European Institute for Food Law working paper series.
The European Institute for Food Law started a working paper series on the Social Science Research Network (SSRN).
Food Law related papers submitted to the Institute will be considered for inclusion in the series.
Bernd van der Meulen and Aylin Şule Songul
GENETİĞİ DEĞİŞTİRİLMİŞ GIDALARA AVRUPA BİRLİĞİ’NİN HUKUKİ YAKLAŞIMI - Turkish language rendering of a legal systematic analysis of EU law on Genetically Modified Organisms
This paper provides a rendering in Turkish language by Aylin Şule Songül of the written version of the Judge Nelson Timothy Stephens Lecture presented by Bernd van der Meulen at University of Kansas School of Law (USA) on the EU Regulatory approach to GM foods.
The legal systematic analysis provides a general background on EU food law. It discusses the authorisation procedure; the risk analysis methodology, EFSA’s role in risk assessment; the one-door-one-key principle; traceability requirements; GM labelling; liability and enforcement.
Bernd van der Meulen - farewell address
The Ultimate Truth. Demons, dogma, dominance, definitions and democracy
Few things are more dangerous than some people’s (our) “ultimate” truth claiming precedence over other people’s conception of truth. The ultimate truth kills dialogue and tolerance.
Within food law, dogma dictates that foods cannot have curative properties and, if they do, that this may not be communicated; that alcohol cannot have benign properties and, if it does, that this may not be communicated, and that correlations are not sufficient to communicate health benefits. Unauthorised medicinal or health claims may not be communicated by businesses not even as a news item, nor by journalists or even between professionals.
Food democracy requires a forum where all honestly held claims to truth can be shared. Consumers need protection, but we are citizens as well. Protection must not be allowed to take the shape of censorship.
Daniela Polinski and Bernd van der Meulen
Unfit for Human Consumption. The elusive element in the EU food safety concept of Article 14 GFL
According to Article 14(2) of Regulation (EC) 178/2002 ‘the General Food Law,’ unsafe food, the core concept in EU food safety law, encompasses food that is injurious to health as well as food unfit for human consumption. This paper reports on an empirical study of interpretations in several EU Member States of the concept unfit for human consumption and its relation to injuriousness to health. It appears that a broad spectrum of conditions and situations is brought under this concept. Interpretations among Member States vary considerably. Substantive, procedural and communicational non-compliances may be found under the concept. Also, not otherwise regulated conditions may lead to the classification of food as unfit for human consumption.
The paper argues in favour of a return to the initial approach of the European Commission in its proposal for what is now the General Food Law. Food should only be classified as unfit for consumption if it is likely to be injurious to health due to conditions such as indicated in Article 14(5) of the General Food Law. In case of non-compliance with other provisions of food law, Member States can enforce. A detour via classification of the non-complying food as unfit for consumption is not needed to this end.
Bernd van der Meulen
The safe food principle. A critical reflection on the key concept of EU food safety law
The most fundamental notion underlying the reform of EU food safety law has been codified in Article 14(1) of Regulation (EC) 178/2002: food shall not be placed on the market if it is unsafe. This notion has been elaborated in most of the rest of EU food law, first and foremost in the other paragraphs of Article 14. This paper analyses Article 14 and argues in favour of a text-conform interpretation.
Jasmin Buijs, Bernd van der Meulen and Li Jiao
Food Information in Chinese Food Law. Legal systematic analysis of labeling and advertisement requirements of food products in the People’s Republic of China This paper discusses the general rules on labeling and advertisement of food products in the People’s Republic of China
The framework of food labeling rules is set first of all by the Food Safety Law 2015. Technical implementations of those rules can be found in the Pre-packaged Product Labeling Standard (GB 7718-2011) and the Standard for Nutrition Labeling of Prepackaged Foods (GB 28050-2011). More specific requirements can be found in the Standard on Pre-packaged special dietary food labels (GB 13432-2013), the Standard for the Labeling of Food Additives (GB 29924-2013), as well as other product-specific standards. Food advertisements are mainly regulated under the Advertisement Law. Compliance should not be taken lightly since non-compliance is not only treated with administrative sanctions, but may also be subject to civil actions. Consumers are encouraged to claim damage up to ten times the purchase price of the food in question or three times the losses suffered, which has led to the phenomenon of the ‘professional consumer’. This paper introduces the general framework of labeling and advertisement requirements and concludes with a discussion on the professional consumer.
Jasmin Buijs, Bernd van der Meulen and Li Jiao
Pre-market Authorization of Food Ingredients and Products in Chinese Food Law. Legal systematic analysis of the pre-market authorization requirements of food ingredients and products in the People’s Republic of China
The basic principle of food safety regulation in the People’s Republic of China is that foods are not subject to explicit permission but that food businesses will be held responsible when the food they produce or distribute violates food safety norms. However, certain categories of food materials and end-products do require explicit permission before they can be produced and subsequently distributed. In other words: they are subject to a form of pre-market authorization.
This applies to food ingredients that are newly introduced to the market as well as to special foods. The categories of materials to which such authorization requirement apply are i) new food additives, ii) novel food materials and iii) functional ingredients. Materials that fall into those categories must undergo pre-market authorization because of their novelty. The category of end-products that requires pre-market authorization is special foods, which includes i) health foods, ii) foods for special medical purposes and iii) infant formulas. The authorization of functional ingredients and of health foods directly relate to each other. Authorization takes place on application from a food business. The business has to provide evidence that the product is safe and meets other specified requirements regarding its functionality. Pre-market authorization procedures are an important part of food law in the People’s Republic of China, especially when it comes to special foods. The purpose of this paper is to clarify to which food materials and end-products authorization requirements apply and to set out the applicable procedures.
Jasmin Buijs, Juanjuan Sun and Bernd van der Meulen
Process Requirements in Chinese Food Law. Legal systematic analysis of process-related requirements for food production and distribution in the People’s Republic of China
Food producers and distributors are the main responsible actors to ensure food safety in the People’s Republic of China. Where food safety is the goal, hygiene is the means to reach that goal. Food businesses must therefore obtain a license that demonstrates compliance with basic hygiene rules before they can enter into business. Also, food businesses must establish and implement food safety management rules to control food safety during the processing phase. This includes the control of incoming products, packaging, storage and transportation, traceability, and the establishment of a recall system. Under the principle of self-regulation, food producers and distributors are required to formulate self-regulatory rules to comply with their obligations. They are guided by the 2015 Food Safety Law, the administrative rules that further implement the Food Safety Law, as well as by various food safety standards that are characteristic to the food safety regulatory system of the People’s Republic of China. The paper covers the chronological steps that food producers and distributors have to take to guarantee food safety. Although the paper mainly focusses on food producers and distributors in the People’s Republic of China, overseas producers of certain high-risk food products that wish to export to the People’s Republic of China may also be subject to process-related requirements by means of facility registration.
Bernd van der Meulen
Codex Alimentarius. The impact of the joint FAO/WHO food standards programme on EU food law
The FAO and the WHO have set up a joint food standards programme with at its core the Codex Alimentarius Commission. The Codex Alimentarius Commission has a membership base of its own. It adopts standards by consensus of its member countries, based on the scientific input from risk assessment bodies that also form part of the joint FAO/WHO food standards programme. The purpose of the standards of the Codex Alimentarius is to harmonise national and regional food legislation at a global level. This paper explores to what extent the influence of the Codex Alimentarius is actually present in EU food law. To this end, it identifies the major fields of EU food law on the basis of a pre-existing framework for analysis. The paper shows that the Codex Alimentarius is present in all these major fields in concepts, methods, principles and rules of conduct for food businesses.
Bernd van der Meulen
Legal Method and Theory. Orc-Grid and Cobra-C Matrix: Tools for Research and Teaching Law
Theory and method of legal sciences have developed and have been refined over a period of more than a millennium. Methodology of positive law has become second nature to the lawyer, to such an extent that one is embarrassed to explain to anyone but a novice the nature of legal enquiry. This paper attempts to voice what often remains unsaid and to make it visible with the help of graphic tools. It attempts to literally map what lawyers do by intuition. Different tools are presented for the purpose of teaching and of research: the ‘ORC-grid’ for teaching and the ‘COBRA-C matrix’ for research.
In this context the paper addresses the question to what extent the emergence of the ‘governance’ concept does or should influence legal method or theory.
Bernd van der Meulen
The Functional Field of Food Law. The Emergence of a Functional Discipline in the Legal Sciences
This paper traces the emergence of food law as a specialisation in legal scholarship. Food law can be understood as a functional area of law, that is, a legal specialisation which is not delineated on the basis of legal doctrinal distinctions but on the basis of its societal field of application. Decades before food law emerged, environmental law has acquired recognition as such functional specialisation. This paper explores what it takes for a focus of legal study on a societal phenomenon to become a viable functional field of law. It argues that food law fulfils the basic criteria of relevance, scope, distinctness and impact.
Jasmin Buijs, Bernd van der Meulen and Li Jiao
China’s Food Safety Law. Legal Systematic Analysis of the 2015 Food Safety Law of the People's Republic of China
The rising interest in the agri-food sector of the People’s Republic of China (PRC) comes with legal questions about import requirements and the interpretation of the PRC’s agri-food law in general. The Food Safety Law of the People's Republic of China of 2015 (FSL) is the basis of China’s food regulatory system. This paper discusses the institutional framework in which the Law is embedded, its objectives, and linked therewith its relation with science.
This paper also covers specific obligations that derive from the FSL and legal liability in case of non-compliance thereof. Addressing the who, what, and how of the FSL, this paper aims to contribute to a comprehensive and systematic analysis of the PRC’s agri-food law in the European civil law tradition of legal scholarship.
The Legal GMO Concept Reassessment of the GMO Definition in the Light of New Breeding Techniques (NBTs)
What are GMOs in a legal sense? According to the EU definition a GMO is an organism ‘in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination’. Does this definition refer to the organism, to the method by which it has been obtained or to both? This question has become acute with the emergence of New Breeding Techniques (NBTs) in particular when non-traditional methods have been used to achieve results that also could occur naturally. Are such products that could have been obtained by traditional breeding techniques GMOs? The French Conseil d’état has asked a preliminary ruling from the Court of Justice of the EU (CJEU). Unfortunately, the Conseil d’état failed to clearly phrase the question that needs to be answered. The authors express the hope that the CJEU nevertheless will be able to provide a meaningful answer. They provide an introduction to NBTs and argue in favour of a product based interpretation.
Food Prints on Human Rights Law Paradigms. Debates on food in general and the human right to adequate food in particular have fundamentally influenced the development on human rights theory
This paper discusses the interaction between the development of legal theory on human rights (HRs) in general and on the right to food in particular.
In international treaties HRs are often subdivided in two groups: civil and political rights (CPRs) on the one hand, and economic, social and cultural rights (ESCRs) on the other. These two sets of rights have been treated in fundamentally different ways. A judicial practice developed only for the application of CPRs. This gave rise to a paradigm in legal theory stating that CPRs give negative obligations to the state (e.g., obligations not to interfere with the freedoms of citizens), while ESCRs give positive obligations (e.g., obligations to provide certain preconditions of life). Negative obligations can be enforced against the state. Positive obligations are unenforceable policy directives.
The UN considers HRs are indivisible. ESCRs should empower people just as much as CPRs do. The special rapporteur on the right to food, Asbjørn Eide, coined a new paradigm to this effect. It connects negative and positive state obligations to all HRs. This paper argues that it is time for the next step in HR theory: a paradigm that moves beyond state obligations.
Legal Human Rights Research. The Use of Human Rights in Legal Analysis and Use of Legal Methods in Analysing Human Rights. An Introduction
The legal context may not be the only context in which human rights are applied, but it certainly is an important one. With a view to assessing human rights in the context both of the courtroom and of legal scholarship, this paper sets out some of the basics of law and legal method.