Soft law, responsibility and the biopolitics of front-of-pack food labels

ABSTRACT

Front-of-pack (FOP) food labels are increasingly used by government and industry to provide nutrition information to consumers for the promotion of healthier eating habits. However, quantitative and qualitative research into the effectiveness of FOP food labelling schemes is in its infancy and, at this stage at least, is largely unconvincing. Using Australia’s health star rating system as an exemplar, in this article we provide a novel perspective on FOP food labels and in so doing make two (related) arguments about FOP food labels and in many ways about food label schemes more broadly. The first argument is that FOP food labels enliven a combination of hard and soft law. The second argument, informed by Foucault’s notion of governmentality, is that FOP food labelling functions as a technology of the self. Drawing these two arguments together, we conclude that FOP food labels rely on a distorted rationality, because (i) the main actors in the process – food companies – are placed in a position of self-regulatory actors, fundamentally oriented to an economic rather than biopolitical agenda; and (ii) the biopolitics of population health through FOP food labels assumes particular kinds of rational consumers, when the reality of social life is far more complex.

KEYWORDS:

• Law
• regulation
• Foucault
• FOP food labels
• governmentality
• biopolitics

Acknowledgements

The authors would like to thank the anonymous reviewers of this paper and its various iterations. We are grateful for the critique, input and suggestions.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Brendon Murphy holds double Honours degrees from the University of Newcastle, graduating in Social Work (B.S.W.) in 1998 and Law (LL.B.) in 2004. His academic interests include controlled operations, criminalisation, legal theory and legal history. He is keenly interested in the intersections of law and social theory, with particular interest in risk, Foucault and Agamben. Brendon’s recent publications include ‘Assemblage, Counter-Law and The Legal Architecture of Australian Covert Surveillance’, in National Security, Surveillance and Terror: Canada and Australia in Comparative Perspective (Palgrave Macmillan, 2017), with J. Anderson and ‘Deceptive Apparatus: Foucauldian Perspectives on Law, Authorised Crime and the Rationalities of Undercover Investigation’ (2016) 25 Griffith Law Review 223.

Jay Sanderson holds degrees in law, science and psychology. He researches and publishes in the areas of intellectual property law and agri-food. He has published with national and international publishers on food security, health, plant variety rights, genetically engineered animals and legal research. His latest publications are Plants, People and Practices: The Nature and History of the UPOV Convention (Cambridge University Press, 2017) and ‘Not Free to Roam: Misleading Food Credence Claims, the ACCC and the Need for Corporate Social Responsibility’ (2017) 43(1) Monash University Law Review (2017), with S. Hobill.

Notes

1 For a history and overview of food labels, see Albert (2014).

2 In addition to the Food Standards Code, all representations made about food are subject to consumer laws which prohibit false, misleading or deceptive representations.

3 Foucault (2007), p 24.

4 Foucault (2007), p 52; Taylor (2014); Turner (1982).

5 Foucault (2014). See also The Hermeneutics of the Subject (Foucault, 2005)

6 Scrinis and Parker (2016).

7 Scrinis and Parker (2016), pp 245–246.

8 Hutt and Hutt (1984).

9 In United States v. Ninety-Five Barrels Alleged Apple Cider Vinegar (1924) 265 U.S. 438 (a case in which the label at issue indicated that the vinegar was made from ‘selected’ apples. Douglas Packing Company, the manufacturer, admitted to dehydrating fresh apples and then re-hydrating the apples with pure water to produce vinegar. For instance, the court found that ‘made from selected apples’ misled the reader into thinking that the apples were fresh instead of dried. Equivalent provisions were introduced in Australia in Victoria and New South Wales at this time: see Pure Food Act 1908 (NSW) and Pure Food Act 1905 (Vic).

10 MacMaoláin (2015), pp 167–206.

11 Hieke and Taylor (2012); Nestle and Ludwig (2010).

12 Wartella et al (2010); Feunekes et al (2008).

13 Nash (2014).

14 IOM (2010).

15 Nash (2015).

16 IOM (2010). See Appendix 1 for a list of some of the FOP food labels used throughout the world.

17 MacMaoláin (2015).

18 Sylvetsky and Dietz (2014); Temple and Fraser (2014); Nocella and Kennedy (2012).

19 IOM (2012), p 35.

20 Businesses comply with regulation etc. for numerous reasons. See, for example, Parker and Nielsen (2011).

21 Temple and Fraser (2013); Cowburn and Stockley (2005).

22 See Australia New Zealand Food Standards Code – Standard 1.1.1 – Structure of the Code and general provisions.

23 The scheme was implemented from June 2014 on a voluntary basis, and a formal review will be conducted in 2019: Department of Health, Commonwealth of Australia (2017a). And, in 2017, there was a two-year interim review of progress: Health Star Advisory Committee (2017).

24 Department of Health, Commonwealth of Australia (2017a), references omitted.

25 Department of Health, Commonwealth of Australia (2017b).

26 Department of Health, Commonwealth of Australia (2017b).

27 Health Star Advisory Committee (2017).

28 See, for example, Guide to Creating a Front of Pack (FoP) Nutrition Label for Pre-Packed Products Sold Through Retail Outlets in The Department of Health (U.K.), the Food Standards Agency (U.K.), and devolved administrations in Scotland, Northern Ireland and Wales in collaboration with the British Retail Consortium. UK Department of Health (2013); UK Department of Health, Front of Pack Nutrition Labelling Guidance (2013).

29 Kahneman (2011).

30 Kahneman (2011), p 13.

31 Kahneman (2011), p 79.

32 Grunert and Wills (2007).

33 Gillespie (2016).

34 As noted earlier, there was an interim progress review of Australia’s health star scheme in 2017, and a formal review will be held in 2019.

35 The FDA in the U.S. is currently reviewing FOP food labelling schemes.

36 Panjwani and Caraher (2014).

37 Gillespie (2016).

38 Campos et al (2011).

39 Hersey et al (2013).

40 Also see: Hamlin et al (2015); Volkova and Mhurchu (2015).

41 Hamlin et al (2015).

42 Hamlin et al (2015), p 2013.

43 Leek et al (2015).

44 See, for example, Wood and Tenbensel (2017); Parker and De Costa (2015); Scrinis and Parker (2016).

45 Scrinis and Parker (2016).

46 Scrinis and Parker (2016), p 245.

47 Scrinis and Parker (2016), p 246.

48 On 31 October 2017, the French government signed a decree for the adoption of a voluntary ‘Nutri-Score’ FOP scheme. The ‘Nutri-Score’ label is colour coded (dark green to dark orange) and associated with the letters A–E; where food products with an ‘A’ are ‘best nutritional quality’ and food products with an ‘E’ are ‘poorer nutritional quality’. Foods labelled ‘B’ to ‘D’ are somewhere in between.

49 Deleuze (1988), p 27.

50 Carolan (2011).

51 In environmental law, for example, the United Nations Declaration on Environment and Development 1992, and the ‘precautionary principle’ are examples of soft law.

52 Scrinis and Parker (2016).

53 Frieberg (2010), pp 186–187. See also Australian Law Reform Commission (2002); Creyke and McMillan (2008).

54 See Australia New Zealand Food Standards Code – Standard 1.1.1 – Structure of the Code and general provisions.

55 Rose (1999), pp 24–28.

56 Miller and Rose (2008), pp 114–141. See also Miller and Rose (1997).

57 Miller and Rose (2008), p 120.

58 Foucault (2007); Foucault (2008); Foucault (2003).

59 Burchell (1993).

60 Dean (2010); Dean (1996).

61 Miller and Rose (2008); Miller and Rose (1990).

62 O’Malley (2004); O’Malley (1999).

63 Rose (2000); Rose (1999); Rose (1996); Rose (1993). See also, Burchell et al (1991); Dean and Hindess (1998); Rose et al (2006); Rose and Valverde (1998), p 7.

64 Foucault (2007), p 144.

65 For detailed analysis on the uses of technology see, Behrent (2013).

66 Foucault (1988), p 16.

67 Foucault (1988), p 18.

68 Foucault (2007), p 16.

69 Foucault (1976); Foucault (1988), p 139.

70 See, for example, Lang and Heasman (2015), pp 58–95; Newton et al (2015).

71 Nash (2015).

72 Ferreira (2015), p 116.

73 Australian Government Department of Health (2015); (2013).

74 UK Department of Health (2013).

75 Barry (2014), quoted in Nash (2014).

76 Nash (2015).

77 Lawrence and Pollard (2015).

78 CHOICE (2016).

79 CHOICE (2016). On 5 October 2016, Nestlé was awarded a ‘Shonky’ award by CHOICE: see https://www.choice.com.au/shonky-awards/hall-of-shame/shonkys-2016/nestle-milo.

80 Lawrence and Pollard (2015).

81 Lawrence and Pollard (2015).

82 AusVeg (2014).

83 NHMRC and Department of Health and Aging (2013).