Private food law. Bernd van der Meulen

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1 Private food law Governing food chains through contract law, self-regulation, private standards, audits and certification schemes edited by: Bernd van der Meulen

2 Private food law

3 This publication is also available as paperback: Private food law Governing food chains through contract law, self-regulation, private standards, audits and certiication schemes edited by: Bernd M.J. van der Meulen ISBN: Also available in the 'European Institute for Food Law series': European Food Law Handbook Bernd van der Meulen and Menno van der Velde ISBN Fed up with the right to food? The Netherlands' policies and practices regarding the human right to adequate food edited by: Otto Hospes and Bernd van der Meulen ISBN Reconciling food law to competitiveness Report on the regulatory environment of the European food and dairy sector Bernd van der Meulen ISBN Governing food security Law, politics and the right to food edited by: Otto Hospes, Irene Hadiprayitno ISBN: ; e-book ISBN:

4 Private food law Governing food chains through contract law, self-regulation, private standards, audits and certiication schemes edited by: Bernd M.J. van der Meulen Wageningen Academic P u b l i s h e r s

5 This work is licensed under a Creative Commons Attribution-NonCommercial- NoDerivs 3.0 Unported License ISBN: e-isbn: DOI: / ISSN First published, 2011 Wageningen Academic Publishers The Netherlands, 2011 Wageningen Academic Publishers, P.O. Box 220, NL-6700 AE Wageningen, The Netherlands. The individual contributions in this publication and any liabilities arising from them remain the responsibility of the authors. The publisher is not responsible for possible damages, which could be a result of content derived from this publication.

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8 Table of contents About the authors 15 Foreword 21 Abbreviations Private food law 29 The emergence of a concept Bernd van der Meulen 1.1 The irst book on private food law Private food law Cover Food law Classiications in private food law Topics covered in this book Law and governance Last but not least 49 Acknowledgements 49 References Quasi-states? The unexpected rise of private food law 51 Lawrence Busch 2.1 Introduction Building neoliberalism Transformation of the global economy Rise of the Tripartite Standards Regime (TSR) Can governance be plural? Legitimacy and markets revisited Conclusions 68 Acknowledgements 70 References The anatomy of private food law 75 Bernd van der Meulen 3.1 Introduction The history of private standards Chain orchestration Owning a standard Enforcement Adjudication 79 Private food law 7

9 Table of contents 3.7 Audits Certiication mark Accreditation Beyond accreditation Standard setting Structure of private food law Interconnected private schemes Public private interconnections Motives Examples Underlying concepts EurepGAP/GlobalGAP BRC IFS SQF FS GFSI Public law on private food law WTO Conclusions 108 References Inventory of private food law 113 Theo Appelhof and Ronald van den Heuvel 4.1 Introduction Controlling food safety by quality management system/standard Description of commonly used Standards To conclude 147 References Codex Alimentarius and private standards 149 Spencer Henson and John Humphrey 5.1 Background Nature of private food safety standards Trends in the development and functions of private food safety standards Role of Codex in the context of private standards Do private standards jeopardise the work of Codex? Challenges and opportunities for Codex Conclusions 170 References Private food law

10 Table of contents 6. Private retail standards and the law of the World Trade Organisation 175 Marinus Huige 6.1 Introduction What are private standards? Private standards, what drives them? Private standards and the WTO SPS Committee The current discussion on applicability of the SPS Agreement Food for thought 184 References Private law making at the round table on sustainable palm oil 187 Otto Hospes 7.1 Introduction The normative content of the RSPO Principle(d) actors Compliance and complaints How voluntary are the RSPO principles and criteria? Governments as consultative cheerleaders or competitive law makers Conclusion 199 References GlobalGAP smallholder group certiication 203 Challenge and opportunity for smallholder inclusion into global value chains Margret Will 8.1 Challenge or opportunity? An introduction to GlobalGAP option 2 smallholder certiication Challenge and opportunity! The GlobalGAP smallholder pilot project Turning challenges into opportunities: conclusions from the GlobalGAP smallholder pilot project GlobalGAP: challenge and opportunity! Conclusions and recommendations 221 References 226 Private food law 9

11 Table of contents 9. Towards the self-regulation code on beer advertising in Italy 229 Steps on the long lasting path of competition/co-operation of public and private food law Ferdinando Albisinni 9.1 The peculiar relation between innovation and food law Private regulatory law The IAP Institute of self-regulation in Marketing Communication (1963) Legislative reforms in the 1990 s: cooperative competition between public and private law The Beer Advertising Code: private regulation as tool to expand and anticipate consumer protection Some open questions 238 References Self-regulation code on beer advertising 241 Alessandro Artom 10.1 Introduction Underlying principles The Code The Code as Private Food Law 253 References Franchising strengthens the use of private food standards 255 Esther Brons-Stikkelbroeck 11.1 Introduction Private food standards Vertical agreements and franchising Conclusion 264 References On the borderline between state law and religious law 265 Regulatory arrangements connected to kosher and halal foods in the Netherlands and the United States Tetty Havinga 12.1 The developing supply of halal foods Regulating halal and kosher food Kosher certiication in the Netherlands Halal certiication in the Netherlands Private food law

12 Table of contents 12.5 Religious slaughter in the Netherlands Regulation of kosher food in the United States Religious slaughter in the United States Comparative conclusions Explaining the different position of the government 282 References Organic food 289 A private concept s take-over by government and the continued leading role of the private sector Hanspeter Schmidt 13.1 Introduction Bio and Eco and Regular? Comprehensive protection of organic terminology The friendly take-over by government in the 1990s Contaminants : still the same concept Positive lists for farming and processing The friendliness of the take-over Take-over of norms, but not of controls Toxins from non-regulated sources BNN orientation values Pesticide traces as misleading labelling The statutory role of doubt Conclusion on the role of private organic food regulation 298 References Food online 301 Reconnaissance into a consumer protection no-man s land between food law and the Civil Code Lomme van der Veer 14.1 Introduction The distance contract, buying food online Information and expectations about the product Conformity Conformity requirement and distance contracts Conclusions 317 References 318 Private food law 11

13 Table of contents 15. National public sector and private standards 319 Cases in the Netherlands Irene Scholten-Verheijen 15.1 Public law and private standards Public procurement and private standards Public enforcement and private standards Conclusions 328 Postscript 328 References The outside of private food law 331 The case of braided private regulation in Dutch dairy viewed in the light of competition law Maria Litjens, Bernd van der Meulen and Harry Bremmers 16.1 Introduction Background Private regulation structured in the food chain The big picture Developments in competition law Conclusions and discussion 349 Acknowledgements 351 References The limit of private food law 353 Competition law in the food sector Fabian Stancke 17.1 Introduction The requirements of competition law compliance Addressees of competition law in the food sector The restrictions on anticompetitive conduct The restrictions on non-collusive / unilateral conduct by market dominant companies Groups of cases relevant under competition law in the food sector Concluding remarks 376 References EU new approach also for food law? 381 Nicole Coutrelis 18.1 What is the new approach Is the new approach unknown in EU Food Law? Private food law

14 Table of contents 18.3 Public/private regulation/standards: present situation and questions Is the new approach now possible/desirable in EU Food Law? 386 References 388 Appendix 1. Commission Communication EU best practice guidelines for voluntary certiication schemes for agricultural products and foodstuffs 391 Appendix 2. Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee 401 Keyword index 423 Private food law 13

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16 About the authors Ferdinando Albisinni Ferdinando Albisinni is full professor of European Agricultural and Food Law, Tuscia University, Viterbo, Italy; Professor Jean Monnet of European Food and Agricultural Law; national secretary of the Italian Food Law Association (www.aida-ila.it); director of the Rivista di diritto alimentare on line (www.rivistadirittoalimentare. it); member of the Board of Directors of the European Food Law Association (www.ela-aeda.org); Member of the scientiic committee of the Italian Ministry for Agriculture, Food and Forestry; Academician of the Academy of Georgoili, Florence; Member of the Bar of Rome, admitted before the Supreme Court; author of volumes and articles on agricultural law and food law in international and comparative perspective. Theo Appelhof Theo Appelhof is a chemist (Utrecht University). In the period of 1975 to 2005 he was employed as a chemist and director at the Dutch Food Safety Authority (in Dutch: Keuringsdienst van Waren or nvwa ) in Nijmegen, Leeuwarden en Eindhoven, the Netherlands. Together with Precon Food Management BV he worked on various EU projects in Estonia and Lituania. In these projects, among others, local legislation was adjusted as preparation for EU accession. Since his retirement in 2005 he works as a senior consultant for Précon Food Managent BV in Bunnik, the Netherlands and is a member of the editorial board of the Praktijkgidsen Warenwet (Dutch for practical guides on the Commodities Act ). In this position he writes publications on subjects such as claims and labelling related to foodstuffs. Alessandro Artom Alessandro Artom is attorney at law before the Court of Appeals Milan and the Superior Court Rome, Italy. He is founder and partner of Studio legale associato Artom Papini, a law irm dealing with the regulation of food and beverages under EU and national law and the EU and national law regulating production and sale of consumer goods. In this regard, the law irm assists the major national and international food/beverages companies operating in Italy. He is also a legal advisor of Federalimentare, the Italian federation of all the national associations of the producers of food and beverages, member of CIAA, as well as legal advisor of Assobirra, association of the Italian producers of beer and malt, member of Brewers of Europe. He is Vice President of EFLA, European Food Law Association, Brussels, Belgium; Member of the Council of AIDA, Italian Food Law Association, Rome, Italy; Member of the CIBUS Committee, International Food Fair taking place in Parma every two years; Member of the scientiic Committee of the Italian Ministry Private food law 15

17 About the authors of Industry and Commerce for the simpliication and standardisation of national food and beverages legislation (Codice di diritto alimentare), in accordance to the Regulation (EC) No 178/2002. He has authored several voices of the legal Data Bank on Food Law Diritto alimentare. Mercato e sicurezza (www.leggiditaliaprofessionale. it) and is a Member of the Scientiic Committee of the web legal journal Rivista di Diritto alimentare as well as author of several articles on themes of food and beverages law, especially in relation to commercial and iscal problems (www. rivistadirittoalimentare.it). Harry Bremmers Harry Bremmers graduated in Business Economics (Tilburg University, 1977) and Law (Erasmus University, 1993). He obtained a Phd in 1995 at Erasmus University with a study on the effects of environmental standards and legislation on inancial accounting theory and practice. From 1993 on he joined Wageningen University, with subsequent appointments at the Business Administration and Law &Governance group. At present he is senior researcher and lecturer in the Law & Governance Group in the position of Associate Professor (Food Law and Economics). He focuses at green law (food law and environmental law) and its managerial and economic impact on the food industry. He published more than 100 papers, books and articles, mainly on the managerial and legal-economic impact of legal an sustainability requirements for the food industry. He participated in several research projects for the European Union, addressing the competitiveness and sustainability of the European food and drink industry, which at present are used to set out new policies. Esther Brons-Stikkelbroeck Lawyer Esther Brons-Stikkelbroeck heads the Retail and Franchise sector of the law irm Dijkstra Voermans. Praised as an outstanding franchise specialist in the 2010 Guide to the World s Leading Franchise Practitioners, she provides consultancy and litigation services to authoritative private and non-proit franchising organisations. Esther lectures on Franchise Law at the law training institute De Juridische Academie, is regularly published in the Dutch daily newspaper Het Financieele Dagblad, the business magazine Sprout and the journal Franchise Plus, and founded and writes the blog She is also an associate member of the Netherlands Franchise Association (Nederlandse Franchisevereniging) and a member of the Distribution, Franchise and Agency Law Association (Vereniging voor Distributie-, Franchise- en Agentuurrecht) Private food law

18 About the authors Lawrence Busch Lawrence Busch is Professor of Standards and Society at the Centre for Economic and Social Aspects of Genomics (CESAGEN) at Lancaster University (UK) and University Distinguished Professor at the Center for the Study of Standards in Society at Michigan State University (USA). He is (co)author or (co)editor of twelve books including Standards: Recipes for Reality (MIT Press, forthcoming). He has also authored or co-authored more than 150 other publications. He is a fellow of the American Association for the Advancement of Science, a Chevalier de l Ordre du Mérite Agricole, a member of the Académie d Agriculture de France, and a doctor honoris causa of the Universidade Técnica of Lisboa, Portugal. Nicole Coutrelis Nicole Coutrelis is a lawyer at the Paris Bar since Before starting her private practice, she was at the French Ofice National Interprofessionnel des Céréales (Cereals Authority) where she was in charge of the European Affairs ( ). She was then nominated at the French Permanent Representation to the EC in Brussels from 1978 to 1982 and joined afterwards the Legal Service of the European Commission where she was in charge of antitrust matters, particularly as applied in the Food and Agricultural sectors, from 1982 to1985. Nicole Coutrelis is a partner of Coutrelis & Associes, a French Law Firm with Ofices in Paris and in Brussels, specializing in EU Law, mainly in Antitrust, Agriculture, Food and Drug regulations, Alcoholic Beverages, Free Movement of Goods, Customs and all matters related to the Single Market. She is particularly in charge of the Food Law and Customs Practice of the Firm, counseling, lobbying and litigating, in France, in other Member States of the EU and before the European Court of Justice and the Court of First Instance in Luxembourg. Currently, she is President of the European Food Law Association, as well as Vice President of the International Wine Law Association and a Member of the International Bar Association. Nicole Coutrelis is author of many articles and Conferences related to Food and Drug Law as well as, more generally, the European Law. Tetty Havinga Tetty Havinga is Associate Professor of Sociology of Law, Radboud University Nijmegen, the Netherlands. She published on the regulation of food safety, policy implementation and law enforcement, experiences of large companies with specialized courts, equal opportunities law, and migration and is particularly interested in relations between industry and law related to the public interest. Her current research deals with the development and effects of private regulation of food safety and experiences of European law in everyday life. She published in Agriculture and Human Values, Actors in Private Food Governance: The Legitimacy Private food law 17

19 About the authors of Retail Standards and Multistakeholder Initiatives with Civil Society Participation. (with Doris Fuchs and Agni Kalfagianni) and Law & Policy Private regulation of food safety by Supermarkets. Spencer Henson Spencer Henson is Professor, Department of Food, Agricultural and Resource Economics, University of Guelph, Canada and Professorial Fellow, Globalisation Team, Institute of Development Studies, UK. Otto Hospes Dr. Otto Hospes is an associate professor Public Administration and Policy at the Department of Social Sciences of Wageningen University and visiting professor at Nantes University. Using insights from legal anthropology, political sciences and economic sociology, he is doing research on plural legal orders for food security, multi-actor governance of biofuels, and private law making in the ield of sustainable palm oil and soy production. He has visited, conducted evaluations and done research in many countries, including Indonesia, India, Sri Lanka, Zambia, Zimbabwe, Tanzania, Kenya and Brazil. Marinus P.C. Huige Marinus P.C. Huige is working at the Ministry of Economic Affairs, Agriculture and Innovation in the Netherlands and was Chairman of the WTO SPS-Committee in the period John Humphrey John Humphrey is Professorial Fellow, Globalisation Team, Institute of Development Studies, UK. He has an interest in private governance of agri-food systems, and in particular the role of private standards, including impacts on developing countries. Maria Litjens Maria Litjens is PhD-researcher at Wageningen University, the Netherlands. Her PhD-research focuses on the tension between food law en competition law. Private regulation systems create on the one hand a high level of food safety and implement food law requirements, but on the other hand limit competition and inally may infringe on competition law. Previously she worked as an agronomist, including at Wageningen University as developer of research projects regarding agriculture and rural planning Private food law

20 About the authors Hanspeter Schmidt Hanspeter Schmidt is the president of a law irm in Germany (Freiburg im Breisgau) specialising in the needs of the food industry. His practise covers unfair trade practises litigation, export import transactions and related ields, such as trademarks and food processing patents. He is a certiied specialist of administrative law. He published of commentaries on EU food law, such as the Regulation (EC) No. 834/2007 on organic food. Irene Scholten-Verheijen Irene Scholten-Verheijen works as a lawyer in Amsterdam, the Netherlands. She specialises in regulated markets, with a focus on the pharma and food sectors. Irene is a member of the Dutch Food Law Association (NVLR) and the European Food Law Association (EFLA) and a board member of the European Institute for Food Law. She gives lectures on a regular basis and has several publications to her name (amongst other she is the co-author of the Landkaart levensmiddelenrecht, Praktijkgidsen Warenwet, Sdu 2010). Fabian Stancke Prof. Dr. Fabian Stancke is Professor of Law at the Brunswick European Law School of the Ostfalia University of Applied Sciences, Braunschweig/Wolfenbüttel, Germany and counsel at the Hamburg ofice of law irm Field Fisher Waterhouse LLP. He is specialised in EU and German competition and antitrust law and has extensive experience in the food and retail sector. Before his university career, he practiced competition law as competition counsel at the group legal department of a major blue chip company in Munich and as a lawyer at a leading international law irm. Fabian Stancke lectures and publishes regularly on topics concerning European and German competition law. He is member of the reputable Studienvereinigung Kartellrecht e.v. and listed in JUVE (German eq. to Chambers ) as a frequently recommended counsel. and Ronald van den Heuvel Ronald van den Heuvel graduated in food science and technology at Wageningen University, Wageningen, the Netherlands. Based from the United Kingdom he worked in many European countries as a business developper and market analist. In 2009 he started working as a consultant for Précon Food Management BV, Bunnik, the Netherlands providing legal and food safety management advice to food producing companies. He was a lecturer at the Food Law Academy on the topic of labelling. He is currently self employed and analyses food safety issues and international markets. He is also linked to the European Chair of Food Safety Private food law 19

21 About the authors Microbiology that is chaired at Wageningen University through the development of digital learning materials. Bernd M.J. van der Meulen B.M.J. van der Meulen is Professor of Law and Governance at Wageningen University, the Netherlands (www.law.wur.nl/uk/); chairman of the Dutch Food Law Association (www.nvlr.nl); member of the Board of Directors of the European Food Law Association (www.ela-aeda.org); member of the editorial board of the European Food and Feed Law Review (http://www.lexxion.de/en/efl-home) and director of the European Institute for Food Law (www.food-law.nl). He was responsible for the programme of the 18 th international EFLA congress held in Amsterdam on 16 en 17 September Lomme C. van der Veer Lomme C. van der Veer is attorney at law at Van der Veer Advocaten, Meppel, the Netherlands. He teaches law at Windesheim University of Applied Sciences in Zwolle. Margret Will Margret Will, is a freelance consultant specialised in agri-food value chain development, industry cluster promotion, food standards and development of agribusiness associations. She holds a MBA in international trade and a M.Sc. in horticultural economics and has got more than 20 years work experience in transition and developing countries in Eastern Europe, Africa and Latin America. She is (co)author or editor of several books and articles including Food Quality and Safety Standards as required by EU Law and the Private Industry A Practitioners Reference Book (GTZ, 2007); Integrating Smallholders into Global Supply Chains: GlobalGAP Option 2 Smallholder Group Certiication Generic Manual (GTZ, 2010) and Public mandatory and private voluntary standards: challenge or opportunity for small scale farmers participation in global supply chains? (Edward Elgar, 2011) Private food law

22 Foreword Over the last decade, worldwide initiatives from the private sector have turned the legal and regulatory environment for food businesses upside down. Litigation is no longer solely framed by legislative requirements, but ever more by private standards such as GlobalGAP, BRC, IFS, SQF and ISO. Private standards incorporate public law requirements, thus embedding them in contractual relations and exporting them beyond the jurisdiction of public legislators. Private standards are used to remedy shortcomings in legislation, to reach higher levels of consumer protection than the ones chosen by the EU legislature, to impose new obligations on contracting parties, to manage risks and liability beyond the traditional limits of food businesses and inally to give substance to corporate social responsibility. Private standards also play a role in deining speciic markets of growing importance and in self-regulating the commercial communication/advertising for foods and beverages. Organic standards have found an interesting symbioses with public law. Halal standards express the demands of some two billion consumers worldwide. Food businesses are inspected more often by private auditors than by public inspectors. Effects in terms of receiving or being denied certiication often far outweigh public law sanctions. In short, based on private law, an entire legal infrastructure for the food sector emerges, in parallel to, and sometimes complementing, the public law regulatory infrastructure. The European Food Law Association (EFLA), in its 18 th international congress held in Amsterdam in September 2010, explored this emerging private food law. The congress looked into developments, backgrounds, structures, speciic examples of varying nature, consequences for businesses and for the EU internal market; interplay with public law through accreditation, imposed self-regulation in the form of HACCP or hygiene codes, adoption of non-binding Codex Alimentarius standards in contractually binding private standards; possibilities for the food sector, limits due to competition law and all that needs to be known by lawyers, academics, quality managers, regulatory affairs oficers, and civil servants active in the ever expanding world of European food law. This book is not conference proceedings in the usual sense of the word. It does not simply bring the presentations made at the conference. It does not either relect all the very rich debate that took place during the conference. The conference has however inspired the speakers and some other experts to contribute to this irst book in legal literature analysing private food law, a topic which clearly deserves great attention in our world. Many other topics could also have been discussed within that frame: Competition rules, Contract law, Private food law 21

23 International Commerce, Ethics, etcetera. Let us hope that the EFLA conference and this book will just be a start and inspire other works in the future. I express my gratitude to Wageningen Academic Publishers and the European Institute for Food Law for the way they cooperated in the creation of this irst EFLA-book and for including it in the European Institute for Food Law series. This cooperation between EFLA and the European Institute for Food Law has proved to be extremely fruitful and promising. I thank all the authors for their beautiful contributions and, last but not least I thank professor Van der Meulen, who is also an active member of the Board of EFLA. He designed the conference topic, helped identify speakers and authors and edited the book. It is fair to say that he coined the concept private food law. Nicole Coutrelis President of EFLA 22 Private food law

24 Abbreviations AB Accreditation body AFNOR Association Française de Normalisation (French national organisation for standardisation) AGCM Autorità Garante della Concorrenza e del Mercato (Antitrust Authority) AHC Europe European Association of Halal Certiiers AIJN Association of the Industry of Juices and Nectars from Fruits and Vegetables of the EU ASEAN Association of Southeast Asian Nations B2B Business to business B2C Business to consumer BER Block exemption regulation BERR Department for Business, Enterprise and Regulatory Reform (United Kingdom) BIPRO Brand integrity programme BMZ Bundesministerium für wirtschaftliche Zusammenarbeit und Entwicklung (Federal Ministry for Economic Cooperation and Development) BNN Bundesverband Naturkost Naturwaren BRC British Retail Consortium BSE Bovine spongiform encephalopathy CAC Codex Alimentarius Commission CAC/GL CAC/Guideline CAC/RCP CAC/Recommended international code of practice CB Certiication body CBL Centraal Bureau Levensmiddelenhandel (Dutch organisation for supermarkets) CC Civil code CCP Critical control point CEC Commission of the European Communities CEN Comité Européen de Normalisation (the European committee for standardisation CIES Comité International d'entreprise à Succursales (The Food Business Forum) CIPRO Certiication integrity programme CISG Convention for the International Sale of Goods COLEACP Comité de Liaison Europe-Afrique-Caraïbes-Paciique CPCC Control points and compliance criteria CQP Critical quality points CRC Central rabbinical congress CSR Corporate social responsibility CVUA Chemischen und Veterinäruntersuchungsämter CWG Criteria working group of the RSPO Private food law 23

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