The emergence of a concept
2. Quasi-states? The unexpected rise of private food law
3.24 Public law on private food law
3.25.2 SPS Agreement
The Agreement on the application of Sanitary and Phytosanitary measures (the SPS Agreement) deals with measures aiming to protect health of humans, animals and plants. Such measures are acceptable if the do not go beyond what is necessary and do not constitute disguised trade barriers. Measures to protect food safety are by definition SPS measures.
Some members of the WTO believe that private standards are within the ambit of the SPS Agreement and furthermore do not conform to the requirements. St.
Vincent and the Grenadines, supported by Jamaica, Peru, Ecuador, and Argentina, complained that ‘EurepGAP’ SPS standards imposed by the Euro-Retailer Produce Working Group, composed primarily of food retailers, were more strict than EU governments’ requirements. Referring to Article 13 of the SPS Agreement, which says that member governments ‘shall take such reasonable measures as may be available to them to ensure that non-governmental entities within their territories (...) comply with the relevant provisions of this agreement,’ these countries argue that only the public law EU rules should apply to the private sector (Textbox 3.8).136 So far it is believed that Article 13 of the SPS Agreement aims at entities that in reality are governmental in a private law guise. The text, however, leaves room for the interpretation that it also applies to ‘real’ private actors, in particular when they take on the role of regulator traditionally reserved for governments.137 From a
135 29-30 meeting of the Committee on Sanitary and Phytosanitary (SPS) Measures.
136 See ICTSD Bridges weekly news digest Volume 9 Number 24 6 July 2005 and Volume 7 Number 13, 6 July 2007.
137 As we have seen above governments may participate in the formulation of private standards aiming to influence behaviour abroad. In such situation it is less evident that private standards originate from
‘real’ private actors and applicability of the SPS Agreement becomes likely, even in its more limited interpretation
legal point of view there is a fundamental difference between the situation where a product may not be brought to the market (because it does not comply with public law requirements) and the situation where a product legally brought to the market is not bought by its intended customers (because it does not comply with these customers’ private law requirements). From an economic point of view and for all practical purposes these two situations amount to the same thing where the customers concerned dominate the market.
This discussion pinpoints a weak aspect of private food law. It seems at present underdeveloped in checks and balances.138
3.26 Conclusions
The content of private food safety schemes, just as public food safety law, is based on HACCP. The private sector is in the process of achieving what the public sector never could: world wide harmonisation of food safety standards.
The underlying legal structure is straight forward. Contractual requirements – flanked with instruments from (intellectual) property and business law – are used by dominant players in the food chain to impose ‘voluntary’ requirements on all players upstream, regardless in which country they are situated. Contractual requirements, audits and certification can be applied across national borders. In this sense, private food law is more global than international food law (such as the
138 See Chapter 6 by Marinus Huigen for more detail on this topic.
Textbox 3.8. Article 13 SPS Agreement.
Article 13 Implementation
Members are fully responsible under this Agreement for the observance of all obligations set forth herein. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of this Agreement by other than central government bodies. Members shall take such reasonable measures as may be available to them to ensure that non-governmental entities within their territories, as well as regional bodies in which relevant entities within their territories are members, comply with the relevant provisions of this Agreement. In addition, Members shall not take measures which have the effect of, directly or indirectly, requiring or encouraging such regional or non-governmental entities, or local governmental bodies, to act in a manner inconsistent with the provisions of this Agreement. Members shall ensure that they rely on the services of non-governmental entities for implementing sanitary or phytosanitary measures only if these entities comply with the provisions of this Agreement.
The anatomy of private food law
SPS Agreement and the Codex Alimentarius). International (public) food law does not govern behaviour of stakeholders, but sets a meta-framework for (national) food law that in turn applies to stakeholders’ behaviour.139 Private food law does govern stakeholders’ behaviour and in this sense private food law is more law than international food law.
References
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. Available at: http://
www.lei.wur.nl/NL/publicaties+en+producten/LEIpublicaties/?id=786.
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. Available at: http://
www.lei.wur.nl/NL/publicaties+en+producten/LEIpublicaties/?id=704.
Bergsma, N., 2010. Voedselveiligheid: certificatie en overheidstoezicht, Praktijkgids Warenwet.
Sdu, The Hague, the Netherlands.
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. Available at: http://www.lei.dlo.nl/publicaties/PDF/2006/5_
xxx/5_06_01.pdf.
Bunte, F., Van Galen, M., De Winter, M., Dobson, P., Bergès-Sennou, F., Monier-Dilhan, S., Juhász, A., Moro, D., Sckokai, P., Soregaroli, C., Van der Meulen, B. and Szajkowska, A., 2011.
The impact of private labels on the competitiveness of the European food supply chain.
Publications Office of the European Union, Luxembourg, Luxembourg. Available at: http://
ec.europa.eu/enterprise/sectors/food/files/study_privlab04042011_en.pdf.
Chia-Hui Lee, G., 2006. Private food standards and their impacts on developing countries.
European Commission, DG Trade Unit G2. Available at: http://trade.ec.europa.eu/doclib/
docs/2006/november/tradoc_127969.pdf.
Codex Alimentarius, 2009. Basis texts on food hygiene, 4th edition. FAO, Rome, Italy. Available at: ftp://ftp.fao.org/codex/Publications/Booklets/Hygiene/FoodHygiene_2009e.pdf.
EU, 1985. Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. Official Journal of the European Union L 210, 7/8/1985: 29-33.
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.
EU, 2003. European Parliament, Council and Commission. Interinstitutional agreement on better law-making. Official Journal of the European Union C 321, 31/12/2003: 1-5.
139 See: Van der Meulen, B., 2010. The global arena of food law: emerging contours of a meta-framework.
Erasmus Law Review 3(4).
EU, 2004a. 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.
EU, 2004b. 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.
EU, 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.
EU, 2008. Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93. Official Journal of the European Union L 218, 13/8/2008: 30-47.
EU, 2010a. 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.
EU, 2010b. European Parliament, Council and Commission. The interinstitutional agreement on better law-making. Official Journal of the European Union C321, 31/12/2003: 1-5.
EU, 2010c. Standing Committee on the Food Chain and Animal Health. 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.
FAO, 2003. Committee on agriculture, development of a framework for good agricultural practices, Seventeenth Session, Rome, 31 March-4 April 2003. Available at: http://www.fao.
org/docrep/meeting/006/y8704e.htm.
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.
Luning, P.A., Marcelis, W.J. and Jongen, W.M.F., 2009. Food Quality Management. A techno-managerial approach. Wageningen Academic Publishers, Wageningen, the Netherlands.
OECD, 2006. Working party on agricultural policies and markets, final report on private standards and the shaping of the agro-food system. Available at: http://ec.europa.eu/food/
international/organisations/sps/docs/agr-cd-apm200621.pdf.
Van der Meulen, B., 2009a. Reconciling food law to competitiveness. Report on the regulatory environment of the European food and dairy sector. Wageningen Academic Publishers, Wageningen, the Netherlands.
Van der, Meulen, B.M.J., 2009b. The system of food law in the European Union. Deakin Law Review 14(2): 305-339.
Van der Meulen, B., 2010a. The function of Food Law. On the objectives of food law, legitimate factors and interests taken into account. European Food and Feed Law Review 5(2): 83-90.
Van der Meulen, B., 2010b. The global arena of food law: emerging contours of a meta-framework. Erasmus Law Review 3(4). Available at: http://www.erasmuslawreview.nl/
files/the_global_arena_of_food_law.
The anatomy of private food law
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.
Van der Meulen, B. and Van der Velde, M., 2008. European food law handbook. Wageningen Academic Publishers, Wageningen, the Netherlands.
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.
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.
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. 2nd edition GTZ 2007. Available at: http://www2.gtz.de/dokumente/bib/07-0800.pdf.
4. Inventory of private food law
Theo Appelhof and Ronald van den Heuvel140