Fortress Europe

Another new year; each of us another year older and (maybe) another year wiser! But will this increased collective wisdom change Brussels' approaches to the quantity and complexity of legislation and, increasingly, pseudo-legislation affecting the food industry? Or, despite yet another round of promises of "better regulation" and less "red tape", will it be even more of the same?

Numerous initiatives for "better regulation" - that are extremely welcome in principle, whether aimed at reducing the quantity of legislation, less complex drafting, streamlined bureaucracy or more effective enforcement practices - have been proudly announced, seemingly with increased frequency, throughout my career. And what has been the outcome of these initiatives?

Close examination of food safety and related consumer protection areas suggests little tangible impact. One outstanding recent example has, of course, been the earth-shattering revocation of most of the legislation restricting sales of certain products, such as instant coffee, to a small range of prescribed sizes - unnecessary rules that would have been rejected by the World Trade Organisation (WTO) as non-tariff barriers against imports of non-compliant, third country products within five minutes of any challenge, and which should have been revoked many years ago!

My perception is that more words have been given to hailing and describing the initiatives, than actually deleted from the statutes. Instead, a raft of new or updated legislation has been developed, frequently so poorly ambiguously drafted that it needs support from twice as many pages of guidelines to clarify its scope and intent. Forgive my memory lapse, but is it not the role of the courts to interpret a given statute and, hence, a defendant's guilt or otherwise?

The current vogue for bringing inadequately drafted legislation to the statute, with an attitude of 'we will sort it later' is deplorable. An obvious example is the Nutrition and Health Claims Regulation, described by an experienced lawyer colleague recently as the worst piece of drafting he had seen for years! The lawyer had obviously overlooked GM labelling legislation, which is so full of anomalies and unenforceable requirements that any unscrupulous trader could drive a coach and horses through it, and incapable of delivering its stated purpose.

Of course, we must concede that legislation relating directly to food and consumer safety and, in particular, controlling known, significant risks - as opposed to theoretical, hazards - is essential.

However, when increasingly-sophisticated analytical techniques discover previously 'unknown' chemicals in food at infinitesimally low levels, regulators should stand back and assess their real significance, including financial and societal implications as well as safety and consumer deception, before leaping to precipitate legislative or other regulatory action.

The use of terms such as 'might', 'could', 'if' , 'perhaps', and 'theoretical', by scientists and/or political spin-doctors to describe their perception of hypothetical risk scenarios for newly-found contaminants, new food materials or potential processes should automatically sound warning bells. They should trigger comprehensive Regulatory Impact Assessments across all 27 Member States, and involve all parties likely to be affected by the new 'hazard' and by any potential statutory controls. These should be performed as early as possible, long before any proposal is close to reaching the statute, and should fully evaluate all aspects of the potential risks, costs and benefits to all society's stakeholders across research, production and international trade, consumer safety and other essential factors, such as employment security and investors' financial returns.

The excessive application of the precautionary principle in recent years has become a new psychotic disease: paralytic precautionary paranoia - and the term itself the mantra of the millennium.

There is much clamouring, in some quarters, for comprehensive, new legislation to control potential applications of nanotechnology in food ingredients and packaging materials. Clearly, potential safety aspects of some of these materials will require close scrutiny but, overall, the existing frameworks for novel foods, additives and food contact materials can be argued to be sufficient. However, the mechanisms for toxicological assessments should be re-evaluated, urgently, to ensure that they are relevant to nanomaterials. In addition, industry must be prepared to be open and transparent about their use.

Neville Craddock​ is a food law and safety consultant with extensive industry experience in the development and application of food law.