The Internet and the Human Right to Food: The European Rapid Alert System for Food and Feed

Abstract

This article examines the way in which the development of information technology has enhanced the protection of the human right to adequate food—in a European context. The European Union's Rapid Alert System for Food and Feed enhances the level of protection offered to consumers in the context of an area of resource-intensive delivery of economic and social rights. The discussion explores the convergence of rights development—the European and global move towards a ‘precautionary’ entitlement to safe food—and the exploitation of technology as an effective means of disseminating crucial information as a way of guaranteeing such a right. In contrast to the sinister tone of much of the discourse relating to information technology and human rights protection, the conclusions of this study sound a more optimistic note for the objectives of the latter.

Notes

Food safety has always been a key area of concern at European Community level. It has, however, certainly gained prominence in recent years as a result of the various food crises of the 1990s. A brief perusal of the EUROPA website (http://europa.eu.int) provides ample evidence of the contemporary significance accorded to food safety policy at supranational level and the ongoing efforts of the EU to achieve and maintain high levels of consumer protection. In relation to the recent general overhaul of EU food safety policy, see, e.g., Commission of the European Communities (CEC), Green Paper on the General Principles of Food Law in the EU. COM (1997) 176 final; CEC, White Paper on Food Safety. COM (1999) 719 final; Regulation 178/2002/EC of the European Parliament and of the Council laying down the general principles of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. [2002] O. J. L31/1

The need to ‘re-establish consumer confidence’ in the European food chain is noted by the European Commission in its White Paper on Food Safety (e.g., p. 7, para. 7). The ‘paramount importance’ of consumer safety and confidence in the food supply is also expressly noted in recital 23 of Regulation 178/2002/EC.

Lord Phillips et al. (2000) The BSE Inquiry Report. Evidence and Supporting Papers on the Inquiry into the Emergence and Identification of Bovine Spongiform Encephalopathy (BSE) and Variant Creutzfeldt-Jakob Disease (vCJD) and the Action Taken in Response to it up to 20 March 1996 (London, The Stationary Office).

The emphasis on consumer rights to safety and choice in the context of the food market is clearly reflected in many of the legislative measures, policy documents and statements emanating from the EU. The European Commission's White Paper on Food Safety (p. 6, para. 1) provides a significant example; here it is recognised that: ‘The European Union's food policy must be built around high food safety standards, which serve to protect, and promote, the health of the consumer.’ This central objective of European food law finds substantive expression in Article 1 of Regulation 178/2002/EC, which states that: ‘This Regulation provides the basis for the assurance of a high level of protection of human health and consumers' interest in relation to food.’

The legal basis for the EU's Rapid Alert System for Food and Feed (RASFF) is provided by Article 50 of Regulation 178/2002/EC.

In fact, the ‘network’ includes European Union, European Free Trade Association (EFTA) and European Economic Area (EEA) member states (EU (2003) Rapid Alert System for Food and Feed (RASFF) Annual Report on the Functioning of the RASFF, 2003, p. 2, available online at: http://europa.eu.int/comm/dgs/health_consumer/index_en.htm).

The EU regulatory framework governing the food chain is extensive and complex. The RASFF represents just one of the many European-level controls put in place to promote the smooth functioning of the internal market in safe, high-quality food products.

The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has interpreted the human right to food as giving rise to two ‘levels’ of food rights. The ‘first level’, or fundamental right to food, imposes a ‘core obligation [upon state authorities] to take the necessary action to mitigate and alleviate hunger … even in times of natural or other disasters’. The broader ‘second level’ right, or the progressive right to adequate food, ‘is realised when every man, woman and child … has physical and economic access at all times to adequate food or means for its procurement. The right to adequate food shall therefore not be interpreted in a narrow or restrictive sense that equates it with a minimum package of calories, proteins and other specific nutrients. The right to adequate food will have to be realised progressively’ (E/C.12/1999/5; CESCR, General Comment 12. The right to adequate food (Art. 11) 12 May 1999. (General Comments), Geneva, 26 April – 15 May 1999, at para 6. The full text of this General Comment is available online at: www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.1999.5, + CESCR + General + comment + 12.En?OpenDocument).

As noted, the ‘right to food’ is generally categorised primarily as an economic right. However, the overlap between this right and fundamental civil and political rights, such as the basic right to life, are well recognised. For a discussion of the interconnected character of human rights in the context of the right to an adequate standard of living, see, e.g., Sadurski (1986) ‘Economic rights and basic needs’, in: C. Sampford & D.G. Galligan (Eds), Law, Rights and the Welfare State (London, Croom Helm), Chapter 3.

BSE-infected meat could be seen to fall into this category of food-related hazards. Another example would be foodstuffs containing Sudan dyes. These red dyes (Sudan I, Sudan II, Sudan III and Sudan IV), which are known to be carcinogenic, have been found in chilli powder, chilli products and curry powder imported from India. Foodstuffs containing Sudan dyes have been the subject of numerous food alerts issued by various countries under the RASFF. Sudan dyes have provided the trigger for a total of 119 notifications in 2003, and a review of the RASFF Weekly Overview Reports reveals that these carcinogens are still being found in chilli products imported from India. The Overview Report for Week 2004/42 noted seven cases. Both EU and Member State authorities have taken action to address this potentially serious food hazard (see Commission Decision 2003/460/EC on emergency measures regarding hot chilli and hot chilli products. [2003] O. J. L154/114; note also, The Food (Hot Chilli and Hot Chilli Products) (Emergency Control) (England) (Amendment) Regulations 2004).

Article 3 of the Universal Declaration of Human Rights 1948 provides that: ‘Everyone has the right to life, liberty and security of the person.’ The text of the Declaration is available on the United Nations website at: www.un.org/overview/rights.html; Article 2 of the European Convention for the Protection of Human Rights and Freedoms 1950 states: ‘Everyone's right to life shall be protected by law.’ ETS No.5. Text available online at: http://conventions.coe.int; Article 6(1) of the International Covenant on Civil and Political Rights 1966 states: ‘Every human being has the inherent right to life. This right shall be protected by law.’ 999 UNTS 171. The text of the Covenant is available online at: http://untreaty.un.org.

The original European Social Charter was agreed in 1961 and entered into force in 1965. Various protocols were added to the original agreement and eventually it was decided to draft a revised version of the entire Charter. This updated version was opened for signature in 1996 and entered into force in 1999. The revised Charter runs alongside the original, which it will, in time, replace. The United Kingdom is a party to the original Social Charter, but has yet to become a signatory to the 1996 Social Charter.

Article 11, European Social Charter 1996.

Charter of Fundamental Rights of the European Union. [2000] O. J. C364/1 (referred to hereafter as the Charter).

Article 1 of the Charter states that: ‘Human dignity is inviolable. It must be respected and protected.’ Article 2(1) states that: ‘Everyone has the right to life.’

Article 38 of the Charter.

For an explanation of how the concept of ‘an adequate standard of living’ is dealt with within human rights law, and how this primarily economic right overlaps with other key rights, see, e.g., A. Eide (2000) ‘Economic and social rights,’ in: J. Symonides (Ed.), Human Rights: Concept and Standards (Hampshire, Ashgate/UNESCO), pp. 128 – 131.

Universal Declaration of Human Rights 1948 (emphasis added).

International Covenant on Economic, Social and Cultural Rights (hereafter referred to as ICESCR in the footnotes) was adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI). It entered into force on 3 January 1976 in accordance with Article 27. The full text of the ICESCR is available via the UN website at: www.unhchr.ch/html/menu3/b/a_cescr.htm.

ICESCR, Part II, Article 2(1).

The CESCR has considered the character and status of the human right to food provided for by Article 11 of the ICESCR in its General Comment 12.

See CESCR, General Comment 12, para 14. The CESCR also notes that, where necessary, state parties are obliged to directly fulfil the basic right to food (see CESCR, General Comment 12, para 15). Where a State fails to fulfil its obligations relating to the basic right to food, a distinction is to be drawn between those that are simply unwilling to do so, and those that are practicably unable to provide for the basic food rights of people within its territory (on this particular point, see CESCR, General Comment 12, para 17).

For an interesting discussion of the meaning of the notion of ‘adequate food’ as an aspect of the broader right to an adequate standard of living, see M. Craven (1995) The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford, Clarendon Press), pp.306 – 309. Here Craven notes the accepted ‘fundamental’ character of the right to be free from hunger and considers the distinction between this and the broader, less well-defined right to adequate food. He looks at how the CESCR has indicated that the term should not be defined by reference to calorific intake, but has nonetheless tended to concentrate ‘rather heavily’ on this aspect. The CESCR has failed to come up with a definition for the term, and identifying a practical and workable definition in the context of food is problematic. However, Craven suggests that perhaps the CESCR expects that states will ‘form their own benchmarks of what amounts to “adequate food"’ (Craven, The ICESCR, p.308).

ICESCR, Part II, Article 2(1).

ICESCR, Part II, Article 2(1).

CESCR, General Comment 12, para 14.

The CESCR notes that similarly to other human rights, the right to food imposes three levels of obligation upon state parties—the obligations to respect, protect and fulfil. Depending upon the specific circumstances, the duty to fulfil may either translate into an obligation to facilitate access to adequate food, or, where necessary, an obligation to provide such access more directly (CESCR, General Comment 12, para 15).

Articles 152 and 153 of the EC Treaty; see also, recital 8 and Article 1, Regulation 178/2002/EC.

Ibid., at para 8.

Ibid., at para 9.

Ibid., In respect of this first core element, the CESCR also notes here that in order to satisfy the requirement of dietary adequacy, state parties ‘may’ have to take ‘measures to maintain, adapt or strengthen dietary diversity and appropriate consumption and feeding patterns’.

References to the EU's ‘farm-to-table’ approach to food policy abound—e.g., ‘The setting up of the independent Authority is to be accompanied by a wide range of other measures to improve and bring coherence to the corpus of legislation covering all aspects of food products from “farm to table”’ (CEC, White Paper on Food Safety, p. 3).

CESCR, General Comment 12, para 10.

CESCR, General Comment 12, para 10.

CESCR, General Comment 12, para 11 (emphasis added). Though not directly relevant to the current discussion, it is worth noting that the CESCR also considers the closely related issues of ‘availability’ and ‘accessibility’ in the context of their consideration of the concept of ‘adequate food’ as well as acknowledging that the notion of sustainability is ‘intrinsically linked to the notion of adequate food or food security’, with food security itself being seen as a long-term concern encompassing the interests of ‘both present and future generations’ (see CESCR, General Comment 12, paras 12, 13 and 7, respectively).

See Article 50(6) of Regulation 178/2002/EC, which states that applicant countries, third countries and international organisations may participate in the RASFF where such participation has been agreed between the party concerned and the European Community. Furthermore, the Commission is obliged to inform a third country of a food/feed related risk (a) if it is aware that the product in question has been exported from the EU to that country, and (b) when a product originating from the third country itself has become the subject of a notification. The aim here is to provide the exporting country with an opportunity to address the problem at source and thus to prevent a repeat occurrence within the EU (EU, Rapid Alert System for Food and Feed (RSAFF) Annual Report on the Functioning of the RASFF, 2003).

See Articles 95(3), 152 and 153 of the EC Treaty.

See Note 36.

An EU-wide Rapid Alert System covering food and industrial products has in fact been in place since 1992, the original system having been established under Article 8 of Directive 92/59/EEC on general product safety. [1992] O. J. L228/24. By the end of the 1990s, however, it had become clear that the existing framework would have to be revised and updated, if the ‘high level’ of consumer protection promised by the EC Treaty was to be a consistently maintainable goal in respect of food-related hazards. Thus, in 2002, a revamped and extended RASFF, covering both food and animal feed products was introduced as part of the EC's general overhaul of food safety policy and the drive towards a more overtly precautionary and coherent approach to food safety, food quality and consumer information (see, generally, Regulation 178/2002/EC).

The total number of information exchanges under the RASFF in 2002 was 3,024. Of the 4,286 exchanges made under the system in 2003, 454 were ‘alert notifications’ and 1,856 were ‘information notifications’ (EU, Rapid Alert System for Food and Feed (RASFF) Annual Report on the Functioning of the RASFF, 2003, p.10).

In 2003, the RASFF dealt with 763 notifications concerning aflatoxins, compared to just 208 in 2002. Pistachio nuts originating from Iran provided the trigger for the majority of these information exchanges. The potential risk to human health presented by aflatoxin contamination led to various protective legislative measures including, e.g., Commission Decision 2003/551/EC of 22 July 2003 amending Decision 97/830/EC and repealing Decision 97/613/EC and imposing special conditions on the import of pistachios and certain products derived from pistachios originating in or consigned from Iran. [2003] O. J. L187/43.

The legislative provisions relating to the current RASFF are set out in Articles 50 to 52 of Regulation 178/2002/EC. The RASFF is supplemented by the legislative provisions governing the implementation of emergency measures and the management of food crises, set out in Articles 53 to 57 of the same Regulation.

Articles 50(1) and 50(2), Regulation 178/2002/EC.

The European Food Safety Authority (EFSA) was established by Regulation (EC) No 178/2002. Its Department of International and Institutional Affairs is the designated ‘contact point’ for the purposes of the RASFF.

The United Kingdom Food Standards Agency was established in 1999 under the Food Standards Act 1999.

As per Article 50(1), Regulation 178/2002/EC.

At the local level, environmental health departments will be responsible for enforcement in the case of food alerts directly concerned with matters of food safety such as contaminated or adulterated food products. Alerts relating more directly to informational issues such as inaccurate labelling will be dealt with primarily by trading standards departments. (Information provided by Adrian Preece of the Food Standards Agency Wales.)

The extensive use of the Internet in the implementation of the RASFF, and its status as the primary communication tool for the purposes of the rapid alert system, was confirmed by David Yard, Head of the Food Incidents Branch, of the United Kingdom Food Standards Agency in a letter dated 5 October 2004 outlining the functioning of the system in Britain. Adrian Preece of the Food Standards Agency Wales also acknowledged the central role played by electronic communication during the course of telephone conversations with the author of this article in October 2004. Both Mr Yard and Mr Preece noted that facsimiles provide a useful backup to Internet-based communications.

As per Article 50(1), Regulation 178/2002/EC.

See Articles 50(2) and 50(3) of Regulation 178/2002/EC. The second paragraph of Article 50(2) also provides that the European Food Safety Authority ‘may supplement the notification [issued by the Commission to all members of the network] with any scientific or technical information, which will facilitate rapid, appropriate risk management action by Member States’ (emphasis added). Thus, when the Commission transmits an alert under the RASFF, that notification may include additional useful information and advice contributed by the EU's key food risk assessment body, thus facilitating a coherent and uniform EU-wide response to any specific food risks arising within the EU.

Article 50(3), Regulation 178/2002/EC. The legislation also demands that notifications must include a ‘detailed explanation of the reasons for the action taken by the competent authority of the Member State in which the notification was issued’ and that notifications are followed up as appropriate with information relating to, e.g., the modification or withdrawal of protective measures (see Article 50(3), sub-para. 2). Where a consignment of food or feed has been rejected by national border controls on the grounds that the product(s) in question present a risk to public health (Article 50(3)(c)), the Commission is required to ‘immediately’ notify all border posts within the EU, as well as inform the country from which the product originated. Furthermore, where a food or feed identified in a notification has been dispatched to a third country, that country will be informed by the Commission of the nature and severity of any risk to health that has been identified (see Article 50(3), Regulation 178/2002/EC).

The explanation of the categorisation of RASFF alerts provided here is drawn from EU, Rapid Alert System For Food and Feed (RASFF) Annual Report on the Functioning of the RASFF, 2003.

The description of the British operation of the RASFF draws heavily on information kindly provided by David Yard and Adrian Preece (see Note 48). Further details regarding the role of the Food Standards Agencies for England, Wales, Scotland and Ireland can be found via links provided on the Food Standard Agency homepage at: www.food.gov.uk/

The Code of Practice governing the United Kingdom's domestic Food Hazard Warning System (FHW) has recently been revised. The revised Code for England, entitled the Food Safety Act 1990: Code of Practice, issued under Section 40 of the Food Safety Act 1990, and the accompanying Food Safety Act 1990: Practice Guide were published in October 2004. At the time of writing, the equivalent guidance for Wales had yet to receive the formal approval of the Welsh Assembly Government. The Code of Practice (Chapter 2.1: Food Alerts, para. 2.1.1) describes a ‘food alert’ as ‘a communication from the Food Standards Agency to a Food Authority concerning a food hazard or other food incident’.

‘A food incident occurs when a Food Authority or the Food Standards Agency becomes aware that food or its labelling (e.g., in relation to the presence of allergens) fails or appears to fail to meet food law requirements. A food incident can be a relatively minor matter or a major food hazard’ (Food Safety Act 1990: Code of Practice, Chapter 1.7: Food Incidents and Hazards, para 1.7.2).

‘A food hazard is a food is a food incident involving a biological, chemical or physical agent in, or condition of, food with the potential to cause an adverse effect on the health or safety of consumers’ (Food Safety Act 1990: Code of Practice, Chapter 1.7: Food Incidents and Hazards, para 1.7.3). ‘Food hazards’ are then categorised as follows: a localised food hazard; a serious localised food hazard; or a non-localised food hazard (for details, see Food Safety Act 1990: Code of Practice, Chapter 1.7: Food Incidents and Hazards, para. 1.7.4).

The revised Code of Practice (Chapter 2.1: Food Alerts, para. 2.1.3) requires that: ‘Food authorities should have facilities to receive food alerts and updates from the Food Standards Agency by an electronic mail system that is acceptable to the Agency.’

Article 50(5), Regulation 178/2002/EC. It is also worth noting that the Regulation provides that, where there is an appropriate agreement in place, applicant and other non-EU countries, and international organisations may be permitted to benefit from participation in the rapid alert system for food and feed (Article 50(6), Regulation 178/2002/EC).

This is in line with the general policy of transparency advocated by both national and supranational authorities.

Articles 50(2), 50(3) and 50(5), Regulation 178/2002/EC.

See Note 48.