June 2014 Position statement of the Fondazione Banco Alimentare Onlus The Fondazione Banco Alimentare Onlus (hereinafter, FBAO ), through its network of 21 Food Banks in Italy, is committed to fight against food waste and to feed the most deprived. The FBAO was established in Italy in 1989 and since 1990 it has been a member of the European Federation of Food Banks (FEBA). The mission of Food Banks belonging to the FBAO consists in the daily recovery of surplus food from the food supply chain and its redistribution to 8.898 charitable organizations that assist almost 2 million of deprived people in Italy. The recovery and redistribution of food products to disadvantaged people is essential not only in view of food security, but also in order to improve the sustainability of food systems and to reduce the impact of food waste on the environment. The FBAO presents its position in relation to the on- going discussion on food waste at European level. The FBAO praises the efforts spent by the European Commission, European Parliament and Council of the EU to analyse and define the problem of food waste with the aim of identifying possible further actions to facilitate the prevention and reduction of food waste and sharing best practices at EU level. The FBAO underlines that Food Banks and all those non- profit charitable organizations that recover and distribute surplus food to the most deprived would benefit from a harmonized EU policy with a positive spill over effect on the entire society. In fact, this activity supports social inclusion and the eradication of hunger, ensuring the respect of essential rights as set by the Charter of Fundamental Rights of the European Union and the founding treaties of the EU (e.g. Article 153 TFEU). Moreover, recovering surplus food improves the sustainability of the food chain in line with the Europe 2020 strategy. The daily activity of Food Banks belonging to the FBAO is made possible thanks to the recovery of food products from all the stages of the food supply chain, in particular the production, distribution and catering sectors. In view of the positive social outcome generated by this activity, European and national policymakers should support and foster the donation of surplus food through fiscal and legal incentives. While Food Banks belonging to the FBAO are committed to ensure the highest standard of safety to deliver wholesome food to charitable organizations and to their final beneficiaries, the most deprived, some food safety rules may represent barriers and constraints to food donation. Fondazione Banco Alimentare Onlus Via Legnone 4 _ 20158 Milano _ T +39 02.8965.8450 _ F +39 02.8965.8474 _ E info@bancoalimentare.it _ CF 97075370151
The FBAO intends to contribute to the on- going discussion pointing out the Italian case as a good practice for the entire EU. Food safety and liability in Italy The Italian Legislative Decree No. 460/1997 recognizes a specific category of non- profit charitable organizations: the O.N.L.U.S. (Organizzazioni non Lucrative di Utilità Sociale), non- profit organizations that carry out their activity for purposes of charity. According to the Italian regulatory framework, the O.N.L.U.S., including the O.N.L.U.S. that recover and distribute surplus food to the most deprived for free (hereinafter, O.N.L.U.S. ), benefit from a special status in comparison to all the other non- profit organizations. Italian health authorities at national and regional level are entrusted to enforce EU food safety rules, which are to be found in Regulation (EC) No. 178/2002 and in the Hygiene Package (i.e. Regulation (EC) No. 852/2004, Regulation (EC) No. 853/2004, Regulation (EC) No. 854/2004, Regulation (EC) No. 882/2004). In consideration of the social value of the O.N.L.U.S. and taking into account the principle of proportionality, Italian authorities have implemented specific rules to promote food donation, ensuring at the same time food safety. Italy approved these rules meanwhile the EU set food safety rules. Therefore, their interpretation has evolved over the time, taking into account the supremacy of EU law. In 2003, with the aim of fostering food donation, the Italian Parliament passed Law No. 155/2003 1 following the example provided by the US Good Samaritan Act (1996). In the USA, the Act protects food donors and non- profit charitable organizations recovering and distributing surplus food from civil and criminal liability should the product donated in good faith later cause harm to the recipient. According to Law No. 155/2003, the O.N.L.U.S. are considered as final consumers for what it relates to liability and responsibility arising from food safety rules. Law No. 155/2003 predates the Hygiene Package and was based on the following rationale: ü O.N.L.U.S., as Food Banks, due to their special nature are considered as final consumers. 1 Law No. 155, the so- called Good Samaritan Law, entered into force on 16/07/2003 in Italy Regulation for the distribution of food products for the purpose of social welfare. Art. 1 1. The organizations recognized as O.N.L.U.S. in accordance with Art. 10 of Law No. 460, 4 December 1997, and later modifications, that for purposes of charity carry out a free distribution of food products to needy people, within the bounds of the service provided, shall be considered (equal to) final consumers in order to meet the proper state of preservation, transport, storage and use of food. 2
ü The law fosters food donation as the donors are only liable towards the recipients of the food (i.e. Food Banks or other O.N.L.U.S.), which are considered as final consumers. Therefore, ordinary product liability rules as set by Directive 85/374/EEC 2 and by national tort law do not apply to donated food. In 2004 the EU approved the Hygiene Package better defining the concept of food business operator and triggering essential hygiene rules. As consequence, on the one hand Regulation (EC) No. 852/2004 has pre- empted national rules, defining the O.N.L.U.S. (meaning also Food Banks) as food business operators, while on the other hand Law No. 155/2003 is still effective on tort law grounds: food donors are still protected from liability claims. The beneficiaries of the O.N.L.U.S. are not entitled to file a lawsuit against the food donor, as the O.N.L.U.S. is considered as the final link of the food chain. The legislative and economic analysis show that without any adaptation of tort law, food donors may be discouraged to address their surplus food to charitable organizations. More recently, Law No. 147/2013 3, while reconfirming another time the special status of O.N.L.U.S., has set essential safety requirements for food donation. In fact, according to Law No. 147/2013 both O.N.L.U.S. and food donors (i.e. food business operators, including those operating in hospitals, nursing facilities and schools) shall ensure a proper state of conservation, transport, storage and use of the donated food products, each according to its own responsibility. In line with the flexibility provided by Regulation (EC) No. 852/2004, the O.N.L.U.S., as Food Banks, are expected to comply with these requirements also by means of drafting a national guide to good practice. Conclusions The Italian regulatory framework has proven to be effective in promoting food donation while at the same time ensuring food safety. No safety concern has been raised in more than a decade from the passage of Law No. 155/2003. 2 Article 7 of Directive 85/374/EEC exempts the manufacturer from liability in case the product was not distributed by him in the course of his business. This is the case of the food business operators who transfer surplus food. 3 Art. 1, Law No. 147, 27 December 2013 Organizations recognized as O.N.L.U.S. in accordance with Art. 10 of Legislative Decree No. 460, 4 December 1997, and later amendments, which for solidarity purpose distribute for free to the most deprived food products which are supplied by operators of the food supply chain, including those operating in hospitals, nursing facilities and schools, and food business operators supplying food products for free, shall ensure a proper state of conservation, transport, storage and use of the food products, each according to its own responsibility. This objective is also achieved through the arrangement of specific national guides of good practices as referred to in Article 8 of Regulation (EC) No. 852/2004, and later modifications, after a positive assessment by the Ministry for Health. 3
For example, in the period November 2003 December 2013 thanks to the Siticibo programme, Food Banks belonging to the FBAO have recovered 3.038.518 portions of meals, 869 tons of bread and 948 tons of fruit from the catering sector and 23.491 tons of food products from the distribution sectors to the benefit of the most deprived. 4 Food Banks belonging to the FBAO apply high standards of safety thanks also to a template framework agreement that is defined and signed with the food donors and the charitable organizations receiving food. The framework agreement clearly sets responsibilities and essential requirements that have to be met in order to collaborate with Food Banks belonging to the FBAO. The compliance with safety rules is an essential part of the agreement. The FBAO and Caritas Italiana, in collaboration with the Università Cattolica del Sacro Cuore (Piacenza) and with the support of the Ministry for Health, are currently developing a guide to good practice in fulfilment of the requirements laid down by Law No. 147/2013. Recommendations With the aim of fostering food donation, achieving a better regulatory framework and combating food waste at European level, the FBAO recommends the adoption of the following measures to EU institutions: - To ensure that Member States may adopt specific rules to protect non- profit charitable organizations that recover and distribute surplus food within the flexibility provided by Regulation (EC) No. 852/2004 and in line with the principle of proportionality, as it happens in Italy; and - To exclude non- profit charitable organizations that recover and distribute surplus food of animal origin from the scope of Regulation (EC) No. 853/2004 as proposed by the European Commission at the meeting of the Working Group on Food Losses and Food Waste of the Advisory Group on the Food Chain, Animal and Plant Health held on 8 th May 2014; and - To disseminate guidelines at EU level protecting food donors and non- profit charitable organizations that recover and distribute surplus food, as Food Banks, from claims arising from the donated food, with the exception of claims based on gross negligence. 4 The Siticibo programme aims at recovering and distributing chilled and cooked food products, a very perishable category of food, from the distribution and the catering sectors. 4
References: Campiglio L., Rovati G., La povertà alimentare in Italia. Prima indagine quantitativa e qualitativa, Guerini e Associati, Milan, 2009. Planchenstainer F., They Collected What Was Left of the Scraps : Food Surplus as an Opportunity and Its Legal Incentives, Trento Law and Technology Research Group. Research Paper Series, Università degli Studi di Trento, Trento, 2013. 5