Criminal Cassation Court, ruling no. 30530 of July 25, 2024 (hearing of July 5, 2024 – regulatory references: Article 5, letter b, Law 283/1962)

At a party with music and dancing held at a private club, attended by non-members, the investigating body found the presence of fish and shellfish, “a total of approximately twenty kilos of material”, untraceable and improperly frozen. The organizers were subsequently convicted under both Article 681 of the Criminal Code (for organizing an event requiring a police license, without having requested and issued one) and Article 5, letter b), of Law 283/1962, for improper food preservation.

Focusing on the charge under Article 5, we note that we can agree that the legal classification of the act as “illegal” freezing, i.e., freezing using methods other than those prescribed for freezing food, is correct. Indeed, in this case, it can be said, as established case law holds, that the product’s hygienic and sanitary conditions are compromised—or at least can be compromised, as demonstrated by the fact that frost is most often found, a symptom of poor preservation.

What, however, deserves further investigation is the question of whether the lack of (re)traceability falls within the scope of the aforementioned sanctioning provision.

It should be noted that Article 18 of Regulation (EC) 178/2002 establishes that food business operators must be able to identify who supplied them with the products intended for food production (as well as to identify to whom they have sold their own products), and must also be able to make this information available to the competent authorities upon request.

In turn, Article 2 of Legislative Decree 190/2006 provides that failure to comply with this obligation is punishable—as an administrative offense—with a fine, unless the act constitutes a crime.

The ruling in question does not address how the lack of product traceability can fall within the legal definition of “poor state of preservation.” It is true, however, that some recent decisions have reached this conclusion. For example, ruling no. 31035/2016—which concerned the mixing of traceable milk with milk of unknown origin—argued for the existence of the crime based on the established assumption that the offense in question is “presumed dangerous” (i.e., potentially posing a health risk), and therefore using non-traceable milk in the preparation of dairy products could pose a risk to human health, “with the consequence that we can speak of poor preservation of the milk.”

Given these premises, some considerations arise.

First of all, the failure to trace food is already punishable as an administrative offense. It is true that a safeguard clause is provided, meaning that if the act (the lack of traceability) also constitutes a crime, the latter prevails. However, there may remain the problem of attributing to “poor state of preservation” a fact that in itself does not constitute a “preservation method” of the food, such as its storage and/or processing in premises or using equipment that do not comply with hygiene regulations. In these cases, there is always a verifiable objective element that allows us to affirm the existence of a health risk attributable to the food being in unsuitable hygienic conditions.

Conversely, the lack of traceability of a food does not in itself have the same meaning in relation to risk. One might object that, precisely because the food is of unknown origin, it could normally come from an illegal slaughterhouse, a farm, or a facility that does not comply with hygiene regulations. However, in the absence of concrete evidence to this effect, this hypothesis would remain purely conjectural.

It is worth noting in this regard that case law has had occasion to point out the impracticability of an “open or free” interpretation of poor preservation to the extent that it includes entirely hypothetical situations of danger to health (Criminal Court of Cassation, Ruling No. 1973/1993). The United Sections of the Criminal Court of Cassation, Ruling No. 1/1995, followed the same line, reversing a previous position and ruling that the sale of expired foods does not constitute the crime in question. This is because, first and foremost, violation of the expiration date is a concept completely incomparable with that of poor preservation methods. Even more so because, if we were to hold a different opinion, the crime would be based on “a presumption ‘juris et de jure’ that is highly arbitrary under current positive law”.

Upon closer inspection, the requirement for product traceability is not intended to guarantee product safety, but rather, once its dangerousness has been ascertained or suspected, to allow the regulatory body to trace the food supply chain up (and/or down) to order the withdrawal or recall of the food that is causing the danger.
It is perhaps not without significance that in the cases (or in most of them) in which the (few) rulings that attributed the failure to trace the product to the aforementioned Article 5, situations undoubtedly related to inadequate storage methods, as in our case (improper freezing). Therefore, it is also possible that those rulings did not address the issue of traceability in any great detail, given that other elements were present to lead to a conviction.

Furthermore, there is no doubt that the use of food of unknown origin constitutes a suspicious element that deserves further investigation, for example with laboratory analyses, which may eventually reveal either a health risk or the product’s lack of authenticity, thus triggering the application of Article 5 of Law 283/1962, if not Articles 444 or 440 of the Criminal Code.