Wednesday, 30 March 2011

What is Food? A Brief Legal Perspective

I recently wrote an article on my Dairy Dream blog called What is Milk? and it dawned on me that an article called What is Food? for this blog is just as important, if not more so. I took a stab at it in my article called Zero Tolerance or Zero Protection about animal feed with this:

“The dictionary meaning of food is rather basic: a source of material that provides living things with the nutrients they need for energy and growth. However, the legal definition of food in Europe doesn’t even cover that much. Food and foodstuffs in Article 2 Regulation (EC) No 178/2002 are defined as “any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans” with a list of excluded items which includes medicinal products. What is reasonably expected to be ingested by humans is a very grey area nowadays and much so-called food and foodstuffs do not provide the nutrients needed for energy and growth, never mind promoting health and well-being. Although animal feed is also excluded from the legal definition of food, when it contains gmos, it is a potential contaminate of our food which scientific evidence has shown could affect our health and well-being negatively.”

When I began my examination of what food is, I found that the purpose is missing in the European law definition. Biologically, food is ingested for the purpose of sustaining energy, growth, health and well-being. Anything intended to be ingested for other reasons, should not be called food. But as I discovered, this is far from the case.

For an example of what should not be considered food, I would point to most of Nestlé’s products. The energy derived from them is short-lived and the growth they nurture is mostly of an unhealthy kind (such as obesity and cancer). The common sense definition of food implies a certain standard of nutritional viability. But the EU legal definition of food implies that just because a producer or manufacturer intends something to be ingested by humans is enough for a product to be considered as food.

In European food law, food may include exclusively or as part of a foodstuff the following controversial substances:

alcohol (according Dr Cass Ingram, to name just one medical professional with this opinion, alcohol is a poison to the endocrine system and especially destructive to the pituary gland. It is also highly toxic to the cells of the brain, liver, stomach, testes and ovaries)

additives including artificial flavourings and colourings and substances that perform a ‘technological need’. This does not mean that the product cannot be satisfactorily manufactured without use of the additive, but rather that it usually serves a highly deceptive purpose such as making the product last longer (even a little), and adding taste or appearance to imitate an ingredient which is does not contain.

ingredients normally not considered food such as larch wood

synthetic vitamins and minerals

water (in plastic bottles)

sugary drinks

caffeine products such as black tea, coffee and Red Bull (besides having some negative health claims, caffeine is an addictive chemical) (See Caffeine Allergy)

sugars, in various forms and added in high levels (also addictive)

Also, there is a growing trend of adding medicines and narcotic or psychotropic substances to food, such as a psychotropic substance derived from chilli. I’m not sure at what point a product is not food because of the medicinal substances added to it.

The problem is similar to something out of a sci-fi movie or out of Star Trek. We will soon be faced with the question of what is human. Just as the natural components of food are being manipulated and created artificially, so too are human body parts and artificial intelligence. Moreover, humans are evolving. I wouldn’t be surprised if someone on the planet could already be classified as a different species of humanoid because of chemical adaptations caused by the pollution in our environment and food. This may all be very well, except from what I can see, the world is not becoming a nicer place to live, but quite the reverse. Where we go from here is the difference between living on the planet Earth as it has been over the last few thousand years and living on a Borg cube where food, whatever way one defines it, is irrelevant.

The food industry is becoming more refined and complex, but the law is not keeping up. I would propose a new umbrella term to be used instead of food, say, Ingestibles.  EU Ingestibles Law - I think it has a real ring to it, just like the modern products it would cover. The definition of food, then, could be refined to include nutritional viability thresholds, and require that the product is natural.  Definitions for the other products such as alcohol, confectionery, processed foods, and sugary drinks to name a few could also be refined. Such categorisation could be used more effectively for tax purposes. Taxes raised in this way could be used to supplement the health care system and/or local, natural farming enterprises. Natural Food, as newly defined, should not be taxed and affordably priced so that everyone could afford a real healthy diet.

Our government working in partnership with corporations is not the solution. More restrictive measures are needed to combat the obesity pandemic. The first line of defence is re-examining the foundation blocks of our food law. We need to get to grips with improving the legal definition of food, especially processed foods and the ancillary legislation.

Take for instance ingredients of a food product which are defined in Directive 2000/13 EC as:

“any substance, including additives, used in the manufacture or preparation of a foodstuff and still present in the finished product, even if in altered form.”

An ingredient can be any substance. All kinds of things are used such as feathers, skin, bark, genetically modified enzymes, and any number of synthetic chemicals.

When it comes to the international trade of food, an overriding narrow perspective can be found in Annex A of the Sanitary and Phytosanitary (SPS) Agreement:

“... to protect human or animal life or health within the territory of the member from risks arising from additives, contaminants, toxins of disease-causing organisms in foods, beverages or feedstuffs; to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, of from the entry, establishment or spread of pests...”

What this means is that the protection of human health in international law is based on food being safe. Food that is safe will not cause immediate illness or death, but it also may not provide any nutritional benefit. This is just another example of why in law our food does not need to be nutritionally viable and why companies can get away with selling us foodstuffs that obviously lead to illness in the long-term.

Although I did not learn about this in law school, “The Committee on Sanitary and Phytosanitary Measures is to monitor the international harmonisation process and co-ordinate efforts in this regard with the relevant international organisations” as explained in EU Food Law and as set out in Article 3 of the SPS Agreement. As far as I can tell, this is harmonisation of law without due democratic process.  International harmonisation is the path to the lowest common denominator.

Perhaps more interestingly, a point of reference for food standards in our national governments and courts comes from the international level as well, from the Codex Alimentarius (food code) which covers food composition including pesticide traces, contaminants, veterinary drugs and additives, as well as hygiene and technological practices. The Codex Alimentarius Commission is responsible, among other things, for protecting the health of consumers. Surely this should include some aspect of a nutritional standard in food? But considering the Codex Alimentarius Commission is basically run by corporations as explained In Corporate Power in Global Agrifood Governance, is it any wonder that unhealthy corporate food products are allowed to remain on the market?

Indeed, although the 1992 International Conference on Nutrition recommended that food quality should be improved, a very scanty minimum level was set which is mostly evident by the information gleaned from labels on food stuffs. As a consumer, I’m glad that filthy, putrid, rotten, decomposed or diseased substances or foreign matter are disallowed. False, misleading and deceptive products are also considered unfair trade practices, although many corporations are straddling the line on these. However, there is no protection to ensure that our food is wholesome and nutritious. Is that putting the bar too high?

In addition, the Codex Alimentarius allows for up to five per cent of a food stuff without declaration on the label, unless it is an additive that serves a technological function. I am referring here to compound ingredients for which a name has been established in national legislation or in a Codex standard.  On this basis, if less than five per cent of the final product, the ingredients that make up the compound ingredient do not need to be declared unless included on the brief list of foods and ingredients known to cause hypersensitivity as well as pork fat, lard and beef fat (Codex Stan 1-1985).  This is a handy rule to protect recipes, but not great for the discerning consumer.

From the Directive 1989/107 EEC Annex II para 2:

“The use of food additives may be considered only where there is evidence that the proposed use of the additive would have demonstrable advantages of benefit to the consumer ...” as long as it serves a purpose allowed by the legislation AND no alternative is economically and technologically viable. This is how Nestlé is able to argue that the additives Gelatine, Fructose, Vegetable Gums (440,415,412), Flavours, Acidity Regulators(296,331), and Sweeteners(950,951), in its so-called diet yogurt with fruit are advantageous to the consumer.

Protection to consumers from additives is given on the one hand (advantage of benefit), and taken away with the other (no economically and technologically viable alternative). Basically, this gives manufacturers carte blanche to add any additive that serves an allowable purpose and goes through a legal process to determine that it is safe in the immediate short-term. The evidence that it is safe and ‘needed’ by the consumer is provided by the manufacturers. It will be based on scientific evidence that will be complex and slanted towards the interests of the manufacturer, with profits being the ultimate consideration. Just how far corporations go or will go down the route of including dubious ingredients to their products, many of which are addictive, is becoming alarmingly clear.

At this point, I was drawn into research on baby formulas. A few colleagues and I were recently discussing junk food and how eating patterns are mostly developed at an early age. Pre-conception and pre-natal diets are important in this respect. Later, I’ll be writing an article about mother’s milk substitutes and the foods geared for toddlers. My preliminary research showed that the amount of sugar in one form or another which is added to baby formulas is often as high as 43 per cent.  (See, Baby B'org Food)

In conclusion to the question of what food is though, legally, food can be just about anything. It doesn’t have to be good for you. It doesn’t have to have any nutritional value. It just needs to avoid causing immediate illness and be economically feasible, which means it needs to sell ... preferably a lot.

Advertising, flavourings, colourings, texture, propaganda and all sorts of other tricks of the trade are used to sell us cheap junk that is disguised as food while our real food has all but disappeared from the shelves. And the law says that as long as it’s intended or reasonably expected to be ingested, go for it. There is now a 67% chance of the ‘reasonable man’ being overweight in many places (predicted to be 75% in US by 2015). What’s reasonable about that, I don’t know. Is it intended that so many people have long-term diseases in developed countries? I will leave you with those questions as food for thought.  But it seems clear to me that generally, what many call food is causing ill-health and obesity and the law endorses this.

Book Review - EU Food Law

EU Food Law, Protecting Consumers and Health in a Common Market, by Caoimhín MacMaoláin
Oxford: Hart Publishing, 2007, 285 pages including Index.

Excellent book on an aspect of European food law that is of vital importance but not often discussed. Caoimhín MacMaoláin brings the scale of the problem to light by reminding the reader of the health scares that have arisen since the mid-1980s including listeria in cheese, salmonella in eggs and chocolate, BSE, GMOs, toxins, foot and mouth, bird flu and e-coli. These incidences have occurred despite the focus of EU food law on safety, but also have caused the law to focus more intently on safety in recent years. To this end, he discusses how the law has developed with a myopic view.

MacMaoláin explains that in undergoing the process of harmonisation of law between Member States, European Community food standards have often had to cater to the lowest common denominator. This has allowed, possibly even caused, deterioration in the quality and nutritional composition of the food traded. It has also spurred the rise in long-term diseases, the biggest one being obesity.

In addition, MacMaoláin shows how the manner in which EU food law has developed has caused Member States to become relatively impotent when it comes to taking any meaningful action to counter the current health crisis, especially obesity. He explains that “Articles 28 to 30 EC and the related case law make it almost impossible for Member States to introduce measures designed to protect human health unless the foodstuff in question poses a precipitate danger to health, as opposed to merely eroding it in the longer term” (p 15).

In order to avoid consumer deception, unfair trading practices and unhealthy practices due to an uncoordinated food law structure, he sets out a three-pronged alternative approach to EU food law and policy:

1. Reconsideration of the decision taken by the Commission to cease harmonising food standards for all products;

2. Relaxation of the over-regulation of all aspects of the food production process and a resultant move towards more simple common standards; and

3. Instead of concentrating on food safety, emphasising that food should be high quality and beneficial to health.

MacMaoláin argues that the Article 30 EC exception to the prohibition on measures equivalent to quantitative restrictions on imports was not intended to relate to imminent dangers to human health only. He believes that “[t]he preservation and improvement of health is of at least equal importance” (p 45). Nutritional value, however, is not equated with any threat to human health under European food law. Rather, he demonstrates how the law is solely “...designed to prevent threats to human health from specific and determinable ill effects, usually due to either contamination or disease” (p 46).

To highlight the size of the problem, MacMaoláin says that “Avian flu, salmonella, mad cow disease and dioxins combined have never killed as many people in a year as die daily within the EU from obesity and its sequelae” (p 175). He further clarifies that “...harmful ingredients of a food product, such as sodium, sugar and trans fatty acids, remain firmly outside the remit of EFSA (European Food Safety Authority) and EU food safety policy more generally” (p 195). Finally, he says that “Member States ... remain paralysed as regards the extent to which they can intervene domestically in order to counter the fact that diets are becoming increasingly dangerous throughout the EU, resulting in very serious health concerns for a large proportion of its citizens” (p 219).

I particularly found MacMaoláin’s discussion about the law in relation to labelling interesting in that it explains how some unexpected and hidden ingredients make their way into food stuffs. And with a discussion of food law on an international level and how it ties in with European law, he covers the situation fully.

For further discussion of these issues, see also my article called What is Food? A Brief Legal Perspective

Wednesday, 23 March 2011

Italians Scheme Resistance

The Financial Times reported on 22 March 2011 that politicians in Rome are seeking an “Italian industrial solution” to foreign takeovers (aka assimilation) especially in vital sectors such as energy, telecoms, technology, defence, and most importantly, food.

Unlike the Financial Times reporter who expressed the hope that this effort would fail (on behalf of the shareholders), I am delighted by the effort, and wish them the best of luck. However, if it is based on the French-style of thwarting unwanted foreign takeovers, I’m not sure how effective it will be considering last week’s 50% buyout of Yoplait by General Mills. (General Mills was in the news again on 23 March 2011 making record profits selling junk food snacks at higher prices in foreign markets.) Perhaps that was seen as a desirable takeover by the French government?

Italians do have a reputation in Europe of being proud of their food. Even exports such as parmesan cheese and durum wheat pasta are well-known for quality.

This recent news started with Lactalis, a French dairy company that has a dairy joint venture with Nestle SA, taking control of 29 per cent of Parmalat, one of the few Italian multinationals in the food industry. Parmalat generated about 4.3 billion euro in 2010 with its milk, dairy products and fruit beverages, but things haven't always been so rosy. It accounts for about 9 percent of Italian food production. And, interestingly enough, I noticed that Lactalis’s 1.4 billion- euro bid for all of Yoplait was rejected last year. Having been unsuccessful in its own country to expand, Lactalis went to Italy instead.

The Italian government is probably too late to protect this particular corporation because it has already jumped into global market competition. Once a company has reached this size and scale, it becomes prime bait for the larger, world players.

However, Industry Minister Paolo Romano told parliament the government was following the Parmalat case very closely and wanted to ensure that the entire chain of food production was kept in Italy. Further, according to Reuters, he said:

"For this reason, there have been meetings with the main operators in the sector with the aim of creating an alliance which would put financial and industrial participants together to create a national food grouping that would be in a position to compete on the global market".

If the Italians join the global market in the guise of a national alliance, they’ll be game for takeover as in the UK which is working in partnership with transnational corporations and in the US where such corporations often are the government.

It is further reported that Italy’s antitrust authority is investigating whether Lactalis’s control of Parmalat would violate competition rules. Considering the state of the global food market, I wouldn’t hold my breath for a result using European completion law.

The only solution is to keep food production and consumption local and any international trade in food on a small scale. But resistance of any sort is fertile, especially an anti-takeover decree, even if the company does have a shady past and products that I would not classify as real food.

Photo Credit: "Italy to defend companies from foreign buyouts" France 24.

Just hot off the press from the Financial Times (23 March 2011, 7:20pm):
Italy revs up drive against foreign takeovers
Italy has stepped up a campaign against French buy-outs of Italian companies, drawing up a bill aimed at thwarting unwanted foreign takeovers and opening a tax probe into two deals.
http://www.ft.com/cms/s/2219810a-557f-11e0-a2b1-00144feab49a.html


Friday, 18 March 2011

Assimilation Continues

A big link in the B’org Food Chain, DuPont, has been making the news recently. According to Reuters, with its acquisition of Danisco, the Danish food additives and enzyme maker, nearly half its revenue will come from food sources. DuPont is an American chemical company that was founded in July 1802 as a gunpowder mill and was one of largest chemical companies in 2009. It has been well known for its paint products. But like its rivals Monsanto, BASF and Dow Chemicals (to name a few), DuPont believes that food science and seeds are the areas for growth opportunity in the future.

Another link in the B’org Food Chain which was getting bigger and stronger this week is General Mills, another American company, this time taking over 50% of the popular French yogurt business, Yoplait, at a cool €1.6bn. This story was in the Financial Times on 18 March 2011. General Mills is best known for its extruded boxed cereals of dubious nutritional value. This move is probably an attempt to get on the healthy food bandwagon that’s so popular today with these transnational corporations and others such as Nestlé.

Photo Credit:  Wikja, Assimilation. Corporate takeovers are amazingly similar.

Thursday, 10 March 2011

Waitrose Joins the TNC Gang


The John Lewis Partnership, including the department store and Waitrose, a supermarket I used to enjoy, is rolling out plans to expand globally and become a true transnational corporation (TNC).

In February 2011, Waitrose opened its first wholly owned venture outside the UK with a store in Jersey. As reported in Marketing Week, it is the first of five Channel Island stores planned to open this year.

Also in Marketing Week, “Waitrose has sold its own brand products as an FMCG brand in Channel Island retailers Checkers and Safeway for more than 10 years.” It also ships its own label products to countries including Barbados, Bermuda, Cyprus, Dubai, Falkland Islands, Grenada, India, Kuwait, Qatar, Tortola, Trinidad, Saudi Arabia and St Lucia.

However, the news in the Financial Times today (10 March 2011) is that John Lewis is expanding into the US and Australia. Last month, the Financial Times reported that it was expanding into Europe.

The Financial Times also reported today that Morrison invests £32m in the US online grocer FreshDirect.

Last week the Financial Times reported that Tesco is pushing into northern California with two stores called Fresh & Easy.

Obviously, the global food industry rivalry is hotting up. To stay out of the firing line, avoid supermarkets!

Wednesday, 9 March 2011

Skippy the Salmonella Please

The news that caught my eye today (9 March 2011) was about Unilever's Skippy Reduced Fat Creamy and Super Chunk Peanut Butter Spreads and the salmonella contamination in many US states. Please see the Chicago Tribune for the story or just Google it.

Apparently, in 2009, this little bacteria caused the mighty Peanut Corporation of America to go bankrupt and implicated the even mightier Conagra. Now it's got another corporation on the run while probably giving more consumers the runs. It could even kill one or more.

Not only is Unilever selling an inferior product in that the natural fat has been taken out (probably to sell on as peanut oil for more money because some countries use it as much as olive oil), but it has added something that used to be rare in food which is highly risky for young and old alike.

Skippy’s logo for it's peanut butter products is ‘Fuel the Fun.’ In my opinion, this is a strange way to have fun. As my readers may already know, I have fun looking at ingredients lists on labels. Rather than simply creamed peanuts, besides salmonella, here’s what's in Skippy Reduced Fat Creamy:
  • roasted peanuts (without skins which happen to be a  rich source of extractable procyanidins, an antioxidant that could rival that of grape seed polyphenols)
  • corn syrup (reduced fat, but lots of sugars)
  • sugar
  • soy protein (how do they know this goes well with peanuts I wonder)
  • salt (probably unnecessary for weight conscious people)
  • hydrogenated vegetable oils (cotton seed!, soybean and rapeseed) to prevent separation (God forbid that we would have to use a little effort and stir it)
  • mono and diglycerides (??)
  • minerals (magnesium oxide, zinc oxide, ferric orthophosphate, copper sulphate) no explanation for these additions
  • vitamins (niacin amide, pyridoxine hydrochloride, folic acid) obviously the more obscure ones you probably didn’t know needed to be added to peanut butter
Since this is in the US, the corn syrup, soy protein and hydrogenated vegetable oils are most likely from genetically modified plants.  I also like to analyse the nutrients list, but here the ingredients list really says it all.

Best bet is not to eat peanut butter. Roasted peanuts with the skin left on are a great snack and so easy to prepare. But if peanut butter is a must-have in your kitchen, for health’s sake, please skip the reduced fat versions and skippy the salmonella!