Food law in focus
The 19th FLMR Autumn Symposium, which for once did not take place in autumn but on 11/12 February 2021, examined the interplay and tension between official and private enforcement in food law.
The Centre for German & European Food Law (FLMR), which has existed
at the Faculty of Law, Business & Economics at the University of
Bayreuth since 1990, is part of the focus area of “Food & Health
Sciences”. The tasks of FLMR and its members range from the scientific
analysis of current food law issues in a national, European, and
international context to teaching events – for example, as part of the
master’s programme in Food & Health Sciences – and the organisation
of the FLMR Autumn Symposium, which is well known and appreciated among
experts in the field.
In February 2021, well-known speakers from science, administration, the consumer community, and the private sector met virtually for this purpose, due to the pandemic, for a discussion involving over 200 participants.
Prof. Dr. Kai Purnhagen, LL.M., stated that food law boasts a modern and forward-looking mix of private and public law enforcement, and criticized the often knee-jerk reactions of politicians as unhelpful. Instead, according to Purnhagen, making precise, individual adjustments was necessary. The discussion revealed the need for improvements in information gathering for both civil law and official law enforcement.
Prof. Dr Thomas Klindt, lawyer in Munich and honorary professor at the University of Bayreuth, focused on the aspect of consumer protection in his address. He critically examined, among other things, the practice of competitors “playing bank shots”, according to which they provide information to the authorities in order to establish initial suspicions to start investigations. Klindt warned against adopting the punitive damages system of the American legal system for structural reasons.
The question of whether the right to informational self-determination is still an effective barrier to official consumer information in the light of new Federal Constitutional Court (BVerfG) jurisprudence (Right to be Forgotten I) was addressed by Prof. Dr. Florian Becker from the University of Kiel. The discussion ranged all the way to the current red-hot issue of the ECJ not granting legal persons a fundamental right to data protection.
Prof. Dr. Markus Grube, lawyer in Gummersbach, then addressed from various perspectives the definition of “infringement” of food law regulations, which is not easy to circumscribe, and which is merely outlined as “non-compliance” in Art. 1 para. 2 Control Regulation.
Stephan Ludwig from the Göppingen District Office rounded off this complex of topics with his experience in official practice. In the discussion, there was a call, among other things, for authorities to make their contribution to applying the norm of § 40 I a LFGB in conformity with the Constitution.
Dr Christian Bobbert, BMEL, then reported on the 4th LFGB Amendment Act, expected in summer 2021, and the partial new versions of the control regulations. He went into similar detail on the planned changes, for example, to improve the monitoring of online trade and to improve the traceability of foodstuffs, as well as on the national peculiarities to be taken into account and the relationship to EU law.
Dr. Edwin Ernst from the Baden-Wuerttemberg Ministry for Rural Areas and Consumer Protection explained whether and how private certification systems are to be taken into account in the context of official assessments. The speaker questioned these systems with regard to their informative value in the federal environment, and their potential and risks, among other things.
Finally, Robert Simon, former research assistant at FLMR, presented time-temperature indicators as an intelligent element of labelling in cold chain management. He also addressed liability issues associated with the use of such indicators.
The second day of the event started with a presentation by Susanne Einsiedler from the Federation of German Consumer Organisations (vzbv), in which she discussed the vzbv’s enforcement activities in food law and presented a summary of current disputes. The discussion showed that a networking of the authorities with consumer centres for information on proceedings in the area of private law would be desirable.
Jürgen Gloser from Hipp-Werk Georg Hipp OHG presented the challenges in quality assurance from the point of view of a baby food manufacturer. He addressed, among other things, problems with the use of so-called multiple source substances, such as the maximum values that are often not set nationally for this.
Anke Kölling, Lower Saxony Ministry of Food, Agriculture and Consumer Protection, spoke about the traceability of food, covering a wide range of topics including guidelines on traceability and the activities of the LAV (state pharmacists association) working group.
Dr. Petra Alina Unland, Dr. August Oetker Nahrungsmittel KG, examined the legal and practical problems of nutrition labelling by means of the so-called Nutri-Score, and showed that distortions occur in particular when weighing favourable and unfavourable nutrients. In fact, certain favourable nutrients as well as freeze-dried nutrients are not taken into account, and the calculation methods for the ingredients of the LMIV (food information regulation) are different from those for the information according to the Nutri-Score. In the discussion, the suitability of the Nutri-Score as an instrument of consumer information was generally called into question.
Rochus Wallau, EDEKA Südbayern Handels Stiftung & Co. KG examined pest management in food processing facilities.
Oliver Huizinga, Foodwatch e.V. and Dr. Markus Girnau, Lebensmittelverband Deutschland e.V. discussed the importance of NGOs and their influence on legislation and food monitoring. Oliver Huizinga put the influence of Food Watch e.V. into perspective, and illustrated that although the supposed power of NGOs corresponds to a certain influence on media reporting, there is still a lack of direct influence of their campaigns on executive or legislative decisions. However, according to Dr. Markus Girnau, the importance of NGO campaigns has increased considerably in recent years, especially in public awareness with regard to the food sector. Especially the high degree of emotionalisation made NGO food campaigns interesting for media coverage. In the very lively discussion, questions arose about the transparency of the membership structure and financing of Food Watch e.V., among other things. The partly abusive use of the significantly expanded information laws – for example in the form of “Topf Secret” (access to food control reports) – was also harshly criticised, especially by representatives of the authorities, with regard to the paralysis of administration that often accompanies it.