EU Law Blog

The Guardian’s story on the UK media regulator’s (Office of Communications, commonly known as Ofcom) proposals about restricting the advertising of food to kids is here. The full report is available here. Here is an excerpt from the proposals:

The aim of the revised advertising standards would be to reduce the level of hildren’s emotional engagement with food and drink advertisements. In summary,
• food and drink advertisements must avoid anything likely to encourage poor nutritional habits or an unhealthy lifestyle in children;
• advertisements for food and drink must not advise or ask children to buy, or ask their parents to buy, the products. There must be no appearance of encouraging children to pester others to buy the products on their behalf;
• promotional offers (including collectables and giveaways) in food and drink advertisements must not be targeted at children under 10;
• food and drink advertisements must not encourage children to eat or drink the product only to obtain a promotional offer;
• celebrities must not be used in food and drink advertisements whose content is targeted directly at children under 10. This would prevent advertisers from drawing on the authority and trust that children might vest in these characters;
• licensed characters must not be used in food and drink advertisements whose content is targeted directly at children under 10. This would prevent advertisers from using licensed characters (e.g. film or cartoon characters) that might make it difficult for younger children to distinguish between programmes and advertising;
• advertisers would remain free to use brand characters (that is those solely associated with a particular brand) on the grounds that they do not carry the same authority as licensed characters;
• nutrition claims must be supported by sound scientific evidence, and must not give a misleading impression of the health benefits of the product as a whole;
• no nutritional or health claims may be targeted at pre-school children (under 5 years); and
• advertisements must not condone or encourage excessive consumption of any food or drink.
These provisions would apply also to sponsor credits. Government sponsored or endorsed healthy-eating campaigns would not be exempted from these rules.

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The EU’s standing committee on the food chain and animal health has decided that the ban on exports of beef from the UK to other Member States should be ended. The Commission’s Press Release states:

Under today’s agreement to lift the embargo, the UK will be allowed to resume exports of all live animals born after 1 August 1996. This is the date when the EU meat-and-bonemeal feed ban entered into effect and, under EU legislation, no cattle born before this date are allowed enter the food chain under any circumstances. UK meat and meat products produced after 15 June 2005 (linked to the date of the favourable FVO inspection) will also be allowed to be traded freely. The UK will have to adjust its legislation for beef-on-the-bone, and reduce its current age limit of 30 months for the removal of the vertebral column to 24 months. This will bring it in line with the 24 month rule applied by all other Member States (see IP/05/1223), and set the UK on equal footing in terms of trade.

Next steps
The decision to lift the UK embargo will now be sent to the European Parliament, which has a right of scrutiny during one month. The legal texts related to lifting the embargo will then be formally adopted by the Commission and published in the Official Journal, after which they will immediately enter into force (which normally takes an additional two weeks).

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I did not notice until today that some members of the UK Parliament have proposed a Bill to disapply the food supplements directive and regulations in the UK (the Food Supplements (European Communities Act 1972 Disapplication) Bill. Clause 1 of the Bill provides that the 2002 Directive and any judgment of the ECJ relating to it shall have no effect in the UK. The Bill goes on to state in clause 3(3) (amending the Food Safety Act 1990):

(1) The appropriate authority shall make regulations—
(a) prohibiting the sale of any food supplement in the manufacture of which a vitamin or mineral has been used unless that vitamin or mineral—
(i) is authorised for use in the manufacture of food supplements, and
(ii) is in a form which is so authorised and meets such purity criteria as shall be specified; and
(b) making such other provision relating to food supplements as it considers appropriate.
(2) Before making regulations under subsection (1) the appropriate authority shall consult—
(a) such persons or bodies as appear to it to be representative of the interests of complementary medicine, and
(b) such other persons or bodies as it considers appropriate.

Private Members’ Bills are rarely enacted in the UK. If the Bill were enacted would it be valid? Should it be valid?

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France did not immediately comply with the ECJ’s decision in the BSE case we are reading now. The Commission proposed going back to the ECJ to ask it to fine France for non-compliance with the decision but later decided to withdraw its application for a fine to be imposed after France withdrew the ban in 2002. But, while France was busy keeping British beef out, its own cattle were infected with BSE and some reports suggest the French government seriously underestimated how serious the problem was.

More recently a lot of attention has been paid to TSEs (transmissible spongiform encephalopathies) generally: deer and goats and sheep suffere from diseases similar to BSE or even from BSE itself. The UK Government’s specialist committee which focuses spongiform encephalopathy suggests that there is a lot of uncertainty about the public health aspects of BSE.

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We’re beginning to think about issues involving the regulation of food in the EU (this is a very complex area and we won’t have time to learn all the details but Professor Diamond teaches a comparative food law course for anyone who wants to pursue these issues further in future).

The two examples of issues the materials address so far are associated with food borne diseases and the safety of food ingredients.

This week we are also reminded about the controversies over genetically modified food as the US (with Argentina and Canada) has been challenging EU rules on GM food before a WTO dispute tribunal and press reports have announced that the “EU was wrong in preventing the use of new modified varieties of corn, soybeans and cotton between 1998 and 2004 on its market” because the decision was not supported by scientific evidence. The text of the decision does not seem to be publicly available yet. But the idea that a WTO panel has stated that the EU’s 1998 moratorium on GM food, and rules introduced by a number of the Member States independently violated trade rules is interesting on a number of levels.

The EU has challenged Member State rules in the past on the basis that they are not supported by science. The EU is now characterised as acting in a protectionist manner as it has in the past characterised actions of the Member States.

The case also illustrates a contrast (which has long been apparent) between the EU’s precautionary approach to health issues and the US tendency to want to encourage innovation, intervening if it subsequently becomes apparent that there may be health issues.

For many in the EU GM foods involve environmental issues as much as (if not more than) health issues and it is not clear to what extent the Panel focused on these issues. If GM crops are not attractive to insects then birds which feed on insects may find it harder to find food…..

Does it make sense to have trade rules which produce a result whereby Monsanto decides (not intentionally and thoughtfully but as a by-product of product development decsions made for other reasons) how much ecological diversity we have on the planet?

Update: this story suggests that the panel did not get into questions of whether the EU’s rules were substantively justified but rather whether the delays produced by the moratorium were “undue delay” and therefore in breach of the rules.

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