An Italian court has nul­li­fied a half-mil­lion-Euro fine against Lidl for sell­ing bot­tles of mis­la­beled olive oil.

…it can­cels a fine not for rea­sons of qual­ity and pos­si­ble harm to con­sumers, but because the AGCM did not describe very well why the pro­fes­sional behav­ior was neg­li­gent.- Luca Bucchini, Hylobates Consulting

In 2016, Italy’s Antitrust Authority (AGCM) fined the German dis­count super­mar­ket chain €550,000 (about $679,000) after a sen­sory panel flagged its Primadonna brand of extra vir­gin olive oil.

Konsumer Italia, a con­sumer pro­tec­tion agency, com­mis­sioned the tests on Primadonna as well as on six other Italian olive oil brands in order to crack down on sus­pected fraud in bot­tle label­ing.

The panel deter­mined that the organolep­tic char­ac­ter­is­tics of Primadonna’s olive oil failed to meet the strict extra vir­gin qual­i­fi­ca­tions and instead could only be clas­si­fied as vir­gin olive oil. The AGCM also accused Lidl of rush­ing the oil onto the shelves with­out doing the proper due dili­gence.

The supermarket’s legal team dis­puted both of these charges, accus­ing the sen­so­r­ial pan­els of being “sub­jec­tive assess­ments” and pro­vid­ing insuf­fi­cient evi­dence of wrong­do­ing.

During the trial, Lidl’s defense team said that the com­pany under­takes a series of checks with each batch of incom­ing olive oil.

“The con­tract between Lidl Italia and Fiorentini Firenze [the sup­plier for the Primadonna brand of olive oil] pro­vides for a series of checks on the prod­uct sup­plied,” the defense said in a state­ment.

“A first check is made by Fiorentini Firenze in its lab­o­ra­to­ries. The sam­ples of that prod­uct, in accor­dance with the con­trac­tual pro­vi­sions, are then sent to Germany at the pres­ti­gious Eurofins lab­o­ra­tory. In the face of those two com­pli­ant ana­lyzes, the prod­uct can be mar­keted.”

In its ver­dict, the Administrative Court of Lazio con­firmed that the Primadonna brand olive oil only met vir­gin qual­ity stan­dards. The down­graded olive oil was deemed not to be harm­ful to human health, but led con­sumers to pay higher prices for lower organolep­tic qual­ity.

However, the court also said that Lidl had demon­strated a nor­mal degree of dili­gence.

“In the face of the con­trol mea­sures and the ver­i­fi­ca­tion sys­tem that Lidl has shown to have adopted in order to meet the stan­dards of dili­gence imposed on a food busi­ness oper­a­tor,” the Administrative Court said in its rul­ing.

“The sanc­tion­ing pro­vi­sion does not clar­ify for what rea­son the set of instru­ments pre­pared and con­cretely used by the pro­fes­sional could not be con­sid­ered suf­fi­ciently suit­able, accord­ing to the rules of nor­mal pru­dence, to pre­vent the occur­rence of the con­tested event, the mar­ket­ing of a prod­uct not com­pli­ant with declared on the label.”

Luca Bucchini, a food law expert and man­ag­ing direc­tor of Hylobates Consulting, said that neg­a­tive sen­so­r­ial panel tests are unlikely to ever be the prover­bial smok­ing gun in court cases such as these, but warned against Lidl’s efforts to dis­par­age them.

“While pos­i­tive panel tests are impor­tant to show com­pli­ance, neg­a­tive panel test results alone may not be suf­fi­cient for author­i­ties to win impor­tant cases against brands, in court”, Bucchini told Foodnavigator.com…. “Nothing sug­gests you can forgo panel tests if you pro­duce extra vir­gin olive oil.”

Fabrizio Premuti, the pres­i­dent of Konsumer Italia, said he was dis­ap­pointed by the rul­ing and plans to appeal to the Council of State, the next level up in the Italian legal sys­tem. Premuti sees Lidl’s defense as irrel­e­vant in pro­tect­ing the con­sumer from fraud­u­lently labeled oil.

“In our opin­ion, the ver­dict is quite sur­pris­ing, as it can­cels a fine not for rea­sons of qual­ity and pos­si­ble harm to con­sumers, but because the AGCM did not describe very well why the pro­fes­sional behav­ior was neg­li­gent,” he said.




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