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Promoting Educated Consumer Choices. Has EU Food Information Legislation Finally Matured?

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Abstract

Contemporary EU food information legislation combines and balances two main consumer interests, i.e., a consumer right to information and the freedom of choice, into one single protective standard: informed choice. Although the recent legislative measures quite openly establish a link between informed choice and the rather abstract societal norm of “what is good for the consumer,” this does not justify the conclusion that food information legislation has become overly meddlesome in relation to EU consumers and their choice of food. Rather, there has been a gradual maturing of the EU legislator’s perception of its task from the mere provision of food information to ensuring educated consumer choices. This development is a logical and necessary consequence of the growing complexity of food choices.

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Notes

  1. Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, OJ L 404, 30.12.2006, p. 9.

  2. Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC, and Commission Regulation (EC) No 608/2004, OJ L 304, 22.11.2011, p. 18.

  3. See, e.g., Case C-210/96, Gut Springenheide and Tusky v Oberkreisdirektor Steinfurt (Gut Springenheide), paragraph 37.

  4. See on the concept of paternalism: Dworkin (1972). Kleinig (1983). Ogus (2005).

  5. Article 8(1) of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ L 31, 1.2.2002, at p. 1.

  6. Supra note 5

  7. Article 1 GFL

  8. These principles originate in 1985, when the Commission produced its Communication (COM (85) 603) on the completion of the internal market for foodstuffs: Community legislation on foodstuffs. In this Communication, the Commission lays down the framework for consumer protection in EU food law based on the basic assumption that if consumers are offered adequate food information, it would not be necessary to define these elements in law, unless necessary for the protection of their health. See further MacMaoláin (2008). p. 72.

  9. Article 14(1) GFL

  10. Article 17 GFL

  11. Article 19 GFL places on food operators the responsibility to withdraw foods that do not comply with food safety requirements from the market or to recall them from consumers. If food operators do not comply with these obligations, they are liable for any damages in accordance with the provisions of Council Directive 85/374/EEC on the approximation of the laws, regulation, and administrative provisions of the Member States concerning liability for defective products (Article 21 GFL).

  12. Article 2(a) and (b) FIR.

  13. Article 3(1) FIR.

  14. Article 7(1) (a)–(d) specify into detail under what conditions food information is deemed misleading.

  15. Articles 4 and 9–35 FIR.

  16. Articles 36 and 37 FIR.

  17. Article 4(1) FIR.

  18. Consideration 47 of the Preamble to the FIR.

  19. See for an extensive overview of the case law of the CJEU concerning the free movement of goods, i.e., Unberath and Johnston (2007).

  20. For a period of time, consumer protection in the area of food law set “to develop detailed regulations on the composition and manufacture of each foodstuffs”: recipe laws. See MacMaoláin (2008). p. 72.

  21. Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation, and advertising of foodstuffs, OJ L 109, 6.5.2000, p. 29.

  22. Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs, OJ L 276, 6.10.1990, p. 40.

  23. See, in this regard, consideration 12 of the Preamble to the FIR.

  24. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, OJ L 149, 11.6.2005, p. 22.

  25. Regulation (EC) 1830/2003/EC of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC were published in the Official Journal of the European Union.

  26. Annex to Council Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a consumer protection and information policy, Official Journal C 092, 25/04/1975, pp. 1–16.

  27. Misleading advertising was another. In 1979, the Commission produced a first proposal for a directive (OJ C 194, 1 August 1979, p. 3), which resulted in the final adoption, in 1984, of Council Directive No 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations, and administrative provisions of the Member States concerning misleading advertising. Council Directive 84/450/EEC is at the basis of the current framework concerning unfair business-to-consumer commercial practices, to which the FIR is a Lex specialis.

  28. Council Directive 78/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation of foodstuffs for sale to the ultimate consumer, OJ L 33, 08.02.79, p. 1.

  29. Consideration 6 of the Preamble to Council Directive 79/112/EEG.

  30. Consideration 2 of the Preamble to Council Directive 79/112/EEG. See further on this topic: Cheftel (2005). p. 531.

  31. Articles 2 and 3 of Council Directive 79/112/EEG.

  32. Articles 3(1) and 15(1) of Council Directive 79/112/EEG.

  33. Consideration 8 of the Preamble to Council Directive 79/112/EEG.

  34. Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

  35. Ibid, paragraph 8.

  36. Ibid, paragraph 14.

  37. Ibid.

  38. Ibid, paragraph 13.

  39. See, in this sense, the opinion delivered on 16 January 1979 of Mr. Advocate General Capotorti in Cassis de Dijon, p. 673.

  40. Ibid, at p. 9.

  41. Consideration 8 of the Preamble to Directive 2000/13/EC.

  42. Consideration 10 of the Preamble to Directive 2000/13/EC.

  43. Council Directive No 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs, OJ L 276, 6.10.1990, p. 4).

  44. Articles 2 and 11(1) of Council Directive No 90/496

  45. Considerations 4 and 9 of the Preamble to Council Directive No 90/496.

  46. Resolution (90/C 329/01) of 3 December 1990 of the Council and of the Representatives of the Governments of the Member States, meeting with the Council concerning an action programme on nutrition and health, consideration 7.

  47. Council Resolution (2001/C 20/01) of 14 December 2000 on Health and Nutrition, consideration 18, under vii. See further on this topic: Garde (2010). p. 27.

  48. The objectives of the European Union are now described in Article 2 TEU and do no longer contain a reference to the “quality of life.”

  49. In its White Paper of 30 May 2007 on A Strategy for Europe on Nutrition, Overweight and Obesity related health issues, COM(2007) 279 final, at p. 5., the Commission reiterated the importance of nutritional labelling and regulation of the use of nutrition and health claims to better inform consumers.

  50. Proposal of 16 July 2003 for a Regulation of the European Parliament and of the Council on nutrition and health claims made on foods, COM (2003) 424, final.

  51. Considerations 1 and 29 to the Preamble of the Claims Regulation.

  52. See further on this subject: Garde (2010). p. 143.

  53. Consideration 3 of the Preamble to the Claims Regulation.

  54. Consideration 19 of the Preamble to the Claims Regulation.

  55. Consideration 11 of the Preamble to the Claims Regulation.

  56. Consideration 10 of the Preamble to the Claims Regulation.

  57. Article 6 of the Claims Regulation.

  58. Proposal of 30 January 2008 for a Regulation of the European Parliament and of the Council on the provision of food information to consumers, COM (2008) 40 final.

  59. Ibid, at p. 2

  60. In accordance with Article 53(1) FIR, Directive 2000/13 was repealed as from 13 December 2014.

  61. See, in this sense, Consideration 9 of the Preamble to the FIR.

  62. Article 38(1) FIR establishes that “as regards the matters specifically harmonised by this Regulation, Member States may not adopt nor maintain national measures unless authorized by Union law.”

  63. Considerations 34 and 36 of the Preamble to the FIR.

  64. Article 36(2) (a) FIR.

  65. Article 7(2) (b) and (c) FIR.

  66. See, e.g., Case C-210/96, Gut Springenheide, supra note, paragraph 37. Consideration 16 of the Preamble to the Claims Regulation refers explicitly to the applicability of this benchmark, as does Consideration 18 of the Preamble to Directive 2005/29/EC concerning unfair business-to-consumer commercial practices, which, in view of consideration 5 of the Preamble to the FIR, contains the general framework in regard to misleading information.

  67. In addition, the legislator sees room for further improvement of consumer understanding of food information by means of education and information campaigns. See consideration 10 of the Preamble to the FIR.

  68. Consideration 10 of the Preamble to the FIR.

  69. Consideration 41 of the Preamble to the FIR.

  70. Consideration 10 of the Preamble to the FIR.

  71. Consideration 9 of the Preamble to Council Directive No 90/496/EEC.

  72. Consideration 47 of the Preamble to the FIR.

  73. Consideration 10 of the Preamble to the Claims Regulation.

  74. Ibid.

  75. Consideration 41 of the Preamble to the FIR.

  76. Consideration 18 of the Preamble to Directive 29/2005/EC and consideration 16 of the Preamble to the Claims Regulation.

  77. Case C-453/13, Newby Foods v Food Standards Agency, paragraph 65.

  78. Gut Springenheide, supra note.

  79. Article 4 FIR.

  80. Different: Unberath and Johnston (2007). p. 1250.

  81. Article 7 FIR.

  82. According to Article 4(2) FIR, when considering the need for mandatory food information, account shall be taken of a “widespread need on the part of the majority of consumers for certain information to which they attach significant value or of any generally accepted benefits to the consumer.”

  83. The effectiveness of nutrition labelling has, however, been questioned. Recent studies have shown that while consumers generally express that they like and use nutrition labelling in order to choose more healthful options, they appear to pay limited attention to such labels in real life. See, for an overview, Storcksdieck genannt Bonsmann and Wills (2012).

  84. Proposal to the FIR, supra note 58, paragraph 40.

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  1. Department of Food and Resource Economics, University of Copenhagen, Rolighedsvej 25, 1958, Frederiksberg C, Denmark

    Wieke Huizing Edinger

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Edinger, W.H. Promoting Educated Consumer Choices. Has EU Food Information Legislation Finally Matured?. J Consum Policy 39, 9–22 (2016). https://doi.org/10.1007/s10603-015-9307-3

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