Abstract
The question that is addressed in this chapter is whether food fraud can be mitigated using principles, next to or instead of rules. In many ways, principles may be preferred, as they reduce the regulatory burdens and avoid formal compliance while at the same time violating the purpose of food information rules. Food fraud implicates not only a violation of substantive product and/or food processing norms, but also an information violation. With principles fraudulent behaviour can be obstructed, especially what we have depicted as ‘fraud-by-effect’: formal compliance while at the same time misleading the consumer. The adoption of the ‘substance over form’-principle, well-known in financial accounting law and practice, can enrich the tool bag of instruments to protect the consumer.
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Notes
- 1.
Foucault (1966).
- 2.
See in this context a summary of works on “principles” provided by Semmelmann (2014), p. 313, note 46. She states at p. 316 that “The absence of delineations of the concept of principle or of the generality of principles reflects their nature as exotic beings”.
- 3.
Von Bogdandy (2010), p. 95.
- 4.
Von Bogdandy (2010), p. 96.
- 5.
Concepts like ‘rule’ or ‘principle’ are polluted through multiple interpretations and delineations; nevertheless, we use them to not being forced to define new concepts and with the danger to get into discussions that are out of the scope of this piece of work, that is intended to add a norm to the present stated principles governing food information for consumers practices. As ‘working definition’ of ‘principle’ is proposed ‘a fundamental obligation to attend to, which is of higher level than specific rules’ (see similar by Black 2007, p.192); rules are meant as immediate ‘do’s and don’ts’, as in the vision of Dworkin and/or Alexy. In the context of this practical, not legal-fundamental, contribution, the here stated working ‘definitions’ are appropriate. We also limit ourselves to the principles which have been positively included in legal texts of (mainly) secondary European (food) law.
- 6.
Dworkin (1967).
- 7.
See extensively Shapiro (2007).
- 8.
We use the term rule-based as opposite to principle-based, and regulation in a broad meaning, not in the more narrow sense like in Orbach (2012), p. 10, but as Julia Black and also Havinga use the term “the sustained and focused attempt to alter the behavior of others according to defined standards or purposes with the intention of producing a broadly defined outcome, which may involve mechanisms of standard-setting, information gathering and behavior modification”. It includes setting of norms, monitoring and compliance enforcement. Havinga (2006), p. 20, citing Black (2002).
- 9.
In the GFL, Article 3 point 9, ‘risk’ is described as a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard. The first element is influenced by precautionary measures.
- 10.
Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs; Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, respectively.
- 11.
Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1991 concerning novel foods and novel food ingredients, and Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, respectively.
- 12.
Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption.
- 13.
See Black (2007), p. 192.
- 14.
Among others Black (2007), p. 192, point 7.
- 15.
Article 114 TFEU.
- 16.
First case transmissible spongiform encephalopathy in the UK was detected in 1987, subsequently leading to the death of hundreds of humans due to the Kreutzfeldt-Jacob disease.
- 17.
In 1999, in Belgium PCB’s with dioxin infested animal feed and next entered the food chain to unacceptable levels. In 2004, in the Netherlands, dioxin migrated into the feed chain via potato peels which came in contact with contaminated clay.
- 18.
See for instance Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies.
- 19.
Black (2007), p. 192.
- 20.
van der Zee (2016).
- 21.
See Sawer et al. (2013).
- 22.
Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004. OJ L 304, 22.11.2011, pp. 18–63.
- 23.
Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs. This is a follow-up of Directive 79/112/EEC of 1979.
- 24.
Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs.
- 25.
Like global sourcing and the use of multiple ingredients from all over the world, market gains of convenience foods, the consumers’ call for complete information on allergens, a better legibility, the quest for information on the country of origin or place of provenance of foodstuffs, extended information on special treatments products have undergone (like imitating ingredients), the use of novel ingredients and substances (like nano-engineered material in foods and packaging material), as well as e-commerce.
- 26.
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’, UCPD).
- 27.
Like is the case with Directive 2006/114/EC on misleading advertising, which focuses at messages in b-to-b relationships and comparative advertising.
- 28.
For instance, to it not only belong separate horizontal acts, but also (semi-)vertical requirements for primary foodstuffs (Regulation 1308/2013), for food supplements (Directive 2002/46/EC) and for special foods (Regulation 609/2013), separate requirements on additives (Regulation 1333/2008), enzymes (1332/2008), as well as specific rules on GM-food authorisation and labelling (among others Regulation 1829/2003), and many more.
- 29.
Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products and repealing Council Regulation (EC) No 820/97.
- 30.
Wright and Head (2009), p. 194.
- 31.
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
- 32.
These are protection against fraudulent an deceptive practice, adulteration of food and misleading. Additionally, in Articles 9 and 10, the General Food Law gives for the procedures in information law crafting, making the principles of public consultation and information.
- 33.
In a competition law context (UCPD), ‘misleading’ is delineated as actions and omissions that negatively affect the commercial interests of consumers.
- 34.
See also recital 44 of Regulation 609/2013, Articles 11 and 52 of the Charter of Fundamental Rights, which notably are not on equal terms with the general objectives of the EU law, as enshrined in the TEU. See also case C544/10 (‘Weintor’) elaborated on in van der Meulen and van der Zee (2013).
- 35.
See the European Commission’s White Paper on Food Safety (2000).
- 36.
See for instance DG Sanco (2004), pp. 5–6.
- 37.
Summed up in Article 51 of the FIC.
- 38.
The Commission has been granted substantial powers to supplement the present rules and regulations on a considerable amount of topics, like representing mandatory particulars with pictograms or symbols (Article 9 (4) FIC, revising the list of allergens in Annex II and via Article 21(2), rules for legibility, exemptions and additions (f.i. alcoholic beverages containing >1.2% alc./vol.), or with respect to ingredient listing via Article 6, providing and revising definitions on ‘alcopops’, on ‘engineered nano-materials’ via Article 18(2), on origin labelling (of among others meats other than beef, already amended) in Article 26, requiring additional particulars for certain foods in Annex III, etc.
- 39.
See European Commission (2000).
- 40.
Arienzo et al. (2008).
- 41.
Like ‘fair-trade’-trademarks or extra requirements on organic products/production.
- 42.
Defined in Article 2(2) point (t) of the FIC as any intentionally produced material that has one or more dimensions of the order of 100 nm or less or that is composed of discrete functional parts, either internally or at the surface, many of which have one or more dimensions of the order of 100 nm or less, including structures, agglomerates or aggregates, which may have a size above the order of 100 nm but retain properties that are characteristic of the nano-scale.
- 43.
Such as mandatory indication of the origin of meats from pig, sheep, goat and poultry.
- 44.
For unprocessed beef, origin labelling is obligatory as a response to the BSE-crisis (Regulation (EC) 1760/2000, Commission Regulation (EC) 1825/2000; Also for some other primary products, like fruits and vegetables, the country-of-origin indication is mandatory on the basis of the marketing standards.
- 45.
In the EU, Protected Geographical Indications (PGI’s) and Protected Designations of Origin (PDO’s) can be applied for, as well as for Traditional Specialties Guaranteed.
- 46.
By means of installing and maintaining competition rules, Article 101 TFEU et seq.
- 47.
For as far as the business name is attached to the food or the business that provided the information is under control of another business (article 8(1) and 8(5) respectively).
- 48.
US Case Pierson-Shalala, 164 F.3d 650, 1999.
- 49.
van der Meulen et al. (2014).
- 50.
CJEU, case C-210/96, Gut Springenheide, ECLI:EU:C:1998:369, para 31. In the FIC, a gradual shift can be observed towards a more differentiated consumer concept. Among others in recital 2 ‘the health and well-being of citizens’, recital 16 and Article 1 ‘differences in perception of consumers’ and in recital 40 ‘young and vulnerable consumers’.
- 51.
Not in chapter II, concerning general principles of Food Information, but in chapter 3 which is headed “General food information requirements and responsibilities of food business operators”.
- 52.
Article 7(1) FIC: [Food information] should not be misleading as to its characteristics, attributed properties, special characteristics assigned to the food (absence or presence of an ingredient for instance), suggesting a food can prevent, reduce the risk of or cure a disease (exemptions are foods for which claims have been authorized and mineral waters or food supplements), or substitution of a naturally present food or ingredient by an inferior one. ‘Fairness’ includes also the requirement that food information should be accurate, clear and easy to understand.
- 53.
Which has the advantage over voluntary (i.e. marketing) messages, but impedes producers’ opportunities to express commercial messages.
- 54.
Capacci et al. (2012).
- 55.
These can be derived from the “verifying regulatory fitness questions” stated in the Better Regulation Policy of the Commission in the Staff Working Document (Better regulation Guidelines) COM(2015) 215 final, p. 32. In this document, a ‘fitness check’ is defined as ‘an assessment of the effectiveness, efficiency, coherence, relevance and added-value of one single EU intervention’. Legislation is considered as one type of intervention, next for instance action plans or expenditures. Compare also with the Quality guidelines in Sustainability Reporting, as put forward by the Global Reporting Initiative, on https://www.globalreporting.org/Pages/default.aspx, last accessed 9 July 2015. See also the Interinstitutional Agreement of 22 December 1998 on common guidelines for the quality of drafting of Community legislation (OJ C 73, 17 March 1999).
- 56.
For non-prepacked foods, the only mandatory content requirement at the EU-level is the disclosure of allergens.
- 57.
Regulation (EC) 1829/2003.
- 58.
Regulation (EC) 1924/2006.
- 59.
Directive 2002/46/EC.
- 60.
Directive 2009/54/EC.
- 61.
Directive 2009/39/EC.
- 62.
Exceptions the amendments to the Claims Regulation (1924/2006) and the Regulation on the addition of vitamins and minerals to certain foods (1925/2006). Some specific directives and regulations have been repealed.
- 63.
Article 12 of Regulation (EC) 1760/2000 for instance states that ‘labelling’ in Section II has the meaning of: ‘the attachment of a label to an individual piece or pieces of meat or to their packaging material, or in the case of non-prewrapped products the supply of appropriate information in written and visible form to the consumer at the point of sale’. The requirements for ‘retail trade’ in Ch. IV, Section IX of Annex III of Regulation (EC) 853/2004 states that ‘labelling’ includes any packaging, document, notice, label, ring, or collar accompanying or referring to such products, being raw milk/colostrum or products made with raw milk/colostrum. In other, related legislation on medicine [Directive 2001/83/EC Article 1], labelling is defined more restrictive, as “Information on the immediate or outer packaging”.
- 64.
Code of Federal Regulations, Title 21.
- 65.
In this context note should be taken of the motivational posturing theory. Braithwaite et al. (2007).
- 66.
Mcnamara (2005), p. 3.
- 67.
Black (2007), p. 192.
- 68.
McDonald (2002).
- 69.
Bremmers et al. (2010).
- 70.
European Parliament resolution of 14 January 2014 on the food crisis, fraud in the food chain and the control thereof (2013/2091(INI)).
- 71.
See http://www.food.gov.uk/enforcement/foodfraud, Also Spink and Moyer (2011).
- 72.
74 Federal register 64, 2009 (15497–15499): “fraudulent, intentional substitution or addition of a substance in a product for the purpose of increasing the apparent value of the product or reducing the costs of its production, i.e., for economic gain”.
- 73.
However, for GMO foods/feed complete coverage of the supply chain is envisaged.
- 74.
See Article 1(3) of the FIC regarding its scope and Article 8 of the FIC.
- 75.
Lazzarini et al. (2001).
- 76.
As answer to the question what lessons have been learned was stated by the Commission, next to the need for tighter controls and of cross-border cooperation, that: “The most important is probably that large scale, cross-border fraudulent schemes that take advantage of the weaknesses of an increasingly globalised food supply can impact hugely on consumers and operators, on thus on the economy. Constant vigilance from operators and competent authorities towards economically motivated fraud, that can be perpetrated at any step of the food supply chain is needed.” Citation adopted from http://ec.europa.eu/food/food/horsemeat/index_en.htm (Accessed 9th July 2015).
- 77.
See in this respect the role of information in making this distinction in Directive 2001/83/EC of the EP and Council of 6 November 2001 on the Community code relating to medicinal products for human use, Article 1 (2).
- 78.
See the lists of authorised claims in the Annex of Regulation 1924/2006 and on ec.europa.eu/nuhclaims.
- 79.
See Article 14 of the GFL.
- 80.
See Article 17 of the GFL, Article 8 of the FIC.
- 81.
Like for instance bringing insect food to the market; till 2018 (the new novel foods regulation gaining effect) allowed freely to market in one MS but considered novel food in another.
- 82.
For added water in unprocessed beef, fish products and poultry, part of this loophole was closed with the provision in Annex VII, Part A, Point 1 of the FIC.
- 83.
The product was elected most misleading by Foodwatch Netherlands in 2013. http://www.foodnieuws.nl/foodwatch-wie-verdient-het-gouden-windei-2014/ (Accessed 9 July 2015).
- 84.
- 85.
Reduction of administrative burdens is an outspoken goal of the EU and its MSs; see in this respect Bremmers et al. (2007).
- 86.
COM (2013) 327 final – 2013/0169 (COD).
- 87.
Bremmers et al. (2010).
- 88.
Examples in Sect. 3.2.
- 89.
Financial Services Agency (2007).
- 90.
Issued set of rules by the Financial Action Task Force, to fight among others money laundering. Financial Action Task Force (2012).
- 91.
Using scientific evidence in enforcement matters.
- 92.
Leading to the conviction of fraudulent board members in May 2006.
- 93.
That is, the purpose (intent) of financial information, namely facilitating actors to make informed choices on financial markets.
- 94.
Fourth Council Directive of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (78/660/EEC).
- 95.
Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 54(3)(g) of the Treaty on consolidated accounts.
- 96.
For instance, a financial lease may from a juridical perspective not be classified as transferring property from the lessor to the lessee; economically (from a ‘property right’-perspective) such an asset is, as to its enclosed utilities, under control of the lessee. With the consequence that it has to be published on the balance sheet of the lessee, and not the lessor's.
- 97.
The Maβgeblichkeitsprinzip entails that fiscal privileges are only granted if in the reports for private stakeholders the fiscal rules in that respect are followed.
- 98.
Where the principle ‘unité’, integration of fiscal and commercial reporting, was upheld.
- 99.
The acceptance of the International Financial Reporting System and the acceptance of the Accounting Regulation of 2013 have, due to international connectivity of large companies.
- 100.
- 101.
Compare at this place Regulation 2005/29 recital 18.
- 102.
See in this context Regan et al. (2015).
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Bremmers, H. (2018). Substance Over Form: A Principle for European Food Information Regulation?. In: Bremmers, H., Purnhagen, K. (eds) Regulating and Managing Food Safety in the EU. Economic Analysis of Law in European Legal Scholarship, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-77045-1_10
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