EU FOOD LAW This is the first comprehensive analysis of the European Union law of food regu- lation. It details the way in which EU law impacts upon the production and sale of food throughout the Union. It examines the legal protection accorded to the free movement of food within the EU, discussing those circumstances in which Member States may derogate from this principle, in particular where this is done to protect human health or safeguard consumer interests. Chapter four discusses and places in context the international trade law influences on EU food law. Chapter five describes EU responses to recent food safety crises – avian influenza and BSE. The book also deals with issues such as nutrition law and policy, obesity, GMOs, organic food, animal welfare and food naming and labelling. This book offers an account of the historical, political, sociological and jurisprudential context of European Union food law. The author, who is an academic and consultant in this area, translates the legal and scientific complexities of food law into a lucid and compelling narrative. The resulting work will also prove an indispensable guide to the practitioner. Volume 13 in the series Modern Studies in European Law (A) MacMaolin Prelims 9/2/07 15:15 Page i Modern Studies in European Law 1 Soft Law in European Community Law Linda Senden 2 The Impact of European Rights on National Legal Cultures Miriam Aziz 3 Partnership Rights, Free Movement and EU Law Helen Toner 4 National Remedies Before the Court of Justice: Issues of Harmonisation and Differentiation Michael Dougan 5 The National Courts Mandate in the European Constitution Monica Claes 6 EU Environmental Law: Challenges, Changes and Decision-Making Maria Lee 7 European Union Law and Defence Integration Martin Trybus 8 Principles of European Constitutional Law Armin von Bogdandy & Jürgen Bast 9 EU International Relations Law Panos Koutrakos 10 Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland Áine Ryall 11 The European Court of Justice and the EU Constitutional Order: Essays in Judicial Protection Takis Tridimas 12 The European Union, International Law and the Promotion and Protection of Democracy Richard Burchill (A) MacMaolin Prelims 9/2/07 15:15 Page ii EU Food Law Protecting Consumers and Health in a Common Market Caoimhín MacMaoláin OXFORD – PORTLAND OREGON 2007 (A) MacMaolin Prelims 9/2/07 15:15 Page iii Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: www.isbs.com © Caoimhín MacMaoláin 2007 Caoimhín MacMaoláin has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978-1-84113-498-7 (paperback) ISBN-10: 1-84113-498-8 (paperback) Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall (A) MacMaolin Prelims 9/2/07 15:15 Page iv In memory of Gaye (A) MacMaolin Prelims 9/2/07 15:15 Page v (A) MacMaolin Prelims 9/2/07 15:15 Page vi Acknowledgements There are several people who assisted in the preparation and publication of this book. I am very grateful to all of them. I would like to thank Professor John Usher, Ms Barbara Powell and Mr Patrick Overy of Exeter University; Professor Damian Chalmers, London School of Economics; Professor Hilary Delaney, Professor Gerry Whyte and Dr Eoin O’Dell of Trinity College, Dublin; Professor Gerrit Betlem, Southampton University; Dr Alan Dignam, Queen Mary, University of London; and Dr Adam McAuley, Dublin City University – who first suggested this topic as a research area. I am particularly grateful to Dr David Tomkin for metic- ulously reading through drafts and proofs and making numerous suggestions. His influence and expertise have greatly improved this book. My wife Síofra, my chil- dren Rían, Cathal and Donncha, and my parents Mícheal and Josephine, have all been most supportive and encouraging throughout. I would like to thank all at Hart Publishing for making the authorship process so enjoyable. Inevitably no text can be error-free, and any errors or omissions that remain are solely attributable to the author who invites comments and suggestions, and can be contacted by email at macmaolc@tcd.ie. (A) MacMaolin Prelims 9/2/07 15:15 Page vii (A) MacMaolin Prelims 9/2/07 15:15 Page viii Contents Acknowledgements vii Table of Cases xv Table of Legislation xxi 1 Regulating the Food Industry 1 1.1 INTRODUCTION 1 1.2 HISTORICAL DEVELOPMENT OF FOOD LAW 2 1.3 IMPORTANCE OF THE FOOD SECTOR IN THE EU 5 1.3.1 Chocolate Debate 7 1.3.2 Ensuring Compliance with EU Food Law 10 1.4 SCOPE OF THE BOOK 11 2 Free Movement of Food in the EU 17 2.1 INTRODUCTION 17 2.2 MEASURES EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON THE FREE MOVEMENT OF FOOD 19 2.2.1 Dassonville and Directive 1970/50 20 2.2.2 Indistinctly Applicable Rules 22 2.2.3 Post-Cassis Free Movement of Food 23 2.2.4 National Quality Requirements 29 2.2.5 Different Products, Same Name 34 2.2.6 Substantial Difference between Food Products 41 2.2.7 Protecting Human Health under Article 30 EC 45 2.2.8 National Authorisation Procedures 49 2.2.9 Common Agricultural Policy Justification 56 2.3 TAXES AND DUTIES ON THE MOVEMENT OF FOOD 57 2.3.1 Internal Taxation on Imported Foodstuffs 57 2.3.2 Measures Equivalent to Customs Duties on Intra-Community Food Trade 60 2.4 CONCLUSION 64 3 Harmonising Food Standards in the EU: Labelling, Naming and Quality Preservation 67 3.1 INTRODUCTION 67 3.2 COMPLETING THE INTERNAL MARKET: COMMUNITY LEGISLATION ON FOODSTUFFS 68 (A) MacMaolin Prelims 9/2/07 15:15 Page ix 3.2.1 Public Health Protection 71 3.2.2 Consumer Protection 72 3.2.3 Fair Trading 73 3.3 COMMUNICATION ON FREE MOVEMENT OF FOODSTUFFS WITHIN THE COMMUNITY 74 3.4 FOOD LABELLING 77 3.4.1 Framework Food Labelling Legislation 78 3.4.2 Labelling Language 80 3.4.3 Listing Ingredients 83 Quantitative Ingredient Declarations 87 3.4.4 Net Quantity 87 3.4.5 Date of Minimum Durability 89 3.5 FOOD NAMES 90 3.5.1 Recipe Laws 93 Chocolate and Cocoa 94 Coffee and Chicory 96 Fruit Juices 97 Honey 99 Jams 101 3.5.2 Protected Geographical Indications and Designations of Origin 102 Regulation 510/2006 103 Regulation 510/2006 and Existing National Laws 107 Nature of Generic Food Names: The Feta Cheese Cases 108 Certificates of Specific Character: Regulation 509/2006 117 Protection for Geographical Names under Regulation 510/2006 119 Compatibility of Protecting Names with Article 28 EC 121 3.6 FOOD QUALITY 122 3.6.1 Foodstuff Specific Quality Legislation 123 Natural Mineral Water 123 Milk and Milk Products 126 Spreadable Fats 127 Minced Meat 129 3.7 CONCLUSION 130 4 International Influences on EU Food Law 133 4.1 INTRODUCTION 133 4.2 GLOBAL FREE TRADE: INTERNATIONAL RULES ON FREE MOVEMENT OF FOOD 134 4.2.1 WTO Agreements and EU Food Law 135 Agreement on Trade-Related Aspects of Intellectual Property Rights 135 x Contents (A) MacMaolin Prelims 9/2/07 15:15 Page x [...]... Codex Alimentarius and EU Food Law 4.4 CONCLUSION 5 Food Safety in the EU 5.1 INTRODUCTION 5.2 DEVISING A NEW FOOD SAFETY POLICY FOR THE EU: THE BSE CRISIS 5.2.1 Impact of Food Crises on EU Food Law and Policy: White Paper on Food Safety Regulatory Aspects of the White Paper Animal Health and Welfare Emergency Measures Controls over the Operation of EU Legislation 5.2.2 The European Food Safety Authority... Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation [1999] OJ L 6/16 91, 206–7 Directive 1999/3/EC of the European Parliament and of the Council of 22 February 1999 on the establishment of a Community list of foods and food ingredients treated... the same food name It is often very difficult for either national governments or the EU institutions to take action to counteract this without contravening current Community law and policy The structure of the law and policy of the European Union directly favours certain practices which devalue the quality of food Manufacturers and producers are agile and adept at putting pressure on local and European... Principles of Food Law Structure of EFSA EFSA and Scientific Opinions Rapid Alert System, Crisis Management and Emergencies 5.3 USING THE PRECAUTIONARY PRINCIPLE TO PROTECT HUMAN HEALTH 5.3.1 Evidence Requirements 5.3.2 Legislature and Scientific Committees 5.4 COMMUNITY FOOD SAFETY LEGISLATION 5.4.1 Materials Coming into Contact with Foodstuffs 5.4.2 Contaminants in Food 5.4.3 Irradiated Foods 138 142... (EU) has been coupled with concerns about depreciating food quality levels, brought about by the high degree of protection accorded to the principle of mutual recognition This requires that once a food product is lawfully marketable in any one Member State it must, subject to limited exceptions, be lawfully marketable in all Furthermore, where the Community has set harmonised standards for generic foodstuffs,... Authorisation Procedure 6.2.3 Food Supplements 6.3 NUTRITION POLICY AND FREE MOVEMENT 6.3.1 Nutrition Policy in the Member States UK White Paper on Public Health Folic Acid Fortification Determining Member State Autonomy on Health Protection Measures 6.3.2 EU Nutrition Policy 6.4 CONCLUSION 7 Contemporary Considerations for EU Food Law 7.1 INTRODUCTION 7.2 INNOVATION IN FOOD PRODUCTION: GENETIC MODIFICATION... aftermath of the food scares’ has also resulted in the quality and nutritional value of food receiving less attention in new legislative initiatives It is here contended that the future of EU food law lies not with the preoccupation with ensuring that food is safe, or at least that the possibility of ‘unsafe’ food entering the chain is minimised Instead, attention now needs to be shifted onto a group... approximation of the laws of the Member States relating to flavourings for use in foodstuffs and to source materials for their production [1988] OJ L 184/61 218, 244 Council Directive 1989/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorised (A) MacMaolin Prelims 9/2/07 15:15 Page xxix Table of Legislation xxix for use in foodstuffs... the laws of the Member States on extraction solvents used in the production of foodstuffs and food ingredients [1992] OJ L 409/31 97 Commission Directive 1993/10/EEC of 15 March 1993 relating to materials and articles made of regenerated cellulose film intended to come into contact with foodstuffs [1993] OJ L 93/27 .204 Council Directive 1993/43/EEC of 14 June 1993 on the hygiene of foodstuffs... concerning the official control of foodstuffs [1993] OJ L 290/14 206 European Parliament and Council Directive 1994/35/EC of 30 June 1994 on sweeteners for use in foodstuffs [1994] OJ L 237/3 217 (A) MacMaolin Prelims 9/2/07 15:15 Page xxx xxx Table of Legislation European Parliament and Council Directive 1994/36/EC of 30 June 1994 on colours for use in foodstuffs [1994] OJ L 237/13 . and EU Food Law 171 4.4 CONCLUSION 172 5 Food Safety in the EU 175 5.1 INTRODUCTION 175 5.2 DEVISING A NEW FOOD SAFETY POLICY FOR THE EU: THE BSE CRISIS 175 5.2.1 Impact of Food Crises on EU Food. EU FOOD LAW This is the first comprehensive analysis of the European Union law of food regu- lation. It details the way in which EU law impacts upon the production and sale of food throughout. the Food Industry 1 1.1 INTRODUCTION 1 1.2 HISTORICAL DEVELOPMENT OF FOOD LAW 2 1.3 IMPORTANCE OF THE FOOD SECTOR IN THE EU 5 1.3.1 Chocolate Debate 7 1.3.2 Ensuring Compliance with EU Food Law