I. Introduction
Nutritional quality of food is today regarded as a factor that is as important as food safety, and the two are even considered to be “inextricably linked” in the context of food security.Footnote 1 Nevertheless, the main criticism pertaining to current European Union (EU) food legislation is that safety has been at the centre of modern legislative developments,Footnote 2 while nutritional quality has been more of a “possible by-product of safety and/or quality initiatives”.Footnote 3 After the disastrous outbreaks seen in the 1990s,Footnote 4 it is important and understandable for food safety – namely the avoidance of biological, chemical or physical hazards – to be at the core of legislative developments.Footnote 5 It can also be argued that food quality is not completely ignored, but rather mainly tackled through food information (Food Information to Consumers Regulation; FIC),Footnote 6 which offers and respects dietary choices, and is even used as a policy tool in the prevention of non-communicable diseases (NCDs).Footnote 7 The importance of this tool is justified and enhanced by the fact that the “average consumer” is today considered by the law as “reasonably well-informed and reasonably observant and circumspect”.Footnote 8
Even if the consumer is informed of the composition of a food product, there remains the question of the availability of additive-free, healthy products; how much choice is offered in this regard? This article aims to look into the differences between nutritional quality and safety of food and why health recommendations are steering consumers away from processed foods containing additives. In addition, the article examines the effects of the EU principles of mutual recognition and precaution in the framework of the General Food Law (GFL)Footnote 9 and their effects on the nutritional quality of food. Legislative instruments pertaining to food information for consumers are also considered, since they represent the main tools currently used by the EU to improve the quality of consumers’ food intake. The effects of all of these factors on the resulting quality of food are finally considered in an attempt to assess how much choice consumers really have were they to look for high-quality, additive-free, healthy food.
II. Nutritional quality versus safety
Food quality determines the characteristics that are acceptable to the consumer.Footnote 10 Those include but are not limited to external factors, also known as organoleptic properties (appearance, smell, taste, texture), and internal factors (chemical, physical, biological).Footnote 11 Internal factors of food quality thus encompass ingredient and nutritional quality, but also sanitation requirements and safety measures.
European food legislation offers a system that respects dietary choices, which is mainly done through food labelling (FIC and Health Claims Regulation). However, although ingredients are labelled for the interested consumer, the EU market still offers a plethora of low-quality food, also known as fast, processed, premade or junk food, and this is actually food that is just not healthy. A diet rich in this low-quality food represents the perfect risk factor for the development of NCDs in an otherwise healthy person with no previously known medical conditions.Footnote 12 Moreover, food information is not enough to distinctly shift the European consumer’s food habits and make a difference in the long run,Footnote 13 since consumer awareness and knowledge seem to be major hindering factors,Footnote 14 a fact underlined by the dramatic increase in the consumption of processed food.Footnote 15
1. Food high in fat, salt and/or sugar
The modern family lifestyle and the technological revolution have together created a food group that is low in quality, the former increasing demand for fast, ready-made foods and the latter being able to supply such products in return.Footnote 16 These foods tend to be processed and of poor nutritional value, as they are high in fat, salt and/or sugar (HFSS foods). Although HFSS foods are processed, many are even labelled as ultraprocessed – a term that simply refers to ready-to-eat and microwaveable foods, such as bread, breakfast cereals, instant noodles, chicken or fish nuggets, ready sauces and spreads, chocolate bars and candies, chips and artificially sweetened beverages.Footnote 17 In other words, these are everyday foods. The effect of ultraprocessed foods on human life is quite adverse, and the extent to which they have anchored themselves in the modern diet has become alarming.Footnote 18 Indeed, more than half of the total dietary energy consumed in high-income countries comes from ultraprocessed food.Footnote 19 An example of this dramatic increase can be seen in the case of Spain, where consumption of ultraprocessed food almost tripled between 1990 and 2010.Footnote 20 This is also reflected in ultraprocessed food purchases as a percentage of household purchases in the EU, where Germany is at the top of the list with 46.2% of household purchases consisting of ultraprocessed food, followed by Ireland with 45.9% and Belgium with 44.6%.Footnote 21
A main problem with HFSS foods is that they are high in calories, which not only promotes rapid weight gain, but also increases the risk for developing NCDs, mainly cardiovascular diseases linked to early death, in addition to previously established links with obesity, type I diabetes, high blood pressure and some cancers.Footnote 22
2. Food additives
Other than fat, salt and sugar, additional substances are used in food processing, with the same goal of improving organoleptic properties and lengthening shelf life.Footnote 23 These additives include artificial colours, flavouring agents, non-sugar sweetening agents, enzymes preparations, preservatives, etc.
The EU is commended for banning additives such as potassium bromate and azodicarbonamide (ADA), butylated hydroxyanisole (BHA), butylated hydroxytoluene (BHT), brominated vegetable oil (BVO) and farm animal hormones, which are all legal in the USA.Footnote 24 While the Commission banning these additives might appear to be an admirable act, it is simply the exercise of due diligence owed to the consumer. There are several other authorised additives used by the EU food industry with questionable safety. Brief examples include sodium nitrites,Footnote 25 carrageenanFootnote 26 and glutamic acid – glutamates (E620–625).Footnote 27 There is insufficient evidence to prove the carcinogenic effects of these additives.Footnote 28 Nevertheless, previously conducted studies remain controversial because they present gaps, in the way that they do not study the effects of these additives when mixed with other additives.Footnote 29 Moreover, the acceptable limits set by the European Food Safety Authority (EFSA) do not take into consideration the fact that consumers might eat several food items that contain the same additive when the upper limit applies to a single food item only,Footnote 30 or that consumers also eat other food products that contain different additives, the interactions of which with the first additive are unknown. It thus seems fair to say that not all concerns about these additives’ safety have been properly addressed.
A major example illustrating the fact that while these additives are considered to be safe, this might very well be a wrong assessment, is the example of titanium dioxide (E171). Titanium dioxide is used by the food industry for aesthetic purposes, mainly the whitening and brightening of food products.Footnote 31 It is considered safe by both legislative instruments and the food industry,Footnote 32 although it has been classified as a possible human carcinogen by the United Nation’s (UN) International Agency for Research on Cancer (IARC).Footnote 33 While the European Consumer Organisation (BEUC) has been urging the Commission to apply the precautionary principle due to there being insufficient data regarding its safety,Footnote 34 precaution was never applied. Following the Commission’s request to assess the safety of titanium dioxide, it is only after unsafety was proven that the EFSA released a statement on the matter in May 2021.Footnote 35 This has not, however, resulted in a ban of titanium dioxide, as the Commission has to review the EFSA’s statement and act on it.Footnote 36 Therefore, if an additive is regarded as safe, this can very well be due to a lack of scientific studies and not because it indeed is safe. The food industry is yet to be provided with a long list of additives that it can use in its productions, the consumption of which is nothing short of alarming.
In 1984, Millstone posed a very legitimate question, which unfortunately still applies today more than ever: “Food additives: a technology out of control?”.Footnote 37 Millstone went on to say that “in a year we consume several kilograms of preservatives, colourings and flavourings. Yet we know little about what effects these chemicals may have on us”.Footnote 38 When more than 40% of household food purchases in Germany, Ireland and BelgiumFootnote 39 are of ultraprocessed foods, it is safe to assume that, more than three decades later, the average consumer is consuming more than “several kilograms” of additives per year.
In its proposal for the GFL, the Commission does not consider HFSS foods as unsafe as long as the provided information on a label is in compliance with food information for consumers regulations, namely the FIC and Health Claims Regulation.Footnote 40 The Commission similarly considers that since food information is offered, it is the consumer’s choice and responsibility when “despite such information, the consumer [choses] to ignore such instructions or other information concerning that food or categories of foods”.Footnote 41 Although the Commission is not responsible for the consumer’s food choices, the fact that many food additives have either qualitative or quantitative uncertain safety factors should not be disregarded (ie the additives mentioned above, sugarFootnote 42 or saltFootnote 43 .)
While this article assesses the availability of additive-free foods on the market, the importance of having such a choice lies in both the GFL’s assumption that a food is considered as safe until unsafety is proven and the health implications of this core legislative provision.Footnote 44 In the following section, the application of EU principles in the framework of major legislative instruments is considered.
III. Food quality in EU law
1. Mutual recognition
a. Before mutual recognition: the example of yellow food colouring
In 1962, the Directive on food coloursFootnote 45 was the first directive to be adopted by the Council of Ministers.Footnote 46 In earlier days, the use of poisonous chemicals in food was common, especially in sweets, to make them appealing.Footnote 47 This fact, coupled with the Directive’s objective, is a typical example that underlines the importance of harmonised European legislation. It can even be said that the European food industry was a key player in the creation of the internal market. The Directive allowed for the use of thirty-six food colourings, of which twenty were natural and sixteen were artificial.Footnote 48 However, it had a horizontal application, meaning that it did not specify the foods that could carry such colourings, nor the acceptable quantities.Footnote 49 Those were either specified in vertical directives, applicable to certain foods, or by national regulations. For example, while both quinoline (E104) and tartrazine (E102) – yellow colourings used in desserts – were authorised by the 1962 Directive, Germany allowed quinoline and banned tartrazine, while France did the opposite (prior to Cassis de Dijon).Footnote 50
This is just an example to illustrate the fact that the establishment of the single market did not come without a few challenges, mainly in the form of trade barriers. However, if Germany banned tartrazine and France banned quinoline, a fair assumption would be that this was because the available information at the time must have been a cause for concern, and bans were applied as precautionary measures regarding the preservation of both food quality and consumer health safety. Today, tartrazine and quinoline are both authorised by Regulation (EC) 1333/2008, although the information supplied about both of them in this same Regulation states that they “may have an adverse effect on activity and attention in children”.Footnote 51 More research indicates that although tartrazine causes adverse health effects in rats,Footnote 52 its carcinogenic effects were not proven. The results are inconclusive, however, and the particular carcinogenic factor is still a matter of concern due to the composition of tartrazine.Footnote 53 Nevertheless, tartrazine is today one of the most widely used food, drug and cosmetic dyes.Footnote 54 What role does the single market play in this specific example, which is actually rather a common scenario?
b. Mutual recognition and effects on free choice
In 1979, Cassis de Dijon made history when it was determined that “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”,Footnote 55 thus resulting in the principle of mutual recognition. To underline the importance of the principle, the Commission stated in its 8 November 1985 Communication that “it is neither possible nor desirable to confine in a legislative straitjacket the culinary riches on [twelve] European countries …”.Footnote 56 This statement, which promotes the application of a lowest common denominator, thus promoting the reduction of food quality, was later followed by further clarification from the Commission: this was not a case of applying minimum rules, but rather of applying the necessary rules, just more strictly.Footnote 57 Those were the last days of recipe laws, after the realisation was had that liberation from a strict manufacturing structure could only arise from legislative harmonisation. However, it was not long until previously silenced doubts started concretising; many questions emerged regarding the origin of the spreading low-quality foods present on the European market, and on how to solve this issue.
Following the example of yellow food colourings, while prior to 1979 the German consumer was spared the adverse effects of quinoline and the French consumer was spared those of tartrazine, after 1979 both were spoilt for choice, along with the rest of the EU. The reason for this allowance lies in the aftermath of Cassis de Dijon. Consequently, national rules surrounding food regulation, from composition to packaging and even portion sizes, can amount to quantitative restriction measures that are in breach of Article 34 of the Treaty on the Functioning of the European Union (TFEU).Footnote 58
In the same November 1985 Communication, the Commission had also justified the outcome of Cassis de Dijon by saying that “the tastes and preferences of consumers should not be a matter for regulation”.Footnote 59 Although consumer preferences in one Member State cannot impose regulations, the single market still offers access to a variety of products to all EU consumers. This broad palette supposedly offers both freedom and abundance of choice through the principle of mutual recognition.
It was only a few months before the November 1985 Communication when Millstone had argued that consumers were only being given the impression that product choices are increasing.Footnote 60 In reality, the majority of these choices actually stemmed from trivial product differentiations that abused innovative technologies and thus mostly involved food additives. Choices had become so broad and numerous that it ironically became almost impossible to find an additive-free food.Footnote 61 For this reason, Millstone suggested thirty-six years ago “that there is a need for substantial changes in the operation and regulation of food markets”.Footnote 62 Nothing was done about this until the bovine spongiform encephalopathy (BSE) crisis spiralled out of control in the 1990s.Footnote 63 In the aftermath of the BSE crisis, the Commission founded its regulatory reform on food safety matters and turned its attention away from other matters, especially food composition related to the nutritional quality of food.Footnote 64 The regulatory reform that has targeted the food industry does not solve the problem of not being able to find additive-free foods, as it is mostly based on the elimination of microbiological hazards. Food safety as perceived and implemented by the Commission is not adapted for “dealing with the biggest of all food concerns – poor nutrition”.Footnote 65
Another principle of EU law is considered in the framework of the GFL in an attempt to put the stance of the EU regarding food additives and their safety in the spotlight, as well as what precautionary measures are applied for the provision of the high nutritional value of food.
2. The precautionary principle in the GFL
The precautionary principle is an instrument that allows decision-makers to take measures in the condition of scientific uncertainty or “without having to wait until the existence and gravity of those risks become fully apparent”.Footnote 66 In EU food law, the concept of precaution is viewed as a regulatory continuum or a general policy guidance.Footnote 67 The precautionary principle thus appears ideal for the avoidance of shady ingredients in food, and by extension as a tool to fight NCDs linked to unhealthy food consumption.
Earlier applications of the precautionary principle were derived from the TFEU, which loosely mentions the principle, without determining any conditions or consequences of its application.Footnote 68 Today, the GFL is the foundation of food and feed law, and its aim is to ensure the safety of all food products in the EU.Footnote 69 As a result, when it comes to precaution, the importance of the GFL lies in the fact that it marks the first time that the principle is officially defined in legislation.Footnote 70 The GFL’s approach to precaution is, however, not without flaws, with criticism targeting different provisions and how their application can narrow the scope of the precautionary principle and its related application in the field of food safety.Footnote 71
a. Article 7
Article 7 introduces and defines the precautionary principle. According to Article 7(1), the precautionary principle applies in case of scientific uncertainty regarding the effects a product might have on human health, and it is translated into a risk management approach that aims to avoid detrimental effects on health. Article 7(2), however, stresses the importance of avoiding trade restrictions, thus cementing the single market priorities that are established by mutual recognition.
b. Article 14
Although Article 14(1) GFL does not directly refer to the precautionary principle, it still puts the safety of food at the core of food law: “Food shall not be placed on the market if it is unsafe”.Footnote 72 Or rather, as Edinger remarks, it focuses on “ruling out ‘unsafety’ rather than establishing safety”.Footnote 73 The formulation of Article 14(1) suggests that any food can be placed on the market as long as it follows regulations, and in the case where “the possibility of harmful effects on health is identified but scientific uncertainty persists”,Footnote 74 the precautionary principle can be applied.
Article 14(2) GFL goes on to explain that food is unsafe if it is “(a) injurious to health; (b) unfit for human consumption”.
Article 14(3)(b) GFL states that in determining whether food is unsafe, regard shall be given “to the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods”.
Article 14(4) GFL explains the cases in which food is injurious to health, and that “regards shall be had:
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a. not only to the probable immediate and/or short-term and/or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;
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b. to the probable cumulative toxic effects;
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c. to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers”.
Garde argues that the requirements set by Article 14 for the determination of whether food is injurious or unfit for consumption are cumulative rather than alternative. Namely, a food needs to be both injurious to health and unfit for human consumption in order to be deemed unsafe and removed from the market.Footnote 75 In other words, whereas HFSS foods are recognised to cause obesity, diabetes, cardiovascular disease and cancer, and are thus injurious to the health of a consumer in the long term (as per Article 14(4)(a)), these are foods that are still fit for human consumption (as per Article 14(3)).Footnote 76 They are simply considered as unhealthy, and not unsafe, although their consumption increases the risk for disease, and legally they have their place on the market. Similarly, since the safety of many authorised food additives has not been confirmed, thus resulting in unknown and potentially harmful health effects, these also have their place on the market. Reference is again made to the example of titanium dioxide, which was considered as safe for years, until the Commission was pushed into instigating further studies, still without applying precaution in the meantime.
To summarise main GFL provisions that affect the application of the precautionary principle: unsafety should be proven before a food or ingredient is retrieved from the market, rather than proving that the food or ingredient is safe before it is placed on the market. While the former allows market access to a food product that is injurious to health but fit for human consumption, the latter is but a nuance, the application of which would provide better human health protection. While Article 14(1) gives Article 7(1) a very important role, which is to remove unsafe foods from the market, Articles 14(3) and 14(4) greatly narrow the scope of application of Article 7(1). This statement is reflected in the case of Red Bull,Footnote 77 where the precautionary principle was not applied when scientific evidence was insufficient to prove unsafety. The GFL does not really provide proper support to a uniform application of the precautionary principle. Since the Commission considers that choosing the quality and composition of the foods they want to eat is a consumer’s responsibility,Footnote 78 the food information provided to consumers is considered next.
3. Food information
Food information plays a big role in the prevention of NCDs, in such a way that enables the consumer to make healthier choices regarding the composition of the food they consume.Footnote 79 The application of this tool is mainly done in the framework of the FIC and the Health Claims Regulation. These two regulations justify and enhance the importance of this tool by considering the “average consumer” as a rational player in the socioeconomic scene who is “reasonably well-informed and reasonably observant and circumspect”.Footnote 80 Although the Commission is criticised for this definition,Footnote 81 there have, however, been efforts aimed at helping consumers make healthier choices, specifically front-of-pack labelling.
a. Quick and efficient information: front-of-pack labelling
Food information has so far shown general positive changes, the success of which is attributed to mandatory declarations and lists of ingredients,Footnote 82 which are imposed by the FIC. These are referred to as back-of-pack labelling. Recently, front-of-pack labelling has gained more popularity in an attempt to simplify food information and make it accessible and comprehensible to all consumers. Although not mandatory,Footnote 83 front-of-pack labelling represents an additional source of information that can be introduced by Member States.Footnote 84 Those that have already implemented front-of-pack labelling guidelines and regulations have reported that such labelling is specifically effective at enabling consumers from lower education and socioeconomic backgrounds to choose healthier foods.Footnote 85 However, the practice is still limited, as very few Member States have so far developed specific food information policies. Although voluntary compliance with front-of-pack labelling has been reported, this remains a suggestion that has not yet been officially adopted either at Union or at national levels. This optional status can result in an uneven development of national policies,Footnote 86 and in turn lead to the uneven development of schemes used across the EU, which is confusing to the consumer. There are indeed currently six public front-of-pack schemes in the EU (Keyhole logo, Nutri-Score, Finnish Heart Symbol, Little Heart logo, Healthy Living logo and Traffic Light scheme). A seventh one, the NutrInform Battery, is currently being developed in Italy and has not been implemented yet. There are also some private schemes (Reference Intakes Label or Healthy Choice logo).Footnote 87
Although a general score regarding the healthfulness of a product has its advantages, this kind of food information focuses on macronutrients, thus remaining unhelpful to the consumer who wants to avoid additives. In this regard, the Green Deal also focuses on food information in an attempt to make it even more informative and to trigger healthier production.
b. Food information in the framework of the Green Deal
In spite of criticism pertaining to the inefficiency of sole interventions at the consumer’s level, food information has nevertheless recently taken on much importance in the fight against NCDs. This initiative is emphasised in the Commission’s latest approach to a healthier EU, which is the Farm to Fork strategy as part of the Green Deal,Footnote 88 a policy that holds as a major purpose the provision of safe, healthy and nutritious food.Footnote 89 The Commission states that calling for change at the consumer’s level, specifically improvements in dietary intake, represents a main aspect of the transition to healthier consumption.Footnote 90 As part of its food information plan, the strategy recognises the benefits of front-of-pack labelling, as well as the shortcomings of its non-harmonised status. In this framework, it aims to develop harmonised mandatory front-of-pack labelling policiesFootnote 91 that would reshape the whole structure of this approach and give it more influence. The strategy similarly aims to focus on the sustainability of food labelling (eg nutrient profiles), as well as responsible marketing.Footnote 92
While the Farm to Fork Strategy’s objective is long overdue, it presents a main shortcoming, which is that it primarily focuses on improving food intake, but not on directly improving food production. Production is expected to witness indirect changes that will be brought about by product reformulations, as a result of manufacturers trying to escape a “negative” or “unhealthy” image that would be imposed by mandatory labelling policies.Footnote 93 This is, however, insufficient to significantly improve the quality of food that is on the market.
Before the Farm to Fork Strategy was even designed, the fight against NCDs through food information regulations had already been criticised for being irrelevant without the development of better-quality food production regulations.Footnote 94 This is particularly highlighted by the absence of secondary legislation and recommendations of suitable harmonisation rules that promote the production of higher-quality foods.Footnote 95 While the law considers the average consumer as capable of making decent choices when properly informed, the fact remains that food information and the knowledge it brings are insufficient to distinctly shift the European consumer’s food habits and to make a difference in the long run.Footnote 96 Although food information is a major part of the fight against NCDs, it only tackles the issue of the low quality of food at the end of the food chain by aiming to skew the consumer’s behaviour. However, this does not solve the problem of low quality, as the food information policy loses a major part of its effectiveness when dissociated from the quality factor, which should rather be targeted at the production level. In this framework, the change that can be brought about by the Farm to Fork Strategy’s primary focus on food information is called into question, referring back to the original query of how much choice the consumer has when trying to find healthy and additive-free food, even when all information is provided to them through food information policies. Even then, is the totality of food information really provided, or is the FIC lacking?
c. Incomplete food information: the example of trans fat
The EU’s new trans fat regulationFootnote 97 imposes on food manufacturers a total trans fat content in products intended for the end consumer that does not exceed 2 g per 100 g of fat.Footnote 98 In addition to this, food products that are not intended for the final consumer, but rather are supplied from one food business to another, must declare their trans fat content if it exceeds that same limit.Footnote 99 Although the FIC imposes the mention of the total amount of fat in a product in its nutrition declaration,Footnote 100 it does not specifically mention a trans fat provision. However, when drafted, it requested a report on both the trans fat content of food and on the overall diet of the EU population in an attempt to properly draw up an intervention based on the results of this report.Footnote 101 The Commission’s intervention aims to “enable consumers to make healthier food and overall dietary choices or [to] promote the provision of healthier food options to consumers, including, among others, the provision of information on trans fats to consumers or restrictions on their use”.Footnote 102 Although the trans fat regulation tackles the latter statement by limiting the total content of trans fat in food, it does not, however, guarantee information to the consumer, and consequently does not enable them to make healthier dietary choices.
The Commission’s approach to the trans fat problem is incomplete, especially when a brief recent history of the case is considered. When Denmark imposed the same trans fat limit in food products in 2003,Footnote 103 the Commission’s response what to bring legal charges against the State, on the grounds that this policy constitutes a quantitative restriction to free movement.Footnote 104 Although the Commission eventually dropped the charges,Footnote 105 and other Member states followed the Danish example by introducing the same limit to their respective national policies (eg Switzerland in 2008, Austria in 2009, Iceland in 2011, Hungary in 2014 and Norway in 2014),Footnote 106 it is only in 2019 that the policy was introduced at the Union level. This highlights a slow response in an important case pertaining to the general nutritional quality of EU products, although the negative health effects of trans fat have been widely acknowledged for many years nowFootnote 107 and the benefits of trans fat regulations have been recognised.Footnote 108 The case begs the question of why precaution was not applied while awaiting report findings and why, even after the trans fat regulation has been introduced, the consumer is still not offered the choice to know how much of it is present in the food they eat. Consumers’ perspectives and opinions of safe and healthy food are thus considered in the next section in an attempt to assess the differences in perception of the two concepts between consumers and the Commission.
IV. Food quality: consumers’ perspective
1. Consumers’ perception of safe food
While the right (not choice) of having microbiologically safe food is offered by the GFL, the choice of eating wholesome, healthy, non-HFSS, additive-free food has, however, become quite limited. While the Commission considers that the GFL has brought safety to food, consumers are not of the same opinion. A qualitative study on European perceptions of food safetyFootnote 109 shows that consumers rather associate safety with “the natural, the organic, the local, the pure, the home-made, the fresh and the traditional”.Footnote 110 In contrast, consumers associate unsafe food with “the chemical and synthetic, the processed and ready-made, and the foreign and imported”. The study thus clearly points to a dichotomy between the Commission’s definition of food safety and consumers’ own definition of it. One notable comment that underlines this different perspective on safety comes from a participant who, when asked to define food safety, said: “Are we going to define safe in terms of genetically safe or bacterially safe or cholesterol safe or are we going to come to any definition?”.Footnote 111
This one consumer’s witty reply does not, however, reflect on the behaviour of the average consumer, for even if the consumer is aware of the different levels of food safety, this does not mean that they have access to all such levels. Although the average consumer is neither ignorant nor passive, their choices are limited by their cultural, social and material circumstances,Footnote 112 all of which deny them absolute freedom of choice. In addition to this, while the Commission assumes the average consumer to be well informed and circumspect,Footnote 113 it has nonetheless been established that nutrition literacy has a big role to play in the food choices that consumers make, and that people with lower nutrition literacy are much less likely to look at and base their choices on labels.Footnote 114 In this regard, if the Commission’s definition of safety differs from both consumers’ perceptions of it and their ability to make healthy choices, then freedom of choice is suddenly compromised. Saying that the Commission holds responsibility for providing food that is safe in all of the meanings of the word “safe”, as dissected by the study’s participant, is, at least at this point, futile. Nevertheless, since “bacterially safe” has been widely tackled by the GFL, maybe it is time to move down the checklist and work on achieving a different kind of safe!
2. Consumers’ actual choices
EU institutions are accused of applying single market principles too expansively, while narrowing down cases of applicable exceptions to these principles.Footnote 115 These controversial interpretations of fundamental EU principles are often perceived as failures to respect and comply with legitimate exceptions to free movement. This leads to a disregard of consumers’ choices, in such a way that food products of lesser quality are imposed on the market, consisting of unfair competition that takes the place of better-quality foods and limits consumer choices.Footnote 116 At the same time, Member States who want to set higher quality standards and promote the production of healthier foods for their populace are suddenly powerless to do so.Footnote 117 The consumer suddenly has very limited choices when it comes to better-quality food. Two illustrative examples are used in the following: the case of organic food and labelling of food additives.
a. The example of organic food
Regulation (EC) No 834/2007 aims, through the regulation of organic production, at “producing products of high quality”.Footnote 118 Today’s norms are that consumers have pesticides and antibiotics – within acceptable limits of course – in their food. No published long-term human cohort studies have focused on their association with NCDs as a whole, and neither have comparative intervention studies focused on organic and conventional diets.Footnote 119 The main reason for this is that human studies, especially long-term ones focusing on such things as dietary intake, are simply very difficult to undertake. However, a few human cohort studies positively associate organic food consumption with a reduced obesity risk.Footnote 120 In the case where further quantitative organic consumption studies confirm these findings, they will change the image of how organic agriculture is perceived today; from elitist practices to guidelines for higher-quality food production and, consequently, better human health. It thus seems important at this point to at least halt legislative instruments that provide the industry with tools that enable it to produce more by using more chemicals. Moreover, if the Commission considers it ethical to use a product of questionable safety until it is proven unsafe as per the main provisions of the GFL,Footnote 121 then why would it conversely not promote a potentially healthier agriculture until scientific evidence confirms it?
It should be noted that even the much-valued organic production, which claims to be targeting a health-conscious consumer (one that is willing to pay more for a healthier product), is not necessarily without health hazards. Additives, processing aids, flavourings and salt are authorised to be used in organic production.Footnote 122 The Commission excuses this non-organic-like allowance by saying that “without having recourse to [these additives], it would be impossible to produce or preserve the food or to fulfil given dietary requirements provided for on the basis of the Community legislation”.Footnote 123 The Commission justifies this allowance by then saying that these products and substances “are to be found in nature and may have undergone only mechanical, physical, biological, enzymatic or microbial processes”. Immediately after this, it goes on to vaguely state: “except where such products and substances from such sources are not available in sufficient quantities or qualities on the market”.Footnote 124 It is not clear, in the case of the non-availability of these additives in sufficient quantities or qualities, what the acceptable alternative is; is the Commission talking about a non-natural, synthetic form of such additives that can replace the natural ones fiercely advocated for at the beginning of this same article? One cannot help but wonder: is this a double-sided loophole that benefits a mass-producing, additive-addicted industry while simultaneously exonerating the Commission from exposing the health-conscious consumer to what they are paying extra to avoid?
b. The example of food additives
Banning all additives that “probably” have a detrimental effect for precautionary measures is naturally unfeasible when they are deeply anchored in the food industry. The labelling argument that provides information to the consumer is a weak one when many ingredients are exempted from appearing on such labels.Footnote 125 This includes but is not limited to ingredients that have been separated during manufacturing and later reintroduced in same or lesser amounts,Footnote 126 or processing aids that do not have any active function in the final product.Footnote 127 The Food Additives Directive does not apply to these ingredients either,Footnote 128 giving industry operators freedom to use them as they see fit and to serve their own purposes, and thus creating an even wider range of potentially suspicious activities that will go under the radar. In this regard, the application of the World Health Organization’s recommendation that “the use of food additives is only justified when their use has a technological need, does not mislead consumers, and serves a well-defined technological function, such as to preserve the nutritional quality of the food or enhance the stability of the food”Footnote 129 is questionable.
The Commission wants to provide information, but contradictorily it states that adding all of these ingredients to the label will overwhelm the consumer. The statement has a certain truthfulness to it; even if all additives were labelled, were the average consumer willing to apply precautionary measures on themselves, would they know what to avoid when the Food Categorisation System (FCS) is 281 pages long? And how much choice will they have should they seek additive-free products? Even before current nutrition information policies have been put into place, the BEUC claimed that “Reading nutrition labels should not be a full-time job. At-a-glance information helps consumers decrypt labels”.Footnote 130 While the BUEC meant to stress the importance of properly constructed labels, how can the ultra-complex world of food additives be simplified in such a way for the consumer to understand that their authorisation status is not always a truthful reflection of their safety (see the example of titanium dioxide)?
V. Conclusion
Fundamental EU principles – mutual recognition and precaution – have been at the core of accusations regarding the declining quality of food. This is achieved through a very strict protocol that demands strong scientific evidence proving safety before precaution is applied, as well as observing the lowest applicable quality standards at the EU level, thus offering a wide leniency range to food manufacturers and, by extent, less healthy and lower-quality foods to consumers. There are, however, additional factors that tamper with the concept of free choice, which mainly stem from a food law that rather intensely focuses on securing food safety, while somehow disregarding quality. In addition to this, major efforts have been concentrated on strengthening the food information offered to consumers in an attempt to affect consumers’ food choices and eating habits by simplifying this information and making it accessible, while changing the actual composition of food has been relegated to the back seat. As a result, the healthy food choices left on the market are not as healthy as they claim to be, and they are also not accessible to all consumers. While the current legislative structure aims to offer more choices to the European consumer, the fact remains that this is only an illusion that covers the gradual disappearance of wholesome foods from the market. In parallel, the remaining group of wholesome foods is gradually becoming exclusive to a certain economic class of consumers that can and will pay more for these healthier products, at a time when nutritional quality of food has entered the definition of food security that should be accessible to all.Footnote 131 Even then, regulations promoting a lack of transparency as to the production of these foods, including their unlabelled ingredients, is questionable.
