Criminal Cassation Court, sentence no. 36955 of November 13, 2025 (hearing of September 30, 2025 – regulatory references: Articles 440, 452, and 516 of the Criminal Code)

The Court of Turin convicted the owner of a minimarket for the crimes set forth in Articles 516 (sale of non-genuine foodstuffs as genuine) and 440 of the Criminal Code (adulteration of foodstuffs endangering public health), in the negligent form set forth in Article 452 of the Criminal Code, for having offered for sale beef sausage containing sulfites, an additive prohibited under Ministerial Decree 209/1996 and Regulation (EC) 1333/2008, in the amount of 98 + 21 mg/kg, thus adulterating the products in a way that made them dangerous to public health.

The addition of sulfites to meats (especially sausages) is a recurring phenomenon. Court records show 10 cases between September 2021 and November 2025. These may seem small, but it’s important to consider that—as is easily assumed—only a portion of these non-compliances emerge (following limited official controls). These substances also have an allergenic effect, causing potentially serious harmful consequences in susceptible individuals (in the case addressed by the Court of Cassation with ruling no. 22618/2014, the consumer suffered anaphylactic shock with serious consequences).

As is well known, sulfites are chemical compounds containing sulfur, used as food preservatives for their antioxidant and antimicrobial properties. In addition to being naturally found in some foods and beverages, they are also added to extend shelf life and prevent browning.

In the case of the deliberate addition of sulfites to foods where their use is prohibited (or beyond the permitted limit), the first offense that can be committed is commercial fraud, specifically pursuant to Article 516 of the Criminal Code, as the addition of sulfites determines the product’s lack of authenticity, given that, in a technical-legal sense, “authenticity” depends on compliance with the characteristics that the food must have—or not have—according to the applicable legislation.

This offense is among those that also determine the administrative liability of the entity (for example, a company) whose directors, managers, or employees committed the offense, and the entity has failed to adopt or adequately implement an effective and efficient crime risk management and organization model capable of preventing the commission of the offense. The resulting sanctions, if a positive finding of liability is established, are pecuniary and prohibitive (such as disqualification from practicing the business; suspension or revocation of authorizations or licenses instrumental to the commission of the offense; prohibition from contracting with the public administration; exclusion from incentives and financing, or their revocation if already obtained), in addition to the confiscation of the profits resulting from the crime (Legislative Decree 231/2001).

The legislator’s focus on combating fraud is such that Article 516 of the Criminal Code is also among those crimes that permit wiretapping (Article 266, letter f-ter, of the Code of Criminal Procedure), a tool that would otherwise be ineligible due to the (modest) penalty envisaged.

In short, a highly respectable investigative and sanctioning apparatus.

But the ruling’s greatest interest concerns the classification of the offense under Article 440 of the Criminal Code, which, in the intentional form, carries a prison sentence of three to ten years. In our case, the offense was deemed to exist in the negligent form (Article 452 of the Criminal Code), with a drastic reduction in the penalty compared to the intentional case.

How can this charge of negligent offense be explained, given that the additive/adulteration was undoubtedly voluntary and conscious? It is explained by the fact that the perpetrator presumably did not intend to also cause the food to be dangerous, which, however, according to the judge, had occurred. However, the offender’s psychological attitude was deemed to constitute an aggravated form of negligence, that is, “conscious” negligence due to the conscious acceptance of the health risk.

In the appeal to the Supreme Court, the defendant’s defense, among other things, challenged the (alleged) illogicality of the judge’s reasoning, since, on the one hand, the crime under Article 516 of the Code of Criminal Procedure, which is intentional in nature, had been established, while the adulteration dangerous to public health was classified as negligent.

The Court unequivocally responded that there was no contradiction, since Article 440 of the Criminal Code provides for conduct (adulteration dangerous to health) that is prior and prodromal to the subsequent and different conduct provided for by Article 516 of the Criminal Code, which is integrated with the marketing of the (already) adulterated food. It can be added that the two crimes also differ in their legal objectivity (i.e., the purpose of protection), as Article 440 of the Criminal Code is intended to protect public health, while Article 515 of the Criminal Code (or, as in this case, Article 516 of the Criminal Code) is intended to protect the fair exercise of trade (as stated by the Court of Cassation in ruling no. 12033/2023).

Let’s now examine the ten judicial cases filed by the Supreme Court between 2021 and 2025.

First, we note that in the case of the illicit addition of sulfites, in addition to the charge of fraud, the crime under Article 440 of the Criminal Code was always charged, in the intentional form, and not the negligent form as in our case (the only exception is the one reported in Supreme Court ruling no. 35916/2025, which charged the crime under Article 5, letter d, of Law 283/1962). In one case, the sentence was 3 years and 6 months in prison, later reduced to two years on appeal (Supreme Court, ruling no. 21901/2024), while in another case, the preliminary investigations judge had ordered house arrest, which was later overturned by the review judge (Supreme Court, ruling no. 33741/2021).

But the truly crucial point is when the addition of sulfites to prohibited food products can be considered a serious crime under Article 440 of the Criminal Code.

Indeed, such conduct undoubtedly constitutes food adulteration, punishable primarily as commercial fraud; but it is a very different matter whether the addition of sulfites can be considered a genuine threat to public health, as required by the law according to established case law. Indeed, in some of the cases we are examining, the charge was unfounded, and the judge acquitted, precisely because of a lack of such a requirement.

Now, nowhere is the threshold specified beyond which the concentration of sulfites becomes truly dangerous, especially in the absence of specific technical advice or an expert report, which in the cases under consideration does not appear to have been requested (not to mention that the expert’s conclusions could be different in comparable cases).

In 2016, EFSA, based on the provisional conclusions of a panel of experts, had set a limit of 0.7 mg/kg of sulfites as the acceptable daily intake; however, in the 2022 revision, this limit was removed, as the supporting data was deemed insufficient.

Returning to the rulings, we can only note that the two-year prison sentence (Cassation Court, ruling no. 21901/2024) concerned the presence of sulfite ions in the food in the amount of 47 mg/kg, while in another case, in which the amount (not much lower than the previous one) of 16-20 mg/kg was found in the analyzed sample, the defendant was acquitted (Cassation Court, ruling no. 10237/2024). And in the case where the amount of sulfites in the food was found to be 22 mg/kg, only the offense under Article 516 of the Criminal Code was charged (Cassation Court, ruling no. 333/2025).

More reassuring is the decision confirming the crime of sulfite ion presence at a level of 286 mg/kg, that is, almost thirty times higher than the limit (10 mg/l for wines) that requires labeling (Cassation Court, ruling no. 12033/2023).

Let’s not forget, however, that in the aforementioned case of anaphylactic shock with serious personal injury, the amount was “10.7 g/kg” (but more likely mg/kg), as reported in Cassation Court ruling no. 22618/2014.

Some insights can be gleaned from the fact that the addition of sulfites is not absolutely excluded and that some foods contain them naturally. This could lead to charging the crime under Article 440 of the Criminal Code only in cases where the amount of sulfites or sulfur dioxide is significant.

For example, Regulation (EC) 1333/2008, Annex II, Part E, point 08.2, permits up to 450 mg/kg of sulfites or sulfur dioxide for meat preparations (fresh sausage, fresh longaniza, fresh butifarra). However, the allergenic effect could result from the ingestion of even much lower quantities.

A reasonable interpretation for the classification of food adulteration as hazardous to health under the law could be to consider the offense (which, however, does not require proof of actual harm) in the case of multiples of 10 mg/l (or kg), the limit above which labeling is mandatory for products such as wine.

It should be noted that in cases such as those discussed, the defense has repeatedly argued that the sulfites were not added, but were found in one of the ingredients used (for example, the Bra sausage specification requires the use of white wine, which can legitimately contain sulfites). However, case law has now settled on an interpretation that does not exempt liability from the fact that the sulfites found were added rather than already present in an ingredient used in the preparation. Indeed, it is noted, what matters is that the specific product cannot contain the additive, thus making it hazardous to health, regardless of how it ended up in the food being marketed.