The European Union exists to regulate, and therefore it regulates, as Descartes would have said; and in no area is that more true than in that of food law, argue food law experts Kasia Wilk & Chris Whitehouse.
The European Union is not particularly popular at the moment, and many would like to repatriate a good number of powers – if not leave the Union once and for all. Food law is one of those areas that has been quite extensively dominated by the EU legislators in the past decade. Clearly not all the rules adopted at the EU level have done a great job, but many would argue that the internal market has been overall quite positive for both EU consumers and food businesses alike. Food products are traded extensively across the continent, and harmonised rules, if proportionate and balanced, can help to ensure costs are minimised for businesses while providing better consumer protection.
The past ten years have seen some significant legislative developments: from the recent reforms of the common agricultural policy, new rules on nutrition and health claims, new food information/labelling requirements, new legislation covering foods for specific groups or recent proposals to reform novel foods legislation, official controls along the whole food chain, organic production/labelling; not to mention the establishment of union lists of additives or flavourings. The last few years have certainly not been quiet for food businesses, who have had to continuously adapt to new requirements. This is unlikely to change over the next legislature, despite the political turmoil currently taking place, as work will continue on many of the initiatives already on the table.
Nutrition & Health Claims
The Regulation on nutrition and health claims made on foods, adopted in 2006, is still being implemented and is a serious headache for all concerned. This includes the regulators who still have to implement some of its requirements, but who have decided to place many issues – such as botanical health claims or nutrient profiles – on hold due to unforeseen complications; the enforcement authorities who are struggling with uniform interpretation and enforcement of the rules; and in particular food business operators who are trying to survive through this regulatory storm. This Regulation or rather its implementation has been quite extensively criticised, threatening a number of sectors, with the notable example of ‘probiotics’ or ‘botanical supplements’. There have been calls to change the European Food Safety Authority’s (EFSA) health claims assessment process, compared by some to a ‘pharma-style’ model, and it remains to be seen how regulators and the industry will cope with the next steps of this legislation, quite significantly delayed already.
Information to Consumers
Industry will also have to deal this year with the new labelling requirements of the Regulation on food information to consumers which will apply from 13th December 2014. There is still some uncertainty regarding the interpretation of certain provisions, and guidance development is a long process. Some implementing/delegated act still needs to be adopted, and issues such as country of origin labelling for certain product such as meat or milk, on which reports have been foreseen, are likely to be brought forward in light of last year’s horsemeat scandal.
Infant, Medical & Slimming Foods
The next two years will also see the implementation of the Regulation on foods for specific groups covering foods for infants and young children, medical foods and slimming foods. This Regulation revises the whole framework currently covering dietetic foods and will also have an impact on other foods which were previously in a regulatory limbo, including sports foods, gluten-free / lactose-free foods or foods for diabetics. Whilst EU legislation is often criticised for being burdensome, this Regulation is clearly an attempt by EU regulators to reduce red tape. The European Safety Authority and the Commission are currently working on the detail of the delegated measures provided for by the Regulation; and businesses concerned should not miss this opportunity to engage.
Protecting the Food Chain
Work in the European Parliament and the Council will continue on the Commission’s proposed package of measures designed to strengthen the enforcement of health and safety standards for the whole agri-food chain. The package of reform cuts the current body of EU legislation covering the food chain down to five pieces of legislation – dealing with the areas of official controls; animal health; plant health; and plant reproductive material. This package, which has already been debated by the Parliament at first reading, is now awaiting Council’s first reading position.
Novel Foods & Cloned Animals
Novel food/ ingredients, as well as foods from cloned animals, will also give rise to an important debate. Whilst a previous Commission proposal to reform the framework has been blocked over the issue of cloning, the Commission has presented new drafts that will be discussed by the European Parliament and the Member States in the next two years.
Just before the elections, in March, the Commission also published a proposal reforming the regulatory framework covering organic products. Clarity and commitment to cut down on the sort of food fraud which can imperil the organic sector’s reputation is all welcome. But, some in the EU are uneasy that new rules may be far too burdensome and there are ominous rumblings from the two big EU powers, France and Germany, that they are particularly dissatisfied.
Sustainability & Public Health
The above legislative dossiers and foreseen initiatives are not the end of the list. Food sustainability is also high on the political agenda with a target of reducing edible food waste by 50% by 2020. A communication from the European Commission on this issue is expected quite shortly, and many point their finger to dates of minimum durability/‘use by’ dates as a solution. Public health issues also add pressures on the Commission to address some pressing problems such as obesity, and debates around food taxes may therefore start again.
Transatlantic Trade Negotiations
Finally, whilst the EU continues work on strengthening consumer protection, often adding regulatory complexity, few are concerned by the Transatlantic Trade and Investment Partnership (TTIP) on which negotiations have started. The aim of this agreement is to remove trade barriers (tariffs, unnecessary regulations, restrictions on investment etc.) in a wide range of economic sectors so as to make it easier to buy and sell goods and services between the EU and the US. How this will work out for the food sector – where regulatory approaches are often radically different – is questionable, and this certainly deserves great attention and engagement, in particular in light of the opaqueness of the negotiations being conducted.
Time to Engage
Businesses must wake up and engage. Changing and influencing the legislation is possible, and we at Whitehouse never fail to be surprised by the number of those who prefer to pay the massively bigger cost of complying with inappropriate requirements rather than engaging with the legislative process to mitigate the impact of burdensome legislation whilst that is still possible.
Authors: Kasia Wilk & Chris Whitehouse