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 NestlĂ©’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 NestlĂ© 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.