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    Enforcing compliance with food regulation: Modalities in the relationship between public

    enforcement agencies and private parties

    Tetty Havinga and Frans van Waarden

    Draft paper prepared for the ECPR General Conference, Science Po, Bordeaux 4-7 September

    2013

    Panel Public and Private Food Governance: Politics of Labelling and Food Certification

    Standards in the section Food Governance.

    Dr. Tetty Havinga Institute for the Sociology of Law, Radboud University Nijmegen PO Box 9049, NL 6500 KK Nijmegen, Netherlands T.Havinga@jur.ru.nl, T +31-24-3615915

    Prof. Frans van Waarden University College, Utrecht University F.vanWaarden@uu.nl

    mailto:T.Havinga@jur.ru.nl

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    Enforcing compliance with food regulation Modalities in the relationship between public enforcement agencies and private parties

    Tetty Havinga and Frans van Waarden

    Abstract

    The past decades have shown two important transitions in food governance in Europe. First, the

    increased role of private actors in global food safety regulation and the development of retail

    driven private food safety regulation from the 1990s onwards. Second, the increased role of the

    European Union and transnational governmental organisations. These transitions pose

    challenges for national food safety authorities. In the Netherlands, the public food authority is

    also confronted with limited resources available for enforcement. Food governance is

    characterized by multiple regulatory arrangements involving multiple public and private actors

    at multiple levels. The past decade we observe new emerging relationships between public

    enforcement authorities and private parties. In this paper we will discuss different modalities of

    cooperation and collaboration between public food authorities and private parties such as food

    firms, certification and auditing bodies and industry associations. We will analyse various forms

    of collaboration of the Netherlands Food and Consumer Product Safety Authority (NVWA) with

    food businesses and certification industry. This includes public recognition of private norms and

    control systems, inclusion of public prescriptions in private food schemes and controls, and

    agreements between the public authority and private firms or sectors of industry regulating

    reciprocal obligations with respect to compliance and controlling compliance.

    1. Globalisation, food scandals and developments in food regulation

    In 2013 we were startled by the news that horsemeat was being sold as beef in meat products

    like sausages and lasagna. Other recent food scandals involved eggs that were inaccurately

    claimed to be organically produced and frozen fish and seafood that were made heavier by

    adding water. Some revelations are unfounded, such as the claim that Spanish firms had used

    the meat of abandoned cats and dogs in the production of animal feed and meatball. More

    serious, however, are food safety incidents where human health is at risk. Well-known incidents

    in recent decades include the BSE crisis, the EHEC bacteria, melamine in Chinese milk and

    several contaminations with dioxin and aflatoxin. Media reports on these incidents result in

    consumer concern about adulteration, food safety and the credibility of both the regulatory

    regime and food business operators.

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    Food adulteration which can sometimes create human health risks is an age-old phenomenon.

    The Romans suffered from water added to wine and the Bavarians from water added to their

    beer. The Dutch added water to milk and cheese, and margarine to more expensive butter. The

    temptation to add cheap ingredients to more expensive products and to profit from the

    adulteration is an age old impulse. And time and again, creative ways to cheat the consumer

    have been discovered, with the potential to create not just larger profit margins, but also

    greater human health risks.

    In response to these adulteration, authorities have attempted to regulate product safety,

    quality, and honest trade. So the Romans, the Bavarians and the Dutch created laws against

    adulteration such as the 1516 Bavarians Beer Purity Law (‘Reinheitsgebot für Bier). Originally,

    food was often regulated by religious laws, e.g. of the Jews and Muslims. Religious authorities

    had powerful religious instruments at their disposal to enforce such food standards. Eventually

    also secular organizations of civil society got involved. In the medieval period European guilds

    mobilized to govern and regulate the safety and quality of food and agricultural products (Hart

    1952). Such self-organized and self-regulated private associations disseminated, monitored, and

    enforced standards for specific areas of trade and manufacturing, including the oversight of

    food safety and quality in order ‘to protect consumers and traders from food products risks and

    unsafe commercial practices.’ (Braudel 1982, Carruth 2006, Van Waarden 2006). Public

    oversight of this policy sphere ‘blossomed late’. Nevertheless, between the fourteenth and

    fifteenth century, regulation by guilds was gradually substituted and complemented by local

    ordinances and state laws as the scale and geographies of commerce expanded (Scheuplein

    2009). Food scandals fueled such public intervention. As indicated, adulteration of wine had

    already induced the Romans to enact quality standards, while beer adulteration led to the

    Bavarian Reinheitsgebot for beer.

    By the end of the eighteenth century, rampant adulteration of food stuffs by the newly constituted food industry led to consumer demands for increased public oversight. The increasing geographical distance between food production and food consumption provided opportunities for adulteration and the erosion of trust in the food chain. Governments responded with general nationwide legislation prohibiting adulteration, attaching penalties to violations and establishing public enforcement agencies. (Hart 1952, Lyon 1998:744, Scheuplein

    1999).1 From here, the nation-state assumed a monopoly over food safety and quality regulation. Thus the Dutch dairy scandals of the early 20th century led to statutory minimum quality standards for dairy products. Yet guild-traditions persisted as well. Enforcement and oversight were delegated to butter- and cheese-control stations run by private trade associations. In the US, John Sinclair’s 1906 widely read novel about the shocking situation in the meat industry ‘The Jungle’, led to the creation of the US Food and Drug Administration FDA.

    1 France passed its first general food law in 1851; England passed the Adulteration of Food and Drink Act

    in 1860 (see Paulus 1974); the German Empire passed its first general food law in 1879; the United States passed the Pure Foods and Drugs Act in 1906 (see Barton Hutt 1984) and the Netherlands Warenwet was passed in 1919.

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    The last decades have seen a growing public concern about food. Better informed and critical

    and assertive consumers expect their government to secure safe and healthy food and

    protection against all risks. We could speak of a revolution of rising expectations: as food

    becomes safer and as knowledge about food risks increases, consumers expect a maximum level

    of food safety. Information about potential risks and incidents travels fast around the world

    through mass media, social media and internet.

    Paradoxically, governments are on the one hand confronted with higher expectations and

    demands regarding the safety, quality, and reliability of food product on markets. Yet on the

    other hand, the powers of national governments to protect citizens have decreased because of

    the globalization of food chains, invisibility of risks and political pressure to reorganize and slim

    down inspection organizations. The high expectations for public food authorities and their

    limited possibilities to be in full control lead to the need for public actors to rely also on private

    food regulation and inspection. Can such public regulatory agencies rely on private actors? The

    answer depends on the availability of private controls and on the reliability of private controls.

    2. Various modalities of food regulation: public, private, hybrid

    In the context of the outlined developments new forms of food governance have emerged,

    notably new European Union food law, private food standards, corporate social responsibility

    initiatives, and transnational regulation. The current landscape of food governance is rather

    crowded and contains a growing diversity of regulatory arrangements: public, private and

    hybrid. Actors involved in food regulation can be characterized by their position in food

    production and trade. We distinguish four main types (Van Waarden 2011; Havinga & Van

    Waarden 2013): First party, second party, third party and fourth party regulation.

    1. First party regulation is self regulation of an organization. Most organizations have some

    internal quality norms and quality control. All food businesses have an internal food quality

    control system. These systems vary stron