supported by highly specialized legal advice, helping it in the whole authorization procedure provided for by the EU law, or studying the obligations concerning self-control, labelling, etc.

Also placing on the market food products of natural origin (e.g. some plant extracts) not currently used in the EU before July 1997 (s.c. “novel foods”), or products intended for use by people affected by metabolic diseases (s.c. “dietary products”), or even baby foods, is somewhat different from marketing common foods, since also for these “special” food products specific authorizations are needed. This law firm has the expertise necessary to provide the operator with the assistance it needs for such purposes.

The “of counsel” food lawyers of this law firm also give legal advice to FBOs through “continuous assistance” contracts. Even though such businesses operate in a rule-intensive sector and need an almost daily support from lawyers, they are often not in a position to have an in-house legal office, or they often do not deem it a cost-effective solution. They frequently find it very useful to outsource this essential service by entering into a contract with the law firm based on the purchase of a total amount of hours. This allows them to benefit from daily assistance and advice, constantly available to every need, with a precise forecast of service costs, which are always “under control”.

The food lawyers in our law firm are engaged in teaching and in researching, and are authors of several legal essays, congress speeches and reports, books, and of a textbook which is recognized as one of the most important ones on food law. For many years they have been providing (either on their own, or through public research institutions, such as the Italian National Research Council, or in partnership with companies) professional training and upgrade on specific food law issues to officers of official control bodies and authorities, to FBOs’ staff, and also to lawyers who want to specialize in food law.

FBOs need to train their staff almost daily, so that they are able to manage at least the ordinary legal issues, and to ensure compliance of their products and processes with the main new legislations (for example, totally new rules on labelling). The experience of our food lawyers in professional and business training is now made available to operators wanting to upgrade their own personnel by teaching in-house courses, also keeping in mind that such training initiatives may be sometimes financially supported by European funds, based on specific training- and upgrade projects: our firm can also assist in drafting such projects.

Here are some examples of assignments recently carried out by Prof. Borghi and by his closest staff:

• we provide continuous assistance to an industry leader of the gluten-free sector both in managing consumers’ claims about products’ safety, and in protecting the corporate image by preventing false or erroneous news from spreading;
• we provide legal advice to various FBOs in updating food labels, product datasheets and all their product-related information and advertising system, as a consequence of the entry into force of EU Reg. No. 1169 of 2011, on food information to consumers;
• we provide legal consultancy to FBOs in managing the s.c. “may contain” disclaimers;
• we have assisted a well-known Italian subsidiary of a Spanish corporation in managing the consequences of the s.c. “horse-meat scandal” in meat products;
• we have provided legal assistance to an ice-cream producer in addressing claims concerning alleged infringements in storage of food ingredients, and in protecting the commercial reputation (preventing the spread of false news, implementing the “right to be forgotten” on the internet, etc.);
• we have assisted a company operating in the industry of innovative food ingredients, in managing a crisis due to a possible accidental contamination of an imported raw material (relationship with European customers, voluntary withdrawal campaign all over Europe, risk assessment and relationship with official control bodies in Germany);
• we have assisted an Italian ice-cream exporter concerning a non-compliance notification regarding products placed on the US market (due to a possible allergen cross-contamination): relationship with the US importer and with FDA;
• we have provided legal advice to FBOs producing and marketing “Piadina” (a well-known and typical bakery product of Romagna) in reviewing labels of their products, in order to avoid violations of an EU geographical indication (“Piadina Romagnola”) and of related IP rights;
• we have assisted a producer of Italian “pasta” in obtaining administrative authorizations required both by EU and by national legislation to lawfully produce and to lawfully market baby foods in Italy;
• we have provided legal advice and consultancy to an Italian FBO located in Parma on the food law aspects of a lawsuit before an Italian Court of Appeal concerning the unwanted presence of the red colouring “Sudan I” in a food product;
• we have assisted an Italian winery to address the issues raised by official control authorities concerning a conflict between trademarks and protected geographical indications;
• we have assisted dairy operators in updating their food labelling in order to make it compliant with the Italian decree concerning the mandatory indication of milk origin on labels, and also in managing disputes concerning food quality both with Italian and with Taiwanese customers;
• we have provided legal assistance to companies operating in the industry of flour blends in lawsuits before Italian Courts concerning unfair competition and trademarks;
• we have advice and assistance to a milling company in controversies concerning alleged cross-contaminations;
• we have provided legal assistance to a milling company in lawsuits before Italian Courts concerning the product classification of wheat consignments and the consequent applicable rules;
• more generally, we provide continuous legal advice to FBOs on any problems arising out of the ordinary business management, or out of extraordinary crises and alerts.