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5 Eur. J. Risk Reg. 491 (2014)
Food, Safety and the Behavioural Factor of Risk

handle is hein.journals/ejrr2014 and id is 523 raw text is: Food, Safety and the Behavioural Factor of Risk | 491 Food, Safety and the Behavioural Factor of Risk Wieke Huizing Edinger* This paper aims to demonstrate that the current application of the concepts of risk and un- safety in Regulation 178/2002 (GFL) results in a grey area within EU food safety regulation. By means of the food safety risk assessment of aspartame it is illustrated that grey area foods although not 'unsafe according to legal definition, could compromise human health because of i.e., their nutritional composition. It will be argued that the grey area emerges from a narrow focus of food safety risk assessment within the ambit of the GFL, which dis- regards certain types of hazard and causes an information gap with respect to how food consumption, eating behaviour and health are interconnected. At the same time, the scope of food safety in the GFL is restricted to what is considered normal consumer behaviour in view of the information provided on food labels or generally available in society. In do- ing so, the legislator has set rather high standards for what may be expected of the average consumer in terms of the understanding and avoidance of behavioural risks. As a result, the consumer bears the responsibility for the consequences of the information gap. 1. Introduction When is food safe to eat and when is it not? The majority of consumers are likely to answer this question by pointing out that safe food should not harm their health - in any way. Within the con- text of EU food law, however, it is not always that easy or straightforward to distinguish between safe and unsafe food. Regulation (EC) 178/2002,1 which is commonly known as the General Food Law Regulation (GFL) PhD Fellow, Department of Food and Ressource Economics, University of Copenhagen. 1 Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general princi- ples and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (GFL). The GFL sets out general principles and re- quirements of EU food law and provides, as such, the general framework on which more detailed food legislation is based. 2 See further on EU food safety regulation and the GFL, e.g.: Alberto Alemanno, Trade in Food. Regulatory and Judicial Ap- proaches in the EC and the WTO, (London: Cameron May, 2007); Caoimhtn MacMaolin, EU Food Law. Protecting Consumers and Health in a Common Market, (Oxford - Portland Oregon: Hart Publishing, 2007); Bernd van der Meulen and Menno van der Velde, European Food Law Handbook, (Wageningen: Wagenin- gen Academic Publishers, 2008); Raymond O'Rourke, European Food Law, 3rd ed (London: Sweet & Maxwell, 2005); Anna Sza- and which provides a general framework for EU food law, does not clarify when food is safe.2 Instead, it prohibits the placing on the market of unsafe foods,3 thus focusing on ruling out unsafety rather than es- tablishing safety.4 The implications of such negative definition of food safety in the EU will be discussed in this paper. The concept of unsafety, within the ambit of the GFL, is a legal construction made operational by means of food safety risk analysis. ,6 Food safety risk analysis, in turn, comprises a systematic way of gath- 3 4 5 6 jkowska, Regulating Food Law (Wageningen: Wageningen Acade- mic Publishers, 2012). Art. 14(1) GFL. See further on this issue: Bernd van der Meulen, The Core of Food Law. A Critical Reflection on the Single Most Important Provision in AlI of EU Food Law, 3 European Food and Feed Law Review (2012), pp. 117-125, at p. 118. Art. 3(10) GFL. The main risk-related terms in the GFL are based on those provid- ed by the Codex Alimentarius Commission (CAC), see: Codex Alimentarius Commission, Procedural Manual, 21th edition 2013, available on the internet at: ftp://ftp.fao.org/codex/Publica- tions/ProcManuals/Manual_21e.pdf, at p. 121 (last accessed 13 October 2014). The CAC, in turn, was influenced by the term inol- ogy in the Agreement on the Application of Sanitary and Phy- tosanitary Measures under the WTO (SPS-Agreement). See for an EJRR 4|2014

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