Private food law Governing food chains through contract law, self-regulation, private standards, audits and certification schemes edited by: Bernd van der Meulen Private food law This publication is also available as paperback: Private food law Governing food chains through contract law, self-regulation, private standards, audits and certification schemes edited by: Bernd M.J. van der Meulen ISBN: 978-90-8686-176-7 www.WageningenAcademic.com/EIFL-06 Also available in the 'European Institute for Food Law series': European Food Law Handbook Bernd van der Meulen and Menno van der Velde ISBN 978-90-8686-082-1 www.WageningenAcademic.com/foodlaw 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 978-90-8686-107-1 www.WageningenAcademic.com/righttofood Reconciling food law to competitiveness Report on the regulatory environment of the European food and dairy sector Bernd van der Meulen ISBN 978-90-8686-098-2 www.WageningenAcademic.com/reconciling Governing food security Law, politics and the right to food edited by: Otto Hospes, Irene Hadiprayitno ISBN: 978-90-8686-157-6; e-book ISBN: 978-90-8686-713-4 www.WageningenAcademic.com/EIFL-05 Private food law Governing food chains through contract law, self-regulation, private standards, audits and certification schemes edited by: Bernd M.J. van der Meulen Wageningen Academic P u b l i s h e r s ISBN: 978-90-8686-176-7 e-ISBN: 978-90-8686-730-1 DOI: 10.3920/978-90-8686-730-1 ISSN 1871-3483 First published, 2011 © Wageningen Academic Publishers The Netherlands, 2011 This work is licensed under a Creative Commons Attribution-NonCommercial- NoDerivs 3.0 Unported License http://creativecommons.org/licenses/by- nc-nd/3.0/. Wageningen Academic Publishers, P .O. Box 220, NL-6700 AE Wageningen, The Netherlands. www.WageningenAcademic.com copyright@WageningenAcademic.com 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. Private food law 7 Table of contents About the authors 15 Foreword 21 Abbreviations 23 1. Private food law 29 The emergence of a concept Bernd van der Meulen 1.1 The first book on private food law 29 1.2 Private food law 30 1.3 Cover 32 1.4 Food law 32 1.5 Classifications in private food law 37 1.6 Topics covered in this book 38 1.7 Law and governance 48 1.8 Last but not least 49 Acknowledgements 49 References 50 2. Quasi-states? The unexpected rise of private food law 51 Lawrence Busch 2.1 Introduction 51 2.2 Building neoliberalism 51 2.3 Transformation of the global economy 55 2.4 Rise of the Tripartite Standards Regime (TSR) 59 2.5 Can governance be plural? Legitimacy and markets revisited 62 2.6 Conclusions 68 Acknowledgements 70 References 70 3. The anatomy of private food law 75 Bernd van der Meulen 3.1 Introduction 75 3.2 The history of private standards 77 3.3 Chain orchestration 78 3.4 Owning a standard 78 3.5 Enforcement 79 3.6 Adjudication 79 8 Private food law Table of contents 3.7 Audits 79 3.8 Certification mark 80 3.9 Accreditation 80 3.10 Beyond accreditation 82 3.11 Standard setting 83 3.12 Structure of private food law 83 3.13 Interconnected private schemes 84 3.14 Public – private interconnections 85 3.15 Motives 88 3.16 Examples 89 3.17 Underlying concepts 92 3.18 EurepGAP/GlobalGAP 93 3.19 BRC 97 3.20 IFS 98 3.21 SQF 99 3.22 FS22000 102 3.23 GFSI 103 3.24 Public law on private food law 105 3.25 WTO 106 3.26 Conclusions 108 References 109 4. Inventory of private food law 113 Theo Appelhof and Ronald van den Heuvel 4.1 Introduction 113 4.2 Controlling food safety by quality management system/standard 119 4.3 Description of commonly used Standards 124 4.4 To conclude 147 References 147 5. Codex Alimentarius and private standards 149 Spencer Henson and John Humphrey 5.1 Background 149 5.2 Nature of private food safety standards 151 5.3 Trends in the development and functions of private food safety standards 157 5.4 Role of Codex in the context of private standards 162 5.5 Do private standards jeopardise the work of Codex? 165 5.6 Challenges and opportunities for Codex 168 5.7 Conclusions 170 References 171 Private food law 9 Table of contents 6. Private retail standards and the law of the World Trade Organisation 175 Marinus Huige 6.1 Introduction 175 6.2 What are private standards? 176 6.3 Private standards, what drives them? 177 6.4 Private standards and the WTO SPS Committee 178 6.5 The current discussion on applicability of the SPS Agreement 181 6.6 Food for thought 184 References 185 7. Private law making at the round table on sustainable palm oil 187 Otto Hospes 7.1 Introduction 187 7.2 The normative content of the RSPO 189 7.3 Principle(d) actors 192 7.4 Compliance and complaints 195 7.5 How voluntary are the RSPO principles and criteria? 196 7.6 Governments as consultative cheerleaders or competitive law makers 198 7.7 Conclusion 199 References 201 8. GlobalGAP smallholder group certification 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 certification 203 8.2 Challenge and opportunity! The GlobalGAP smallholder pilot project 208 8.3 Turning challenges into opportunities: conclusions from the GlobalGAP smallholder pilot project 213 8.4 GlobalGAP: challenge and opportunity! Conclusions and recommendations 221 References 226 10 Private food law 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 229 9.2 Private regulatory law 230 9.3 The IAP – Institute of self-regulation in Marketing Communication (1963) 231 9.4 Legislative reforms in the 1990’s: cooperative competition between public and private law 233 9.5 The Beer Advertising Code: private regulation as tool to expand and anticipate consumer protection 236 9.6 Some open questions 238 References 239 10. Self-regulation code on beer advertising 241 Alessandro Artom 10.1 Introduction 241 10.2 Underlying principles 242 10.3 The Code 246 10.4 The Code as Private Food Law 253 References 254 11. Franchising strengthens the use of private food standards 255 Esther Brons-Stikkelbroeck 11.1 Introduction 255 11.2 Private food standards 255 11.3 Vertical agreements and franchising 257 11.4 Conclusion 264 References 264 12. 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 265 12.2 Regulating halal and kosher food 266 12.3 Kosher certification in the Netherlands 269 12.4 Halal certification in the Netherlands 270 Private food law 11 Table of contents 12.5 Religious slaughter in the Netherlands 271 12.6 Regulation of kosher food in the United States 273 12.7 Religious slaughter in the United States 276 12.8 Comparative conclusions 277 12.9 Explaining the different position of the government 282 References 285 13. 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 289 13.2 ‘Bio’ and ‘Eco’ and ‘Regular’? 289 13.3 Comprehensive protection of organic terminology 290 13.4 The friendly take-over by government in the 1990s 290 13.5 Contaminants 291 13.6 2011: still the same concept 291 13.7 Positive lists for farming and processing 292 13.8 The friendliness of the take-over 293 13.9 Take-over of norms, but not of controls 293 13.10 Toxins from non-regulated sources 295 13.11 BNN orientation values 295 13.12 Pesticide traces as misleading labelling 297 13.13 The statutory role of doubt 298 13.14 Conclusion on the role of private organic food regulation 298 References 299 14. 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 301 14.2 The distance contract, buying food online 302 14.3 Information and expectations about the product 308 14.4 Conformity 309 14.5 Conformity requirement and distance contracts 313 14.6 Conclusions 317 References 318 12 Private food law 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 319 15.2 Public procurement and private standards 323 15.3 Public enforcement and private standards 326 15.4 Conclusions 328 Postscript 328 References 329 16. 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 331 16.2 Background 332 16.3 Private regulation structured in the food chain 336 16.4 The big picture 342 16.5 Developments in competition law 345 16.6 Conclusions and discussion 349 Acknowledgements 351 References 351 17. The limit of private food law 353 Competition law in the food sector Fabian Stancke 17.1 Introduction 353 17.2 The requirements of competition law compliance 354 17.3 Addressees of competition law in the food sector 354 17.4 The restrictions on anticompetitive conduct 355 17.5 The restrictions on non-collusive / unilateral conduct by market dominant companies 357 17.6 Groups of cases relevant under competition law in the food sector 358 17.7 Concluding remarks 376 References 377 18. EU ‘new approach’ also for food law? 381 Nicole Coutrelis 18.1 What is the ‘new approach’ 381 18.2 Is the ‘new approach’ unknown in EU Food Law? 383 Private food law 13 Table of contents 18.3 Public/private – regulation/standards: present situation and questions 384 18.4 Is the ‘new approach’ now possible/desirable in EU Food Law? 386 References 388 Appendix 1. Commission Communication – EU best practice guidelines for voluntary certification 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 15 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-ifla.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.efla-aeda.org); Member of the scientific committee of the Italian Ministry for Agriculture, Food and Forestry; Academician of the Academy of Georgofili, 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. E-mail: albisinni@unitus.it 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. E-mail: tappelhof@precon-food.nl 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 firm 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 firm 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 scientific Committee of the Italian Ministry 16 Private food law About the authors of Industry and Commerce for the simplification 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 Scientific 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 fiscal problems (www. rivistadirittoalimentare.it). E-mail: artomlaw@iol.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 financial 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. E-mail: harry.bremmers@wur.nl Esther Brons-Stikkelbroeck Lawyer Esther Brons-Stikkelbroeck heads the Retail and Franchise sector of the law firm 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-profit 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 www.dekunstvanfranchise.nl. 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). E-mail: esther.brons-stikkelbroeck@dvan.nl Private food law 17 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. E-mail: lbusch@msu.edu Nicole Coutrelis Nicole Coutrelis is a lawyer at the Paris Bar since 1985. Before starting her private practice, she was at the French ‘Office National Interprofessionnel des Céréales’ (Cereals Authority) where she was in charge of the European Affairs (1972-1978). 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 Offices 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. E-mail: n.coutrelis@coutrelis.com 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 18 Private food law 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’. E-mail: t.havinga@jur.ru.nl 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. E-mail: s.henson@ids.ac.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 field 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. E-mail: otto.hospes@wur.nl 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 2007-2009. E-mail: m.p.c.huige@minlnv.nl 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. E-mail: j.humphrey@ids.ac.uk 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 finally 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. E-mail: maria.litjens@wur.nl Private food law 19 About the authors Hanspeter Schmidt Hanspeter Schmidt is the president of a law firm 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 fields, such as trademarks and food processing patents. He is a certified specialist of administrative law. He published of commentaries on EU food law, such as the Regulation (EC) No. 834/2007 on organic food. E-mail: hps@hpslex.de 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). E-mail: irene.scholten@dvan.nl 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 office of law firm 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 firm. 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’. E-mail: fstancke@ostfalia.de and fabian.stancke@lw.com 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