Question: A few days ago I bought some fresh pasta from the chilled section at the supermarket near my house. As soon as I got home I put it in the fridge. After a few days I noticed that the packet, still sealed, had swollen up, so I took it back to the store with the receipt. The manager told me that the store “does not answer for fresh products because once the ‘refrigerated chain’ has been interrupted the vendor is no longer responsible for it.
Who’s right? The unlucky buyer or the smart seller?
Answer: In general, when the buyer is a “consumer” (a person who acts for purposes unrelated to his trade, business or profession) and the seller is a “professional” (any individual or business that sells goods as his trade, business or profession), contracts of sale relating to food may be considered as “consumer contracts”. In these cases, the contract of sale is subject not only to the general rules of the Italian Civil Code but also to the special regulations of the Consumer Code (Italian legislative decree September 6, 2005, no. 205).
The European Union has enacted detailed regulations that ensure a high level of consumer protection. Among these, the European Regulation (EC) no. 178/2002 lays down the general principles and requirements of food law, establishing the European Food Safety Authority and instituting procedures to guarantee that consumers are able to make informed choices about the food they consume and to prevent any practices that may prove misleading.
As part of the European Union, Italy has implemented these regulations and enacted specific legislation to protect consumers. Article 130 of the Italian legislative decree 206/2005 (known as “Codice del consumo”) states that the seller of any commercial good and/or service is liable to the consumer for any lack of conformity existing at the time of delivery of the goods. The consumer’s rights include the possibility to request, at no extra cost, a conforming good by repair or replacement (unless these solutions are impossible or disproportionate) or a suitable reduction in the price or resolution of the contract. The consumer has the right to request a discount or have the contract cancelled—and the money returned—if: a) repair or replacement is neither impossible nor disproportionate; b) the seller has not completed the solution within a reasonable timescale or replaced the goods within a suitable timescale; c) the replacement or repair carried out previously caused significant inconvenience to the consumer.
The principle of lack of conformity can be applied for all goods that a consumer purchases. In the case of food, the consumer is always entitled to take back the product, accompanied by the receipt (to prove the date of purchase), and to request a refund or (more frequently) a different product of the same quality and quantity.
The direct resolution of disputes between buyer and retailer is often the best “strategy” as it saves time and allows consumers to recover the money that has been spent. This is a “shortcut”, however, which does not always solve the root of a problem. The “legal” procedure is to report any anomalies to the authorities, so that they can intervene directly in the store and retrace the entire production chain of that foodstuff. Reporting the matter to the police is extremely useful, for instance, if the fault has already been reported by other persons as this enables a more detailed investigation to be mounted; it is one way for the authorities to establish if the incident was a random case or if it was part of a more widespread problem that could affect the entire distribution chain.
The authorities most frequently contacted for food irregularities are the local health authority (ASL), which includes the prevention services (SIAN and Veterinary Services), the Carabinieri – NAS (Nucleo Antisofisticazione e Sanità), the Inspectorate “Repressioni Frodi”, the state forestry corps, the port authorities (Capitaneria di Porto, for fish products) and the local police (Polizia Municipale).
What to do if you find a fault in the food you have purchased
1/ Keep the product, even if it has been opened, in its original packaging and in the conditions in which it was purchased (freezer, refrigerator, or cool/dry place).
2/ Keep the receipt that states the date of sale and the place where it was purchased.
3/ Contact the authority that is considered to have primary competence. For example, if there is a problem with the weight, call the Polizia Municipale; if the issue is health-related, contact SIAN of the local health authority.
4/ Give the food and the receipt to the chosen authority. The authorities will carry out inspections and, on the basis of what they ascertain, they will take steps to activate the necessary measures to prevent repetition of the incident and will provide for any sanctions to be issued.