A recent judgment of the Italian Supreme Court (Cassazione 15824/2014) has clarified the application of Article 1227 of the Italian Civil Code, which regulates the contributory negligence on the part of the creditor, to the food sector.
According to the aforesaid article of the Italian Civil Code, whenever the creditor contributes to the occurrence of damage owing to his own negligence, the compensation due decreases accordingly and proportionally; compensation is not even due in the event that the creditor could have avoided the occurrence of damage by using the ordinary diligence.
Fratelli Saclà, an Italian traditional canning company, purchased several tons of hot chilli from News Food, a local business that supplied food ingredients to manufacturers.
The French government launched an international alert regarding the presence of colorant "Sudan 1" in foodstuffs that contained Indian hot chilli products. The use of the aforementioned colorant in edible products is explicitly forbidden pursuant to European and international legislation, since the pigment has been classified as carcinogenic.
The above-mentioned food alert led the European Commission to publish Decision 2003/460/EC of 20 June 2003, whereby it required that all consignments of hot chilli – and of products that contained hot chilli – imported into the EU market and destined for human consumption were to be tested. Importers, or any other operator that were in possession of these products, were responsible for presenting the results of the analysis certifying the absence of the colorant. Member States were furthermore required to test samples of any consignments of hot chilli and derived products that were to be imported and of those already present in the market.
Consequently, Saclà requested that its supplier, New Foods, certified the absence of the "Sudan 1" colorant in the hot chilli that it had purchased from them. The supplier affirmed that the carcinogenic component was not present in the consignments.
However, the Italian public health and food safety authority discovered "Sudan 1" in one of Saclà's star products, spicy green olives. All the company's products that contained hot chilli were recalled by the competent Italian authority.
As a result, the canning company brought a claim against its supplier for the compensation of the damage suffered. While the Court of First Instance rejected the claim, the supplier was condemned to pay the compensation claimed in appeal. A complaint against that judgment was then filed by the supplier before the Supreme Court of Cassation.
The Judgment by the Supreme Court
The Cassazione established that the principle of contributory negligence was applicable to the case. In fact, both companies were liable for damages. Not only had New Foods supplied a spice that contained carcinogenic colorants; but also the canning company, Saclà, had a duty of diligence that involved the obligation to carry out authenticity tests on products purchased from third parties and subsequently distributed on an industrial scale.
Under Italian law, the professional purchaser of food ingredients (i.e. the foodstuffs manufacturer) is therefore obliged to comply with the precautionary principle by taking all proportionate measures in accordance with the product's characteristics and purpose in order to prevent damages. The obligation of the ingredient supplier to offer a pure and safe product does not exonerate the purchasing manufacturer from testing samples of ingredients for authenticity, before incorporating them into industrially-distributed foodstuffs.
The application of article 1227 of the Italian Civil Code (contributory negligence) to the food sector aims at preventing the occurrence of damage in the best interest of consumers. The Italian Supreme Court of Cassation has in fact acknowledged that ensuring that edible products are safe and healthy is a critical public health issue. This can well entail, as was the case with the judgment under consideration, an extension of the professional operators' obligations in the sector.
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