Irish Commissioner David Byrne unveiled a major initiative on 8 November 2000 aimed at regaining the confidence of European consumers in the food they eat, writes Raymond O'Rourke.
Following numerous recent food scares, consumers are rightly sceptical about the messages given to them by politicians and legislators about food safety. The Commissioner's proposal consists of a new draft EU Regulation which will lay down the general principles of food law; establish a European Food Authority and re-vamp the Rapid Alert System which comes into play during food emergencies, like the dioxin contamination scare in Belgium. Proposal welcomed Those sections of the proposal concerned with establishing general principles of food law are welcome and long overdue. For the first time there will be a central European law enshrining the responsibilities and obligations of all those in the food chain to produce safe food and provide adequate traceability systems at all stages of food production. European food law must aim to achieve a high level of consumer health protection and in order to facilitate that the Commission advocates the establishment of an independent European Food Authority (EFA) which will provide the EU with the best possible scientific advice on food policy matters. Will the new EFA have adequate powers? For some time in Brussels, different Commissioners including David Byrne have spoken about their desire to establish an independent body covering food matters. The European Food Authority proposed is certainly not what one might understand as being a food agency on the lines of the Food Safety Authority of Ireland or the UK Food Standards Agency. The EFA envisaged, despite the best efforts of the Commissioner, is merely an advisory scientific body rather than an Authority having the necessary competencies and decision-making powers to allay consumer fears over food safety. EFA structure The existing EU Scientific Committees covering food matters will be placed within the ambit of the new Authority. The Committee structure will be re-arranged to consist of a co-ordinating Scientific Committee and eight Scientific Panels composed of independent scientific experts covering specific areas such as food additives, GM foods and contaminants in the food chain. The Commission proposal fails to grapple with the furore over the French food agency's advice to their government to maintain a ban on British beef in contravention of the existing EU scientific advice. There is provision in the proposal that in situations of conflicting scientific advice between the EFA and national food agencies that both parties should co-operate in an effort to clarify the contentious scientific issues. Similar co-operation was instigated in the French case to no avail. Since the Commission does not consider it appropriate to empower the European Food Authority to act as the penultimate body of scientific advice in the European Union, we can expect further long drawn-out court cases in the European Court of Justice (ECJ) on such matters like the pending French-UK case. Legal cases take nearly two years to obtain final judgement in the ECJ during which time the confidence of consumers and industry in the whole food regulatory process is undermined. This is certainly not the outcome Commissioner Byrne envisages happening in the future, but as it occurred only this year there is no certainty that in the coming years another Member State will not feel as strongly as France on a food safety matter. Rapid Alert System The European Food Authority is to be given the responsibility for the workings of the EU's Rapid Alert System. It will co-ordinate the dissemination of data and information between the Commission and Member States in food emergencies. The Commission promises to draw up in conjunction with the Authority and the Member States a general plan for crisis management in food emergencies. In serious cases it advocates the establishment of a "crisis unit" in the Commission to deal with such situations. The Authority will be involved in such a "crisis unit"and according to the proposal "will provide scientific and technical assistance, if necessary". It is obvious from the proposal as I have underlined, that the Commission does not envisage the Authority taking any decisions or even proposing different policy options in relation to food emergencies, whether under the Rapid Alert System or in a 'crisis unit'. The Authority is merely to be a conduit of data and information proving once again the advisory role envisaged by the Commission for the Authority. Communication powers - too limited? The weakest element of the proposal unfortunately is the question of communicating the scientific advice and risk assessment compiled by the Authority. Lord Philip's recent BSE Inquiry report in Britain which has important lessons for civil servants and legislators in the EU, said that flawed communication was fundamental to the whole BSE crisis. The report states that UK Ministers were too preoccupied with preventing a panic reaction to BSE that they delayed communicating the risks concerning BSE despite warnings from scientists for a number of years. The lessons do not seem to be have been learnt in Brussels as they have been in the UK and Ireland. The proposal fails to include a provision in an earlier draft that specified that the Director of the EFA would report to the European Parliament at regular intervals. The Commission concerned about losing any of its powers specifies that it alone will remain responsible for the communication of risk management decisions. As a caveat it will liaise with the EFA to ensure the coherence of the global message. The real evidence for the Commission's intention though is that the communication budget is the smallest component (2.5 per cent) of the overall budget for the Authority. Funding The Commission gives details of the staffing and resources that need to be provided to the European Food Authority to ensure its success. Within 3 years it is expected to have about 250 staff and a budget of Euros 40 million, funded completely from the EU budget. By way of comparison this year the UK Food Standards Agency has a budget of Euros 136.5 million and the European Medicines Agency (EMEA) in London has a budget of Euros 50 million. It is of some concern that the new Authority will end-up with approximately the same budget as the EMEA and much less than one of the major National Food Agencies i.e. the UK Food Standards Agency, taking into account that it will have a far wider brief than the EMEA. The budgetary figures certainly point to the fact that the European Food Authority's role will be limited in scope. The proposal to establish a European Food Authority will be discussed at the Nice Summit in December 2000 on the initiative of both the French and German governments. One of the main talking points will be whether the European Council can agree upon a suitable location for the EFA. The likely locations are Helsinki (Finland), Parma (Italy), Barcelona (Spain) or Lyons (France). Advisory not Independent This draft EU Regulation must now go through the legislative process in order to be adopted under the co-decision procedure by the Council and European Parliament. The proposal therefore could be drastically amended, but it does seem that the Council and Parliament are favourable towards establishing an advisory rather than a truly independent food authority. One of the main advantages of the US Food & Drug Administration is that both consumers and industry have confidence in its deliberations. Although Commissioner Byrne envisages a different role for the EFA from the US Food & Drug Administration, if this new European Food Authority is to be truly successful in the area of food safety it needs to have the full confidence of both consumers and the food industry. Only time will tell whether Commissioner Byrne's initiative is sufficient to tackle the thorny question of food safety.
Raymond O' Rourke is a food law specialist at Mason Hayes & Curran, Solicitors in Dublin. Mason Hayes & Curran, Solicitors is a full service business law firm with a large client base in the food, hotel, retail and catering sectors. The firm established a Food Law Unit in 1999 under the management of Raymond O' Rourke, the author of "European Food Law" .