This article is a summary of a presentation given by the esteemed food law professor, Bernd Van Der Meulen, at the 2019 Summer School in Food Regulatory Affairs, held at the University of Copenhagen.
Currently there are many different sources that feed into food law and legislation, ranging from official regulations from governments and governmental bodies all the way to industry groups, authorities and academic research and guidelines. Additionally, somewhere amongst all of this, is private legislation produced by 3rd party bodies such as ISO or BSI.
Is there a place for these standards when we have all the other sources of information? And how do they fit into the grand scheme of things when it comes to EU food law?
Technically, they have no “legal” status and companies do not have to legally comply to them, however many companies choose to adopt them. They have in some cases been used in court decisions as evidence for showing a food companies intention “to do the right thing”.
With governments seemingly leaning towards less and less involvement and responsibility for regulating the food industry and sector, third party regulations are becoming increasingly relied on to regulate the sector. However, there are hazards that must be considered with third party “standards and legislation”, especially for the EU’s third-party countries. Food manufacturers in these regions often view these private standards as a barrier to trade, as they feel they should only have to comply with what is actual law and holds legal status. Many EU companies, however, do rely on these standards and find them useful in understanding the requirements and preferences of both the consumers and the regulatory authorities, with guidance on how to comply with these.
Another concern, as governments become more and more stretched for resources, is that even though these third-party standards are useful for self-regulation within a food business, those behind third-party standards are businesses, and as such, may not have the full industries considerations and views at the heart of the standards they design.
On the other hand, private law does also have some benefits. A sense of empowerment can be achieved for the consumers, with the new opportunities that allow them to amplify their views and opinions on certain topics to a business, if there is not public law in place. An example of this relates to the recent issues consumers have been voicing around palm oil and non-sustainable palm oil in their food products. Consumer groups were able to go down the route of partnering with private law providers in developing a private standard for the use of sustainable palm oil in foods and companies can choose to comply and implement if they wish. This is a positive and valuable reaction and outcome of consumer concerns, without the need for a legally binding regulation or governmental intervention.