EU Food law and the Consumer

Food Law

Claire O’Leary

Introduction
Food law, in various forms, has existed for centuries. At times controversial, it impacts on the

consumer in a multitude of ways, governing, inter alia, the quality of produce made available

to the public, its treatment “from farm to fork” and any claims that may be made regarding

the benefits attaching to it. These are vital health and safety concerns. The European model

weighs these issues against the Articles 28–30 EC provisions on the free movement of goods,

giving an unsurprising result in favour of latter, one which is very clear on examination of the

case law in both areas. The legislation and jurisprudence on free movement developed earlier

and more comprehensively than Community food law, a great deal of which has been

introduced, consolidated, and restated in the wake of recent food controversies. However, the

implementation of many of the food law developments has been less than satisfactory. The

undermining effect of serious food crises has led to an almost fevered and, at times,

unnecessarily heavy-handed approach to food safety, causing massive financial losses, panic

amongst consumers, waste of perfectly safe food and huge problems for those trying to build

or rebuild public confidence in their product. The line between protecting the consumer from

likely risk and harm and protecting them from any risk, however minor, has been entirely

obfuscated.

This paper aims to examine the effect of European food law on the consumer. It will begin by

noting the provisions from which the EU obtains its competence in the food law area. It will

then outline the trends in centralised European food law. It will attempt to address the

paradoxical relationship between free movement of goods and food laws generally,

examining the appropriate balance in the use of the precautionary principle and the principle

of mutual recognition as espoused in Cassis de Dijon1, along with the effects of these

contradictions on the end user. Finally, it will give a brief analysis on the standards set by the

1
Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
Community for those wishing to take advantage of protections available for foods and

production processes specific to a particular region and the resulting benefit to the consumer.

EU Competence

The competence of the EU in governing food safety and consumer protection is provided for

in a number of Treaty Articles. There is heavy emphasis on the importance of the internal

market in many of these provisions and consumer protection appears to play just one part.

Article 25 EC prohibits customs duties and charges of equivalent effect on trade between

Member States. This applies to situations where, for example, mandatory veterinary checks

are enforced by individual Member States on imported animals. 2 The purpose of these

measures and the amount of the charge is irrelevant. If a Member State places any extra

charge on an importer or exporter moving their goods across a national border, Article 25 is

infringed and the offending provision must be abolished.

Articles 28-30 EC prohibit quantitative restrictions and measures of equivalent effect

(MEQRs) on imports and exports between Member States with some exceptions given in

Article 30 EC and in the mandatory requirements arising from the case law in this area. There

are a number of relevant cases, the most important of which are Dassonville,3 which

describes an MEQR as any trading rule enacted by a Member State that is “capable of

hindering, directly or indirectly, actually or potentially, intra-community trade”,4 and Cassis

de Dijon,5 which established the principle of mutual recognition, discussed below, and

introduced a number of mandatory requirements in addition to the Article 30 exceptions. .

2
See Case 46/1976 Bauhuis v Netherlands [1977] ECR 5. This can be contrasted with Case 18/1987
Commission v Germany [1988] ECR 5427 where the measure in question was prescribed by EU law and so was
not prohibited.
3
Case 08/74 Procureur du Roi v Benoît and Gustave Dassonville [1974] ECR 837.
4
Ibid., at para.5
5
Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649
These precedents give a broad scope to the Court to protect free trade and making it difficult

for concerns of food safety and consumer protection to be effectively raised in response.

The relevant Article 30 EC exceptions for the purpose of this paper are the protection of

human, animal and plant health.6 In order to apply this exception, Member States must

demonstrate that there is a real and quantifiable danger presented to health. This must be

supported by some scientific evidence though it need not be unanimous. This is known as the

precautionary principle. The mandatory requirements add, among others, the exception of

consumer protection. States regularly argue that national laws impeding trade are necessary

for consumer protection reasons. The Court has said that a State can potentially do this but it

is very rare that the exception will be accepted. In practice it is extremely difficult to

convince the Court to allow infringing measures to remain in place on these bases.

Article 37 EC provides for the Common Agricultural Policy while Article 95 provides for the

establishment and support of the Internal Market. Paragraph 3 of Article 95 refers to health

and consumer protection forming the basis for development in this area. Any legislation

introduced on this basis contains a safeguard clause allowing Member States to take action

where there is some fear regarding a risk to health.

Article 152 EC deals with health protection, a provision inserted by the Maastricht Treaty.

All legislation must have a high level of health protection consideration.

Finally, Article 153 EC relates to consumer protection. It, too, was introduced by the

Maastricht Treaty and provides for the right to information and protection of the health,

safety and economic interests of consumers. It permits Member States to have more stringent

6
See Case C-170/04, Rosengren [2007] ECR I-4071, where it is stated that protection of human health ranks
foremost among the derogations in Article 30 EC.
protection measures in place provided they are compatible with the Treaty. Here, the conflict

between Articles 152-153 and Articles 28-30, is quite clear.

Conflict with Free Movement of Goods

The call for greater protection of consumer safety necessitated the authorization of

restrictions on free movement of goods, something stringently opposed in the past. The

Courts have espoused the general rule of proportionality in measures affecting consumers.

Labelling has been the ‘go-to’ response for the Court when a Member State has attempted to

use the exception of health or consumer protection,7 unless in the case of ‘substantial

difference’ between two products marketed under the same name. 8 This was clarified by a

Commission Communication9 listing a series of things to be taken into account when

attempting to establish substantial difference.10

Problems also arise regarding compositional requirements set down by Member States. In the

case of Zoni,11 an issue arose where German pasta containing a mixture of wheats was

competing with the Italian domestic product, made solely from durum wheat. The latter was

more expensive to produce and arguments were made on consumer protection and fair trade

grounds. The Court found that labelling was a more appropriate response than prohibition and

that it addressed both issues raised. The label ‘pasta made from durum wheat’ could be

7
See Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA [1982] ECR 2961, (though in Case 27/1980
Fietje [1980] ECR 3839 the Court appears to oppose this general view, stating that obliging importers to alter
their labels is contrary to Article 28 provided the consumer is informed in some way), and Case 298/87 Smanor
1988 ECR 4489, an internal case to which Article 28 did not apply but where labelling was found to be the most
appropriate response.
8
Case 286/86 Ministère public v Gérard Deserbais [1988] ECR 4907 discussing the ‘substantial difference’
test, where labelling is not sufficient or the most appropriate response.
9
Commission Communication [1991] OJ C 270/2.
10
These are: a) consumer expectations, b) definitions by Codex Alimentarius and other international bodies, c)
the rules of other Member States and d) the composition and method of manufacture of the product in question.
The Member State only needs to successfully apply one of these criteria to their situation to pass the substantial
difference test but it must be proven to a substantial level. This level remains unquantified
11
Case 90/86 Zoni [1988] ECR 4285. See also, Case C-196/89 Nespoli & Crippa [1990] I-3647 and Case
C-383/97 van der Laan [1999] ECR I-731.
reserved for one hundred percent durum wheat pasta, informing the consumer and allowing

them to choose the higher quality product if they wished.

Zoni also made claims of damage to human health from eating pasta made from wheat other

than durum wheat but there was no sufficient evidence to support this.

In Commission v Germany,12 the German national laws on meat content were contested. Only

products exclusively containing meat could bear the label “meat product”. This was a clear

Article 28 issue. Health and consumer protection arguments were made by the Member State,

the former being that products containing substances other than meat contained lower levels

of protein. The Court relied on two reports, one rejecting the notion that there was a protein

deficiency problem in the German population and the other showing the detrimental health

effects of high levels of meat consumption. The Court also stated that the nutritional value of

foods is not an Article 30 issue.13

Two contrasting cases from around the same time period are Bellamy14 and Commission v

France.15 Bellamy dealt with UK food laws prescribing the maximum salt content for bread.

The UK set the level at two percent while most imported bread contained three percent salt.

The Court held that this was an MEQR and that it was not justifiable under Article 30 despite

accepted scientific evidence of a direct link between salt intake and hypertension and

coronary artery disease. Under the principle of mutual recognition it must be permitted onto

UK market. This decision is difficult to comprehend when the situation in Commission v

France is considered.

Here, France banned the sale of Red Bull, claiming the mixture of substances it contained

could pose a danger to health. France put forward reports supporting this, one of which was
12
Case 274/87 Commission v Germany [1989] ECR 229.
13
This was reinforced in Case 216/84 Commission v France [1988] ECR 793.
14
Case 123/00 Bellamy [2001] ECR I-2795.
15
Case 24/00 Commission v France [2004] ECR I-1277.
by the French Scientific Committee on Human Nutrition and one which was by the EU

Scientific Committee on Food. The former found that Red Bull contained excessive caffeine

and raised concerns two other ingredients. The latter found that while caffeine levels in

energy drinks were safe, further studies were needed to assess the dangers of the other

ingredients. As there was some reliable scientific evidence to support the French claim and

even though it was not unanimous, the ban was upheld on the basis of the precautionary

principle.

Comparing the rationale for both decisions, Bellamy clearly protects Article 28 while

Commission v France veers towards protection of health and consumers. Both had evidence

of dangers associated with food ingredients and both had studies relating to these dangers. If

anything, the risks associated with a high-sodium diet are better established than those

relating to Red Bull. In the aftermath of the BSE crisis, when the EU was ostensibly doubling

their efforts to enhance and restructure Community food safety mechanisms, Bellamy was

arguably a poor decision.

Food Labelling

With the Court promoting the use of food labelling and the increased profile of health

protection, new consolidating labelling legislation was introduced. Directive 2000/1316

developed on Directive 79/112,17 the Framework Food Labelling Directive. The latter was a

key piece of food legislation promoting free movement, consumer protection and

harmonisation of labelling across all Member States. The former defines “labelling,18

16
Directive 2000/13 EEC of the European Parliament and of the Council of 20 March 2000 on the
approximation of the laws of the Member States relating to the labelling, presentation and advertising of
foodstuffs, OJ L 109/29.
17
Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States
relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer, OJ L
033/1-14.
18
Article 1 of Directive 2000/13/EEC defines labelling as any “words, particulars, trademarks, brand name,
pictorial matter or symbol relating to a foodstuff and placed on any packaging, document, notice, label, ring or
collar accompanying or referring to such foodstuff”. See also, Case C-144/93 Pfanni Werke Otto Eckart KG v
provides the requirement that labelling not mislead the consumer in any way,19 lists the items

to be compulsorily listed on food products,20 and deals with issues relating to food names,21

including Protected Geographical Indications, (PGIs), Traditional Speciality Guarantees,

(TSGs), and Protected Designations of Origin, (PGOs), discussed below. The provision

covering the listing of ingredients22 appears quite comprehensive but there are issues with the

additive labelling aspect of it. Additives do not have to be listed by name, only by E-number.

This prevents consumers from easily finding out what is contained in the food they eat. There

is also some evidence that additives can cause health problems.23 Many additives need not be

listed if they serve no technological function in the finished product. Finally, Directive

2000/13 provides for a Quantitative Ingredient Declaration, (QUID), which obliges producers

to place exact quantities on the ingredient list though it only applies to ingredients to which

reference has been made in packaging.

Directive 2003/8924 deals with the listing of allergens. Article 16 deals with the language of

the labelling. It must be in a language easily understood by the consumer unless the

consumer is informed by other means. It does not have to be in the national language25 and

something other than labelling can inform the consumer.

Directive 90/49626 defines a ‘nutrition claim’27 as any representation that states, suggests or

implies nutrition properties provided or not provided. It also provides that nutrition labelling

Landeshauptstadt München [1994] ECR I-4605.

19
Ibid., Article 2(1). This relates to the characteristics of the product. The label must not falsely attribute
properties to the product which it does not possess. See also, Case 298/87 Smanor for discussion of
‘characteristics’.
20
Ibid., Article 3.
21
Ibid., Article 5.
22
Ibid., Article 6.
23
For example, E-110 can cause hyperactivity.
24
Directive 2003/89/EEC of the European Parliament and of the Council of 10 November 2003 amending
Directive 2000/13/EC as regards indication of the ingredients present in foodstuffs, OJ L 308/15.
25
Case C-369/89 Piageme and others v BVBA Peeters [1991] ECR I-02971.
26
Council Directive 90/496/EEC of 24 September 1990 on Nutrition Labelling for Foodstuffs, OJ L 276/40-44.
27
Ibid., at Article 1
is optional28 although it further states that it is only compulsory where a nutrition claim is

made.29 To reinforce this, Regulation 1924/200630 states that any claim made now has to be

scientifically verifiable.

This requirement for scientific evidence permeates throughout the main legislation in the area

of food law, the most significant piece of which is the General Food Law.31 This was pre-

empted by the Commission White Paper on Food Safety which was published after the poor

handling of the BSE crisis by the Community. This crisis was the motivation for the

sweeping changes in food safety and consumer protection in Community law.

The BSE Crisis

BSE, (Bovine Spongiform Encephalopathy), originated in the UK. Though its fatal effects

were identified in 1986, the disease has a long incubation period and was identified several

years prior to this. The source of the disease was queried as being contaminated meat and

bone meal fed to the cattle. However UK meat and bone meal was exported to mainland

Europe until exports were finally banned in 1996.32 Even then there was no recall of UK meat

and bone meal in circulation in most member states to label it to ensure it was not fed to

cattle. In the same year, the link between BSE and Variant Creutzfeldt Jacob Disease (vCJD),

the human variant, was established.

The manner in which the crisis was dealt with by the EU was inadequate at best. The

Parliament produced a Report on the handling the situation.33 The first evidence of
28
Ibid., at Article 2(1)
29
Ibid., at Article 2(2)
30
Regulation 1924/2006/EEC of the European Parliament and of the Council of 20 December 2006
on nutrition and health claims made on foods, OJ L 404/9.
31
Regulation (EC) No. 178/2002 of the European Parliament and Council of 28th January 2002 laying down the
general principles and requirements of food law, establishing EFSA and laying down procedures in matters of
food safety. [2002] OJ L 31/1.
32
Decision 1996/239 EC, Commission Decision of 27 March 1996 on emergency measures to protect against
bovine spongiform encephalopathy, OJ L 78/ 47.
33
European Parliament Report on alleged contraventions or maladministration in the implementation of
Community law in relation to BSE, without prejudice to the jurisdiction of the Community and national courts,
transmissibility was found in 1990 but no further adequate investigation was done into this.

Between 1990 and 1994 all veterinary inspections for BSE were suspended and there was no

meaningful action by Europe in this time. There was no discussion by the Council on BSE.

Following the Report, a Commission White Paper was published to attempt to address the

issues raised.

Commission White Paper on Food Safety

In the wake of the BSE crisis, the Commission moved to demonstrate its commitment to

future food safety and to guard itself from further political hostility by setting in motion a

series of new measures to ensure that the Community would have a uniform and effective

strategy for dealing with any issues of food safety. One of the significant early developments

was the publication of the Commission White Paper on Food Safety34 in 2000 which set out

general food safety principles and procedures. One of the more notable changes introduced in

the Paper, was the shift in priority from protection of the internal market to consumer

protection and health.

The White Paper addressed a number of things. It recognised the need for a more coherent

and integrated food law system. This was to be implemented by introducing measures

facilitating the traceability of food from its origin to its end user. The Paper also called for

inter alia, definition of the roles of all ‘stakeholders’, greater transparency and consultation in

the legislative process, simplified decision making, better enforcement and, significantly, the

establishment of the European Food Safety Authority (EFSA). These aspirations were

realised in Regulation 178/2002 EC,35 on the General Principles of Food Law.

Regulation 178/2002 EC: The General Food Law

A4-0020/97.
34
Commission White Paper on Food Safety, COM (1999) 719.
35
Regulation 178/2002 EC.
Regulation 178/2002 EC establishes the right of consumers to safe food. It is a piece of

framework legislation, defining food and food law,36 codifying the use of the precautionary

principle37 and establishing EFSA as the primary point of reference for all food safety matters

within the EU.38 Its preamble recognises the importance of free movement of safe and

wholesome food as an essential aspect of the internal market and the significant contribution

it makes to the health and well being of citizens and to their economic interests.

Article 1 defines the scope of the legislation, which is broad in this case. All stages of

production, with the exception of private domestic production, are covered by food safety

law. A ‘farm to fork’ approach is taken, with traceability a clear priority.

Article 6 of the Regulation deals with risk analysis. This is an important aspect of the

legislation and provides a mechanism for risk assessment, management and communication.

EFSA determines the action to be taken in each case. Action can also be taken, where

appropriate, under the precautionary principle, the application of which is defined in Article

7.39 The most important remaining provisions are those on consumer protection,40 food

safety41 traceability,42 and EFSA.43

The Role of EFSA

EFSA was established in Article 23 of Regulation 178/2002 to provide scientific and

technical support to the legislature and to communicate risk. Its advice is independent. EFSA

provides the Institutions and Member States with the best scientific information available,

36
Ibid., at Article 2.
37
Ibid., at Article 7.
38
Ibid., at Article 22.
39
Article 7 states that if following assessment of the relevant information the possibility of harm is identified
but uncertainty persists, provisional risk management procedures may be taken.
40
Regulation 178/2002 EC at Article 8.
41
Ibid., at Article 14.
42
Ibid., at Article 18.
43
Ibid., at Article 22.
and to give an opinion on it. The consumer information role is one of particular importance

given the loss of public confidence in food regulation after the mishandling of the BSE crisis.

To aid transparency, all documents by EFSA must be made public.44 This transparency is

another step towards regaining consumer trust, although some information may be restricted

in the interests of intellectual property or national security protection.45 The Rapid Alert

System46 was established as a means of communicating a risk based on the analysis of data by

EFSA, enabling a rapid response by the Institutions and Member States to protect citizens

from a potential health threat.

Overall, the EFSA is still quite new but it has shown the ability to act quickly when required.

An example of this was the recent pork dioxin scare, in which Irish pork products were

withdrawn completely from the market within days of identification of the potential risk.

However, the increased food safety vigilance by Europe has some drawbacks. The dioxin

scare dealt with levels of dioxin that would only have been detrimental to human health if the

pork affected was consumed in massive quantities. Though it was an efficient action taken by

Europe, it was a very drastic and costly one for Irish farmers for what could be considered

quite a low risk to human health. There is a question mark over the need for Europe to go to

such an extreme. The action taken likely had political motivation as well as a desire to protect

the consumer.

Genetically Modified Organisms

Genetically modified organisms (GMOs) and their use in food products is a contentious issue.

Their effects on human health are not fully understood. They can also cause problems in

ecosystems, for example, when cross-pollination occurs or insects vital to the ecosystem and
44
Ibid., at Article 38.
45
Ibid., at Article 39.
46
Ibid., at Article 35.
biodiversity of an area are killed by GM pesticide-producing plants. GMOs are created by the

insertion of genes from one organism into another. This is generally done to enhance the

characteristics of the organism. Though a number of pieces of legislation pre-empted it,

47
Directive 2001/18 is the most significant in governing the use of GMOs. This framework

legislation is a consolidation exercise and made the precautionary principle central toany

action under GMO legislation.48 It stated that future legislation should be informed by public

consultation, affording the consumer, in theory, more power in the control of their food

safety. The Directive established the authorisation and notification procedure for GM

products being placed on the market49 and attempted to address the issue of including GM

products in ingredient listings in order to clearly inform the consumer to allow them to

choose the product or not. However, the key alteration in this framework legislation was the

addition of the safeguard clause in Article 23, which allows the Member State to take

temporary action where the possibility of risk is found. There must be grounds for doing this.

Where the risk is severe, emergency measures effecting a complete withdrawal of the

offending product from the market and notification to the public may be taken. The

Commission must be informed immediately where this step is taken and they must assess the

action of the Member State within sixty days.

The extensive powers of this piece of legislation clearly reflect public concern about the

potential detrimental effects on human health of GM foods. The Directive permits significant

restriction on free movement of goods by Member States and it seems unlikely that these

would have been tolerated in the past, particularly considering the economic abenefits of

producing GM products. It is hoped that the EU has reconsidered its hard-line protection of
47
Directive 2001/18 EC of the European Parliament and of the Council of 12 March 2001 on the deliberate
release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC OJ
L 106/1.
48
The Cartagena Protocol on Biodiversity was implemented by the UN in 2000 and is a key principle in the use
of the precautionary approach. It refers to the Advanced Informed Agreement, a system similar to the Rapid
Alert System.
49
Directive 2001/18 EC at Article 13.
Article 28 in favour of a more humanitarian approach as it is one that could give great

benefits if protected with similar enthusiasm.

The White Paper on Nutrition Strategy

The introduction of legislation on labelling continued with the publication of the White Paper

on Nutrition Strategy50 in 2007, which proposed radical changes in labelling including

compulsory nutrition labelling and authorization of national labelling schemes. It looked at

the findings of the DG SANCO51 consultation process52 and identified key areas for reform.

The proposals put forward were that Regulations were to be used instead of Directives as the

latter appeared not to have worked in this area in the past, that information could be provided

to the consumer in a number of ways including by the use of modern technology and that

food information is not to be misleading and should be clear and easy to understand by the

“average consumer”. That is, a consumer who is informed, observant and circumspect. This

seems overly optimistic as a large number of people appear not to read nutrition labels at all,

although many of those who do, use them in the evaluation of their food.53

It is important to add that some food concerns relate solely to consumer protection. Examples

of this are laws relating to Geographical Food Names and the Traditional Speciality

Guarantee. The purpose of these laws is to protect the reputation of the traditional regional

foods and to avoid a situation of unfair competition and misleading of consumers by products

which may be of inferior quality or flavour.

Geographical Food Names

50
Commission White Paper on Strategy for Europe on Nutrition, Overweight and Obesity related health issues
COM(2007) 279.
51
Directorate-General for Health and Consumers.
52
Labelling: competitiveness, consumer information and better regulation for the EU, DG SANCO
Consultative Document, February 2006.
53
Angela Shine, Seamus O’Reilly, Kathleen O’Sullivan, “Consumer Use of Nutrition Labels”, (1997) 99 (8)
British Food Journal 290.
These are the names of products originating in a particular area and possessing qualities

associated with that place. Once registered, no one else can use that name. The system

originated in 1992 with Regulation 2081/1992,54 and was updated in Regulation 510/200655 in

order to meet the requirements of the World Trade Organisation. This legislation established

the Protected Designation of Origin, (PDO) and the Protected Geographical Indication, (PGI).

Any product registered under either of these headings had to carry labels displaying their

PDO or PGI status as of April 2009. This is a sign of quality and, as such, is an excellent

marketing tool. A product carrying a PDO label possesses qualities or characteristics which

are due to the geographical environment and all production, processing and preparation take

place in the defined area. Only a part of the processing preparation or production need take

place in the designated region for a PGI to apply. The protections afforded to holders of PGIs

and PDOs are extensive, ensuring the name will never become a generic once registered,

prohibiting use of the name by non registered manufacturers, any misuse, imitation or

evocation of the name, any false or misleading indication and any other misleading practice.

This has lead to a number of cases discussing various facets of the protection.56 Generic

names are not registerable although they may be related to a place or region.

All manufacture of the registered product must be carried out using the traditional raw

materials, composition or method of production in the designated region. This includes

slicing, packaging and all other processing of the product.

Traditional Speciality Guarantee

54
Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and
designations of origin for agricultural products and foodstuffs, OJ L 208/1.
55
Council Regulation (EC) No 510/2006 of 20 March 2006 on protected geographical indications and protected
designations of origin, OJ L 093/12.
56
See CaseC-108/2001 C.P. di Parma v Asda Stores Ltd and Hygrade Foods Ltd. [2003] ECR I-5121 and Case
C-87/1997 Consorzio per la tutela del formaggio Gorgonzola v Käserei Champignon Hofmeister GmbH & Co.
KG and Eduard Bracharz GmbH. [1999] ECR I-1301.
Regulation 509/200657 sets out the requirements for registration of a product for a TSG. The

food should be a traditional agricultural product or foodstuff recognised for its specific

characteristics, including physical, chemical, microbiological or organoleptic properties or its

traditional method of production.58 Applications are normally to be made by groups, Member

States or third countries59 and a detailed product specification must be provided as part of the

application.60 Objections may be raised by Member States of third countries within six

months of publication of the registration in the official journal. 61

The importance of these indications is that they provide the consumer with an additional basis

on which to choose the product they wish to buy. The internal market has provided for access

to a huge number of products, making proof of quality a highly desirable commodity.

Conclusion

The obvious question of whether the Commission’s stance on safety will finally win out over

the principle of mutual recognition, stated so strongly in Cassis, must be addressed. A

decision either way will benefit consumers in one way and disadvantage them in another. The

much-maligned race to the bottom has been a rough diamond in the Article 28 crown with

respect to market access and the availability of less expensive goods for the end user.

However, it has inevitably led to a decrease in quality of some goods traded on the internal

market. This has had noticeable repercussions for consumer safety and confidence, ones

made clear in the recent food crises. To continue to prioritise free movement of goods with

the same vigour as in the past will leave the Community and its citizens open to new health

57
Regulation 509/2006 EC of 20 March 2006 on agricultural products and foodstuffs as traditional specialities
guaranteed, OJ L 93/1.
58
Ibid., at Article 2(1).
59
Ibid., at Article 7 and Article 8.
60
Ibid., at Article 6.
61
Ibid., at Article 9.
and safety threats and further political tumult. However, overzealous use of the precautionary

principle inhibits free trade, diminishing consumer choice and driving costs up.

Also, resources are limited, so if costly decisions are taken to address all risks, regardless of

their true magnitude, economic issues may arise. Currently and with more than a little

political motivation, it appears that decision makers prefer to spend money avoiding

indeterminate, abstract or insignificant risk than taking a step back and applying one of the

fundamental principles of EU law, that of proportionality.