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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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