What’s in a Name? Proving Artisanal Claims on Food Products in Italy

Among the voluntary information that often features in the presentation of foodstuffs, indications of the method of manufacture or production play an important role. Expressions such as “artisanal” and “handmade” exert a strong influence on consumers’ purchasing choices and must therefore be used correctly, without any misleading effects. This issue has recently been the subject of several exciting decisions by the Italian authorities, confirming a growing interest in how food products are labelled and advertised.

Article 20 of the Italian Consumers’ Code prohibits unfair commercial practices – ie, commercial practices that are contrary to professional diligence, false, or likely to reasonably distort the economic behaviour of the average consumers they affect or at whom they are aimed. As such, unfair commercial practices in Italy are subject to sanctions that range from EUR5,000 to EUR10 million, depending on the seriousness and the duration of the violation.

Unfair commercial practices also include those referred to as misleading. Article 21 of the Italian Consumers’ Code defines misleading commercial practice as providing information that is untrue or that  – even when factually correct – in any way, including its overall presentation, misleads or is likely to mislead the average consumer with regard to one or more of the main characteristics (eg, advantages, risks, composition, geographical origin, or manufacturing method) of the product that influence the consumer’s choice to make the purchase. A similar prohibition on misleading information is found in Article 2 of the Self-Regulation Code for Commercial Communication.

As regards the food industry, Article 7 of Regulation (EU) No 1169/2011 prohibits any marketing that has a misleading effect on consumers. According to Article 7, food information must not mislead the public “as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production”.

In Italy, the Circular of the Ministry of Productive Activities No 168 of 10 November 2003 specifically addresses the craftsmanship of food products. This stems from the premise that using captions concerning the characteristics of the method of production constitutes a guarantee provided to the consumer on such method but does not, generally, indicate enhanced quality in terms of the finished product’s ingredients, nutrition, chemical–physical and organoleptic characteristics, and hygiene. In other words, an artisan company “cannot transform its legal classification into an element defining the finished products’ quality”.

The above-mentioned principles also apply to the brand name reported on the products’ packaging. According to established case law (eg, the AGCM’s ruling of 3 February 2015 against ICA Foods), the fact that a marketing claim also constitutes a registered brand name does not per se exclude the possibility that the claim could be deemed misleading. Therefore, as with other information provided via the advertising and presentation of foodstuffs, the trade name must not be misleading “as to the method of manufacture or production” of the product.

Concrete examples of the principles outlined here can be found by analysing the reasoning behind various decisions on craftsmanship claims, as well as the consequences that these decisions have had for operators – paying particular attention to the most recent rulings by the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato, or AGCM) and the Italian Advertising Self-Regulation Jury (the “Self-Regulation Jury”).

When presented alongside products of clear industrial origin, indications such as “handcrafted”, “handmade” and “hand-cooked” were found to be immediately likely to suggest an entirely handcrafted manufacturing process, which – compared with industrial processing – evocatively produces a clearly more desirable choice for consumers. According to AGCM case law, a product’s craftsmanship claim is not contingent on the legal classification of a business concern or the legal form adopted by a manufacturing company. Therefore, any assessment of messages such as “artisan methods” and “handmade speciality” must depend on the extent to which humans contribute to the use of traditional methods and utensils within the production system adopted by the advertiser.

In the cases examined by the AGCM concerning fried potato crisps packaged in bags, the indications “artisan”, “handmade” and “hand-fried” were proven factually false – not only on account of the legal form of the companies, but also based on the statements given by the companies with regard to the industrial methods of production (notwithstanding the asserted greater contribution from workers). Therefore, in light of the evidence gathered, these marketing claims were found to be substantially “misleading and likely to lead the consumer away from an informed commercial choice […] to believe that said potato crisps are an artisan product, where – in reality – they only replicate an artisan ‘method’, though they are manufactured industrially” (see, in particular, the AGCM’s rulings against Italian crisp manufacturers Pata, Amica Chips and ICA Foods in February 2015 ).

One case concerning the issue of artisanal claims was, however, reopened. The Council of State departed from the Lazio Regional Administrative Court Judgment No 12707/2015, which had previously upheld the ruling by the AGCM on the misleading character of the indication printed on “Pata”-branded potato crisp bags. With Judgment No 2979 of 8 May 2019, the administrative judges of the Council of State held that the use of the “artisan” adjective – rather than misleading by generating confusion – actually reflected the specific production method, which differed from other production lines (as ascertained through inspections by the Local Health Authority of Mantova). The industrial production of “Pata” potato crisps did, in fact, replicate the phases of the artisanal processing method; therefore, the manufacturers were entitled to use said claim.

In contrast with the line previously taken in case law, this decision introduces the possibility of a more flexible use of artisanal marketing claims within the scope of the larger retail sector. Nonetheless, the judgment still tethers this specific choice of wording to circumstances and elements that are both objective and provable (and, of which, operators must provide suitable evidence where needed).

The matter of artisanal claims was revisited even more recently in a case concerning Findus’ “Croccole” line of frozen fish products. By Decision No 56/2019 of 15 October 2019, the Self-Regulation affirmed that the use of the term “artisan” for industrial products is not misleading only when the production system follows stages that replicate an artisan production method, using manufacturing and technological procedures that differ from those traditionally employed in large-scale production. It is then up to producers to demonstrate the presence of the necessary elements that would allow them to make artisanal claims in labels and advertisements.

The principles discussed in this article and their interpretation throughout case law reflect a significant and growing interest in issues connected with “soft” claims in advertising and, specifically, in indications concerning the production methods used for food products.

Within this legal framework, expressions such as “artisan” or “handmade” are not prohibited per se – even when they are included in a business’ registered brand name. However, by virtue of the legislative rules for the protection of consumers and provision of fair information to the public, such claims must be appropriately justified and demonstrated in the event of objections raised. Only then will the use of said wording be reserved exclusively for product lines that employ a production method that genuinely differs from strictly industrial, large-scale manufacturing methods.