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The Precautionary Principle and Non-scientific Factors in the Regulation of Biotech Foods

Published online by Cambridge University Press:  26 April 2017

Ludivine PETETIN
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European Journal of Risk Regulation , Volume 8 , Issue 1: Cambridge Inaugural Issue: The Past, Present And Future of Risk Regulation , March 2017 , pp. 106 - 111
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© Cambridge University Press 

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Footnotes

*

Cardiff School of Law and Politics; email: PetetinL@cardiff.ac.uk.

References

1 See e.g. Commission Communication, “The CAP towards 2020: Meeting the Food, Natural Resources and Territorial Challenges of the Future”, COM(2010)672 final; European Commission, “Sustainable Agriculture for the Future We Want” (2012); and the UK Government Office for Science, “Foresight Report on The Future of Food and Farming: Challenges and Choices for Global Sustainability” (2011).

2 Due to word constraints, the US regulation of biotech foods will not be mentioned here.

3 ZK Forsman, “Community Regulation of Genetically Modified Organisms: A Difficult Relationship Between Law and Science” (2004) 10 European Law Journal 580, 583.

4 See respectively Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed [2003] OJ L268/1; Regulation (EC) 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC [2003] OJ L268/24; Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel foods ingredients [1997] OJ L43/1; and Regulation (EU) 2015/2283 of the European Parliament and of the Council of 25 November 2015 on novel foods [2015] OJ L 327/1.

5 See e.g. M Lee, EU Regulation of GMOs: Law, Decision-making and New Technology (Edward Elgar 2008).

6 The GFL replaces the patchwork of rules that existed previously, provides harmonized food safety rules and asserts consumers at the centre of the European food safety system by establishing food safety as the primary objective of food law. See Art. 1 Regulation (EC) No 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 natters of food safety [2002] OJ L31/1.

7 For more on the precautionary principle, see e.g. J Cazala, “Food Safety and the Precautionary Principle: The Legitimate Moderation of Community Courts” (2004) 10 European Law Journal 544; C Macmaolain, EU Food Law: Protecting Consumers and Health (Hart 2007) 202; and N de Sadeleer, “The Precautionary Principle in EC Health and Environmental Law” (2006) 12 European Law Journal 146. For more on the role of the precautionary principle in the EU regulation of foods, see e.g. A Szajkowska, “The impact of the definition of the precautionary principle in EU food law” (2010) 47 CMLR 173; and A Szajkowska, Regulating Food Law: Risk Analysis and the Precautionary Principle as General Principles of EU Food Law (Wageningen Academic Publishers 2012).

8 Art. 7 GFL.

9 N de Sadeleer, “The Precautionary Principle in European Community Health and Environmental Law: Sword or Shield for the Nordic Countries?” in N de Sadeleer (ed.), Implementing the Precautionary Principle: Approaches from the Nordic Countries, EU and US (Earthscan 2007) 10, 18. See also, HT Anker and M Grossman, “Authorization of genetically modified organisms: Precaution in US and EC law” (2009) 1 European Food and Feed Law Review 3, 5.

10 de Sadeleer, supra, note 9, 35.

11 Art. 6(3) GFL.

12 European Commission, “Communication from the Commission on the Precautionary Principle”, COM(2000) 12. For more on the Communication, see JD Graham and S Hsia, “Europe’s Precautionary Principle: Promise and Pitfalls” (2002) 5 Journal of Risk Research 371.

13 L Bergkamp, “Understanding the Precautionary Principle” (2002) 10 Environmental Liability, Part II, 67, 72.

14 Art. 7(1) Food and Feed Regulation; Art. 3(12) GFL; and Art. 10(6) 2015 Novel Foods Regulation.

15 See e.g. M Dani, “Assembling the Fractured European Consumer” (2011) 36 European Law Review 362.

16 J Black, “The Emergence of Risk-Based Regulation and the New Public Risk Management in the United Kingdom” (2005) Public Law 512, 519.

17 L Petetin, “Frankenburgers, Risks and Approval” (2014) 5(2) European Journal of Risk Regulation 168, 172.

18 See e.g. G Gaskell et al., “Europeans and Biotechnology in 2010: Winds of Change?” (Special Eurobarometer 341, 2010); and The Gallup Organization, “Europeans’ Attitudes towards Animal Cloning” (Flash Eurobarometer 238, October 2008).

19 See e.g. HF Chang, “Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself?” (2003–2004) 77 Southern California Law Review 743.

20 ML Flear and A Vakulenko, “A Human Rights Perspective on Citizen Participation in the EU’s Governance of New Technologies” (2010) 10 Human Rights Law Review 661, 682.

21 S Jasanoff, “Biotechnology and Empire: The Global Power of Seeds and Science” (2006) 21 OSIRIS 273, 288.

22 P Slovic, The Perception of Risk (Earthscan Publications 2000).

23 Jasanoff, supra note 21, 291.

24 D Chalmers, “Risk, Anxiety and the European Mediation of the Politics of Life” (2005) 30 European Law Review 649, 673.

25 de Sadeleer, supra note 9, 160.

26 S Jasanoff, “Technologies of Humility: Citizen Participation in Governing Science” (2003) 41 Minerva 223, 224.

27 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory, COM (2015)177 final.

28 European Parliament, “Parliament Rejects National GMO Bans Proposal”, 28 October 2015: <http://www.europarl.europa.eu/news/en/news-room/20151022IPR98805/Parliament-rejects-national-GMO-bans-proposal>.

29 Directive (EU) 2015/412 of the European Parliament and of the Council of 11 March 2015 amending Directive 2001/18/EC as regards the possibility for the Member States to restrict or prohibit the cultivation of genetically modified organisms (GMOs) in their territory [2015] OJ L68/1.

30 The amendment is in line with President Juncker’s commitment “to give the democratically elected governments at least the same weight as scientific advice when it comes to important decisions concerning food and environment”. See “EU Agreement Opens Door for new GMO Cultivation in 2015”, Euractiv, 5 December 2014, <http://www.euractiv.com/sections/agriculture-food/eu-agrees-bring-back-gmos-2015-310620>.

31 See L Petetin, “The Revival of Modern Agricultural Biotechnology by the UK Government: What Role for Animal Cloning?” (2012) 6 European Food and Feed Law Review 296.