The emergence of a concept
1.6 Topics covered in this book
1.6.1 Introduction
This book provides a rich harvest of aspects of private food law. It enquires into the origin of private food law as it stands today, but also into the crafting of some individual schemes. Some are made by businesses exclusively. Others are the result of a meeting of stakeholders of varying background and interest. The book provides an overview of a wide variety of systems. Thus giving the flavour of the content of private food law. It attempts a legal theory as instrument for analysis. Then it continues to single out specific topics of significance. There is the relation to international food law. Several private standards draw inspiration and content from the Codex Alimentarius. On the other hand, private food law may enter into competition with the Codex as a means for global harmonisation of food law. Some fear that private food law may set trade barriers undoing some of the achievements of the WTO. This is partly a matter of WTO law and partly a matter regarding the makeup of private systems and measures taken for capacity building.
Many private systems place emphasis on product characteristics and on production processes. A classic is the organic standard. While organics are increasingly embedded in public law, new sustainability initiatives emerge. Another challenging area, is the area of religious standards. From a legal perspective they are public in some countries and private in others. From a religious perspective both qualifications may be inadequate as they make their legal significance depend on human agency. A majority of standards, however, addresses more mundane aspects of food quality in general and safety in particular. If this is the ‘inside’ of private food law, the ‘outside’ consists of the external relations of private systems to other private systems.
Table 1.1. Classification of voluntary certification systems for agricultural products and foodstuffs proposed by the European Commission
Type of attestation: Self-declaration Certification (third-party attestation)
Audience: B2C B2C B2B
Objects of specified requirements:
Products and processes
Mostly products (including services) and processes
Mostly management systems
Content of
requirements: Mostly above baseline Mostly above baseline
Baseline and above baseline
Private food law
Apart from product and process, some systems address communication in labelling and advertisement. Public authorities seem reluctant to enforce the ban on misleading the consumers in situations where no more specific rules exist.
Private initiatives can give meaning to what is good and proper in the presentation of products to consumers.
A topic of private regulation that does not have a parallel in public law is the format of businesses. Franchising provides requirements on how businesses are conducted and how they present themselves to the public.
The relation between private food law on the one hand and public (food) law and legislation on the other hand is complicated and divers. Private food law finds its legal bedrock in the national civil codes that provide contract law, sometimes adapted to new challenges such as the use of the Internet, (intellectual) property law, liability law and also in the national court systems to uphold private arrangements.
Many private standards incorporate public food law requirements and some public rules require compliance with certain private standards. Public controls may take the performance of private systems into account. Can public authorities refer to private standards to express their desires in public procurement?
It is doubtful whether WTO law sets any limits to the expansion of private food law. The area of public law most likely to provide yardsticks for the legality and legitimacy of private systems seems to be competition law. Competition law makes strict requirements on agreements between businesses and unilateral conduct of dominant businesses that may restrict competition to the detriment of consumers. Private systems almost by definition come within the scope of agreements or unilateral conduct. Thus, from a competition law point of view the businesses concerned have to be aware of their systems’ impact on competition and on consumers’ interests.
In the 1980s, the EU chose a ‘new approach’. European law would restrict itself to formulating the basic safety requirements, which would then be fleshed out by private standard setting organisations. Compliance with the private technical standard would then be considered to imply compliance with the European safety norm as well. In such a situation businesses complying with the technical standard are entitled to use CE-marking.17 The food sector has explicitly been excluded from this new approach. In the final chapter of this book, Nicole Coutrelis argues against bringing the food sector within its ambit. It is my believe, however, that private food law de facto already has achieved what the new approach set out to do,
17 See EU, 2002. Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety. Official Journal of the European Union L 11, 15/01/2002: 4-17.
namely to decide by private standard how to comply with the most fundamental norm in food law: the ban on unsafe food.18
The chapters in this book have been placed in a sequence that provides the reader with a storyline when reading them from the beginning to the end. However, they have been written in such a way that the reader can follow and understand the argument of each individual chapter without having to have read the previous chapters. In this sense the chapters each can stand alone like articles in a journal.
The price we pay for this choice is that a little overlap and repetition between some of the chapters could not be avoided. The organisation of the chapters and appendices is represented in Table 1.2.
18 In the EU, Article 14(1) of 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.
Table 1.2. The organisation of the chapters and appendices of this book.
Chapter / Topic 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 A1 A2
Background x x x x
History x x x x
Theory x x x x x
Concepts x x x
Overview x x
International law x x
Effect in 3rd world x x x
Individual schemes x x x x x x x x x x
Standard setting x
Certification x
Advertisement x x
Business format x
Religion x
Sustainability x x x
Environment x
Organic x
Fair trade x x
Legislation x x x
Public sector x x x x
Competition law x x x x
EU policy x x x
Private food law
1.6.2 The origin of private food law
After this introductory chapter, the book continues with Chapter 2 ‘Quasi-states?
The unexpected rise of private food law’ by Lawrence Busch. In his opinion much of the global economy has been transformed as trade in food and agricultural products has burgeoned, many supermarket chains have begun to operate across national boundaries, and Supply Chain Management has eclipsed business to business exchanges on spot markets. One important aspect of this transformation has been the rise of what he calls the ‘Tripartite Standards Regime’, a largely private regime of standards, certifications, and accreditations that parallels formal legal regimes and is dependent on it (e.g. with respect to contract, intellectual property, and criminal law). The neoliberal project of limiting the role of the state has led to the unexpected rise a wide range of ‘quasi-states’ consisting of individual firms, industry groups, and private voluntary organisations, each pursuing their own aims and interests through the production of private codes, laws, rules, and regulations. Whether some or all of these quasi-states are able to achieve legitimacy and develop democratic modes of governance remains to be seen.
1.6.3 The anatomy of private food law
In Chapter 3 ‘The anatomy of private food law’ 19 I attempt a legal theory of private food law by identifying the legal instruments used and by unravelling the structure of the creation, the binding character, control and enforcement of private food law.
In this way this chapter maps the legal structure of private food law. Using the basic instruments from civil law such as property, intellectual property, corporate law, labour law but mainly general contract law food businesses have set up systems of private regulation of the food chain. These systems include standard setting, auditing, accreditation, enforcement and sometimes also conflict resolution.
The chapter goes on to present summary descriptions of the currently most important systems to provide an impression of the topics most prominently regulated today in private food safety law.
1.6.4 Inventory of private food law
In Chapter 4 Theo Appelhof and Ronald van den Heuvel present a more encompassing overview of standards and schemes in the food and feed sectors.
Where several of the other authors consider private standards to be at least de facto binding, this chapter sees them as voluntary in more than name only.
19 This chapter elaborates on the chapter ‘Private food law’ in Van der Meulen, B. and Van der Velde, M., 2009. European Food Law Handbook, 2e edition. Wageningen Academic Publishers, Wageningen, the Netherlands.
The chapter starts from the EU imposition of self-regulation in the HACCP system and the possibility to make hygiene codes as a collective alternative. These codes can be recognised by national or EU authorities as proper implementation of the hygiene obligation of the businesses. The authors continue to set out the Dutch policy of supervision of controls. This is public authorities taking account of trustworthy private systems in prioritising official controls.
They then visit one by one the relevant sub-sectors of the food sector such as animal feed, primary production, manufacturing, packaging and transport to identify the most important standards used and to provide a summary of their content. It turns out that a forest of schemes has grown almost overnight.
1.6.5 The Codex Alimentarius in private food law
Chapter 5 ‘Codex Alimentarius and private standards’ by Spencer Henson and John Humphrey further elaborates on a legal theory by providing categorisations of private and mixed standards and by distinguishing roles of stakeholders setting and using such standards. It then goes on to discuss how the Codex Alimentarius Commission addresses the issue of private standards and how private standard setting bodies are clients of the Codex Alimentarius in that they turn legally non-binding Codex standards and codes of practice into contractually binding requirements by including them in their standards.
In Henson’s and Humphrey’s view private standards have become a much more prevalent part of the governance of global agri-food value chains in the last 10 to 15 years. Private firms and standards-setting coalitions, including companies and NGOs, have created and adopted standards for food safety, as well as for food quality and environmental and social aspects of agri-food production. This has raised profound questions about the role of public and private institutions in establishing and enforcing food safety norms. Such discussions have, however, been hampered by a failure to recognise the diversity of agri-food private standards with respect to their institutional and administrative characteristics, scope or functions, and also the often tight inter-relationships between private standards and public regulation. Private food safety standards are predominantly directed at the management of risk of food safety failures, many of which are defined by regulatory requirements. While there are instances where private standards lay down requirements that are beyond regulations, in many cases their function is to establish systems for more reliable and cost-effective regulatory compliance.
Although there are concerns that private food safety standards are undermining the standards, guidelines and recommendations promulgated by the Codex Alimentarius Commission, private standards can be seen as substantively packaging multiple Codex norms and national legislation. At the same time, private standards fill ‘voids’ where international standards are missing. Certainly the rise of private standards presents challenges for Codex, including the need to reflect on its client
Private food law
base, review its procedures and to examine where international norms are needed in a world where private governance is taking on an increasing role.
1.6.6 International versus private food law
In Chapter 6 ‘Private retail standards and the law of the World Trade Organisation’
Marinus Huige sets out the discussion within the WTO SPS Committee on the question whether private standards constitute barriers to international trade and whether WTO members have a responsibility in this regard.
The argument against private standards in general and EurepGAP/GlobalGAP in particular has been based on Article 13 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). Huige does not believe that the argument holds but calls for improved communication between the players in international food law and the players in global private food law.
1.6.7 The making of private food law
Public law is made on the basis of well-defined procedures ensuring democratic input and legitimacy. Private food law can be made whichever way the standard setting organisations have agreed upon. In Chapter 7 ‘Private law making at the round table on sustainable palm oil’ Otto Hospes presents a case study on the setting of private standards for the sustainable production of palm oil for food and other uses.
The 1990s and even more so the 2000s marked the rise of different, world-wide initiatives of non-governmental organisations and multinational companies to develop private law for the sustainable production of global commodities. One of these global initiatives has been the Round Table for Sustainable Palm Oil (RSPO).
The chapter by Hospes analyses private law making at the RSPO: it describes how the normative contents, actors and instruments of the RSPO have evolved in relation to market power, public law and state authorities. A key question is whether the law making process at the RSPO has contributed to the development of new public standards on sustainable palm oil. The focus is on the different ways in which the governments of Indonesia and the Netherlands have each responded to the establishment of the RSPO principles and criteria.
1.6.8 Capacity building in private food law
Margret Will, in Chapter 8 ‘GlobalGAP smallholder certification. Challenge and opportunity for smallholder inclusion into global value chains’, addresses the core topic in private food law: certification. In particular a form of certification developed within GlobalGAP to overcome financial and technical barriers to certification for small producers in third world countries. This chapter particularly
shows private food law as a form of global governance, the fairness of which can – probably – only be ensured from the inside as a global government that could counterbalance the global business world does not exist. The chapter is based on empirical research in African, Asian and Eastern-European countries.
It is optimistic about the potential of private food law to provide producers in developing countries access to western markets.
1.6.9 Private food advertisement law
In Chapter 9, ‘Towards the self-regulation code on beer advertising in Italy: Steps on the long lasting path of competition/co-operation of public and private food law’ Ferdinando Albisinni describes the history of the Italian Self-Regulation Code on Beer Advertising. Both the legislator and the private sector realised the importance of consumer protection in the context of sales of and publicity for alcoholic beverages. The Self-Regulation Code, discussed in more detail in Chapter 10, has found an interesting balance between the different interests involved.
Allesandro Artom, in Chapter 10 ‘Self-Regulation Code on Beer Advertising’
elaborates on the previous chapter, presenting a case study on the ‘Self-Regulation Code on Beer Advertising’ in Italy. It shows communication from businesses to consumers as topic of a private standard and it shows a structure within the private scheme providing third parties – consumers – with a procedure to address cases of (perceived) non-compliance. The case thus provides a model that can prove valuable for private food law in general. One of the weak spots in private food law seems to be the legal protection of interested parties. It suffers, as Busch puts it in Chapter 2, from inadequate appeals mechanisms. Artom shows that this can be remedied within the private schemes.
1.6.10 Business format regulation
In Chapter 11 ‘Franchising strengthens the use of private food standards’ Esther Brons-Stikkelbroeck adds the topic ‘franchising’ to the discussion of private food law. This topic is of twofold relevance. Franchising in itself is a form of private food law. A form that on private law basis – franchising contracts – imposes strict requirements upon participating businesses on how to present themselves to the public and how to conduct business. A large proportion of the world’s population will recognise a McDonald’s restaurant from the outside and know what to expect on the inside. The margin for the owner of an individual outlet to do things differently is very small.
The chapter goes on to discuss how within the franchise framework private standards as understood in the other chapters play a role. It appears that in franchising we encounter two forms of private food law mutually reinforcing each other.
Private food law
1.6.11 Religious standards
Tetty Havinga in Chapter 12 ‘On the borderline between state law and religious law:
regulatory arrangements connected to kosher and halal foods in the Netherlands and the United States’ addresses religious standards. The Netherlands, like other Western countries, is a growing market for halal food products, that is, food products that comply with Islamic food laws. Halal food is becoming more visible as Dutch supermarkets, hospitals and schools decide to include halal food in their supply. Havinga compares the regulation of halal food in the Netherlands to the regulation of kosher food in the Netherlands and the United States. She analyses the division of roles between state actors, the food industry, certification agencies and religious authorities in these regulatory arrangements. Contrary to expectation, the regulatory arrangements are rather state-centred in several US states (liberal market economy), whereas the Dutch corporatist welfare state plays a limited role by allowing religious slaughter and leaving the issue of halal and kosher certification entirely to commercial and religious organisations.
1.6.12 Organics
Organic agriculture is based on the philosophy that farms should function like organisms do with as little external inputs as possible and no use of chemical fertilisers and pesticides.20 In Chapter 13 ‘Organic food: a private concept’s take-over by government and the continued leading role of the private sector’, Hanspeter Schmidt discusses two developments. One is how the initially private initiative of organic agriculture in many countries was included in public legislation. This is what he calls ‘a friendly takeover’. This takeover provides status and protection to organic agriculture. Infringement on organic standards has become a matter of public law enforcement. Audits and certification in many countries remain with private organisations. The downside of the friendly takeover is that the legislator now holds the position to change with one stroke of a pen the meaning of the concept of organic.
The second development discussed by Schmidt is that the takeover is not complete.
Whenever gaps emerge, private initiative fills them in. He argues this point at the example of chemical contamination. Standards laid down in legislation ban certain
Whenever gaps emerge, private initiative fills them in. He argues this point at the example of chemical contamination. Standards laid down in legislation ban certain