The General Food Law (Regulation 178/2002) – A Short Introduction


By McDowell Purcell \ In News

The European food and drink industry is the largest manufacturing sector in the EU and the leading employer. As such, it has been described as a pillar of the EU economy. European food regulation began as an integral element of the drive towards a Single Market, albeit with food products being viewed in a narrow economic sense. However, rituals of food production and EFSA smallerconsumption are a source of significant social importance and cultural identity to the various nations that make up the European Union, and a succession of food crises, the fast growth of food technologies, and a willingness on the part of EU institutions to exploit various crises and turning points to encourage further European integration, have led to the development of food safety and consumer protection as central themes of contemporary European food legislation.

Rome

The creation of a Customs Union which would cover trade in all goods, and which would encourage convergence in economic development and performance, through the adoption of common policies aimed at the systematic erosion of barriers to trade between Member States, was an important motivation for the signatories of the Treaty of Rome. It was therefore the case that until the 1980s, European food law was primarily focused on the completion of the internal market, and its early development has been described as a “spillover” of that larger goal that resulted in a patchwork of schemes aimed at vertical integration such as the Programme for the Elimination of Technical Obstacles to Trade in 1969 and the Industrial Policy Programme in 1973 – initiatives which had very little real impact.

By 1980, the outcome of the Commission’s early efforts at (largely vertical) standardization and harmonization had been described as having precisely the opposite effect of that intended, with the European food market becoming even more fragmented by a Byzantine maze of safety and technical standards across Member States, and corresponding criticisms of Eurorecipes and Eurobland foods.

Cassis de Dijon

During this period of growing Eurosclerosis and logjam, the ECJ delivered its highly influential decision in Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) (120/78) [1979] ECR 649, described as a verdict that provoked a political response from a Commission eager to develop a new approach to harmonization that could create the possibility of a ‘relaunching’ of the European integration project.

The importance of Cassis de Dijon was not apparent in any groundbreaking legal analysis (Procureur du Roi vs. Benoît and Gustave Dassonville (Dassonville) (8/74) [1974] ECR 837 being the true landmark ruling), but in the political reaction to the verdict.

By the mid-1980s, the Commission had prepared a new type of instrument, a Communication, which stood as a bold assertion of a new harmonization policy, extracted from an expansive and controversial interpretation of the Cassis decision and based firmly on a concept of mutual recognition. Although not ultimately successful, the Commission’s new harmonization policy coincided with a period of significant political change in a number of large member states (which led to a revival in member states’ interest in the completion of the internal market) and helped ignite a process of dialogue and debate that resulted in a new approach to harmonization in the Single European Act, 1985.

BSE

Notwithstanding these broader political developments, the question of food safety as a principle of European food law only came to the fore in the aftermath of the BSE crisis in 1996, when British authorities admitted the possibility of a link between BSE and Creutzfeld-Jakob disease. This particular crisis raised questions related to public health and safety, trade and commercial issues, and also agricultural and production methods, while also challenging the idea the progress was being achieved in the EU, and all at a time when the EU was holding a summit to revise the Maastricht Treaty – the agreement that had formally established the Internal Market.

In response to the BSE crisis, the Commission prepared its White Paper on Food Safety (2000) which identified a need to “re-establish public confidence in its food supply, its food science, its food law and its food controls”. Restoring public confidence would involve all parts of the food sector (a ‘farm-to-fork’ approach) and would be guided by five key principles:

  • clear definitions of the roles and responsibilities of stakeholders in the food chain;
  • traceability;
  • transparency of food policy;
  • risk analysis; and
  • use of the Precautionary Principle.

More specifically, the White Paper proposed the establishment of a European Food Safety Authority and advocated a comprehensive range of over 80 new or amended items of food law, including a general food law directive outlining the responsibilities and obligations to be placed upon all operators in the food chain. Whereas the 1980s were characterized by a ‘relaunching’ of the process of European economic integration, where food products and food regulation were still viewed in a primarily economic sense; by the end of the 1990s food could not, and was no longer viewed simply as a market commodity. The growing importance of food safety and consumer protection, recognised as both scientific and highly political issues, had led to a structural reorganization (evidenced by the restructuring and renaming of DG SANCO) as well as the creation of EFSA via Regulation 178/2002.

The General Food Law

Regulation 178/2002 (the General Food Law) was designed as a comprehensive, complex and integrated piece of EU law with as many as four Articles of the EC Treaty listed as its basis. Based on the principles expressed in the White Paper, Regulation 178/2002 established EFSA and laid down procedures for managing food safety, including the legal provision for a Rapid Alert System for Food and Feed. Another important feature of the General Food Law that can be taken as indicative of the evolution of food legislation from 1957 up to 2002 was the emphasis placed on accurate scientific advice and risk analysis, and an adoption of the Precautionary Principle, a policy that has been greeted with circumspection elsewhere.

Whereas in the 1980s, the fallout from the influential decision in Cassis de Dijon reinvigorated debate over food regulation and economic integration, by the late 1990s, the 1992 programme to create a single market was seen to have been a resounding success. However, in the deregulatory environment encouraged by the Single Market, the fact that food is perhaps not an appropriate candidate for deregulation was forgotten, and the political fallout from various food crises served as a stark reminder of this fact. These crises led to a shift in focus from free movement of goods, including foodstuffs, to the introduction of consumer protection and public health as a primary focus of the General Food Law.

Authors: James Gallagher and JP McDowell