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Food Safety, Coronavirus and Risk Prevention: Future Perspectives in Four Proposals

Published online by Cambridge University Press:  30 September 2020

Dario BEVILACQUA Open the ORCID record for Dario BEVILACQUA [Opens in a new window]
Dario BEVILACQUA*
Affiliation:
Enabled Associate Professor in Administrative Law and Civil Servant at the Italian Ministry of Agriculture, Rome, Italy; email: dario_bevi@hotmail.com.
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Abstract

COVID-19 is a zoonosis, a disease transmitted by an animal to humans. The diffusion of the outbreak is therefore born of an unsuitable, insufficient, excessively permissive food safety system. Hence, the regulation of food safety plays a central role in the protection of health and has done so on a global scale. The overall regulation of food safety therefore requires an increase in the level of health protection, even at the expense of commercial prerogatives. For these purposes, four reform measures are suggested: to transform the Codex Alimentarius Commission into an organisation that adopts international standards with the sole purpose of protecting health; to apply the precautionary principle on a global scale and in international organisations; to strengthen the mandatory labelling tool; and to create a worldwide system of controls.

Type
Articles
Information
European Journal of Risk Regulation , Volume 13 , Issue 1 , March 2022 , pp. 56 - 77
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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References

1 On this, see IPES FOOD, Covid-19 and the Crisis in Food Systems: Symptoms, Causes and Potential Solutions, Communicate of April 2020 <http://www.ipes-food.org/_img/upload/files/COVID-19_CommuniqueEN.pdf>; WHO, Coronavirus Disease 2019 (COVID-19) Situation Report – 94, p 2, <https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200423-sitrep-94-covid-19.pdf?sfvrsn=b8304bf0_4>; T Ahmad, M Khan, TH Musa, S Nasir, J Hui, DK Bonilla-Aldana and A Rodriguez-Morales (2020), COVID-19: Zoonotic aspects. Travel Medicine and Infectious Disease, in press <https://www.researchgate.net/publication/339529719_COVID-19_Zoonotic_aspects> (last accessed 27 August 2020).

2 The literature presenting a critical appraisal of the phenomenon is vast. Among others are to be mentioned: JE Stiglitz, Globalization and Its Discontents (new ed.) (New York, W.W. Norton 2018); Z Bauman, Globalization: The Human Consequences (New York, Columbia University Press 2000); L Wallach and M Sforza, The WTO: Five Years of Reasons to Resist Corporate Globalization (New York, Seven Stories Press 2000); S Cassese, Chi governa il mondo? (Bologna, Il Mulino, 2013); M. Bussani, Il diritto dell’occidente. Geopolitica delle regole globali (Turin, Einaudi 2010).

3 In this regard, however, the role played by non-national organisations, such as the World Health Organization and the European Union, which have contributed to the management of the epidemic directly with recommendations, guidelines, dissemination of data and information and international coordination, should not be underestimated. On the other hand, the direct and concrete implementation of the containment measures has been put in place by national and local authorities.

4 There is a broad range of literature on this issue. Among others, see Commission on Global Governance, Our Global Neighbourhood: The Report of the Commission on Global Governance (Oxford, Oxford University Press 1999); D Held and A McGrew, The Global Transformation Reader: An Introduction to the Globalization Debate (Cambridge, Polity Press 2001) p 68; DC Esty, Toward Good Global Governance: The Role of Administrative Law, paper presented at the NYU Law School “Global Administrative Law Conference” (22–23 April 2005); Symposium on “Global Governance and Global Administrative Law in the International Legal Order” in European Journal of International Law, 17(1), 2006.

5 It worth mentioning evidence concerning the mortality rate shown by the Chinese Journal of Epidemiology <http://chinaepi.icdc.cn/zhlxbxen/ch/index.aspx> and by the Report of the Italian Institute of Health <https://www.iss.it/documents/20126/0/Slide_approfondimentoEpidemiologico.pdf/1c388f9b-2989-bbfe-c64c-b89814bff2a7?t=1585313905924> (last accessed 27 August 2020). Both highlight that the presence of pre-existing ailments, in particular cardiovascular diseases and diabetes, raises the mortality rate (by two- to three-fold) in persons infected with influenza viruses like the one in question. This relationship is not to be underestimated, because cardiovascular disease and diabetes have largely the same origin. Poor nutrition, which is also a significant contributor to the huge spread of obesity, also increases vulnerability. According to the World Health Organization, obese or overweight people are at least twice as likely to develop heart disease, cancer and diabetes – so-called non-communicable diseases <https://www.who.int/nmh/publications/ncd_report_full_en.pdf> (last accessed 27 August 2020).

6 The most important player in the definition of international food safety standards is the CAC. Its dates back to 1963, when the Food and Agriculture Organization (FAO) and World Health Organization (WHO) approved the joint FAO/WHO programme for food standards and the Statutes of the Commission. The CAC was born under a joint programme established by two resolutions (Resolution 12/61, approved by the FAO General Conference of October 1962 and Resolution 16/42 of the WHO Assembly of 1 May 1963) of the so-called “parental organisations”, namely the FAO and WHO. The CAC, as will be seen, adopts standards and guidelines on the safety and quality of food products, which, although they have no binding nature, have the effect of harmonising the safety and qualification criteria of food internationally.

7 <https://www.who.int/news-room/events/detail/2019/06/07/default-calendar/celebration-of-world-food-safety-day> (last accessed 27 August 2020).

8 <https://www.efsa.europa.eu/en/press/news/190607-0> (last accessed 27 August 2020).

9 <http://www.fao.org/news/story/it/item/1197075/icode/> (last accessed 27 August 2020).

10 <https://www.who.int/news-room/detail/06-06-2019-food-safety-is-everyones-business> (last accessed 27 August 2020). A deeper analysis is to be found on the website of Florida University <https://edis.ifas.ufl.edu/fs270> (last accessed 27 August 2020); A Hessing, R Goodrich Schneider, A Gutierrez, R Silverberg, MS Gutter and KR Schneider, The Cost of Food Safety, FSHN15-07, Food Science and Human Nutrition Department, UF/IFAS Extension. Original publication, October 2015, reviewed September 2018.

11 Beyond the data provided in the text, it should be added that intensive animal farms – to name just one of the most widespread practices of the so-called “agro-industry” – contribute significantly to the pollution of land and water and the alteration of the climate. They have also caused thousands of deaths, as well as extensive economic damage, by facilitating the spread of outbreaks, such as bovine spongiform encephalopathy (BSE), Salmonella DT 104, Escherichia coli 0157, etc. As a confirmation of this, it is enough to report that various international studies show that about 25% of CO2 emissions are produced from agricultural sources, amongst the most important of which are deforestation, the use of fertilisers from fossil fuels and the burning of biomass <http://climate.org/archive/topics/agriculture/index-italian.html> (last accessed 27 August 2020).

12 Most recently on the issue, see M Eliantonio and C Cauffman (eds), The Legitimacy of Standardisation as a Regulatory Technique a Cross-disciplinary and Multilevel Analysis (Cheltenham, Edward Elgar 2020).

13 Concerning the participation in the CAC’s activity, the official data reveal the presence of “187 Member Countries and 1 Member Organization (EU) and 219 Observers of which 56 are intergovernmental organizations, 147 non-governmental organizations and 16 United Nations agencies”; FAO/WHO, The Science of Food Standards: The Road from Codex Alimentarius Commission 39 to 40 (Rome, Food and Agriculture Organization of the United Nations and World Health Organization 2017) p 2.

14 The Agreement on Sanitary and Phytosanitary measures (SPS Agreement) was signed in Marrakech in April 1994 under the WTO’s Founding Treaty and came into force on 1 January 1995 (the text is available at <http://www.wto.org/English/tratop_e/sps_e/spsagr_e.htm> (last accessed 27 August 2020)). It sets out the rules that States can legitimately adopt to restrict the global market for reasons of the protection of human, animal and plant health, which also affect food products. It applies to all health and plant protection measures relating to the trade in goods (Art 1), specifying the necessary requirements (shown in Arts 2–11) for such measures to be allowed. It allows Member States to choose the disciplines to be adopted in order to pursue the most appropriate level of health protection, provided that they are justified by an international standard or an appropriate scientific survey (Arts 3 and 5) and are adopted in accordance with the appropriate formal guarantees (Arts 6–11).

15 Among the most debated standards, few have to be mentioned: the one on growing promoter hormones in cattle meat <http://www.fao.org/3/v7950e/v7950e00.htm> (last accessed 27 August 2020), that on foods derived by biotechnology <http://www.fao.org/3/a1554e/a1554e00.htm> (last accessed 27 August 2020), the standard on mineral waters <http://www.codexalimentarius.net/download/standards/223/CXS_108e.pdf> (last accessed 27 August 2020) and that on aflatoxins in milk <https://www.researchgate.net/publication/281175338_GENERAL_STANDARD_FOR_CONTAMINANTS_AND_TOXINS_IN_FOOD_AND_FEED_CODEX_STAN_193-1995_Adopted_in_1995_Revised_in_1997_2006_2008_2009_Amendment_2010_2012_2013_2014> (last accessed 27 August 2020).

16 The rationale, objectives and rules of functioning of the CAC established with the Food Standards Programme are contained in the Procedural Manual, modified and updated several times and now in its 26th version: Joint FAO/WHO Food Standards Programme, Codex Alimentarius Commission, Procedural Manual, 26th ed., Rome, 2018 <http://www.fao.org/documents/card/en/c/I8608EN/> (last accessed 27 August 2020).

17 ibid, p 4.

18 Codex Alimentarius Commission, Codex Guidelines on Nutrition Labelling, CAC/GL 2-1985 (Rev. 1 – 1993); Codex General Standard for the Labelling of Food Additives when Sold as Such, CODEX STAN 107-1981; Codex General Standard for the Labelling of Prepackaged Foods, CODEX STAN 1-1985 (Rev. 1 – 1991).

19 The limits of the statement contained in letter (a) of Art 1 of the Statutes were also noted by an assessment of the activity of the CAC, carried out by a group of experts in 2002 (FAO/WHO, Report of the Evaluation, cit., p 3 e ss.). These, in particular, have highlighted shortcomings and inefficiencies in protecting the health of consumers. The report states that this purpose should have a dominant and prevalent protection over the other interests at stake: either through a reworking of the CAC’s mandate or by prioritising higher standards directly aimed at health protection objectives, rather than those aimed at harmonising trade: “It is important that a comprehensive and clear mandate be developed for Codex and ratified by the FAO Conference and the World Health Assembly. The mandate should be quite simple, for example: The formulation and revision of international standards for food, in collaboration with other appropriate international organizations, with priority to standards for the protection of consumer health while taking into full account the needs of developing countries” (ibid, pp 28–29).

20 One of the most problematic elements of the functioning of the WTO is its systemic nature, characterised by scarce transparency in decisions and the sectorality of the interests it looks after. The rules set up to limit trade are contained in the Marrakech agreements establishing the WTO: it is through these legal texts that the Member States have drawn up the principles and rules governing the fairness of trade, identifying cases where it is permissible to restrict such activities. Although WTO law is not closed to general international law, in its twenty-five years of life, the institutional bodies of such an organisation have rarely been open to non-WTO criteria to establish the correctness of the trade practices put in place by the Member States, referring instead almost exclusively to the provisions of the framework agreements.

21 Supra, note 14.

22 The SPS Agreement, besides the general recall of Art 3, specifies in ANNEX A that the admitted standards for derogating SPS provisions are, among others, those of the CAC.

23 The SPS Agreement is seen as a treaty aimed at preventing trade from being reduced for protectionist reasons. It is an agreement that is part of the project that gave birth to the WTO and therefore aims to develop world trade and open up markets, but it considers the regulation of this sector only as a limited exception in some cases. It has been said that such an agreement is “an international treaty with obligations and equally important rights. It must take account of both interests in favour of trade liberalization and legitimate interests justifying trade restrictions. The obligations of WTO members to liberalize trade cannot systematically prevail over the rights of WTO members to restrict trade”; J Pauwelyn, Conflict of Norms in Public International Law: How WTO Relates to Other Rules of International Law (Cambridge, Cambridge University Press 2003) p 198.

24 LM Wallach, “Accountable Governance in the Era of Globalization: The WTO, NAFTA and International Harmonization of Standards” (2002) 50(4) University of Kansas Law Review 823, p 829; “At the moment Codex does not have a formal mandate. Rather, the Codex Alimentarius Commission and its subsidiary bodies (the Codex committees, task forces, etc.) are by statute purely advisory”, in Joint FAO/WHO, Report of the Evaluation, cit., p 28.

25 Art 191 of the Treaty of European Union <https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E191:EN:HTML#:~:text=1.,pursuit%20of%20the%20following%20objectives%3A&text=It%20shall%20be%20based%20on,that%20the%20polluter%20should%20pay.> (last accessed 27 August 2020).

26 See, for example, Art 15 of the 1992 “Rio Declaration on Environment and Development”, adopted by the United Nations at the Conference on Environment and Development (UNCED) and signed by more than 170 States, and Art 10 of the Cartagena Protocol of the Convention on Biological Diversity, which came into force on 29 December 2003. In this regard, it must be said that certain definitions of international law, such as the one referred to in Art 15 of the Rio Declaration on the Environment, have no binding value for the States.

27 According to the WTO’s founding treaties, goods must be able to circulate and be traded on a global scale without any protectionist limits. Among the exceptions that States – therefore public regulators and public administrations – can apply for limiting access to their territory of products deemed risky are those to protect the environment and human, animal and plant health. These, however, are interpreted narrowly, and States are required to provide scientific evidence of a risk that is at least “likely” for products they deem harmful and to which they wish to apply restrictive measures. In this demonstration, which places the burden of proof on behalf of the State that wants to protect health or the environment, the use of precaution is not permitted. In this sense, see two decisions of the WTO’s Dispute Settlement Body: EC – Measures Concerning Meat and Meat Products, WTO Appellate Body Report 1998, WT/DS 48/AB/R and EC – Measures Affecting the Approval and Marketing of Biotech Products (WT/DS/291, 292 and 293), Reports of the Panel, Geneva, 29 September 2006.

28 RB Stewart presents four versions of the precautionary principle, as depicted by the legal science. Among these, two follow a more radical approach, while the other two follow a more flexible one: “1) scientific uncertainty should not automatically preclude regulation of activities that pose a potential risk of significant harm …; 2) regulatory controls should incorporate a margin of safety, activities should be limited below the level at which non adverse effect has been observed or predicted …; 3) activities that present an uncertain potential for significant harm should be subject to best technology available requirements to minimize the risk of harm, unless the proponent of the activity shows that they present no appreciable risk of harm …; 4) activities that present an uncertain potential for significant harm should be prohibited, unless the proponent of the activity shows that they present no appreciable risk of harm”; RB Stewart, “Environmental Regulatory Decision Making under Uncertainty” in T Swanson (ed.), Research in Law and Economics, vol. 20, An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional Design (Bingley, Emerald Group Publishing Limited 2002) p 76.

29 Although some discrepancies in the legal status and in the circumstances justifying the implementation of the precautionary approach have reduced significantly, maintaining the uncertainty of its content is actually a positive element: the principle under consideration does not identify measures that fall under the precaution, but sets the conditions for it to be applied, thus inviting decision-makers to consider on a case-by-case basis whether to resort to a prudent choice or whether to accept the risk. “The indeterminacy of the precautionary principle is not a deficit but an advantage, and propose an account of the principle as guiding a reasoning process. … As such, the precautionary principle invites decision-makers to search for alternatives and better grounds for justifying regulatory responses to hazard”; A Herwig, “The precautionary principle in support of practical reason. An argument against formalistic interpretations of the precautionary principle” in C Joerges and E-U Petersman (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Oxford, Oxford University Press 2006) p 303.

30 See Art 7 of Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.

31 In this regard, there has been a fear of the harmfulness of a principle that, in all cases of uncertainty, requires the authorities to necessarily adopt a restrictive approach geared towards what is called the “worst-case scenario” (RB Stewart, Environmental Regulatory Decision, cit., p 72 et sqq.). Such an interpretation, as can be understood, is capable of causing a paralysis of trade and a reversal of the trend in the development of the free market, orientated to protectionism. However, in European law, the principle under consideration does not act as an imperative rule, but rather as a general principle of an attributive nature, which allows greater decision-making discretion to the competent authorities and is functionalised to prevent arbitrary decisions on uncertain situations. In this sense, see P Craig, European Administrative Law (3rd ed., Oxford, Oxford University Press 2018) p 747: “The explicit recognition of the Precautionary principle within the EU law has led … to increased judicial emphasis on scientific method as a means of ensuring non-arbitrary decision-making”. See also E Fisher, The Precautionary Principle, Administrative Constitutionalism and European Integration (Oxford and Portland, Hart 2007) p 2.

32 In risk regulation, competent administrations issue measures constrained by technical assessments, but when the latter are not adequate and the possibility of a risk still occurs, the administrations themselves will be able to issue a discretionary and informed decision to prudence, and they will also have to justify it by reasonableness. This concept supports a decision made according to a rational assessment of the potential risks (ie an “appréciation raisonable”; N De Sadeller, Les principles du polluer-payeur, de prevention et de précaution (Brussels, Bruylant 1999) p 155), which considers and takes into account all of the facts, risks and interests involved. On this, see, in particular, F De Leonardis, Il principio di precauzione nell’amministrazione di rischio (Milan, Giuffrè 2005) p 129 et sqq. and passim.

33 The concept of precaution is inextricably linked to that of proportionality, especially since both provide a considered and discretionary choice for identifying the most suitable measure for protecting a certain legal expectation and because both provide a cost–benefit analysis and an assessment between risk acceptance and prudence. According to one theory, the precautionary principle would be a derivation of the proportionality one: F De Leonardis, Il principio, cit., p 151 et sqq.; F Ewald, “Philosophie politique du principe de précaution” in F Ewald, C Golliers and N De Sadeleer (eds), Le principe de précaution, Colecciòn Que sais-je? (Paris, PUF 2001) p 56, stating: “le principe de precaution est indissociable du principe de proportionnalitè. Il repose sur un art des pondérations”.

34 For precautionary measures, as in all others, there is also the obligation to explain the required reasons for a number of acts adopted by public institutions: in EU law, for instance, the obligation for EU institutions to justify their acts finds its main legal source in the provision of the current Art 296, para 2, TFEU and Art 41 of the Charter of Fundamental Rights of the European Union, which, after a general statement on the right to a good administration, expressly establish, at para 2, the duty for EU administrations to justify their decisions.

35 As noted, thus precaution does not mean absolute freedom of decision, but a careful evaluation of all of the reasonable parameters for the sake of the citizens.

36 Besides the Treaty on the European Union (TEU), the precautionary principle has been recognised by the United Nations as a principle of sustainable development: UN Doc. A/57/329, New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 31 August 2002.

37 As indicated by the General Attorney, in the Monsanto case, “the precautionary principle represents … a principle of action in cases where a risk may eventually emerge”, Case C-236/2001, Monsanto, cit., Opinion of Advocate-General S. Alber, 2003, § 108. On the precautionary principle as a criterion allowing more discretion, embedding the decisional moment without imposing any decision towards a limit of the market, see J Cazale, “Food Safety and the Precautionary Principle: The Legitimate Moderation of Community Courts” (2004) 10(5) European Law Journal 539.

38 “The precautionary principle has its beginnings in the German principle of Vorsorge, or foresight. At the core of early conceptions of this principle was the belief that society should seek to avoid environmental damage by careful forward planning, blocking the flow of potentially harmful activities”; J Tickner, C Raffensperger and N Myers, The Precautionary Principle in Action: A Handbook (1st ed., Eugene, OR, Science and the Environment Health Network 1999) p 2.

39 “It is generally accepted that defining the level of acceptable risk is a normative decision that belongs to the democratically elected and accountable institutions of a State”; T Christoforou, “The Regulation of GMOs in the EU: The Interplay of Science, Law and Politics” (2004) 41 Common Market Law Review 647, p 702. See also the Communication from the Commission on the precautionary principle, COM/2000/0001 final, p 8: “When there are reasonable grounds for concern that potential hazards may affect the environment or human, animal or plant health, and when at the same time the available data preclude a detailed risk evaluation, the precautionary principle has been politically accepted as a risk management strategy in several fields”.

40 <https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32017R0625> (last accessed 27 August 2020).

41 These relate to, among others: the safety, integrity and salubrity of food and feed at all stages of the supply chain; the deliberate emission of genetically modified organisms into the environment for food and feed production purposes; animal health prescriptions for commercial marketing and the use of plant protection products and the sustainable use of pesticides; organic production and labelling of organic products; import and export of food and animals; and the use and labelling of indications and designations of origin.

42 This would be a very effective dialectic mechanism between regulatory systems, which would not belong to the same regime, but to two different and contrasting circuit models of interests. These would, however, be linked to the result of exchanging legal force with each other, but in a dialectical position, in order to legitimise and balance each other out thanks to the heterogeneity of the legal assets represented, thus giving rise to an institutional balance aimed at tempering the interests involved and ensuring guarantees of impartiality in decisions.

43 The literature on the imbalance between free trade and other interests in global regulations is quite wide. Among others, see M D’Alberti, Poteri pubblici, mercati e globalizzazione (Bologna, Il Mulino 2007) p 116 et sqq.; J-B Auby, La globalisation, le droit et l’Ètat (Paris, LGDJ 2010) p 67 et sqq.; LM Wallach, Accountable Governance, cit.; D Bevilacqua, Il free-trade e l’agorà. Interessi in conflitto, regolazione globale e democrazia partecipativa (Naples, ES 2012), passim.

44 There is no possibility here to deepen and develop a reasoning on the functioning and guarantees of accountability and legitimacy of the WHO and therefore of the CAC. However, it is necessary to point out a caveat regarding the particular vulnerability of all international organisations and therefore the need for them to be regulated with strict legal mechanisms that increase transparency and accountability to achieve a greater level of fairness and impartiality than the current one.

45 The so-called “complex (or connecting) regimes” consist of functional linkages between different organisations, which compose complex systems of regulation and create a dialogue among a plurality of general interests, increasing the power of the involved organisations. See DW Leebron, “Linkages”, opening speech at the conference “The Boundaries of the WTO”, now in American Journal of International Law, 96, 2002, p 14; S Battini, “Il sistema istituzionale internazionale dalla frammentazione alla connessione” (2002) 12(5) Rivista Italiana di Diritto Pubblico Comunitario pp 985; S Cassese, Il diritto globale, cit., pp 25, 96, passim.

46 The EU judicial history on the precautionary principle is wide. Among others, see the interpretations given in: ECJ, Decision of the 12th March 1987, Case 178/84, Commission-German Federal Republic, p 1274: “In so far as there are uncertainties at the present state of scientific research, it is for the member states, in the absence of harmonization, to decide what degree of protection of the health and life of human they intend to assure”; ECJ Decision of the 17th January 1991, Case C-157/89, Commission-Italy; ECJ Decision of the 19th January 1994, Case C-435/92, Association pour la protection des animaux sauvauges; ECJ Decision of the 3rd December 1998, Case C-180/96, Commission-UK, particularly at para 99: “Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent”; ECJ Decision of the 24th October 2002, Case C-121/00, Reference for a preliminary ruling: Bezirksgericht Innere Stadt Wien – Austria.

47 Glyphosate, a herbicide that is widely used on genetically modified Roundup soybeans, is freely used in Europe and other countries around the world. It is seen by many as a clear example of the successes of biotechnology (Monsanto Roundup/Glyphosate Background Materials <http://www.monsanto.com/products/pages/roundup-safety-background-materials.aspx> (last accessed 27 August 2020), but there is a strong debate on the issue. For instance, in 2017, the EU voted in favour of its license renewal, with the objective to ban the glyphosate in 2022 <https://ec.europa.eu/food/plant/pesticides/glyphosate_en> (last accessed 27 August 2020). Moreover, the International Agency for Research on Cancer (IARC) of the WHO classified it as a carcinogenic agent <https://www.iarc.fr/featured-news/media-centre-iarc-news-glyphosate/> (last accessed 27 August 2020). See also D Cressey, “Widely used herbicide linked to cancer” (24 March 2015) <http://www.nature.com/news/widely-used-herbicide-linked-to-cancer-1.17181> (last accessed 27 August 2020).

48 According to the International Fund for Agricultural Development (IFAD), small family farms dominate rural landscapes around the developing world, accounting for up to 80% of the food produced in Asia and Sub-Saharan Africa, while providing livelihoods of up to 2.5 billion people (S Bonny, “Corporate concentration and technological change in the global seed industry” (2017) 9(9) Sustainability 1632). The FAO estimates that more than 75% of the increase in crop productivity over the past thirty years is the result of plant farming, traditionally put in place by small farmers. The FAO also explains that, despite its commercial value, the industrial food chain produces only 30% of the global food supply, but uses 70% of the world’s agricultural resources. In addition, 75% of agro-biodiversity has been replaced by a small number of genetically more uniform varieties. By contrast, smallholder farming and the peasant food network provides 50% of the world’s cereals, 60% of the world’s meat and 75% of the world’s dairy products, while using only 30% of the world’s agricultural resources (AM Loconto, OO AdeOluwa and Y Akinbamijo (eds), Achieving Social and Economic Development in Africa through Ecological and Organic Agricultural Alternatives. Proceedings of the Plenary presentations of the 3rd African Organic Conference, 5–9 October 2015, Lagos, Nigeria (Rome, Food and Agriculture Organization of the United Nations and African Union Commission 2018)).

49 With regards to the protection of quality and territory-related food products, there is a very strong contrast of interests between countries that have a significant tradition in the production of locally characterised agro-food products and those that do not have a tradition of this kind. The latter, indeed, tend to favour their manufacturers who, taking as a model the products characterised by their origin, want to use denominations and symbols that recall the traditions from which they are inspired – being “commercially pulled” by them – thereby giving life to the phenomenon that, for Italian products, is known as “Italian Sounding”. For example, in the USA, it is denied that geographical indications can be regarded as an intellectual property right, so that such assets lack public protection, whereas in the EU, this qualification is insured and serves precisely to grant full protection to such products. The conflict of interests just mentioned explains why the minimum standard of protection granted to these signs by the so-called TRIPS Agreement, launched in 1994 to coincide with the creation of the WTO in order to establish the protection of intellectual property rights in the participating countries, is still extremely low. The rules of the TRIPS Agreement, which generally cover geographical indications (Art 22), protect only against the deception of the public, while the use of them with the word “type”, “mode” and “the like”, which does not lead to deception regarding the origin of the product, but certainly involves a linkage to the reputation of the “original” product, is repressed only for wine indications, for which traditionally the level of protection is greater (Art 23). The Paris Convention on the Protection of Industrial Property – which the TRIPS Agreement expressly refers to – is also limited to sanctioning the “direct or indirect use of a false indication of the origin of the product” (Art 10). The Madrid Agreement of 1891 (which neither the USA nor Canada ratified) is a little more specific: besides prohibiting, at Art 1, the use of a “false or misleading” claim that directly or indirectly indicates a country that adheres to the Convention or a place included in it as the origin of products actually made elsewhere, Art 3-bis also prohibits the use of “any indication that is advertising and is such as to mislead the public about the origin of the products”.

50 On this issue, see M Savino, “Autorità e libertà nell’Unione europea: la sicurezza alimentare” (2007) 2 Rivista trimestrale di diritto pubblico p 415 and the detailed reconstruction of A Alemanno, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO (Cambridge, Cameron May 2007) p 33 et sqq.

51 As a result of the Europeanisation and globalisation of the food trade, the regulation of this matter is no longer exclusively national. Involving different international and supranational actors, holders of common regulatory functions and responding to shared principles and rules, food safety is now of extra-state importance and is disciplined by transnational rules aimed at regulating cases and behaviours that take place or produce effects on a global scale. Nevertheless, this regulatory activity is a subject that is at the same time very ingrained at the local level because of the inseparable cultural and territorial elements that characterise food and agricultural knowledge. Because of this, contrasts and dialectics stemming from different approaches adopted in the various legal systems that come into contact are not uncommon. See D Bevilacqua, La sicurezza alimentare negli ordinamenti ultrastatali (Milan, Giuffré 2012) p 15.

52 For a sociological analysis of the phenomenon, see S Sassen, A Sociology of Globalization (New York, W.W. Norton 2007) p 49 et sqq.