by Caoimhín MacMaoláin. Portland, OR: Hart Publishing, 2007. 320pp. Paper. $70.00/£35.00. ISBN: 9781841134987.
Reviewed by Caitilin Rabbitt, Ph.D. 2005 Department of Sociology, New York University. Email: c_rabbitt [at] juno.com.
Much of the recent debate over the relation between law and trade globalization has centered over what has been termed a “democracy deficit” (Aman 2004): a missing or biased basis for public participation within international trade law and policy. Caoimhín MacMaoláin’s EU FOOD LAW: PROTECTING CONSUMERS AND HEALTH IN A COMMON MARKET follows in this view. The author’s primary thesis: “Politicians have allowed the fundamental Community principle of the free movement of goods to underlie all key harmonising provisions in this [food regulation] area at the expense of health and consumer protection” (p.2). He also contends that much EU food law has developed in reaction to food safety crises and thus has neglected aspects of food production such as nutritional value or ethical issues. In response, he calls for increased national-level control over health and safety standards, likely to be more responsive to domestic public health and other concerns.
To provide a context for the book, the structural dynamics in the domain of food safety are a little different than in other types of international trade. While globalizing trade in general has been marked by de-regulation, this has not characterized food trade, in which most countries, as both food importers and food exporters, have a corresponding interest in stable regulatory regimes (Braithwaite and Drahos 2000). Food health and safety regulation has been associated with public controversy in the US, at least, since the 1904 publication of Upton Sinclair’s THE JUNGLE, a horrific account of conditions in the US meatpacking industry which helped precipitate the creation of the US Food and Drug Administration (FDA) to regulate food and drug safety (Rosoff, Pontell, and Tillman 1998). The domain of food health and safety has been no less marked by public concern in the EU, precipitated by both incidents of food contamination, and broader policy issues such as use of hormones or genetically modified organisms. The primary problem, therefore, is not exclusion of food safety matters from the political area, through market deregulation or an exclusive reliance on market-based forms of regulation, but instead, biases within the arenas of policy-making which do exist, and debate over whether existing law provides a “floor” or a “ceiling” for food safety standards. Here, MacMaoláin, as noted above, takes the position that EU law has all too often become an artificially low regulatory “ceiling.” Overall, he provides a rich and detailed account of the dynamics of both food trade, and food safety law, within the EU, and in so doing he provides an articulate example of the “ceiling” criticism of globalized regulatory law. [*734]
The book is composed of seven chapters and also includes a Table of Cases, and Table of Legislation, key to understanding EU food law.
The first chapter, “Regulating the Food Industry,” provides an introduction to the history and scope of food safety law within the EU. MacMaoláin makes a strong case both that most EU food law has come not from the traditional laws of member states, but from the EU institutions themselves, and that the EU has not hesitated to impose its food directives on member states. The EU’s primary impact has been to further the free trade of goods among EU member states, with few exceptions. The push for trade is a strong one: EU food production is very big business. According to MacMaoláin, the EU is the single biggest source of food goods in the world (pp.5-6).
MacMaoláin gives the example of chocolate, traditionally made in countries such as France with both a high cocoa content, and cocoa butter, without any animal fats. As it became evident that there would be restrictions on trade if this “floor” were adhered to in chocolate labeling practices, a compromise standard was established in 2000, allowing alternate formulations to be marketed as “chocolate” but with additional labeling requirements. The EU then also sanctioned Spain and Italy when they attempted to bar what they viewed as sub-par chocolate from their borders (pp.7-9).
His over-arching theme that the EU trade preference has deleterious impacts on even production for domestic consumption appears well-founded:
The far-reaching effects of free movement principles, in particular the principle of mutual recognition of existing standards in each of the Member States, means that when the Community standardises, it must do so at the lowest common level, or at least very near to it. If Member State A insists that chocolate contain no cocoa butter, then Member State B, C and D are unlikely to be allowed to maintain their domestic provisions stipulating minimum cocoa butter levels in chocolate (pp.11-12).
The second chapter, “Free Movement of Food in the EU,” develops the historical basis for this preference for free trade over domestic standards. The legal watershed point came in the 1979 Cassis de Dijon overturn by the European Court of Justice of an attempt by one EU country to stop the import of what was viewed as an unacceptable product from another EU member state. As MacMaoláin notes, this: “established the principle that once a foodstuff is lawfully marketable in one Member State it must be lawfully marketable in all” (p.17).
A second main presumption of trade is the Article 90 EC, which bans the levying of taxes disproportionately on imported rather than domestically-produced products, making it impossible for countries to give economic preference for domestically-produced foods. The problem, as MacMaoláin puts it, is that while market regulations may be “harmonized,” or brought into consistent standards and requirements, consumers themselves are not so readily [*735] standardizable, and – as will be familiar to those readers familiar with questions of substantive justice – nor should they be (pp.19, 275).
The third chapter, “Harmonising Food Standards in the EU: Labelling, Naming, and Quality Preservation,” address some of the “nuts and bolts” aspects of how food processing and labeling are standardized in the EU “common market.” The fourth chapter, “International Influences on EU Food Law,” discusses the larger relationship between EU law and the World Trade Organization (WTO) and the Codex Alimentarius Commission (an organ of the Food and Agriculture Organization (FAO) and the World Health Organization (WHO)). MacMaoláin provides an interesting story of the emergence of these respective international institutions, and the legal nexus among them: both the WTO and the European Court of Justice use the Codex standards as the reference point for consideration of EU member state food law. MacMaoláin makes clear that EU food law has been highly influenced by these international organizations, although this may be more in theory than in practice, as various effective barriers to compliance do exist (p.149). This raises the interesting question of the extent of EU member state compliance with formal EU food safety law, a matter that MacMaoláin does not address in any depth. The extent of industry compliance with FDA regulations has been an important matter in the US, in part because of what some see as a vastly under-funded regulatory apparatus (Bridges 2007). It would not be surprising if the EU faced a similar lack of implementation capacity: a list of the matters to which Codex standards apply gives some measure of the shear complexity of food regulation (p.154).
However, MacMaoláin contends, much of the relation between international law such as the WTO and the Codex, and EU law has been “persuasive, not determinative” (p.172) because the EU standards effectively have similar origins anyway. Here, MacMaoláin may be guilty of taking things a bit too much at face value: according to at least one source, one impetus for “regulatory convergence” at the international level has been that most European food manufacturers are owned by US corporations, leading to a great deal of overlap at the level of the industry groups lobbying international regulatory bodies like the Codex Commission (Braithwaite and Drahos 2000, at 408).
Chapter 5 presents a discussion of “Food Safety in the EU,” including an account of the controversial problem of Bovine Spongiform Encephalopathy (BSE), better known as “mad cow disease” in the US, irradiated foods, and food additives. MacMaoláin concludes that the difficult problem of BSE has resulted in a greatly increased capacity for EU member states to respond autonomously to counter potential health threats. This provides a counterpoint to Chapter 6, which addresses “Nutrition Law and Policy in the EU.” Here, MacMaoláin concludes that EU member states have been precluded from addressing matters pertaining to food nutrition, particularly relative to constituent obesity levels, by the EU preference for free trade. Absent the kind of high-profile, economically-costly problems associated with tainted food, EU policy-makers have been unwilling to grant member states the [*736] authority to regulate food content beyond the “lowest common denominator” existing in the EU, or to add labeling information which might address particularly problematic factors such as high saturated fat content.
The final chapter, “Contemporary Considerations for EU Food Law,” delves into some of the currently most controversial issues between food producers and consumers: genetically modified organisms, organic foods, and “ethical” considerations such as animal welfare standards. MacMaoláin ends with an appeal for an increased ability for EU member states to take action “to protect [the] ‘average consumer’ from himself or herself” (p.275). Although this line of argument may raise specters of a “nanny state” to some readers, MacMaoláin’s specific proposals may be less prone to do so: “Requiring that meat products contain meat, milk contains milk and alcoholic drinks contain alcohol should not prove overly-inhibitive to food industry innovators” (p.276).
MacMaoláin is a lecturer in law, and his discussion of EU laws and pertinent case law, including the few exceptions to the free movement preference, is dense and may prove a little dry for readers not well versed in the law. For scholars in this field, however, the author provides a well-documented resource, which covers concisely and comprehensively the scope of EU food law. The author does present some strong positions in the book, but this is not, it should be noted, unusual in the domain of food safety law, widely subject to both politicization and public controversy (e.g., Burkholz 1994), and MacMaoláin does substantiate those positions he takes. The book’s topic is both timely and important, and it is likely to prove of interest to a wide range of readers interested in either globalization and trade law in general, or the topic of food health and safety regulation in particular.
Aman, Alfred C. Jr. 2004. THE DEMOCRACY DEFICIT: TAMING GLOBALIZATION THROUGH LAW REFORM. New York and London: New York University Press.
Braithwaite, John and Drahos, Peter. 2000. GLOBAL BUSINESS REGULATION. New York: Cambridge University Press.
Bridges, Andrew. 17 July 2007. LAWMAKERS DECRY FDA PLANS TO CLOSE LABS. New York: The New York Times.
Burkholz, Herbert, 1994. THE FDA FOLLIES: AN ALARMING LOOK AT OUR FOOD AND DRUGS IN THE 1980s. New York: Basic Books.
Rosoff, Stephen M., Pontell, Henry N, and Tillman, Robert. 1998. PROFIT WITHOUT HONOR: WHITE-COLLAR CRIME AND THE LOOTING OF AMERICA. Upper Saddle River, NJ: Prentice Hall.
Sinclair, Upton. 1951 THE JUNGLE. New York: Harper and Brothers.
© Copyright 2007 by the author, Caitilin Rabbitt.