Researching International Food Law
By Antonella Corradi
Antonella Corradi earned a degree in Law from the University of Rome “La Sapienza” (June, 1991). She works at the Ministry of Cultural Activities and Heritage of Italy. She wrote many articles and has contributed as co-author to a book on the intellectual property of biobanks for JLIS, an online paper, in 2010. She is a statutory auditor on behalf of the Ministry of Cultural Activities and Heritage of Italy.
Published March/April 2023
Table of Contents
- 1. Definition of Food Law
- 2. The Work of Lawyers and the Precautionary Principle
- 3. Regulation
- 4. The Multidimensionality of Sustainable Development
- 5. The Constitutions of Other States
- 6. Regulation No. 178 of 2002
- 7. International Trade Rules for the Agricultural and Food Sector: WTO, TBT, SPS and TRIPs agreements
- 8. WHO’s Codex Alimentarius and General Food Law of the EU (Reg. 178/2002)
- 9. The Agri-Food Market
- 10. Bibliography
1. Definition of Food Law
Food legislation places at the forefront, as instrumental to the main objective of ensuring maximum levels of health protection and consumer interests, the so-called Risk Analysis, which EC Regulation No. 178 of 2022, in Article 6, defines as a process consisting of three stages: assessment, management and communication.
The term "food law" is still foreign to the lexicon of jurists and this creates substantial difficulties in defining and classifying the discipline. For this reason, food law is “justified in view of the considerable importance it economically,” as "it is undoubtedly one of the few sectors that directly affect all citizens.”
The concept of food safety is very close to that of law—so much so that it is inserted in the context of political and social dynamics, as well as technical and social. The users of the "food law" are consumers, the first "professionals" who best play a fundamental role, because it is up to them to assess whether a food is good or not, whether it is healthy, and whether it is worth the money.
The concept of "food law" was the subject of Decree 178 of 2002. which was amended with the enactment of a new regulation, namely EU 1381/2009, which came into force in September 2019 and will be applied in 2021. The relevant regulation highlighted some key aspects such as the need to provide effective and efficient risk communications, which must be transparent and inclusive to ensure the participation of consumers, food companies and all parties involved in the supply chain.
The US food system operates through a chain of suppliers, producers, processors, and distributors who supply food to consumers. Consumers, in turn, give indications to the supply chain on what and how much to produce. This process provides the American population with a relatively inexpensive and plentiful variety of food.
The supply chain is connected to the global food system and operates within a diverse but above all ever-changing set of economic, biophysical, social and institutional contexts. A myriad of actors (e.g., farmers, producers, and consumer policy makers) make decisions that shape the food system every day. These actors pursue different goals including improving health, protecting the environment, and increasing productivity. The globalization of food supply chains has impacted international food law, making it a pressing concern for contemporary legislators.
Food law has such great expansive force from having been able to lay the foundations for a genuine independent legal doctrine. It was not even contemplated in the treaty establishing the European Community, which merely states the agricultural policy.
However, despite the presence of legal references on the subject, there has been a development of fundamental principles in the context of these sub-materials, the special nature of the matter cannot “disregard a proper knowledge of the state of scientific research about the 'reliability and quality of food products. In this regard an important contribution came from scientific progress, the real impossibility of adjustment of risk situations caused by man.”
Food law’s large area of application enables an extension of the subject to a national level. It finds its guarantees in the application of fundamental and established principles of European Union law which, in addition to Community obligations of harmonization, mutual recognition and free movement of goods, underlines the vital importance of the precautionary principle.
Working through a substantial monitoring of potentially damage-producing initiatives, food law aims to avoid the risk of danger. The precautionary principle is the only rule of conduct to be invoked in the presence of a possible risk, even if not certain. The birth of the European Union liberalization of trade has also been a primary goal.
This principle had already been mentioned in the EC Treaty Article 174 but was placed in the area dedicated to environmental protection. This principle also assumed a general application beyond the jurisprudential debate about the safety of food produced through genetic recombination techniques until, in the EC Regulation 178 of 2002. This regulation has an obligation, in all stages of production, processing and distribution, to track down the food, feed and animals used for food production, and any other substance intended or expected to become part of a food or a feed. For this purpose, those who work in the food industry, must be able to identify who has supplied them with a food and must have software to identify companies that have provided their products.
The text identifies the objectives to be pursued in the common policy such as environmental protection, environmental protection, the improvement of the environment, the protection of human health and the careful and rational use of natural resources. These objectives make it possible to identify guidelines around them, such as the action of the protection, that must still be developed. One of the most interesting parts of the aforementioned regulatory text is given by the definition of food in Article 2 which states: "the purpose of this Regulation for food (or food or foodstuff product), any substance or product, or not transformed intended to be ingested or there is reasonably expected to be ingested by humans."
2. The Work of Lawyers and the Precautionary Principle
The innovative use of the precautionary principle in the food law is visible in art. 5 in which expressly specified are the general objectives of food law. These objectives, enshrined in the fundamental principles, consist of new rules for the safety with which the Community legislator has included European Union law the general standards to manage the regulatory activity in the field of food, creating the first a series of reforms advanced by the Commission as a result of the work on food safety. Through the duty of States to transpose European Union and the principles that the guiding criteria, the Italian legislature has drawn a reorganization of the legislation within the legislative decree 152/2006.
Food legislation places in the first place, as instrumental to the main objective of ensuring the highest levels of health protection and consumer interests, the so-called risk analysis, which Regulation No. 178 of 2002, in Article 6, defines as a process consisting of three stages: assessment, management and communication.
The first stage takes the form of hazard identification and characterization, and the second stage takes the form of making appropriate choices in prevention and control. Risk communication, on the other hand, is the exchange of information concerning hazards and risks that risk perception between those who are responsible for assessment, risk managers, food businesses as well as the academic community.
Most of the scientific roles that are essential to conducting the risk analysis activity are entrusted to the European Food Safety Authority. To strengthen the work of communication, as well as to ensure the best results for safety and to recover consumer opinion towards the Authority, Regulation No. 1381/2019 was published, which aims at the transparency of risk analysis.
Further, it also amends some of its provisions on organizational and operational aspects of the Authority, on what are the obligations of transparency and confidentiality, on the preparation and presentation of scientific studies.
It also introduces a new Section I(a), in Chapter II dedicated to so-called risk communication, from which emerges the importance of developing risk information that is grounded in sound science, through the active participation of consumers and food businesses by combating the spread of fake news. The Rules also provide for the adoption by the commission of a general plan on risk communication, subject to updating by the commission in view of scientific advances and experience gained over time.
It also makes two important changes to Article 38 of the 2002 Regulation dedicated to the Authority's transparency obligations, providing that the Authority shall carry out its activities with a high level of transparency and providing more precisely for all acts, documents, scientific data, and information.
The food sector is one of the few that concern all citizens of the Community. To this end, the Commission's strategy is to combine the action of harmonized rules at Community level, applicable to all food products marketed in the Community, with the principle of mutual recognition of national regulations and technical specifications for issues that do not require the “adoption of a community instrument.” Subsequently, the multidimensionality of sustainable development, which was mentioned found its regulation in two reports adopted by the United Nations High-Level Panel of Eminent Persons on the Post 2015 Development Agenda (HLP) and in the Rio Conference in 1992, Action agenda for Development Sustainable (SDSN).
In particular, the HLP report identifies five general criteria, in which we disclaim 12 macro objectives: the elimination of poverty, the achievement of gender equality, the guarantee of quality education and lifelong learning, the guarantee of a healthy life, the guarantee of food safety, access to water, the guarantee of sustainable sources of energy, the creation of sustainable lifestyles and equitable growth, sustainable management of natural resources, good governance warranty, guarantee peaceful competition and catalyze long-term loans. multidimensionality of development sustainable.
The perspective offered by the two above mentioned reports cannot be said to be foreign to the Lisbon Treaty. Indeed, Article 11 of the TFEU requires the integration of environmental protection requirements in the definition and implementation of EU policies and actions that aim for the promotion of the welfare of the people and that will be reached only if it will work for sustainable development of Europe. This development must be based on balanced economic growth and a high level of protection and improvement of environment quality. In this context, agriculture is presented as a laboratory designed to eliminate the one-pointedness of the methods based on economic and market policies and to pursue the multi-dimensionality of sustainability given by the agricultural model. This makes us reflect on the fact that agriculture can provide some contributions for the legal classification to be assigned to social sustainability objectives, with particular attention to subjective legal positions and on the other the formation of a legal culture in which values inherent in the concept of sustainability become pervasive legal systems, both within the judicial execution of the objectives of Sustainability.
Article 301 of the Environment Code provides a definition of the principle in question even without a clear definition of the concept, provides the basis for the identification of the conditions in order to exercise a precautionary action that is to adopt appropriate means to manage an ‘emergency that could prove risky.’
With the precautionary principle, national and Community institutions can “take such measures without having actually demonstrated severity and risk reality”: the “potential risk level allows the intervention qualifying as having a high degree of probability damaging the environment and human health.” In this context the precautionary principle stands as an essential foundation for a more effective protection of human health and the environment and imposes a potential risk control resulting from the deliberate release of GMOs into the environment. Assessment and risk management are imposed for the prevention of animal and human diseases to prevent certain diseases.
"In ancient Rome, as well as in the Middle Ages – food fraud was punished. This shows that the attention to the problem has always been high. Today, however, the areas in which a legislator moves are very different from each other and range from international trade, the management of environmental problems (pollution, pesticide use) or health, such as obesity, to the right of fraud penalty.”
Another important issue that divides the American legislation from that of Europe and which, it will be difficult to meet if not in small steps, covers the free market. "The US is highly industrialized farming system. In Europe - are widespread even small farms, which by the way now exported all over the world."
Subsequently, Article 7 of the European Parliament and Council Regulation 178/02 / EC on European food safety allows the adoption of provisional measures These measures must meet two basic requirements: proportionality as a restriction of commercial activities and the provisional nature, which need to review after a certain period of time of the measures taken, attaching them to the potential risk to the life and health of scientific innovations.
Despite this, we are faced with a state of considerable uncertainty, which causes serious repercussions within the responsibility to food safety. Yet food security is a very timely topic, and this aspect is demonstrated by Regulation 178 of 2002, supplemented by Regulation 765 of 2008 based on the precautionary principle and the need for certainty on Food Law, which lays the foundation for the construction of a real food law.
The legal text has made compulsory, from January 1, 2005, the agri-food traceability, since the "free movement of safe and wholesome food is an essential aspect of the internal market and contributes significantly to the health and welfare of citizens, and to their social and economic interests."
The innovative aspect of the legal provision:
- Increase the level of food safety with the legislative coverage of all activities related to the production and distribution of "from farm to table.”
- Identification and subsequent definition of the responsibilities of the entities that are involved in food safety process.
- Establishment of control and supervision activities by the Health Authority
- Information activities aimed at consumers (relative to the characteristics of food products) and the Authority of Control (to remedy hazards and eventually allow the withdrawal of the product)
- Establishment of the traceability to the medical purposes
- Simplification and harmonization of legislation in force
The regulation defines the term "food" as any substance or product, partially processed or unprocessed, intended to be ingested, or reasonably expected to be ingested by humans. "It includes drink, chewing gum and any substance, including water, intentionally incorporated into the food during its manufacture, preparation or treatment” It includes water after the point where the values must be respected as established in Article 6 of Directive 98/83/EC and subject to the requirements of Directives 80/778/EC and 98/83/EC. The most important aspect of this legal provisions is to identify the accountability principle. Article 4, establishing the principles of food safety, must take into consideration not only to the probable immediate, short-term, and/or long-term health of a person consuming it, but also on subsequent generations.
International treaties, conventions, commissions play a major role in international cooperation for plant production and protection. FAOLEX is a good place to consult when looking for laws of foreign jurisdictions. Also consult the Food Systems at the Food and Agriculture Organization of the UN, for more information.
4. The Multidimensionality of Sustainable Development
The following articles set out the principle of liability for defective products, the obligations relating to feed and food, using the term liability to "indicate the liability as a prerequisite for the claim." This leads us to the concept of "food safety," which consists of two important aspects, namely the "food security" and "food safety." The first term refers to food needed to satisfy the natural need and indispensable man of eating to live, and the second term refers to the problem of food safety in the health and hygiene standpoint. Already the World Food Summit of 1996 has identified food security as a "situation in which all people, at all times, have physical, social and economic times to enough food, safe and nutritious food to ensure their needs and food preferences to lead an active and healthy life" (FAO 1996).
The food sector is one of the few that concern all citizens of the community. To this end, the commission's strategy is to combine the action of harmonized rules at the community level, applicable to all food products marketed in the community, with the principle of mutual recognition of national regulations and technical specifications for issues that do not require the “adoption of a community instrument.”
Subsequently, the multidimensionality of sustainable development, found its regulation in two reports adopted by the United Nations High-level Panel of Eminent Persons on the Post 2015 Development Agenda (HLP) and in the Rio Conference in 1992, Action Agenda for Development Sustainable (SDSN).
However, at the international level, there are many sources that support the recognition by the international community of the right to food and they are found in fundamental human rights. The first source is the Universal Declaration of Human Rights of 1948, which, in Article 25, first paragraph, states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food.”
The above principle was also expressed in the International Covenant on Economic, Social and Cultural Rights which was adopted by the General Assembly of the United Nations December 16, 1966, and entered into force on March 23, 1976. Article 11 of this text stated that "the States parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family including food, clothing and adequate housing." The same article also provides that "[t]he States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, all the measures, including specific programs, which are necessary:
- to improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, the dissemination of knowledge about the principles of nutrition and by developing or reforming agrarian systems in such a way to achieve the growth and the most efficient use of natural resources;
- to ensure an equitable distribution of world food supplies in relation to need, taking into account the problems of both importing countries-exporting countries of food."
5. The Constitutions of Other States
In this arrangement it comes to light the strong correlation of needs, interests and problems arising from the recognition of the right to freedom from hunger, i.e., the right to food security. Food safety is also spoken in the Constitution of Bolivia, which art. 16 provides:
"I. Everyone has the right to water and food. II. The state has the obligation to ensure food security through healthy, adequate and sufficient for the entire population."
The Political Constitution of Ecuador art. 13 also recognizes the right to safe and permanent access to healthy foods, sufficient and nutritious, preferably produced locally and in accordance with their different entities and cultural traditions to the people and to the community. The Constitution of South Africa, namely art. 27 says that "everyone has the right to have access to sufficient food and water."
These texts lay out the relationship between the rights which are due to the individual and the duties incumbent on the States to which the same individuals and groups belong. Ecuador's Constitution places it among the fundamental duties of the State that weave of mutual recognized fundamental right, a duty to ensure without discrimination the effective enjoyment of the rights established in the Constitution and in international instruments, in particular education, health, social security, and water for its inhabitants. At the European level, this recognition is lacking.
However, despite the call made to the Universal Declaration of Human Rights, this right is not contemplated in the normative content of the Convention which gives more space to the rights to life, to liberty, to security, to a fair trial, and to respect for private life and family. Often, however, the regulations did not provide for the right to food explicitly, but this lack is only from the formal point of view, since the law was extracted from the recognition of the right to life because you cannot guarantee the same life if not it recognizes every individual's right to feed themselves. This right adequately reflected in Europe in a series of recent legislative measures that confirm legal instruments.
6. Regulation No. 178 of 2002
There arises the problem of the movement of food. This issue was addressed in the EC Regulation no. 178 of 2002, which contains the principles of food law stating that "the free movement of safe and wholesome food is an essential aspect of the internal market and contributes significantly to the health and well-being of citizens, and to their social and economic interests." Among the free movement of goods and human health, there is a very strong bond that is also clear from art. 5 of the said regulation, which identifies, among the general objectives of food law, the high level of protection of human life and health, the protection of consumers' interests, including the protection of health and animal welfare, health plants and the environment. In the second paragraph of this article, there is the mention of the objective of free movement of food placed on the market, relying on compliance with the general requirements laid down in that Regulation.
Regulation no. 178 of 2002, which established the general principles and requirements of food law, established the European Food Safety Authority, and laid down procedures in matters of food safety, which, as indicated in art. 2, "provides scientific and technical advice and scientific support for the legislation and Community policies in all fields which have a direct or indirect impact on the safety of food and feed.”
This Authority is composed of the following organs:
- Board of Directors
- Executive Director and his staff
- An Advisory Forum
- A Scientific Committee and Scientific Panels
This authority is an independent scientific point of reference in risk assessment and enjoys considerable independence also justified by the fact that it is called to ensure risk assessments carried out in an independent, objective, and transparent.
The independence of the Authority is considered essential to ensure the safety and consumer confidence. The Authority shall have the function of providing independent information in all fields which have a direct or indirect impact on the safety of food and feed, and to collect data to help you analyze, monitor, and evaluate the related risks. As a second function contemplated by the legislation establishing, also it carries a scientific advice to the Commission alone, the EU institutions and member countries, as well as technical and scientific assistance for the Commission only. The Authority's opinions serve as the scientific basis for the drafting and adoption of Community measures in the fields of its competence.
7. International Trade Rules for the Agricultural and Food Sector: WTO, TBT, SPS and TRIPs agreements
Towards the end of the Second World War, the world economic system was completely redesigned. The aim was to limit the economic chaos experienced between the two world wars. Therefore, it was thought to create a new world order through the Bretton Woods agreements, in 1944, and for this reason the GATT (General Agreements of Tariff and Trade) was born. Its principles were transparency, non-discrimination and reciprocity, and the average levels of duties on industrial products decreased considerably.
The TRIPS agreements were subsequently concluded (intellectual property, SPS agreements-sanitary and phytosanitary measures). The World Packaging Organization (WPO) is a structured organization based in Geneva and is home to the settlement of trade conflicts between member countries. It also authorizes sanctions against countries that violate the Treaties signed in GATT/World Trade Organization (WTO).
The SPS (Sanitary and phytosanitary measures), as defined by the WTO agreement, regulates the eligibility of health-protection measures that may restrict trade and these measures must be based on recognized international scientific and standard arguments. The Technical Barriers to Trade (TBT) Agreement aims to ensure that national technical regulation policies, standards on products, and certification procedures do not create problems for trade, but the adoption of standard, common and recognized international facilitates trade.
8. WHO’s Codex Alimentarius and General Food Law of the EU (Reg. 178/2002)
The Codex Alimentarius is a food code comprising several general safety standards that have been developed with the aim of protecting consumer health and ensuring the correctness of food trade. Foods that are sent to the market both for consumption and for export must be of good quality. Furthermore, they must not contain organisms that bring diseases that can damage plants and animals in the importing countries.
The Codex Alimentarius was established in the ’60s, thanks to the cooperation between two United Nations FAO and WHO organizations to guide the elaboration and application of definition and requirements for food in such a way as to encourage international trade. The Codex has established over the years a reference point that is used on an international scale also because the qualitative standards were based on a remarkable scientific documentation.
The influence of the Codex Alimentarius extended to all continents and the contribution to the protection of public health and the correctness of food trade is very important. Codex-dictated standards relate to labelling, method of analysis and sampling. There are also specific regulations for all types of foods. The codex is managed by the Codex Committee, which is an international body in which Member States have the vote.
9. The Agri-Food Market
This section deals with the analysis of competition regulation, legal responsibility, intellectual property, unfair trade, the role of financial institutions and specific financial instruments for the agri-food market.
Over the years the figure of the consumer has undergone great changes. At one time it was considered as an isolated buyer, in a small local market, while it is now a very attentive subject to the characteristics of the products. This was testified by the Council of the European Union that in 1975 warned of the change in the agri-food market by giving a definition of consumer no longer as a single entity, but as part of a mass market covered by advertising campaigns.
Advertising has played a very important role in the choice of a product, even creating a significant critical spirit in the consumer. In this context, the need to regulate the entire production chain with high quality standards has arisen.
The legislator has ensured the protection of the consumer in two ways. First, by imposing a description as transparent as possible of the product marketed, including compensation for the damage suffered by the consumer, whose assumptions are represented by poisoning with the entry into force of Regulation 1169 /2011 N. 115 which has incorporated and amended the rules set out in Legislative Decree 109/1992 about product labelling. Second, the person responsible for the information affixed to the food is the operator with whose name or company the product is marketed.
9.1. The Protection of the Consumer in the Agri-Food Sector
The protection of the consumer in the agri-food sector is ensured by the manufacturer's acknowledged responsibility for the damage resulting from the defective product, as set out in Directive 1999/34/EC transposed by DPR on February 2, 2001, N. 2525, which unified responsibility for all manufacturers by introducing the principle of strict liability.
In Italy, the issue of food security has long been the subject of study by criminal law in particular, as it was treated from the point of view of the right to health and above all public health. Speaking of food safety meant referring to a body of rules aimed at punishing both harmful and fraudulent behavior to ensure the wholesomeness of food.
9.2. The Recent Developments in the Food Sector
The recent developments in the food sector, and above all the safety requirements in relation to food, have had noticeable repercussions on the legal-administrative. This is so true that today, the issue of food security has acquired a multidimensional and extraterritorial character, and its regulation is based on a series of principles and detailed rules concerning health but also trade and the market. From this we can undoubtedly affirm that the first peculiar characteristic is multidimensionality—not only the wholesomeness and hygiene of foodstuffs, but also and above all the protection of those which are the major interests connected to food.
Following very worrying food crises, such as bovine spongiform encephalopathy, but above all in relation to doubts about the ability of regulations and administrative structures to effectively achieve the objectives of ensuring a high level of health protection, on 30 April 1997 the European Commission adopted the Green Paper on the general principles of food law in the European Union. With this text, the Commission wanted to start a confrontation with the various member states in order to lay the foundations for the constitution of a new common food law.
Following the consultation promoted with the Green Book, the Commission adopted the CD. A white paper on food safety containing both the official collection of proposals for community action in the food sector, and the indication of the tools for their implementation. Following the White Paper and the Green Paper, the Commission has adopted the EC Regulation n. 178 of 2002 which does not represent only a general regulation containing principles and rules on food legislation but constitutes the main ordinary legislative source.
The regulation of food security has a remarkable development on a global level, so much so that it has established important decisions by the DSB (dispute settlement body) of the World Trade Organization. With the EC-Harmonies decision, the DSB ordered the European Community to remove a ban on hormone-treated beef. The appellate body ordered the community to remove the notice because it does not conform to the parameters indicated in the Agreement on the application of sanitary and phytosanitary measures (SPS Agreement is an annex to the Marrakesh agreements, which establish WTO).
The rules of this treaty require that national measures be adequately motivated and justified by a scientific demonstration that gives rise to a medium risk assessment on which to base the restrictive measure. However, states are exempted from such demonstrations if they refer to officially recognized international standards, namely those of the aforementioned codex Alimentarius which is a second level organization created by the FAO and the WHO with the primary task of creating a world food code , Codex Alimentarius which is a second level organization created by the FAO and the WHO with the primary task of creating a world food code, containing standards and guidelines but above all good practices.
The European Community was ordered to remove the ban and to compensate the United States and Canada (which had given rise to the dispute) for the losses suffered by the closure of the European market.
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 L’iniziativa dei cittadini europei “Vietare il glifosato e proteggere le persone e l’ambiente dai pesticidi tossici” del 2017, ad esempio, nata per invitare la Commissione Europea a proporre agli Stati membri l’introduzione di un divieto di utilizzare glifosato, a riformare la procedura di approvazione dei pesticidi e a fissare gli obiettivi di riduzione obbligatori al livello dell’UE per quanto riguarda l’uso di pesticidi, dimostra la necessità di garantire che la valutazione scientifica dei pesticidi per l’approvazione regolamentare dell’UE si basi unicamente su studi pubblicati, che siano commissionati dalle autorità pubbliche competenti anziché dall’industria dei pesticidi.”