1

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

2

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.

3

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.

4

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 strongly in comprehensiveness and structure, from the

company-specific food safety management system (integrated into the quality management

system) of a multinational food manufacturer to the Dutch industry guide to good hygienic

practice for gas stations. One of the main drivers for first party regulations is the commercial

need to protect the company’s reputation. Food safety incidents may damage the firm’s

reputation and cause considerable loss. However, the establishment of internal food safety

management systems is not completely voluntary. All food business operators in the

European Union have to ‘put in place, implement and maintain a permanent procedure

based on Hazard Analysis and Critical Control Point (HACCP) principles’2. So these food

2 Article 5 of Regulation (EC) No 852/2004 of the European Parliament and of the Council

5

safety management systems are partly a form of enforced self-regulation (Braithwaite

1982).

2. Second party regulation involves product and process norms and controls imposed by a

customer on the business partner. In particular international supermarket chains are

important second party regulators. Since the 1990s private retail standards have expanded

dramatically. Food retailers joined forces to harmonize supplier standards. Regulation of

food safety by retailers using quasi legislation as an instrument to force trade partners to

take food safety measures, evolved from one supermarket regulating the own supply chain

to regulation of the united supermarkets, monitored by independent certification and

inspection organizations. National private certification schemes have crossed borders and

became global or transnational. Currently dominant transnational retail-driven standards

are British Retail Consortium (BRC), International Featured Standard Food (IFS), Safe Quality

Food (SQF) and GlobalGap (Fuchs cs 2011; Van der Kloet 2011). Although second party

regulation imposed on suppliers is the most common form in food regulation, some

examples of a food firm imposing standards and controls on buyers do exist. For example in

the context of a franchise relationship, such as the Quality, Service and Cleanliness concept

of the fastfood chain McDonald’s (Love 1995). Supplier audits performed by food

manufacturers or supermarkets are also a form of second party regulation. The second party

is just as first parties motivated by prevention of reputation damage.

3. Third party regulation includes imposing and controlling quality norms by a private party

that is not involved in the transactions in the production chain. First and second parties may

turn to a third party for at least three reasons. A third party can specialize in auditing and

control and develop expertise and acquire (the necessary) experience. A third party auditor

can work more cost efficient by combining audits for several standards and because an audit

report may be valuable for several transaction partners. Moreover, a third party audit is

perceived as being more reliable and legitimate; organizational independence should lead to

objectivity and neutrality. An extra advantage for a second party is that it is cheaper: the

costs of the audit system are being transferred to the first party; because it is common

practice that the audit costs are being paid for by the company that is being audited

(whereas the costs of second party controls are usually beared by the second party). There

is an expanded market for auditing, certification and accreditation services, some of them

specialized on the food sector others more general. This auditing industry includes

organizations that set the rules (standard owners), organizations that perform audits,

organizations that issue certificates and organizations that offer assistance and advice in

developing food safety systems or complying with such a system. Many of these

organizations are commercial, some are not for profit.

4. Fourth party regulation is regulation and oversight by national and international public

authorities. Governmental organizations are a special type of third party. The provision of

sufficient and safe food is a public interest. Already in ancient times governments tried to

on the hygiene of foodstuffs.

6

control the supply of food. People hold the government responsible for protection against

all types of risks including food borne illness, contaminated food and fraud.

Next to the four main types of regulation we also see many hybrid forms of regulation:

partnerships mixing actors from two or more of the above main types. Public and private forms

of food governance coexist. They operate mainly as separate regulatory regimes next to each

other. This may result in duplication of controls and inefficiency. However, some coordination

between private and public regulation already exists. For example, private regulatory

arrangements may incorporate and adopt public regulations. Many private auditors check

compliance with state laws as part of their auditing work. One of the general requirements of

almost all private food safety standards is compliance with all applicable state laws and

regulations. Non-compliance with legal obligations counts as non-conformity in most schemes.

Furthermore, legal food safety requirements such as regarding the food safety management

system, personnel hygiene, constructional requirements, pest control, traceability and allergens,

are incorporated and implemented in the requirements of the food safety standards such as

GlobalG.A.P., BRC, and IFS. The third party certifiers performing the audits against these

standards are thus controlling compliance with the governmental regulations (as implemented

in the standard).

The history of industry guides to good hygienic practice is an example of a more hybrid form of

food governance in which public and private actors as well as national and international actors

are involved. It all started with some food firms that developed a food safety management

system based on the principles of HACCP (Hazard Analysis and Critical Control Points). In 1993,

the Codex Alimentarius Commission of the World Health Organization endorsed the HACCP

system for ensuring the safety of food.3 Several supermarket chains adopted the system and

required from some of their suppliers to have implemented a HACCP food safety management

system (Havinga & Jettinghoff 1999:612). Next, a HACCP food safety management system

became a statutory requirement in several countries and in the European Union. All food

business operators have to ‘put in place, implement and maintain a permanent procedure based

on Hazard Analysis and Critical Control Point (HACCP) principles’4. A food safety system based on

the principles of HACCP is also legally prescribed in the United States (Spriggs & Isaac 2001; Ten

Eyck et al. 2006, Lytton 2013: 141-143)5 and in many private food safety schemes (Van der

Meulen 2011: 93).

To comply with this requirement of European Union law a food company may adopt an

applicable Guide to Good Hygienic Practice (whether or not specially adapted) or develop and

implement their own company-specific food safety management system (integrated into the

quality management system). The procedure to develop a food industry guide to good hygienic

3 http://www.who.int/foodsafety/fs_management/en/intro_haccp.pdf (last consulted 24-5-2013)

4 Article 5 of Regulation (EC) No 852/2004 of the European Parliament and of the Council

on the hygiene of foodstuffs. 5 The Food Safety Modernization Act 2011 requires that all FDA regulated food companies implement a

written hazard analysis and risk-based preventive control plan unless specifically exempt.

7

practice has to be initiated by a sector of the food industry and involves cooperation and

consultations with the competent national food enforcement agency. The Guide has to be

approved for by the competent governmental authority (Minister, agency or the European

commission). In The Netherlands 35 Guides currently are recognized by the Minister, for

industries such as bakeries, butchers, supermarkets, food transporting, catering industry, gas

stations.6 In the UK up till now 8 industries have developed a FSA recognized national guide to

good hygienic practice (for bottled water, flour milling, mail order food, retail, sandwich

manufacturing, vending, whitefish processing and wholesale distributors).7 Five Europe wide

guides are approved so far by the European Commission (bivalve mollusk, wholesale, packaged

water, natural sausage casings, non-ready-to-eat egg-products).8 These guides to good hygienic

practice are a form of enforced self-regulation (Braithwaite 1982). Particularly small and

medium sized food businesses are using these industrial guides. As the industrial association is

drawing the guidelines and the government has to approve the guidelines, the rules are a form

of co-regulation.

Where a food business is using a recognised guide the enforcement authority must take this into

account when assessing compliance with hygiene requirements. National food enforcement

agencies such as the Netherlands NVWA and the UK FSA are responsible for controlling the

compliance with the guidelines. Some private firms in the Netherlands are offering food

companies the service of assistance and auditing against an industry hygiene guide to help the

firm to comply with legal obligations and to maintain a high level of food safety. This brings us to

a third example of coordination between public and private regulation.

Public agencies may take high-quality private controls into account or delegate controls. An

example of delegation of official controls to a private auditing organization are the officials

controls on organic food. In countries such as the Netherlands and Sweden, the task of auditing

and certifying organic food is delegated to a private organization (Stichting Skan and KRAV)

(Boström & Klintman 2006; Arcuri ?). Another, more recent example is that public authorities

are increasingly considering the possibility of taking the results of private controls into account.

We will discuss this form of coordination in the following sections.

3. Can public authorities rely on private actors?

6 VWA Infoblad 48, Hygiënecodes. Februari 2008 (www.vwa.nl, 12-09-2012).

7 http://www.food.gov.uk/business-industry/guidancenotes/hygguid/food-industry-guides (consulted 24

May 2013). See also FSA Guidelines for the development of national voluntary guides to good hygiene practice and the application of HACCP principles in accordance with EC food hygiene Regulations, April 2013. The UK Food Standards Agency also has developed a range of food safety management packs for different sectors of the food industry to help food business operators manage their food safety management procedures. The Netherlands NVWA left this to the industry sectors. 8 http://ec.europa.eu/food/food/biosafety/hygienelegislation/good_practice_en.htm . See for a complete

list of recognised guides in the European Union and its member states: http://ec.europa.eu/food/food/biosafety/hygienelegislation/register_national_guides_en.pdf

8

As we have seen, governmental food regulation has become under pressure because on the one

hand the limits of what government institutions can do have becomes visible, while at the same

time we notice an increased level of requirements and high expectations towards the state.

National governmental food authorities are balancing in a minefield of private regulation, global

trade, life style risks and cutbacks. Coordination and cooperation between public and private

enforcement could strengthen both public and private control systems. Private certification and

control systems could complement governmental regulation and allow public enforcement

authorities to concentrate on high risk sectors and controlling ‘bad apples’. Currently many

private control arrangements are available. However, can public authorities trust such private

regulation and inspection? The reliability of private governance systems depends on their

capability and their willingness to perform adequate controls. Relying on private controls might

imply various risks: conflicts of interest, capture, a race to the bottom (lenient interpretation of

norms; tolerant controls), forcing firms to buy services, public authorities might lose all track of

the situation.

What lessons can be learned from historical experience? Public oversight relying on private

inspections is not new. Take for example the history of the accountancy and auditing profession.

Commercial organizations have controlled, inspected, and certified the financial books of

corporations for quite a while. However, there also have been scandals at times such as

Anderson controlling Enron. So, under what conditions can one ‘entrust others’?

The concept of trust has two main dimensions. Trust in the capability (and capacity) of others

(‘can they do it well, reliable?’) and trust in the willingness of others (‘will they do it well,

reliable?’). Trusting implies that one does not quite know, one is not for 100 percent sure. In

other words, there is some uncertainty on the ability of the other and/or on the motives of the

other.

As to the capability of private actors to regulate and control the food chain this includes their

access to sites, their skills and expertise, and their organizational capacity. Food producers (first

parties) have the best access and in many cases a high level of relevant expertise. Organisations

purchasing food such as supermarkets and restaurants (second parties) usually have access and

knowledge. Second parties are in a powerful position towards food producers: they can decide

to stop doing business. In particular large branded firms (both first and second parties) are

capable of adequate control of safety and quality of food. Third parties such as certification

bodies are knowledgeable and specialized in performing audits. However, both second and

third parties may be deceived by food producers presenting perfect paperwork or showcases to

inspectors.

The highest risks however are not in the availability or capability of private actors to deliver high

quality food control, but in their willingness to do so (and to share their findings with public

authorities). The honesty and integrity of private actors involved in food governance depends on

what are their motives to do a good job, what is their incentive pro and/or con? An important

incentive could be the care for their reputation. This means that in particular firms that are

9

highly dependent on a good reputation have an interest in avoiding involvement in a food

scandal and in showing they took all possible care. This includes A-brand food manufacturers

such as Unilever or Danone, large supermarkets chains such as Tesco or Metro and ideational

NGOs such as MSC. These organizations will take great trouble to avoid damage their good

reputation with customers (final or BtoB) (‘below’), with colleagues in the sector (‘next to’ own

sectoral community), with oversight (‘above’) (inspectors, politics); or with the ‘general public,

the media, foreign countries (pride on reliable national product). A private actor may have a

strong interest in doing a good job in order to avoid sanctions. Sanctions may vary from loosing

market, fines, negative media attention. However, food business are not just acting as a model

‘rational actor’ driven by ‘interests’. Social norms may also be important.9

Can and will public agencies rely on private ones? They may have to do so for various reasons:

enormous size of the task to control long global food chains; their inaccessibility from one small

country (like NL) in these long chains; financial cutbacks due to lack of political willingness to

devote public finance facilities resulting in lack of manpower capacity. In addition, due to

technological advances, specialised scientific knowledge is sometimes only available in industry.

The capability of public authorities to rely on private control may be hampered by legal

obligations and responsibilities (such as the mandatory inspections in the meat sector in the

European union). It also depends on new technologies of sampling and new possibilities to

control (distant) private inspections with modern ICT-technology.

In the end the willingness depends on whether public agencies trust private actors to do a good

job. This depends again on the estimation of - and experience with - the trust of public actors -

the principal - in both the capability and willingness/incentives of the private organizations - the

agents.10 And these depend in turn on the position of the private actor in the market

transactions: as First Party (producer, seller), Second Party (buyer), Third Party (external private

- commercial (e.g. auditing firm) or non-commercial (idealistic NGO-certifiers like MSC)

controller), and Fourth Party (other public agencies from the same country; foreign public food

inspection). Thus a distinction should be made between these four types of ‘agents’ (in the

relation with public authorities as the ‘principal’) as to capability of the others.

Are private food regulators capable and able to do a good job? The answer is largely yes. They

have quite some expertise, and serious sanctions as to back up conformity to food standards of

their suppliers. However, the willingness of private food regulation to do so is less certain. But

private actors involved in production and distribution of food need to care for their reputation;

also as have become more visible - they have increased in size, nurture names and trade marks-

, and should care about that reputation. A blemish can cost a lot of money or even decline of

private organizations in the competitive struggle. ICT and new media spread easily rumors about

bad reputations. The public has gradually ever higher demands about safe food, honesty in

trade, and the existence of critical watchdogs like newspapers, but also organizations like

9 reference to James March on Rationality in Policy Making and Deborah Stone’s ‘Policy Paradox’ books

10 I.e. refer to principal-agent theory here.

10

foodWatch, and the general Consumer Associations. But in the end intermediate and final

buyers are not only interested in safety and quality, but also in price. And there can and has

been a trade-off between these. A producer or retailer can nurture a reputation of cheapness,

or of quality. The fierceness of competition on either one of these criteria in the respective

vertical or horizontal subsector of the food chain will also be important.

Both the capability and willingness will in turn depend on the nature of the private regulatory

agency. Important dimensions here are: its position in the market (1st to 4th party) and its size or

fame and hence usually resulting from that the visibility for the relevant audience that can

sanction (by a variety of punishments, varying from buyers’ strike to fines and statutory closure).

On the basis of these criteria, the following table distinguished types of ‘other’ (i.e. private but

also foreign public) regulators, with which national public food inspections may/could have to

deal with, can be distinguished. It also includes each one’s likely capability, willingness and

hence trustworthiness, facilitating or allowing reliance of a public food regulating agency on

their food safety and quality controls and judgments.

11

Typology of possible trustworthiness of private regulators:

Position in the Market and Size Visibility, importance reputation, Potential interest by the media?

Capability, Skill, Knowledge

Willingness, Interests

Trustworthiness

1st

Party: Producers

Large, international branded manufacturers (Unilever, FrieslandCampina)

High High High High

Medium, national/specialized manufacturers Medium Could be high medium Medium

Small, snackbars, shoarma, SME food Small (but could be high local) Low Low Low

2nd

Party: Buyers

Large: supermarket chains, fast food rest.chains (McDonald’s) High Medium High High

Medium: restaurants Medium Medium Medium Medium

Medium: specialized food retailers High in own subsector? High ? ?

Small: Final Consumers Low (via social networks higher?) Low High Low to medium

2nd

Party: Facilitators: Intermediate traders in food value chain

Wholesalers, in between B-to-B traders (e.g. case in Horsemeat scandal)

Low Medium Low Low

Large Packers and Transporters (important for cooling, freshness, halal separation)

Low medium Low

Smaller Packers and Transporters Low low low Low

Insurance Companies (?) ??

3rd

Party: Certifiers and Auditors

Commercial; large corp./chains of auditors Medium (in specialized chains: High) High Medium Medium

Commercial: small, local Low Medium Medium to high

Medium

Ideational NGOs, like MSC or foodwatch, Other Consumers Associations

Higher Medium High High

4th

Party: Public Regulators/Inspectors

National or local regulators, same state Medium to High High Medium (if competing)

Medium-High

Foreign Public Regulators/Inspections Low, unless important export ctry Depends on ctry Depends Depends

12

4. New PPPs and experiences in the Netherlands

The Netherlands Food and Consumer Product Safety Authority (NVWA) has adopted a new

enforcement philosophy in line with the enforcement pyramid connected to the concept of

responsive regulation (Ayres & Braithwaite 1992, Mascini & Van Wijk 2009). The current motto of the

NVWA is: ‘Gentle whenever possible, though when necessary’. Starting from the idea that most food

firms are willing to comply with food laws and regulations, the NVWA wants to approach them with

trust. The NVWA also aims at agreements with industry associations, food manufacturers and private

consultancy and auditing firms about reduced supervision by the NVWA because of the use of private

controls, certification or self-regulation. This is a shift from repressive control towards

communication, assistance and meta-control, from control to in control.

The NVWA is aiming at establishing compliance, sanctioning non compliance is not the main

objective. The usually cooperative and encouraging attitude towards food firms is linked to a policy

of stringent enforcement against firms that ignore the regulations. These firms (with colour code red

or orange) are supposed to be forced to comply by means of strong sanctions, including damages

imposed on a daily basis in case of continued non-compliance and (temporarily) closing down the

site. The agency (NVWA) aims at risk based controls and categorized food firms in four colour codes.

August 2013, the Netherlands NVWA has acknowledged 11 systems of ‘self control’11. Besides, the

NVWA concluded agreements with 9 firms or industry associations; the agreement says that the

NVWA will reduce controls and the industry will provide for an operating adequate risk control

system and reports on this system to the NVWA. This cooperation involves different types of

partners: food manufacturers, industry associations, franchisors, consulting and auditing companies,

and industry commodity boards. All cooperation partners are Netherlands organizations, most of

their activities are confined to the Netherlands. The NVWA is currently not taking into account that a

food firm is certified against an international food safety standard. Although a new initiative has

been started in 2013: the accredited certifying organization ISACert is offering a plus certificate in

addition to the certificate for one of the GFSI recognized food safety schemes. Participating firms

should allow exchange of information (control results) with the NVWA and accept unannounced

inspections; when the pilot is successful, the NVWA will reduce controls for firms without non-

conformities.

In the UK, Canada and France the food authorities are also considering or trying this kind of

cooperation. ‘The UK Food Standards Agency (FSA), for example, has

instructed enforcement authorities to take account of membership of a ‘recognised’

farm assurance scheme in determining the frequency of inspection of production

facilities’ (Henson & Humphrey 2010: 1641). The Canadian Food Inspection Agency (2012) is

developing guidelines for the recognition of ‘third party delivery providers’. Rouvière & Caswell

(2012:252) investigated co-regulation in the import of fresh vegetables and fruit in Perpignan. In this

project the enforcement agency relied on data from the import firms participating in ‘Demarché

Qualité’ in stead of laboratory analysis of samples taken by inspectors.

We will discuss some examples of the public reliance on private controls in more detail.

11

Welke Engelse term?? Riskplaza website gebruikt ‘self-auditing systems’

13

BDW (Bureau de Wit) is a medium sized commercial business organization offering consultancy and

auditing services to hotels, restaurants, health care institutions, catering, retail and traditional food

businesses.12 BDW is one out of six agencies auditing businesses for compliance with the applicable

Guide to Good Hygienic Practice that is acknowledged by the NVWA. Customers with a BDW hallmark

are not inspected by the NVWA anymore. The NVWA relies on the inspections by BDW. The process

of getting acknowledged by the NVWA took two years. The NVWA required at least one

unannounced inspection every year checking compliance with all requirements of the Hygienic

Guide, a report of shortcomings, a plan of action from the inspectee and a reinspection within 6

weeks by BDW and permission from the inspectee to exchange inspection reports between BDW and

the NVWA. The NVWA did a system audit and a survey of BDW customers to see whether the BDW

auditsystem met their requirements.

Quite another example of an acknowledged selfcontrolsystem is RiskPlaza.13 RiskPlaza is initiated by

organisations from grain growers and bakeries and is meant to guarantee the safety of ingredients.

RiskPlaza is a database based on European and Dutch legislation with concrete information on

possible risks; these detailed norms are made up by the NVWA, experts from industry and

certification bodies. RiskPlaza stores information about the hazards which may be associated with

ingredients and the control measures which can be taken to control these hazards. The database is

an example of co-regulation. In addition to the database, firms supplying ingredients can be audited

for the involved risks (RiskPlaza audit+). Firm manufacturing or trading ingredients may choose to be

audited for RiskPlaza-audit+. In a RiskPlaza audit+ a certifying body performs an additional audit at a

participating company on top of the existing food safety certificate (HACCP, IFS, BRC, ISO 22.000,

FSSC 22000 or an approved hygiene code). This additional RiskPlaza audit+ is aimed at assuring the

food safety of ingredients. During the audit a company must be able to demonstrate that the

possible hazards of ingredients are controlled. Audits can be performed by 4 certification bodies

recognized by RiskPlaza. August 2013 the website lists 51 RiskPlazaAudit+-companies, most in the

Netherlands, some from Belgium or Germany. Businesses in the bakery industry, confectionary industry,

meat products industry, snacks industry, vegetables and fruit industry, poultry processing industry, the coffee

& tea industry, that purchase ingredients from a RiskPlaza-audit+-supplier do not need to verify the food

safety of raw materials at this supplier. The NVWA will not include these issues in inspections. This

means that NVWA inspections are partly replaced by private audits.

5. Evaluation and Conclusion

Public and private food regulation parties may need each other. The degree to which they trust each

other depends on the variables mentioned before. Depending on those, there has been a gradual but

increasing development of new PPPs (public-private-cooperation) in food regulation. What are the

risks of such forms of cooperation between the public food authority and private parties? Can they

12 The case descriptions for Bureau de Wit and RiskPlaza are taken from Verbruggen & Havinga

forthcoming.

13

See on RiskPlaza also Garcia Martinez cs 2013 and their website https://www.riskplaza.nl/riskplaza/pagina/100048/home.aspx

14

become forms of ‘cooptation’? And if so: who might co-opt whom? I.e. is there a risk of ‘capture’?

Especially if political support of public agencies dwindles (financial cutbacks, mergers, lay offs, etc)

the agency could turn to the private sector for moral, financial, or organizational support (as it may

do when de facto ‘delegating’ regulation or inspection to private sectoral organization). See the older

US literature on capture of regulatory agencies by the (private organizations of the) sector they are

supposed to control.

Private control systems such as BDW include more frequent and more full inspections than the public

authority could perform. BDW inspects all relevant elements of the food safety system at least twice

a year, whereas the NVWA would normally only inspect the sites once in 1-5 years and not inspect all

element. Private control systems are also able to work in global food chains whereas the jurisdiction

of the NVWA is limited to the Netherlands. This advantage does not apply to the BDW case, and in

particular to international accepted food safety certification schemes such as BRC and IFS (until now

the NVWA does not rely on these certifications). Market driven private systems are very powerful

because the loss of market is a strong sanction and because regulatees will accept rules and

instructions as part of a business transaction more easily than from a governmental organization. On

the other hand, third parties do not have a direct interest in transactions although they are directly

interested in keeping the customer satisfied. This points to one of main weak points of private

regulation: the controlling organisation almost always has a financial interest: first and second

parties are involved in transactions, third parties are paid for by the firm under supervision. Another

potential weak point is the lack of transparency and the opportunities for misrepresentation. So far

certification is not always a guarantee for compliance with all regulations: some standards and some

certification bodies seem to be very lenient and not very reliable. Finally, when a public authority

does rely on voluntary private control systems there might be a free rider problem. In the Dutch

cases described this could be the case. Firms that participate in these schemes do pay for controls

and for better performance while firms that do not participate are not confronted with frequent and

vigorous controls by the NVWA.

We conclude with some conditions for public reliance on private governance systems:

- Agreement on minimum norms and requirements between involved public and private

actors

- Knowledge and training of professional staff in both auditing firms and in food industry

- An industrial culture in private auditing firms and in food industry that highly values food

safety

- A system of reputational damage for both auditing firms and food industry in case of bad

performance (a precondition seems to be transparency and public available information

about performance coupled with competent ‘watchers’ (public authority, consumers

organizations or other NGO’s, competing firms and consumers)

- Economic context that enables the promotion of long-term interests such as food safety (in a

highly competitive market where food safety is not valued in money there is always an

incentive to reduce costs by lowering standards or even fraud)

- Free rider-problem could be a problem in case firms that do not voluntary participate in

private certification schemes gain considerable advantages (no costs for auditing and for

adapting to requirements) whereas there are no (or less costly) disadvantages. Because of

this, public enforcement authorities should have the capacity to vigorously control these

15

firms, sanction non compliance and make control results publicly available. The costs of

participation in the voluntary systems of BDW and RiskPlaza are rather high, whereas the risk

that non-compliance is detected by NVWA is rather low.

References

Ayres Braithwaite Ayres, I. & J. Braithwaite, Responsive regulation, Transcending the deregulation debate, New York/Oxford: Oxford University Press, 1992

Boström, M. & M. Klintman (2006) ‘State-centered versus nonstate-driven organic food standardization: A comparison of the US and Sweden’ 23 Agriculture and Human Values 163-180.

Braithwaite, J. (1982) ‘Enforced self-regulation: A new strategy for corporate crime control’, Michigan Law Review 80: 1466-1507.

Braudel, F. (1982) The Wheels of Commerce, London: Harper Collins.

Canadian Food Inspection Agency (2012) Improved Food Inspection Model. Proposed Draft, http://www.inspection.gc.ca/DAM/DAM-aboutcfia-sujetacia/STAGING/text-texte/acco_modernization_modeldraft_1344008567583_eng.pdf

Carruth, R.A. (2006) ‘Socio-Economic Foundations of Food Safety Regulation and the Governance of

Global Agri-Food Industries’, in Carruth, R.A. Global Governance of Food and Agriculture

Industries. Transatlantic Regulatory Harmonization and Multilateral Policy Cooperation for

Food Safety, Cheltenham and Northampton: Edward Elgar.

Fuchs, D., Kalfagianni, A. and Havinga, T. (2011) ‘Actors in Private Food Governance: The legitimacy of retail standards and multistakeholder initiatives with civil society participation’, Agriculture and Human Values, 28: 353–367.

Garcia Martinez,M., P. Verbruggen & A. Fearne (2013) ‘Risk-based approaches to food safety regulation: What role for co-regulation? Journal of Risk Research DOI:10.1080/13669877.2012.743157.

Hart, F. L. (1952) ‘A History of Food Adulteration of Food Before 1906’, Food Drug Cosmetic Law

Journal 7: 5.

Havinga, T. and Jettinghoff, A. (1999) ‘Self-regulation in business: Beyond associational self-

regulation’ in: F. van Loon and K. van Aeken (eds.), 60 maal recht en 1 maal wijn: Rechtssociologie,

Sociale problemen en justitieel beleid, Liber Amicorum prof. dr. Jean Van Houtte, Leuven: Acco,

1999: 609-620.

Havinga, T. & F. van Waarden (2013) Veilig voedsel: Toezicht toevertrouwen? Sectorschets toezicht in

de voedselsector, Den Haag WRR Webpublicatie nr 70,

http://www.wrr.nl/publicaties/publicatie/article/veilig-voedsel-toezicht-toevertrouwen-

sectorschets-toezicht-in-de-voedselsector/.

Hutt, P. B. (1984) ‘A History of Government Regulation and Misbranding of Food’, Food Drug

Cosmetic Law Journal 39, 2.

Love, J.F. (1995) McDonald’s Behind the Arches, New York: Bantam Books. Lyon, J. D. (1998) ‘Coordinated Food Systems and Accountability Mechanisms for Food Safety: A Law

and Economics Approach’, Food and Drug Law Journal 53: 729.

Lytton, T.D. (2013) Kosher. Private regulation in the age of industrial food. Cambridge MA / London UK: Harvard University Press.

16

Mascini, P. & E. van Wijk (2009) ‘Responsive regulation at the Dutch Food and Consumer Product Safety Authority : An empirical assessment of assumptions underlying the theory‘, Regulation & Governance 3, 27-47.

Paulus, I. (1974) The Search for Pure Food: A Sociology of Legislation in Britain, London: Martin

Robertson.

Rouvière, E. & J.A. Caswell (2012) ‘From punishment to prevention: A French case study of the

introduction of co-regulation in enforcing food safety’, Food policy 37, p 246-254.

Scheuplein, R. J. (1999) ‘History of Food Regulation’ in Kees van Heijden and others, International

Food Safety Handbook: Science, International Regulation and Control, New York and Basel:

Marcel Dekker Ltd.

Spriggs, J. and G. Isaac (2001) Food safety and International Competitiveness: The case of Beef, Oxford/New York: Cabi publishing.

Ten Eyck, T.A., D. Thede, G. Bode & L. Bourquin (2006) ‘Is HACCP nothing? A disjoint constitution between inspectors, processors and consumers in the cider industry in Michigan’, Agriculture and Human Values 23: 205-214.

Van der Kloet, J. (2011) ‘Transnational Supermarket Standards in Global Supply Chains. The Emergence and Evolution of GlobalGAP’, in J. Van der Kloet, B. De Hart & T. Havinga (eds.) Socio-legal Studies in a Transnational World. Special Issue Recht der Werkelijkheid, (32) 3, p. 200-219.

Van Waarden, F. (2006) ‘Taste, Traditions and Transactions’ in Christopher Ansell and David Vogel

(eds.), What’s the Beef? The Contested Governance of European Food Safety, Massachusetts

and London; The MIT Press, 46-46.

Van Waarden, F. (2011) ‘Varieties of Private Market Regulation: Problems and Prospects’, in D. Levi-Faur (ed.) Handbook on the Politics of Regulation, Cheltenham: Edward Elgar, 469-485.

Verbruggen, P. & T.Havinga (forthcoming) ‘Meta-toezicht op Voedselveiligheid’.