Wednesday, 30 March 2011

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