A first step towards a new (?) agri-food criminal law
by Alessandro Coden
Bill No. 1519, now C. 2721, on «Criminal provisions for the protection of Italian food products» has been submitted to the Justice Committee of the Chamber of Deputies for consideration. The bill aims to significantly innovate the criminal protection reserved to the agri-food sector. In particular, on the one hand, the stated objective of the intervention is to strengthen the protection afforded to purchasers of food products through a range of measures including: greater typification of criminally relevant conduct, bringing forward the thresholds for the protection of protected interests to stages prior to saleor, in any case, placing on the market, tightening up the system of sanctions, and intervening in the current regulations on the traceability and control offood products. On the other hand, the legislative action points to ensure transparency and fair competition within a market – the agri-food market – that is of primary importance to the national economy.
It should be clarified immediately that the proposed amendments date back to the approved measure, which essentially reproduces the contents of bills AC 823(rejected on January 10, 2024) and AC 1004 (currently being examined by the Second Permanent Justice Commission), both entitled «Amendments to the Criminal Code and other provisions on agri-food offenses». These proposals, in turn, reproduce Bill AC 2427 of the 18th legislature – which lapsed at the end of the legislature – which was inspired by a more complex project to reform agri-food sanctions law drawn up by the Commissione stablished in 2015 during the 17th legislature at the Legislative Office of the Ministry of Justice.
If definitively approved, the bill would have a cross-cutting impact on agri-food regulations, strengthening both administrative and criminal sanctions and enforcement measures. Regarding the latter aspect, it is necessary to point out, first and foremost, the proposed amendment to Title VIII of Book II of the Criminal Code, whose heading would be reworded in the draft as «Crimes against the public economy, industry, trade, and agri-food heritage». This choice of wording would make it possible to clearly and definitively identify the legal asset on which to base some of the crimes in the title, thus creating aspecific and rational system of protection.
In line with such a clear redefinition of the criminal landscape, the draft proposes, first of all, the repeal of Articles 516 and 517-bis of the Criminal Code relating, respectively, to the offense of selling non-genuine foodstuffs as genuine – an offense that also gives rise to the administrative liability of entities pursuant to Legislative Decree 231/01 – and to the aggravating circumstances for the offenses of fraud in the exercise of trade and the sale of industrial products with false markings. This amendment would allow for the inclusion, as provided for in Article 1 of the bill, of a new Chapter II-bis dedicated specifically to crimes against the agri-food sector.
This new section would therefore include: counterfeiting geographical indicationsand protected designations of origin for agri-food products – a predicate offense for corporate liability – already provided for in Article 517-quaterof the Italian Criminal Code, but with harsher penalties, ranging from imprisonment for up to two years and a fine of up to €20,000 to imprisonment for one to four years and a fine of €10,000 to €50,000; food fraud, pursuant to Article 517-sexies – a newly introduced offense –, the trade in food with false labeling pursuant to Article 517-septies, also newly introduced, the regulation of aggravating circumstances under Article 517-octiesof the Criminal Code, referring to the crimes referred to in Articles 517-sexiesand 517-septies of the Criminal Code; and, finally, the mitigating circumstances under Article 517-quinquies applicable to all crimes included in the Chapter.
A significant change in this general recalibration of penalties is, therefore, the amendment to Article 517-quater of the Italian Criminal Code, which, in addition to determining – as already mentioned – a tightening of the penalties originally provided for, would significantly extend the area of criminal relevance to include a range of conduct initially excluded. In fact, the provision would no longer punish only those who «introduce into the territoryof the State, hold for sale, offer for sale directly to consumers or other wiseput into circulation counterfeit products», but also, more generally, anyone who ships in transit, exports, transports, or offers agri-food products whose geographical indication or designation of origin is known to be counterfeit or altered. And, therefore, bringing forward the threshold of protection by criminalizing conduct that is a precursor to the placing on the market of altered products.
Similarly, letter d) of Article 1 of the bill would introduce the aforementioned Articles517-sexies (Food fraud), 517-septies (Trade in food with falsemarkings) and 517-octies, which would contribute, together with 517-quaterof the Criminal Code, to the creation of a criminal statute aimed at protectin gone of the most important economic sectors in the country.
Food fraud under Article 517-sexies of the Criminal Code would, in fact, provide prior protection to the sale or marketing of counterfeit products, asit would punish anyone engaged in agricultural, industrial, commercial, or intermediary activities – with the specific intent of profiting by misleadingthe buyer – imports, exports, ships in transit, places in temporary storage orcustoms warehousing; as well as transports, offers for sale, distributes orotherwise puts into circulation, including through remote communication techniques or digital tools in telematic networks, food, water or beverages that, due to their origin, provenance, quality or quantity, are substantially different from those indicated, declared, or agreed upon, unless the conduct is minor. The provision would therefore constitute a first repressive measure when a false representation of the essential characteristics of the agri-food product is revealed.
This provision would be accompanied by Article 517-septies, which would punish, with imprisonment from 3 to 18 months and a fine of up to €20,000,those who, in order to mislead consumers about the origin, provenance, quality, or quantity of food or ingredients, use false or misleading distinctive signs or indications, even if figurative. From a coordinated reading of the two provisions, as well as the residual clause provided for in Article 517-sexies of the Criminal Code, it is clear that the conduct referred to in Article 517-septiesof the Criminal Code is more offensive, justified by the ability of the conductin question to mislead even an attentive purchaser, precisely because of the use of distinctive signs with a certifying function. Essentially, therefore, this progression would ensure the rationality of the system, reserving the most severe penalties for conduct that, already on a logical level, proves to bemore harmful to the protection of agri-food heritage.
Article517-octies of the Criminal Code would regulate additional penalties and aggravating circumstances for the conduct referred to in Articles 517-sexiesand 517-septies. Regarding additional penalties, the provision would give the judge, in particularly serious cases or cases involving specific recidivism, the possibility of ordering the temporary closure of the establishment or business where the offense was committed, for a minimum of 5days and a maximum of 3 months. As regards the circumstances, the provision would provide for more severe penalties in cases where: the conduct relates to products or ingredients that have a protected designation of origin orgeographical indication; the fraud is committed by means of false transport documents or false declarations to the supervisory body; the facts are particularly serious due to the quantity of the product involved in the offense; the conduct concerns foods labeled as organic without the relevant certification, and would transform the offense of agricultural piracy into anaggravating circumstance of the offenses of food fraud and trade in foods withfalse labels. Also, of interest in the regulatory framework outlined by the bill are the measures concerning mandatory confiscation and confiscation of equivalent value. Specifically, Article 1(e)(2) aims to introduce the new Article 518.2 of the Criminal Code, thus providing for the application of mandatory confiscation and equivalent confiscation in relation to crimes of counterfeiting protected designation foods (Article 517-quater of the Criminal Code), food fraud(Article 517-sexies of the Criminal Code), and trade in foods with false labels (Article 517-septies of the Criminal Code).
In particular, the new wording aims to give the judge, without prejudice to the rights of the injured party to restitution and compensation for damages, the possibility of ordering the confiscation of items that were used or intended to be used to commit the crime, as well as those that constitute the object, product, price, or profit of the crime. Such assets, if seized during judicial police operations or, indeed, definitively confiscated for the crimes of “food fraud” (Article 517-sexies of the Italian Criminal Code) and “trade in food with false markings” (Article 517-septies of the Italian CriminalCode), would then be entrustedby the judicial authorities, under judicial custody, to the police forces that request them for use in police activities or to other state bodies or non-economic public entities for the pursuit of specific purposes such as justice, civil protection, or environmental protection.
Stillon a strictly criminal law level, the amendment also addresses undercover operations, since Article 3 would include the offense of “Trade in food withfalse labeling” (Article 517-septies of the Criminal Code) to those offenses for which there is a cause for non-punishment in favor of agents and officers of the judicial police, as well as auxiliaries who, during the aforementioned operations, commit specific criminally relevant conduct, provided that the activity complies with the requirements prescribed by the same provision.
Finally,with a view to rationalizing protection systems, Article 5 of the bill would also amend Article 4, paragraph 49, No. 350/2003, modifying the scope of the offense of selling industrial products with false markings pursuant to Article517 of the Criminal Code, excluding the marketing of food products and substances, since these would then fall under the specific offense of trading in food with false markings pursuant to Article 517-septies of theCriminal Code.
Ultimately,therefore, the legislator, through regulatory intervention that is still subject to extensive amendments by the Chamber of Deputies, is attempting to reap what was sown in previous legislatures by reforming agri-food protection.
Inclosing, it can already be noted that, unlike previous attempts at reform, the current bill has chosen to focus repressive measures on the liability of natural persons, omitting to include the new agri-food crimes (517-sexiesand 517-septies) among those relevant for the purposes of liability under Legislative Decree 231/2001, but, above all, avoiding the introduction of a specific organizational model to be adopted.