The food scares of the 1990s, none more so than the outbreak of Bovine Spongiform Encephalopathy (BSE) in beef, highlighted the Commission’s inability to respond quickly and effectively in the emerging crisis. BSE is “commonly regarded as the ‘trigger’ for the reform of [the then] existing legislation and the establishing of new regulatory institutions across Europe.”1 Whilst the incidence of BSE was considerably higher in the UK in the years since 1987, cases throughout Europe resulted in an EU wide response.2
Greater consistency, flexibility and speed of response has been achieved since 2000 through the much greater use of regulations, which are directly effective in all Member States at the same time, in place of directives which had been the main vehicle for the implementation of EU food law in the past.
The EU food law framework itself was established by the general food Regulation (EC) 178/2002 which provides the basis for assuring a high level of protection of human health and consumers’ interests in relation to food, taking account of the diversity in the supply of food, including traditional products, whilst ensuring the effective functioning of the internal market.
The Regulation sets out general principles governing food and feed, particular attention being given to food and feed safety, at both the EU and national levels. It applies to all stages of the production, processing and distribution of food excluding production for private domestic use or consumption. The development of EU law is more fully described in the section on European Union Law.
In the UK the General Food Regulations 20043 provide for the enforcement of Regulation (EC) 178/2002 which also brought about a common definition of ‘food’ throughout the European Union and to which section 1(1) of the Food Safety Act 1990 Act now refers. This common definition describes food in broad terms before setting out a number of specific matters which drew heavily on the formulation adopted under the 1990 Act.4 In broad terms:
… "food" (or "foodstuff") means any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans.
In the years which followed significant areas of law have been reformed. Directive 2004/41/EC undertook the wholesale repeal of the overwhelming majority of earlier hygiene legislation, some 16 directives. Food hygiene is now governed by three central regulations: Regulation (EC) 852/2004 on foodstuffs, Regulation (EC) 853/2004 for food of animal origin and Regulation (EC) 854/2004 on controls on products of animal origin intended for human consumption.5
Central to the new framework is the requirement, from 1 January 2006, under Regulation (EC) 852/20046 to adopt arrangements based on the principles of Hazard Analysis and Critical Control Point (HACCP) which is a seven stage approach to the management of food safety hazards.
A further area of reform has been in food labelling. The food information to consumers Regulation (EC) 1169/2011 comes substantially into force on 13 December 2014 and for the time being Directive 2000/13/EC remains in force. Regulation (EC) 1169/2011 taken with Regulation (EC) 1760/2000, which covers the labelling of beef and beef products, together form the core EU horizontal labelling legislation, but there are a further 11 vertical directives and regulatory provisions concerning compositional standards, labelling and associated criteria.7
The role played by the general food Regulation (EC) 178/2002 in the development of food law and, in particular, hygiene and labelling was clearly significant. The Regulation was a “major pioneering piece of EU food law and in many ways the ‘high water mark’ of the food safety agenda”8 and provided the basis for addressing coherence in, for example, defining ‘food’ and the adoption of common terms.9 More delegation to the Commission10 and the greater use of regulations in place of directives have undoubtedly provided greater certainty, transparency and consistency, they can also be more swiftly changed to accommodate new situations.
There have also been major developments in the areas of organic production,11 genetically modified foods12 and nutrition and health claims13 where more information may be found in the appropriate section of Artisan Food Law.
Meanwhile, in the UK we have witnessed the developing role of the Food Standards Agency and the way it has sought to work with local authorities, although it now seems likely that Scotland will, following the recommendations of the Scudamore report, in particular that food safety should not be divorced from nutrition and labelling, soon have a new agency which brings these responsibilities under one roof. In England these are spread across the Food Standards Agency, Defra and the Department of Health. The FSA having been slowly stripped of these and other responsibilities since 2010.
In early 2013 the Food Safety Authority of Ireland identified quantities of horse meat in processed beef products. The scandal which then unfolded resulted in the withdrawal of millions of products from supermarket shelves across Europe. The FSA has been widely criticised for failing to spot the problem much earlier.
The Elliott Review into the Integrity and Assurance of Food Supply Networks was commissioned by the Government in the wake of the scandal and Professor Elliott published his final report on 4 September 2014. Elliott acknowledged that food supply chains are complex providing many opportunities for the commission of food fraud by organised criminal networks. There is no simple solution but Elliott sets out an approach based on eight pillars of food integrity. The Government has accepted Elliott’s recommendations, including the creation of a new Food Crime Unit which is to be based within the FSA but for which no additional funding has been provided. It remains to be seen what impact this will have on the future operation of the FSA.
The longer term shift in the agenda for the development of EU food law has moved into what some see as going beyond food safety and having a greater focus on nutrition. Raymond O’Rourke predicts a more diverse future development of the law and sees:
… changes in the CAP, the market for organic food products, the Slow Food movement’s desire to protect traditional food production methods and food cultures as being those “forces” moving EU food law in a new direction.14
The proposed reform of the Common Agricultural Policy for 2014-20 when released in October 2011 showed much promise, but to the disappointment of many turned out to be business as usual and a missed opportunity.15
There also remain a number of areas of food law that are left to the discretion of Member States to determine whether and, if so, how to regulate the production, distribution and sale of food. More recently the spotlight has fallen on raw or unpasteurised drinking milk, one such area of food law, following the FSA’s decision to review controls governing the availability of raw drinking milk. The FSA’s high profile prosecution of Selfridges department store in London and an East Sussex raw milk producer for the sale of raw milk from a vending machine was eventually dropped, but the review continues.
1 Tim Knowles, Richard Moody and Morven G McEachern, ‘European Food Scares and their Impact on EU Food Policy’, British Food Journal, 2007, Volume 10, Number 1, p53
2 Ibid., p54
3 SI 2004/3279
4 Regulation (EC) No 178/2002, Article 2
5 Barry Atwood, Katharine Thompson and Chris Willett, Food Law, 3rd edition, Tottel, 2009, p249
6 Article 5
7 Defra and FSA, Tables of Animal Health and Welfare and Food Legislation, November 2012, p11
8 Raymond O’Rourke, European Food Law, 3rd edition, Sweet and Maxwell, 2005, p8
9 Regulation (EC) 178/2002, Article 3
10 European Commission, 1999, page 28, para 81
11 Regulation (EC) 834/2007
12 Regulation (EC) 1829/2003 and Regulation (EC) 1830/2003
13 Regulation (EC) 1924/2006
14 Raymond O’Rourke, 2005, para 1-010
15 ARC 2020, Parliament CAP Vote: Poor Deal for Nature, Farming and Rural Europe, 21 November 2013