Changes to the Italian standard governing pasta8 April 2013
While awaiting ratification from the President of the Republic and subsequent publication of the measure (approved by the Council of Ministers on 22 January 2013) in the Official Journal of the Italian Republic, we are telling our readers what to expect from the new aspects introduced in the standard regulating Italian pasta production and comparing the amended text with the one still officially in force.
By Lino Vicini
The Italian standard governing pasta dates back to Law no. 580 of 4 July 1967. This law contains the “regulation on the manufacturing and marketing of cereals, milling products, bread and pasta”.
The law was first amended following approval of Presidential Decree no. 187 of 9 February 2001, published in the Official Journal on 22 May that same year.
The Presidential Decree in question contains the “Regulation for the revision of the standard on the manufacturing and marketing of milling products and pasta, in accordance with article 50 of Law no. 146 of 22 February 1994”.
In other words, the 2001 legislator did not totally repeal the 1967 law and replace it with a new text but limited itself to simply deleting a series of the provisions therein and keeping part of the original legislation in force while introducing only a few new provisions.
It should be pointed out that the regulation contained in the Presidential Decree does not hold the standing of an ordinary law, but is simply a regulation, in other words a secondary source of law.
To be able to understand such a statement it is necessary to specify how rules of law are structured in accordance with a very precise hierarchal order.
At the very top there are the constitutional laws, immediately followed by primary sources of law (EU standards, ordinary laws, ordinary Regional statutes, legislative decrees, regional laws), while at the bottom there are secondary level standards, including the regulations we are dealing with here.
Regulations can be defined as acts which have the force and value of secondary sources of law. They can be issued by the Government, by individual Ministries, by the Regions, Town Councils and Provinces.
They contain general and abstract provisions and consequently they are suitable for making changes to the general legal system, even if on a lower level compared to legislative level sources of law.
Regulations issued by the Council of Ministers are approved subject to the opinion of the State Council and are issued by decree of the President of the Republic.
The provisions discussed here belong to this category.
Going back to Presidential Decree no. 187 of 2001, this was issued based on art. 50 of Law no. 146 of 22 February 1994, which envisaged the issuing of regulatory standards to review the manufacturing and marketing of preserved and unpreserved food products, although not disciplined by law.
Having specified the above, on the proposal of the Ministry of Agricultural, Food and Forestry Policies and the Ministry for Development, the Council of Ministers has recently put its hand to amending the aforementioned Regulation.
While awaiting ratification from the President of the Republic and subsequent publication of the measure, which was approved on 22 January 2013, in the Official Journal of the Italian Republic, this commentary aims to inform our readers in advance of the new aspects introduced and comparing the amended text with the one still officially in force.
The purpose behind the amending law
On the internet page of the official Government website, it is possible to find the bulletins issued by the Council of Ministers relative to the provision being commentated on.
Amongst these one can read the reasons behind the issuing of the amendments to the Presidential Decree.
In particular the new standards propose to simplify and rationalize the obligations which must be fulfilled by manufacturers, eliminating those which new technologies and computerization of administrative procedures have rendered obsolete.
Furthermore, in observance of EU regulations and provisions concerning the topic of food safety, in future it will be permitted to produce additional varieties of milling products and pasta in order to satisfy the demand for quality and differentiation expressed by consumers
Article 6 “Pasta”: amendments
The first five articles of the Regulation have not been amended and therefore remain unaltered in their original wording.
The first modification is encountered in art. 6 on “Pasta”.
The original prohibition on the manufacturing of dry pasta made from soft wheat milling products referred to in paragraph 4 has been amended as the following version: “except in the case of pasta destined for sale in other Member Countries of the European Union or other states which have signed the European Economic Area Agreement, as well as destined for export, as referred to in art. 12, paragraph 1, the manufacture of dry pasta prepared using soft wheat flour is forbidden”.
It is obvious how the new wording of the regulation has felt the effects of the interpretation formulated by the Constitutional Court of Italy under sentence no. 443 of 30 December 1997 on art. 30 of Law no. 580 of 1967 on the subject of special pasta.
This case came about from opposition proceedings against an injunction order issued against the legal representative of a pasta manufacturer who had produced and marketed dry pasta containing garlic and parsley, ingredients which were not allowed under the standard in force at that time.
The court dealing with the case in question pointed out a violation of art. 3 of the Constitution (principle of equality) with reference to the different treatment reserved by the Italian law for subjects producing pasta containing prohibited ingredients, depending on whether or not the product was intended for sale on the national or EU market.
It should be remembered how the Council settled the matter based on the principle of the free circulation of goods, by which it is forbidden for one Member State to apply a national standard limiting the import of goods produced and marketed in accordance with the laws in force in the country of origin.
Based on this fundamental principle of EU law, the Italian state had no power to obstruct the production of pasta in a EU Member State destined for consumption in Italy containing ingredients which are not authorized by national law but are allowed under EU law.
In this clash between the Italian regulation, introduced to protect the qualitative characteristics of traditional national production, and EU rules established to promote the free circulation of goods within the European market, bearing in mind the hierarchal principle mentioned above, the internal regulation is forced to back down and give priority to EU law.
Going back to the amendments being discussed, wording has therefore expressly been added within the text of the regulation, alongside the general prohibition on the use of soft wheat flour in the manufacture of dry pasta, allowing the use of said flour for products destined for markets outside Italy.
In the following paragraph 6 of art. 6, confirmation is given concerning the possibility to re-use, in the production of pasta, special pasta, and egg pasta, product or parts of the same from the manufacturing or packaging processes, as long as this process is performed in the same production plant.
Following the explicit abrogation of Legislative Decree no. 155 of 1997, by Legislative Decree no. 193 of 2007, reference to said regulation is cancelled and confirmation is given to the power of the Ministry of Health, in agreement with the Ministry of Economic Development and the Ministry of the Agricultural, Food and Forestry Policies, to establish the methods of application of the aforementioned regulation on re-use by means of a special decree.
Other new aspects have been introduced in the text of art. 7 of Presidential Decree no. 187 of 2001.
The provision in question deals with special pasta types.
Authorization to produce special pasta, in other words pasta types which contain different ingredients, other than soft wheat flour, and which meet health requirements, remains unmodified.
It is clarified how “Special pasta must be sold with the sales name durum wheat semolina pasta or durum wheat low grade semolina pasta or durum wheat wholemeal semolina pasta on the packaging completed by mentioning the ingredient used, and, in the case of pasta made using several ingredients, by mentioning the characterizing ones”.
Article 7 also envisages, in the new paragraph 4, the possibility of producing special pasta by mixing durum wheat semolina and/or durum wheat low grade semolina and/or durum wheat wholemeal semolina in observance of the sales names envisaged in art. 6, paragraph 3 and paragraph 2 of this article.
When comparing with the old regulation, one notes the introduction of the possibility to use wholemeal ingredients or mixtures of durum wheat semolina and wholemeal semolina in the production of special pasta types, which, as already mentioned above, is designed to uniform the standard to the demands put forward by consumers.
A specification of a technical nature has been introduced with an additional paragraph in art. 7.
The whole provision reads as follows:
“In dry, fresh or stabilized special pasta, the analytical parameters envisaged in art. 6, paragraph 3, are applied exclusively to the primary raw material used; in the assessment of said parameters, one must take into consideration both the input added to the raw material used and the effect which the added ingredient/s may have on the final analytical parameter; for this purpose ,during the analytical verification stage, it will be necessary to verify the recipe at origin which the food manufacturer must always submit to the controlling body whenever requested.”
It should be remembered that the parameters referred to are those concerning the maximum moisture permitted in the end product, ash and protein content (per 100 parts of dry matter) and the maximum acidity subject to analytical control by public authorities appointed to verify adherence to the legal provisions governing pasta.
The clarification added by the amending law appears most appropriate for avoiding any possible disputes which could result from incorrect methods of analysis.
“Egg Pasta” art. 8: amendments
On the topic of egg pasta, the provision has also undergone only minor changes.
Paragraph 3 of the provision in question envisages a lower ethereal extract content and sterol content than is currently in force.
The variation would appear to be minimal, in fact from a minimum accepted value of 2.80 g and 0.145 g respectively per one hundred parts of dry matter, the new values have been set at 2.50 g and 0.130 g with reference to the end product.
Evidently the Government has considered it necessary to update the value in light of the lower quantities of ethereal extract and sterols found inside the eggs used by the manufacturers of this kind of pasta. (On this topic, please refer to the article “Egg pasta and Sterols; the problems linked to observing normative requirements”).
Prohibitions art. 11: amendments
Paragraph 2 of art. 11 on the subject of prohibitions has been removed from the Regulation.
The provision envisaged prohibition on the sale or storing for later sale of pasta which has been altered, adulterated, contaminated or is infected with animal or vegetable parasites.
Now, it becomes evident from simply reading the provision that it merely repeated, for the products in object, for the products in object, the overall prohibitions established in art. 5 of Law no. 283 of 30 April 1962.
Therefore being as the provision was a duplicate of the general standard in force concerning food and drink products, the decision for its removal seems logical.
Transitional and Final Provisions art. 12: amendments
The text of the transitional and final provisions is also reworded with the introduction of the explicit reference to Regulation (EC) no. 852 of 2004 relative to the hygiene of food products in general.
The manufacturing of milling products and pasta with requisites different from those set out in chapters I and II of the aforementioned Presidential Decree, is permitted when the end product is destined for sale on the EU market or in other countries.
Obligations concerning communication with the Ministry of Agricultural, Food and Forestry Policies shall be established by special decree issued by the Ministry itself.
Another important new aspect should be pointed out for manufacturers in relation to the legal provision in art. 11.
It is expressly specified that raw materials and substances different from those which may be used to manufacture milling products and pasta for the Italian market, as well as finished products with different requisites from those prescribed, may be stored inside the same premises as those used to store end products, raw materials and substances which may be used in the manufacture of milling products and pasta intended for the Italian market.
The only condition is that the products themselves, stored within the same warehouses, must be clearly marked by special signs upon which the following text must be written in clearly legible characters: “RAW MATERIALS AND/OR END PRODUCTS FOR THE NATIONAL MARKET”.
The above text may be replaced by other wording as long as it is always possible for the special surveillance bodies to immediately and directly perform their control procedures.
Finally, the individual basic raw materials with requisites different from those prescribed, as well as those substances which are not authorized for use in the production of pasta with different requisites from those prescribed for the Italian market must be recorded in special loading and unloading logbooks which shall be established by a specific ministerial decree.
These provisions should be welcomed as in fact they render the work, logistical organization and storage procedures simpler for operators.
Paragraph 4 of art. 12 confirms the prohibition to import milling products and pasta with characteristics different from those prescribed by the rules set out in the regulation.
However, the regulation must be read and interpreted in light of the initial discussion which expressly refers to two legal provisions, in other words art. 48 of Law no. 128 of 24 April 1988 and art. 9 of Presidential Decree no. 502 of 30 November 1998.
The first rule referred to is held in the so-called “Community law 1995 – 1997” which envisages the provisions for the fulfilment of the obligations derived from Italy’s belonging to the European Community.
Cited art. 48 expressly lays down that: “the provisions concerning the ingredients, composition and labelling of food products referred to in Law no. 580 of 4 July 1967 on the manufacturing and marketing of cereals, milling products, bread and pasta, shall not be applied to food products imported and sold on national territory which have been legally manufactured and marketed in other EU Member States or other countries which have signed the European Economic Area agreement”.
Presidential Decree no. 502 of 30 November 1998 concerns the regulation holding rules for the revision of the standard on the manufacturing and marketing of bread, in accordance with article 50 of Law no. 146 of 22 February 1994.
Art. 9 of the aforementioned regulation envisages the mutual recognition, in other words consent, that the provisions in the same regulation shall not be applied to bread imported and sold on national territory which is legally manufactured and marketed in EU Member States or comes from countries which have signed the European Economic Area Agreement.
The new aspects introduced by the amending law on the whole should receive a positive appraisal.
The main rules in the regulation are confirmed whereas the amendments concern aspects which on the whole have only a moderate impact on producers.
While reserving a more in depth look for future issues of “Pastaria” the only complaint to be made is the fact that part of the original standard dating back to 1967 still persists.
Said provisions were kept in force by the 2001 Legislator, despite important and substantial amendments and approval of the regulation in question.
Greater attention concerning overall clarity of the normative texts not to mention a renewed respect for operators would have suggested regulating the whole matter in a single text.
In this way it would have been possible to avoid annoying references to provisions spread out over various different legislations.
However, we will come back to this topic with comments on sanctions which have not been dealt with here due to a lack of editorial space.
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