Volume 43 | Number 3 Summer 2008
Food Safety Regulation in the European Union: Toward an Unavoidable Centralization of Regulatory Powers
C. Hygiene Rules
The EU also has in place common hygiene rules to ensure the safety of foodstuffs.137 Various regulations cover the safety of foodstuffs in food businesses from initial production to the final sale to consumers; unprocessed and processed products of animal origin;138 official controls on products of animal origin intended for human consumption;139 and official controls performed to ensure the verification of compliance with feed and food law, animal health, and animal welfare rules.140
Food business operators are responsible for ensuring the safety of their foods at all stages of production that are under their control.141 They are required to put in place a procedure based on HACCP, a proactive control system created to ensure food safety by controlling all stages of production.142 It has seven principles: (1) identification of “any hazards that must be prevented, eliminated or reduced to acceptable levels;” (2) identification of the critical control points at the step(s) at which control is necessary “to prevent or eliminate a hazard or to reduce it to acceptable levels;” (3) establishment of “critical limits at critical control points which separate acceptability from unacceptability for the prevention, elimination or reduction of identified hazards;” (4) establishment and implementation of “effective monitoring procedures at critical control points;” (5) establishment of “corrective actions when monitoring indicates that a critical control point is not under control;” (6) establishment of “procedures, which shall be carried out regularly, to verify that [measures (1) to (5)] are working effectively;” and (7) establishment of “documents and records commensurate with the nature and size of the food business to demonstrate the effective application of the measures outlined in [provisions (1) to (6)].”143
Member States are in charge of maintaining controls of the hygiene of foodstuffs through the adoption of record keeping and registration requirements.144 The record keeping and registration requirements entered into effect on January 1, 2006 and replaced an earlier directive which had not provided for record keeping.145
Member States and the Commission, with the assistance of the Standing Committee on the Food Chain and Animal Health, can each issue guides to good practice for hygiene and for the application of HACCP principles for food business operators to use if they so desire.146 Yet, despite the fact that the use of the guides is voluntary, food business operators still must implement some form of processes based on the HACCP principles.
D. The Crisis Management System
The EU has procedures to deal with crises both before and after they occur. If Member States are unable to eradicate the risks some food or feed pose to human health, then the EU Commission takes action.
1. The Rapid Alert System for Food and Feed
EU regulations provide for a system to disseminate information when a Member State discovers a problem that poses a potential risk to human health. Chapter IV of Regulation (EC) No. 178/2002 lays out a procedure for a Rapid Alert System for Food and Feed (RASFF). Its purpose is effective “notification of a direct or indirect risk to human health deriving from food or feed.”147 This process involves the Member States, the Commission, as well as the EFSA. Whenever one party has information about a serious direct or indirect risk to human health deriving from food or feed, this information must be transmitted to the Commission, which will then transmit the information to the other members.148 Member States have an obligation to notify the Commission of any measures they adopt that require rapid action and that force the withdrawal from the market, or the recall, of food or feed to protect human health. The Commission also requires notification for measures that limit or impose conditions on the placing on the market or use of food or feed on account of a serious risk to human health requiring rapid action, or measures of rejection of containers of food or feed due to a direct or indirect risk to human health.149
2. Emergencies
If the risk to health is serious and likely to occur, and if the Member State cannot contain it efficiently, the Commission, pursuant to the procedure laid out in Article 5 of Decision 1999/468/EC, can take different measures, depending on whether the problematic product is in a Member State or a third party country.150 If the food or feed comes from a Member State, the Commission can suspend the placing on the market or the use of the food or feed, set up specific conditions to be met, or take any other measures that it deems appropriate.151 As for food or feed coming from a third party country, the Commission can decide to suspend imports either from the part of the third party country involved, or from the whole third party country, where appropriate; it can also set up specific conditions for the food or feed to meet, or it can take any other appropriate measure.152 Only when the Commission does not act accordingly can the Member State adopt measures by itself.153
3. Crisis Management
The Commission has a plan for crisis management for the risks to human health derived from food or feed that could not be eradicated by the emergency measures previously mentioned.154 The Commission must notify the Member States and the EFSA, and create a crisis unit that will gather and analyze information to find ways to prevent, eliminate, or reduce the risk. EFSA is to provide scientific and technical assistance whenever necessary.155
E. The Common Agricultural Policy
The CAP has had an influence on the evolution of the European Community’s food law.156 The CAP was provided for in the Treaty of Rome, the founding document of the European Community. The objectives of the CAP were initially listed in Article 39 of the Treaty Establishing the European Economic Community, which is now Article 33 of the Treaty Establishing the European Community. Those goals are to increase agricultural productivity through technical progress; to provide a fair standard of living for the agricultural community, stabilize markets, guarantee supplies; and to make sure retail prices are reasonable.157 Because the original CAP did not anticipate the problem of harmonizing countries’ different production methods, when the common market developed, there were disparities in income within and among Member States.158 Until the 1990s, the most important component of the CAP was the market and price policy.159 However, the regulations shifted to focus closely on consumers after the food scares of the mid-1990s.160 In June 2003, a CAP reform established a cross-compliance obligation, requiring farmers to meet their obligations regarding public, animal, and plant health; the environment; and animal welfare, in order to receive their single payment.161 This single farm payment is unrelated to production and is allocated only if the farmer respects the environmental, food safety, and animal welfare standards.162
Despite the existence of regulations providing risk assessment, traceability, labeling, hygiene rules, crisis management, and even incentives to respect health norms, scholars have noted the divergence between national and European-level regulation.163 Disagreements create inconsistencies among the Member States’ policies.164 However, it is unlikely that those problems will cause the EU to step back in its progress and stop using processes such as HACCP, labeling, and other common standards. Those processes may need to be reviewed or improved. However, the fundamental idea of harmonization and similarities in processes will remain. Since the creation of the European Community fifty years ago, nations continue to grow closer. Thus, the tendency to continue to unite seems to be the logical outcome. Furthermore, as nations come together globally, the natural inclination seems to suggest that EU Member States will come together as well.
IV. Conclusion
The EU food safety regulatory system faces challenges. A centralization of regulatory powers would bring a more homogeneous type of regulation where Member States would let European institutions oversee both risk assessment and risk management. This centralization is difficult to achieve because political, economic, and social obstacles make Member States reluctant to give up part of their sovereignty. However, the direction of reforms within the past decade anticipates the future official centralization of regulatory powers.
In the EU, diplomacy prevails over authority. Despite all of its virtues, diplomacy is a slow process, especially because the EU is faced with twenty-seven visions and ideologies. It takes time for people and nations to reach a consensus. In the context of food safety regulations, this problem has to do with the fact that agriculture is seen as a way of life more than a business. History and culture are intertwined with agriculture, which makes it hard to make concessions and reach a compromise.
Food safety regulations often concern a cultural aspect which, mixed with politics and economics, becomes an overwhelming obstacle. In addition, countries also fear the loss of independence and sovereignty. The debate over food safety regulation in the EU raises a bigger issue, one concerning Europe’s future in general. Centralization would improve consumer trust and make it easier for businesses. Furthermore, if policies are implemented evenly throughout the whole EU, foodborne illnesses will more likely be prevented. Even in the United States, which has a system that is more centralized than the EU’s, a debate over further centralization is under way. Some argue that politics, economy, and even society conspire to oppose centralization. However, this reluctance comes from today’s generation, and all of this will change as globalization makes nations closer to each other. Today’s generations may not be ready to be part of an entirely centralized system. The cultural aspect and national pride are very deeply embedded in the European way of life. The “Europeanization” of the EU will be increasingly a part of the new generation’s cultural upbringing, and globalization will drive this movement. It is only when these new generations feel truly “European” that they will allow centralization.
The decentralization of food safety regulatory powers demonstrates a reluctance to make the EU a true union. Yet, the creation of European institutions proves that Member States are willing to move toward common principles of legality and ethics. Before, Member States had total authority over whatever occurred within their borders. Today, some laws have been enacted to allow EU entities to supervise Member States’ actions and to assist whenever an emergency situation arises. The harmonization of standards that the EU is experiencing today is simply half of the process necessary to have a true, official, and de jure centralization of food safety regulatory powers.
In other words, centralization will happen eventually. Today, de facto centralization is occurring. Tomorrow, as globalization ceases to be a new phenomenon to new generations, the EU will go on to the next phase of its evolution: an inevitable official centralization of food safety regulation, along with the likely centralization in other areas of regulation as well.
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Footnotes
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