The Italian Competition Authority (AGCM) sanctions the use of Nutri-score once again - VIVIL candies
On Bulletin No. 5/2023, the Italian Competition Authority (AGCM) published its sanction the sale and marketing of VIVIL-branded candies and confectionery products bearing Nutri-score on the front of pack. In summary, the AGCM's position is that the use of the Nutri-Score, even though in principle it can be used as a facilitating factor in food information, constitutes an unfair commercial practice under Articles 20, 21(b), and 22 of the Consumer Code, in the absence of clear indications to the consumer on the intrinsic characteristics of the system and a broad educational campaign on the importance of a balanced diet and a healthy lifestyle. The AGCM therefore imposed an administrative fine on the company.
2. The legal bases on which the Nutri-score and the AGCM's interpretation legal bases on which the Nutri-score and the AGCM's interpretation are based
Nutri-Score is a food labeling system developed by a group of French university researchers called EREN, and although it has come under strong criticism in some countries, including Italy, at the European level it is in use in several countries, including France and Germany.
In Italy, the Nutri-score system has always been contested, and the AGCM has intervened in several cases reiterating the deceptiveness of this front-of-pack stamp system if it lacks clarification with respect to the limitations of the information provided.
2. The legal basis underlying the Nutri-score and the AGCM's interpretation
The AGCM first noted how the adoption of this system cannot find its justification in Article 35 of EU Reg. 1169/2011, as also noted by the Commission. Nutriscore, therefore, must anchor itself in Article 36 of EU Reg. 1169/2011, which, in recognizing the option of providing additional food information on a voluntary basis, subordinates this choice to compliance with the principle of clarity of information in order to avoid misleading the consumer
It went on to reiterate that the AGCM's position "does not entail prohibitions on the placing on the market, modification, testing or withdrawal from the market of products and is taken on the basis of a harmonized regulatory framework at the Union level: the Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market," which in Italy is transposed within the Consumer Code.
3. Nutri-score label and criticism from AGCM
The Nutri-score aims to simplify the identification of the nutritional values of a food product. It expresses the nutritional quality of the food through two related scales: a chromatic one divided into five gradations from green to red and an alphabetical one with letters ranging from A (highest quality) to E.
Foods are divided into five categories, based on a score calculated by a complex algorithm that subtracts from the total value of "unfavorable" elements (energy/calories, saturated fatty acids, simple sugars, sodium) that of "favorable" elements (percentage of fruits, vegetables, legumes and oilseeds, olive, nut and canola oil; fiber, protein). Foods with very low scores are assigned to category A (green), while those with the highest scores are assigned to category E (red).
The score refers to an amount of product equal to 100 g or 100 ml.
On the graphics of the Nutri-score, the AGCM notes "the overall methods of making and communicating the semaphore label provide an apodictic prospect of the healthiness of a product, since the concise graphic and chromatic representation (green/A = "healthy food" - red/E = "unhealthy food") does not take into account the multiple variables that affect the correctness of a person's diet: genetic characteristics, general health conditions, age, lifestyle, work activity, as well as the interaction of the product "promoted" by the traffic light with other foods consumed. In doing so, communication based only on the sticker in question risks, for example, underestimating the potential harmful effects that the intake of significant amounts of foods labeled green can determine on the consumer's health."
4. Criticism of the criteria of the Nutri-score algorithm
The AGCM reserves severe criticism for the criteria of the operation of the NutriScore generating algorithm. In fact, it finds that it does not take into account all nutritionally relevant parameters (e.g., micronutrients, macronutrients, absence of hydrogenated fats) and results in unbalanced scoring. Some components such as, for example, fiber, whose daily intake is correlated with better diet quality, are not considered. Moreover, for the purposes of constructing the final result, the NutriScore system recognizes a greater incidence to unfavorable elements (40 points) and a far lesser one to favorable ingredients (15 points); in fact, the NutriScore score appears to be more sensitive to the variation of "negative" elements (energy, sugars, fat, sodium) than to that of "positive" elements (fiber, protein, percentage of fruits/vegetables/legumes/dried nuts). The presence of the latter detects only when a certain level-threshold is exceeded (by weight or percentage), but the greater or lesser distance from the threshold does not detect in any way and therefore the final score is determined in an unbalanced way. The AGCM therefore concludes that "The failure to make this specific aspect explicit does not allow the consumer to fully appreciate the rating assigned by the professional to the food," and further that "The deficient information thus conveyed leads the consumer to overlook the overall effect of all the nutrients present in a food, which is also linked to their quantity and frequency of intake."
5. Criticism of the reference to 100g instead of portion size
The Nutri-score is based on 100g of product, and not instead on the portion of food consumed. On this front, too, the AGCM is critical: "In the absence of adequate clarification, the circumstance that the NutriScore system focuses on fixed quantities (equal to 100g or 100 ml) is apt to convey misleading information because the assessment does not concern the portion of food meeting the average daily recommended requirement for a balanced diet, but rather a dose that could be significantly different from the ordinary intake."
6. The unfair commercial practice referring to the use of Nutri-score on VIVIL candies.
The proceeding relates to the affixing of NutriScore, on the front of packages of candies under the brand name VIVIL. To such candies, distributed in Italy with packaging that also carries descriptions and information in Italian, Nutri-score assigns the category "B," which is green in color. The Nutri-score label is placed prominently on the packaging, without further specification or clarifying elements of the meaning of this information, and the risk is that it "may mislead the average consumer into the erroneous belief that the food marked with green is always and in any case to be preferred, regardless of the interaction it develops with the overall diet followed, as well as the subjective conditions of the individual taking it."
The AGCM, applying what it had observed on the Nutri-score to the use of the traffic-light system on VIVIL-branded candies, therefore came to the following conclusion: "The affixing of the traffic light symbol on "VIVIL" branded products - in the absence of contextual and adequate clarifications - is in violation of Articles. 20, 21(b), and 22 of the Consumer Code, as contrary to professional diligence and likely to lead the average consumer to believe that those presented are healthy food consumption choices in an absolute sense and that the product judged as green can be considered the "best" in its category to the detriment of orange or yellow products. More precisely, the lack of clarifying elements in relation to the characters and limitations of the methodology used does not allow the consumer to make an informed use of the assessment made."
7. What to expect in the future
AGCM's position does not seem likely to change, and so at present, the use of the Nutri-score in Italy, without the clarifications requested by AGCM, is at great risk of sanction. There is much debate at the European level about the possibility of adopting a single supplementary labeling scheme to help consumers make healthy food choices. This purpose has been reiterated in the Green Deal and, in particular, in the so-called "Farm to Fork" strategy, which sets goals to guide the transition to a more balanced and environmentally sustainable food system by intervening in many aspects of the supply chain, from agriculture to food labeling. Certainly, the search for a labeling system to promote healthy (and therefore sustainable) food has created many clashes, particularly between those who support the validity of the Nutri-score, and those, like Italy, who believe that an informative, rather than evaluative, type of communication is needed, which is reflected in the NutrInform Battery. The Commission, which initially announced that it would submit a legislative proposal to harmonize, on a mandatory basis, FOP Schemes throughout the European Union by the end of 2022, has postponed the decision, and a solution at the European level will therefore have to be awaited.
8. Advising on food labeling and assisting with administrative penalty disputes
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Studio Legale Corte is Italy's oldest food law firm, founded in 1921. We offer legal services to the food & beverages industry, including legal representation, legal advice and in-house training.