Legislative implementation of the food chain approach.

• Author: Vapnek, Jessica

ABSTRACT

Food safety is an essential element of food security, since "adequate" food means food that is not only available, but also safe. Food safety systems have traditionally focused on end-product testing, which is an unsatisfactory means of ensuring safe food. An increasing focus on prevention has spurred interest in a food chain approach, which aims to control all steps in the food chain from production to consumption. Although the approach has drawn international attention in recent years, national lawmakers have lacked guidance on its implementation. This Article serves that need. Part II of the Article describes the international backdrop to the food chain approach, discusses the main characteristics of the approach, and considers how the food chain approach is, in some respects, already being implemented in some specific areas. As these implementations are only partial solutions, Part III outlines four areas for legislative action to implement the food chain approach more fully. Part IV concludes by raising some outstanding questions linked to the food chain approach while noting some of the advantages its implementation is likely to offer.

TABLE OF CONTENTS I. INTRODUCTION II. THE FOOD CHAIN APPROACH A. Background B. International Context C. Characteristics of the Approach III. IMPLEMENTATION IN NATIONAL LEGAL SYSTEMS A. Overview B. Existing Legislation C. Areas for Legislative Action 1. Establish a Coordinating Mechanism or Institution 2. Cover All Sectors and All Steps 3. Incorporate Prevention and a Risk-Based Approach 4. Review the Legislative Framework for Consistency IV. OUTSTANDING QUESTIONS A. The Transnational Problem B. Shared Responsibility C. Developing Country Concerns V. CONCLUSION I. INTRODUCTION

Food security has traditionally been understood to mean the availability of adequate food stocks in times of need. (1) More recently, at least in the United States, the term has also come to refer to security of the food supply in light of potential bioterrorist attacks. (2) In fact, neither definition is sufficient. According to the World Food Summit Plan of Action of 1996, "Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life." (3) Ongoing policy work has provided further content to this definition, (4) confirming that issues of nutrition, safety, and cultural appropriateness of food are not separable but rather are integral parts of the "adequacy" standard. In other words, if the available food is not safe, nutritious, or culturally appropriate, it is not adequate, and food security does not exist.

Nutrition, safety, and cultural appropriateness of food are also necessary elements for the realization of the human right to food, a socioeconomic right recognized in numerous binding and non-binding legal instruments, including the International Covenant on Economic, Social and Cultural Rights. (5) The Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security set out government responsibilities with regard to nutrition and food safety in order to realize the right to food, and confirmed that food safety is an essential component of food security. (6)

Food safety has traditionally focused on the food processing sector and on inspections of finished products to assess compliance with established requirements. (7) Increasingly, this traditional approach to food safety is being recognized as an inadequate means of ensuring food safety because it involves action only after the harmful food has already been produced, (8) leading to the search for other strategies to ensure safe food. A "food chain approach"--which looks holistically at the myriad steps and the different actors that contribute to the production of food--is designed to answer the weaknesses of traditional food safety systems. The food chain approach consists of regulatory and non-regulatory measures implemented at appropriate points in the food chain (from pre-production up to the point of sale) in order to ensure that food meets prevailing norms. (9) An important feature of the food chain approach is that it incorporates the view that all participants in the food chain, from primary producers to processors to traders, share the responsibility for the supply of safe and nutritious food. (10)

Because it is intended to improve food safety, the food chain approach will be an important tool for achieving food security--a sufficient supply of safe and nutritious food. (11) Although international interest in the food chain approach has increased in recent years, there has been no guidance available to governments wishing to know what legislative steps are required to implement the approach. The purpose of this Article is to fill that gap by attempting to show how governments could implement the food chain approach at the national level.

Part II of the Article introduces the food chain approach, describing the circumstances that have led to its growing currency and setting out its main characteristics. It also discusses the ways in which a food chain approach is, in some respects, already being implemented in some specific subject areas of law. After examining two of these areas--pesticides and animal health--the Article concludes that these are only partial solutions. With the aim of proposing a comprehensive plan for implementation, Part III sets out four areas for legislative action to fully implement the food chain approach. Part IV contains some observations on issues that are likely to be problematic in the implementation of the food chain approach, as well as some of the advantages implementation can be expected to offer.

2. THE FOOD CHAIN APPROACH

   1. Background

      Globalization and dramatic increases in the volume of trade over the last decade, including trade in food, have made food safety an issue of global concern. New technologies allow food products to travel farther and stay fresh longer, paradoxically posing an increased risk of the spread of biological, chemical, and physical food hazards. (12) Governments have continually improved their means of detection, investigation, and control of these potential threats. (13) Increasing populations, however, are placing greater demands on world food systems, especially in urban areas, where higher population densities increase the risks of food-borne disease.

      In many countries, food contamination problems have weakened consumer confidence. While some outbreaks were accidental and unforeseen, others could have been predicted and avoided through proper monitoring and early warning mechanisms and controls. Furthermore, although some sectors of the food chain are routinely subject to more preventive action and oversight (such as slaughterhouses and dairies), (14) others are less so. Greater sophistication and improved access to information are also leading to increased consumer demands for safer food.

      In light of these developments, there has been a growing recognition that the traditional pattern of food safety enforcement--ex post facto controls on the finished product (which can still be seen in many sectors)--is not satisfactory for a variety of reasons. (15) First, if the product has already reached the marketplace, ex post controls mean taking remedial action after the harm from unsafe food has already taken place. Not only is this course of action unacceptable conceptually (since food safety enforcement should seek to prevent harm), but it can also lead to greater costs--in health care, lost worker time, and product recalls.

      Second, end-product testing entails an enormous waste of resources. By the time an unsatisfactory product is discovered, most of the resources needed to produce and prepare it have already been expended on its harvest, processing, preparation, packaging, and labeling. Clearly, removing the product earlier would cost less, and problems could have been avoided altogether through a greater focus on prevention of contamination throughout the food chain.

      Third, ex post facto controls create an unfair burden by placing responsibility on government authorities rather than on the actors who actually produce and distribute the unsafe product. Although states have an obligation to protect the health of consumers (in order to realize the rights to health and food, for instance), private actors also have a role to play. There is growing acknowledgement that private actors should bear more responsibility for providing safe food.

      Recognition of the weaknesses of the current system has led to a number of changes in the food safety area. More countries have shifted the focus of enforcement from a system of purely government-run inspections to a system of government oversight that monitors controls established and implemented by food businesses themselves. (16) In many jurisdictions, legislation now requires companies to implement their own food safety systems, (17) which government authorities then audit and certify. (18) Inspectors function less like enforcers and more like extension agents (ministry staff members who travel to farms to work with farmers and livestock owners), in this case educating business owners and helping companies implement their own food safety controls and comply with established standards. (19) Of course, some kind of legally implemented enforcement and penalty system is still required, but the conceptual shift has been dramatic. In many cases, food policies, and even food legislation, state unequivocally that the primary responsibility for placing safe food on the market lies with the food producers themselves. (20)

      Even the changes just reviewed have not been sufficient to guarantee safe food. If pesticides have contaminated the product beforehand or if adulterants or contaminants can still affect the product in the...