Food law

Private food law positions itself in different ways under the wider umbrella of ‘food law’. In the following subsections I will discuss its place with regard to agricultural law and the different other parts of food law.

10 Lady Justice; the Roman goddess of justice.

Figure 1.1. Symbols of Justitia (left) and Private law (right). Images found at: http://www.

floridaadr.com/ and FreeDigitalPhotos.net (Nutdanai Apikhomboonwaroot). Used with the website’s owners consent.

Private food law

1.4.1 Agri-food law

The scope of the private schemes discussed in this book includes the food chain from farm to fork; from feed ingredients to retail. In particular schemes such as GlobalGAP and SQF 1,000 address primary production. Sometimes a distinction is made between ‘food law’ on the one hand and ‘agricultural law’ on the other.

This distinction is not a watershed however. Food and agricultural law overlap in that the food chain (or agri-food chain) fully includes primary production of food. Thus this primary production of food is fully within the scope of food law.

Agricultural law covers the legal aspects of everything related to the primary sector including the production of feed and food at the farm.

Many of the questions addressed in this book are just as relevant for the primary sector as they are for (industrial) production and retail. Our choice of the label

‘private food law’ by no means implies the claim that our topic is exclusively part of food law. It is just as well agricultural law and a case within regulatory law more in general.

1.4.2 Another level of food law?

The concept ‘food law’ is multi-level. It encompasses different topics and different levels. Among the topics corner stones are food safety, food security and food trade.¹¹ These topics are addressed by national law, regional law such as EU law and by international law. Arguably private food law is another level in addition to these three. Figure 1.2 attempts a graphic representation. It positions international

11 I elaborated this opinion in Van der Meulen, B.M.J., 2004. The right to adequate food. Food law between the market and human rights. Elsevier, The Hague, the Netherlands.

Food trade Food safety

Food security

Food Law

Rights and regulation

International

National Regional

Business Consumer Public sector

Private sector

Figure 1.2. The pyramid of food law.

food law at the top of a pyramid. International food law is the law on food as developed by the UN, the WTO, FAO, WHO, the Codex Alimentarius Commission and other international organisations. The WTO places emphasis on trade, the Codex Alimentarius on safety and FAO on food security. The three issues come together – therefore the pyramid shape – in the human right to adequate food, where the concept of adequacy combines availability with protection from harm, thus security via trade and otherwise with safety.¹²

International food law provides models and requirements for the other levels such as the regional level.¹³ In the EU this regional level places requirements on the national level that are strict to the point of being mandatory for the national legislators. In this situation the distinction between regional and national is of limited significance. Should we for example consider food law of the United States – a federal state instead of a union of sovereign states – more akin to EU or to member state food law? Should we consider it regional or national? The national level in turn incorporates decentralised levels.

The figure goes on to place the private sector below these public law layers.

This positioning only to a limited extent is hierarchical or geographically more focussed. For the public law layers one could argue in favour of the pyramid’s tip to point downwards instead of upwards to indicate increased geographic scope.

Private food law does not by its nature have a geographic orientation. In practice it can be very international and very independent but often it has to comply with mandatory requirements from several of the public law layers.

Figure 1.2 tentatively distinguishes the private sector in a business level and a consumer level. The topic of this book resides in the business level, the fourth layer marked in grey. I am not entirely sure that a consumer level (fifth layer) holds an independent place in food law. The role of consumers in the process of regulation seems limited. In some private standards retailers claim to express and channel the desires of consumers. Sometimes consumers or NGOs are heard in the setting of public or private regulations but not to the extent that I can see an independent consumer layer of food law emerging. Figure 1.2 can be read to suggest that the consumer layer, may not be a layer of regulations but of rights.

After all does not food law revolve around consumer protection and consumers’

rights? I doubt if it does. If I look from the European perspective, regrettably I do not see many countries committing to the human right to food to the extent that individual citizens can hold their governments accountable in a court of law

12 On the human right to adequate food see: Hospes, O. and Hadiprayitno, I. (eds.), 2010. Governing food security. Law, politics and the right to food. Wageningen Academic Publishers, Wageningen, the Netherlands.

13 On international food law see Van der Meulen, B.M.J., 2010. The global arena of food law:

emerging contours of a meta-framework. Erasmus Law Review 3: 217-240. Available at: http://www.

erasmuslawreview.nl/files/the_global_arena_of_food_law.

Private food law

for living up to their obligations.¹⁴ Also EU food law imposes many obligations upon businesses but hardly grants individual consumers any corresponding rights towards these businesses or participation rights towards the institutions.¹⁵ Food law may protect consumers, it does not seem to empower them in any serious legal way.¹⁶ At best it gives content to rights consumers can uphold in a court of law which rights they derive from other sources such as product liability law. A food unsafe by legal definition is very likely to qualify as ‘defective’ in the sense of product liability law.

So this figure of food law is tentative in several ways. I am convinced that food trade, food safety and food security are rightfully positioned as ribs marking the

14 On this issue see for example, Van der Meulen, B. and Hospes, O. (eds.), 2009. Fed up with the right to food. The Netherlands’ policies and practices regarding the human right to adequate food. Wageningen Academic Publishers, Wageningen, the Netherlands.

15 Article 9 of the General Food Law, Regulation (EC) 178/2002 only requires the public to be consulted.

EU, 2002. Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. Official Journal of the European Union L 31, 1/2/2002: 1-24.

16 It may empower in an economic way in that it endeavours to ensure availability of information that makes informed choice possible.

Types of food law Level

International food law Global

EU

Food Law Regional

MS MS MS MS National

Private food law Business

Model, obligation and limitation Model

MS Member state Figure 1.3. Multi-layered food law.

cornerstones. But, should it be a pyramid? If so should it taper above or below?

Should there be four or five layers? Whatever the answers to these questions, I believe that this book contributes to proving that private food law provides a layer in its own right of a status comparable to the layers of public food law.

Maybe Figure 1.3 is less ambitious in depicting the relations and for this reason more acceptable. It shows international food law as inspiring both public and private food law and additionally making requirements on public food law (at regional and national level). In this book we see that private regulation adopts models from the Codex Alimentarius (mainly the HACCP concept) and thus is inspired by international food law. See Chapter 5 by Spencer Henson and John Humphrey. It seems to escape, however, the limits the WTO places on measures that may provide barriers to trade. See Chapter 6 by Marinus Huige. The influence private food law experiences from public (national and regional) law is much stronger. Just as the influence public food law experiences from international food law is stronger. The geographic scope of private food law may, however, be wider than the scope of national or regional food law. In this way it may connect different national systems of public food law and even export requirements from one system to businesses working within the jurisdiction of another.

So if we claim a certain level of autonomy for private food law, this in no way implies it to be disconnected from the other areas of food law.

1.4.3 International and national law

The effects of the global and regional level of food law may differ for countries depending on their membership to international organisations and ratification of international treaties. Most chapters in this book – but not all – take an EU perspective both on international and regional food law. For the global level this means membership of WTO and Codex Alimentarius, for the regional level this means applicability of EU food law. The national level differs among the contributions. We find connections to the Netherlands in Chapter 11 by Esther Brons-Stikkelbroeck, Chapter 12 by Tetty Havinga, Chapter 14 by Lomme van der Veer, Chapter 15 by Irene Scholten-Verheijen, Chapter 16 by Maria Litjens, Harry Bremmers and myself, and to a lesser extent Chapter 4 by Theo Appelhof and Chapter 7 by Otto Hospes. We find connections to Germany in the chapters by Hanspeter Schmidt (Chapter 13) and Fabian Stancke (Chapter 17), to Italy in the chapters by Ferdinando Albisinni (Chapter 9) and Alessandro Artom (Chapter 10), to the United States in Chapter 12 by Tetty Havinga, to Kenya, Ghana, Thailand and Macedonia in Chapter 8 by Margret Will and to Indonesia in Chapter 7 by Otto Hospes.

Private food law