Rethinking Consumer Empowerment: New Directions for Sustainable Food Law in an Era of EU Discontent

Abstract

EU food law is built on two paradigms – food safety and consumer choice. Consumers should have access to any food they like, provided that it is safe for consumption and that consumers are made aware of the products’ characteristics through adequate information. Growing emphasis on sustainability has not challenged these foundations. On the contrary, the law is intended as a tool to further empower consumers to make a healthy and environmentally responsible choice. However, it will be argued that this information centric approach is no longer a tenable position. The regulatory solutions characteristic of the consumer empowerment logic are of limited effectiveness and do not challenge the biggest obstacles to the sustainable transition of food systems – the commodification of food and the lack of regulation of the food environment. This contribution sketches out some far-reaching yet realistic food law reforms to genuinely address sustainability issues. Mindful of the special status of food and the growing discontent towards the EU and the green transition, this contribution also argues for some changes in the making and design of EU food law, leading towards greater involvement of citizens and local communities, and, ultimately, for truer empowerment of individuals.

I. Introduction

EU food law rests on the premise that consumers should have access to any food they like, regardless of its composition and method of production, provided that it is safe for human consumption and that consumers are made aware of the products’ qualities through adequate information. Consequently, consumers are empowered to make the choice they deem most appropriate for themselves. The internal market supports such choices by eliminating barriers to free movement, which enables access to a plentiful offer of products coming from other Member States.

While Europeans have many reasons to boast about their culinary traditions, the EU food system gives less reason to celebrate. It is a synonym for environmental degradation from greenhouse gas emissions to pollution and biodiversity loss, poor human health and animal suffering on a massive scale. ¹ It is plagued by and entrenches socio-economic inequalities. The Farm to Fork Strategy acknowledges this state of affairs. ² Yet, while it offers a new and stimulating perspective on food sustainability across the food chain, the Farm to Fork Strategy does not challenge the traditional vision of consumer empowerment endorsed by EU law. Rather, it promotes ethical consumption, a concept whereby consumer choices are harnessed for achieving sustainability goals. Regulating information remains at the core of ethical consumption, whether in the form of mandated disclosures or the prohibition of corporate manipulative practices in order to ensure that consumers make the right, green, and healthy choice. In sum, sustainability is commodified.

Yet, this contribution would argue that such an approach is no longer tenable, not only because regulatory solutions built on the logic of consumer empowerment are ineffective, but also because this does not challenge the view that food is a mere commodity that can be entirely subjected to market forces. If one is serious about building a more sustainable food system, consumers must be provided with a food environment that truly facilitates healthier and more sustainable choices. This means regulating more thoroughly the food that is offered in our store, going beyond safety, but setting stricter standards as to their composition and nutritional value. This means also restricting the advertising and promotion of unhealthy and unsustainable foods, more than is done today.

Judging from the EU’s difficulty to implement the Farm to Fork strategy in terms of concrete and binding legislative proposals, a crucial question is whether making stronger inroads in people’s diets is politically desirable and feasible. The growing discontent towards the EU and the green transition can easily be harnessed by those who oppose interventions in the EU food environment, considering the high salience that the topic has acquired in EU politics. Without dismissing these concerns out of hand, it is crucial to resist the instrumentalisation of food topics in political discourse, since greater regulation of the food industry does not necessarily involve greater bureaucratisation and centralisation of food law and consumer food choices. It is possible to bring changes to the making and design of EU food law that ensure greater involvement of citizens and local communities, and ultimately facilitate truer consumer and citizen empowerment.

This contribution is structured as follows. Section II provides a (brief) historical overview of the development of EU food law and a description of its main tenets – market, safety and consumer choice. As will be shown, these tenets are not fundamentally challenged by the Farm to Fork strategy, often hailed as a paradigm shift in EU food law and policy. After outlining the many empirical and conceptual limits of the consumer empowerment logic typical of EU law, a number of reforms aimed at redesigning the food environment are outlined in Section III. These reforms primarily concern food composition, food advertising and food pricing. Section IV addresses the common criticisms hailed at EU food regulation, its paternalistic nature and its neglect of cultural diversity. These critiques, it is argued, are often misplaced. Hence, some reflections are presented on how to make EU food law more sensitive to regulatory diversity and the plurality of food values and practices across the Union.

II. The enduring paradigm of consumer empowerment in EU food law

From the perspective of the consumer and leaving aside products that are unsafe and hazardous to human health, ³ EU food law is largely non-interventionist. This is a result of its internal market objective. Hence, any food deemed safe can be placed on the market, with consumers remaining the ultimate arbiters of what should be on their plate (1). The evolution of EU food law’s objectives towards a sustainable food system did not challenge this paradigm. Consumers, in the view of the legislator, are still to be trusted to be the drivers of change (2).

1. Consumer choice as the lodestar

EU food law is largely a by-product of the internal market project. Many of the early free movement of goods cases, decided by the Court of Justice under Article 34 TFEU, concerned foreign traders clashing with national food requirements – “product requirements” in the internal market jargon, ie “rules that lay down requirements to be met by […] goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging).” ⁴ These rules often served to protect the “quality” of food products, ensuring that foods sold under a given name complied with certain standards as to their composition or method of production, ⁵ for instance that pasta sold in Italy reflects what Italian people consider to be pasta made from durum wheat, ⁶ or that beer available in German supermarkets is brewed according to the traditional Reinheitsgebot, the law on the purity of beer. ⁷ A second stream of cases decided under Article 34 TFEU involved food safety rules, adopted to ensure that foods placed on the market were fit for human consumption. Prime examples are the “vitamins” cases, where the Court examined Member States rules restricting the sales of fortified foods on grounds of their potentially hazardous nature for human health. ⁸

Such “purity” rules were more often than not struck down by the Court as unjustified or disproportionate restrictions to trade. The Court considered composition requirements unnecessary for protecting consumers from being misled as to which product they were purchasing (eg an Italian buying pasta made of common wheat). This could be averted, the Court argued, by providing adequate information about the food in question especially by means of labelling. ⁹ Thus the Court’s “information paradigm” was born, ¹⁰ which sees the delivery of information to the consumer as an ideal regulatory solution, allowing consumers’ interests to be protected while imposing little burden on economic operators. This vision would later inform EU consumer protection legislation. ¹¹ Regarding food safety, the Member States would have to establish the existence of a tangible risk to human health to justify any restriction on placing specific foods or ingredients on the market. ¹² Crucially, however, poor nutritional value alone did not constitute a valid reason to adopt such restrictions. ¹³ Even in cases involving a clear risk to human health, such as high salt intake, the Court continued to favour labelling obligations over composition requirements. ¹⁴

What emerged from this case law, and would subsequently be enshrined in legislation, are the two fundamental objectives of EU food law. ¹⁵ The first is to build an internal market where foodstuffs circulate freely, giving Europeans access to a diversified and stable food supply, with the prescription of minimum quality requirements ¹⁶ and the display of adequate information as to the composition of products serving as guideposts for consumers. ¹⁷ The second objective is food safety and the removal from the market of products unfit for human consumption. Health and safety concerns grew in importance at the EU level following the Bovine spongiform encephalopathy (BSE), or “mad cow disease,” a crisis in the 1990s. ¹⁸ This led to the adoption of the general requirements of EU food law and to the creation of the European Food Safety Authority (EFSA). ¹⁹ For a long time, the nutritional quality of diets and related chronic diseases were no more than a “secondary priority” for the EU, often bundled up with food safety issues, ²⁰ not to mention that questions related to the environmental impact of diets were virtually absent from the discussion. In short, EU food law has always been reluctant to engage with the food environment, broadly understood as the “physical, economic, political and socio-cultural context in which consumers engage with the food system to make decisions on acquiring, preparing and consuming food.” ²¹

What transpires from this regulatory landscape is a twofold vision of food as a commodity and of consumers as “empowered” ²² and detached from their local ties. The market is a dynamic place where food circulates freely, where consumer habits evolve over the course of time and should not be “crystallised” for the benefit of domestic producers. ²³ Save from clearly identified food safety risks, restrictions on the kind of food that can be sold to Europeans are usually not seen as legitimate, whether by the Court or the EU legislature. In their view, consumers, whose interests lie primarily in being able to choose from a plentiful and cheap array of food options, are freed from the oppressive and protectionist restrictions adopted by their Member States. They can be trusted to navigate the complex maze of food-related information and pick products according to their preferences. This vision was most clearly laid down in the 2007 White Paper “A Strategy for Europe on Nutrition, Overweight and Obesity related health issues,” where EU intervention is framed as follows:

Any public action, including those possibly undertaken at [EU] level, in this field should take into account [a number of] factors. Firstly, the individual is ultimately responsible for his lifestyle, and that of his children, while recognising the importance and the influence of the environment on his behaviour. Secondly, only a well-informed consumer is able to make rational decisions. ²⁴

There are some merits to this vision, which fits a certain emancipatory discourse on European integration. Yet, it is also inherently tied to the catastrophic impact of the EU food system on human health and the environment.

2. Sustainability and the rise of the “ethical” consumer

Sustainability, which is primarily understood in this article as a concept encompassing both health and environmental concerns, ²⁵ has progressively made inroads into EU food law and policy, as well as into the EU’s consumer protection agenda. ²⁶ Nutrition and health issues first emerged in the 2000s. ²⁷ The 2005 Commission Green Paper on healthy diets and physical activity was the first building block of a comprehensive EU nutrition policy. ²⁸ It was followed two years later by the adoption of the White Paper “A Strategy for Europe on Nutrition, Overweight and Obesity related health issues.” ²⁹ Environmental protection is now at the core of the 2020 Farm to Fork Strategy, the EU’s main effort to build a sustainable food system, one that “provides and promotes safe, nutritious and healthy food of low environmental impact for all current and future EU citizens in a manner that […] is robust and resilient, economically dynamic, just and fair, and socially acceptable and inclusive.” ³⁰

The Farm to Fork Strategy has been hailed as heralding a new vision for EU food law. This is accurate when looking at the integrated perspective it presents on the food chain, from farm to fork, and its attempt at breaking the silos between interrelated fields, namely food, agriculture, environment, health, consumer protection, etc. From the perspective of food consumption, however, it does not challenge the aforementioned consumer empowerment paradigm. This is true on two accounts: the spirit of the Strategy and the measures contained therein.

As acknowledged in the Strategy, consumer values have changed over time: “people pay increasing attention to environmental, health, social and ethical issues and they seek value in food more than ever before.” ³¹ Yet, the optimal way to harness these changing values remains to provide “clear information that makes it easier for consumers to choose healthy and sustainable diets [that] will benefit their health and quality of life.” ³² The Farm to Fork vision of the average consumer is the “ethical” consumer, i.e. one who is increasingly interested in and increasingly expected to pursue sustainability goals through the act of consumption. ³³ This notion is not entirely novel. In food law, this vision permeates the Food Information Regulation (FIR), according to which food information shall provide “a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.” ³⁴ It also permeates the Court of Justice’s case law, such as in Psagot, a case on the appropriate labelling of foodstuffs originating from a territory occupied by Israel. ³⁵

The ethical consumer that emerges from the Farm to Fork Strategy is not only interested in the physical attributes or function of a product but also in the related methods of production and distribution. Ethical consumption is a way for consumers to express their identity and to offer an alternative forum for political action. ³⁶ Such consumer attitudes are also encapsulated in the concept of consumer-citizen, ³⁷ albeit in that case, greater emphasis is placed on the duties and responsibilities of the consumer. ³⁸ Food is a natural candidate for the politicisation of consumer choice, for it encompasses a wide range of ethical, environmental and social dimensions: fair trade, localism and short supply chains, veganism and vegetarianism, etc. This politicisation is also accompanied by a growing discourse on the healthiness of food consumption and the making of a “health conscious citizen.” ³⁹

Ethical consumerism pervades and informs the latest developments in EU consumer policy. According to the 2020 New Consumer Agenda:

Consumers across Europe are showing a growing interest in contributing personally to achieving climate neutrality, preserving natural resources and biodiversity, and reducing water, air and soil pollution. The challenge is to unlock this potential through measures that empower, support and enable every consumer, regardless of their financial situation, to play an active role in the green transition without imposing a specific lifestyle and without social discrimination. ⁴⁰

This quote shows that the shift to a more ethical vision of the consumer did not lead to a fundamental change in the tools traditionally employed in EU consumer law and policy. Information and empowerment remain at its core, with regulatory interventions pursuing two main objectives: providing consumers with the right type of information on aspects that are relevant to ethical choices – origin, production, environmental performance, etc. – and preventing disinformation and manipulative practices by business operators. Regarding the latter objective, the EU currently focuses on fighting greenwashing and ensuring that consumers have access to truthful and adequate environmental information. ⁴¹ A new legislative package is underway that comprises of measures to “empower consumers for the green transition” ⁴² and to further regulate the use of green claims. ⁴³

In the same vein, the Farm to Fork Strategy does not depart from the traditional canon of EU food law centered on consumer choice. Certainly, both the objectives of the strategy and the measures that it contains (of which there are 27 in total) address the different dimensions of the food system: food production, food processing, distribution and services, food consumption and food loss and waste. ⁴⁴ This could give the impression of a radical change of vision and overhaul of EU food law. Yet, upon closer inspection, a different picture emerges. Apart from the measures relating to the agricultural sector, the most tangible actions to be taken by the Commission, i.e. concrete legislative proposals containing binding measures, concern information and ethical consumption, understood broadly. ⁴⁵ Other crucial aspects of the food environment, as regards food composition and food advertising in particular, remain untouched or covered only by non-binding measures such as the setting of targets, ⁴⁶ conducting reviews ⁴⁷ or the adoption of self-regulatory schemes for businesses. ⁴⁸ To reiterate, while the Farm to Fork Strategy does represent a laudable effort in conceptualising the transition towards a sustainable food system, it does not constitute a change in the way food choices to be made by consumers are envisaged. Consumers are still trusted to navigate the food environment and its (increased) information labyrinth in order to make healthy and sustainable choices. Agri-food companies remain entirely free to market products that are harmful to human health and the environment, at whatever price they wish, and to massively advertise for them.

III. Beyond empowerment: regulating the food environment

To truly facilitate “the shift to healthy, sustainable diets” – one of the key objectives of the Farm to Fork Strategy – the EU needs to go beyond the idea of consumer empowerment through information-based measures (1). While continuing to raise awareness and allow consumers to make conscious food choices, the EU also needs to further shape the environment within which these choices are made. Crucially, it needs to target those that hold the most power within the system, i.e. food business operators (2).

1. Empirical and conceptual limits of information-based interventions

Firstly, one should clarify that underscoring the limits of information as a regulatory strategy does not mean discarding the approach altogether. Raising the awareness of consumers and allowing them, where they can and wish to do so, to make choices that best align with their values remains important. Adequate information is a basic consumer right. Furthermore, a key and often overlooked benefit of interventions that target how individuals reflect on choices is that they serve to increase the acceptability and therefore the effectiveness of interventions that restrict choice. ⁴⁹ The provision of information might not lead to behaviour change, but it might make people more open to interventions that aim to prescribe consumer behaviour. Research shows that lasting behaviour change rests on individuals acting on the basis of their own values and beliefs, rather than only external rewards or penalties. ⁵⁰

Nevertheless, the centrality of information as a regulatory solution needs to be challenged. Too many of the interventions contained in the Farm to Fork Strategy are “based on the premises that consumers choose food through rational and reflective processes and that the ‘well-informed, sovereign consumer’ can always choose what to buy and eat.” ⁵¹ This does not, however, adequately reflect how food choices take place in real life. Food-related behaviours, like behaviours in general, are dictated by habits, routines and emotional processes. They are profoundly shaped by the food environment. ⁵² It might seem a truism to say that information-based interventions that mostly target reflective processes are unlikely to lead to desired change, ⁵³ and certainly not on the scale that is needed to drastically re-orient consumption patterns, and build a food system respectful of the planet’s boundaries and protective of the life and health of all living beings. In the present case, the limits of an empowerment strategy are further compounded by the complex nature of what amounts to sustainability, a complex and multi-faceted concept. Choosing a sustainable product inherently means arbitrating between different characteristics. ⁵⁴ A product might be nutritionally healthy but poorly performing on animal welfare standards and have a high carbon footprint. This explains the difficulty in creating a sustainability labelling framework, as proposed in the Farm to Fork strategy, which would cover the nutritional, climate, environmental and social aspects of food products. ⁵⁵ The consumer cannot be expected to navigate through these different aspects on her own, even with the right information.

The problem with information is not only of effectiveness. All in all, the EU’s food empowerment agenda exemplifies EU law’s “excessive responsibilisation of its subjects,” demanding them “to do more and do better,” ⁵⁶ at the risk of failure. Such a programme can be described as politically alienating for citizens, insofar as it understands sustainability as a matter of personal preferences for a given lifestyle rather than a moral-political demand. ⁵⁷ As suggested by Hesselink, citizens should perhaps not understand sustainability as a concern they have as consumers, but rather as a political concern in direct conflict with their interests as consumers. ⁵⁸ This leads us to consider a more conceptual problem with the current approach. The empowerment programme does not interrogate the core objectives of EU food and consumer law, which are ensuring access to as many goods and services as possible at the lowest possible price, i.e. promoting (more) consumption. This, evidently, cannot be reconciled with the environmental needs in the 21st century. ⁵⁹ Put differently, in promoting better consumption, the EU fails to acknowledge that what is needed is less consumption. Despite growing talks of “circularity,” ⁶⁰ EU law largely remains oblivious to this (sustainability) conflict. ⁶¹

One might argue that these concerns only partially apply to food, because food consumption is not as such superfluous and, stating the obvious, is necessary to human life. Yet, the limits of the “sustainable growth” mindset appear equally relevant for the food environment, where substantial dietary shifts need to happen in the (near) future. The food on offer in the EU at present is abundant. One could even provocatively say that there is too much of it, when considering that food waste still reaches alarming proportions. ⁶² Europeans also eat more than they should – that means, roughly speaking a daily energy intake of 3,540 kcal in 2021, at around one-third more than the recommended quantity. ⁶³ They eat in particular too much of certain foods, meat and processed food high in fat, salt and sugar (HFSS foods). ⁶⁴ Meat consumption massively contributes to greenhouse gas emissions ⁶⁵ and is at the root of a food system that inflicts pain to animals on an immense scale. These facts illustrate that while millions of Europeans still do not have access to a sufficiently nutritious meal every second day, ⁶⁶ the problem is above all one of disbalance and inequality of access, not one of food security.

Finally, information-based solutions are not only of limited impact for the purpose of radically transforming the food system, but are also likely to divert time, focus and resources, and hence, support away from the more substantive and effective solutions needed for such a change to happen. ⁶⁷ The reality and extent of this phenomenon might be debated, ⁶⁸ yet it seems arguable that experts, policymakers and the public can only consider a certain number of possible options at the same time. Framing the regulatory discussion in a certain way, e.g. as a question of the responsibility of individuals for their own lifestyle, like the industry has done for so many years, ⁶⁹ limits the scope of possible options. It is telling that so much of the current discussion on nutrition at the EU level is focused on front-of-pack labelling, and the Nutri-Score in particular. ⁷⁰ This tool, no matter how useful it might be for conveying nutritional information, will always play a minimal role in the transition towards healthier and more sustainable diets overall.

2. Acting on the food environment

The Farm to Fork strategy, in spite of good intentions behind it, has so far failed to deliver. Most of the promised initiatives are yet to be turned into proposals by the European Commission. Some of the legislative proposals that were formally made have in turn been significantly watered down. The Commission has for instance only delivered a fraction of its promised animal welfare package in the form of some new rules on the transportation of animals ⁷¹ . Others have been defeated in Parliament, such as the proposal for a regulation on the sustainable use of pesticides. ⁷² As rightly put by Schebesta, the Farm to Fork initiative should now be conceived of as a “first step in a larger and longer transformative process.” ⁷³

More fundamentally, what is needed is a new vocabulary and a new approach towards viewing food as a common good. ⁷⁴ Food choices cannot merely be seen as private acts of consumption but must be regarded as elements of a broader system that concerns the society as a whole. ⁷⁵ EU law, because of the importance given to free movement and the focus on individual rights, ⁷⁶ may not appear as the natural forum for driving this food environment transformation. Taking the demands for more sustainability seriously requires challenging some of the very core foundations of the EU internal market, as briefly laid down in Section II. ⁷⁷ Yet, it would be a mistake to think that EU law cannot accommodate some radical reforms aimed at redesigning the environment within which consumers make their food decisions. A lot can be done under the Treaties, at the European, national and local levels.

The changes needed have been usefully summed up by the Group of Chief Scientific Advisors to the Commission:

A coherent and transformational policy mix should couple direct measures on the food environment with softer measures aimed at influencing and reshaping social norms. The former could include taxes, bans and mandatory product reformulations, and in general do not require high agency at consumer level. The latter should include interventions on choice architecture and nutritional profiling, and should be aimed at improving consumers’ knowledge, skills and awareness. ⁷⁸

In particular, action is needed in three areas: advertising and promotion, food composition and food pricing. ⁷⁹

The EU’s approach towards regulating advertising for unhealthy foods and alcoholic beverages is notoriously light-handed. ⁸⁰ It consists mostly of ambiguous and non-binding commitments not to aim harmful advertising specifically at minors and to adopt self-regulatory schemes. ⁸¹ Overall, under EU law, companies are allowed to directly advertise for any food or beverage, through any given media format. ⁸² Having more advertising restrictions for products that are most harmful to human health and the environment would thus be a priority. As Kaupa puts it (somewhat dramatically) – can we continue “promoting the apocalypse”? ⁸³ The EU heavily regulates advertising for tobacco products, in the form of a general ban of cross-border tobacco advertising. ⁸⁴ The Court of Justice considered these rules to be lawful under the EU’s internal market powers contained in Article 114 TFEU. ⁸⁵ It is thus clear that the EU has a competence to enact rules, and possibly even bans, on cross-border advertising for certain categories of foods. ⁸⁶

Consequently, in the short-term, action on advertising and promotion should be threefold. The first step would be to adopt the nutrient profiles provided for in the Food Claims Regulation, a legislative move long overdue. ⁸⁷ These profiles are meant to limit the possibilities of promoting HFSS foods through the use of nutrition or health claims. In concrete terms, foods that do not comply with such nutrient profiles, e.g. because of the salt, sugar or fat content in excess of a certain amount, would not be able to use messages that claim a particular health benefit for their products, such as “good for your cardiovascular health” or “rich in fibre.” Worryingly, not only is there no sign of these profiles being adopted at the moment, but the EU legislator, under its revision of the “Breakfast Directives,” ⁸⁸ is set to allow for the use of potentially misleading new claims, such as the use of the message “contains only naturally occurring sugars” for fruit juices. ⁸⁹ This is clearly a step in the wrong direction.

The second priority should be to restrict advertising to kids more severely, in lieu of the ineffective self-regulatory approach adopted up until now. ⁹⁰ Children are less likely to recognise the difference between what constitutes truthful information and promotional messages. There is clear evidence that children are significantly exposed to advertising for unhealthy foods, which consequently influences children’s dietary habits. ⁹¹ Generally, all promotional techniques directly aimed at children should be prohibited. This is not the case in the EU, which stands firm in its preference for non-binding and voluntary schemes, ⁹² as illustrated by the recent adoption of an EU Code of Conduct on Responsible Food Business and Marketing Practices within the framework of the Farm to Fork Strategy. ⁹³ To be effective, self-regulation must be accompanied by the credible threat that unless meaningful steps are taken by private operators, binding regulation will follow. ⁹⁴ This threat, however, is clearly absent at the EU level.

Alongside regulatory action to limit the reach of harmful advertising, the EU should also stop supporting the promotion of unsustainable productions. Meat is a case in point. As part of the Common Agricultural Policy, the Commission continues spending millions of euros on promoting the consumption of meat, while it is established, as discussed above, that this activity is a major contributor to greenhouse gas emissions, not to mention the carcinogenic effects of certain types of red and processed meat. ⁹⁵ The latest EU programme for the promotion of agricultural products shows that meat consumption will continue to receive extensive financial support in the coming years. ⁹⁶ The Commission is currently undertaking a review of this policy, “with a view to enhancing its contribution to sustainable production and consumption, and in line with the shift to a more plant-based diet, with less red and processed meat.” ⁹⁷ More generally, a reorientation of CAP subsidies is needed, as at the moment 80% of it supports emissions-intensive animal agricultural products. ⁹⁸

The main task ahead remains taking sufficient action on food composition. Setting “mandatory, ambitious, comprehensive and time-specific food composition targets for added sugars, salt and saturated fat for all food categories” is deemed a priority by experts. ⁹⁹ Yet, the EU has so far been reluctant to act in that area. Instead, the EU has relied on self-regulation and does not seem to favour any change of approach. ¹⁰⁰ The EU Code of Conduct also aims to steer food reformulation to “improve the[ir] nutritional composition and environmental footprint,” but there is no reason to believe that its outcome will differ from the poor results of the past. ¹⁰¹ The issue here is, once again, not one of a lack of power, since the EU is legally competent to adopt ambitious and comprehensive rules on food reformulation, under Article 114 TFEU, ¹⁰² to improve the nutritional composition of foods put on the market, like it has recently done with trans fatty acids. ¹⁰³ More fundamentally, it might also be time to rethink the traditional dichotomy between food safety and food quality, ¹⁰⁴ whereby foods that are not unsafe within the meaning of EU food safety law, yet clearly harmful to health, can be put freely on the market without restrictions. The “hidden” sugars or the trans fats added in processed food, insofar as these are not natural and are often consumed by consumers without conscious awareness, could perhaps be considered as hazardous agents within the meaning of the General Food Law Regulation. ¹⁰⁵

Lastly, the EU could also consider taking further action regarding food pricing, a particularly sensitive issue for consumers. It is crucial that the healthy and sustainable choice is also the affordable one. At the EU level, there is a clear competence for indirect taxation, be it through the VAT system or excise duties, under Article 113 TFEU. Whether there is political appetite for this is a different question altogether. A fat tax or a tax on sugar-sweetened beverages could be an option, although one should be wary of the potential adverse effects of such a policy on the most disadvantaged segments of the population. ¹⁰⁶ At the very least, VAT legislation should be adapted to ensure that it does not prevent Member States from using the lower rates in a targeted manner to benefit healthy consumption. ¹⁰⁷

IV. Truer empowerment: decentring and democratising EU food law

This brief overview shows that there is ample scope for measures that can shape the food environment in a manner conducive to making healthier and more sustainable food choices, even within existing legal instruments. Even if primarily aimed at the agri-food industry, it is unsure, to say the least, that these measures would benefit from a broad support in the population and among Member States. The Farm to Fork Strategy has shown that there is little appetite for change in EU food law and policy. The EU cannot ignore the current wave of discontent growing on the continent, aimed in particular at its green policies. ¹⁰⁸ Opposition to the EU originates from local economic and industrial decline combined with lower employment, ¹⁰⁹ and any reconfiguration of the EU food system will generate losses for some territories and segments of the population. Further, agri-food topics, because of the particular importance of food for local and national identities, are particularly likely to fuel disagreement in society. ¹¹⁰ Unfortunately, many of the feelings that people hold towards their food consumption are disingenuously exploited by those who oppose the transformation of the system (1). Rather than pandering to gastronationalist and reductive discourses on food choices, we should collectively explore new avenues to truly re-empower consumers and make more space for local claims and diversity in EU food law (2).

1. Food, the individual and the collective

Food resonates strongly with our individual and collective selves. It affect and respond to political agendas and is used in in the EU as a medium of cultural politics that demarcate local boundaries and identities. ¹¹¹ As many past and current examples show, real or perceived threat to culinary traditions and “heritage products” ¹¹² are likely to give rise to political mobilisation. In 2017, the Belgians reacted with outrage to the news of a possible ban by the EU of the double cooking of fries, a method essential to the local frietcultuur. ¹¹³ Recently, the fear among the French that the new Packaging and Packaging Waste Directive ¹¹⁴ would prohibit the sale of French camembert in its traditional wooden boxes led to the introduction of a last-minute amendment to exempt the boxes from the new rules. ¹¹⁵ Questions of paternalism are also looming in the background here. ¹¹⁶ In simple terms, people react negatively to public injunctions as to what they should eat. The layperson – expert conflicts that emerge in the management of food risks have the potential to be reframed as opposition to EU intervention. ¹¹⁷

Food law reforms inevitably give rise to sensitive disagreements, which are unfortunately exploited to serve other political or economic purposes than the simple defence of heritage. The current debate on the Nutri-Score label and the adoption by the EU of a mandatory front-of-pack labelling scheme is a very good example of such exploitation. ¹¹⁸ The Nutri-Score is a label which attributes a “grade” to food products, in the form of a coloured letter from A to E, on the basis of their nutritional content. In Italy, where opposition to the label is the strongest, ¹¹⁹ a coalition of industry interests, supported at the highest level of government, has for years been leading a coordinated attack against the Nutri-Score, among other false claims on the grounds that it would specifically penalise high quality Italian products protected by a geographical indication. ¹²⁰ Evidence shows that Italy’s activism has, at least in part, successfully manage to convince the Commission to adjourn its legislative proposal sine die. ¹²¹

This is not to say that food does not raise serious cultural and ethical questions. ¹²² It seems safe to say that no one dreams of a supranational bureaucracy forcibly imposing a standardised diet on all Europeans. As recognised by the Commission long ago, “the diversity of food cultures throughout the European Union constitutes a valuable asset that ought to be respected.” ¹²³ That Italians perceive Parma Ham and Grana Padano as good products, because of their gustative qualities and their importance for Italian heritage, is understandable, defendable even, and no nutrition label will ever change this. If anything, the EU provides protection to traditional food products through its various quality schemes (e.g. Protected Designation of Origin, Protected Geographical Indication) ¹²⁴ and has been successful in “exporting protection” to the world via its trade agreements. ¹²⁵ The Nutri-Score clearly raises questions as to the relative treatment of traditional products compared to ultra-processed foods, but these issues deserve a much more substantive debate than the fake news that have been propagated at the highest level of the Italian government. ¹²⁶

The Nutri-Score debate is a perfect example of the excesses of gastronationalism, “a defense mechanism […] deployed mainly by the state when symbolic boundaries represented by food are perceived to be violated or under threat.” ¹²⁷ Gastronationalism, as aptly argued by De Witte, pervades the management of EU quality schemes today. These are captured by Member States and international conglomerates to serve their own economic and political purposes, often to the detriment of small producers and local communities. ¹²⁸ Through food, the identities of consumers and citizens are reduced to their nationality, although individuals may also perceive themselves on the basis of a myriad of other characteristics. ¹²⁹ National identities, which ought to be respected under EU law, ¹³⁰ have come to occupy an excessively prominent place in current EU politics. The reality is that in a pluralist society “identitarian alienation” is unavoidable, in the sense that democratic citizens do not “have a right to see all their interests, reasons, and ideas expressed in the laws that apply to them.” ¹³¹

Furthermore, there is something profoundly disingenuous in seeing the food industry defend “traditional” products and ways of life, while there is nothing traditional in the way we eat and what we consume today. The mass production and consumption of highly processed and palatable HFSS foods has shaped prevailing norms and gustatory preferences in favour of sweeter and saltier ready to eat food. ¹³² Our food habits have dramatically changed over the last half a century – a change directly responsible for the rise in obesity, overweight and associated diseases in the general population. ¹³³ The cheap ultra-processed foods that flood the market are engineered to be “irresistible” and to lead to behavioural and neurobiological changes consistent with addictive processes. ¹³⁴

This leads us to a second topic of disagreement regarding food choices: the framing of public intervention as paternalistic and the use of that argument to resist such intervention and advocate for more education and information instead. ¹³⁵ Paternalism is a serious and complex question of political philosophy. ¹³⁶ To be clear, it is natural that consumers wish to continue to express their values and seek pleasure in and through food. One should recognise that eating plays different roles in people’s lives, that it is a source of nutrition and health, but also has social, economic, and personal value and disvalue of various sorts. ¹³⁷ Yet, the truth is that most consumers are no longer in control of their diets, because of the nature of the foods supplied to them, because they are almost entirely cut-off from farmers and primary food producers and because of the economic constraints they face. The accusation of undue paternalism also cannot be levelled against most of the solutions described in Section III.B of this contribution. There is nothing paternalistic in limiting the reach of unhealthy advertising or making transnational companies responsible for the damage they have done to the environment. When it comes to food composition, requirements as to the content of sugar, fat or salt in food are also minimally paternalistic, to the extent that consumers are most likely not aware of the precise content of the processed food they are currently eating in any case. ¹³⁸ In other words, few people “gain enjoyment from consuming trans-fats in and of themselves; they just happen to be placed in some of the foods we eat.” ¹³⁹

2. Bringing in a plurality of voices

Agri-food debates at the EU level are becoming increasingly politicised, as is the case for EU politics in general today. ¹⁴⁰ This brings challenges but also offers opportunities for a much-needed debate on the future of EU food law and policy, and, one would hope, a reconsideration of some of its fundamental paradigms. Treating food “as a mere commodity, while ignoring its multiple dimensions and the various other functions it fulfils, stifles our institutional imagination as to how its production and consumption could be governed.” ¹⁴¹ What this entails may vary, but one of the ways forward is to make more space for local and social innovations in the food system, ¹⁴² for instance by encouraging short food supply chains or community-supported agriculture, and building civic food networks. ¹⁴³ The idea of a “just transition” to sustainable futures, one that does not leave those most economically fragile behind, also provides a good springboard for discussing the role and place of individuals, communities and marginalised groups in driving systemic changes. ¹⁴⁴ There is scope in EU law-making, also beyond food and the environment, for a more comprehensive acknowledgement of diverse worldviews, knowledge and livelihoods. ¹⁴⁵ This approach strikingly resonates with what Azoulai describes as the central dilemma currently facing European law: “to recover the continuity with the genuine experiences of ordinary people, willing to re-establish local communities and prone to de-institutionalizing Europe whilst, on the other hand, not compromising the transnational and emancipatory sense of the European project.” ¹⁴⁶

Where does that leave us, EU lawyers? EU law strives for uniformity and rationality. It is focused on the removal of barriers to trade and regulatory differences and appears ill-equipped to deal with claims that are not based on some measurable or quantifiable degree of risk to human health or the environment. ¹⁴⁷ This is not only due to its inherent characteristics as a supranational norm but also due to the uniformity seeking nature of the internal market project. Inevitably, making more space for local approaches involves accepting a degree of fragmentation. This might mean that when a political compromise on reaching a high level of consumer, health or environmental protection cannot be found at the EU level, amendments to EU legislation may be necessary so that Member States are allowed to act again. ¹⁴⁸ A greater use of flexible modes of harmonisation, minimum and partial harmonisation in particular, ¹⁴⁹ would not only make room for more diversity but would also allow for experimentation to be done at the Member State or local levels. ¹⁵⁰ This is especially valuable where many of the effects of sustainable food policies are not fully known. Whether this can lawfully be done in all circumstances under the EU’s internal market harmonisation powers is an open question. ¹⁵¹ Additionally, it is crucial that free movement and competition rules are no used to prevent Member States or other local authorities from adopting useful sustainability measures, like it has been the case in the past. This means applying the proportionality principle in a manner that acknowledges the multi-dimensional aspect of sustainability in order to make more space for complexity, precaution and experimentation. ¹⁵²

The regulation of food retail environments is an example of a policy that might be best adopted at the local level and whose development could be hampered by EU law. Local authorities may want to adopt rules that regulate the density of unhealthy food outlets in certain zones, for instance keeping them at a certain distance from schools, or rules restricting retail marketing strategies such as placing candy bars and sweets at checkout counters. ¹⁵³ While these rules probably escape the purview of EU law as far as their effect on certain types of foods is concerned, ¹⁵⁴ they are likely to restrict the freedom to provide services and the freedom of establishment, as enshrined in particular in the Services Directive. ¹⁵⁵ Justification is possible, but always subject to the uncertainties of proportionally and evidence requirement.

As briefly sketched out in Section III.2., EU law has a crucial role to play in fostering a healthier food environment, because both regional and global solutions are needed. Reinventing our food system must be coupled with greater participation by consumers and citizens. ¹⁵⁶ Participation “provides decision-makers with a richer set of reasons and rationalities, beyond scientific and technical input,” bringing in the knowledge and non-economic values of the lay public and local communities, and improving the substantive quality of the decision. ¹⁵⁷ In their enlightening book, Barnhill and Bonotti propose a pluralist “public reason framework for healthy eating efforts.” This can be broadened to sustainable eating, whereby different kinds of values, including but not limited to autonomy and health, can be factored into the public justification for healthy eating efforts. They make recommendations about institutionalising the use of this framework by incorporating into policymaking a process of consultation and deliberation that specifically makes space for ordinary citizens, advocacy groups, and the representatives of any affected groups. ¹⁵⁸ While primarily meant for local and community-led policies, these principles can be implemented at all levels of policymaking. In that regard, the Conference on the Future of Europe, although its concrete results may be limited, ¹⁵⁹ may offer new avenues for participation. For instance, a citizens’ panel on food waste took place between December 2022 and February 2023. 147 participants gathered to work on 23 recommendations ahead of the Commission’s proposal on the Revision of food waste and textile aspects of the EU waste framework Directive. ¹⁶⁰ The Strategic Dialogue on the Future of EU Agriculture, which appeared to many as a poor dressing to make up for the current deadlock on the Farm to Fork Strategy, might also reveal interesting opportunities. ¹⁶¹ As is often the case in EU participatory initiatives, one needs to be careful that the voices of those who hold already a significant amount of power in the system, be it economic or scientific, are not over-represented. ¹⁶²

V. Conclusion

The current situation with respect to the food environment in the EU contains somewhat of a paradox. The agri-food reforms put in motion by the EU have faced considerable opposition from a range of actors, including Member States, fuelling the surge in right-wing populism and nationalism across the continent. At the same time, those proposed reforms only constitute modest steps towards the building of a sustainable European food system, and, more generally, to adapting our economy to the (sustainability) challenges ahead. This is a sobering observation.

While others will be better placed to analyse this contradiction, the present article limits itself to making one hopefully relevant contribution to the debate – it is time to shift the EU’s discourse and practice on green and healthy consumption. It is time to demand less of individuals (in contrast to the present approach of “you are what you eat and you vote with your fork”) and to truly target those that hold the most power in the food chain, namely food business operators. Labels are useful, but what is sorely needed is to build food environments that truly empower consumers to make healthy and sustainable choices. For a start, this means limiting the ability of the industry to promote and offer an ever-greater supply of cheap food products that are harmful to human health and the environment as well as limiting the reach of advertising for such products.

Going one step further, it is the status of food in (EU) law that needs to be rethought beyond mere commodification. It is argued that this reimagining is the only way to do justice to the special status of food in our lives and to alleviate feelings of alienation that could be felt by European consumers. This requires legal and political creativity and would no doubt constitute a significant challenge to current ways of viewing the role and place of food, consumers and economic relations in the EU internal market. However, more flexibility and more public participation should not be seen only through the prism of fragmentation, but rather as a way to truly bring the farm to the fork of each individual consumer.