In recent years, the food sector has been swept by a series of technological innovations that are profoundly transforming the way we produce and consume food. Alongside concerns about the safety of these novel foods, the introduction of these technologies is also giving rise to fears regarding the possibility of triggering a process of cultural homogenisation. Innovations in the food sector may indeed be perceived as a threat to local gastronomic traditions, which would be standardised, leading to a possible loss of cultural identity. Beyond meeting humanity’s nutritional needs, food in fact also represents a cultural value, one that fosters social relationships and offers opportunities for exchange and mutual understanding between people. EU law itself is committed to recognising and safeguarding regional culinary specialities through instruments such as PDO and PGI certifications. Within Community law, however, this protection is balanced against the desire to promote a certain degree of uniformity. EU food legislation is in fact founded on the premise that products considered safe, on the basis of uniform criteria grounded in scientific evidence, must be able to circulate freely within the common market. It is important, however, also to stress that the evidence-based approach does not entirely rule out the possibility that decisions on food matters, rather than being grounded in an objective assessment of risks and benefits, may be influenced by public opinion or by political dynamics and strategies.
In this regard, one may observe the approach of the Italian government led by Giorgia Meloni, which, on various occasions, has declared its intention to regain control of national food policy by introducing the theme of “food sovereignty” among the government’s priorities. As stated by the Prime Minister, the aim is to promote national and regional cultural plurality and counter the attempt at global food standardisation. These declarations are also reflected in the decision to rename the Ministry of Agriculture as the Ministry of Food Sovereignty, which, among its strategic objectives, has expressed the intention to counter the spread of “artificial food”, with particular emphasis on laboratory-cultivated meat, today at the centre of countless debates.
Italian Law no. 172/2023
Building on these premises, a lengthy debate opened around Bill no. 651 entitled “Provisions concerning the prohibition of the production and placing on the market of synthetic foods and feeds”, presented in the Senate on 7 April 2023. The legislative iter then concluded with the approval of Law no. 172 of 1 December 2023, by which the legislator, invoking the precautionary principle set out in EC Reg. no. 178/2002, introduced the prohibition of the production, use, sale, import, export and distribution of foods produced from cell cultures. The aims pursued are explicitly recalled in Article 1, which states the intention to “ensure the protection of human health and the interests of citizens” as well as to “preserve the agri-food heritage, as a body of products expressing the process of Italy’s socio-economic and cultural evolution, of strategic relevance to the national interest”.
Alongside these provisions, Article 3 of the law also introduces a further prohibition linked to the phenomenon of meat sounding. The legislator has in fact prohibited the use of terminology typically associated with meat to describe processed products containing exclusively plant-based proteins.
To complete the legislation, Article 5 finally establishes particularly severe penalties for breaching the aforementioned provisions. In particular, it provides that, unless the act constitutes a criminal offence, offenders may incur administrative monetary penalties reaching a maximum of 60,000 euros or 10% of annual turnover, with an upper ceiling of 150,000 euros. The penalties also include the confiscation of the unlawful products and the temporary closure of the production facilities.
The enactment: doubts and uncertainties
Coinciding with the enactment of the law, a statement was published on the Quirinale website, specifying that “The President of the Republic, Sergio Mattarella, today enacted Bill no. 651 […]. The Government transmitted the measure accompanied by a letter giving notice that the bill had been notified to the European Commission, together with a commitment to comply with any observations the Commission might formulate within the notification procedure”.
This unusual statement reflected the concerns of the Presidency of the Republic regarding the conflicts that might arise between the domestic legislation in question and Community law.
Tensions with Community law
In the notification sent to the European Commission, the Italian Government justified the legislative initiative by arguing that the matter lacked harmonisation at Community level and that, for these reasons, by virtue of the principle of subsidiarity, the adoption of a national rule intended to safeguard the health of citizens had become necessary.
This claim, however, is unconvincing.
“Synthetic foods”, as defined by the Italian Government, are in fact already subject to specific rules at Community level. It must indeed be considered that such foods fall within the category of so-called novel foods, namely products that were not significantly consumed in Europe before 1997, governed by Regulation no. 2283 of 2015.
The regulation establishes a long and complex iter for obtaining authorisation from the European Commission to place the novel food on the market, which may be marketed only after passing rigorous safety checks, demonstrating the absence of risks to human health. In light of this, a unilateral national intervention, such as that of the Italian legislator, is not compatible with the system of powers and competences on which EU food legislation is based.
The precautionary principle
Further uncertainties emerge when analysing the reference to the precautionary principle made by Article 2 of the law. This principle, enshrined in Article 191 of the TFEU and recalled by Article 7 of Regulation no. 178 of 2002 on food safety, may be invoked where, “in specific circumstances following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists which does not allow a complete assessment of the risk to be carried out”.
The Italian law under examination, however, appears to apply the principle improperly, deeming it sufficient, in order to justify the prohibition, that there is no proof of the harmlessness of foods produced from cell cultures.
According to the Court of Justice, as stated in the Monsanto case, “the protective measures taken by the Member State cannot validly be based on a purely hypothetical approach to risk, founded on mere suppositions that are not yet scientifically verified”. A national provision may therefore be adopted on a precautionary basis only where the possible risk to human health is adequately supported by scientific evidence available at the time of adoption. In the case under examination, the Italian State provided no dossier to support its fears, thereby depriving the political decision of the scientific support required to legitimise the adoption of precautionary measures under EU law.
Procedural issues
In addition to the problems just examined, it must also be stressed that the law in question is to be regarded as a national technical measure capable of hindering the free movement of goods within the Community market and, as such, should have complied with the prior-information obligations laid down by the TRIS procedure governed by Directive no. 1535 of 2015. Under the directive, Member States are required to communicate to the Commission any draft technical regulation before its official enactment, attaching a dossier containing the elements supporting the objectives underlying the drafting of the rule. Article 6 further establishes that, following the notification, States must refrain from adopting the rule for a period of between 3 and 6 months, thereby allowing the European Commission and the other Member States to carry out the necessary checks and consultations. The Italian Government, by contrast, decided to submit the national provisions to the European institutions only after having made them law, thereby breaching the procedure just described.
Conclusion
The analysis of Law 172/2023 has thus revealed numerous critical aspects. Moreover, there does not appear to have been any need to enact this rule, which would, what is more, come into conflict with any future authorisation by the European institutions to place on the market a product created from cell cultures.
It may therefore be concluded that prohibiting “synthetic foods” a priori and slowing down scientific research in this field does not appear to be the most appropriate strategy. On the contrary, promoting information campaigns on the environmental impact of dietary choices and encouraging more sustainable options would prove a valid alternative, one entailing limited economic costs for the institutions. This would at the same time help to raise public awareness on issues such as environmental protection and to promote the protection of fundamental rights, such as health and the right to adequate and accurate information.
