Versione inglese del precedente articolo: “sicurezza alimentare e rischi per la salute pubblica”
In Italy the issue of food safety causes a particular attention, because there is a widespread need to protect health when we are “at the table”, that comes from values of a centuries-old culinary popular culture, and also because there is a significant industrial production based on food quality that, despite the difficulties of these times, continues to be an excellence of the “made in Italy”.
The most important legislation about food safety is the art. 440 C.P. ” Adulterazione e contraffazione di sostanze alimentari ” which punishes adulteration and counterfeiting of food substances.
This kind of crime provides a specific risk, which unavoidably requires a test, in order to verify the actual endangerment of public health.
This premise is very important, because it implies that the court has to give a judgment on the merits, and the results are not easy to predict.
Some judgments about this matter enable us to understand the complexity of the crime in question.
In Cass. Pen. Sec. I, of April 28, 2104 n. 38624, “Gli ermellini” faced the case of a farmer who received illicitly and used a harmful drug, when given to thousands of rabbits for breeding.
The drug was the olaquindox, which belongs to the family of “diossichinossaline” and is equipped with a strong chemotherapeutic action that can cause cancer.
For this reason the EC Directive 95/53 and Regulation n. 1998/2788 / EC, forbid the use of it as food additive.
This ban excludes any assessment of the quantity, because today it is not scientifically possible to establish a limit within which this drug is harmless.
For this reason, the Community legislation, through the use of a criterion of precaution, are aimed to prevent that this kind of substance could affect human food.
Starting from this background, the Court, once reconstructed the dynamics of the events occurred (in particular that olaquindox was found into the tanks of the animals at the rate of 0.19 mg / liter, and in the absence of any health or veterinarian surveillance) , ruled that those rabbits were to be considered food in a functional sense, because they were directed to human consumption.
Therefore, the mere exposure to olaquindox of farm animals intended for slaughter, was judged sufficient to integrate the dangerousness required by criminal offense in question and it was irrelevant that there wasn’t effectively any harm for consumers.
So, the sentence pronounced by the Court of Appeal was confirmed.
Few months later, ruling on a similar fact and using the same parameters of evaluation, the Supreme Court decided in another way, with the Judgment n.53747, Sez.I, of 11 November 2014.
The story concerns a breeder, accused of the use of cortisone pharmaceutical steroids on cattles, in such a manner that the consumption of them would have created a danger to public health.
the reasoning of the Supreme Court is based on this problem.
In fact, the judges emphasized that the incriminating rule punishes counterfeiting of foodstuffs intended for trade, only if it takes place danger to public health.
This implies the establishment of a link between consumption and harm to public health, at least based on statistical surveys that are worth to be a relationship between the two facts in terms of probability. ”
However, in this case, this type of verification is arrived in call into question the decision taken in previous instances.
The offending substance was dexamethasone, for which the law imposes the threshold of 2 ppb – parts per billion.
This threshold had been exceeded but, in the opinion of the Court, this simple fact did not allow to identify an injury to public health, because: it was necessary to understand – in order to assess the existence of a real danger to public health – if and how much the mere exceeding of the legal limit made the meat dangerous.
This also because it was common ground that dexamethasone, within some limits, could be present in meat intended for human consumption.
The outcome of this reasoning, the judgment in question was annulled by court.
It is clear that if in the first case there was no scientific knowledge that allowed to identify a safety threshold for the olaquindox, in this second case the Court considered that such an assessment could be carried out about the dexamethasone and therefore could not be considered integrated the offense provided by article. 440 of Italian Criminal Code, considered the absence of a precise scientific knowledge regarding the risks of its use.
it is appropriate to analyze another recent decision of the Supreme Judges.
With Judgement No. 10727, made on 4 February 2015, the Third Criminal Division expressed itself about the case of an entrepreneur who had held for trading, bottles of water in bad state of conservation.
These bottles had been found outside the commercial site, in structures of metal, with plastic sheeting used as closure; the bottles were dusty and exposed to the sun during the day and to the incursions of the animals at night
In this circumstance, the highest court has once again adopted an attitude inspired by strong rigor.
In fact, the judges observed that the mere preservation of food in order to create promiscuous and unprotected integrates the details of this type of violation, even if the products are not actually altered, because this is a crime “danger”, and it is consummated without the effective adulteration or harmful of the products. ”
This approach so strong is understandable because the legislation, in particular the law n. 283/1962, requires to the business owner to take all the precautions necessary to the preservation of its products, both in terms of health and in terms of potential controls.
Therefore, the condemnation of the entrepreneur was confirmed.
The analysis of these judgments confirms the importance of the assessment of merit as to the existence of risks to public health, as well as the singularity of each case has to be analyzed in relation to its specific characteristics.
For these reasons, we should recommend the strict observance of laws and the adoption of prudent criteria in the presence of dubious or otherwise borderline cases.
Gian Marco Pellos
L’articolo è stato originariamente publicato sul sito: www.thelegaljournal.eu