Key aspects of the Italian regulation on the environmental labelling of packaging
Not only France, whose environmental labelling regulation has gained a general notoriety in light of the letter of formal notice sent by the European Commission, but also Italy, as businesses and legal experts operating on the Italian market shall have already noticed, has enacted relevant provisions concerning the environmental labelling of packaging. The general purpose of the regulation, contained in Legislative Decree 152/2006, is to facilitate the collection, reuse, recovery, and recycling of packaging placed on the Italian market.
Provisions on packaging environmental labelling have been in force since January 1st, 2023, after a long transitional period resulting from multiple postponements of the entry into force of the regulation.
The legislative provisions are particularly synthetic and should be read together with the technical guidelines adopted by the once called Ministry for the Ecological Transition (MiTE, currently Ministry of environment and energy security), which contain most of the relevant observations and good practices elaborated also by the CONAI (Italian National Packaging Consortium). The MiTE guidelines have been long awaited and have been finally published in November 2022.
Environmental labelling regulation applies to packaging placed on the Italian market by any company operating on the B2B and/or on the B2C channel. However, as clarified in the MiTE guidelines, packaging destined for the B2B channel will only need to bear the indication of the material of composition of the packaging in accordance with the codification provided by the Directive 97/129 CE, whilst B2C packaging must also bear information for consumers on the final destination of packaging in order to facilitate correct disposal.
Unlike other regulators, the Italian legislator has not imposed a specific sign or modality to provide the relevant composition and sorting information.
Therefore, companies are free to devise their labels, adopting more visual indications or recurring to mere textual information, as long as the information is provided in a clear and easily accessible way.
The MiTE guidelines allow the general use of digital tools to provide environmental labelling information required by the law, giving the possibility for companies to devise “digital” environmental labels and make available the information to other companies and consumers through digital tools such as QR codes, apps, bar codes and website. Concerning this, there is already a flourishing market of technology providers that support companies in the design of the labels and the modalities of provision of the information. At the same time, a concrete legal expertise remains necessary to guarantee the correct interpretation of the regulation and of legislative or administrative acts pertaining the environmental labelling.
Should companies decide to use QR codes or other digital systems to provide mandatory information to consumers, information on how to access the environmental labelling must be provided. In this regard, the MiTE guidelines provide that indications on how to access to the mandatory information can be provided on the packaging or at the point of sale, or, alternatively, through traditional or digital communication channels, initiatives or campaigns promoted by companies or with the collaboration and contribution of representative trade associations.
It is worth noting that the European Commission, in its comments to the draft guidelines, stressed the importance of allowing the provision of the mandatory information through digital tools as an alternative to physical labeling, highlighting that a national provision requiring the physical/material affixing of the labeling aimed at describing rules for disposal of products in Italy could constitute an obstacle to the free movement of goods.
The possibility of using digital means and how to exploit such opportunity better is just one of the relevant issues arising with respect to the newly enacted provisions. For example, it should be noted that the Italian legislator has expressly provided that companies can continue to sell their packaging not complying with the new labeling requirements until the stocks are exhausted, as long as such packaging was either placed on the market or labeled before 31 December 2022.
However, some uncertainty persists on how to unequivocally prove such circumstances in case of sanctions from the competent authorities, as it is still too early to know the inspective practices of the competent authorities thoroughly.
Speaking of the enforcement of the regulation, another grey area that will be clarified only by means of the analysis of the enforcement practices of the Authorities and of the early decisions of the judiciary concerns the regime of “shared responsibility” among the parties of the supply chain.
Due to this lack of clarity concerning the companies responsible for any possible violation, operators might consider the inclusion of appropriate dispositions which allocate the “internal” responsibility in agreements with the other members of the supply chain involved in the commercialization.
Furthermore, the matter is in continuous development also with respect to the possible field of application of the regulation. Indeed, the competent ministry has recently adopted some administrative acts which appear to exclude the applicability of the regulations to specific categories of products (for example, tires).
The role of lawyers remains therefore pivotal in understanding the obligations to comply with and the most effective solutions considering the client’s needs. Provisions need indeed to be accurately interpreted to avoid incurring administrative sanctions ranging from EUR5,000 to EUR25,000 and the relevant damages to the reputation and prestige of the sanctioned company, also taking into account the “social” aspect related to the provisions.
The amount of the abovementioned sanction will be determined on the basis of general criteria provided by Italian law concerning administrative sanctions, which include the material extent of the violation, the work carried out to eliminate or mitigate the consequences of the breach of the labelling obligations, the economic conditions of the infringer.
While we wait for further developments on this topic, curiosity rises with respect to the material enforcement of the provisions and the interpretations which will be adopted both by the enforcement authorities and the judiciary.