The general objectives of food law are set out in Article 5 of Regulation (EC) 178/2002:
Food law shall pursue one or more of the general objectives of a high level of protection of human life and health and the protection of consumers' interests, including fair practices in food trade, taking account of, where appropriate, the protection of animal health and welfare, plant health and the environment.
These objectives are pursued, whenever appropriate, on a scientific basis led, in the main, by the European Food Safety Authority.
2 Risk Analysis
‘Risk’ is defined as “a function of the probability of an adverse health effect and the severity of that effect, consequential to a hazard”1 and ‘risk analysis’ is “a process consisting of three interconnected components: risk assessment, risk management and risk communication”.2
The components are further defined:
‘risk assessment’ means a scientifically based process consisting of four steps: hazard identification, hazard characterisation, exposure assessment and risk characterisation;
‘risk management’ means the process, distinct from risk assessment, of weighing policy alternatives in consultation with interested parties, considering risk assessment and other legitimate factors, and, if need be, selecting appropriate prevention and control options;
‘risk communication’ means the interactive exchange of information and opinions throughout the risk analysis process as regards hazards and risks, risk-related factors and risk perceptions, among risk assessors, risk managers, consumers, feed and food businesses, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management decisions;
‘hazard’ means a biological, chemical or physical agent in, or condition of, food or feed with the potential to cause an adverse health effect.3
Article 6 requires that all food law is to be based on risk analysis “except where this is not appropriate to the circumstances or the nature of the measure”.4 Risk assessment must be based on the independent, objective and transparent assessment of the available scientific evidence. Both risk assessment and risk management must take into account the views of the European Food Safety Authority, other relevant factors and, where appropriate, apply the precautionary principle.
It is recognised that scientific risk assessment alone cannot, in some cases, provide all the information on which a risk management decision should be based, and that other factors relevant to the matter under consideration should legitimately be taken into account including societal, economic, traditional, ethical and environmental factors and the feasibility of controls.
3 The Precautionary Principle
Article 191 of the Treaty on the Functioning of the European Union contains the only explicit reference to the precautionary principle at the EU level which occurs in connection with environment policy and the protection of the environment.
Under Article 7(1) the precautionary principle applies:
In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.
In February 2000 the Commission issued a Communication on the precautionary principle which sets out “the manner in which the Commission applies or intends to apply the precautionary principle when faced with taking decisions relating to the containment of risk”.6 The Commission takes the view that “the precautionary principle is a general one which should in particular be taken into consideration in the fields of environmental protection and human, animal and plant health”.7
The Communication sets out the factors which may trigger the application of the precautionary principle and makes it clear that any measures taken in the application of the principle are subject to the general principles of risk management:
Proportionality - measures must not be disproportionate to the desired level of protection and must not aim at zero risk.
Non-discrimination - comparable situations should not be treated differently and that different situations should not be treated in the same way, unless there are objective grounds for doing so.
Consistency - measures should be consistent with the measures already adopted in similar circumstances or using similar approaches.
Examination of the benefits and costs of action or lack of action. This examination should include an economic cost/benefit analysis when this is appropriate and feasible. However, other analysis methods, such as those concerning efficacy and the socio-economic impact of the various options, may also be relevant. Besides the decision maker may, in certain circumstances, by guided by non-economic considerations such as the protection of health.
Examination of scientific developments. The measures should be maintained as long as the scientific data are inadequate, imprecise or inconclusive and as long as the risk is considered too high to be imposed on society.8
4 The Protection of Consumer Interests
In addition to addressing all aspects of food safety, Regulation (EC) 178/2002 covers wider interests of consumer protection. The pursuit of the protection of consumers’ interests established under Articles 1 and 5 is included under Article 8 where, in particular, food law shall aim at the prevention of:
Fraudulent or deceptive practices.
The adulteration of food.
Any other practices which may mislead the consumer.
1 Regulation (EC) 178/2002, Article 3(9)
2 Ibid. Article 3(10)
3 Ibid. Article 3(11) to 3 (14)
4 Ibid. Article 6(1)
6 European Commission, Communication from the Commission on the precautionary principle COM (2000) 1, p8
7 Ibid. p9
8 Ibid. p17