EU FOOD LAW doc

Agreement on the Application of Sanitary and Phytosanitary4.2.2 Dispute Settlement at the World Trade Organization 145 4.3.1 Historical Development of the Codex Alimentarius 151 4.3.2 Op

E U F O O D L AW

This is the first comprehensive analysis of the European Union law of food lation It details the way in which EU law impacts upon the production and sale offood throughout the Union It examines the legal protection accorded to the freemovement of food within the EU, discussing those circumstances in whichMember States may derogate from this principle, in particular where this is done

regu-to protect human health or safeguard consumer interests Chapter four discussesand places in context the international trade law influences on EU food law.Chapter five describes EU responses to recent food safety crises – avian influenzaand BSE The book also deals with issues such as nutrition law and policy, obesity,GMOs, organic food, animal welfare and food naming and labelling This bookoffers an account of the historical, political, sociological and jurisprudential context of European Union food law The author, who is an academic and consultant in this area, translates the legal and scientific complexities of food law into a lucid and compelling narrative The resulting work will also prove anindispensable guide to the practitioner

Volume 13 in the series Modern Studies in European Law

Modern Studies in European Law

1 Soft Law in European Community Law Linda Senden

2 The Impact of European Rights on National Legal Cultures Miriam Aziz

3 Partnership Rights, Free Movement and EU Law Helen Toner

4 National Remedies Before the Court of Justice: Issues of Harmonisation and

Differentiation Michael Dougan

5 The National Courts Mandate in the European Constitution Monica Claes

6 EU Environmental Law: Challenges, Changes and Decision-Making Maria Lee

7 European Union Law and Defence Integration Martin Trybus

8 Principles of European Constitutional Law Armin von Bogdandy &

Jürgen Bast

9 EU International Relations Law Panos Koutrakos

10 Effective Judicial Protection and the Environmental Impact Assessment

Directive in Ireland Áine Ryall

11 The European Court of Justice and the EU Constitutional Order:

Essays in Judicial Protection Takis Tridimas

12 The European Union, International Law and the Promotion and Protection

of Democracy Richard Burchill

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2.2 MEASURES EQUIVALENT TO QUANTITATIVE RESTRICTIONS

2.2.6 Substantial Difference between Food Products 41

2.2.7 Protecting Human Health under Article 30 EC 45

2.3.2 Measures Equivalent to Customs Duties on Intra-Community

3.2.1 Public Health Protection 71

3.3 COMMUNICATION ON FREE MOVEMENT OF FOODSTUFFS

Nature of Generic Food Names: The Feta Cheese Cases 108

Certificates of Specific Character: Regulation 509/2006 117

Protection for Geographical Names under Regulation

Compatibility of Protecting Names with Article 28 EC 121

Agreement on Trade-Related Aspects of Intellectual

Agreement on the Application of Sanitary and Phytosanitary

4.2.2 Dispute Settlement at the World Trade Organization 145

4.3.1 Historical Development of the Codex Alimentarius 151

4.3.2 Operation of the Codex Alimentarius Commission 152

Foodstuff Specific Codex Alimentarius Standards 170

4.3.4 Relationship between the Codex Alimentarius and EU

5.2 DEVISING A NEW FOOD SAFETY POLICY FOR THE EU:

5.2.1 Impact of Food Crises on EU Food Law and Policy:

Regulation 178/2002 on the General Principles of Food

Rapid Alert System, Crisis Management and Emergencies 1925.3 USING THE PRECAUTIONARY PRINCIPLE TO PROTECT

5.4.1 Materials Coming into Contact with Foodstuffs 203

5.4.4 Hygienic Production Methods 207

Background to the Regulation on Nutrition and Health

Key Provisions of Nutrition and Health Claims Legislation 228

Determining Member State Autonomy on Health Protection

Challenging the GMO Regulatory Framework: Labelling

7.3 ALTERING CONSUMER PREFERENCES: THE DEMAND FOR

7.3.4 Coexistence of Genetically Modified Crops with Conventional

7.4.2 Community Legislation on the Protection of Calves and Pigs 265

7.4.3 Health, Welfare and Consumer Protection: Production and

Table of Cases

EUROPEAN COURT OF JUSTICE AND COURT OF FIRST INSTANCE

7/1968, Commission v Italy (art exports) [1968] ECR 423 60 24/1968, Commission v Italy (statistical levy) [1969] ECR 193 60 2/1969 and 3/1969, Sociaal Fonds voor de Diamantarbeiders v SA Ch

Brachfeld & Sons [1969] ECR 211 60 84/1971, SpA Marimex v Ministero delle Finanze [1972] ECR 89 60 8/1974, Procureur du Roi v Benoît and Gustave Dassonville [1974]

Import-Export BV [1983] ECR 947 271

174/1982, Criminal proceedings against Sandoz BV [1983]

ECR 2445 47, 51, 53, 239, 271

222/1982, Apple and Pear Development Council v KJ Lewis Ltd and others [1983] ECR 4083 29 227/1982, Criminal proceedings against Leendert van Bennekom [1983]

autonoma di Bolzano [1988] ECR 4233 35, 49, 56, 91, 92, 115 76/1986, Commission v Germany (milk substitutes) [1989]

C-362/1988, GB-INNO-BM v Confédération du commerce

Luxembourgeois [1990] ECR I-667 115, 271 C-95/1989, Commission v Italy (added nitrate) [1992] ECR I-4545 211 C-196/1989, Criminal proceedings against Enzo Nespoli and Giuseppe

Crippa [1990] ECR I-3647 39–41, 43, 116 C-238/1989, Pall Corp v Dahlhausen & Co [1990] ECR I-4827 115, 271 C-369/1989, Piageme and others v BVBA Peeters [1991]

ECR I-2971 80–81

C-42/1990 Criminal proceedings against Jean-Claude Bellon [1990]

ECR I-4863 211, 212–13

C-47/1990, Établissements Delhaize frères et Compagnie Le Lion SA v Promalvin

SA and AGE Bodegas Unidas SA [1992] ECR I-3669 8, 107 C-344/1990, Commission v France (cheese nitrate) [1992]

C-126/1991, Schutzverband gegen Unwesen in der Wirtschaft eV v

Yves Rocher [1993] ECR I-2361 115, 271 C-212/1991, Angelopharm GmbH v Freie Hansestadt Hamburg [1994]

ECR I-171 202

Joined Cases C-267/1991 and C-268/1991, Criminal proceedings against

Keck and Mithouard [1993] ECR I–6097 20, 86 C-285/1992, Criminal Proceedings against Coöperatieve Zuivelindustrie

‘Twee Provinciën’ WA [1993] ECR I-6045 80 C-315/1992, Verband Sozialer Wettbewerb eV v Clinique Laboratoires

SNC et Estée Lauder Cosmetics GmbH [1994] ECR I-317 115, 271 C-17/1993, Criminal proceedings against Van der Veldt [1994]

ECR I-3537 239

Joined Cases C-69/1993 and C-258/1993, Punto casa SpA v Sindaco del

Comune di Capena et Comune di Capena and Promozioni Polivalenti

Venete Soc coop arl (PPV) v Sindaco del Comune di Torri di Quartesolo

and Comune di Torri di Quartesolo [1994] ECR I-2355 20 C-144/1993, Pfanni Werke Otto Eckart KG v Landeshauptstadt München

C-470/1993, Verein gegen Unwesen in Handel und Gewerbe Köln eV v

Mars GmbH [1995] ECR I-1923 115, 271

C-51/1994, Commission v Germany (sauces and pastries) [1995]

ECR I-3599 48, 86

C-85/1994, Piageme and others v Peeters NV [1995] ECR I-2955 81–2 C-313/1994, Graffione SNC v Ditta Fransa [1996] ECR I-6039 271

Joined cases C-321/1994, C-322/1994, C-323/1994 and C-324/1994,

Criminal proceedings against Jacques Pistre, Michèle Barthes, Yves Milhau and Didier Oberti [1997] ECR I-2343 25, 107 Joined cases C-34/1995, C-35/1995 and C-36/1995 Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and TV-Shop i Sverige AB [1997]

Württemberg [1997] ECR I-4617 125 C-18/1996, United Kingdom v Commission (BSE) [1998]

ECR I-4657 115, 270–71

Joined Cases C-289/1996, C-293/1996 and C-299/1996, Denmark, Germany and France v Commission [1999] ECR I-1541 26, 29, 109–16 C-385/1996, Criminal proceedings against Hermann Josef Goerres

[1998] ECR I-4431 82

C-77/1997, Österreichische Unilever GmbH v Smithkline Beecham Markenartikel GmbH [1999] ECR I-431 50 C-87/1997, Consorzio per la tutela del formaggio Gorgonzola v Käserei

Champignon Hofmeister GmbH & Co KG and Eduard Bracharz GmbH [1999] ECR I-1301 119–20 T-109/1997, Molkerei Grobbraunshain GmbH and Bene Nahrungsmittel

GmbH v Commission [1998] ECR II-3533 113 Joined cases C-129/1997 and C-130/1997, Criminal proceedings against

Yvon Chiciak and Fromagerie Chiciak and Jean-Pierre Fol [1998]

ECR I-3315 120–21

C-383/1997, Criminal proceedings against Arnoldus van der Laan

[1999] ECR I-731 39–40

C-312/1998, Schutzverband gegen Unwesen in der Wirtschaft eV v Warsteiner

Brauerei Haus Cramer GmbH & C KG [2000] ECR I-9187 108

C-366/1998, Criminal proceedings against Yannick Geffroy and Casino France SNC [2000] ECR I-6579 82–3 C-448/1998, Criminal proceedings against Jean-Pierre Guimont [2000] ECR I-10663 25, 117 C-465/1998, Verein gegen Unwesen in Handel und Gewerbe Köln eV v Adolf Darbo AG [2000] ECR I-2297 11, 271 T-13/1999, Pfizer Animal Health SA v Council [2002] ECR II-3305 196, 198–203 T-70/1999, Alpharma Inc v Council [2002] ECR II-3495 198

C-269/1999, Kühne and others [2001] ECR I-9517 110

T-114/1999, CSR PAMPRYL v Commission [1999] ECR II-3331 105

C-12/2000, Commission v Spain (chocolate) [2003] ECR I-459 9

C-14/2000, Commission v Italy (chocolate) [2003] ECR I-513 9

C-24/2000, Commission v France (fortified foods – ‘Red Bull’) [2004] ECR I-1277 50, 51, 52–5, 64, 76, 239 C-123/2000, Criminal proceedings against Christina Bellamy and English Shop Wholesale SA [2001] ECR I-2795 46–7, 239 C-221/2000, Commission v Austria (health claims) [2003] ECR I-1007 50, 227, 230 Joined cases C-421/2000, C-426/2000 and C-16/2001, Renate Sterbenz and Paul Dieter Haug [2003] ECR I-1065 11, 271 C-95/2001, Criminal proceedings against Greenham and Abel [2004] ECR I-1333 50–52, 55 C-108/2001, Consorzio del Prosciutto di Parma and Salumificio S Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd [2003] ECR I-5121 120

C-192/2001, Commission v Denmark (enriched foodstuffs) [2003] ECR I-9693 51, 52, 53, 54, 64 C-236/2001, Monsanto Agricoltura Italia SpA and Others v Presidenza del Consiglio dei Ministri and Others [2003] ECR I-8105 52

C-420/2001, Commission v Italy (caffeine energy drinks) [2003] ECR I-6445 50, 54 C-14/2002, ATRAL SA v Belgium [2003] ECR I-4431 50

C-41/2002 Commission v Netherlands (fortified foods) [2004] ECR I-11375 17

C-239/2002, Douwe Egberts NV v Westrom Pharma NV and Christophe Souranis [2004] ECR I-7007 11, 271 C-270/2002, Commission v Italy (sports supplements) [2004] ECR I-1559 50

Joined Cases C-465/2002 and C-466/2002, Germany and Denmark v Commission, [2005] ECR I-9115 26, 34, 112–16, 117 C-366/2004, Georg Schwarz v Bürgermeister der Landeshauptstadt Salzburg, [2005] ECR I-10139 55

UNITED KINGDOM

Thoburn v Sunderland City Council; Hunt v London Borough of Hackney;

Harman and Dove v Cornwall County Council; Collins v London Borough of Sutton [2002] EWHC 195; [2003] QB 151 88

Table of Legislation

EUROPEAN UNION

EC Treaty

Article 6 197–8Article 25 18, 57–64Article 28 5, 9, 12–13, 15, 17–56, 64-5, 68, 69, 71,

72, 73, 74–7, 92, 118, 121–2, 211–12, 214, 237, 240Article 29 5, 15, 68, 121, 211Article 30 5, 13, 15, 21, 40–41, 45–55, 65, 68, 71,

121, 122, 212–13, 214, 215, 233, 241, 277Article 37 183, 260Article 90 17–18, 57–59 Article 94 68Article 95 68, 197–198Article 151 65Article 152 21, 65, 197–8, 201, 241, 277Article 153 21, 65, 241, 277Article 174 196–7Article 202 183Article 211 201Article 230 26,109,198Article 251 226–7, 240

Regulations

Regulation (EEC) No 2772/1975 of the Council of 29 October 1975 on

marketing standards for eggs [1975] OJ L 282/56 267Council Regulation (EEC) No 1898/1987 of 2 July 1987 on the protection

of the designations used in marketing of milk and milk products

[1987] OJ L 182/36 37–9, 126Council Regulation (EEC) No 2658/1987 of 23 July 1987 on the tariff

and statistical nomenclature and on the Common Customs Tariff

[1987] OJ L 256/1 34, 111, 114 Council Regulation (EEC) No 1576/1989 of 29 May 1989 laying down

general rules on the definition, description and presentation of spirit

drinks [1989] OJ L 160/1 30

Council Regulation (EEC) No 1906/1990 on certain marketing standards for poultry [1990] OJ L 173/1 273Council Regulation (EEC) No 1907/1990 of 26 June 1990 on certain

marketing standards for eggs [1990] OJ L 173/5 267–70, 276Commission Regulation (EEC) No 1274/91 of 15 May 1991 introducing

detailed rules for implementing Regulation (EEC) No 1907/90 on certain marketing standards for eggs [1991] OJ L 121/11 268Commission Regulation (EEC) No 1538/1991 of 5 June 1991 introducingdetailed rules for implementing Regulation (EEC) No 1906/1990 on certain marketing standards for poultry [1991] OJ L 143/11 273–4Council Regulation (EEC) No 2092/1991 of 24 June 1991 on organic

production of agricultural products and indications referring thereto

on agricultural products and foodstuffs [1991] OJ L 198/1 5, 255–61, 269Commission Regulation (EEC) No 1535/1992 of 15 June 1992 amending

Annexes I and III of Council Regulation (EEC) No 2092/1991 on organicproduction of agricultural products and indications referring thereto

on agricultural products and foodstuffs [1992] OJ L 162/15 255Council Regulation (EEC) No 2081/1992 of 14 July 1992 on the protection

of geographical indications and designations of origin for agricultural products and foodstuffs [1992] OJ L 208/1 34, 91, 93, 102–8,

110, 117, 137–8, 150 Council Regulation (EEC) No 2082/1992 of 14 July 1992 on certificates

of specific character for agricultural products and foodstuffs [1992]

OJ L 208/9 117Commission Regulation (EEC) No 207/1993 of 29 January 1993 defining the content of Annex VI to Regulation (EEC) No 2092/1991 on organicproduction of agricultural products and indications referring thereto onagricultural products and foodstuffs and laying down detailed rules forimplementing the provisions of Article 5 (4) thereto [1993] OJ L 25/5 260Council Regulation (EEC) No 315/1993 of 8 February 1993 laying down

Community procedures for contaminants in food [1993] OJ L 37/1 205–6Council Regulation (EC) No 2991/1994 of 5 December 1994 laying downstandards for spreadable fats [1994] OJ L 316/2 127–9 Council Regulation (EC) No 1935/1995 of 22 June 1995 amending Regulation(EEC) No 2092/1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs[1995] OJ L 186/1 255, 264Commission Regulation (EC) No 1107/1996 of 12 June 1996 on the

registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/1992 [1996] OJ L 148/1 109, 119, 120Commission Regulation (EC) No 2400/1996 of 17 December 1996 on the entry of certain names in the Register of protected designations of origin and protected geographical indications provided for in Council

Regulation (EEC) No 2081/1992 on the protection of geographical

indications and designations of origin for agricultural products and

foodstuffs [1996] OJ L 327/11 106European Parliament and Council Regulation (EC) No 258/1997 of

27 January 1997 concerning novel foods and novel food ingredients

[1997] OJ L 43/1 244–5, 252Commission Regulation (EC) No 577/1997 of 1 April 1997 laying down

certain detailed rules for the application of Council Regulation (EC)

No 2991/1994 laying down standards for spreadable fats and of CouncilRegulation (EEC) No 1898/1987 on the protection of designations used

in the marketing of milk and milk products [1997] OJ L 87/3 127–9Commission Regulation (EC) No 1813/1997 of 19 September 1997 concerningthe compulsory indication on the labelling of certain foodstuffs producedfrom genetically modified organisms of particulars other than those

provided for in Directive 1979/112/EEC [1997] OJ L 257/7 252Commission Regulation (EC) No 2181/1997 of 3 November 1997 amendingRegulation (EC) No 577/1997 laying down certain detailed rules for theapplication of Council Regulation (EC) No 2991/1994 laying down

standards for spreadable fats and of Council Regulation (EEC)

No 1898/1987 on the protection of designations used in the marketing

of milk and milk products [1997] OJ L 299/1 129Commission Regulation (EC) No 623/1998 of 19 March 1998 amending

Regulation (EC) No 577/1997 laying down certain detailed rules for theapplication of Council Regulation (EC) No 2991/1994 laying down

standards for spreadable fats and of Council Regulation (EEC)

No 1898/1987 on the protection of designations used in the marketing

of milk and milk products [1998] OJ L 85/3 128 Council Regulation (EC) No 1139/1998 of 26 May 1998 concerning the

compulsory indication on the labelling of certain foodstuffs produced

from genetically modified organisms of particulars other than those

provided for in Directive 1979/112/EEC [1998] OJ L 159/4 252–3Council Regulation (EC) No 2821/1998 of December 17 1998 amending,

as regards withdrawal of the authorisation of certain antibiotics,

Directive 1970/524 concerning additives in feedingstuffs [1998]

OJ L 351/4 198–9, 202 Commission Regulation (EC) No 38/1999 of 8 January 1999 supplementing the Annex to Regulation (EC) No 2400/1996 of 17 December 1996 on theentry of certain names in the ‘Register of protected designations of origin and protected geographical indications’ provided for in Council

Regulation (EEC) No 2081/1992 on the protection of geographical

indications and designations of origin for agricultural products and

foodstuffs [1999] OJ L 5/62 106 Commission regulation (EC) No 590/1999 of 18 March 1999 supplementing theAnnex to Regulation (EC) No 1107/1996 on the registration of geographical

indications and designations of origin under the procedure laid down inArticle 17 of Regulation (EEC) No 2081/1992 [1999] OJ L 74/8 110Commission Regulation (EC) No 872/1999 of 27 April 1999 supplementing the Annex to Regulation (EC) No 2400/1996 of 17 December 1996 on theentry of certain names in the ‘Register of protected designations of origin and protected geographical indications’ provided for in Council Regulation(EEC) No 2081/1992 on the protection of geographical indications anddesignations of origin for agricultural products and foodstuffs [1999]

OJ L 110/4 106Commission Regulation (EC) No 1070/1999 of 25 May 1999 amending theAnnex to Regulation (EC) No 1107/1996 on the registration of geographicalindications and designations of origin under the procedure laid down

in Article 17 of Council Regulation (EEC) No 2081/1992 [1999]

OJ L 130/18 111Council Regulation (EC) No 1804/1999 of 19 July 1999 supplementing

Regulation (EEC) No 2092/1991 on organic production of agriculturalproducts and indications referring thereto on agricultural products and foodstuffs to include livestock production [1999]

OJ L 222/1 222, 256, 261, 264Commission Regulation (EC) No 49/2000 of 10 January 2000 amending

Council Regulation (EC) No 1139/1998 concerning the compulsory indication on the labelling of certain foodstuffs produced from genetically modified organisms of particulars other than those provided for in Council Directive 1979/112/EEC [2000] OJ L 6/13 253Commission Regulation (EC) No 50/2000 of 10 January 2000 on the

labelling of foodstuffs and food ingredients containing additives and flavourings that have been genetically modified or have been produced from genetically modified organisms [2000] OJ L 6/15 253Regulation (EC) No 1980/2000 of the European Parliament and of the

Council of 17 July 2000 on a revised Community eco-label award scheme [2000] OJ L 237/1 235Commission Regulation (EC) No 2446/2000 of 6 November 2000

supplementing the Annex to Regulation (EC) No 2400/1996 of 17 December

1996 on the entry of certain names in the ‘Register of protected designations

of origin and protected geographical indications’ provided for in CouncilRegulation (EEC) No 2081/1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs [2000] OJ L 281/12 106Council Regulation (EC) No 2826/2000 of 19 December 2000 on

information and promotion actions for agricultural products on the internal market [2000] OJ L 382/2 276Council Regulation (EC) No 5/2001 of 19 December 2000 amending

Regulation (EEC) No 1907/1990 on certain marketing standards for eggs[2001] OJ L 2/1 267

Commission Regulation (EC) No 466/2001 of 8 March 2001 setting maximumlevels for certain contaminants in foodstuffs [2001] OJ L 77/1 205 Commission Regulation (EC) No 1651/2001 of 14 August 2001 amendingRegulation (EEC) No 1274/1991 introducing detailed rules for

implementing Council Regulation (EEC) No 1907/1990 on certain

marketing standards for eggs [2001] OJ L 220/5 268Commission Regulation (EC) No 2491/2001 of 19 December 2001 amendingCouncil Regulation (EEC) No 2092/91 on organic production of

agricultural products and indications referring thereto on agricultural

products and foodstuffs [2002] OJ L 337/9 256Commission Regulation (EC) No 94/2002 of 18 January 2002 laying downdetailed rules for applying Council regulation (EC) No 2826/2000 on

information and promotion actions for agricultural products on the

internal market [2002] OJ L 17/20 276Regulation (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 [2002]

OJ L 31/1 11, 185, 187-95, 203, 208, 231, 247, 249Commission Regulation (EC) No 1321/2002 of 22 July 2002 amending

Regulation (EEC) No 1538/1991 introducing detailed rules for

implementing Council Regulation (EEC) No 1906/1990 on certain

marketing standards for poultrymeat [2002] OJ L 194/17 273–4Commission Regulation (EC) No 1829/2002 of 14 October 2002 amending the Annex to Regulation (EC) No 1107/1996 with regard to the name

‘feta’ [2002] OJ L 277/10 26, 111, 112, 117Regulation (EC) No 1829/2003 of the European Parliament and of the

Council of 22 September 2003 on genetically modified food and

feed [2003] OJ L 268/1 243, 244, 247–50, 251Regulation (EC) No 1830/2003 on the European Parliament and of the

Council of 22 September 2003 concerning the traceability and labelling

of genetically modified organisms and the traceability of food and feed

products produced from genetically modified organisms and amendingDirective 2001/18/EC [2003] OJ L 268/24 243, 244, 250–51Regulation (EC) No 2160/2003 of the European Parliament and of the

Council of 17 November 2003 on the control of salmonella and other

specific food-borne zoonotic agents [2003] OJ L 325/1 274Commission Regulation (EC) No 2295/2003 of 23 December 2003

introducing detailed rules for implementing Council Regulation (EEC)

No 1907/1990 on certain marketing standards for eggs [2003]

OJ L 340/16 267–9Commission Regulation (EC) No 185/2004 of 2 February 2004 amendingRegulation (EC) No 94/2002 laying down detailed rules for applying

Council Regulation (EC) No 2826/2000 on information and promotion

actions for agricultural products on the internal market [2004]

OJ L 29/4 276Regulation (EC) No 852/2004 of the European Parliament and of the

Council of 29 April 2004 on the hygiene of foodstuffs [2004]

OJ L 139/1 207–9, 221Regulation (EC) No 853/2004 of the European Parliament and of the

Council of 29 April 2004 laying down specific hygiene rules for food

of animal origin [2004] OJ L 139/55 209Regulation (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 [2004] OJ L 139/206 209Regulation (EC) No 882/2004 of the European Parliament and of the

Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules [2004] OJ L 165/1 10–11, 185Commission Regulation (EC) No 1515/2004 of 26 August 2004

amending Regulation (EC) No 2295/2003 introducing detailed rules for implementing Council Regulation (EEC) No 1907/1990 on certainmarketing standards for eggs [2004] OJ L 278/7 268Council Regulation (EC) No 509/2006 of 20 March 2006 on agricultural

products and foodstuffs as traditional specialities guaranteed [2006]

OJ L 93/1 117–19Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection

of geographical indications and designations of origin for agricultural products and foodstuffs [2006] OJ L 93/12 5, 34, 93, 102–16,

117, 119–22, 138, 150 Commission Regulation (EC) No 699/2006 of 5 May 2006 amending

Annex I to Council Regulation (EEC) No 2092/1991 as regards conditions

of access for poultry to open-air runs [2006] OJ L 121/36 264, 274Commission Regulation (EC) No 780/2006 of 24 May 2006 amending

Annex VI to Council Regulation (EEC) No 2092/1991 on organic production of agricultural products and indications referring thereto

on agricultural products and foodstuffs [2006] OJ L 137/9 255

Directives

Council Directive 1964/54/EEC of 5 November 1963 on the approximation

of the laws of the Member States concerning the preservatives authorised for use in foodstuffs intended for human consumption [1964] OJ 12/161.English Special Edition Series I, Chapter 1963-1964, p.99 4, 211–12Council Directive 1964/432/EEC of 26 June 1964 on animal health

problems affecting intra-Community trade in bovine animals and

swine [1964] OJ L 121/1977; English Special Edition Series I,

Chapter 1963-1964, p.164 61Council Directive 1964/433/EEC of 26 June 1964 on health problems

affecting intra-community trade in fresh meat [1964] OJ P 121/2012

English Special Edition Series I, Chapter 1963-1964, p.185 129–30Council Directive 1966/402/EEC of 14 June 1966 on the marketing of

cereal seed [1966] OJ 125/2309 English Special Edition Series I,

Chapter 1965-1966, p.143 4Commission Directive 1970/50/EEC of 22 December 1969 based on the

provisions of Article 33(7), on the abolition of measures which have

an effect equivalent to quantitative restrictions on imports and are not

covered by other provisions adopted in pursuance of the EEC Treaty

[1970] OJ L 13/29 [1970] OJ English Special Edition Series I,

Chapter 1970(1), p.17 19–22Council Directive 1970/357/EEC of 13 July 1970 on the approximation

of the laws of the Member States concerning the antioxidants authorised for use in foodstuffs intended for human consumption [1970]

OJ L 157/31 213Council Directive 1970/524 of 23 November 1970 concerning additives

in feedingstuffs [1970] OJ L 270/1 202Council Directive 1971/118/EEC of 15 February 1971 on health problemsaffecting trade in fresh poultrymeat [1971] OJ L 55/23; [1971] English Special Edition Series I, Chapter 1971(1), p.106 61 Council Directive 1973/241/EEC of 24 July 1973 on the approximation

of the laws of the Member States relating to cocoa and chocolate productsintended for human consumption [1973] OJ L 228/23 4, 7–10, 70, 93, 94Council Directive 1974/329/EEC of 18 June 1974 on the approximation

of the laws of the Member States relating to emulsifiers, stabilisers,

thickeners and gelling agents for use in foodstuffs [1974] O J L 189/1 214–15Council Directive 1974/409/EEC of 22 July 1974 on the harmonisation

of the laws of the Member States relating to honey [1974]

OJ L 221/10 4, 70, 93, 99, 100Council Directive 1975/726/EEC of 17 November 1975 on the

approximation of the laws of the Member States concerning fruit

juices and certain similar products [1975] OJ L 311/40 93, 97Council Directive 1976/211/EEC of 20 January 1976 on the approximation

of the laws of the Member States relating to the making-up by weight or

by volume of certain prepackaged products [1976] OJ L 46/1 88–9 Council Directive 1976/893/EEC of 23 November 1976 on the approximation

of the laws of the Member States relating to materials and articles

intended to come into contact with foodstuffs [1976] OJ L 340/19 203Council Directive 1977/436/EEC of 27 June 1977 on the approximation

of the laws of the Member States relating to coffee extracts and chicory

extracts [1977] OJ L 172/20 93, 96

Council Directive 1979/112/EEC of 18 December 1978 on the approximation

of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer [1979] OJ L 33/1 35, 42, 72, 78–9, 90, 253, 270Council Directive 1979/693/EEC of 24 July 1979 on the approximation of the laws of the Member States relating to fruit jams, jellies and

marmalades and chestnut purée [1979] OJ L 205/5 4, 93, 102Council Directive 1976/893/EEC of 23 November 1976 on the approximation

of the laws of the Member States relating to materials and articles intended

to come into contact with foodstuffs [1976] OJ L 340/19 203Council Directive 1980/181/EEC of 20 December 1979 on the approximation

of the laws of the Member States relating to units of measurement and

on the repeal of Directive 1971/354/EEC [1980] OJ L 39/40 87–8Council Directive 1980/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing

of natural mineral waters [1980] OJ L 229/1 123–6Council Directive 1981/389/EEC of 12 May 1981 establishing measures

necessary for the implementation of Directive 1977/489/EEC on the protection of animals during international transport [1981]

OJ L 150/1 62Council Directive 1982/711/EEC of 18 October 1982 laying down the basic rules necessary for testing migration of the constituents of plastic materialsand articles intended to come into contact with foodstuffs [1982]

OJ L 297/26 204Council Directive 1983/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards andregulations [1983] OJ L 109/8 69 Council Directive 1984/450/EEC of 10 September 1984 relating to the

approximation of the laws, regulations and administrative provisions

of the Member States concerning misleading advertising [1984]

OJ L 250/17 123, 228, 270Council Directive 1984/500/EEC of 15 October 1984 on the approximation

of the laws of the Member States relating to ceramic articles intended

to come into contact with foodstuffs [1984] OJ L 277/12 204Council Directive 1988/344/EEC of 13 June 1988 on the approximation

of the laws of the Member States on extraction solvents used in the production of foodstuffs and food ingredients, hexane may be used

in the production of cocoa butter [1988] OJ L 157/28 95, 96–7 Council Directive 1988/388/EEC of 22 June 1988 on the approximation

of the laws of the Member States relating to flavourings for use in foodstuffs and to source materials for their production [1988]

OJ L 184/61 218, 244Council Directive 1989/107/EEC of 21 December 1988 on the approximation

of the laws of the Member States concerning food additives authorised

for use in foodstuffs intended for human consumption [1989]

OJ L 40/27 5, 215–16, 217, 244Council Directive 1989/109/EEC of 21 December 1988 on the approximation

of the laws of the Member States relating to materials and articles

intended to come into contact with foodstuffs [1989] OJ L 40/38 203–5Council Directive 1989/344/EEC of 3 May 1989 amending, for the ninth time,Directive 1973/241/EEC on the approximation of the laws of the MemberStates relating to cocoa and chocolate products intended for human

consumption [1989] OJ L 142/19 8 Council Directive 1989/437/EEC of 20 June 1989 on hygiene and health

problems affecting the production and the placing on the market of eggproducts [1989] OJ L 212/87 271–3Council Directive 1989/617/EEC of 27 November 1989 amending Directive1980/181/EEC on the approximation of the laws of the Member States relating to units of measurement [1989] OJ L 357/28 88Council Directive 1990/219/EEC of 23 April 1990 on the contained use ofgenetically modified micro-organisms [1990] OJ L 117/1 243–4, 251Council Directive 1990/220/EEC on the deliberate release into the

environment of genetically modified organisms [1990]

OJ L 117/15 243–4, 246–7, 251, 254, 260Council Directive 1990/496/EEC of 24 September 1990 on nutrition

labelling for foodstuffs [1990] OJ L 276/40 73, 97–8, 225-6, 228–9, 233Council Directive 1991/629/EEC of 19 November 1991 laying down

minimum standards for the protection of calves [1991]

OJ L 340/28 259, 265–6Council Directive 1991/630/EEC of 19 November 1991 laying down

minimum standards for the protection of pigs [1991]

OJ L 340/33 259, 266, 267Council Directive 1992/115/EEC of 17 December 1992 amending for

the first time Directive 88/344/EEC on the approximation of the laws

of the Member States on extraction solvents used in the production of

foodstuffs and food ingredients [1992] OJ L 409/31 97 Commission Directive 1993/10/EEC of 15 March 1993 relating to materials and articles made of regenerated cellulose film intended to come into

contact with foodstuffs [1993] OJ L 93/27 204Council Directive 1993/43/EEC of 14 June 1993 on the hygiene of foodstuffs[1993] OJ L 175/1 209–10Council Directive 1993/77/EEC of 21 September 1993 relating to fruit

juices and certain similar products [1993] OJ L 244/23 97Council Directive 1993/99/EEC of 29 October 1993 on the subject of

additional measures concerning the official control of foodstuffs

[1993] OJ L 290/14 206 European Parliament and Council Directive 1994/35/EC of 30 June 1994

on sweeteners for use in foodstuffs [1994] OJ L 237/3 217

European Parliament and Council Directive 1994/36/EC of 30 June 1994

on colours for use in foodstuffs [1994] OJ L 237/13 217Council Directive 1994/65/EC of 14 December 1994 laying down the require-ments for the production and placing on the market of minced meat and meat preparations [1994] OJ L 368/10 129–30European Parliament and Council Directive 1995/2/EC of 20 February 1995

on food additives other than colours and sweeteners [1995] OJ L 61/95 218Commission Directive 1996/3/Euratom, ECSC, EC of 26 January 1996

granting a derogation from certain provisions of Council Directive1993/43/EEC on the hygiene of foodstuffs as regards the transport of bulk liquid oils and fats by sea [1996] OJ L 21/42 210Directive 1997/4/EC of the European Parliament and of the Council of 27January 1997 amending Directive 1979/112/EEC on the approximation

of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs [1997] OJ L 43/21 97Commission Directive 1997/35/EC of 18 June 1997 adapting to technical

progress for the second time Council Directive 1990/220/EEC on the deliberate release into the environment of genetically modified organisms[1997] OJ L 169/72 251Commission Directive 1998/28/EC of 29 April 1998 granting a derogation from certain provisions of Directive 1993/43/EEC on the hygiene of foodstuffs as regards the transport by sea of bulk raw sugar [1998]

OJ L 140/10 209–10Directive 1998/34/EC of the European Parliament and of the Council of

22 June 1998 laying down a procedure for the provision of information

in the field of technical standards and regulations [1998] OJ L 204/37 236Council Directive 1998/58/EC of 20 July 1998 concerning the protection ofanimals kept for farming purposes [1998] OJ L 221/23 267Directive 1999/2/EC of the European Parliament and of the Council of

22 February 1999 on the approximation of the laws of the Member Statesconcerning foods and food ingredients treated with ionising radiation [1999] OJ L 6/16 91, 206–7Directive 1999/3/EC of the European Parliament and of the Council of

22 February 1999 on the establishment of a Community list of foods and food ingredients treated with ionising radiation [1999] OJ L 66/24 207Directive 1999/4/EC of the European Parliament and of the Council of

22 February 1999 relating to coffee extracts and chicory extracts [1999] OJ L 66/26 96–7Council Directive 1999/74/EC of 19 July 1999 laying down minimum

standards for the protection of laying hens [1999] OJ L 203/53 267, 268Directive 1999/103/EC of the European Parliament and of the Council of

24 January 2000 amending Council Directive 1980/181/EEC on the approximation of the laws of the member States relating to units of measurement [2000] OJ L 34/17 103

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 Statesrelating to the labelling, presentation and advertising of foodstuffs

[2000] OJ L 109/29 5, 35, 72, 78–90, 97, 123, 131, 221, 227, 232, 245Directive 2000/36/EC of the European Parliament and of the Council of

23 June 2000 relating to cocoa and chocolate products intended for

human consumption [2000] OJ L 197/19 4, 7-10, 94–6Directive 2001/18/EC of the European Parliament and of the Council of

12 March 2001 on the deliberate release into the environment of

genetically modified organisms and replacing Council Directive

1990/220/EEC [2001] OJ L 106/1 5, 242, 244, 246–7, 249, 251, 254Commission Directive 2001/22/EC of 8 March 2001 laying down the

sampling methods and the methods of analysis for the official control

of the levels of lead, cadmium, mercury and 3-MCPD in foodstuffs

[2001] OJ L 77/14 206Council Directive 2001/110/EC of 20 December 2001 relating to honey

[2002] OJ L 10/47 4, 99–101Council Directive 2001/112/EC of 20 December 2001 relating to fruit

juices and certain similar products intended for human consumption

[2002] OJ L 10/58 97–8Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for

human consumption [2002] OJ L 10/67 4, 101–2Directive 2002/46/EC of the European Parliament and of the Council of

10 June 2002 on the approximation of the laws of the Member States

relating to food supplements [2002] OJ L 183/51 232–3Commission Directive 2003/40/EC of 16 May 2003 establishing the list,

concentration limits and labelling requirements for the constituents

of natural mineral waters and the conditions for using ozone-enriched air for the treatment of natural mineral waters and spring waters

[2003] OJ L 126/34 125–6

Decisions

Commission Decision 1993/53/EEC of 21 December 1992 setting up a

scientific committee for designations of origin, geographical indications and certificates of specific character [1993] OJ L 13/16 109Commission Decision 1994/474/EC of 27 July 1994 concerning certain

protection measures relating to bovine spongiform encephalopathy andrepealing Decisions 1989/469/EEC and 1990/200/EEC [1994]

OJ L 194/96 179Commission Decision 1996/281/EC of 3 April 1996 concerning the placing

on the market of genetically modified soya beans (Glycine max L.) with

increased tolerance to the herbicide glyphosate, pursuant to Council Directive 1990/220/EEC [1996] OJ L 107/10 252Commission Decision 1997/98/EC of 23 January 1997 concerning the placing

on the market of genetically modified maize with the combined modificationfor insecticidal properties conferred by the Bt-endotoxin gene and increasedtolerance to the herbicide glufosinate ammonium pursuant to CouncilDirective 1990/220/EEC [1997] OJ L 31/69 252Commission Decision 1997/579 setting up scientific committees in the field

of consumer health and food safety [1997] OJ L 237/18 202Commission Decision 1998/613/EC of 21 October 1998 concerning a draftDecree of the Republic of Austria on the identification of genetically modified additives and flavourings used as food ingredients [1998]

OJ L 291/35 253Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [1999] OJ L 184/23 184, 193–4, 231, 233

Recommendations

Commission Recommendation 1980/1089/EEC of 11 November 1980 addressed to the Member States concerning tests relating to the safety evaluation of food additives [1980] OJ L 320/36 214Commission Recommendation 2003/556/EC of 23 July 2003 on guidelines for the development of national strategies and best practices to ensure thecoexistence of genetically modified crops with conventional and organicfarming [2003] OJ L 189/36 262

INTERNATIONAL

General Agreement on Tariffs and Trade, 1947 and 1994 133, 139Agreement Establishing the World Trade Organisation 134, 135, 146WTO Agreement on Sanitary and Phytosanitary

Measures 14, 15, 133, 134, 138–42, 150WTO Agreement on Technical Barriers to Trade 14, 133, 135, 142–4, 151WTO Agreement on Trade-Related Aspects of Intellectual Property

Rights 14, 133, 134–8WTO Agreement on Agriculture 133, 135, 144–5WTO Agreement on Subsidies and Countervailing Measures 135

Codex Alimentarius recommended International Code of Practice, General principles of Food Hygiene 1/1969; revised 2003 156, 208

Codex Alimentarius General Guidelines on Claims, Codex Guidelines

1/1979; revised 1991 158, 164, 166, 227Codex Alimentarius Code of Ethics for International Trade in Food,

1979; revised 1985 156–8Codex Alimentarius Standard for Honey, Codex Standard 12/1981;

revised 1987 and 2001 .101Codex Alimentarius Standard for Cocoa Butter, Codex Standard

86/1981; revised 2001 170–71Codex Alimentarius Standard for Chocolate, Codex Standard 87/1981;

revised 2003 158, 170Codex Alimentarius Standard for Cocoa Powders (Cocoas) and Dry

Mixtures of Cocoa and Sugars, Codex Standard 105/1981; revised 2001 171Codex Alimentarius Standard for the Labelling of Prepackaged Foods,

Codex Standard 1/1985; revised 1991 and 2005 156, 158–62, 168Codex Alimentarius Guidelines on Nutrition Labelling, Codex

Guidelines 2/1985; revised 1993 and 2003 156, 158, 162–7Codex Alimentarius Standard for the Labelling of and Claims for PrepackagedFoods for Special Dietary Use, Codex Standard 146/1985 164Codex Alimentarius Standard for Cocoa Butter Confectionery,

Codex Standard 147/1985 171Codex Alimentarius General Principles for the Addition of Essential

Nutrients to Foods, Codex Guidelines 9/1987; revised 1991 166Codex Alimentarius Standard for the Labelling of and Claims for Foods

for Special Medical Purposes, Codex Standard 180/1991 165Codex Alimentarius Principles for Food Import and Export Certification and Inspection, Codex Guidelines 20/1995 170Codex Alimentarius Guidelines for Use of Nutrition and Health Claims,

Codex Guidelines 23/1997; revised 2004 158, 227, 229Codex Alimentarius Guidelines for the Production, Processing, Labelling and Marketing of Organically Produced Foods, Codex Guidelines

32/1999; revised 2001 and 2004 158, 167–70Codex Alimentarius Guidelines on the Judgement of Equivalence of

Sanitary Measures Associated with Food Inspection and Certification

Systems, Codex Guidelines 53/2003 63Codex Alimentarius Standard for Canned Bamboo Shoots, Codex Standard241/2003 151Codex Alimentarius Standard for Fermented Milks, Codex Standard

243/2003 42, 171–2Codex Alimentarius Standard for Oranges, Codex Standard 245/2004 151Codex Alimentarius Standard for Fruit Juices and Nectars, Codex

Standard 247/2005 151Codex Alimentarius Advisory Specifications for Food Additives,

12/2006 218

Paris Convention for the Protection of Industrial Property 1883-1967(Stockholm Act) 136 International Convention on the Use of Appellations of Origin and

Denominations of Cheeses 1951 (Stresa Convention) 119International Plant Protection Convention 1951 139Vienna Convention on Ozone Depleting Substances 1985 196Convention on Biological Diversity Cartagena Protocol on

Biosafety 2000 246–7

International Dairy Agreement 1980 135International Bovine Meat Agreement 1980 135International Cocoa Agreement 2001 9–10

UNITED KINGDOM

Assize of Bread and Ale 1266 3Adulteration of Tea and Coffee Act 1724 3Adulteration of Tea Act 1730 3Adulteration of Tea Act 1776 3 Bread Act 1822 3Corn, Peas, Beans or Parsnips and Cocoa Act 1822 3Bread Act 1836 3Adulteration of Food or Drink Act 1860 3Food and Drugs (Adulteration) Act 1928 3

Specified Bovine Offal Order 1995, SI 1928/1995 178Specified Bovine Offal (Amendment) Order 1995, SI 3246/1995 178

Regulating the Food Industry

1.1 INTRODUCTION

FOOD SAFETY IS an issue of major concern throughout Europe Much of

this anxiety results from a series of well publicised recent health scares Fromthe mid-1980s onwards, listeria in cheese, salmonella in eggs and chocolate,bovine spongiform encephalopathy in beef, genetically modified vegetables andsoya, the use of hormones in meat production, toxins, foot and mouth, avianinfluenza and e-coli have all, at one time or another, given rise to particular causefor concern It has become clear, in the aftermath of many of these alarms, that thelaw is generally ill equipped to respond to new crises as and when they arise, oftenresulting in legally questionable emergency measures being taken

In addition to these safety issues, other important matters relating to the duction and marketing of food have also surfaced in recent years For example, thepromotion of free movement for goods throughout the 25 Member States of theEuropean Union (EU) has been coupled with concerns about depreciating foodquality levels, brought about by the high degree of protection accorded to the prin-ciple of mutual recognition This requires that once a food product is lawfullymarketable in any one Member State it must, subject to limited exceptions, be law-fully marketable in all Furthermore, where the Community has set harmonisedstandards for generic foodstuffs, these have tended to be set at the lowest commonlevel.1Traditional, locally and regionally produced products that have sustainedcommunities for generations now come under threat from mass produced andnutritionally inferior substitutes, manufactured from poor quality ingredients bydifferent methods of production The resulting products, though qualitativelyinferior, are legally marketable under the same food name It is often very difficultfor either national governments or the EU institutions to take action to counter-act this without contravening current Community law and policy

pro-The structure of the law and policy of the European Union directly favours certain practices which devalue the quality of food Manufacturers and producersare agile and adept at putting pressure on local and European politicians to main-tain outdated and unsustainable systems of production preventing improvements

in food quality Producers are even financially rewarded for the non-production

1 For further discussion on how harmonising rules can be used to protect consumers see

S Weatherill, EU Consumer Law and Policy (Cheltenham, Edward Elgar, 2005).

of goods Though the common market is based upon the concept of the free movement of goods and services within the EU, the other side of the same coin is

to effectively ban the importation of goods from outside the Member States, evenwhere these goods are of equal or superior quality or cheaper in price This effec-tively deprives consumers of choice It is no surprise that the resulting food pro-duction system is no longer acceptable, since not only does it result in decreasedefficiency of production, lower quality of goods and increased wastage of food; italso has an injurious effect on the economic growth of countries outside theUnion, that younger electorates no longer consider politically acceptable

Globalised rules on technical barriers to trade, sanitary and phytosanitary measures and trade-related aspects of intellectual property rights all have thepotential to render EU food laws contrary to international commitments.Measures introduced to protect human health or the environment must be scien-tifically justifiable to be capable of withstanding World Trade Organization(WTO) scrutiny This can bring EU legislators into direct conflict with consumergroups who seek to minimise the negative impacts of the ever-increasing use oftechnology and innovation in food production

Animal welfare, human nutrition and human rights considerations also have animportant, yet much underused, role to play in shaping EU food law In particu-lar, the Community legislator has tended to overlook the need to ensure that thefood that is produced and consumed continues to serve its primary function ofproviding nutrition and sustenance Politicians have allowed the fundamentalCommunity principle of the free movement of goods to underlie all key harmon-ising provisions in this area at the expense of health and consumer protection.Emphasis on safety in the aftermath of the ‘food scares’ has also resulted in thequality and nutritional value of food receiving less attention in new legislative ini-tiatives It is here contended that the future of EU food law lies not with the pre-occupation with ensuring that food is safe, or at least that the possibility of ‘unsafe’food entering the chain is minimised Instead, attention now needs to be shiftedonto a group of key factors, including production efficiency, nutritional value,quality levels, ethical considerations, consumer protection and human health pro-tection which, when combined, should result in the creation of a more unified andsimplified body of rules that leaves more autonomy with the individual MemberState in deciding what the consumer should be encouraged to eat, and what theconsumer should probably be protected from

1.2 HISTORICAL DEVELOPMENT OF FOOD LAW

The need for laws regulating the production and marketing of food has long been obvious This is evidenced from some of the earliest historical writings whichindicate the existence of codifying rules designed to protect consumers from dishonest practice in the sale of food.2Assyrian tablets described the methods to

2 See FAO and WHO, ‘Origins of the Codex Alimentarius’ in Understanding the Codex Alimentarius

(1999), ISBN 92-5-104248-9.

be used to determine the correct weights and measures for grain; Egyptian scrollsprescribed the labelling to be applied to certain foodstuffs; in ancient Athens, beerand wine were inspected for purity and soundness; the Romans had a highlyorganised state food control system to protect consumers from fraud or poor pro-duce.3Ancient Irish laws (Bechbretha) legislated for, inter alia, the resolving of

disputes over the ownership of fruit that fell on a neighbour’s land If a tree ing on A’s land drops fruit onto that of B, this is to be divided between A and B forthree years In year four, it all goes to B The cycle restarts in year five.4In Europeduring the middle ages individual countries passed laws concerning the qualityand safety of eggs, sausages, cheese, beer, wine and bread.5The famous Germanbeer-purity laws (Biersteuergesetz) were introduced in 1516.6 In France, sys-temised wine quality classification laws (Appelation d’Origine Controlée) werefirst introduced in 1935

grow-In the United Kingdom, laws relating to food developed from the medievalguilds, which sought to maintain the purity of the commodities in which theirmembers dealt, resulting in, for example, the Assize of Bread and Ale 1266.7Earlystatutes tended to deal with specific foodstuffs rather than general principles offood law These included the Adulteration of Tea and Coffee Act 1724, theAdulteration of Tea Act 1730, which prohibited the use of sloe leaves, liquoriceleaves and already used tea leaves in tea, the Adulteration of Tea Act 1776, theBread Acts 1822 and 1836, and the Corn, Peas, Beans or Parsnips and Cocoa Act

1822, which established a licensing system for the sale of these foodstuffs Most ofthis legislation tended to be introduced for three main reasons: to protect humanhealth; to promote fair trade; and to protect State revenues gained from trade inpure forms of the foodstuffs

The first UK Act of Parliament to deal with the sale of food more generally wasthe Adulteration of Food or Drink Act 1860, which made it an offence to know-ingly sell food containing any injurious ingredient or which was adulterated in anyway.8More ad hoc legislation was introduced later, dealing with the compositionand labelling of margarine, milk, butter, dairy products, preservative use and thelabelling of imported meat.9Existing food laws were later consolidated in the Foodand Drugs (Adulteration) Act 1928

During the second half of the 19th century, more general food laws began toappear throughout Europe, establishing more formalised food control systems

3 Ibid.

4 F Kelly, A Guide to Early Irish Law (Dublin, Dublin Institute for Advanced Studies, 1988).

5 FAO and WHO, Understanding the Codex Alimentarius, note 2 above

6 These rules, which had persisted for nearly 500 years, were the subject of examination for

com-patibility with EU rules on the free movement of goods in Case 178/1984, Commission v Germany (bier)

[1987] ECR 1227 See Chapter 2 below.

7 51 Hen 3 Stat 1.

8 Article 1 The Act also contained provisions on food analysis (Arts 3, 4 and 5) and rights of appeal (Arts 6, 7 and 9), and established a legal definition of ‘food and drink’ for the first time (Art 14) as including ‘not only all alimentary substances, whether solids or liquids, but also all eatables or drink- ables whatsoever not being medical drugs or articles usually taken or sold as medicines’.

9 For further details, see Halsbury’s Laws of Englanwd 4th edn (London, LexisNexis, 2000).

and compliance monitoring procedures Around the same time, food chemistryand science brought about changes to the manner in which food was to be pro-duced Methods were devised to establish the purity of food Harmful industrialchemicals were often used to disguise the true colour or nature of food Sciencecould now provide the methods and processes by which these, and other, practicescould be readily identified and to enable distinctions to be made between safe andunsafe food

The preponderance of food laws in the Member States comes directly from the

EU since their accession to the EC Treaties Food Laws come either in the form ofnew requirements introduced by way of regulation or directive, or by way of alter-ations that must be made to domestic law following decisions of the Communitycourts The EU institutions commenced their harmonisation programme for foodlaws at a very early stage in the development of the Community legal order Initialexamples of this activity through legislative means can be seen in CouncilDirective 1964/54 on preservative use,10Council Directive 1966/402 on the mar-keting of cereal seed, which sought to ensure that the quality of seeds used in cerealproduction were of a set minimum quality standard,11and the original ‘recipelaws’ The ‘recipe laws’ set common compositional and production methodrequirements for, amongst others, chocolate,12 honey,13 and jams and mar-malades.14 Initial case law on the free movement of goods was also to have a substantial impact on the food laws of the individual Member States Cases such

as Cassis15and Commission v Germany16were to lead to an alteration in domesticcustomary practices and rules for the production and marketing of food anddrink, often nullifying the effectiveness of national laws that had remained rela-tively unchanged for centuries It was also clear, from subsequent decisions of theEuropean Court of Justice, that the legal principles developed from these initialjudgments would extend to all national rules relating to food and drink that weredeemed to be a restriction on trade within the Community in any way, subject to

10 Council Directive 1964/54/EEC of 5 November 1963 on the approximation of the laws of the Member States concerning the preservatives authorised for use in foodstuffs intended for human con- sumption [1964] OJ 12/161 English Special Edition Series I, Chapter 1963–4, p 99.

11 Council Directive 1966/402/EEC of 14 June 1966 on the marketing of cereal seed [1966] OJ 125/2309 English Special Edition Series I, Chapter 1965–6, p 143.

12 Council Directive 1973/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption [1973] OJ L 228/23 Now replaced by Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption [2000] OJ L 197/19.

13 Council Directive 1974/409/EEC of 22 July 1974 on the harmonisation of the laws of the Member States relating to honey [1974] OJ L 221/10 Now replaced by Council Directive 2001/110/EC of 20 December 2001 relating to honey [2002] OJ L 10/47.

14 Council Directive 1979/693/EEC of 24 July 1979 on the approximation of the laws of the Member States relating to fruit jams, jellies and marmalades and chestnut purée [1979] OJ L 205/5 Now replaced by Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption [2002] OJ L 10/67.

15Case 120/1978, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

16Case 178/1984, Commission v Germany (bier) [1987] ECR 1227.

some, albeit very limited, exceptions.17The manner in which the Court began tointerpret the EC Treaty, in particular Articles 28 to 30 thereof,18according to theCommission, removed much of the need to introduce further harmonising mea-sures, such as those set out in the earlier recipe laws.19 However, secondaryCommunity legislation would still be required for many aspects of the food production and marketing process This body of legislation now extends to covermatters such as food labelling,20 additive use,21 protected geographical foodnames,22organic food production,23the deliberate release of genetically modifiedorganisms,24and, probably, nutrition and health claims.25As new technologiesare applied to the production of food, new laws are required to control their use,and to appease consumers’ uncertainty about their safety It is generally the EUthat is best placed to respond to these new requirements, given that any law that itintroduces will generally become national law in all Member States simultane-ously, removing the potential for anti-competitive and unfair trading practices topersist within one of the most lucrative, and probably the most important, of allthe markets in the Union At least that is the intention.

1.3 IMPORTANCE OF THE FOOD SECTOR IN THE EU

Food is of major importance to the European economy Prior to the 2004 round ofenlargement, the food and drink industry was estimated to be worth €600 billionannually, accounting for 15 per cent of total manufacturing output, involving theemployment of over 2.6 million people.26The European Union is the world’s

17See, for example, Case 788/1979, Criminal proceedings against Gilli and Andres [1980] ECR 2071; Case 27/1980, Criminal proceedings against Anton Adriaan Fietje [1980] ECR 3839; Case 193/1980,

Commission v Italy (vinegar) [1981] ECR 3019; Case 298/1987, Proceedings for compulsory tion against Smanor SA [1988] ECR 4489; Case 286/1986, Ministère public v Gérard Deserbais [1988]

reconstruc-ECR 4907; Case 274/1987, Commission v Germany (meat products) [1989] reconstruc-ECR 229; Case 76/1986,

Commission v Germany (milk substitutes) [1989] ECR 1021; Case 216/1984, Commission v France (milk

substitutes) [1988] ECR 793.

18 Formerly Arts 30–36 EC.

19 Communication on the free movement of foodstuffs within the Community [1989] OJ C 271/3.

20 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 [2000] OJ L 109/29.

21 Council Directive 1989/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorised for use in foodstuffs intended for human con- sumption [1989] OJ L 40/27.

22 Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical cations and designations of origin for agricultural products and foodstuffs [2006] OJ L 93/12.

indi-23 Council Regulation (EEC) No 2092/1991 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs [1991] OJ L 198/1.

24 Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and replacing Council Directive 1990/220/EEC [2001] OJ L 106/1.

25 Proposal for a Regulation of the European Parliament and of the Council on nutrition and health claims made on foods COM (2003) 424.

26 Figures taken from Chapter 1 of the European Commission White Paper on Food Safety COM (1999) 719.

largest producer of food and drink products In addition to this, agriculture wasworth €220 billion per year, including €50 billion in exports to third countries, pro-viding 7.5 million full-time jobs More recent figures suggest that turnover in thefood and drinks industry, post-enlargement to 25 Member States, had risen to €799billion, involving the employment of 4.1 million people Meat processing aloneaccounts for €161 billion turnover in the EU, €31 billion of which is profit In fact,meat processing has become an even more lucrative industry in recent years,despite the identified decline in consumer confidence levels after the BSE (BovineSpongiform Encephalopathy), foot and mouth and avian flu scares Annualturnover in the dairy sector in the EU stands at €117 billion, €18 billion of which isprofit Beverages turnover is €118 billion, generating €31 billion profit in 2005.27Total exports of food and drink from the EU in 2003 were worth €44.5 billion, withimports from third countries into the Community standing at €38.7 billion, leav-ing a trade surplus in the EU for food and drink of nearly €6 billion, with the UnitedStates being the main export destination for European Union foodstuffs Of the top

10 food exporters in the world, seven (France, Netherlands, Germany, Belgium,Spain, UK and Italy) are EU Member States, all of which are currently largerexporters of food than China.28Overall, the food and drinks industry is the largestmanufacturing sector in the EU, accounting for almost 15 per cent of the sector.Trade in food is a major political issue EU Member States seek to preserve thecustomary method of manufacture for their traditional and national foodstuffs.National laws often reflect the preferences of consumers in each of the MemberStates This, however, tends to fall foul of Community law obligations in one oftwo ways Either these national rules inhibit the free movement of food in theCommunity by making it more difficult for producers in other Member Statesmanufacturing the same or similar products to gain access to the domestic market

of the host State contrary to Article 28 EC prohibiting quantitative restrictions ontrade or measures of equivalent effect Alternatively, no Member State can main-tain national laws that are out of line with the harmonised EU standard introduced

by way of secondary Community legislation In relation to the former, MemberStates can plead various justifications for the existence of these trade-inhibitingrules before the Community Courts This is discussed in more detail in Chapter 2

On the latter, much political wrangling may surround the common standard that

is to be, or which has been, adopted Each Member State, or group of MemberStates, seeks to have the approximated compositional requirement and/or method

of production as close to its existing standard as possible The obvious advantage

of this is that the less domestic producers have to modify their own method of duction, the more the harmonised Community standard approximates to theirexisting practices An example of the duration and intensity of the debate that cansurround the introduction of these standardised Community rules was mostfamously seen in relation to the chocolate directive

pro-27USDA Foreign Agricultural Service GAIN Report E35067, The EU’s Food and Drink Industry

2005.

28WTO, International Trade Statistics, ISBN 9287012202.