Public – private interconnections - Quasi-states? The unexpected rise of private food law

The emergence of a concept

2. Quasi-states? The unexpected rise of private food law

3.14 Public – private interconnections

Private schemes are not only interconnected among themselves, but also with public law. The vast majority of private certification schemes refers to public law requirements that have to be complied with. Less common but also existing is the inverse where public law provisions require compliance with private schemes (Textbox 3.3 and 3.4).⁹⁹ Legislation on community reference laboratories or on methods of sampling refer to private law technical standards.

98 For a detailed analysis of private regulation of the Dutch dairy sector see Chapter 16 by Maria Litjens, Harry Bremmers and myself.

99 On this issue see Chapter 15 by Irene Scholten-Verheijen, National public sector and private standards.

Textbox 3.2. Dutch HACCP on application of other schemes.

HACCP Certification Regulations 2006 Article 4

Where these regulations do not stipulate any other requirements with respect to the HACCP certification process, the certification bodies have to apply the procedures set in force for the certification of quality systems, that are accredited on the basis of EN 45012 or ISO/IEC Guide 62, excepting article 3.3. of ISO/IEC Guide 62. This article is replaced by article 5.3 of ISO/IEC Guide 66:1998.

With the information/application phase of the certification process, these regulations have to be submitted by the certification body to anyone requesting HACCP certification in accordance with clause 3.1.1.1 of EN 45012:1998 and ISO/IEC Guide 62:1996.

Textbox 3.3. The official controls regulation referring to private CEN standards.

Regulation 882/2004 Article 11

Methods of sampling and analysis

1. Sampling and analysis methods used in the context of official controls shall comply with relevant Community rules or,

(a) if no such rules exist, with internationally recognised rules or protocols, for example those that the European Committee for Standardisation (CEN) has accepted or those agreed in national legislation;

Textbox 3.4. Regulation 2073/2005 on microbiological criteria, in Annex I referring to private EN/ISO standards1. Chapter 1. Food safety criteria Food categoryMicro-organisms/ their toxins, metabolites Sampling-planLimits Analytical reference method Stage where the criterion appliesncmM 1.1. Ready-to-eat foods intended for infants and ready-to-eat foods for special medical purposes

Listeria monocytogenes 10 0 Absence in 25 g EN/ISO 11290-1 Products placed on the market during their shelf-life 1.2. Ready-to-eat foods able to support the growth ofL. monocytogenes, other than those intended for infants and for special medical purposes

Listeria monocytogenes 5 0 100 cfu/gEN/ISO 11290-2Products placed on the market during their shelf-life 5 0 Absence in 25 g EN/ISO 11290-1Before the food has left the immediate control of the food business operator, who has produced it 1.3. Ready-to-eat foods unable to support the growth ofL. monocytogenes, other than those intended for infants and for special medical purposes Listeria monocytogenes 5 0 100 cfu/g EN/ISO 11290-2Products placed on the market during their shelf-life 1 EC, 2005. Commission Regulation (EC) No 2073/2005 of 15 November 2005 on microbiological criteria for foodstuffs. Official Journal of the European Union L 338, 22/12/2005: 1-26.

The anatomy of private food law

Yet another public law approach to private regulation is where legislation imposes upon stakeholders the duty to regulate for themselves. The most notorious example is the HACCP requirement in Regulation 852/2004. The very essence of HACCP is that a business sets up rules for its own processes. In the case of HACCP it is not a voluntary choice but a public law obligation that will be enforced by public authorities. Such situations are known as imposed self-regulation or enforced self-regulation. An alternative for the application of HACCP, is the application of a hygiene code. The expression hygiene code is used to refer to the national or community guides of good practice.¹⁰⁰ Member states approve the national guides. In this way this form of private regulation acquires status under public law. Compliance with the private standard is deemed to imply compliance with the legal HACCP requirement.

Some food safety inspection agencies acting on the basis of risk based policies reduce the intensity of inspections for businesses operating under private schemes that are trusted to provide good results in ensuring food safety.¹⁰¹ They mainly limit themselves to an assessment of the quality of the private scheme. Such controls of the quality of private control schemes are known as meta-controls.¹⁰² Finally we find examples where public authorities partake in private standard setting to achieve objectives in foreign countries that could not be achieved by means of public law instruments. Hospes for example analyses principles formulated by Dutch authorities for the sustainable production of biomass (in countries such

100 Articles 8 and 9 of EU, 2004. Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs, Official Journal of the European Union L 139, 30/4/2004: 1-54.

101 The official controls regulation (882/2004) takes such practices into account in Article 27(6): When, in view of own-check and tracing systems implemented by the feed or food business as well as of the level of compliance found during official controls, for a certain type of feed or food or activities, official controls are carried out with a reduced frequency or to take account of the criteria referred to in paragraph 5(b) to (d), Member States may set the official control fee below the minimum rates referred to in paragraph 4(b) (…).

EU, 2004. Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules. Official Journal of the European Union L 65, 30/4/2004: 1-141.

102 The Dutch ministry of agriculture is strongly in favour of such policies. Publications on this topic with a summary in English language are for example: Bondt, N., Deneux, S.D.C., Van Dijke, I., De Jong, O., Smelt, A., Splinter, G., Tromp, S.O. and De Vlieger, J.J., 2006. Voedselveiligheid, ketens en toezicht op controle. Rapport 5.06.01, LEI, The Hague, the Netherlands; Beekman, V., Kornelis, M., Pronk, B., Smelt, A. en Teeuw, J., 2006. Stimulering eigen verantwoordelijkheid. Zorgen dat producenten en consumenten zorgen voor voedselveiligheid, Rapport 5.06.05. LEI, The Hague, the Netherlands; De Bakker, E., Backus, G., Selnes, T., Meeusen, M., Ingenbleek, P. and Van Wagenberg C., 2010. Nieuwe rollen, nieuwe kansen? Een programmeringsstudie voor toezicht op controle in het agro-foodcomplex.

Rapport 6.07.08. LEI, The Hague, the Netherlands.

as Brazil).¹⁰³ These principles are operationalised through private certification schemes. The Netherlands consider requiring certification as condition for the import of biofuels.

3.15 Motives

What are the driving forces behind private food law? Probably they are too numerous to provide an exhaustive overview and motives may differ from stakeholder to stakeholder, but at least some points can be identified.

The motive mentioned in most private food schemes is food safety. Food safety is important for the protection of consumers, to comply with consumers wishes and also to comply with public law requirements.

Compliance with public law requirements can be a motive in itself.¹⁰⁴ To comply with their own legal obligations, businesses depend on how the product has been dealt with upstream. Therefore they may want to ensure themselves with private law instruments that legal obligations are being complied with, or to impose these obligations on producers working in countries where different legal requirements apply, thus using private law to bridge the gap between different legal systems.

Connected to compliance is liability. On the one hand businesses may try to pass on liability to other links in chain (some require insurance and guarantees from producers), on the other hand explicit agreements are a way to show that everything possible has been done to avoid non-compliance. In civil and criminal cases this may be used in what – in the UK – is called a due diligence defence.

Further private law is used to discourage the legislator from taking charge. If businesses solve problems there will be less urgency for the legislator to intervene.

Businesses prefer private law to public law as it reflects their own wishes better and it is easier to change if the need arises. Also private law can be used to supplement or repair public law. For example public law on traceability (Article 18 of Regulation 178/2002) is lacking in certainty whether internal traceability

103 Hospes, O., 2009. Regulating biofuels in the name of sustainability or the right to food? In: Hospes, O. and Van der Meulen, B. (eds.) 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, pp. 121-135. See for another example of the use of private schemes by public authorities to influence behaviour abroad, Chapter 7 in this book.

104 Empirical research shows that private standards are helpful in complying with public law requirements. The explaining factor is probably the embeddedness of private standards in audit schemes that provide feedback on performance. See Van der Meulen, B., 2009. Reconciling food law to competitiveness. Wageningen Academic Publishers, Wageningen, the Netherlands.

The anatomy of private food law

(within a business) is required.¹⁰⁵ ISO 22.000 explicitly requires internal traceability.

While EU legislation exempts the primary sector from HACCP, private schemes such as GlobalGAP impose it on this sector as well.

On the basis of Regulation 882/204, official controls should be risk based and control intensity can be related to compliance history. As discussed above, certification may be an instrument to convince inspection agencies that the level of compliance is high and therefore the urgency for official controls low.¹⁰⁶

Private standards that go beyond compliance, that is to say apply higher safety and/or quality standards than public law,¹⁰⁷ may help a business to distinguish itself on the market and acquire a share of the (top end) market. Or, to phrase a similar thought differently, raising standards may be used to protect markets from competitors.

Finally moral considerations such as religion and corporate social responsibility is a driving factor of private regulation. With a view to showing their commitment to contributing their part to sustainable development, businesses bind themselves to private schemes that elaborate on these interests.

3.16 Examples

In the next sections some examples are presented of the private schemes that currently seem to be leading on the market.¹⁰⁸ The discussion of the examples focuses mainly on the content of the standards and less on the governance and certification structure of the schemes. The objective of these examples is to make, in addition to the structure set out above, the content of private food law more concrete. The examples have all been taken from the area of private food safety

105 The Standing Committee on the Food Chain and Animal Health has published a more or less official interpretation of the General Food Law, where they argue that ‘the Regulation does not expressly compel operators to establish a link (so called internal traceability) between incoming and outgoing products. Nor is there any requirement for records to be kept identifying how batches are split and combined within a business to create particular products or new batches’. See EU, 2010. Guidance on the Implementation of Articles 11, 12, 14, 17, 18, 19 and 20 of Regulation (EC) N° 178/2002 on General Food Law. Conclusions of the standing committee on the food chain and animal health. Available at:

http://ec.europa.eu/food/food/foodlaw/guidance/guidance_rev_8_en.pdf.

106 On the stacking of private and official controls see: Van der Meulen, B.M.J. and Freriks, A.A., 2006.

Millefeuille. The emergence of a multi-layered controls system in the European food sector. Utrecht Law Review 2(1): 156-176.

107 According to Article 5.2(3) of the EU best practice guidelines for voluntary certification schemes for agricultural products and foodstuffs, it should be clearly indicated where this is the case. EU, 2010.

Commission Communication – EU best practice guidelines for voluntary certification schemes for agricultural products and foodstuffs. Official Journal of the European Union C 341, 16/12/2010: 5-11.

108 The overview is based on the information provided by the owners of these schemes. No critical comparison is intended at this stage of the research. A more elaborate overview can be found in Chapter 4 by Theo Appelhof and Ronald van den Heuvel.

law. As we have seen above, many other areas of concern are covered by private food law as well.

Public law requirements on food businesses can be distinguished¹⁰⁹ in rules regarding the product (vertical standards, market approval requirements for certain ingredients and safety objectives in the form of maximum levels of contaminants and residues), rules regarding the process (hygiene, traceability and incident management), rules regarding the presentation (labelling and advertisement) and public powers (enforcement and incident management by authorities). In private food law we find similar ingredients, but in a different mix (see Figures 3.3 and 3.4). Product related rules mainly concern safety and quality objectives. Rules on the process (hygiene, traceability and risk management) are the core. Labelling provisions will usually be limited to the use of the certification mark. The place public powers of inspection and enforcement hold in public food law, in private food law is taken by the powers granted by the businesses themselves to the auditors and certifiers. The most important additions to the types of food rules we have encountered in public law, are provisions governing business organisation and management systems including management commitment and provisions on information sharing within the food chain (so-called chain transparency).¹¹⁰ My first impression in comparing private standards to legislation is that the drafting is done sloppily. It seems that lawyers experienced in drafting legislation are not involved. Nevertheless, stakeholders seem to understand the meaning of private standards better than they do legislation.¹¹¹ Maybe this can be explained by a different attitude towards private standards than towards legislation. Private standards have their place within a business relation that stakeholders intend to continue. This is a strong motivator to understand private standards the way they are meant. In case of legislation by contrast, misunderstanding may justify non-compliance to what the legislator envisaged. Lawyers are trained to search

109 For this approach see: in general Van der Meulen, B. and Van der Velde, M., 2008. European Food Law Handbook. Wageningen Academic Publishers, Wageningen, the Netherlands; and in particular: Van der, Meulen, B.M.J., 2009. The system of food law in the European Union. Deakin Law Review 14(2): 305-339.

Seealso: Van der Meulen, B. and Van der Velde, M., 2010. The general food law and EU food legislation.

In: Oskam, A., Meester, G. and Silvis, H. (eds.) EU Policy for agriculture, food and rural areas.

Wageningen Academic Publishers, Wageningen, the Netherlands, pp. 211-224.

110 On private schemes, see: Van Plaggenhoef, W., Batterink, M. and Trienekens, J.H., 2003. International trade and food safety. Overview of legislation and standards. Wageningen University, Wageningen, the Netherlands; Chia-Hui Lee, G., 2006. Private food standards and their impacts on developing countries.

European Commission, DG Trade Unit G2; Will, M. and Guenther, D., 2007. Food quality and safety standards, as required by EU law and the private industry with special reference to the MEDA countries’

exports of fresh and processed fruits & vegetables, herbs & spices. A practitioners’ reference book. 2^nd edition GTZ 2007; OECD, 2006. Working party on agricultural policies and markets, final report on private standards and the shaping of the agro-food system.

111 On this topic see: Van der Meulen, B., 2009. Reconciling food law to competitiveness. Report on the regulatory environment of the European food and dairy sector. Wageningen Academic Publishers, Wageningen, the Netherlands.

The anatomy of private food law

for alternative meanings within the wording of the law, an attitude that would mean the end of the business relation if it were applied to contractual provisions prior to a conflict.

Interests of Consumers

Framework of analysis for European Food Law

Requirements for food Businesses

- MRLs (pesticides; veterinary drugs) - Contaminants

- I.e. food contact materials Executive tasks

- Scientific risk assessment (EFSA) - Implementing measures (EC/MS)

- Administrative (injunctions, fines) (MS)

- Criminal (fines, prison) (MS) - EU second line inspections on MS

enforcement (FVO)

Figure 3.3. Possible framework for the analysis of EU (public) food law.

Im Dokument Private food law (Seite 86-93)