OPINION:On Thursday a French government investigation concluded that Spanghero, a French meat processing company, knew that meat labelled as beef – which it had sourced from Romania – was horse meat, yet it sold it as beef.
The Food Safety Authority of Ireland has done the consumer a great service by detecting this major scam in the first place, but the French produced evidence of what many in Ireland have suspected – wholesale fraudulent adulteration of particular foods. Evidence may yet be produced in Ireland of similar adulteration.
In Victorian England, food was frequently deliberately adulterated. Sawdust and sand were often used to lengthen the “shelf-life” of certain foodstuffs, but the more dangerous adulterants were copper, lead, mercury and even arsenic used as attempted colouring agents.
In response, the Sale of Food Drugs Act, 1875, stipulated for the first time that “no person shall sell to the prejudice of the purchaser any article or food or anything which is not of the nature, substance or quality demanded by such purchaser”.
Those words have a resonance today for many consumers who feel cheated that they have been buying beef products that actually contained horse meat. How could this have happened when they are told that the food industry is highly regulated, with traceability systems from “farm to fork”?
In the EU, food regulations were introduced to re-establish consumer confidence in food safety after the BSE and Belgian dioxin crises in the late 1990s.
The pre-BSE approach to food law was articulated in the famous European Court of Justice case, Cassis de Dijon. According to this case, harmonised rules were to be adopted at EU level only when they were justified with regard to consumer protection or fair trade.
This approach resulted in harmonised EU provisions for consumer information, food labelling and food hygiene. In the absence of EU law on a given issue, the principle of mutual recognition applied, ie a product such as a foodstuff legally produced and marketed in one member state must be marketable in all other member states. The principle is a fundamental tenet of the EU internal market.
The current crisis highlights two consumer protection issues – the misleading labelling of beef products and the emerging concern about the possibility of the veterinary painkiller phenylbutazone, (known as bute and used extensively for horses) entering the food chain.
The two issues reflect the two sets of tests to be completed by member states agreed by the European Commission and agriculture ministers on Wednesday in Brussels. The labelling matter is a consumer protection issue, while the bute issue relates to food safety and public health.
The use of horse meat as a replacement for beef in meat products while continuing to label the product as beef, breaks the main principle of the EU food labelling directive 2000/13, which states that labelling must not: “Be such as could mislead the purchaser to a material degree, particularly as to the characteristics of the foodstuff and, in particular as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production.
New rules contained in EU regulation 1169/2011, which unfortunately do not apply until December 13th, 2014, place additional responsibilities on food manufacturers/retailers to not mislead the consumer by means of a food label.
More importantly, for the first time in EU law, suppliers to food business operators shall not supply food they know to be non-compliant with food labelling rules – thus you keep hearing meat traders state they did not “knowingly” supply horse meat instead of beef to food manufacturers/retailers.
While prosecutions for misleading consumers will have to be taken under the 2000 EU labelling rules, prosecutions should be enacted immediately.
Some may say that the food manufacturers/retailers were not to know about the use of horse meat in beef products, yet the same manufacturers or retailers frequently place additional stringent quality obligations on producers such as farmers.
They cannot demand such oversight on others when they flout the law by misleading consumers.
On the question of “bute”, the 2011 annual report of the UK veterinary residues committee, which advises the British government, warned that it had repeatedly expressed concern about “bute” entering the food chain, as it is not authorised for use in any food-producing animal.
I am not aware of any similar scientific advice in Ireland, but the authorities would certainly be aware of advice produced by other member states or the European Food Safety Authority. The European Commission has demanded compulsory testing for “bute” in all member states, with results to be published on April 15th .
As the Irish food safety authority (FSAI) found the horse meat adulteration in the first case, and noting its approach to pork dioxin contamination in 2008, I expect the tests to be completed by it will demonstrate it continues to enact its mandate to protect consumer health.
The FSAI must continue to strongly enforce EU food laws – both in food safety and also in the consumer protection field – by means of authentication tests that were a major part of the agenda of enforcement authorities pre-BSE.
Food safety and public health are of paramount importance, but as the horse meat scandal demonstrates, cases of food adulteration can undermine consumer confidence in the food supply system as profoundly as food safety outbreaks.
Full origin labelling throughout the food chain must be introduced immediately, in particular for meat used as an ingredient in processed meat products. Only then can the consumer be truly confident of the authenticity of the food they buy.
RAYMOND O'ROURKEis a food and consumer lawyer and visiting professor at the University of Ulster, Coleraine