FOOD LABELLING REQUIREMENTS IN EUROPEAN UNION LAW. C.M.O. MacMaolâin - PDF

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FOOD LABELLING REQUIREMENTS IN EUROPEAN UNION LAW C.M.O. MacMaolâin I hereby certify that this material, which I now submit for assessment on the programme of study leading to the award of PhD is entirely

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FOOD LABELLING REQUIREMENTS IN EUROPEAN UNION LAW C.M.O. MacMaolâin I hereby certify that this material, which I now submit for assessment on the programme of study leading to the award of PhD is entirely my own work and has not been taken from the work of others save and to the extent that such work has been cited and acknowledged within the text of my work. Signed : UJUbiM k u n M ojl '^ Q g XQ, id No.:? Date: f y / j j l ACKNOWLEDGEMENTS There are many people without whose support and assistance the completion of this study would have been made far more difficult and far less enjoyable I will begin by expressing my sincerest gratitude to my mother and father who have continually encouraged me, both financially and otherwise, throughout my thirdlevel education Fr Kevin McMullan, Fr Brendan McMullan, Gaye and Noel Johnston and various other relatives have also aided me in this regard over the past number of years I must also express my appreciation to my colleagues in Dublin City University, Mr Adam McAuley and Dr Ubaldus devries, who have acted as constant mentors and advisors over the past years They never miss an opportunity to offer their assistance on all matters I also thank the library staff of Dublin City University, University College Dublin and The Institute for Advanced Legal Studies in London for their services On the academic front I will conclude by thanking my supervisor Dr David Tomkin His exceptional dedication, generosity and good humour have constantly extended far beyond the duty of an academic supervisor Finally, I would like to thank Siofra Her level of support and encouragement have never waned to even the slightest degree from being complete She is a wonderful friend and partner 111 A ' ABSTRACT This study, the first of its kind, essays a detailed survey of the Irish law on food labelling and its related literature The preponderance of Irish law on food labelling may be ascribed to Ireland s membership of the European Union The thesis commences by describing, analysing and evaluating the legislative methods employed by the European Union The thesis finds that the European Union proceeds in diverse ways to achieve what is assumed to be a single end instead of adopting any one method whereby each Member State simultaneously changes its own law to achieve harmony The thesis shows, by taking specific examples such as honey, chocolate and genetically modified foodstuffs, that throughout the European Union, identical food products are marketed in different ways and with different labelling requirements, and the same product, such as yoghurt, may require to be differently labelled, depending on the national law applicable The thesis then compares and contrasts the evolution and implementation of food labelling laws in Australia and New Zealand on the one hand, and in the United States of America on the other The comparison between the legislative methods in these different federations and jurisdictions highlights the shortcomings inherent m the legislative machinery contemplated by the Treaty of Rome The thesis concludes by offering several specific recommendations In particular it demonstrates how, by altering the legislative medium from directives to regulations, many of the difficulties in European Union regulation of food labelling could be avoided The thesis concludes by raising two wider or more general questions concerning how and to what extent diverse economic, and above all cultural interests are necessarily well served by the implementation of clear, simple and simultaneously effective laws, and how in general harmonisation of food labelling law should be best achieved IV TABLE OF CONTENTS Declaration u Acknowledgements 111 Abstract Table of Contents List of Abbreviations List of Cases List of European Union Treaties, Directives, Regulations and Decisions, Constitutions, Statutes, Statutory Instruments and Conventions Bibliography and Other Works Consulted iv v ix xn xvi xxiv Chapter One Aims and Structure of the Thesis 1 1 Introduction Subject of the thesis Thesis structure Individual chapter conclusions Hypothesis 12 PART A Chapter Two Review of the Literature 2 1 Introduction The effect of directives in the individual Member States The harmonisation of law The free movement of goods The sociology of food labelling Food labelling Food naming Labelling food technology 63 2 9 Improving European Union legislation 2 10 Policy neutral law Chapter Three The Regulation of Food in Ireland, the United Kingdom and Australia 3 1 Introduction European Union legislation Direct effect and direct applicability Transposition of legislation into domestic law Smgle European Act National food authorities Australian food regulation United States food regulation Conclusions 118 Chapter Four The Free Movement of Goods 4 1 Introduction Article 36 derogation Directive 70/ Mutual recognition principle Labelling as an obstacle to the free movement of foodstuffs Influence of the European Court of Justice Consequences for food regulation Conclusion 153 Chapter Five European Union Food Labelling Policy 5 1 Introduction Labelling Amendments to the framework directive Nutritional labelling Food labelling policy Conclusions 187 VI PART B Chapter Six Food Names 6 1 Introduction Legal names The European Court of Justice and non-legal food names Quick-frozen foods Designations of origin and indications of provenance Conclusions 238 Chapter Seven Ingredients 7 1 Introduction Exemptions from the list of ingredients Additives as ingredients Ingredients and the free movement of goods Quantitative ingredient declarations Ingredient purity Conclusions 270 Chapter Eight Net Quantity 8 1 Introduction Quantity labelling requirements Conclusions 287 PART C Chapter Nine Genetically Modified Foods 9 1 Introduction Role of the European Union Early domestic regulation European Union regulation 293 Vll V 9 5 Genetically Modified Organism Regulations, Novel foods and novel food ingredients Amending legislation Conclusions 318 Chapter Ten Organic Foods 10 1 Introduction Regulating legislation Labelling genetically modified as organic The technology conflict Conclusions 340 Chapter Eleven Summary of the Study 11 1 Introduction Elements of the food label Format of the legislation Commission Green Paper Commission White Paper Developing technology Conclusion 356 Appendix I, 359 Appendix II 360 Vili LIST OE ABBREVIATIONS AJ Comp L ANZFA BSE CAP CECLD CJD CMLR CMLRev COM ECJ ECOSOC ECR ECSC EC Treaty EEA EEC EFTA ELRev EMU EPA American Journal of Comparative Law Australia New Zealand Food Authority Bovme Spongiform Encephalopathy Common Agricultural Policy Current European Community Legal Developments Series Creutzfeldt Jacobs Disease Common Market Law Reports Common Market Law Review Commission Communication European Court of Justice Economic and Social Committee European Court Reports European Coal and Steel Community European Community Treaty European Economic Area European Economic Community European Free Trade Association European Law Review Economic and Monetary Union Environmental Protection Agency IX EU FSAI FVO GM GMM GMO HACCP ICLQ ICG IFA IHF ILRM IR JCMS KCAL KG KJ LMBG LMKV LQR MEP MG MLR European Union Food Safety Authority of Ireland Food and Veterinary Office Genetically Modified Genetically Modified Micro-organism Genetically Modified Organism Hazard Analysis Critical Control Point International and Comparative Law Quarterly Inter-Governmental Conference Irish Farmers Association Irish Heart F oundation Irish Law Reports Monthly Irish Reports Juris-Classeur Penodique (La Semaine Juridique) Kilocalories Kilograms Kilojoules Lebensmittel-und Bedarfsgegenstaendegesetz Lebensmittelkennzeichnungsverobnung Law Quarterly Review Member of the European Parliament Milligrams Modem Law Review MP OJ PDO PGI QUID RDA SEA SI TEU UEFA VAT YBEL Member of Parliament Official Journal of the European Communities Protected Designation of Origin Protected Geographical Indication Quantitative Ingredient Declaration Recommended Daily Allowance Single European Act Statutory Instrument Treaty on European Union Union des Associations Europeennes de Football Value Added Tax Yearbook of European Law XI LIST OF CASES (European Court of Justice) Commission v Italy [1961] ECR 317 Van Gend en Loos v Nederlandse Belastmgensadmmistratie [1963] ECR 1 Variola v Amministrazione delle Finanze [1973] ECR 981 Procureur du Roi v B & G Dassonville [1974] ECR 837 Van Duyn v Home Secretary [1974] ECR 1337 Rewe-Zentralfmanz v Landwirtschafitskammer [1975] ECR 843 Commission v Nederlandse [1978] ECR 863 Rewe-Zentral AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 Pubblico Ministero v Ratti [1979] ECR 1629 Commission v Germany [1979] ECR 2555 Union Laitiere Normande v French Dairy Farmers Limited [1979] ECR 2663 R v Henn & Darby [1979] ECR 3795 Calpak SpA and Società Emiliana Lavorazione Frutta SpA v Commission [1980] ECR 1949 Criminal Proceedings against Adnaan Fietje [1980] ECR 3839 Officier van Justitie v Koninklijke Kaasfabriek Eyssen BV [1981] ECR 409 Criminal proceedings against Fabnek voor Hoogwaardige Voedingsprodukten Kelderman BV [1981] ECR 527 Commission v Ireland [1981] ECR 1625 Criminal proceedings against Frans-Nederlandse Maatschappy voor Biologische Producten BV [1981] ECR 3277 Commission v Italy [1982] ECR 2187 xn Commission v Belgium [1983] ECR 531 SA Delhaize Frères Le Lion & others v Belgium [1983] ECR 2973 Duphar BV & others v Netherlands [1984] ECR 523 Campus Oil v Minister for Industry and Energy [1984] ECR 2727 Criminal proceedings against Albert Heijn [1984] ECR 3263 Th Kohl KG v Ringelhan & Rennett SA & Ringelhan Einrichtungs GmbH [1984] ECR 3651 Association des centres distributeurs Edouard Leclerc & others v SARL Au ble vert & others [1985] ECR 1 Veremging Slachtpluimvee-Export e V v Rewe-Zentral-Aktiengesellschaft [1985] ECR 1157 Cinetheque v FNCF [1985] ECR 2605 Criminal Proceedings against Miro BV [1985] ECR 3731 Criminal proceedings against Leon Motte [1985] ECR 3887 Mmistere Public v Xavier Mirepoix [1986] ECR 1067 Criminal proceedings against Claude Muller & others [1986] ECR 1511 Dnancourt v Cognet [1986] ECR 3231 Criminal proceedings against Arthur Mathot [1987] ECR 809 Commission v France [1988] ECR 793 Proceedings for compulsory reconstruction against Smanor SA [1988] ECR 4489 Mmistere Public v Deserbais [1988] ECR 4907 Torfaen Borough Council v B & Q pic [1989] ECR 3851 Grimaldi v Fonds des Maladies Professionelles [1989] ECR 4407 State (Italy) v Nespoli & Cnppa, Re Low-Fat Cheese Commission v Italy [1990] ECR I 3647 XII! Criminal Proceedings against Jean-Claude Bellon [1990] ECRI 4863 Cargill v Commission [1991] ECR 2987 European Parliament v Council of the European Communities [1991] ECR 4529 Francovich & Bomfaci v Italy [1991] ECR I 5357 Commission of the European Communities v Italian Republic [1992] ECR Commission v Hellenic Republic [1992] ECR Commission v French Republic [1992] ECR I 4719 Exportur SA v LOR SA and Confiserie du tech SA [1992] ECR I 5529 Stoke-on-Trent CC v B & Q pic [1992] ECR I 6457 Criminal proceedings against Giorgio Dommgo Banchero [1993] ECR Criminal proceedings against Cooperatieve Zuivehndustne Twee Provincien WA [1993] ECR I 6045 Criminal proceedings against Keck & Mithouard [1993] ECR I 6097 Hunermund v Landesaqpothekerkammer [1993] ECR I 6787 Tankstation t Heustke vof & JBE Boermans [1994] ECR SpA v Sindaco del Commune di Capena [1994] ECR Criminal proceedings against J J J Van der Veldt [1994] ECR I 3537 Pfanm Werke Otto Eckart KG v Landeshauptstadt München [1994] ECR I 4605 Lucien-Ortscheit v Eunm-Pharm Arzneimittel GmbH [1994] ECR I 5243 Société d importation Edouard Leclerc-Siplec v TF1 Publicité SA & M6 Publicité SA [1995] ECR I 179 European Parliament v Commission of the European Communities [1995] ECR I 2019 Piageme and Others v BVBA Peeters [1995] ECR Commission v Germany [1995] ECR I 3599 Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman [1995] EC R14921 Commission v Germany [1996] ECR I 2423 Criminal proceedings against Jacqueline Brandsma [1996] ECR I 3159 Commission v Luxembourg [1996] ECR I 5143 Tommaso Morellato v Umta samtara locale (USL) n 11 di Pordenone [1997] ECR I 1431 Canadane Cheese Trading and Other v Hellenic Republic [1997] ECR I 4681 Criminal proceedings against Hermann Josef Goerres [1998] ECR I 4431 Denmark, Germany and France v Commission, Unreported, European Court of Justice, 16 March 1999, Joined cases 289/96, 293/96 and 299/96 Verbraucherschutzverein ev v Sektkellerei G C Kessler GmbH and c o, Unreported, European Court of Justice, 28 January 1999, Case 303/97 (Irish) Browne v An Bord Pleanala [1989] ILRM 865 XV LIST OF EUROPEAN UNION TREATIES. DIRECTIVES. REGULATIONS AND DECISIONS. CONSTITUTIONS. STATUTES AND STATUTORY INSTRUMENTS AND CONVENTIONS EU Treaties European Coal and Steel Community Treaty, Pans, 1951 European Economic Community Treaty, Rome, 1957 Merger Treaty, 1965 Single European Act, 1986 Treaty on European Union, Maastricht, 1992 EU Directives 64/54/EEC on the approximation of the laws of the Member States concerning the preservatives authorised for use m foodstuffs intended for human consumption 70/50/EEC on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty 71/316/EEC on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control 71/347/EEC on the approximation of the laws of the Member States relating to the measuring of the standard mass per storage volume of gram 71/3 54/EEC on the approximation of the laws of the Member States relating to units of measurement 73/173/EEC on the approximation of the Member States laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous preparations (solvents) 73/241/EEC on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption 74/409/EEC on the harmonisation of the laws of the Member States relating to honey XVI 75/106/EEC on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids 76/211/EEC on the approximation of the laws of the Member States relating to the making-up by weight or by volume of certain prepackaged products 76/770/EEC amending Directive 71/354 on the approximation of the laws of the Member States relating to units of measurement 76/895/EEC relating to the fixing of maximum levels for pesticide residues m and on fruit and vegetables 77/94/EEC on the approximation of the laws of the Member States relating to foodstuffs for particular nutritional uses 77/728/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of paints, varnishes, printing inks, adhesives and other similar products 78/891/EEC adapting to technical progress the Annexes to Council Directives 75/106 and 76/211 on pre-packaging 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer 80/232/EEC on the approximation of the laws of the Member States relating to the ranges of nominal quantities and nominal capacities permitted for certain prepackaged products 80/428/EEC amending Annex II to Council Directive 76/895 relating to the fixing of maximum levels for pesticide residues in and on fruit and vegetables 85/7/EEC amending a first series of directives on the approximation of the laws of the Member States in the foodstuffs sector, as regards the involvement of the Standing Committee for Foodstuffs 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products 86/197/EEC amending Directive 79/112 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer X V ll 86/362/EEC on the fixing of maximum levels for pesticide residues in and on cereals 86/363/EEC on the fixing of the maximum levels for pesticide residues m and on foodstuffs of animal origin 88/344/EEC on the approximation of the laws of the Member States on extraction solvents used in the production of foodstuffs and food ingredients 88/388/EEC on the approximation of the laws of the Member States relating to flavourings for use in foodstuffs and to source materials for their production 89/107/EEC on the approximation of the laws of the Member States concerning food additives authorised for use m foodstuffs intended for human consumption 89/108/EEC on the approximation of the laws of the Member States relating to quick-frozen foodstuffs for human consumption 89/395/EEC amending Directive 79/112 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer 89/396/EEC on indications or marks identifying the lot to which a foodstuff belongs 89/398/EEC on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses 89/622/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products 90/219/EEC on the contained use of genetically modified micro-organisms 90/220/EEC on the deliberate release into the environment of genetically modified organisms 90/496/EEC on nutrition labelling for foodstuffs 91/72/EEC amending Council Directive 79/112 in respect of the designation of flavourings in the list of ingredients on the labels of foodstuffs 91/680/EEC supplementing the common system of value added tax with a view to the abolition of fiscal frontiers 92/2/EEC laying down the sampling procedure and the Community method of analysis for the official control of the temperatures of quick-frozen foods intended for human consumption XVlll 92/41/EEC amending Directive 89/622 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products 93/43/EEC on the hygiene of foodstuffs 93/102/EC amending Directive 79/112 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer 94/15/EC adapting to technical progress for the first time Directive 90/220 on the deliberate release into the environment of genetically modified organisms 94/34/EC amending Directive 89/107 on the approximation of the laws of the Member States concerning food additives authorised for use in foodstuffs intended for human consumption 94/36/EC on colours for use in foodstuffs 95/2/EC on food additives other than colours and sweeteners 95/35/EC amending Directive 91/414 concerning the placing of plant protection products on the market 97/4/EC amending Directive 79/112 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs 97/35/EC adapting to technical progress for the second time Directive 90/220 on the deliberate release into the environment of genetically modified organisms EU Regulations 3954/87 laying down maximum permitted levels of radioactive contamination of foodstuffs and of feedingstuffs following a nuclear accident or any other case of radiological emergency 944/89 laying down maximum permitted levels of radioactive contamination in minor foodstuffs following a nuclear accident or any other case of radiological emergency 2092/91 on organic production of agricultural products and indications referring thereto on a
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