Feature by meyer.rechtsanwälte

WORLD FOOD REGULATION REVIEW

FEATURE Accountability Strategies in a Transparent and Activist Society? ** By Prof. Dr. Alfred Hagen Meyer * Infobesity A study conducted by the German Institute for Risk Assessment (Bundesinstitut für Risikobewertung; BfR) on the interaction between the communication of risks and consumer behaviour1 revealed that 23% of those questioned considered ascorbic acid to involve risks; the word “acid” appears to trigger negative associations such as corrosiveness.2 This demonstrates that the borderline between reality and fiction is blurred. It is not surprising that modern legislation no longer endeavours to understand the law as a reflection of the real world, i.e. to legislate as necessary owing to the excesses of societal consensus (public safety law and protection against deception). Rather, the perspective of legislators has shifted towards enabling fictions or (purported) desires to become mandatory. The German philosopher Richard David Precht calls this “shifting baselines”3 in politics, the gradual loss of reality in government. NGOs gladly take this up; such a change in perspectives is their chance to turn their very own job creation schemes into reality. It becomes clear in this context that the new paradigm for relevance is quantity. In the USA this reference criterion is called “infobesity” (a compound formed of “information” and “obesity”). The louder the media echo, the more willing the legislative organs are to be driven by the motor of what is currently en vogue. The “much ado about nothing” triggered by consumer protection associations with regard to analogue

cheese was followed by a proposal for Regulation (EU) No. 1169/2011 of 25 October 2011 (which in the meantime has entered into force) “on the provision of food information to consumers,”4 put forward by a member of the European parliament who did not know or guess which is tragic enough – that Regulation (EC) No. 1234/2007 of the European Council of 22 October 2007 establishing a common organization of agricultural markets5 sets out a corresponding ban by protecting the designation of cheese. Out of the jungle and into the labyrinth – this definitely does not contribute to legal certainty. Naming & Shaming in an Activist Society Society should be reflected in the law, just as the law should reflect the debate within society. However, the reflection of the law (and of the legislator) should not be confined to an incontrollable, mere physical reaction to external stimulation. Legislators have to balance rights and obligations in an atmosphere of calm, have to shape the future beyond the bounds of emotionally charged, day-to-day matters. The predominant function of the law is to infuse normative structures with logical stability and security,6 in the sense of orientation towards values and principles that remain consistent over time, which (should) shape a country governed by the rule of law. In our modern media world a crisis situation can no longer be sat out. However, the handling of a crisis in a permanently heated atmosphere, guided by heightened actionism instead of by the explanation of life’s realities, is not the solution either. Since complex matters in life are not outlined, the public debate about solutions to a crisis have a particular, inherent source of error: the heuristic of availability.7 This can give rise to the mistaken impression that it is extremely important to implement (ever more) pre-

1 Vierbooom C., Härlin I., Simons J., Acrylamid in Lebensmitteln – Ändert Risikokommunikation das Verbraucherverhalten? in: Epp A., Hertel R., Böl., eds., Berlin, BfR Wissenschaft, 1/2007. 2 Simons, Gesunde Skepsis oder blinde Ängste? Aktuel Ernährungsmed 2010, 52. 3 Richard David Precht, The Art of Not Being an Egoist, 2010. 4 Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, Official Journal L 304/18, 22/11/2011. 5 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation), OJ L 299/1, 16/11/2007., now Reg. 1308/2013 (L 347/671). 6 Luhmann, Das Recht der Gesellschaft, Suhrkamp. 7 Tversky, A. & Kahneman, D., Availability: A heuristic for judging frequency and probability. In: Cognitive Psychology, 42 (1973), 207-232; in detail: Daniel Kahneman, Thinking, fast and slow, 2011.

ISSN 0963-4894

FEATURE

ventive measures (new laws laying down ever-stricter sanctions) against (mostly difficult-to-determine) risks. If a food crisis arises, our society of chronically multi-morbid citizens therefore runs the risk of addressing scandals while neglecting objective arguments. The fast pace of everyday life encourages us to reach conclusions on the basis of limited knowledge with the aid of assumptions; however, this can never justify legislative measures. Precisely this fact was overlooked by German legislators in 2012; the Act on the Amendment of the Law on Consumer Information of 15 March 20128 significantly tightened up Sec. 40 of the German Food Act.9 According to the provision, if there is a suspicion sufficiently supported by facts that thresholds, maximum limits or maximum quantities laid down in provisions have been exceeded or if there was a significant or repeated violation of other provisions on compliance with hygiene requirements or serving to protect consumers against health risks or deception and if one may expect a fine of at least EUR 350 to be imposed, then the competent authorities have to inform the general public while identifying the food and the food operator under whose name or company name the food or feedstuff was manufactured, treated or put into circulation. The information rights of the administration under Sec. 40 para. 1a of the German Food Act are highly alarming from the viewpoint of the rule of law. They reflect the accusation made by the general public against the food monitoring and public prosecution authorities that minor offences and criminal offences are not adequately prosecuted. Before an initial suspicion of a violation manifests itself as a proven offence in the course of an official investigation, the consumer has to be informed in advance and irrespective of any acute risk (i.e. beyond the ambit of Art. 10 of European Regulation 178/2002). Nobody is really prepared for the excessive media attention generated in the wake of such scathing official criticism. Those who are exposed to the internet are exposed to the spreading of rumours, to disinformation and (total) monitoring, according to McLuhan’s unheeded warnings in the year 1961. An informal and almost lawless online tribunal permits “retribalization within the global village”10 of the internet, where gossip is the main topic of conversation. Yet the mere satisfac-

tion of media interests is not a legitimate objective. It is important to keep in mind that politically fuelled discrepancies between (societal) aspirations and realities can end in infinite disappointment. The law should address conflicts, not introduce conflicts to society. A climate originally aimed at consensus is becoming increasingly poisoned. The perceptible result is Angst, disheartened, nervous tension among food operators and monitoring bodies. In a society that permanently mobs itself, modern (food) law is ultimately the defeat of reason. This hygiene pillorying has now (and rightly) been brought before the German Constitutional Court. In the struggle for increased transparency where food scandals are concerned, the government of the federal state of Lower Saxony had recourse to the German Constitutional Court in August 2013. In June the Higher Administrative Court of Lower Saxony had expressed serious reservations as to the constitutional compliance of the provision, especially since it does not state a deadline for deletion with regard to naming and shaming.11 The decision caused considerable irritation in the monitoring authorities; no attempt was made to publish current findings of dioxins. In summary proceedings conducted in January 2013, the Administrative Court in the federal state of Baden-Württemberg raised doubts about the constitutionality of the provision and its compatibility with EU law.12 The judges referred to proceedings before the ECJ concerning venison meat, a case where in the meantime the ECJ has held that authorities may issue a warning about foods in the absence of a sufficient suspicion of health risks.13 The German authorities have suspended enforcement of the provision until the German Constitutional Court has handed down its decision. Clarity and Truth Naming and shaming also takes place in earnest on the German website “lebensmittelklarheit.de”, which lists cases in which consumers believe advertising messages or product presentations to be deceptive. For many years the consumer advice offices in Germany have been approached by consumers who feel misled by the presentation or labelling of food products. The consumer advice offices therefore developed a concept for a new website. The project was implemented by the na-

8 “Gesetz zur Änderung des Rechts der Verbraucherinformation” of 15 March 2012 (BGBl. 2012, Part I No. 14, 21 March 2012, p. 476). 9 German Food Act = „Lebensmittel-, Bedarfsgegenstände- und Futtermittelgesetzbuch (Lebensmittel- und Futtermittelgesetzbuch - LFGB)“. 10 McLuhan, The Medium is the Message, 1967, reissued by Gingko Press, 2001. 11 Higher Administrative Court (OVG) Lüneburg, decision of 14 June 2013, Case No. 13 ME 18/13. 12 Administrative Court (VGH) Mannheim, decision of 31 January 2013, Case No. 9 S 2423/12. 13 European Court of Justice, judgment of 11 April 2013, Case C- 636/11, Karl Berger vs. Freistaat Bayern.

ISSN 0963-4894

WORLD FOOD REGULATION REVIEW

tional consumer advice office and the relevant office in the state of Hesse. It has received subsidies from the German Ministry of Food and Agriculture within the context of the initiative “More clarity and truth in the labels and presentation of food products” for more than 3 years. The objective of the website is to provide general online information on labelling, answers to questions about specific products and a discussion forum to consumers who feel – note “feel” – misled by the advertising for or presentation of products. The declared objective of the website is to coax the consumer out of his or her passive role as an observer. Consumers are to have their say and contribute actively by posting specific product examples. Food operators can also contribute to the website; they are permitted to state their position on and explain the relevant product labels, but only reactively, in a permanently defensive role – not a good thing in a mobbing society. The website is called “lebensmittelklarheit.de” (“food clarity”); the objective of the initiative is to create more clarity and truth in the labelling and presentation of food products. What a euphemism: “Clarity” – telling it like it is. “Truth” – in the vernacular the opposite of falseness, lies and errors. Ultimately, however, the truth (veritas in Latin, the real facts) merely means the interpretation of a certain view of what is true. Hence there can be more than one truth because every (reflecting) person creates his or her own imaginative truth. Furthermore, knowledge is never final so that the “truth” is always in motion. Where NGOs and consumer advice offices are concerned, the impression often arises that the term “truth” denotes a suspicion that is confirmed. Their judgment, no matter whether it might be a misunderstanding, is always a dogma, the claim to truth of their work always unassailable. After the German national consumer advice office failed with its complaint about the advertising statement “fat free” relating to “Yoghurt Gums” in 2004/2005 (so-called “children’s campaign”), it consistently up-

held its claims, accused the courts of dubious machinations that permitted a one-sided presentation of health benefits, and accused the legislators of legal deficits with regard to health-related food advertising.14 This amounts to fragmentation of the general public, discounting what is not considered to be the “right” view of things; yet in “truth” “clarity” is discounted. The debate has not remained unheard in politics. The coalition agreement of the new German government states that “the recommendations of the commission on food law [with a Code of Practice drawn up by the food industry, the authorities, research and consumer bodies] have to be guided more intensely by the right of consumers to ‘truth and clarity’”.15 This is a declaration of war against the commission on German food law, away from a commission of parity (searching for a balance of interests especially where divergences emerge); once again, reason is abandoned. Evidently influenced by the flanking media outcry, in the meantime some German courts have started to neglect the legal debate. In many cases mere lip service is paid to the Code of Practice in German food law and its expert descriptions; their function as reflections of the current understanding of consumers is disregarded while ignoring the guiding image of “legitimate” consumer expectations, without sound reasons.16 Accountability strategies in a transparent and mobbing society? Having taken a deep breath, there is still a sizable task ahead of us.

* Prof. Dr. Alfred Hagen Meyer meyer.rechtsanwälte, attorneys-at-law Sophienstr. 5, 80333 Munich, Germany www.meyerlegal.de, info@meyerlegal.de ** Translated into English by Catriona Thomas, MA, MCIL, Karlsruhe, Germany

14 Verbraucherzentrale Bundesverband (national consumer advice office), Zwischenbilanz der wettbewerbsrechtlichen Verfahren zu Kinderlebensmitteln im Rahmen des Projektes „Kinderkampagne“, as at: April 2005. 15 “Shaping Germany’s Future”, coalition agreement concluded by the German conservative parties CDU and CSU and the social democrats SPD, 18th period of government, p. 127 under the heading “Safe foods, transparent labelling, a healthy diet”. 16 Higher Regional Court (OLG) Cologne, LMuR 2012, 67; Higher Regional Court (OLG) Hamm, LMuR 2012, 114; Regional Court (LG) Düsseldorf, 16 March 2012, Case No. 38 O 74/11, LMuR 2012, 82 (Ls.) – “Himbeer-Vanille Abenteuer”.

ISSN 0963-4894