Volume 43 | Number 3 Summer 2008
Food Safety Regulation in the European Union: Toward an Unavoidable Centralization of Regulatory Powers
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I. Introduction
In October 2004, two eagles, smuggled from Thailand, were transported on a plane and arrived in Belgium, despite the ban on imports of birds from countries that faced bird flu outbreaks.1 The birds were inspected and tested positive for Influenza A virus subtype H5N1, commonly known as “bird flu.”2 In February 2006, the virus was detected in France, Germany, Greece, and Italy. Birds at a turkey farm in the department of Ain in France were found to be infected with the bird flu virus in approximately the same area where a wild duck was found dead from the same disease.3 In Germany, a cat died from the virus, becoming the first European Union mammal to succumb to avian flu.4 Avian flu was also detected in dead swans in Greece, Bulgaria, and Italy.5 In January 2007, a farm in Hungary was infected with the virus; as a result, 3000 geese were slaughtered.6 In February 2007, turkeys on a commercial farm in England owned by one of Europe’s largest poultry producers were found infected with the H5N1 strain of bird flu.7 Even if bird flu is not currently a threat to human beings, some fear the virus might mutate and endanger human lives.8
These incidents are merely a sample of the numerous similar occurrences of hazards that do not recognize national borders which have happened over the past years in the Member States of the European Union (EU). Given the way food safety is regulated in the EU, each country essentially bears the responsibility to address the problem. Council Directive 2005/94/EC of December 20, 2005, on Community Measures for the Control of Avian Influenza was enacted in order to create measures for Member States to deal with sudden outbreaks of bird flu.9 However, Member States were not required to implement it until July 1, 2007.10 In the meantime, more bird flu outbreaks occurred and endangered not only the country primarily touched with the virus, but also any other country where goods can freely travel with little or no inspections.11 These events demonstrate how decentralized the EU is in terms of food safety regulation and raise the question of whether a centralized system would have prevented the spread of avian influenza.
This article will focus on the food safety regulation system in the EU by looking at how centralization of food regulatory powers is a necessary step to protect the public health as well as the future of the EU in a more general sense. It will show how food regulation in the EU reflects the most fundamental controversies that are also seen in the international arena, and it will demonstrate how centralization of risk assessment and risk management is not only preferable, but is unavoidable.
This article will first present an analysis of the issue of centralization of powers for food safety regulation purposes, addressing the historical developments of food safety regulation in the EU, analyzing the various arguments that have been made in favor of centralization, and considering the “single food agency debate” occurring in the United States. Then the article will take a more practical approach by discussing why a centralized power in Europe is difficult to attain. Finally, the article will predict and demonstrate how centralized power will eventually develop. This article will discuss the current state of de facto centralization, characterized by a tendency toward uniformity of principles and standards, and then show how this will eventually lead to an official and recognized de jure centralization. However, centralization will not actually happen until future EU constituents recognize that in order to remain competitive in the global market, centralization of food safety regulatory powers in the EU is essential.
II. An Analysis of Centralization of Food Safety Regulatory Powers: Today’s European Union is Not Ready for An Official Centralization of Its Food Safety Regulatory System
Centralization of food safety regulation is an issue greatly debated both in the EU and other countries. Proponents and opponents debate on whether centralization is necessary and whether it would be beneficial. While noting the advantages brought by a more centralized system, the EU is not ready for an official centralization of food regulation, given the institutional, political, economic, and social obstacles that it is facing at the present time.
To understand how the EU has reached its present point, it is important to understand how food safety regulation in the EU has evolved throughout history.
A. Historical Evolution of Food Safety Regulation in the EU
The Treaty of Rome, signed in 1957, is the fundamental treaty of the European Community (EC). It did not provide any guidance for food regulation because a major objective for the EC was freedom of movement of foodstuffs.12
Recognizing the need to harmonize laws, the EC issued compositional directives in the 1970s. These directives created standards of composition for certain foodstuffs.13 The standards allowed some ingredients and prohibited others that did not meet the requirements set by the Commission.14 It is important to keep in mind that the goal of those directives at that time was to guarantee the free movement of food within the European Common Market, rather than to advance consumer health.15 The directives applied only to particular ingredients, including sugars, jams, chocolate products, and preserved milks.16 Ultimately, however, this formula failed because the differing culinary cultures of the Member States prevented them from agreeing on the adoption of those ingredients’ requirements.17 The fact that the Treaty of Rome required unanimity in order to adopt directives made any decision difficult to reach.18
In 1985, the EC came up with a new approach. Instead of trying to harmonize all of the food regulations, it decided to use labeling to indicate the differences in composition and production methods, allowing consumers to make an informed decision.19 It adopted the principle of mutual recognition, requiring a Member State to allow the free circulation of goods produced in conformity to equivalent standards of other Member States.20 This mutual recognition principle was established by the Cassis de Dijon case, in which a German law prohibited the marketing of liqueurs below a certain alcoholic strength.21 As a result of this prohibition, plaintiff, a German importer of liquor, could not market his liquor that contained less alcohol.22 Given the fact that the importer was able to sell the liquor in France, which did not have this limitation, the European Court of Justice held that since plaintiff’s liquor contained less alcohol than what the German law allowed, the justification of its prohibition could not be in the public interest and therefore could not stand.23 Thus, the Court held that the German law impeded on the principles of free circulation of goods and introduced the principle of mutual recognition.24 This principle led to a horizontal, as opposed to vertical, harmonization of food standards.
In 1987, the Single European Act replaced the unanimity requirement with a qualified majority in the Council.25 As a result, the European Community adopted additional regulations, but avoided adopting too many of them for fear of jeopardizing the single market goal and culinary culture.26
Food scares of the mid-1990s such as the bovine spongiform encephalopathy (BSE) crisis and the dioxin contamination in Belgium affected the public’s trust in the EU food safety regulation system.27 These events yielded a series of new determinations and recommendations regarding the need for reform. In 1997, the European Commission issued a Green Paper concluding that the current food legislation fell short of meeting the “needs of consumers, producers, and manufacturers of food products.”28 In 1999, three professors issued a report to the Director-General calling for: a new system for risk assessment based on the principles of excellence, transparency, and independence; the creation of a food and public health agency; and increased cooperation among Member States.29 In 2000, recognizing the need for measures to deal with foodstuffs “from farm to table,” the Commission determined that an independent European food authority would be the best way to ensure food safety.30
Accordingly, in 2002, the Council of the EU and the European Parliament adopted Regulation (EC) No. 178/2002, presenting the principles of food law and creating the European Food Safety Authority (EFSA).31 Prior to the creation of the EFSA, EU policy had been aimed at eliminating trade barriers within the European market and its goal was economic success rather than safety assurance.32 To accomplish this goal, each Member State had regulated its own foodstuffs. In contrast, the EFSA is an independent agency that provides scientific advice to Member States and EU institutions. It gathers data to help anticipate risks and issues opinions on matters relating to human nutrition, animal welfare, plant health, and genetically modified organisms.33 The EFSA gives scientific assessments but does not handle any of the risk management. Instead, the EU institutions and the Member States themselves are responsible for risk management, a division of authority that poses an obstacle to greater centralization.
B. A Centralized Power is Better Than a Decentralized Power When It Comes to Food Safety
Centralization presents a number of advantages with respect to both the economy and social attitudes toward food safety regulation in the EU. Centralization of the power to regulate food safety is in the best interest of consumers, companies, and countries. In light of the debate over centralization in the United States, where the food regulatory system is already more centralized than in the EU, it is clear that centralization is the most efficient approach to meet consumer, national, and corporate interests.
1. Decentralization Encourages Member States to Use Public Health Concerns as a Competitive Tool Against One Another
Decentralization encourages Member States to use their domestic policies as a competitive tool.34 By having different standards, countries that could be working together instead use regulations to gain a competitive economic advantage. Member States and producers, for example, create distinctions between products in order to have the upper hand in the market.35 The labeling process, which will be discussed in more detail in Section III, enables countries to identify where products come from, thus aiding consumers in making informed decisions regarding their choices in groceries. For example, when a food scare occurs in one Member State, other Member States might use that to their advantage by telling consumers that their products are safer.36
One might argue that this is healthy competition and that countries have a duty to inform consumers of the safety of products, including identifying the location of the product’s origin and production. Competition is allowed within the EU and is deemed a protected practice as long as businesses follow certain rules.37 However, competition between businesses based on economic variables is quite different from competition based on public health issues. In a union of countries where products can circulate freely, competition based on food safety standards will not help improve the trust that consumers have in the EU food system. Rather, people will likely recognize the economic motive of using public health as a competitive tool and become cynical about the actual merits of the system.
Not only do Member States compete through varying food safety policies, but also in the varying ways they each implement EU regulations and directives.38 For example, EU regulations and directives provide an implementation deadline to Member States.39 Naturally, some countries are more able than others to implement a policy in a short period of time. However, in an environment of free circulation of goods, those discrepancies create economic incentives where public good should be the priority.
These distinctions not only represent the individualism of competing countries in the EU, but they also likely reinforce individual consumers’ nationalist sentiments at the expense of developing a stronger, more cohesive “European” outlook.
2. Centralization Improves Consumer Trust
Despite the changes in EU food safety regulation, such as the creation of the EFSA, the lack of consistency between countries has hindered any improvement in consumer trust.40 Ignited by the food scares of the 1990s,41 consumer surveys conducted over the past several years show how skeptical consumers are of the European food safety and regulatory systems.42 The levels of trust vary, however, among Member States. The Northern countries such as Denmark are more trusting of their national food regulatory systems than are Southern countries, such as Italy and Portugal.43 Germans tend to have less trust in food items than the British.44
Furthermore, the high volume of imports causes concern among European consumers over the origin and safety of their foods.45 Contrary to the United States, where ninety percent of food consumption is produced domestically, EU Member States import about half of their total food supply from other EU Member States.46
In addition, whenever countries do not reach a consensus about food safety regulation, consumers are faced with a plurality of opinions instead of one leading decision. They are thus more likely to wonder whether their own country is acting in the public’s best interest or is pursuing another goal. This uncertainty reflects consumers’ lack of confidence in their respective governments.
Centralizing risk assessment and risk management processes, however, would likely result in more certainty, and therefore, increased trust. Consumers are skeptical about their national food system because they have experienced food scares, and they question their government’s ability to prevent further problems. A centralized system at the European level would act as an extra shield of protection for consumers by reducing national competition based on food safety.
3. Centralization Reduces Business Uncertainty
With centralization of regulatory powers, all Member States would be subject to identical standards and the uniform enforcement of those regulations.47 As a result, food businesses would have more of an incentive to trade, knowing exactly what to expect in the foreign country.48 Moreover, small businesses would be better able to compete with larger companies in the European market because the regulatory system would be more stable.49 Large companies already have more resources to adapt to the differing regulations in Member States. With a more centralized system, smaller companies might not face barriers to entry with regulations that are too expensive for them to implement.