The Food Sector (Spicers European Policy Reports)

The Food Sector

SPICERS EUROPEAN POLICY REPORTS European Internal Market Policy Kevin Featherstone Transport Policy Kerry Hamilton Youth Policy Gordon Blakely Employment Policy Margareta Holmstedt Small and Medium Sized Enterprises Kenneth Dyson Regional Policy Colin Mellors/Nigel Copperthwaite

The Food Sector Compiled by

Stephen Fallows

Published by Routledge in association with the University of Bradford and Spicers Centre for Europe Ltd

First published 1990 by Routledge in association with the University of Bradford and Spicers Centre for Europe Ltd This edition published in the Taylor & Francis e-Library, 2005. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” Routledge 11 New Fetter Lane, London EC4P 4EE Simultaneously published in the USA and Canada by Routledge a division of Routledge, Chapman and Hall, Inc. 29 West 35th Street, New York 10001 © 1990 University of Bradford/Spicers Centre for Europe Ltd All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data Fallows, Stephen The food sector. 1. Food industry and trade. European Economic Community Countries I. Title 338.4’7641’094 ISBN 0-203-99116-8 Master e-book ISBN

ISBN 0-415-03833-2 (Print Edition) Library of Congress Cataloging in Publication Data has been applied for

CONTENTS

Foreword

1

The European Community: Its Role, Institutions, and Legislation

7

SECTION I Development of the EC’s Food Policy

13

Content and Scope

15

SECTION II Key Documents on Food Policy SECTION III

39 103

Approximation of Laws

105

Consumer Protection

115

Advisory Bodies

117

Scientitic Basis

119

Other

125

vi

FOREWORD

This volume is one of a series offering an informed guide to particular policies and programmes of the European Community. They are intended for the intelligent reader as well as for the specialist. They assume no prior knowledge of the European Community, but they each offer a comprehensive and up-to-date guide to what the Community is doing, or proposes to do, in important areas of economic, social and political life. The volumes should appeal especially to those involved in business and commerce, public administration, and education. The volumes guide the reader through the maze of European Community legislation and policy proposals. Their main concern is with the official documents of the European Community institutions: helping the reader to understand Community policies and proposals. By doing so, each volume offers the reader a single reference source, collating all the essential information the reader needs to understand what is going on. Each volume is structured so as to offer easy access to the specific information needed. A preliminary note explains what the European Community is and how it operates. Each volume focuses on a distinctive policy area, and SECTION I introduces the reader to European Community action in that sphere. It explains how Community policy has evolved, the problems currently being confronted, and what is proposed for the future. SECTION II highlights the key documents and

2 THE FOOD SECTOR

proposals in the policy area, giving extensive summaries of each of them. Finally, SECTION III provides a comprehensive listing of all the relevant Community documents in this policy sphere, with full bibliographical details and a brief note as to their content. As the reader progresses through each volume, he or she will have been guided from the general to the very specific, and from little or no knowledge to an informed picture of developments in the policy sphere concerned. Moreover, the information has been structured so as to allow the more specialist reader to pursue particular inquiries yet further: the volumes guide the reader to the policy documents specific to his/her interest. With the drive to complete the single internal European Community market by the end of 1992, more and more attention will be focused on Community policies and actions. By the end of this century, the European Community will be playing a more prominent part in the lives of its citizens and in a way which will have ramifications in other parts of the world also. The European Community is already an important actor on the world stage, and it will be even less possible to ignore it in the 1990s. This series of policy guides is designed to provide the information that is and will be needed to respond to this changing world. High-quality information is the key to effective action. This series has been produced by the European Briefing Unit at the University of Bradford (UK) together with Spicers Centre for Europe Limited, a member of Spicer and Oppenheim International. The collaboration between these two bodies has brought together a team of specialist writers’ expert in the various policy spheres covered by the volumes. Each writer is actively engaged in the study and research of these policy areas, and each has long experience in communicating their skills to the lay audience. The series has been co-ordinated by Amanda Deaville (Spicers) and Kevin Featherstone (Bradford).

FOREWORD 3

Both the European Briefing Unit (EBU) at the University of Bradford and Spicers Centre for Europe have an active interest in promoting knowledge and awareness of the European Community. The EBU is located in the Department of European Studies at the University of Bradford: the Department is the largest of its kind in the UK, and is actively involved in both teaching and research at all levels. The EBU was created in 1988 as a public resource, operating on a non-profit and open access basis. It acts as a neutral forum for the purpose of disseminating and advancing relevant knowledge about the Single European Market; new trading and business opportunities in Europe; the European Community’s Structural Funds and technology programmes; the external trade, business and political relations of the EC; and the social, cultural and educational implications of European integration. The EBU exists to serve the needs of industry, commerce and public authorities as well as those of the University itself and other educational bodies. The EBU has established close collaborative links with a number of relevant bodies across different sectors so as to promote its activities. Spicers Centre for Europe Ltd is a privately based organization serving the needs of its commercial clients. It offers expert EC advice and information to both private and public sector organizations and enterprises. It assists its clients in obtaining funding from EC sources, and it keeps them informed as to the changes in EC policy which might affect their interests. It advises organizations on how they might respond to the opportunities and challenges of the EC, by reviewing corporate strategies. It also offers a business information service based on its own and EC data bases, involving the Tenders Electronic Daily data base (TED) and the Business Co-operation Network data base (BC-NET). As a member of Spicer and Oppenheim International it is

4 THE FOOD SECTOR

linked to an organization which has 250 offices in more than fifty countries throughout the world. The collaboration between the EBU and Spicers is intended to produce a continuing series of publications to inform both specialist and lay audiences about the role and impact of the European Community. Readers of these volumes are invited to contact either body directly if they have any comments to make on the volumes, or if they would like to know more about the activities of either organization. Both the EBU and Spicers would like to record their gratitude to Alan Jarvis (Routledge) for his support and patience in dealing with this publishing venture. Moreover, progress would have been more difficult had it not been for the efficient typing, by Christine Pratt of Spicers. More generally, thanks go to the full team of writers and assistants involved in this project for their willingness to see it succeed. Kevin Featherstone General Editor

5

Contact addresses: The European Briefing Unit University of Bradford Bradford BD7 1DP United Kingdom Telephone: 0274–733466 Telex: 51309 UNIBFD G Fax Number: 0274 305340 Spicers Centre for Europe Limited Ground Floor 10–12 East Parade Leeds LS1 2AJ United Kingdom Telephone: 0532 442629 Telex: 557890 EUROPE G Fax Number: 0532 449909

6

THE EUROPEAN COMMUNITY: ITS ROLE, INSTITUTIONS, AND LEGISLATION

The European Community (EC) represents a unique development in the world: a new structure of relations between states. It has often been referred to as ‘the Common Market’ because it is a single trading entity: goods moving between the member countries are not subject to tariffs, while imports from the rest of the world enter under uniform conditions. But it is much more than that: it plays an important political and social role, in addition to its economic purposes. Moreover, the EC is set to develop much further in the 1990s. In the 1958 Treaty of Rome, a commitment was made to seeking in the long-term ‘an ever closer union among the peoples of Europe’, an ambitious objective which it has found difficult to realise. However, the Single European Act which came into force in July 1987 provides for an expansion of the EC’s political role and for the completion by the end of 1992 of a fully integrated, barrier-free internal market. The ‘European Community’ actually stems from three Communities: the European Coal and Steel Community (ECSC) established in 1952; the European Economic Community (EEC) which came into being in 1958; and, the European Atomic Energy Community (Euratom) which also began in 1958. The original member states of each of these three Communities were Belgium, France, the Federal Republic of Germany, Italy, Luxembourg and the

8 THE FOOD SECTOR

Netherlands. Successive enlargements of the Communities have increased their membership from six to twelve: Denmark, Ireland and the United Kingdom joined as of 1 January 1973; Greece on 1 January 1981; and Portugal and Spain on 1 January 1986. The population of the EC is now 320 million, greater than that of the USA (234 million), the Soviet Union (269 million), or Japan (119 million). Its Gross Domestic Product per head is significantly lower than that of either the USA or Japan. However, the Community today is the world’s largest trading power, accounting for almost 20% of world trade. Economically and politically, the EC dominates Western Europe, and it has established important relations with countries across the world. Policy making in the EC involves the Commission, the Council of Ministers, the European Parliament, and the Economic and Social Committee, with the adjudication of the Court of Justice and the Court of Auditors. In addition, the European Investment Bank (EIB) was established by the Treaty of Rome as the bank for financing capital investment promoting the balanced development of the Community. Until 1967, the three original Communities had separate Councils of Ministers and executive Commissions (known as the ‘High Authority’ in the ECSC) . By contrast, the European Parliament and the Court of Justice have been common to the ECSC, EEC and Euratom since 1958. From 1967 onwards there has been a single Commission and a single Council, simplifying the overall structure. The three most important policy-making institutions of the EC today are the Council of Ministers, the Commission and the European Parliament. Since 1974, they have been joined by the ‘European Council’, a body given formal status by the Single European Act. The European Council is the term given to the summit meetings of the heads of government (and of state in the case of France) of the EC countries. It has no legislative

THE EUROPEAN COMMUNITY 9

power, rather its purpose is to place current issues in a more general perspective and to give impetus to those initiatives that it regards as priorities for action. Until 1985, it met three times a year, but this has since been cut back to twice a year. The Presidency of the European Council and of the Council of Ministers rotates between the member governments at six-monthly intervals. The European Council meetings are usually held in the country holding the presidency. The Council of Ministers’ headquarters is in Brussels, where the Commission is also based. The European Parliament, by contrast, currently holds its plenary sessions in Strasbourg, most of its committee meetings in Brussels, whilst its permanent staff are based in Luxembourg. This rather awkward compromise remains a source of controversy. EC legislation is determined by the three main institutions—the Council of Ministers, the Commission, and the European Parliament—with the Economic and Social Committee offering its advisory opinion. The Commission acts as the initiator of legislation and as the executive authority responsible for implementing it. Legislation is finally enacted after it has been approved by the Council of Ministers, either acting unanimously or by a qualified majority. It has been estimated that, as a result of the Single European Act, two-thirds of the internal market proposals will be covered by majority voting. The Council’s legislative role has been further amended by a new ‘Co-operation Procedure’ established by the Single European Act, which gives increased powers to the European Parliament. This provides, inter alia, for the Parliament to be able to reject the Council’s initial response to a Commission proposal, and the Council can then only pass the proposal into law if it acts unanimously (Art. 149:2c of the EEC Treaty as amended) . Prior to the Single European Act, the Parliament already had the final say over the annual EC budget, though its scope for manoeuvre on expenditure is set within limits.

10 THE FOOD SECTOR

Some description of each institution is necessary. The Council of Ministers is made up of representatives of the governments of the 12 member states. Each government normally sends one of its ministers. Its membership thus varies with the subjects down for discussion. The Foreign Minister is regarded as his country’s ‘main’ representative in the Council, but Ministers for Agriculture, Transport, Economic and Financial Affairs, Social Affairs, Industry, the Environment and so on also meet frequently for specialized Council meetings and sometimes sit alongside the Foreign Ministers. The Council is supported by a large number of working parties and by a Committee of Permanent Representatives (COREPER). COREPER is composed of the various national ‘ambassadors’ to the EC. The Commission consists of 17 members, appointed by agreement between the member governments. Throughout their four-year term of office, Commissioners are required to remain independent of national governments. An individual Commissioner cannot be sacked: the Parliament can pass a motion of censure compelling the Commission to resign en bloc. The European Parliament is the world’s first directly elected international assembly. It was first directly elected in 1979: it was previously composed of nominated national parliamentarians. The Parliament serves fiveyear terms and currently has 518 members (MEPs). The Court of Justice, based in Luxembourg, acts as the supreme court of the EC. It should not be confused with the European Court of Human Rights in Strasbourg, which is not an EC body. The Court of Auditors began operating in 1977 and, as its name suggests, it audits the EC accounts. The Economic and Social Committee is an advisory body of 189 members, representing various sectors of economic and social life, offering opinions on EC policies and proposals.

THE EUROPEAN COMMUNITY 11

EC Law The nomenclature of EC legislation can be confusing. The essential point to bear in mind is that the Commission brings forward proposals for legislation, the outcome of which will be variously determined by the Council and the Parliament. ‘Primary legislation’ of the EC is embodied in the treaties; ‘Secondary legislation’ is derived from the treaties in the form of ‘Regulations’, ‘Directives’ etc. The EC represents a distinct legal system, and its strongest form of legislation is superior to national law. When acting under the Treaty of Paris (ECSC), the Commission can take decisions, make recommendations or issue opinions. Decisions are binding in their entirety; recommendations are binding as to the ends but not as to the means; opinions are not binding. The Council acts in ECSC affairs mainly at the request of the Commission, either stating its opinion on particular issues or giving the assent without which, in certain matters, the Commission cannot proceed. The Commission’s ECSC decisions are mostly addressed to individual persons, firms or governments’ but they may also lay down general rules, since the Commission does also have general rulemaking powers. When acting under the Rome Treaties (EEC and Euratom), the Council and the Commission issue regulations, directives, decisions, recommendations and opinions. Regulations are of general application: they are binding in their entirety and applicable in all member states. Directives are binding on the member states to which they are addressed as regards the results to be achieved, but leave the form and methods of achieving it to the discretion of the national authorities. Decisions may be addressed to a government, an enterprise or a private individual; they are binding in their entirety on those to whom they are addressed. Recommendations and opinions are not binding.

12 THE FOOD SECTOR

The discrepancy in terminology between the Paris Treaty and the two Rome Treaties is confusing. An ECSC ‘recommendation’ is a binding enactment corresponding to the EEC and Euratom ‘directive’, whereas an EEC ‘recommendation’ is not binding and is not stronger than an ‘opinion’. When examining the current progress of EC legislation in non-ECSC policy areas, the reader typically focuses on Commission proposals (e.g. for a directive) to be agreed by the Council of Ministers (subject to the differential powers of the European Parliament). It is clear from the above that the EC today is an important actor in international relations, enjoying both political and economic significance not only for its domestic citizens but also for those in other countries.

SECTION I DEVELOPMENT OF THE EC’S FOOD POLICY

14

Content and Scope

This volume seeks to set out the current situation relating to food policy within the European Community. It is necessary to establish from the outset that there is no single policy relating to food. Rather, the production, processing, manufacture and distribution to the consumer of food is subject to a wide variety of EC provisions which supplement, or in some cases have replaced, national measures. This document addresses those policy initiatives and actions which apply specifically to foods. The intention is to describe the operation of the policy initiatives and to consider their effects on the nature of our food and on the companies responsible for its supply. It is useful from the outset to define what will be included within this topic and hence also to state what will be excluded from the subject of ‘food’. Food production is recognised as beginning with the primary industries of agriculture and fisheries. Within the European Community and elsewhere each of these primary industries is subject to a plethora of controls, rules, support mechanisms and other measures. The Common Agricultural Policy (CAP) and Common Fisheries Policy are each substantial enough to merit consideration in their own right. This is particularly the case with respect to the CAP which constitutes the major expenditure within the Community budget.

16 THE FOOD SECTOR

It is not the intention within this volume to discuss the primary production industries (agriculture and fisheries) in any detail. The boundaries are therefore set to include matters relating to foods which are distinguishable as such. This excludes measures which serve to regulate agricultural products per se. This sets a basic framework which includes all of the policy matters directly applicable to the food industries but which excludes matters of strictly agricultural importance. The above statement is provided as the general rule, however the nature of the subject requires that for completeness mention is made of certain developments which are applied principally at the agricultural (primary production) level rather than later in the food supply system. In general the major issues which apply to food policy may be divided into three major groupings. 1. Those matters which relate to the harmonization of regulatory controls. These are matters relating to the application of Article 100 of the European Treaty (Treaty of Rome) or more recently under the revised procedures provided for in the new Article 100A included in the Single European Act. 2. Matters which relate to the free movement of foods between Member States as provided for in Article 30 of the Treaty. This includes measures which have been taken in order to remove the existing barriers to trade and to prevent the establishment of new barriers. 3. Those food controls which appear as part of agricultural legislation rather than internal market legislation. Food controls in this category principally apply to basic food commodities such as meat, milk or other items which are sold to the consumer in a basic relatively little processed state. Measures in this context are often related to hygiene and other safety considerations.

CONTENT AND SCOPE 17

Each of the three categories will be considered in turn in this section. Harmonization of Food Controls In all Member States there is a long history of food controls. Measures have existed for centuries to control the principal products of the food economy. In the UK (for example) legislation relating to the sale of bread may be traced as far back as 1266. Each Member State has evolved its own individual controls for food in the context of its dietary practices and individual preferences. In all states legislation has followed a similar pattern of development. Initially legislation concerned basic everyday products such as bread or beer and existed to prevent fraudulent sale of inferior products. Later as trade in food expanded adulteration of the rarer (and hence more expensive) products was common and measures were adopted to prevent this. With the development of scientific analysis further measures were introduced to ensure safety of foodstuffs and limit the substances which could be included. Over the years measures have evolved to cover three broad categories of controls a) Compositional This refers to the range of permitted ingredients for specified products or more generally. This may refer to the basic food ingredients, the use of food additives or to permitted processes and manufacturing techniques. b) Safety Measures designed to protect consumer safety. Here controls include the general safety in use considerations relating to food additives. Also included are food

18 THE FOOD SECTOR

hygiene controls and measures regulating inspection procedures. c) Labelling Measures specifying what information must be provided on products to ensure that food purchasers are able to make an informed choice between products on offer. Although each Member State has evolved its own system of controls and within this its own specific controls there has been a common set of objectives which can be applied to food controls wherever promulgated. 1. To ensure that the food purchased by the consumer is safe for consumption. 2. To ensure that the f ood purchaser is protected f rom sharp practices adopted by the unscrupulous trader. 3. To ensure that the food purchaser is able to make an informed choice. 4. To protect the honest trader from unfair competition from those who might offer inferior quality goods. These objectives have in one form or another been applied in each Member State and more recently have provided the broad basis for controls developed at Community level. Since the establishment of the European Community there has been a shift away from a national emphasis towards a European emphasis in many areas of life. The food sector has been included in this shift as the Community has sought to establish unified Communitywide measures to replace or supplement existing national controls. Article 100 of the Treaty has provided the basis of this movement. The intention has been to establish a common set of rules which would apply equally to foods (and similarly to other goods) produced in any of the Member States.

CONTENT AND SCOPE 19

The achievement of a common set of ‘rules’ has clear benefits for any organization which wishes to operate in more than one Member State. The presence of a fully compatible set of rules in every Member State means that a standardized product may be marketed in each and every State without the necessity of modification. The Treaty of Rome which established the European Community provided the basis for the harmonization of controls relating to foods and other products. Article 100 stated: The Council shall, acting unanimously on a proposal from the Commission, issue Directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment of the Common Market. The Assembly and Economic and Social Committee shall be consulted in the case of Directives whose implementation would in one or more Member States, involve the amendment of legislation. As most measures have required amendment of legislation the Assembly and the Economic and Social Committee have been consulted on most occasions. The adoption of the Single European Act in 1986 replaced Article 100 with a new Article 100A which states: The Council shall, acting on a qualified majority on a proposal from the Commission in co-operation with the European Parliament and after consulting the Economic and Social Committee, adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the Internal Market.

20 THE FOOD SECTOR

Article 100A differs from Article 100 on a number of counts. Several of these reflect the increased maturity of the Community (particularly the increased role for the European Parliament) whilst other changes reflect the failure of the Community to meet the objects originally proposed. The shift in voting procedures (from a requirement for unanimity to the adoption of the qualified majority system to Article 100A) was adopted in order to hasten the harmonization process. This was regarded as necessary in order finally to achieve a unified Single Internal Market. In general progress under Article 100 had been slow and in the foodstuffs sector the programme had not performed as had initially been planned. In the context of foodstuffs controls the process of harmonization has been applied in two ways. 1. Vertical Directives. These are measures which apply to very specific food categories which can be closely defined. The controls which apply to chocolate or sugar are examples of this type of Directive. In comparison with the vast number of different food products on the market it is only a very small minority which are subject to detailed productspecific controls. Although the Commission originally foresaw a programme of product-specific Directives this approval has proved to be unsuccessful and it is unlikely that any further attempts will be made to establish Euro-standards for specific foodstuffs. The cultural and social associations which apply to foods have meant that no member state has been willing to abandon its long established culinary traditions. 2. Horizontal Directives. These are measures which can be applied across a wide range of foodstuffs or even across all foodstuffs. Examples include the general acceptance for use of specified food

CONTENT AND SCOPE 21

additives, the rules relating to labelling or the controls on materials permitted to come into contact with foods. It is with the horizontal Directives that the future development of food policy with respect to harmonization will take place. It is also the horizontal measures which have been most influential in determining the actions of the food industry in recent years. Many of the horizontal measures are concerned with matters of food safety and are based extensively on advice from the Communities’ scientific advisers, the Scientific Committee for Food. The present programme of activity with respect to harmonization was set out in the Commission’s 1985 white paper on ‘Competition of the Internal Market: Community Legislation on Foodstuffs’ (see Section II). This paper stated that it was not practical to constrain the dietary practices of the Member States within a ‘culinary straitjacket’ which would determine simple product specifications. The paper did, however, set out a number of areas where the Commission saw a need for further and continuing legislation. For all other areas it was considered to be inappropriate to develop specific legislation under Article 100A since it was thought that other matters could be administered without such legislation. Further measures were to be proposed only for the following specific purposes. – To protect public health. – To provide consumers with information and protection on matters other than health. – To ensure fair trading. – To provide for the necessary controls.

22 THE FOOD SECTOR

The White Paper has been followed by a number of proposals which have been put forward with regard to the conditions stated in the White Paper. Key developments include the following: – Materials in contact with foodstuffs. – Dietetic foods (foods for particular nutritional uses). – Food labelling (generally). – Food additives (generally). – Official inspection of foods. – Nutrition labelling. – Food irradiation. (Each of the above topics are considered further in Section II where the specific proposals are examined). The White Paper also gave a distinction to different levels of legislation. It divided measures into two categories a) those which it considered to be of major importance which merited the attention of the Council, b) lesser technical matters which it believes can be dealt with satisfactorily within the Commission itself. This new approach is structured around a framework Directive which establishes policy and practice to be followed. The framework is then followed by one or more implementing technical Directives which may be devolved to the Commission. Taking an example to illustrate this approach, in the case of food additives a general framework Directive has been proposed which sets out the principal criteria through which additive usage must be considered. This framework sets out the rules by which a new additive will be assessed and then accepted or rejected for use. Decisions on these general

CONTENT AND SCOPE 23

principles of control remain the responsibility of the Council. However, once the basic rules have been established the task of deciding which additives are to be added (or removed) from permitted lists will pass to the Commission. The Commission will be obliged to seek the scientific advice of the Scientific Committee for Food but will not be required to seek the advice of any other body. Further advice will only be sought where the Commission believes this to be appropriate. Earlier decision-making routes allow for consultation with such bodies as the Advisory Committee for Foods or the Standing Committee on Foodstuffs. The fact that consultation is only to be compulsory in matters relating to public health has been widely criticized not least by consumer representatives. The UK organization, Consumers in the European Community Group (CECG) which serves as an umbrella body for twenty-seven voluntary and professional groups with interests in the impact of European Community legislation on UK consumer affairs, has criticized the new procedures saying ‘consultation is limited and selective and subject to the Commission’s discretion. Consultation appears to be with people of the Commission’s own choice…’. CECG have called for greater openness in the consultation process and have also demanded greater opportunity to comment. National governments have also criticized developments concerning decision making with respect to harmonization. The more recent proposals (described in Section II) have been considered in a framework which reduced the influence of the Standing Committee on Foodstuffs (made up of national government officials) from a voting body to a non-voting body with reduced powers. The delegation of powers to the Commission in the case of foodstuffs legislation has resulted in the adoption of ‘advisory committee’ procedures to the deliberations of the Standing Committee on Foodstuffs. This means that

24 THE FOOD SECTOR

the Commission may consult the Committee on any matter; no formal vote is taken by the Committee and the Commission is at liberty to proceed with its proposed measures regardless of the view expressed by the Committee. The alternative procedures which could have been adopted are the ‘management committee’ procedure (in which the Commission is compelled to consult the Committee but may then adopt its own proposals whatever the opinion expressed by the Committee) or the ‘regulatory committee’ procedure (in which the Commission must consult the Committee and cannot bring proposals into force until the Committee has delivered its opinion and agreed with the proposals). It is felt by many that the adoption of the advisory committee procedures has given too much power to the Commission at the expense of national considerations. In the context of foodstuffs legislation, it is felt that the concern for speed and efficiency in law making should not be permitted to override the justifiable concerns of national governments particularly in those instances where public health and safety are concerned. The mechanisms of decision making in the context of Article 100A harmonization remain to be fully resolved to the satisfaction of all concerned. Leaving aside the mechanisms of policy making the Commission has published a number of proposals (described in Section II) subsequent to the 1985 White Paper. These proposals are at various stages in the decision-making process but it is expected that each will be completed ahead of the 31 December 1992 target deadline for completion of the internal market. In addition to the measures prompted by the 1985 White Paper, there have recently been agreed Directives for which proposals predated the White Paper; new controls relating to quick-frozen foods and to flavourings illustrate that the decision-making process is long drawn out, generally taking several years from initial

CONTENT AND SCOPE 25

publication of the proposal to the eventual adoption by the Council. Furthermore since most food controls are by means of Directives there is a subsequent requirement to amend or initiate national controls with a further period over which new measures are phased into use. It is not unusual for a period of up to ten years to pass between the time at which a new measure is first discussed and the date at which it may be enforced. The major points to note with respect to current (and future) harmonization measures are the following: – Controls will primarily be horizontal Directives, new vertical controls are unlikely. – Controls will be two tier with the basic framework established first and detailed measures following at a later date. – Controls will place a major emphasis on ensuring that a purchaser is able to make an informed choice; labelling of foods will be subject to further developments. Throughout the above every effort will be taken to streamline the decision-making processes. Unfortunately this may mean that opportunities to participate in the consideration of proposals may be reduced. This prospect has not been fully accepted by national governments and a greater involvement may become apparent. Removing Barriers to Trade The principal justification for the establishment of the European Community as an economic entity has been to create a Common Market made up of all the individual Member States markets brought together. For a Common (or as it is termed since the Single European Act—Single) Market to exist it follows that certain conditions must apply.

26 THE FOOD SECTOR

– There should be no financial constraints on the movement of goods from one part of the market to another. There should be no additional tariffs placed on goods from elsewhere in the Community. – There should be no constraints of a non-financial nature which act no limit the sales of goods in particular areas of the Community. The European Treaty required that customs tariffs between Member States be removed. It also required that ‘quantitative restrictions on the import and exports of goods, and all other measures having equivalent effect’ be removed to facilitate the free movement of goods from one Member State to another. In the context of foods the principal cause for concern has been the ‘measures having equivalent effect’. This phrase refers (in the context of food) to conditions applied by one Member State which serve to prevent access to its market by foods produced elsewhere in the Community. Typically the barrier applies where one Member State requires a specific composition to be applied to foods of a particular category. A very good example of this has been given with the German beer regulations which have restricted German brewers to a very limited list of ingredients. Since brewers elsewhere were not limited by their national legislation to this limited list the German authorities sought to prevent market access to their products despite the fact that these were lawfully produced and marketed in the country of origin. (The German authorities were taken to the European Court on this issue and the case judgment is reviewed in Section II of this document). Another typical instance occurs where one Member State specifies that a particular quantity of a key ingredient must be present if access to the market place is to be permitted. The Cassis de Dijon case illustrates this point (see description in Section II)—in

CONTENT AND SCOPE 27

this case German requirements for alcohol content in fruit liquors was not met by a blackcurrant (Cassis) liquor from France. In most cases relating to food the European Court has ruled in favour of the prospective importer who wishes to market a food product which has been legally produced and marketed in a second Member State. The Court has repeatedly ruled that the maintenance of a restrictive set of rules is contrary to the principles of trade between Member States. In many instances the Court has ruled that the better use of informative labelling will ensure that the consumer is not misled when products of different composition are allowed access to previously restricted markets. There have been instances where the Court has maintained the Member States’ right to apply specific national rules and these cases have particularly applied where the Member State has defended its rights on the basis of health considerations. National considerations with respect to the health aspects of food additives are illustrated with respect to the Motte case and Nisin case both of which are reviewed in Section II. The Treaty establishing the Community set out a variety of justifications through which national rules could override the Community obligations of free access. These are set out in Article 36. The only justification which may be applied in the context of trade in foodstuffs relates to ‘the protection of health and life of humans, animals or plants’. The European Court has also added the concept of consumer protection as a justification for maintaining a barrier to trade. At present there are no general rules or guidance from the Commission on the subject of barriers which may be challenged under Article 30 of the Treaty. The 1985 Commission White Paper ‘Completing the Internal Market’ promised a definitive statement on this topic but to date this has not been published although a

28 THE FOOD SECTOR

fifteen-page draft has been under discussion within the Commission for some months. The promised Paper, which was delayed by the long-running German beer and Italian pasta cases, should be published in the very near future. In the absence of a definitive statement and guidance the only solution when a barrier is identified is to apply to the European Court for a ruling. (The key documents on this topic all refer to Court cases or judgments—see Section II). The forthcoming Commission Paper will address such major points as: 1. The operation of a system of prior approval for measures likely to constitute a barrier to trade in foodstuffs. 2. The importance of labelling of products in such a manner that the consumer is not misled concerning the nature, substance or quality of foodstuffs. (The three points—nature, substance and quality are central to UK food law and have parallels in the legislation of other Member States). 3. The naming of products. The product name is often the trigger which sets off the barrier to trade; sale under a different name avoids the difficulty in many instances but does not overcome the genuine concern that if a name is legally usable in one Member State it ought to be equally usable in other Member States. 4. Matters relating to compositional requirements as these differ from State to State. 5. Considerations which apply to pre-packaged foodstuffs with respect to the quantities of goods supplied or the capacities of containers used. Each of the above points has (as a general rule) no relation to considerations concerning public health and as in much of Community action relating to food there will be particular additional emphasis given to matters

CONTENT AND SCOPE 29

pertaining to public health. This differentiation is justified by the fact that public health is not only a vital feature of national legislation but is also an area in which it has been agreed that barriers may be necessary because of the differences in national eating patterns between Member States. It is likely that the Commission will draw heavily on the expertise of its Scientific Committees in its procedures for the authorization of those barriers deemed to be justified on grounds of public health. The forthcoming Commission paper will set out the procedures through which any likely barrier to trade will be considered. It should be noted that there exist product categories for which Community legislation has established the rights of individual Member States to apply national rules. These products are those for which a degree of harmonization has been agreed. An example is provided by chocolate. A Community Directive has harmonized the composition of chocolate products for some years. However, the harmonization is not complete since it permits a number of derogations for particular products or particular national recipes. The UK traditional recipe for chocolate includes the use of vegetable fats which are not permitted by the harmonizing Directive. A derogation permits the continued use of the traditional recipe. But because this derogation is specifically given to the UK producer for sales into the UK market it is not possible for the UK producer to export products made to this recipe into other Member States. Examination of the extended review of key cases judged under Article 30 et seq. provides an illustrated description of the issues which must be considered when barriers to trade are challenged.

30 THE FOOD SECTOR

Other Food Policy Issues The principal issue with respect to food policy within the European Community is that of the achievement of the Internal Market. Whether this is to be achieved through harmonization or more recently through mutual acceptances of the other Member States products has been the major debating point and has formed the basis of the points outlined earlier. However, since food is derived from the products of agriculture it is inevitable that certain measures introduced as part of agricultural policy will also have an impact on food policy. The main areas included in this document refer to dairy designations—essentially this defines the various milk products and in many ways follows the harmonization procedures but within the framework of agricultural legislation. The second agricultural measure which has been applied from a food policy perspective is the prohibition on use of hormone implants in meat animals. This measure which was introduced following significant consumer concern (rather than scientific evidence) is described with respect to key documents in Section II. The ramifications of this particular decision are unusually international rather than intra-Community. Inside the Community debate continues about the value of a ban but the farming community regards the prohibition as a further constraint which must be complied with. Outside the Community the prohibition is regarded as a protectionist measure designed to prevent imports from third countries. The USA in particular has promised retaliatory measures if imports are no longer permitted. Further food policy measures have been applied in consideration of the Community response to a nuclear incident such as occurred at Chernobyl in the Ukraine. Community-wide measures designed to co-ordinate response to nuclear contamination of food supplies or food producing areas have been agreed.

CONTENT AND SCOPE 31

Economic Considerations The bulk of the harmonization programme is designed to facilitate trade between Member States; together with the removal of barriers to trade it is estimated in the Cecchini Report that major economic benefits will accrue to the food chain. There remains a debate over the extent of the potential benefits with many viewing Cecchini’s estimate of (500–1000m ECU) as over optimistic. There appears to be a view in the Cecchini estimates (prepared by Groupe Mac for the food sector) that every manufacturer will shift to cheaper ingredients if this is permitted through changes to compositional requirements. This is contrary to present views on the food sector generally where it is recognised that consumers are increasingly seeking out quality products rather than the cheaper generic items. The major economic problem which remains to be resolved by the Community in its establishment of the single market with equivalent conditions for all is that of the taxes applied to food (and other goods). There are two major tax considerations: a. VAT b. Excise duties It is recognized that the total taken by national governments from such taxes is roughly equivalent for each Member State. However there are major differences in the application of the taxes in different Member States. The UK for instance maintains that it is not desirable to collect VAT on sales of essential items including food. All other Member States reject this view. Similarly, the southern European States (in particular) do not levy excise duties on wines which are subject to such duties in countries such as the UK. Realignment of tax systems to harmonize both VAT and excise duties requires major political will. At present

32 THE FOOD SECTOR

this would seem to be lacking; in fact the 1989 replacement of the UK’s senior commissioner, Lord Cockfield by Sir Leon Brittan was in part brought about because of the former’s enthusiasm for harmonized VAT systems which have not found favour in the UK government. The UK is not alone in viewing harmonization of VAT rates as prerequisite of a Single Market. The Commission has supported an alignment of the Community’s VAT rates into two bands (lower 4–9% and higher 14–20%); the United Kingdom’s policy of applying a zero rate to essential items (such as food) has been regarded by the Commission as contrary to VAT Directives dating back to at least 1967. However, in recent months the Commission appears to have (at least temporarily) accepted the United Kingdom’s justifications for the maintenance of zero rating as an instrument of social policy. Harmonization of excise duties is similarly likely to be subject to major political debate since the prospect is criticized from both extremes. The wine-producing nations such as Italy and Spain envisage major difficulties in adopting a measure which would significantly raise the price of wines. Meanwhile in those countries where duty is significant (UK and Ireland) the health lobbies are strongly condemning any measure which would result in a shift towards further consumption of alcohol. National Considerations The programmes of the European Community are chiefly designed to bring together the twelve Member States in such a way that many national measures are replaced by Community measures. In the context of food this has proved problematic since each Member State has its own particular dietary patterns and food practices. Initial attempts to adopt a major programme of harmonization based on product specifications have been abandoned. It

CONTENT AND SCOPE 33

was just impossible to confine the culinary practices into harmonized controls. The definitions required to suit every State’s products proved impossible and national derogations made a nonsense of those products harmonizations which were achieved. A scheme of mutual acceptance of food products from other Member States has proved to offer a much more satisfactory solution. Products legally marketed in one Member State may generally be sold elsewhere in the Community. This opens markets for those wishing to export and also serves to broaden consumer choice. However, there is clearly a need to ensure that long established national products are not undermined by inferior imports—it is suggested that improved product levels will solve this problem. For each member state, the European Commission’s proposals for framework Directives serve to move further the shift from national legislation and hence for those who advise national governments. The increased workload placed on the Community’s Scientific Committee for Food may prove impractical and one suggestion which has been voiced is for particular issues to be delegated to the national advisory committees on a mutual acceptance basis. The report from one Member States’ advisory body being accepted as the basis of policy throughout the Community. The shift of power to the Community from national government agencies is regarded by many officials in the Member States as removing their influence and hence the influence of their political masters. Industrial Considerations The entire programme of policies which seek to promote a European Single Market combine to create an environment in which major enterprise is encouraged to operate on a larger scale, on a Community-wide basis. This is manifest in the growth of transnational enterprise

34 THE FOOD SECTOR

and in particular in the need for companies from non-Member States to establish a base within the Community in order to be able to compete. Companies which have built up a base which operates in several Member States may be particularly attractive take-over targets for companies from non-Member States (e.g. takeover of Rowntree Mackintosh by Nestlé). The increased ease of trade between Member States is likely to facilitate the opening up of niche markets in other Member States for national products. To some extent this has been taking place for some time, particularly in those countries such as the UK which are not chauvanistic about foods and are already to accept imported products. The principal change will come about not by shifts in food policy but by means of the general freeing of trade barriers including those particularly relating to transportation of goods across borders. These matters are more properly considered as transport policy and are discussed elsewhere. It is also the non-food policy consideration which will influence the relocation of sections of the food industry into the more central areas of the Community—this will particularly be attractive to those producing bulky generic goods which are costly to transport. The Community policy initiatives with respect to food policy make no particular requirements of small businesses which are not also made of their larger counterparts. However, the costs of compliance together with increased competition may create major problems. Consumer Considerations The consumer will experience both gains and losses through the present developments in food policy within the Community.

CONTENT AND SCOPE 35

Gains – Improvement to food labelling will be apparent for reasons of trade and also as a general policy consideration. – Improvements in choice. Increased trade will offer a greater range of suppliers with the possibility of increased competition. – Improvement to food control standards as these are raised to those presently regarded as best practice. (This measure is an essential feature of mutual recognition measures). – Price reduction following on from increased competition. Losses – Loss of favourite suppliers as these lose out in the increased competition. – Possibility of increased prices for certain consumers. The addition of VAT to food in the UK is one example. In addition to the direct considerations indicated above, consumer representatives point out that the consumer’s voice in the decision-making process is reduced with the shift to European controls since it becomes progressively more difficult for the consumer’s representatives to play a direct role. External Considerations In general food policy in the Community is an internal affair with most issues having little impact on the world scene. However, two policy initiatives can be highlighted as having an international dimension:

36 THE FOOD SECTOR

– The hormone ban has been referred to previously; it is highly likely that the USA will adopt measures to retaliate against this prohibition which it regards as protectionist. – The proposals on irradiation of food offer wider market opportunities for producers of perishable items. The adoption of irradiation close to the site of production may offer further market potential for fresh fruits and seafoods. The bulk of Community food supplies are sourced from within the Community and the increased productivity of the Community’s farmers means that the opportunities for importers are progressively being curtailed. It is only the UK which has a history of importation of a significant proportion of supplies, and recent developments do little to alter long-established arrangements, for example with ACP countries in respect of sugar. Arrangements with New Zealand for the importation of dairy products and sheepmeat products continue but will be progressively removed as the policy of Community preferences in agricultural products continues. Such decisions are framed within the context of the Community’s Common Agricultural Policy and are influenced primarily by production-led strategies and considerations. Concluding Comments The initial years of the Community saw the Community attempt to establish a harmonized system of food controls which took little or no account of the social aspects of food. The long-established culinary practices of the Member States were in time sufficient to force a rethink in this strategy since progress had been minimal towards the original goal of harmonization. Judgments such as the Cassis de Dijon case substantially shifted the emphasis of Community food

CONTENT AND SCOPE 37

policy towards a system of mutual recognition of standards with the possibility for ready transference of foods from one Member State to another. For the most part the policy emphasis has shifted from Article 100 to Article 30 (et seq.) of the European Treaty. Free movement has established its role as the principal policy objective. However, free movement must take place in the context of a genuine need for controls on certain aspects of food policy. These aspects chiefly relate to food safety as illustrated by the following examples: – Controls on safety-in-use of food additives or materials likely to come into contact with foods. – Controls on those foods provided for particular nutritional purposes. – Controls on food labelling and food advertising. – Controls on new methods of food processing such as food irradiation. In all the above areas the Member States have recognized a continuing need to establish and develop new controls. It has also been recognized that such controls are most appropriately decided at Community level rather than nation by nation. Each Member State has confirmed the importance of sound controls on matters relating to public safety. Future developments in this area are to be chiefly of a technical nature; the framework Directives establishing the principles of control are largely in place. Detailed considerations of specific issues remain to be added to the legislative machinery. The delegation of many of these technical aspects to the Commission will undoubtedly raise interesting points of debate in years to come.

38

SECTION II KEY DOCUMENTS ON FOOD POLICY

This section discusses key documents relating to food policy within the European Communities. The documents are arranged as follows: 1. Documents concerned with the general theme of progression towards an integrated and truly ‘common’ market. These focus progressively from the general to specifically food considerations. 2. Documents chiefly following on from group 1 which are concerned with the harmonization of controls relating to food supply. Some documents refer to issues for which discussion continues whilst others have entered into EC legislation. Where a number of documents relate to a single topic these have been grouped together and discussed on a topic basis rather than on individual document basis. 3. Documents which arise from initiatives taken to remove specific occasions in which a Member State’s activities have been challenged as acting as a barrier to trade between Member States. That is, measures taken to remove a contravention of Articles 30 et seq. of the EEC Treaty. 4. Other documents which have a bearing on the operation of EEC food policy but do not directly fall into either group 2 or 3.

40 THE FOOD SECTOR

Most documents refer to events, considerations or decisions of the past couple of years. The slow rate and nature of decisions, whether in the European Council or Court of Justice, has meant that events which began in the early 1980s have only just reached conclusion whilst others initiated in the mid 1980s continue as yet resolved. It should be noted that on several occasions it has been necessary to refer to documents which have not been published in the accepted manner but which represent significant amendment and development from the original published proposals. Group 1 General documents—progression towards an integrated common food market Documents are organized in date order. Commission of the European Communities— Completing the Internal Market White Paper from the Commission to the European Council (Milan 28, and 29 June 1985) 15 June 1985, COM(85) 320 final. Office for Official Publications of the European Communities, Luxembourg, 1985. The White Paper was the key document in initiating the Community’s programme to complete the internal market by the end of 1992. It followed the themes established in earlier Papers to the Council and identified a total of 300 measures to be taken before the goal of the single market without barriers to trade could be achieved. The Paper divides barriers into three categories: physical, technical, and fiscal. All three categories have a relevance to food policy. Physical barriers principally refer to matters such as excessive documentation and customs checks. For foods this includes checking health standards. A shift to a situation whereby the country of origin provides a certificate of hygiene acceptable to all other Member

KEY DOCUMENTS ON FOOD POLICY 41

States serves to remove such a barrier. Trade in milk is progressively shifting to such a scheme. Technical barriers apply where different Member States retain particular technical specifications for products. Removal of barriers is principally to be achieved by mutual acceptance procedures rather than the emphasis being placed on harmonization. Two key papers relating to food policy were promised – one on matters relating to Article 30 (free trade) – one on matters relating to harmonization (Article 100) In the context of food the White Paper stated: ‘Community legislative action…will continue to be concentrated on issuing “horizontal” Directives governing the use of food additives, labelling regulations etc, where the essential need to protect the health and safety of consumers is involved. In line with the new approach…the Commission will propose more efficient procedures for the implementation of Article 100 harmonization in this sector.’ Fiscal barriers relate to taxation and similar fiscal measures. In the food and beverage sectors there is a considerable difference in approach with respect to VAT and excise duties. The UK maintains a zero rate of VAT of foodstuffs which is defended strongly. By contrast Germany, Greece, Italy, Portugal and Spain do not apply excise duties to wines. Harmonization of VAT and excise duties is deemed desirable by the Commission. In addition to the above, it is worth noting that other fiscal barriers which apply more generally also have an impact on the food sector. Commission of the European Communities— Completion of the Internal Market; Community Legislation on Foodstuffs Communication from the Commission to the Council and to the European

42 THE FOOD SECTOR

Parliament. COM(85) 603 final. Office for Official Publications of the European Communities, 1985. This is a key document upon which all subsequent harmonization measures are based. It sets out the principles upon which EC policy with respect to harmonization of food is to be based. First, it distinguishes between aspects requiring legislation and those for which legislation is not necessary. Second, it distinguishes between major measures requiring Council attention and lesser matters which may be dealt with by the Commission. The principle of proportionality provides the basis for decisions on whether legislation is required. The Commission proposed that ‘future Community legislation on foodstuffs be limited to provisions justified by the need to – protect public health – provide consumers with information and protection in matters other than health – ensure fair trading – provide for the necessary public controls’. Referring to the above, the Commission presented a short list of matters requiring legislation. Public health – – – –

Public health generally. Food additives. Materials in contact with foodstuffs. Dietetic foods (foods for particular nutritional uses). Consumer protection not health

The Commission reject the product-specific standard approach and are favouring clearer labelling which is

KEY DOCUMENTS ON FOOD POLICY 43

believed to reduce the requirement for compositional standards. Labelling is favoured because it is neither possible or desirable to confine in a legislative straight jacket the culinary riches of ten (twelve) European countries. Fair trading Restates the principle that ‘consumers must be correctly and adequately informed and not be misled’ whilst ‘producers must be protected from unfair competition’. Official inspection of foods In order to facilitate free movement of foods across borders, it is necessary that a standardization of certification be adopted. In respect of the above shortlist, the Commission published a timetable for its legislative process. For decisions relating to which legislative route is to be followed, the Commission set out the following criteria: The Council would set the basic rules and also establish the principles of implementation in framework Directives. The detailed provisions would then be adopted by the Commission as implementing Directives. Since 1985, a number of proposals for framework Directives have been released. These proposals are discussed later. Groupe MAC The Cost of Non-Europe in the Foodstuffs Industry. Chapter 12 of Commission of the European Communities Research on the Cost of NonEurope Basic Findings. Volume 1 Executive Summaries. Office for Official Publications of the European Communities, Luxembourg, 1988.

44 THE FOOD SECTOR

Groupe MAC were engaged by the Commission to examine the foodstuffs sector and ‘evaluate and quantify the total net benefits to the EC from eliminating trade barriers’ and in particular ‘to identify those countries and product sectors which would be most significantly affected’. Groupe MAC concluded that there exist over 200 nontariff trade barriers in the food sector, and that this number had increased over recent years. Cost benefits associated with removal of these barriers to trade are estimated at 500–1000 European currency units. This is equivalent to 2 or 3 per cent of total value added within the industry. The benefits are highly concentrated—80 per cent are accounted for by the elimination of six barriers. These are: – – – – – –

Vegetable fat restrictions in chocolate. Beer purity laws. Vegetable fat restrictions in ice cream. Pasta purity laws. Saccharimetric content in beer. Plastic containers in Italy.

In many of the instances examined, the benefits accrue from the use of cheaper ingredients and this it must be stated that the Groupe MAC estimates include an unrealistic assumption—that if the barriers to trade were removed, then market forces working solely on price would act to shift the majority (if not all) production towards use of the cheaper ingredients; this is unrealistic. For example, the bulk of the Italian pasta market will continue to be served by products which meet the traditional Italian requirement for durum wheat only. Even though imported common wheat pastas may now be sold in Italy, they are not likely to account for the bulk of the market.

KEY DOCUMENTS ON FOOD POLICY 45

This set of Executive summaries forms volume 1 of a set of three volumes reporting the basic findings of research on the cost of non-Europe. Volume 2: concerns ‘Studies on the Economics of Integration’. Volume 3: provides results relating to European industry’s perception of the likely effects of completion of the internal market. The complete text of the Groupe MAC report which includes full details relating the methodology and further information on the results is also published by the EC. A shorter account of the research programme is given in Paolo Cecchini The European Challenge 1992. the Benefits of a Single Market Wildwood House, Aldershot, 1988. Group 2 Documents related to harmonization of food controls under Article 100 or Article 100A. For proposals, documents are arranged in date order of publication of the proposal. For newly agreed measures, documents are arranged in date order of Council agreement. Council Directive on the approximation of the laws of the Member States relating to flavourings for use in foodstuffs and to source materials for their production Working Document 7011/88. European Communities, The Council Office for Official Publication of the European Communities, 1988. and

Council Decision on the establishment, by the Commission of an inventory of the source materials used in the preparation of flavourings Working Document

46 THE FOOD SECTOR

7260/87. European Communities, The Council Office for Official Publications of the European Communities, 1987. Flavourings were specifically excluded from the general framework Directive on food additives (discussed elsewhere in this document) because legislation was already well advanced. The final draft of the flavourings Directive was approved in June 1988 after discussions and redrafts dating back to the 1970s. The long period of consideration is typical of other controls drawn up prior to the framework Directive approach. It also reflects the complexity of the use of flavourings compared to other classes of food additive. Several thousand substances are used as flavourings in food and the new legislation aims to apply to all of these. In recognition of the vast number of substances used as flavourings, the Council, by means of a special Decision (agreed June 1987 but not applicable until confirmed, June 1988) has requested that a full inventory of flavourings be drawn up by the Commission over a twenty-four month period to June 1990. The inventory and the Directive divide flavourings into seven main categories: – flavouring sources composed of foodstuffs, and of herbs and spices normally considered as foods, – flavouring substances obtained by physical processes or by enzyme or microbiological processes from vegetable or animal raw materials, – chemically synthesized or chemically isolated flavouring substances chemically identical to flavouring substances naturally present in foodstuffs or in herbs and spices normally considered as food, – chemically synthesized or chemically isolated flavouring substances chemically identical to flavouring substances naturally present in vegetable or animal raw materials nor normally considered as food,

KEY DOCUMENTS ON FOOD POLICY 47

– chemically synthesized or chemically isolated flavouring substances other than those referred to in the fourth or fifth indents, – source materials used for the production of smoke flavourings or process flavouring, and the reaction conditions under which they are prepared. The Directive does not apply to: – edible substances consumed as such – substances that are exclusively sweet, sour or salty in taste – materials of vegetable or animal origin having inherent flavouring properties, where they are not used as flavouring sources. The first and third of the above list could be more commonly described as foods and food ingredients respectively. The Directive includes measures relating to safety and purity of flavourings including microbiological consideration. The Directive is also concerned with those substances which are used in conjunction with flavourings – additives necessary for their storage and use – products used for dissolving or diluting flavourings – additives used in their manufacture (processing aids) where these are not subject to other controls. Details are given in the Directive relating to the labelling requirements for flavourings not intended for sale to the ultimate consumer. The flavourings Directive differs from other class specific additive legislation since it has not adopted the concept of the permitted list. The use of a closed list of permitted substances was deemed to be impractical and the Commission and the flavourings industry are now

48 THE FOOD SECTOR

faced with the substantial challenge of preparing the inventory described earlier. The inventory is regarded as a compromise between the closed list and the previous open-ended approach. The open-ended approach was effectively a system of no control apart from the general requirements of hygiene and toxicity. The Member States are required to take the necessary measures to implement the Directive within eighteen months of its adoption, that is before the end of 1989. Commission of the European Communities—Proposal for a Council Directive on the approximation of the laws of the Member States relating to quick-frozen foods for human consumption Working Document 5648/88. Office for Official Publication of the European Communities, 1988. The document referred to above is the latest available version of proposals relating to the production, distribution and retailing of quick-frozen foods. The proposals date back to 1984 (COM(84) 489) and have been revised on a number of occasions following discussions between Member States. The proposal has recently been accepted by the Council following minor amendments suggested by the European Parliament which were incorporated into the final draft by the Commission. The forthcoming Directive harmonizes the controls on quick-frozen foods throughout the Community and removes existing barriers to trade in these products. The Directive defines quick-frozen foods as foodstuffs ‘which have undergone a suitable freezing process known as “quick-freezing” whereby the zone of maximum crystallization is crossed as rapidly as possible depending on the type of product, and the resulting temperature (after thermal stabilization) is continually maintained at •18°C or lower at all points’. The Directive does not apply to ice-cream or other edible ices.

KEY DOCUMENTS ON FOOD POLICY 49

The Directive states that only foods of sound quality and required freshness should be quick-frozen. Quickfreezing should be carried out promptly to limit chemical, biochemical and microbiological changes. The Directive defines the cryogenic materials which may be utilized. The definition of quick-frozen includes reference to the temperature •18°C. This temperature must be maintained throughout storage. Minor upward fluctuations (no more than 3°C) are permitted during transport. Wider tolerances (up to 6°C) are permitted in retail cabinets if Member States adopt such a decision. For an interim eight-year period a 6°C tolerance may be applied for local distribution if Member States so decide. Member States are required to monitor compliance with the Directive in quick-freezing facilities, during storage, distribution, transport and during retail display. The general food labelling Directive (79/112) shall apply to quick-frozen goods which are also required to carry the words ‘quick-frozen’ (or the stated equivalent for other Community languages). In addition to the statement of minimum durability (as required by Directive no. 79/112) quick-frozen foods are also required to state storage periods in respect of specified storage equipment. Labels must also carry a batch reference code and the warning ‘Do not refreeze after defrosting’. The Directive does not specify particular sampling procedures for quick-frozen foods but sets out the procedures by which these will be established during the twenty-four months following acceptance of the Directive. The new Directive provides the basis for harmonization of one the major growth areas of the food industry over recent years. The controls are principally technical in nature and include measures designed to protect the consumer’s welfare. The •18°C value for freezing and storage temperature was strongly fought against by many who believed this

50 THE FOOD SECTOR

to be excessively low and hence excessively expensive. However, as in other matters the decision was taken to err on the side of caution rather than reduce the degree of consumer protection. It should be noted that in both areas where Member States are permitted to apply tolerances by national derogation (retail cabinets and local distribution) there is no possibility of trade to other Member States. There is no option for derogation where quick-frozen products may be offered for sale in other Member States. Commission of the European Communities—Proposal for a Council Directive on the approximation of the laws of the Member States concerning food additives authorized for use in foodstuffs intended for human consumption COM(86) 87 final. Office for Official Publications of the European Communities, 1986. also

European Communities, The Council—Common Position adopted by the Council on 22 June 1988 with a view to the adoption of a Council Directive on the approximation of the laws of the Member States concerning food additives authorized for use in foodstuffs intended for human consumption Working Document 7859/88. Office for Official Publications of the European Communities, 1988. Control of food additives legislation by means of a framework Directive covering the general principles, together with specific Directives introduced subsequently for particular classes of additive, was recognized as necessary in the Commission’s 1985 White Paper on ‘Completing the Internal Market: Community Legislation on Foodstuffs’. Proposals for the framework Directive were published in April 1986 and have been revised in the light of subsequent discussions to enable the Council to reach a common position on this topic in June 1988. The majority

KEY DOCUMENTS ON FOOD POLICY 51

of the 1986 proposal has carried forward to the 1988 common position with relatively minor changes. The proposal essentially presents the principles through which additive controls will be applied in the future. Community legislation already applies in the case of the following categories of additive – – – –

Colour Preservatives Antioxidants Emulsifiers, stabilizers, thickeners

and new legislation is well advanced in respect of flavourings (see elsewhere in this document). The 1985 White Paper on food legislation introduced the concept that framework Directives would publish the principles of control for a class of legislation whilst specific Directives, often devolved to the Commission itself, would provide the details for specific cases. In the case of additives this framework Directive sets out the general controls which are to be applied more specifically at a later date for particular specified classes of additives. The proposal defines food additives as follows: ‘any substance not normally consumed as food in itself and not normally used as a characterizing ingredient of food whether or not it has nutritive value, the intentional addition of which to food for a technological purpose in the manufacture, processing, preparation, treatment, packaging, transport or storage of such food results or may be reasonably expected to result, in it or its byproducts becoming directly or indirectly a component of such foods’. The above definition is based on that used by the FAO/ WHO Codex Alimentarius. The proposal for practical reasons does not apply to certain categories of additives for which there are special mitigating circumstances. These are:

52 THE FOOD SECTOR

– Flavourings. New legislation in this category was already well advanced. In addition the huge number of substances used as flavourings (far greater than all other additives put together) require special procedures especially as not all flavourings are considered as ‘traditional’ additives. – Processing aids. Here since residues are virtually zero, toxicological considerations are different from other additives. At present no Member State has comprehensive controls on substances used as processing aids. – Substances used as nutrients. This group is sufficiently important to be addressed separately. – Substances used in the protection of plant health which are considered elsewhere in Community legislation. The proposal lists those categories for which the new measures will apply. Colour Preservative Antioxidant Emulsifier Emulsifying salt Thickener Gelling agent Stablizers Flavour enhancer Acid Acidity regulator Anticaking agent

KEY DOCUMENTS ON FOOD POLICY 53

Modified starch Sweetener Raising agent Antifoaming agent Glazing agent Flour treatment agent Firming agent Humectant Sequestrant Enzyme Bulking agent Propellant gas and packaging gas Individual substances to be used as additives must be authorized in specific Directives in respect of one or more of the categories listed in the proposal. The intention is to draw up lists of EC approved additives for each category of additive (lists already exist for the few major classes for which EC legislation currently exists). In addition lists of foodstuffs to which these additives may be added, the conditions of use and the limits to use will also be drawn up for each category. Standardized purity and analysis methods will be drawn up under principles stated in the current proposals. The proposal details specific controls for the following general uses of food additives: – those not intended for sale to the ultimate consumer (sales to manufacturers and food processors) – those intended for sale to the ultimate consumer (retail packs)

54 THE FOOD SECTOR

For each group detailed labelling provisions are specified. The principal difference between the two sets of rules refers to the quantitative restrictions to use; this detailed information is only required for sales not to the ultimate consumer. An annex to the proposed Directive sets out unequivocally the general criteria which apply to the approval and subsequent use of food additives. The criteria for use are essentially the same as those included in statements of good manufacturing practice (such as published by the Institute of Food Science and Technology). Criteria for approval are based on long established practices in the control of additives on the basis of the need to consider both technological purpose and the requirement to protect the health of consumers. In all respects the scientific evidence of safety must be considered before approval is granted and the annex states various parameters to be included. The need for continued re-evaluation in the light of scientific development is recognised. The new Directive does not introduce major new developments in the context of legislation relating to additives generally. However, major comment has arisen with respect of the desirability of delegation of responsibility for many aspects of subsequent specific Directives to the Commission and its officials rather than subjecting such measures to the full system of scrutiny. Commission of the European Communities—Proposal for a Council Directive amending Directive 79/112/EEC 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 COM(86) 89 final. Office for Official Publications of the European Communities, 1986. Directive 79/112 is the principal EC legislation applying to the labelling of foodstuffs for sale to the ultimate consumer. The amendment discussed here

KEY DOCUMENTS ON FOOD POLICY 55

arises from the Commission’s 1985 Communication ‘Completing the Internal Market: Community Legislation on Foodstuffs’. After much deliberation the Council reached a common position on this topic in November 1988 and the issue has not passed to the European Parliament for a second reading prior to final adoption by the Council. The principal features of the amendment are changes in respect of the statement of minimum durability, otherwise known as date-marking. Under the provisions included in the common position the standard system of date-marking for food would be that of ‘best before’. The alternative phrases permitted in the earlier Directive will be prohibited. For the UK this means that the term ‘sell by’ used in conjunction with a statement of the length of time the food retains its properties if properly stored will no longer be permitted. One alternative is permitted in the proposed amendment; for those foods which are highly perishable from a microbiological point of view the manufacturer will be required to state a ‘use before’ date rather than ‘best before’. The decision on whether a particular food falls into this category is left to the manufacturer. The Commission will be required to monitor the use of the term ‘use before’. The inclusion of perishable foods in the general requirement removes a major derogation from the 1979 Directive. The proposed Directive also extends the range of the minimum durability provisions with a number of food categories which were previously exempt being required to provide date-mark information. This extension applies to frozen foods and to long-life foods with a shelf life of greater than eighteen months (principally canned foods). Exemptions still apply in respect of certain classes of foodstuffs, most notably in the case of confectionery products, fresh fruits and vegetables, edible ices in individual portions and those bakers’ or pastry cooks’ wares which are normally consumed within twenty-four

56 THE FOOD SECTOR

hours of their manufacture. Member States retain the option of derogation for milk packed in returnable glass bottles. The proposed amendment has as its chief objective the removal of several opportunities for national derogations in food labelling in order that improved and identical information be available to all consumers in the Community. Commission of the European Communities Proposal for a Council Directive on the laws of Member States relating to materials and articles intended to come into contact with foodstuffs COM(86) 90 final. Office for Official Publications of the European Communities, 1986. also

Council of the European Communities—Council Directive 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 Directive 89/109/EEC. Office for Official Publications of the European Communities, 1989. Legislation relating to materials and articles in contact with food was promised as part of the programme of framework Directives set out in the Commission Communication on ‘Completion of the Internal Market: Community Legislation on Foodstuffs’ issued in 1985. Of the five proposed framework Directives it is (to date of writing) the only one which has completed its passage through the Community’s decision-making system. The new Directive updates and repeals earlier legislation (Directive 70/893). The original materials and articles in contact with food, legislation was adopted to ensure free movement of goods since at that time national laws created unequal conditions. Both the 1976 Directive and its new replacement place major emphasis on the protection of public health requirements. A major feature of the new

KEY DOCUMENTS ON FOOD POLICY 57

Directive is the adoption of the framework procedures in which specific Directives can be drawn up for particular groups of materials and articles. ‘Materials and articles’ refers to those substances which are brought into contact with foods during preparation, processing or packaging. This will include a variety of products including plastics, regenerated cellulose, paper and board, ceramics, glass, metals and alloys, wood including cork, textiles, and waxes. For each, specific Directives have been (or will be) established which include criteria such as purity standards, migration characteristics, provisions to protect human health and special-use characteristics. The Directive presents in clear detail the health criteria which must be considered when specific Directives are drawn up. This new Directive continues the work of an earlier Directive and merely brings earlier provisions up-to-date. The finally approved Directive follows substantially the proposal published by the Commission in 1986. Commission of the European Communities—Proposal for a Council Directive on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses COM(86) 91 final. Office for Official Publications of the European Communities, 1986. The present position with respect to foods for particular nutritional uses is set out in a Council Directive agreed in December 1976 (77/94/EEC). The 1976 Directive is to be amended and updated as part of the programme announced in the Commission Communication on ‘Completion of the Internal Market: Community Legislation on Foodstuffs’. The proposals for the amended legislation were released in February 1986 and have subsequently been revised on a number of occasions. The aims of the 1986 proposals (and subsequent redraft) are:

58 THE FOOD SECTOR

– to identify those sectors where specific Directives are required, – to define procedures for future specific Directives and for the amendment of any existing specific Directives, – to bring foods for particular nutritional uses into line with the general food labelling requirements agreed in December 1978. The proposal is for a ‘framework’ Directive with much of the specific detail relating to the regulation of foods for particular nutritional uses delegated to subsequent specific Directives. Foods for particular nutritional uses are defined as ‘foodstuffs which owing to their special composition or manufacturing process are clearly distinguishable from foodstuffs for normal consumption, which are suitable for their claimed nutritional purposes and which are marketed in such a way as to indicate such suitability’. Such foods are produced for three broad categories within the population: – Persons with disturbed digestive processes or metabolism. – Persons in special physiological conditions who may benefit from controlled consumption of certain substances in foods. – Babies and young children. The initial proposals envisaged that subsequent specific Directives would be drawn up for the following food categories: – – – –

Infant formulae. Follow-up milk and other follow-up foods. Baby foods. Low energy and energy reduced foods.

KEY DOCUMENTS ON FOOD POLICY 59

All other foods for particular nutritional uses were to be controlled only by the general provisions. Subsequently the list of foods for which specific provisions will be introduced has been extended. The most recent proposal revision (document 9107/88 circulated by the UK Ministry of Agriculture Fisheries and Food on 30 November 1988) on which a common position has been reached by Member States adds the following food categories to the 1986 list: – Dietary foods for special medical purposes. – Low sodium foods, including low-sodium or sodium free dietary salts. – Gluten-free foods. – Foods intended to meet the expenditure of intense muscular effort, especially for sportsmen. – Foods for persons suffering from carbohydrate metabolism disorders (diabetes). It should be noted that this list grew progressively as revised drafts of the proposal were released during 1987 and 1988. A second area where the 1986 proposals have evolved is in respect of a so-called safeguard clause designed to permit close monitoring of new products which fall outside those groups for which special provisions will be established. A revised draft of the proposals (5924/87) released in June 1987 introduced a new article (7a) which would have required manufacturers or importers of new products to submit a dossier to the appropriate national supervisory body. The dossier would outline the scientific work establishing the product’s suitability for its particular nutritional use together with data relating to the nutritional content of the product. The proposed requirement was not met with universal support, most Member States regarded it as creating an unnecessary administrative burden.

60 THE FOOD SECTOR

The latest draft requires the manufacturer or importer to notify the competent authorities of their intention to market and to provide a model of the product label. If the product is subsequently marketed in a second EC state the same information shall be provided to that state’s authorities together with a note indicating the recipient of the first notification. The competent authority will have the power to require the manufacturer to provide information as detailed for the earlier draft. The proposal details the likely structure of the forthcoming specific Directive which will include the following: – – – – – –

Essential requirements as to nature or composition. Provisions relating to raw materials quality. Hygiene consideration. Additive. Labelling, presentation and advertising. Sampling procedures and analysis methods.

For all foods with particular nutritional uses special labelling, presentation and advertising controls apply since it is not permitted to attribute properties relating to the prevention, treatment or cure of disease to these foods except where materials are produced solely for use by those persons with qualifications in medicine, nutrition or pharmacy. The proposal also sets out the procedures to be adopted should a Member State believe that a product does not comply with the basic requirements of a food for particular nutritional use or endangers human health. The present position with respect to these proposals is that a common position has been agreed by Member States and the document is now subject to the cooperation procedures with the European Parliament before returning to the Council for final adoption. Commission of the European Communities—Proposal for a Council Directive on the official inspection of

KEY DOCUMENTS ON FOOD POLICY 61

foodstuffs COM(86) 747 final. Office for Official Publications of the European Communities, 1986. Commission of the European Communities— Commission Communication to the Council and the European Parliament—Completing the Internal Market by 1992:- Current situation regarding the monitoring of foodstuffs in the Member States and action programme for cooperation at Community level in this area COM(87) 462 final. Office for Official Publications of the European Communities, 1987. Commission of the European Communities— Amended Proposal for a Council Directive on the official inspection of foodstuffs Working Document 10374/88. Office for Official Publications of the European Communities, 1988. (Also earlier version Working Document 7489/88.) The official inspection of foodstuffs was identified as a major topic for attention in the 1985 White Paper on ‘Completing the Internal market: Community Legislation on Foodstuffs’. The Commission saw harmonization as essential in order to facilitate the free movement of foods from one Member State to another. Each Member State recognizes that it is essential to operate a system of food inspection in order to maintain standards particularly with respect to hygiene and other health considerations. Inspections also include reference to aspects relating to consumer protection and fair trade. However, the mechanisms used for such inspections, the personnel undertaking the inspections and the standards required varies considerably from State to State. If foodstuffs are to be able to move freely from one State to another without the need for repeated inspection it will be necessary to achieve a situation in which each Member State is able to accept the inspection standards of the other States. In late 1986 the Commission published its first proposals for a Directive on the official inspection of foods. The purpose of the proposed Directive was to lay

62 THE FOOD SECTOR

down general principles for carrying out inspections of foods and those materials and articles which ordinarily come into contact with foodstuffs. The 1986 proposal carried in its explanatory memorandum a summary of a survey held amongst the Member States to determine current inspection practices. The survey highlighted a number of areas in which key differences in procedures required harmonization. During 1987 a fuller report based on the survey was released (COM(87) 462) . The initial proposals (1986) where substantially criticized as inadequate and have been significantly revized in amended proposals released (on two occasions) during 1988. The 1988 documents agree that in a single market enforcement agencies should inspect those products intended for sale in other Member States in addition to those for domestic consumption. General principles are stated for such inspections. At this stage it is not planned to seek harmonization of enforcement systems between Member States although this issue is likely to be raised in the future. The aim is concentrating on harmonization of inspection procedures it to achieve mutual recognition of the standards of inspection. Official inspection is defined (1988) as ‘an inspection by the competent authorities of the compliance – of foodstuffs – of food additives, vitamins, mineral salts, trace elements, and other additives intended to be sold as such – of materials and articles intended to come into contact with foodstuffs with provisions aimed at preventing risks to public health, guaranteeing fair commercial transactions or protecting consumer interests including provisions on consumer information’.

KEY DOCUMENTS ON FOOD POLICY 63

It is worth noting that this definition has evolved considerably from that included in the initial 1986 proposal which referred only to foodstuffs and materials intended to come into contact with foodstuffs and limited the objective to ‘preventing risks to public health or fraud in the matter of labelling and presentation’. The limitations which were foreseen by the use of the word ‘fraud’ in particular attracted considerable concern. The proposed Directive follows the post-1985 pattern of being a framework Directive, but is unlike the other framework Directives since many of the specific Directives (e.g. relating to meat inspection) are already in force. The proposed Directive sets out when inspections should be carried out. Inspections should be regular and additionally when non-compliance is suspected. The Directive will apply to all stages of the food chain from production and manufacture through distribution to retailing. It is left to the competent authorities to determine the most appropriate stage for inspections. Inspections should ordinarily be conducted without prior warning (this point was added following pressure from certain Member States). As with much of other food legislation the principle of proportionality applies and any inspection should be proportional to the end in question. The proposal lays down the operations which may be included in an official inspection and details which class of item may be included in such an inspection. Provisions for sampling and for copying of documentation are provided. The proposal also contains administrative details relating to definition of competent authorities, notifications and statistical data to be provided to the European Commission in respect of inspections carried out each year. In the light of these statistical returns the Commission plans to highlight areas of particular concern and to recommend a co-ordinated programme of inspections throughout the Community.

64 THE FOOD SECTOR

The Commission has also proposed greater liaison between inspection officials in the different Member States. This will include exchange programmes for inspectors and the establishment of a European Association of Food Analysts which would have responsibility for assessing the equivalence of national methods of analysis and the development of a single Community approach (where this is necessary). The present position with respect to the official inspection proposal is that a common position has been reached by the Council and the proposal has been passed to the European Parliament for further consideration before returning to the Council for consideration of any European Parliament amendments and final approval. Commission of the European Communities—Proposal for a Council Regulation on indications or marks indicating the lot to which a foodstuff belongs COM(87) 501 final. Office for Official Publications of the European Communities, 1987. This proposal seeks to introduce a system whereby all foodstuffs marketed in the Community would be required to carry a mark to identify to which production lot the food in question belongs. This objective is proposed to provide for better information on the identity of products. This improved information will be of value in cases where foodstuffs are the subject of dispute or are regarded as a health hazard for consumers. The proposals principally apply to prepackaged foodstuffs and thus at present exclude unwrapped foods such as meat, fish, eggs, despite the fact that such unwrapped foods may be particularly sensitive to infection by bacteria. The proposals require that responsibility for provision of the lost or batch marks shall lie with the producer, manufacturer of the foodstuff or in certain instances with the first seller established within the Community. The Council reached a common position on this proposal in November 1988 and it has now been passed

KEY DOCUMENTS ON FOOD POLICY 65

to the European Parliament for a second reading under the co-operation procedures laid down in Article 100A of the EC Treaty. Commission of the European Communities— Amended proposal for a Council Directive amending for the eighth time the Directive of 23 October 1962 of the approximation of the rules of the Member States concernin g the colouring matters that are authorized for use in foodstuffs intended for human consumption (COM(85) 474 final) COM(88) 132 final—SYN 43. Office for Official Publications of the European Communities, 1988. Directive 62/2645 is the principal EC legislation relating to the use of colours in foods. It has been amended on seven occasions. Further amendments were proposed in 1985 (COM(85) 474 final). The 1985 proposals sought to update the legislation to take account of the enlargement of the Community. The 1985 proposals concentrate on three aspects: 1. modifying the list of permitted substances 2. updating the purity criteria 3. consequential editorial modifications. The Council has yet to reach a common position on these proposals despite a specific request, in the notes accompanying the proposal, for a quick adoption. In the interim period new evidence has become available which questions the safety of a number of substances used as colours in food. Following advice from the Scientific Committee for Food the Commission has modified its original proposals. Reduced limits are proposed for canthaxanthin and erythrosine, for each of these colours the Commission’s view is that it is desirable to set limits which are on the side of caution since the principle of a high degree of protection for the consumer is accepted.

66 THE FOOD SECTOR

The proposal also includes the temporary acceptance of caustic sulphite caramels in alcoholic beverages subject to further review by the Scientific Committee for Food. It is worth noting that the procedures involved in amending the colours Directive in this way are significantly more cumbersome, involving the full application of Article 100A deliberations, than will be the case when the general framework Directive on food additives (see elsewhere in this section) is finally agreed. Commission of the European Communities—Proposal for a Council Directive amending for the fifth time Directive 74/329/EEC on the approximation of the laws of the Member States relating to emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs COM (88) 322 final—SYN 138. Office for Official Publications of the European Communities, 1988. Directive 74/329 is the principal EC legislation relating to the use of emulsifiers, stabilizers, thickeners and gelling agents in foodstuffs. It has been amended on four occasions, most recently in 1986 (Directive 86/102). The latest proposed amendment is, like earlier amendments, of a technical nature. The amendment derives from a requirement contained in earlier Directives that the evidence relating to the use of a number of these additives be re-evaluated. On the basis of evidence from the Scientific Committee for Food the amendment confirms tragacanth gum as authorized for use at Community level. It also upgrades polysorbates, Karaya gum and thermally oxidized soya bean oil interacted with mono- and di-glycerides of fatty acids (TOSOM) to the same status. This amendment is included in this review of Community documents as an example of the manner in which food additives legislation is upgraded on the basis of scientific evaluation by the Scientific Committee for Food. It should be noted that this amendment (when agreed) may take some time before it is incorporated into national law. The UK (for example) initiated the formal

KEY DOCUMENTS ON FOOD POLICY 67

consultations (necessary prior to amendment to the UK regulations) for the 1986 amendment to the Directive in March 1988 with an initial consultation period to 1 June 1988. Amended regulations have yet to be laid before Parliament. Commission of the European Communities—Proposal for a Council Directive on the introduction of compulsory nutrition labelling of foodstuffs intended for sale to the ultimate consumer and

Proposal for a Council Directive on nutrition labelling rules for foodstuffs intended for sale to the ultimate consumer COM(88) 489 final—SYN 155. Office for Official Publications of the European Communities, 1988. The position with regard to the labelling of foods with nutrition information is not yet harmonized between Member States. The UK has issued a set of voluntary guidelines (in 1987 and revised 1988), the Netherlands has legislation as has Germany, Denmark has a draft text and other Member States are known to be considering this issue. Concern about nutrition labelling has developed out of increases in nutrition knowledge and in particular the recognition of the relationships between nutrition and the incidence of degenerative illness such as cardiovascular disease and certain cancers. Nutrition education is regarded as an essential step in prevention of these conditions. Information about the nutritive value of food products is regarded as an essential component of public information about foodstuffs. Recommendations relating to nutrition information and labelling have been made by many national and international bodies and the issue of nutrition labelling has been extensively reviewed by the Codex Alimentarius Commission of the World Health Organization and Food and Agriculture Organization of the United Nations.

68 THE FOOD SECTOR

In addition the provision of nutrition information has been widely regarded within the food industry as an adjunct to marketing effort since the nutritional attributes of the product may be brought to the attention of the purchaser. However, the industry has failed to adopt a standard format for the presentation of information on nutrition labels. It is recognized that industry is often tempted to present the information in a manner which makes the food appear nutritionally more attractive. In addition to the above, there is no universal agreement about the technical coefficients to be used when calculating the values to be presented. These differences do not generally constitute a breech of the existing controls on misleading claims but they do serve to mislead the general public and render it impractical if not impossible to compare products on the basis of information provided on the nutrition label. As a result of these developments a consensus has emerged to suggest that a degree of clarification is necessary. The proposals issued in October 1988 set out common rules to be applied throughout the Community. The proposals are for two new Directives; the first providing powers to require compulsory nutrition labelling and the second detailing the style and format of presentation of nutrition labels whether mandatory or provided voluntarily. Only products carrying the approved format of nutrition label or no nutrition label will be allowed free circulation within the Community. Products bearing other formats will be prohibited. Proposal for compulsory nutrition labelling—this proposal merely provides enabling provisions to permit the establishment of compulsory nutrition labelling schemes at some date in the future. At present there are no plans to make nutrition labels compulsory. As a result the detailed provisions relating to circumstances are not defined. The Scientific Committee for Food will be consulted should it be regarded as desirable to the powers provided by this proposed Directive.

KEY DOCUMENTS ON FOOD POLICY 69

Proposal on Nutrition Labelling Rules—the proposal relates to nutrition labelling of foods sold to the ultimate consumer, that is, not to foods sold as ingredients to other food manufacturers. It does apply to foods sold to restaurants and to mass caterers. The proposal sets out detailed definitions for the nutrients to be included and defines the coefficients to be used in calculating values to be presented. Nutrition labels will become compulsory wherever a nutrition claim is made in either labels or advertising but will remain optional for other products. Where nutrition labels are provided, a standard format is to be utilized. At a basic level the label should show – the energy value – the amounts of protein – – – – – –

The Food Sector carbohydrate sugar fats dietary fibre sodium

Further, more detailed information on (for instance) the nature of fats or quantity of vitamins and minerals present may also be provided and an standard format is outlined. The proposal is welcomed by consumer and health groups which regard it as a valuable step towards provision of useful product information for the consumer. Commission of the European Communities—Proposal for a Council Directive on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation COM(88) 654 final—SYN 169. Office for Official Publications of the European Communities, 1988.

70 THE FOOD SECTOR

At present irradiation of foods is not permitted in several EC Member States. Only Belgium, Denmark, France, Italy, the Netherlands and Spain permit foods to be preserved by this method. Furthermore the lists of foods permitted to be irradiated varies between countries. Present national legislation prevents the free movement of irradiated food products thereby preventing the proper functioning of the common market. This document sets out proposals designed to approximate the various national legislation in order to permit trade in irradiated products throughout the Community. The proposal contains details of foods to be irradiated and also details the maximum radiation doses to be permitted. Food

Dose (kGy)

Strawberry, papaya, mango Dried fruits Pulses (legumes) Dehydrated vegetables

2 1 1 10

Cereal flakes

1

Food

Dose (kGy)

Bulbs and tubers Aromatic herbs, spices and vegetable seasoning Shrimps and prawns Poultry meat Frogs legs Arabic gum

0.2 10 3 7 5 10

KEY DOCUMENTS ON FOOD POLICY 71

Specified irradiation sources are as follows: a) Gamma rays from radionuclides 60 Co or 137 Cs. b) X-rays generated from machine sources operated at or below on energy level of 5 MeV. c) Electrons generated from machine sources operated at or below on energy level of 10 MeV. Specific technical criteria for the use of irradiation are provided and a statement of the requirements for good irradiation practice is provided. Food irradiation may only be approved if – – – –

there is a technical need it presents no hazard to the health of the consumer it is of benefit to the consumer it is not used as a substitute for proper health rules or good manufacturing or agricultural practice.

Food irradiation may be used to serve the following purposes – reduce incidence of foodborne disease – reduce spoilage of foodstuffs – reduce loss from premature repenting, germination or sprouting – disinfect foods of organisms harmful to plant or plant products. The proposal requires that any foods which have been treated with radiation may not be so treated a second time. The proposal also confirms that irradiated foods must carry a statement to indicate that the process has been used. For foods sold to the ultimate consumer (retail products) the provisions of the 1979 labelling Directive (79/112) apply. For foods sold to manufacturers as ingredients further details relating to the irradiation facility and the lot number will also be required. The

72 THE FOOD SECTOR

proposal also sets out criteria for the approval of irradiation and the records to be kept at such facilities. Imports of irradiated foods from third countries are also covered by the proposal and will only be permitted if complying with the conditions set out in the proposed Directive. Only irradiated foods from approved facilities will be permitted to enter Community markets. As stated at present the proposed Directive will require amendments of national legislation in all Member States including those currently permitting use of this process. Commission of the European Communities, Working Document—Draft. Proposal for a Council Directive amending Article 7 of Directive 79/112/EEC 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— quantitative declaration of ingredients Document III/ 714/88 EN. Commission of the European Communities, 1988. Directive 79/112 is the principal legislative measure relating to the labelling of foodstuffs sold to consumers within the European Community. At present there is a requirement that all ingredients used must be listed in numerical order of importance. There is no general requirement to provide quantified information regarding the amounts of particular ingredients although specific national rules may apply. (For example meat products sold in the UK must carry a statement declaring the proportion of meat.) The document described here proposes that a general rule be introduced by means of an amendment to the 1979 labelling Directive requiring the quantification of the characteristic ingredients of food products. The justification for this proposal refers back to the Commission’s 1985 Communication—‘Completing the Internal Market:—Community Legislation on Foodstuffs’ which recommends ‘more detailed labelling rules in

KEY DOCUMENTS ON FOOD POLICY 73

order better to meet the pressing requirements of fairness in trade and consumer information’. In addition the proposal for an amendment takes into account the shift towards mutual recognition of compositional standards between Member States which may result in a variety of apparently similar but compositionally different product alternatives being offered to the consumer. The quantification of characterizing ingredients is regarded as a means by which consumers will be given the opportunity to make informed choices between products. In late 1988 the working document referred to here was under revision within the Commission following discussions with economic and social interests. The quantitative declaration of ingredients has yet to be released as a formal proposal for legislation and remains only as a Commission working document. Group 3 Documents related to the removal of specific barriers to trade. Article 30 et seq. For completed Court cases documents are arranged in date order of the Court’s decision. For new Court cases documents are arranged in date order of the submission of the case to the court Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein (preliminary ruling requested by the Hessisches Finanzgericht) Measures having an effect equivalent to quantitative restrictions Judgment of the Court of Justice of the European Communities. Case 120/78, 20 February 1979. Reports of Cases Before the Court Vol 2 1979, pp 649–675. Although this case was judged over ten years ago it provides much of the basic case law with respect to restrictions in trade in goods (and other products) between Member States. The case was responsible for a major re-evaluation of the necessity of removal of

74 THE FOOD SECTOR

national food standards through the process of European harmonization. The case concerns a blackcurrant liquor, Cassis de Dijon. A German company Rewe-Zentral AG wished to import the liquor from France for sale into the German market. The company requested authorization from the Federal Monopoly Administration for Spirits (Bundesmoniopolverwaltung fur Branntwein) . The authorities replied that Cassis de Dijon could not be sold in Germany. The justification given was that German regulations state that only potable spirits having a winespirit content of at least 32 per cent may be marketed. Certain exceptions to this rule are permitted but Cassis de Dijon, which contains from 15 to 20 per cent wine spirit by volume is not covered by the regulations. Rewe-Zentral brought an action against this decision in the German courts which in turn decided to defer its judgment and to refer the case to the Court of Justice for a preliminary ruling. Rewe-Zentral claimed that ‘to prohibit the marketing of a product of one Member State in another Member State hinders the importation of that product in a direct and immediate manner; it is therefore a measure having an effect equivalent to a quantitative restriction on imports prohibited by Article 30 of the EEC Treaty’. The German Government counter-claimed that ‘until such time as the national rules relating to manufacture and marketing have been harmonized, Article 30 of the EEC Treaty is to be applied only insofar as those provisions lead to discrimination against imported goods in relation to domestic goods. Measures which are applicable without distinction to domestic and imported products do not…have effects equivalent to quantitative restrictions and do not therefore, in principle fall within the scope of Article 30’. The German Government argued that their stricter minimum standards gave no advantage to national producers over those from other Member States. The

KEY DOCUMENTS ON FOOD POLICY 75

German Government also gave fundamental importance to the argument that acceptance of Rewe-Zentral’s case would mean that Germany (in this instance) would be ruled not by German law but by French law. Taken further, the German argument continued, the rules of the least exacting Member State would become authoritative in all the others. In the extreme this could mean that a single Member State could in effect enact legislation which would be applicable throughout the Community even though this did not involve any collaboration or even knowledge of the other Member States. The Court in its judgment discussed in detail the justification for fixing a minimum standard and in particular the German arguments in favour of this particular minimum standard. However, the Court concluded that whilst the fixing of standards may lead to the standardization of products and their designations which can be in the interests of open commercial transactions including to the public, the fixing of a mandatory standard was not an essential guarantee of such openness. The Court noted that suitable information can easily be conveyed to the purchaser to allow an informed choice. In this instance the suitable information would be country of origin and alcohol content. The Court went on to state that ‘there is therefore no valid reason why, provided they have been lawfully produced and marketed in one Member State, alcoholic beverages should not be introduced into any other Member State; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules’. The Court also concluded that ‘obstacles to movement within the Community resulting from the national laws relating to the marketing of the product in question must be accepted insofar as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the

76 THE FOOD SECTOR

effectiveness of fiscal supervision, the fairness of commercial transactions and the defence of the consumer. This part of the judgment clarified the application of the rules given in Article 36 of the EEC Treaty by stressing the principle of free movement of goods which may only be restricted under very limited circumstances which will be strictly interpreted by the Court. The Cassis de Dijon judgment caused a significant rethink in respect of food legislation since if goods were generally to be permitted access regardless of whether national standards applied there appeared to be little benefit in seeking to formalize harmonization of product standards across Member States. The full implications of the Cassis de Dijon case have yet to be clarified in a document promised by the Commission in its 1985 Communication on ‘Completing the Internal Market: Community Legislation on Foodstuffs’. It should be noted that although the Court’s ruling permitted the import and sale of the French liquor with an alcohol content of 15–20 per cent into the German market, the German producer must still comply with the established national requirements. Officer van Justitie v Koninklijke Kaasfabrick Eyssen BV (preliminary ruling requested by the Gerechtshof, Amsterdam) Free movement of goods—Prohibition of Additives Judgment of the Court of Justice of the European Communities. Case 53/80, 5 February 1981. Reports of Cases Before the Court Vol 2, 1981 pp 409– 432. This case is recognized as providing a test of Member States responsibilities and jurisdiction in the approval for use of food additives in specified food products. The case concerns a Dutch manufacturer of cheese whose products were found to contain the antibiotic nisin which acts as a preservative. The manufacturer Koninklijke Kaasfabrick Eyssen BV (Eyssen) supplies both the Dutch domestic market and those of other Member States. The

KEY DOCUMENTS ON FOOD POLICY 77

case brought against Eyssen was that nisin is not permitted for use in cheese sold in the Netherlands although a derogation from the prohibition allows its use in the manufacture of cheese for export. The case was initially tried in the Dutch court which found the facts of the case proven but acquitted Eyssen on the grounds that the amount of nisin used was desirable to prevent deterioration and presented no danger to health. The Dutch court also ruled that since the Community Directive on preservatives (64/54) gave Member States authority to permit nisin the Dutch legislation preventing its use was incompatible with Article 30 and 34 of the Treaty. The Dutch authorities appealed against the judgment and the case was in due course passed to the Court of Justice for a ruling. In its deliberations the Court recognized that national laws with respect to the use of nisin fell into three groups: France and the United Kingdom permit its use without limit; Belgium, Denmark, Ireland and Italy permit its use up to specified limits which differ; Germany, Luxembourg and the Netherlands prohibit its use except in products for export. The differences in part reflect the differing national food consumption patterns; the Dutch consumption of cheese on a per capita basis is approximately double that of the UK. The differences in nisin-use serve to illustrate that, despite efforts to harmonize food legislation, there remain considerable differences between the practical application of even that harmonized legislation which has been agreed. It was argued that the application of the Dutch legislation meant that the manufacturer must set-up two separate production lines one for the domestic market (without the additive) and one for cheese for export to those countries where the addition of nisin is permitted. It was argued that the additional costs associated with this requirement would serve as a measure having equivalent effect to a quantitative restriction on exports of a kind prohibited by Article 24 of the EEC Treaty.

78 THE FOOD SECTOR

In addition, the Eyssen argument continued, the Dutch prohibition was also contrary to Article 30 since it served as a quantitative restriction on imports from Member States where such addition is permitted. The Court ruled that the Dutch authorities were able to restrict the use of this additive in products destined for their domestic market. ‘The provisions for the EEC Treaty regarding the free movement of goods do not, at the present stage of Community rules on preservatives in foodstuffs intended for human consumption, preclude national measures by a Member State, which on the ground of protection of health and in accordance with Article 36 of the Treaty, prohibit the addition of nisin to home-produced or imported processed cheese, even if they limit such a prohibition only to products intended for sale on the domestic market of the said State’. Criminal Proceedings against Léon Motte (Reference for a Preliminary ruling) 10 December 1985 Measures equivalent in effect to quantitative restrictions—Directive introducing partial harmonization—Colourants. Case 247/84, Proceedings of the Court of Justice of the European Communities 26/85. Weeks of 2 to 6 December and 9 to 13 December 1985. This case is recognized as setting a basic judgment on the division of responsibilities between the Community and Member States in matters relating to the level of consumer protection and, in particular, safety. The case arose out of proceedings against Leon Motte who was prosecuted for importing into Belgium tinned red and black lumpfish roe. These products were coloured using the colouring cochineal A and indigotin. The products were legally manufactured and marketed in their country of origin, Germany, but contravened Belgian legislation relating to the colouring of such products. However the two colourings were permitted for use in other products sold in Belgium and it was permitted to colour fish roe with colourings other than the two named. It appeared that no request had been made to include

KEY DOCUMENTS ON FOOD POLICY 79

these colourings on the positive list of those permitted for this use. The question put to the Court concerned whether the continued prohibition of use of cochineal A and indigotin in canned fish roe constituted an infringement of Belgium’s obligation in respect of Article 30 of the EEC Treaty by acting as a measure equivalent in effect to a quantitative restriction on the free movement of goods. The question involved not only the direct aspects referring to the use in question but also brings into account matters relating to additive use generally, particularly with respect to tolerances, harmfulness, necessity, value and suitability. The fact that a barrier to trade existed could not be disputed. However this brought into consideration matters applying under Article 36—that is justification for a barrier to trade. The EEC has not achieved a perfect state of harmonization with regard to additives. Whilst agreed lists of permitted additives exist, ‘it is for the Member States to decide what level of protection they wish to ensure for the health and life of persons, taking into account the requirements for the free movement of goods within the Community’. At present Community law permits the application of national authorization systems for the use of additives in particular products. This means that even where a use is permitted in another Member State it will be necessary to obtain national approval (using the full procedures of expert committees as appropriate) to ensure that additive use is lawful in the country of sale. The above requirement for national approval must however be made with due regard to the results of international scientific research, in particular the Community’s Scientific Committee for Food in addition to assessing the concept of need in the context of national eating habits. The intent in this analysis is to obtain a full appraisal of the health risk which might apply through the use of the additive. In this case the Court has found

80 THE FOOD SECTOR

that a Member State has the duty to take all due precautions before acting to remove a barrier caused by the present non-approval of an additive for use in a specified food product. Commission of the European Communities v. Federal Republic of Germany, 12 March 1987 Failure of a State to fulfil its obligations—‘Beer Purity Law’ Case 178/84. Proceedings of the Court of Justice of the European Communities 6/87. Week of 9 to 13 March 1987. Since the promulgation of the Reinheitsgebot (Pledge of Purity) in 1516 German brewers have been subject to a restriction which limits their list of permitted ingredients to malted barley, hops, yeast and water. This limitation has been incorporated into successive legislation most recently into the Beirsteuergestz (law on beer duty) of 1952. This law contains two important rules: a) confirming the Reinhetsgebot limitations which applies only to beer breweries in the Federal Republic, and b) defining the use of the word bier. In effect the use of the work bier, (beer) or any compound word or pictorial representation was only permitted where the Reinheitsgetbot rules applied. This rule was applied to both German and imported products. In addition, a further legislative provision prevented the importation of any beer containing additives. This is part of the law on foodstuffs and consumer goods which prevents the use of an additive except the use of an additive except where specifically authorized. This rule is based on health considerations. The Commission brought proceedings against Germany since these rules prevented the marketing in Germany of beers which had been legally produced and marketed elsewhere in the Community. Hence, this was viewed as a failure to comply with the requirements contained in Article 30 of the EEC Treaty.

KEY DOCUMENTS ON FOOD POLICY 81

The case can be considered in two parts: 1. Use of the term ‘beer’. The various Member States recognised a variety of products under the designation ‘beer’. The designation is generic in nature and is applied to a variety of products which may be broadly described as a ‘fermented drink manufactured from malted barley either by itself or together with rice or maize’. The Community’s Common Customs Tariff accepts this generic description. The Court judged that the restrictive application of the designation beer represented a failure to fulfil Community obligations under Article 30 of the EEC Treaty. 2. Prohibition on use of additives. The Commission argued that the German absolute prohibition on additives could not be justified on consideration of public health. Since other Member States have strict rules on use of additives and only permit their use after testing. Since beer produced in these Member States contained authorized additives it had to be presumed that no danger to public health existed. In view of the above presumption the onus fell on Germany to prove a risk. Furthermore, since the German rules for other beverages permitted the use of additives the Federal Republic was required to argue that its controls were not disproportionate. The main thrust of the German argument related to the quantity of beer consumed in Germany. Since large quantities of beer were consumed, there was a health risk from the additives, it was claimed. The Court judged that it was each Member State’s responsibility to judge the hazard to health of consumption of products produced in that Member State including with respect to additives. Once approved other Member States must accept such products as are lawfully

82 THE FOOD SECTOR

manufactured and marketed. The Court judged the absolute prohibition to be disproportionate, particularly as this ban was not also applied to other beverages sold in Germany. Since the ban was contrary to the principle of proportionality it was judged to be outside the short list of exception provided for in Article 36. It should be noted that although the court’s ruling requires Germany to permit entry to previously prohibited products the Reinheitsgebot rules still apply to all beers produced in Germany. Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland, 4 February 1988. Action for failure of a Member State to fulfil its obligations—Total prohibition on the importation of pasteurised milk and unfrozen pasteurised cream. Case 261/85. Proceedings of the Court of Justice of the European Communities 36/88, Week of 1–5 February 1988. also

Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland Failure of a Member State to fulfil its obligations—Measures having an effect equivalent to quantitative restrictions—Milk sterilised by the UHT process Judgment of the Court of Justice of the European Communities, Case 124/81. 8 February 1983. Reports of Cases Before the Court Vol 2 1983, pp 203–253. also

Council of the European Communities—Council Directive of 5 August 1985 on health and animal health problems affecting intra-Community trade in heat treated milk 85/397/EEC. Official Journal of the European Communities L226/13. 24 August 1985. The United Kingdom has long-established procedures to ensure that milk sold to the consumer is packed in

KEY DOCUMENTS ON FOOD POLICY 83

hygienic conditions on premises which have been licensed for such purposes by an inspector employed by a local authority. This ruling has been tested in the Court of Justice on two separate occasions since it can be argued that to apply this rule effectively prevents imports of milk from other Member States because no UK local authority inspector has jurisdiction to inspect premises other than in his own employer’s locality. The first test came in 1983 when the argument was put that milk which was sterilized by the UHT process could not present any health hazard to the UK population. The UK was found to be failing to meet its Community obligations as stated under Article 30 of the EEC Treaty and under Regulation 804/68 which established the common organization of the market for milk and its products. The UK amended its legislation in respect of UHT treated milk and cream, sterilized milk and cream and frozen pasteurised cream. The UK maintained its effective ban on the import of pasteurised milk and unfrozen pasteurised cream. In 1985 the EEC set hygiene (and other) standards in respect of milk and its products. The standards are to be introduced progressively with the intention of raising standards throughout the Community to at least those already achieved by the best. These standards (Directive 85/397) are fully in force from January 1989 in respect of milk for human consumption. In 1985 the Commission brought its second case against the UK. The Commission maintained that the rules applying in the UK were contrary to the requirements of Article 30 of the EEC Treaty and were disproportionate in respect of the health objectives given in Article 36. The Commission viewed that the UK had not been able, in the first instance, to show in what way milk from other Member States failed to guarantee quality.

84 THE FOOD SECTOR

Secondly, the Commission argued that it was excessive to prevent all milk from entering the UK when the claimed objective was to prevent entry of milk of inferior quality. The UK could not maintain a health argument against milk of equivalent or better health quality standards to that produced in the UK. Finally, the Commission argued that since health standards for milk had already been agreed in Council Directive 85/397 it was excessive to prevent the importation of milk which complied with this agreed standard. The UK maintained that it was necessary to continue its ban (which it conceded was contrary to Article 30) and also maintained that its rules were justified under Article 36 since it was necessary to ensure a high degree of protection for human life and health. The fact that UK consumption of milk is high compared to other Member States was noted in connection with this argument. In respect of the Commission’s arguments with regard to the new milk health Directive, the UK argued that no Member State had in place (at that time) the mechanisms to ensure compliance with the Directive. The Court ruled against the UK in February 1988 and stated that it considered the UK rules were excessive. The Court also noted that any national rules which restrict imports are only permitted so long as they are the sole means of protecting (in this context) human life. If less restrictive measures are available then these must be utilized. Commission of the European Communities v. French Republic, 23 February 1988 Failure by a Member State to fulfil its obligations—Free movement of goods— Substitutes for milk powder and concentrated milk. Case 216/84, Proceedings for the Court of Justice of the European Community 5/88. Week of 22 to 26 February 1988. Under a law dating back to 1934 (concerned with the protection of milk products) France has prohibited the

KEY DOCUMENTS ON FOOD POLICY 85

importation and sale of products designed to replace milk powder or concentrated milk. Such products have been widely available in other Member States, for example coffee whiteners. The Commission regarded the French prohibition as a failure to fulfil its obligations under Article 30 of the EEC Treaty and challenged the ban in the Court. The French Government defended the measures on three grounds: – Protection of consumers. – Protection of public health. – Conformity with Community policies regarding milk products. 1. Consumer Protection Three arguments were put forward: – Consumer information. The Commission saw no problems here since clear labelling can provide adequate information. – Consumer confusion about the nature of the product. Again clear labelling can prevent confusion. – Substitutes might replace milk products because of lower price, thereby depriving the consumer of choice. Consumer protection cannot be used as a justification for protecting a product from price competition caused by the removal of barriers to trade. 2. Protection of Health The inherent nutritional value of substitutes was questioned by the French and used as a argument for their ban. The response from the Commission was that a prohibition on importation cannot be justified on the grounds of lower nutritional value. This is not seen as a real danger to health. If particular population groups are involved as justification an

86 THE FOOD SECTOR

equivalent argument may be put forward with respect to milk itself. 3. Conformity with Community Policy It was pointed out that it is not the job of Member States to judge unilaterally in such matters. National measures (even when stated to be in general support of a common Community policy) are not given precedence over the fundamental principle of the Community, that is free movement of goods. The French also attempted to utilize the provisions of the Dairy Designations Regulation (1898/87) to support the continued use of its prohibition. This was rejected by the Court. Overall the Court confirmed that the French prohibition was in contravention of obligations under Article 30 of the EEC Treaty. The principle of free movement of goods is seen to be given precedence over other measures, including other community measures. Drei Glocken GmbH and Gertrand Kritzinger v U.S.L. Centro-Sud and Provincia Autonoma di Bolzano, 14 July 1988 Free movement of goods—Pasta products— Obligation to use only durum wheat. Case 407/85, Proceedings of the Court of Justice of the European Communities 18/88. Week of 11 to 15 July 1988. Pasta production and sale in Italy has been subject to a number of legal controls. Only durum wheat can be used in the production of dry pasta products but common wheat may be used in the production of fresh pasta products and in dry pasta products for export. The sale in Italy of products which do not conform to the durum wheat specification has been prohibited and this provision has included imported products. The case begins when a German manufacturer (Drei Glocken) imported pasta products made from a mixture of common wheat and durum wheat into Italy for resale by the Italian retailer (Kritzinger). Action was taken

KEY DOCUMENTS ON FOOD POLICY 87

against both parties by the local health authority (Unita Sanitaria Locale—USL). The defendants claimed that the Italian laws was incompatible with Article 30 of the EEC Treaty. A ruling was sought by the Italian court on this matter and, in addition, whether Article 36 could be used in support of the continuance of a ban. The Court considered that where harmonization had not occurred (as in the case of pasta) national rules could only be applied where there was a well defined need to satisfy specific requirements. These rules would apply to both imports and domestic products and would only be permitted if judged to be proportional to the objectives sought. The Court judged that the Italian prohibition on pasta products containing a mixture of common and durum wheat or made solely from common wheat was an obstacle to trade and it was therefore necessary to assess whether this prohibition was justified. Arguments were put by the Italian authorities claiming that the presence of additives might have harmful effects. This was not proven. The general prohibition on pasta containing common wheat was judged disproportionate and not justified on grounds of public health. When considered in respect of fair trading and the need to protect consumer interests it was judged that these objectives could be met by clear descriptive labelling. Objections were put forward by the Italian authorities who claimed that public recognition of pasta was for a durum wheat product; the use of other wheat, even if named in ingredients listing, was claimed to be incompatible with fair trading. The Court rejected all these arguments and ruled that the use of the reserved description ‘pasta made from durum wheat meal’ would give Italian pasta consumers sufficient information to differentiate between the different products on the market.

88 THE FOOD SECTOR

In this, as in many other cases, the Court has held to the general view that barriers to trade are only to be permitted in the most extreme cases and only if there is a very clearly defined and justifiable reason to prevent access. Barriers are only to be upheld if there is no lesser means of meeting the declared objective. In this case the use of clear labelling provides a means by which the consumer is able to distinguish between products and thus make an informed choice. The Court noted that there was no requirement to modify the law in respect of producers of pasta in Italy; it was only necessary to modify the law as it applies to imported goods. Smanor S.A. 14 July 1988, Prohibition of the use of the description ’deep-frozen yoghurt. Case 298/87, Proceedings of the Court of Justice of the European Communities 18/88. Week of 11 to 15 July 1988. This case concerns the use of the term yoghurt and more particularly ‘deep-frozen yoghurt’ products sold in France. A ruling was sought on the compatibility of French legislation with both the EEC Treaty and the EEC labelling Directive (79/112). The case arose in connection with the French company Smanor SA which manufacturers and wholesales a range of deep frozen products including deep-frozen yoghurt. For over ten years the French authorities have sought to prevent Smanor marketing its products under the name yoghurt (or alternative spellings ‘yaourt’, ‘yoghourt’). Smanor has been required to use the name ‘deep-frozen fermented milk’ for sales in France. The case was ruled under both the Treaty and the Directive. Articles 30–36 of the EEC Treaty: The question to be answered was ‘Do Articles 30–36 prevent a Member State from prohibiting the use of the name “Deep-Frozen Yoghurt” on yoghurt which had been deep frozen. The Court noted that the French rules only applied to products on the French market and not the exports. Therefore it was not necessary to consider Article 34

KEY DOCUMENTS ON FOOD POLICY 89

which applies to exports. It could however be applied to any imports from other Member States and thus the issue was considered in the context of Article 30. The Court ruled that to utilize the term ‘deep frozen fermented milk product’ was likely to make marketing more difficult since this name was less well known to consumers and consequently this could impede sales. Therefore, the French requirement could be construed as having an effect equivalent to a quantitative restriction on imports. Directive 79/112. Here the question to be answered was ‘Does Directive 79/112 preclude national laws which prohibit the use of the designation ‘yoghurt’ for yoghurt which has been deep frozen. Labelling is designed to provide the consumer with information regarding the nature, identity properties, composition, quantity, durability, origin, methods of manufacture or production or products (Article 2 of labelling Directive). The Directive also required labels to provide information on the product’s physical; condition and on any specific treatments which have taken place (Article 5). The Court therefore concluded that ‘the provisions of Directive 79/112, in particular Article 5, thereof, must be interpreted as meaning that they preclude the application of national rules under which the sales description ‘yoghurt’ may not be used for imported products or products of domestic origin which have been deep frozen if the products in question otherwise comply with the requirements laid down by the national rules for the use of that description in respect of fresh products’. From the above it may be seen that a domestic manufacturer of a product may utilize EEC legislation to challenge that which may be seen as an excessively repressive national product requirement. Commission of the European Communities, supported by the United Kingdom of Great Britain and Northern Ireland v. Kingdom of Denmark 20 September 1988. Free Movement of goods—Containers for beer and soft

90 THE FOOD SECTOR

drinks. Case 302/86, Proceedings of the Court of Justice 19/88. Week of 19 to 23 September 1988. In 1977 the Danish Government introduced legislation which prohibited the sale of soft drinks other than in refillable containers. In 1980 the Commission brought a successful case in the Court against Denmark which was forced to rescind the 1977 rules. The Danish Government introduced new rules which banned non-refillable bottles for beer and soft drinks. The costs for importers of compliance with the 1980 rules and the earlier 1977 rules was likely to increase their costs considerably compared with domestic producers—thereby constituting a measure equivalent in effect to a quantitative restriction on imports. In 1982 the Commission began new proceedings against Denmark but before these could be examined by the Court, Denmark introduced new rules which came into force in April 1985. The Commission again challenged the Danish restrictions on packaging and the case was judged towards the end of 1988. The action was based on the fact that manufacturers must only market beer and soft drinks in returnable containers which have been approved for such used by the Danish National Agency for the Protection of the Environment. The only exception to the above rule applies where a deposit and collection scheme has been established—here nonapproved containers may be used to a maximum of 3000 hectolitres per producer per annum. This limit allowed foreign producers to test the likely market size. The Commission considered that even as amended the requirements were contrary to Denmark’s obligations under Article 30 of the EEC Treaty. The rules were defended by Denmark on grounds of environmental protection. The Court noted that the Single European Act confirmed that environmental protection is ‘one of the Community’ s essential objectives’. Such an objective may in certain circumstances justify limitations to the principle of free movement of goods. However, as in all

KEY DOCUMENTS ON FOOD POLICY 91

other matters it is necessary that measures are not disproportionate to the intended purpose and if the same aim could be achieved with lesser obstacles to trade than such a route should be chosen. The returnable containers system was recognized by the Court as achieving the best possible rate of reuse and hence gave considerable environmental benefits. However, the system was judged overall to offer particular benefits to domestic producers whilst the disadvantage faced by importers were disproportionate to the Government’s objective. This case provides two key points of note: 1. the use of the need to protect the environment as defence in support of a measure judged to be a barrier to trade, 2. the Danish authorities by amending their legislation at crucial moments were able to maintain a trade barrier which has resulted in the Danish beer market having the lowest level of import penetration of any state in the Community. Ministère Public v. G.Deserbris, 22 September 1988 Free movement of goods—National legislation protecting the trade name for a cheese. Case 286/86. Proceedings of the Court of Justice of the European Communities 19/88. Week of 19 to 23 September 1988. A request was made to the Court for an interpretation of Article 30 of the EEC Treaty in the context of national legislation protecting the name of a cheese. French national legislation requires that cheese marketed as ‘Edam’ has a fat content of 40 per cent. Other countries allow or require Edam to have a lower fat content. The case concerned the import into France from Germany of cheese with fat content 34.3 per cent but marketed as ‘Edam’. French law was based on the 1951 Stresa Convention (International Convention on the Use of Designations of Origin and Names of Cheeses). It was noted that

92 THE FOOD SECTOR

Germany did not take part in this convention which occurred some years before the establishment of the Community. The German cheese was legally produced and marketed in Germany under the prevailing laws. Appropriate information—including fat content—was provided on the label. The Court noted that there has been no harmonization of rules relating to cheese and it was thus possible for national legislation to differ in the specification expected of cheese of a particular name. The trade name ‘Edam’ may, therefore, be applied to cheeses of differing fat contents in different Member States. The Court ruled as follows: ‘Article 30 et seq. of the EEC Treaty must be interpreted as meaning that they preclude a Member State from applying national legislation making the right to use the trade name of a cheese subject to the observance of a minimum fat content to products of the same type imported from a Member State when those products have been lawfully manufactured and marketed under that name in that Member State and consumers are provided with proper information’. In the absence of harmonized rules the key point which is repeatedly stressed is the need to provide the consumer with ‘proper information’ to enable a choice to be made between similar products. Court of Justice of the European Communities, Action brought on 17 February 1988 against the Kingdom of Belgium. Case 52/88, Official Journal of the European Communities 88/C78/05. 25 March 1988. Belgium presently sets a maximum limit on the quantity of edible gelatine which may lawfully be incorporated into meat products. The Belgian authorities have sought to apply this limit to products which are lawfully produced and marketed in other Member States. The Case against the Kingdom of Belgium is that to prevent the sale into the Belgium market of

KEY DOCUMENTS ON FOOD POLICY 93

products containing more than the approved quantity of edible gelatine has an effect equivalent to a quantitative restriction on imports. A restriction of imports of this nature presents a failure of Belgium to fulfil its obligations under Article 30 of the EEC Treaty. Belgium defends the requirement on the grounds of consumer protection. The Commission case is that to prohibit sales totally is excessive since consumer interests may be protected by other means in particular by labelling. The case has clear parallels with the Cassis de Dijon case described elsewhere in this section. The case is presently before the Court awaiting adjudication. Court of Justice of the European Communities, Action brought on 3 March 1988 by the Commission of the European Communities against the Italian Republic. Case 67/88, Official Journal of the European Communities 88/C9/17. 6 April 1988. Italy presently requires that edible oils (other than olive oil), margarine, hydrogenated edible fats and solid edible fats of animal and vegetable origin other than butter or lard contain an addition of colourreactive sesame oil when imported from other Member States. None of the other Member States makes this requirement on the products legally manufactured and marketed. The condition required by Italy is claimed by the Commission to make marketing of these products more complicated and burdensome than would be the case if the condition was not applied. The requirement is regarded by the Commission as equivalent to a quantitative restriction in trade and hence counter to the obligations laid down in Article 30 of the EEC Treaty. The case is presently before the Court awaiting adjudication. Court of Justice of the European Communities Action brought on 28 July 1988 by the Commission of the European Communities against the Italian Republic.

94 THE FOOD SECTOR

Case 210/88. Official Journal of the European Communities 88/C234/06. 10 September 1988. Italian food labelling laws (dated 18 May 1982) require that the particulars given in Italian must be at least as large as any given in other languages. The Commission claim that this prevents the marketing of products, into the Italian market from other Member States since such products will not normally have to comply with such a requirement. This case is brought with respect to Article 30 of the EEC Treaty since it may be regarded as a measure having an effect equivalent to a quantitative restriction. It is also brought with respect to Italy’s obligations to apply fully the EEC food labelling Directive (79/112) . Food labelling is an area where rules have been fully harmonized at Community level. The case is presently before the Court awaiting adjudication. Group 4 Other Documents

Council of the European Communities—Council Regulation (EEC No 1898/87 of 2 July 1987 on the protection of designations used in marketing of milk and milk products Official Journal of the European Communities L182/36. 3 July 1987. also

Commission of the European Communities— Commission Decision of 28 October 1988 listing the products referred to in the second subparagraph of Article 3(1) of Council Regulation (EEC) No 1898/87 (88/566/EEC) Official Journal of the European Communities L310/32. 16 November 1988. The dairy designations regulations are measures to protect the established names used for milk and milk

KEY DOCUMENTS ON FOOD POLICY 95

products. The regulations serve to protect both the producer and consumer of milk and milk products by closely specifying which products may utilize a name which has traditional associations with milk and milk products. Milk itself is defined in the context of an earlier regulation (No 1411/71) which defines the various standards of milk which may be offered for sale. Milk products are those food products which are exclusively derived from milk—(including those products where the addition of small quantities of additional substances is essential for their manufacture provided these are not used to replace any milk constituent). In addition the term milk and the defined designation for milk products may be used in compound terms where it is necessary to designate composite products for which milk (or other milk product) is a major characterizing ingredient. The key words which are designated under the regulations in addition to milk per se are whey, cream, butter, butter milk, butter oil, caseins, anhydrous milk fat (AMF), cheese, yoghurt, kephir and koumiss. The words in the above list may not be applied to products which do not meet the definitions given above. However, in each of the Community languages there exist names of established food products which fall outside the above considerations. If these were new products the names would not be permitted but long established practice required their continued existence. In order to permit continued usage of these names an agreed list (Council Decision 88/566) has been published. The foods listed in the English list include a wide variety of products including cream crackers, cream soda, salad cream, crème eggs, ice crème, peanut butter, butter beans, lemon cheese and many others. The intention in this regulation is to protect the various designations from uses on products which may seek to unfairly utilize the positive attributes associated with milk and its products. As with the general labelling

96 THE FOOD SECTOR

requirements (Directive 79/112) these provisions apply throughout advertising in addition to product labelling. Council of the European Communities—Council Decision of 14 December 1987 on Community arrangements for the early exchange of information in the event of a radiological emergency 87/600/Euratom. Official Journal of the European Communities L371/76. 30 December 1987. Following the explosion at the nuclear reactor at Chernobyl in the Ukraine it has become apparent that there is a need to have legislative measures in place as a contingency ready in case of similar events within the Community. This Euratom document sets in place the procedures for exchange of information in an emergency. Included in the provisions are a requirement that in the event of an emergency, measurements will be taken of radioactivity in foodstuffs. Each Member State is required to inform the Commission of the results of such measurements and also inform the Commission of any measures taken and recommendations issued. The objective is to ensure co-operation between Member States in dealing with any such emergency. It should be stressed that monitoring of foodstuffs is only one of many measures included in this Decision. Council of the European Communities Council Directive of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action (88/146/EEC) Official Journal of the European Communities, L70/16. 16 March 1988. also

United Kingdom of Great Britain and Northern Ireland, supported by the Kingdom of Denmark, v. Council of the European Communities, supported by the Commission of the European Communities 23 February 1988 Substances having hormonal action—Action for the annulment of a measure—Legal basis—Duty to state reasons—

KEY DOCUMENTS ON FOOD POLICY 97

Irregularities in the legislative procedure—Principle of proportionality. Case 68/86 Proceedings of the Court of Justice of the European Communities 5/88. Week of 22 to 26 February 1988. also

Council of the European Communities—Council Directive of 31 December 1985 prohibiting the use in livestock farming of certain substances having a hormonal effect. 85/649/EEC Official Journal of the European Communities L382/228. 31 December 1985. At the end of 1985 the Council passed a Directive under Article 43 of the EEC Treaty (dealing with regulation of agricultural supplies) which banned the use of substances having a hormonal action as growth promoters in farm animals. This prohibition was promulgated following a number of incidents some years earlier in which hormonal substances had been used in veal calves in Italy which were subsequently used in infant feeds and resulted in physiological changes in the infants consuming these products. Despite the fact that the incident described above used the hormonal substances in an illicit manner and that the substances or sale to the farming community in 1985 differed considerably from the earlier products there was substantial support in many parts of Europe for a prohibition. It was widely felt that a ban would be in the interests of consumers. Some time earlier the Community had commissioned an evaluation of the safety in use of hormones used for fattening purposes. At the time of the Council decision to adopt the Directive banning these substances the advisory committee had not presented its report. The 1985 decision to adopt the Directive was taken by a majority vote in Council. Early in 1986 the government of the United Kingdom with support from Denmark

98 THE FOOD SECTOR

challenged the decision in the Court of Justice and called for an annulment of the Directive. The challenge was based on six submissions. – – – – –

Insufficient legal basis. Insufficient reason. Breach of principle of legitimate expectations. Infringement of Council procedure. Failure to consult the European Parliament and the Economic and Social Committee. – Lack of material justification. Legal basis Here the challenge was based on a claim that the Directive should have been based on Article 100 of the EEC Treaty (which required unanimity) in addition to Article 43 which does not. This claim was made because the measure seeks to harmonize practices with due regard to safeguarding the interest and health of consumers. This issue is not included within Article 43 but was within Article 100. The Court confirmed that a decision under Article 43 was valid since this article provides the legal basis for legislation dealing with the production and marketing of agricultural products including harmonization measures without the need to. It was also noted that, despite the fact that on earlier occasions a dual approach (Article 43 and Article 100) had been adopted, the provisions of Article 38 et seq. given precedence in all agricultural matters over the general provisions relating to the establishment of the Common Market. The matter was judged to be an issue falling within the remit of the Common Agricultural Policy (Article 39) and hence it was judged to be a proper application of Community legislation to rely solely on Article 43.

KEY DOCUMENTS ON FOOD POLICY 99

Statement of reasons Here the challenge is made that insufficient or inadequate reason is given for adoption of the Directive. A claim that a failure to protect consumer health has the true justification but this was not stated was rejected immediately by the Court with reference to the Directive’s preamble. A second complaint referred to the fact that Directive 81/602 which deals with the use of thyrostatic substances was not mentioned in the preamble. However this link was referred to in the Directive itself and the challenge rejected. A third challenge because there was no reference to the Commission proposal was also rejected as an irrelevance. There was also reference to the fact that the Directive did not take account of the advisory report and its scientific findings. The report which was a preparation as a result of a recommendation in Directive 81/602 had not been completed. The Court ruled that Directive 81/602 only required that advice be sought in the form of a report and after publication required that account be taken of it. It did not preclude the taking of action to prohibit such substances ahead of publication. The second submission was also rejected. Principle of legitimate expectation Here the challenge was based on whether or not a majority vote procedure was admissible. Directive 81/602 required unanimity with regard to matters relating to the use of hormones in farm animals. However, Article 43 of the EEC Treaty takes precedence and hence the majority vote is proper.

100 THE FOOD SECTOR

Council rules of precedence The procedures used in the Council require that wherever two Member States oppose a issue, the recourse to the ‘written procedure’ rules may only take place if all Member States agree. It is not permitted to act on a majority vote even if the measure in question may be decided by majority. On this ground the Court ruled that the 1985 Directive was void. The fifth and sixth submissions where not considered in court. Following the Court’s decision the Council, within days, readopted the text of the Directive taking due account of the necessary administrative procedures. This issue has a number of interesting points to note: Firstly, the different procedures which applied with respect to agricultural and harmonization matters. The adoption of Article 100A in the Single European Act permits majority voting in both matters today. Secondly, the adoption of the measures ahead of the scientific advice. Here public opinion in many Member States favoured a ban whilst it was very likely that the scientific report would show no hazard, thereby making a ban less defensible. Thirdly, the prohibition is likely to have a considerable international impact since it places Community production and market requirements at odds with many major suppliers to world markets. The USA in particular is concerned that the measure is a deliberate attempt to exclude its products from the Community’s market and is taking steps to exclude certain Community products from the American market. Council of the European Communities—Council Directive of 7 June 1988 amending Directive 79/581/EEC on consumer protection in the indication of the prices of foodstuffs (88/315/EEC) Official Journal of the European Communities L142/23. 9 June 1988.

KEY DOCUMENTS ON FOOD POLICY 101

This Directive seeks to protect the interests of the consumer by providing for a harmonized system of price marketing of food products. The principle aim is to enable the consumer to be able to make informed choices between different products on offer on the basis of their price. The Directive requires that both the selling price and the unit price be indicated in a clearly legible, unambiguous and easily identifiable manner. It is for each Member State to set out specific rules on how this might be implemented (relating to posters or labels on shelves and packages. The Directive principally refers to prepacked products for which there is often a need to distinguish between similar items of different weights. This problem has been addressed on earlier occasions through the establishment of predetermined quantities for a variety of products. The rules provide a derogation for foods sold from those small retail businesses where prepacked foods are handed directly from seller to the purchaser. In these businesses it is recognized that the new provisions would constitute an unnecessary burden. It should be noted that this Directive is the latest in a stream of amendments made to the original 1979 Directive (79/581). A similar new Directive was introduced on the same day to protect the consumer in respect of prices of non-food products (Directive 88/314). For new Directives the intention is to increase the degree of transparency in purchasing transactions, thereby allowing consumers to compare prices and ensuring greater protection for consumers.

102

SECTION III

104

APPROXIMATION OF LAWS

The bulk of the legislative basis for European food policy is contained in Directives relating to the approximation of law processes of the internal market. The following provides a complete listing of all Directives and other measures in force on 1 December 1988. The Directives are arranged in chronological order by the date of their original publication. Subsequent amendments are also listed except for those amendments necessitated solely by the subsequent accession of new Member States. As secondary legislation the Directives are all published in the Legislation series of the Official Journal of the European Communities (OJL). For the purpose of this bibliography the documents are cited as follows: Year/Serial number/EEC Title Official Journal reference—Issue number, date, page number. The only exception to the above rule is the first item in the following list which was published prior to the establishment of the serial numbering system. Note also that prior to 1968 the Official Journal was not divided into a ‘C’ and an ‘L’ series. EEC: Council Directive on the approximation of the rules of the Member States concerning the colouring

106 THE FOOD SECTOR

matters authorized for use in foodstuffs intended for human consumption OJ L115, 11 November 1962, p. 2645 Amended by: 65/469/EEC: OJ p. 178, 26 October 1965, p. 2793 67/653/EEC: OJ p. 263, 30 October 1967, p. 4 68/419/EEC: OJ L309, 24 December 1968, p. 24 70/358/EEC: OJ L157, 18 July 1970, p. 36 76/399/EEC: OJ L108, 26 April 1976, p. 19 78/144/EEC: OJ L44, 15 February 1978, p. 20 81/712/EEC: OJ L257, 10 September 1981, p. 1 85/7/EEC: OJ L2, 3 January 1985, p. 22 64/54/EEC: Council Directive of 5 November 1963 on the approximation of the laws of Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption OJ 12, 27 January 1964, p. 161 Amended by: 65/569/EEC: OJ P222, 28 December 1965, p. 3263 66/722/EEC: OJ P223, 20 December 1966, p. 3947 67/427/EEC: OJ L148, 11 July 1967, p. 1 68/420/EEC: OJ L309, 24 December 1968, p. 25 70/359/EEC: OJ L157, 18 July 1970, p. 38 71/160/EEC: OJ L87, 17 April 1971, p. 12 72/2/EEC: OJ L2, 4 January 1972, p. 22 72/444/EEC: OJ L298, 31 December 1972, p. 48 72/62/EEC: OJ L38, 11 February 1974, p. 29 74/394/EEC: OJ L208, 30 July 1974, p. 25 76/462/EEC: OJ L126, 14 May 1976, p. 31 78/145/EEC: OJ L44, 15 February 1978, p. 23 81/214/EEC: OJ L101, 11 April 1981, p. 10 85/7/EEC: OJ L2, 3 January 1985, p. 22 85/172/EEC: OJ L65, 6 March 1985, p. 22 85/585/EEC: OJ L372, 31 December 1985, p. 43 65/66/EEC: Council Directive of 26 January 1965 laying down specific criteria of purity for preservatives authorized for use in foodstuffs intended for human consumption

APPROXIMATION OF LAWS 107

OJ 22, 9 February 1965, p. 373 Amended by: 67/428/EEC: OJ P148, 11 July 1967, p. 10 76/463/EEC: OJ L126, 14 May 1976, p. 33 86/604/EEC: OJ L352, 13 December 1986, p. 45 68/420/EEC: Council Directive of 20 December 1968 making a fourth amendment to the Council Directive on the approximation of the laws of Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption OJ L309, 24 December 1968, p. 25 70/357/EEC: Council Directive of 13 July 1970 on the approximation of the laws of the Member States concerning the antioxidants authorized for use in foodstuffs intended for human consumption OJ L157, 18 July 1970, p. 31 Amended by: 74/412/EEC: OJ L221, 12 August 1974, p. 18 78/143/EEC: OJ L44, 15 February 1978, p. 18 81/962/EEC: OJ L354, 9 December 1981, p. 22 85/7/EEC: OJ L2, 3 January 1985, p. 22 87/55/EEC: OJ L24, 27 January 1987, p. 41 73/241/EEC: Council Directive of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption OJ L228, 16 August 1973, p. 23 Amended by: 74/411/EEC: OJ L221, 12 August 1974, p. 17 74/644/EEC: OJ L349, 28 December 1974, p. 63 75/155/EEC: OJ L64, 11 March 1975, p. 21 76/628/EEC: OJ L223, 16 August 1976, p. 1 78/609/EEC: OJ L197, 22 July 1978, p. 10 78/842/EEC: OJ L291, 17 October 1978, p. 15 80/608/EEC: OJ L170, 3 July 1980, p. 53 85/7/EEC: OJ L2, 3 January 1985, p. 22 73/437/EEC: Council Directive of 11 December 1973 on the approximation of the laws of the Member States

108 THE FOOD SECTOR

concerning certain sugars intended for human consumption OJ L356, 27 December 1973, p. 71 74/329/EEC: Council Directive of 18 June 1974 on the approximation of the laws of the Member States relating to emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs OJ L189, 12 July 1974, p. 1 Amended by: 78/612/EEC: OJ L197, 22 July 1978, p. 22 80/597/EEC: OJ L155, 23 June 1980, p. 23 85/6/EEC: OJ L2, 3 January 1985, p. 21 85/7/EEC: OJ L2, 3 January 1985, p. 22 86/102/EEC: OJ L88, 3 April 1986, p. 40 74/409/EEC: Council Directive of 22 July 1974 on the harmonization of the laws of the Member States relating to honey OJ L221, 12 August 1974, p. 10 75/726/EEC: Council Directive of 17 November 1975 on the approximation of the laws of the Member States concerning fruit juices and certain similar products OJ L311, 1 December 1975, p. 40 Amended by: 79/168/EEC: OJ L37, 13 February 1979, p. 21 81/487/EEC: OJ L189, 11 July 1981, p. 43 76/118/EEC: Council Directive of 18 December 1975 on the approximation of laws of Member States relating to certain partly or wholly dehydrated preserved milk for human consumption OJ L24, 30 January 1976, p. 49 Amended by: 78/630/EEC: OJ L206, 29 July 1978, p. 12 83/635/EEC: OJ L357, 21 December 1981, p. 37 76/621/EEC: Council Directive of 20 July 1976 relating to the fixing of the maximum level of erucic acid in oils and fats intended as such for human consumption and in foodstuffs containing added oils or fats OJ L202, 28 July 1976, p. 35

APPROXIMATION OF LAWS 109

76/893/EEC: Council Directive 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 OJ L340, 9 December 1976, p. 19 Amended by: 78/142/EEC: OJ L44, 15 February 1978, p. 15 80/1276/EEC: OJ L375, 31 December 1980, p. 77 85/7/EEC: OJ L2, 2 January 1985, p. 22 77/94/EEC: Council Directive of 21 December 1976 on the approximation of the laws of the Member States relating to foodstuffs for particular nutritional uses OJ L26, 31 January 1977, p. 55 Amended by: 85/7/EEC: OJ L2, 3 January 1985, p. 22 77/436/EEC: Council Directive of 27 June 1977 on the approximation of the laws of the Member States relating to coffee extracts and chicory extracts OJ L172, 12 July 1977, p. 20 Amended by: 85/7/EEC: OJ L2, 3 January 1985, p. 22 85/573/EEC: OJ L372, 31 December 1985, p. 22 78/142/EEC: Council Directive of 30 January 1978 on the approximation of the laws of the Member States relating to materials and articles which contain vinyl chloride monomer and are intended to come into contact with foodstuffs OJ L44, 15 February 1978, p. 15 78/663/EEC: Council Decision of 25 July 1978 laying down specific criteria of purity for emulsifiers, stabilizers. thickeners and gelling agents for use in foodstuffs OJ L223, 14 August 1978, p. 7 Amended by: 82/504/EEC: OJ L230, 5 August 1982, p. 35 78/664/EEC: Council Directive of 25 July 1978 laying down specific criteria of purity for antioxidants which

110 THE FOOD SECTOR

may be used in foodstuffs intended for human consumption OJ L223, 14 August 1978, p. 30 Amended by: 82/712/EEC: OJ L297, 23 October 1982, p. 31 79/693/EEC: Council Directive of 24 July 1979 on the approximation of the laws of the Member States relating to fruit jams, jellies and marmalades and chestnut puree. OJ L205, 13 August 1979, p. 5 Amended by: 80/1276/EEC: OJ L375, 31 December 1980, p. 77 88/593/EEC: OJ L318, 25 November 1988, p. 44 79/796/EEC: First Commission Directive of 26 July 1979 laying down Community methods of analysis for testing certain sugars intended for human consumption OJ L239, 22 September 1979, p. 24 79/1066/EEC: Fist Commission Directive of 13 November 1979 laying down Community methods of analysis for testing coffee extracts and chicory extracts OJ L327, 24 December 1979, p. 17 79/1067/EEC: First Commission Directive of 13 November 1979 laying down Community methods of analysis for testing certain partly or wholly dehydrated preserved milk for human consumption OJ L327, 24 December 1979, p. 29 80/590/EEC: Commission Directive of 9 June 1980 determining the symbol that may accompany materials and articles intended to come into contact with foodstuffs OJ L151, 19 June 1980, p. 21 80/766/EEC: Commission Directive of 8 July 1980 laying down the Community method of analysis for the official control of the vinyl chloride monomer in materials and articles which are intended to come into contact with foodstuffs OJ L213, 16 August 1980, p. 42 80/777/EEC: Council Directive of 15 July 1980 on the approximation of the laws of the Member States relating

APPROXIMATION OF LAWS 111

to the exploitation and marketing of natural mineral waters OJ L229, 30 August 1980, p. 1 Amended by: 80/1276/EEC, 31 December 1980, p. 77 85/7/EEC, 3 January 1985, p. 22 80/891/EEC: Commission Directive of 25 July 1980 relating to the Community method of analysis for determining the erucic acid content in oils and fats intended to be used as such for human consumption and foodstuffs containing added oils or fats OJ L254, 27 September 1980, p. 35 80/1089/EEC: Commission Recommendation of 11 November 1980 to the Member States concerning tests relating to the safety evaluation of food additives OJ L320, 27 November 1980, p. 36 81/432/EEC: Commission Directive of 29 April 1981 laying down the Community method of analysis for the off icial control of vinyl chloride released by materials and articles into foodstuffs OJ L167, 24 June 1981, p. 6 81/712/EEC: Fist Commission Directive of 28 July 1981 laying down Community methods of analysis for verifying that certain additives used in foodstuffs satisfy criteria of purity OJ L257, 10 September 1981, p. 1 82/711/EEC: Council Directive of 18 October 1982 laying down the basic rules necessary for testing migration of the constituents of plastic materials and articles intended to come into contact with foodstuffs OJ L297, 23 October 1982, p. 26 Amended by: 85/572/EEC: OJ L372, 31 December 1985, p. 14 83/229/EEC: Council Directive of 25 April 1983 on the approximation of the laws of the Member States relating to materials and articles made of regenerated cellulose film intended to come into contact with foodstuffs OJ L123, 11 May 1983, p. 31

112 THE FOOD SECTOR

Amended by: 86/388/EEC: OJ L228, 14 August 1986, p. 32 83/417/EEC: Council Directive of 25 July 1983 on the approximation of the laws of the Member States relating to certain lactoproteins (caseins and caseinates) intended for human consumption OJ L237, 26 August 1983, p. 25 83/463/EEC: Commission Directive of 22 July 1983 introducing temporary measures for the designation of certain ingredients in the labelling of foodstuffs for sale to the ultimate consumer OJ L255, 15 September 1983, p. 1 84/500/EEC: Council Directive 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 OJ L277, 20 October 1984, p. 12 85/503/EEC: Fist Commission Directive of 25 October 1985 on methods of analysis for edible caseins and caseinates OJ L308, 20 November 1985, p. 12 85/572/EEC: Council Directive of 19 December 1985 laying down a list of stimulants to be used for testing migration of constituents of plastic materials and articles intended to come into contact with foodstuffs. OJ L372, 31 December 1985, p. 14 85/573/EEC: Council Directive of 19 December 1985 amending Directive 77/436/EEC on the approximation of the laws of the Member States relating to coffee extracts and chicory extracts OJ L372, 31 December 1985, p. 22 85/585/EEC: Council Directive of 20 December 1985 amending Directive 64/54/EEC on the approximation of the laws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption OJ L372, 31 December 1985, p. 43

APPROXIMATION OF LAWS 113

85/591/EEC: Council Directive of 20 December 1985 concerning the introduction of Community methods of sampling and analysis for the monitoring of foodstuffs intended for human consumption OJ L372, 31 December 1985, p. 50 86/424/EEC: First Commission Directive of 15 July 1986 laying down methods of sampling for chemical analysis of edible caseins and caseinates OJ L243, 28 August 1986, p. 29 87/524/EEC: First Commission Directive of 6 October 1987 laying down Community methods of sampling for chemical analysis for the monitoring of preserved milk products OJ L 306, 28 October 1987, p. 24 88/334/EEC: Council Directive 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 OJ L157, 24 June 1988, p. 28 88/388/EEC: Council Directive 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 OJ L184, 15 July 1988, p. 61 88/389/EEC: Council Decision of 22 June 1988 on the establishment, by the Commission, of an inventory of the source materials and substances. used in the preparation of flavourings OJ L184, 15 July 1988, p. 67

114

CONSUMER PROTECTION

A number of food policy documents are principally concerned with the protection of the consumer’s economic interests. The items are referenced as explained previously with reference to approximation of laws. 79/112/EEC: Council Directive 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 OJ L33, 8 February 1979, p. 1 Amended by: 85/7/EEC: OJ L2, 3 January 1985, p. 22 86/197/EEC: OJ L144, 29 May 1986, p. 38 79/581/EEC: Council Directive of 19 June 1979 on consumer protection in the indication of the prices of foodstuffs OJ L158, 26 June 1979, p. 19 Amended by: 88/315/EEC: OJ L142, 9 June 1988, p. 23 83/463/EEC: Commission Directive of 22 July 1983 introducing temporary measures for the designation of certain ingredients in the labelling of foodstuffs for sale to the ultimate consumer OJ L255, 15 September 1983, p. 1 84/450/EEC: Council Directive of 10 September 1984 relating to the approximation of the laws, regulations

116 THE FOOD SECTOR

and administrative provision of the Member States concerning misleading advertising OJ L250, 19 September 1984, p. 17 87/250/EEC: Commission Directive of 15 April 1987 on the indication of alcoholic strength by volume in the labelling of alcoholic beverages for sale to the ultimate consumer OJ L113, 30 April 1987, p. 57 Council Regulation (EEC) No 1898/87 of 2 July 1987 on the protection of designation used in marketing of milk and milk products OJ L182, 3 July 1987, p. 36 Amended by: Regulation 222/88: OJ L28, 1 February 1988, p. 1 Council Resolution of 7 June 1988 on consumer protection in the indication of the prices of foodstuffs and non food products OJ L153, 11 June 1988, p. 1

ADVISORY BODIES

Essential to the smooth operation of food policy within the European Community are the advisory bodies which assist the Commission and Council in their decision making. The following list gives presently applicable legislation relating to such committees. The items are referenced as explained previously with reference to 69/414/EEC: Council Decision of 13 November 1969 setting up a Standing Committee for Foodstuffs OJ L291, 19 November 1969, p. 9 69/1119(01)/EEC: Council Resolution of 13 November 1969 on intervention procedures of the Standing Committee for Foodstuffs OJ C148, 19 November 1969, p. 1 74/234/EEC: Commission Decision of 16 April 1974 relating to the institution of a Scientific Committee for Food OJ L136, 20 May 1974, p. 1 Amended by: 86/241/EEC: OJ L163, 19 June 1986, p. 40 80/1073/EEC: Commission Decision of 24 October 1980 establishing a new Statute of the Advisory Committee on Foodstuffs OJ L318, 26 November 1980, p. 28 85/7/EEC: Council Directive of 19 November 1984 amending a First Series of Directives on the approximation of the laws of the Member States in the

118 THE FOOD SECTOR

foodstuffs sector, as regards the involvement of the Standing Committee for Foodstuffs OJ L2, 3 January 1985, p. 22 Composition of the Scientific Committee for Food OJ C140, 6 June 1989, p. 4

SCIENTIFIC BASIS

The scientific basis for many food policy initiatives is contained in the Reports of the Scientific Committee for Food. Opinions provided are as follows: First series—1975

– Sodium methyl parahydroxybenzoate potassium nitrite and potassium propionate – Mercury in food – Rapeseed Oils – Revision of the Directive on colouring matters authorized for use in foodstuffs intended for human consumption – Vinyl chloride monomer – Ethoxyquin Second series—1976 – Amaranth – Some chemically modified starches – Research on long chain fatty acids and oils and fats used in food – Thiabendazole – Propyl gallate

120 THE FOOD SECTOR

Third series—1977 – Toxicological evaluation of a substance for materials and articles intended to come into contact with foodstuffs Fourth series—1977 – Saccharin – Calcium disodium ethylenediamine tetra-acetate – Formaldehyde in ‘Grana Padano’ cheese Fifth series—1978 – Elements of information given to the Commission on the use of additives for which no Acceptable Daily Intake has been allocated – The provisions relating to additives and processing aids in the draft proposal for a Council Directive concerning the approximation of the laws of Member States relating to Fine Bakers’ Wares, Rusks, Pastries and Biscuits Sixth series—1978 – Second report on thiabendazole – The positive list of substances to be authorized in the manufacture of regenerated cellulose films intended to come into contact with foodstuffs Seventh series—1978 – Emulsifiers, stabilizers, thickeners and gelling agents Eighth series—1979 – The use of certain emulsifiers in chocolate and related products

SCIENTIFIC BASIS 121

– Certain colouring matters for use in food Ninth series—1979 – Favourings – Asbestos – Natamycin Tenth series—1980 – Guidelines for safety assessment of food additives Eleventh series—1981 – Extraction solvents – Sulphiting agents Twelfth series—1982 – Sensitivity of individuals to food components and food additives Thirteenth series—1982 – – – – – –

Acrylonitrile monomer Vinylidene chloride monomer Hydrolyzed lecithin Modified starches Flavourings Styrene monomer

Fourteenth series—1983 – Di-2-ethylhexglphthalate and Di-2-ethylhexyladipate – Certain anabolic agents used in animal production – Essential requirements of infant formulae and followup milks based on cow’s milk proteins – Butylated hydroxyanisole

122 THE FOOD SECTOR

– Caffiene – Colouring matters authorized for use in foodstuffs intended for human consumption Fifteenth series—1985 – Emulsifiers, stabilizers, thickeners and gelling agents Sixteenth series—1985 – Sweetners Seventeenth series—1987 – Certain monomers and other starting substances intended to be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs Eighteenth series—1987 – Irradiated foods As you may have seen from the above listing the Scientific Committee for Food provides opinions on a wide range of topics. Opinions may be collected together and published in a multitopic volume or may be published individually. All reports are published by the Commission of the European Communities through the Office for Official Publications in Luxembourg. The Scientific Committee for Food was established by Commission Decision 74/234/EEC of 16 April 1974 (OJL 136, 20.5.74, p. 1, as amended by Decision 86/241/EEC (OJL 163, 19 June 1986, p. 40), to advise the Commission on any problem relating to the protection of the health and safety of persons arising from the consumption of food, and in particular the composition of food, processes which are liable to modify food, the use of food

SCIENTIFIC BASIS 123

additives and other processing aids as well as the presence of contaminents. The present composition of the Scientific Committee for Food was announced on 24 May 1989 and published in the Official Journal (OJ C140, 6 June 1989, p. 4).

124

OTHER

Other relevant texts in the area of food policy in Europe include the following: Commission of the European Communities ‘Symposium on enforcement of food law’ (Rome, 12–15 September 1978). Office for Official Publications of the European Communities, Luxembourg, 1979. Commission of the European Communities ‘Food additives and the consumer’ Office for Official Publications of the European Communities, Luxembourg, 1980.