Law No 166/2016 Briefing produced by Chamber of Deputies

pubblicato il3 Ottobre 2016

* Text drafted by the Chamber of Deputies. Banco Alimentare is responsible for the translation.*

Law No 166/16 of 19 August 2016, published in Official Journal No 202 of 30 August 2016 pursues the objective of reducing waste for each of the stages of production, processing, distribution and consumption of food products, pharmaceuticals or other products through the implementation of several priority objectives.

Provisions concerning the donation and distribution of food and pharmaceutical products for purposes of social solidarity and to limit waste

On 17 March the Chamber of Deputies approved in first reading Draft Laws C. 3057 and combined, concerning Rules for reducing waste, proper management of resources and environmental sustainability. Among the combined draft laws after the conclusion of the examination in the committee, we point out Draft Law C. 1716. The debate in the Chamber of Deputies ended with the approval of a unified text, which was sent to the Senate. During the session of 2 August 2016, the Senate Assembly definitively approved Draft Law 2290, the Senate Assembly definitively approved A.S. 2290 containing Provisions on the donation and distribution of food and pharmaceutical products for purposes of social solidarity and to limit waste.

In Europe, the supply of food products for any reason is governed by EC Regulation on food safety (Regulation (EC) No 178/2002, Regulation (EC) No 852/2004 and Regulation (EC) No 853/2004), which contain the general rules and specifications related to the structures, the equipment and the management of the stages of the production, processing and distribution of food products. It appears that a specific measure on the gratuitous donation of food and a waste reduction policy are still lacking. On the other hand, the European Parliament, by means of the Resolution of 19 January 2012 on how to avoid the waste of food products: strategies for improving the efficiency of the food chain in the EU, called for an immediate collective action in order to halve, within 2025, food waste, providing at the same time for prevention of the production of food waste. Subsequently, the EU and the Member States pledged to achieve Sustainable Development Goals (SDG), approved in September 2015; among these, the objective of halving within 2030 food waste at the retail level and with consumers, and to reduce food losses in the production chain and the supply of food products. The most recent estimates of European food waste levels (Fusions 2016) reveal that 70% of EU food waste is in the sectors of families, food business services, and retail sales, with the production and processing sectors contributing to the remaining 30%. In order to sustain the achievement of SDG 12.3 on food waste and to maximize the contribution of all of the stakeholders, the Communication on Circular Economy requests the Commission to create a dedicated platform for the prevention of food waste. The EU Platform on food losses and food waste (FLW) aims to support all of the stakeholders by: defining the necessary measures to prevent the creation of food waste; sharing the best practices and assessing the progress achieved over time.

In Italy, with respect to liability deriving from food safety standards, Law No 155/2003 (the “Good Samaritan” Law) equates non-profit public interest organizations (ONLUS) that provide the gratuitous distribution of food to the needy for charitable purposes to the final consumer. The scope of Law No 155/2003 includes non-profit public interest organizations (ONLUS) that expressly provide for “charity” in their bylaws or memorandums of association, as established by Article 10 of Legislative Decree No 460/1997. The assimilation to the final consumer does not include the stages of the food chain of production and/or processing and is limited to those of the conservation, transportation, storage and use of the food products. In such manner, donors were relieved from the principle of "responsibility for the chain", according to which it was necessary to provide guarantees for donated food (the proper state of conservation, transportation, storage and use of the food products), even after delivery to the organizations.

Subsequently, the 2014 Stability Law (Article 1(236-237), Law No 147/2013), made a distinction, with regard to donors, between food business operators (FBO), including hospital caterers, those providing food services to the needy, and school caterers, and the ONLUS that, for charitable purposes, engage in the gratuitous distribution to the needy of food products donated by FBOs, establishing that the ONLUS that provide food products to the needy and the FBO that donate food products to the ONLUS must guarantee proper conservation, transportation, storage and use, each for the part for which they are responsible. Such objective, as provided by the 2014 Stability Law (Article 1(236-237), Law No 147/2013), is also achieved through specific manuals of good practice, validated by the Ministry of Health, which are prepared in conformity with the provisions of Regulation (EC) No 852/2004.

On the other hand, the recovery of unsold foodstuffs for social welfare purposes is among the specific measures provided by the National Waste Prevention Program (PNPR) for the reduction of biodegradable waste. On 5 June 2014 the Ministry of the Environment presented PINPAS, the National Plan for the Prevention of Food Waste, which provides ten measures to combat waste: from sales with a reduction of food about to expire to the donation of unsold products, from voluntary agreements with food business/distribution companies, to the introduction of incentive criteria in public works contracts for collective food services for whoever distributes surpluses on a gratuitous basis. PINPAS was prepared with the collaboration of Waste Watcher, the Observatory on domestic waste promoted by Last Minute Market, a spin-off of the University of Bologna, which has dealt with prevention and research related to the food waste of public and private stakeholders for more than 15 years. The Observatory is organized in collaboration with SWG, a market research company, and the Department of Agricultural, Environmental and Food Science and Technology of the University of Bologna. According to Waste Watcher's 2013 Report on domestic waste, every Italian family throws away an average of approximately 200 grams of food each week: the overall possible savings would therefore amount to approximately 8.7 billion Euro. Further, according to the monitoring of Last Minute Market, in one year it would be possible to recover in Italy 1.2 million tons of commodities that remain in the fields, more than 2 million tons of food from the agrifood industry and more than 300 thousand tons from distribution. On the occasion of the second National Day for the Prevention of Food Waste, 5 February 2015, the technical-scientific secretariat of PINPAS prepared the document The donation of unsold food products. Towards legislative simplification, which underlined the lack of a clear and homogeneous regulatory framework for health and hygienic matters, the absence of standardized procedures, the excessive bureaucracy resulting from compliance with tax obligations, the general absence of incentives for donors aimed at compensating the increased costs resulting from the management of unsold products and the limited audience of possible beneficiaries. Many of the proposals contained in the document were taken from the Draft Law in review.

On 16 June 2015 the project Foodsaving: social innovation for the recovery of food surpluses was presented, funded by the Cariplo Foundation and the Region of Lombardy and conducted by CERGAS (Center for Research on Health and Social Care Management of the Bocconi University), in which the Catholic University ALTIS, the Politecnico of Milan, Banco Alimentare (Food Bank) and three Italian SMEs participated. The Foodsaving Project studies the numerous initiatives implemented in Italy and in Europe by profit and non-profit stakeholders for the reuse of food surpluses for social purposes. The regions reviewed in the context of the Foodsaving project, belonging to the World Regions Forum, are: Lombardy (Italy), Catalunya and Madrid (Spain), Baden Württemberg (Germany), and Rhone-Alpes (France).

The text consists of III Titles and 18 articles.

Title I (Articles 1-2) contains the objectives and definitions.

Article 1 illustrates the objective of the measure, which is to reduce waste for each of the stages of production, processing, distribution and administration of food products, pharmaceuticals and other products through the implementation of some priority objectives:

promote the recovery and donation of food surpluses, on a priority basis for purposes of human use, and of pharmaceuticals and other products for purposes of social solidarity;
contribute to limiting negative impacts on the environment and natural resources, reducing the production of waste and promoting reuse and recycling, with the objective of extending the life cycle of products;
contribute to achieving the general objectives established by the National Waste Prevention Program and by the National Plan for the Prevention of Food Waste provided by such program, as well as reducing the quantity of biodegradable waste sent to disposal sites;
contribute to research activity, information and making consumers and institutions aware of the issues that are the object of the measure, with particular reference to the new generations.

Article 2 provides the definitions contained in the measure. In addition to that of food business operators and donors – qualified as public and private entities set up to achieve, on a non-profit basis, civic and social objectives, that promote and carry out activities of general interest – it refers to food surpluses that – as a mere example – are food, agricultural and agrifood products which, subject to compliance with hygiene and safety requirements, remain unsold for various reasons or are unsuitable to be marketed; food waste means the entirety of food products that are still edible but which are rejected by the agrifood chain for commercial or aesthetic reasons or because they are near the expiration date of minimum durability, understood as the date within which a food product, in adequate storage conditions, maintains its specific properties; the expiration date, which substitutes the date of minimum durability for highly perishable food products, beyond which they are considered to be at risk; and donation, defined as the supply of goods on a gratuitous basis.

Title II (Articles 3-12) defines some measures to simplify the gratuitous supply of food products for purposes of social solidarity and the limitation of food waste. In particular, Article 3 establishes the manner in which food surpluses can be supplied to beneficiaries by food business operators, which must be gratuitous and aimed at assisting the needy. It provides, in particular, that supplies of food surpluses must be used for human consumption as a priority, whereas food surpluses that are unfit for human consumption can be used for the vital support of animals and for other uses, such as composting. The supply on a gratuitous basis of surpluses of agricultural products from the field or farming that are fit for human and animal consumption is also allowed: the stages of the harvesting or collection of agricultural products takes place under the responsibility of whoever performs it as well as in compliance with the law on food hygiene and safety.

Article 4 contains provisions on the manner in which the food surpluses in object can be supplied: such supply is allowed even after the date of minimum durability as long as the integrity of the primary packaging and suitable storage conditions are guaranteed, as well as their further processing. Specific provisions are established for finished bakery products and derivatives of flour dough produced in bakeries that do not require thermal conditioning: the latter, if unsold or if they are not administered within 24 hours after their production, are considered surplus with respect to resale in stores, including large retailers, as well as through artisan or industrial producers, organized food businesses, including holiday farms, and the collective food service industry, and therefore they can be donated to the beneficiaries.

Article 5 governs the requirements and conservation of food surpluses being donated: the food business operators who make the donations must provide for proper operating practices in order to guarantee the health and hygienic safety of the food products, in line with what is established by Regulation (EC) No 852/2004 of the European Parliament and the Council of 29 April 2004 on the hygiene of food products and Article 1(236) of the 2014 Stability Law (Law No 147/2013) on the proper state of conservation, transportation, storage and use of the food products that are distributed on a gratuitous basis by recognized non-profit public interest organizations. Such operators are, in fact – in accordance with the provisions of Law No 155/2003 – responsible for compliance with the health and hygienic requirements for food products starting from when they are donated. It provides that a selection of the food products be made on the basis of quality and hygiene requirements and that the necessary measures be adopted to avoid commingling or the risk of exchanges among products intended for different uses. Article 6 provides specific rules to allow the reuse of food products fit for human or animal consumption that have been confiscated. For such purpose a new provision was added to Article 15 of Presidential Decree No 571 of 1982 in the criminal justice system. If such products are seized, it provides that they be donated to the entirety of non-profit private entities set up to pursue civic and social objectives.

Article 7, by means of a modification to clause 236 of Article 1 of the 2014 Stability Law (Law No 147/2013), provides that the obligation of guaranteeing a proper state of conservation, transportation, storage and use of the food products, in the case of gratuitous distribution to the needy of food products that are supplied by food business operators, regard public entities as well as private entities set up for civil and solidarity purposes on a non-profit basis, which promote and carry out activities of general interest – classified in Article 2 as donors – and not limited, as currently provided, to recognized non-profit organizations of public interest. As implementation of what is already provided by Article 58 of Law Decree No 83/2012, Article 8 provides for integration with the decree of the Ministry of Agriculture and Forestry of the functions and composition of the permanent round table for coordination set forth in the decree of the Ministry of Agriculture and Forestry of 17 December 2012, with the task of promoting initiatives, guidelines and instruments for the distribution of food to the needy, having consulting, advisory and monitoring functions, as well as to formulate projects and studies aimed at the limitation of waste and the distribution of surpluses, and regulates their composition. Participation in the round table is gratuitous and without new or increased costs to be borne by the Italian State budget. Article 9 provides that the public radio, television and multimedia service guarantee that during the broadcasting hours dedicated to information, an adequate number of hours is aimed at the promotion of behavior and suitable measures to reduce food, energy or other kinds of waste. It also provides for the promotion of national communication campaigns of the data collected on the issue of food recovery and the reduction of waste by the Ministries involved, as well as information campaigns to provide incentives to prevent the creation of waste. To reduce food waste in the food service industry, the Regions are allowed to stipulate agreements or memorandums of understanding to promote responsible behavior suitable for reducing the waste of food and to allow customers to take remaining food home. Finally, the Ministry of Higher Education and Research, having heard the other Ministries involved, is entrusted with promoting at educational institutions of every degree and level approaches aimed at food education, environmentally sustainable food production and raising public awareness against the waste of food products.

Article 10 provides that the Ministry of Health, upon agreement at the time of a Joint Conference of Ministers, issue guidelines for the entities that manage school, community and social cafeterias in order to prevent and reduce the waste associated with the administration of food products.

Article 11 refinances with 2 million Euro for 2016 the Fund for the distribution of food to the needy – set forth in Article 58(1) of Law Decree No 83/2012 – and at the same time creates a Fund in the draft budget of the Ministry of Agriculture and Food Policies and Forestry having an endowment of 1 million Euro for each of the years 2016, 2017 and 2018, to fund innovative projects aimed at the limitation of waste and the use of surpluses, as well as to promote the production of reusable packaging or packaging which is easily recyclable. The manner in which the Fund can be used is determined by a Ministerial Decree. The costs resulting from the implementation of such Article are quantified as EUR 3 million for 2016 and EUR 1 million for the years 2017 and 2018. Article 12 broadens the purposes of the Fund to the promotion of actions to reduce and prevent the production of waste and to the development of new recycling technologies – created by Article 2(323) of Law No 244/2007 – as well as the promotion of measures aimed at the reduction of food waste, and in relation to such purposes it increases the allocation by one million Euro for each of the years 2017 and 2018.

Title III (Articles 13-18) provides further measures to facilitate the gratuitous supply of food products and other products for social welfare purposes.

Article 13 modifies Law No 155/2003. Article 1 is replaced and the heading is modified to the "distribution of food products, pharmaceuticals and other products for social welfare purposes". Consequently, the base of parties authorized to perform gratuitous distributions and the categories of the products that can be donated to the needy and comparable parties, has been expanded, within the limits of the service provided, to final consumers. In addition to the ONLUS, as defined by Article 10 of Legislative Decree No 460/1997, previously provided for under outstanding legislation, public as well as private entities set up as non-profit entities with the aim of pursuing civic and social objectives that promote and carry out activities of general public interest (see Article 2) become parties authorized to carry out gratuitous distributions; with respect to products, pharmaceuticals and other products are also considered in addition to food products. Article 14 provides the same equation and authorization in relation to articles of clothing and accessories as long as the latter were donated by private parties directly to the operating premises of parties authorized to carry out gratuitous distributions. In the latter case, goods that cannot be donated or which are found to be unsuitable for subsequent use are managed in conformity with the rules on waste set forth in Legislative Decree No 152/2006. Article 15, which modifies Article 157 of Legislative Decree No 219/2006, contains provisions aimed at providing incentives for the donation to non-profit public interest organizations (ONLUS) of unused medicines, properly stored and which have not expired, referring to a decree of the Ministry of Health for specification of the procedures to guarantee quality, safety and original efficiency, and expressly excluding medicines that need to be refrigerated at controlled temperatures, those containing narcotics or psychotropic substances, as well as those that can only be dispensed in hospitals structures. ONLUS are allowed to distribute medicines directly to the needy on the condition that they have health care workers. In such case as well, the entities that engage in social welfare activity – with respect to the possession and conservation of the products – are equated to the final consumer, and the sale of the medicines that are the object of a donation is expressly prohibited. Article 16 contains various provisions of a tax and financial nature regarding the gratuitous donation of food surpluses, pharmaceutical products and other products for purposes of social welfare, providing particular procedures and requirements for online communication to the offices of the tax administration in relation to the above cited donations, and adjusting to the new measures outstanding provisions on added value tax regarding the goods that are the object of donations. Article 17 – by means of a modification of Article 1(652) of the 2014 Stability Law -, gives the Municipality the option to apply a coefficient to reduce the tariff on waste for non-domestic users related to productive activities that produce and distribute food and which donate them on a gratuitous basis, directly or indirectly, to the poor and to persons in a state of need or to feed animals. Finally, Article 18 provides that the donations provided by the measure in question and defined by Article 2(1)(e) of such Article do not require written form to be valid and the provisions set forth in Title V of the second book of the Italian Civil Code (Articles 769 et seq. of the Civil Code) do not apply to them.