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tent views of Europe and the US of what ‘contaminants such as rat, mouse or other short list of ingredients.16 That ancient law
actually constitutes ‘contamination’ in food animal hairs and excreta, whole insects, is the precursor of Germany’s Beer Tax
and the degree to which it is tolerated. insect parts and excreta, parasitic worms, Law (Biersteuergesetz), which was derogated
In the US, where the approval of new GE pollution from the excrement of humans by the European Court of Justice following
crops is a regular event,9 thresholds and and animals, as well as other extraneous a complaint by the European Commission.
action standards have been established materials which, because of their repul- The Court found Germany’s restrictions on
for impounding and destroying foods siveness, would not knowingly be eaten or the ingredients for anything labeled ‘Bier’
deemed to be contaminated because they used.’”11 (beer) were excessive, an impediment to
are mixed with the detritus of insects, such Regulations in the European Union trade, and a violation of Germany’s obliga-
as cockroaches, pharaoh ants, latrine flies, largely exempt these materials. The 1993 tion to harmonize its laws with European
redtailed flesh flies, and secondary screw- Council Regulation laying down European trading partners. Germany’s arguments
worms, or with animal filth, such as from Community procedures for handling food that its law was justified both by public
mice, rats, birds, bats, lizards, and humans. contaminants begins with this provision: health interests and by the precautionary
These contaminants are associated with ‘Contaminant’ means any substance not principle were rejected, because the im-
microbes such as Escherichia coli, Salmonella, intentionally added to food which is pact on trade was disproportionately se-
Shigella and Staphylococcus, which cause present in such food as a result of the vere. 17
human disease and death.10 production (including operations carried There are other precedents as well. Eu-
US officials can take action without proof out in crop husbandry, animal husbandry ropean Union legislation regulating con-
of the presence of these potentially deadly and veterinary medicine), manufacture, taminants closely parallel provisions in the
microbes in food, and consider the pres- processing, preparation, treatment, pack- Codex Alimentarius, which define a ‘contami-
ence of insect and animal filth to indicate an ing, packaging, transport or holding of nant’ as “Any substance not intentionally
impermissible departure from essential such food, or as a result of environmental added to food, which is present *** as a result
sanitary measures. “The FD&C [US Food, contamination. Extraneous matter, such as, of environmental contamination. The term
Drug and Cosmetic] Act goes beyond regu- for example, insect fragments, animal hair, etc, does not include insect fragments, rodent hairs
lating contaminants that cause injury or is not covered by this definition (emphasis and other extraneous matter (emphasis
disease. Sections 402(a) (3) and 402(a) (4) of added).12 added).”18 And in a recent report, the Codex
the Act require that foods be protected Later on in Article 5, the Regulation warns Committee explained this definition by
from contamination with filth and be pro- that “Member States may not prohibit, pointing out that the provisions are not
duced in sanitary facilities. Filth includes restrict, or impede the placing on the mar- meant to cover “[c]ontaminants having
ket of foods which comply with this Regula- only food quality significance, but no public
tion...”13 Thus, member states are prohib- health significance, in the food(s).”19
ited from considering “insect fragments, There may be an explanation of why the
animal hair, etc” in food to be ‘contamina- EU regards as a mere “quality” issue what
tion.’ the US considers “repulsive,” and “filth,”
The Regulation begins with a preamble and indicative of risks to public health.
VOL. 24, NO. 2, WHOLE NO. 279 FEBRUARY 2007 reciting the importance “of progressively According to one commentator, “[I]n the
AALA Editor..........................Linda Grim McCormick
establishing the internal market... in which drafting of the Codex Alimentarius, health
2816 C.R. 163, Alvin, TX 77511 the free movement of goods, persons, ser- and trade have never been on equal foot-
Phone: (281) 388-0155
E-mail: apamperedchef@peoplepc.com
vices and capital is ensured,”14 and the ing. The Netherlands, Germany, Sweden,
(temporary) importance of maintaining the free flow of Switzerland, Italy and Austria supported
trade among the member states of the EU uniform standards as a way to ease trade
Contributing Editors: Andrew Apel,Raymond, IA;
Anthony Schutz, Lincoln, NE; Robert P. Achenbach, emerges even more strongly in later mea- barriers rather than to protect public health
Eugene, OR. sures. - even though all these countries would
For AALA membership information, contact Robert In 2002 the European Commission adopt a contrary position during the 1996
Achenbach, Executive Director, AALA, P.O. Box 2025, warned member states about applying the ‘mad cow crisis’.”20
Eugene, OR 97405. Phone 541-485-1090. E-mail
RobertA@aglaw-assn.org.
precautionary principle to matters of food The extent to which these countries
safety, saying, “The precautionary prin- adopted a “contrary position” is disput-
Agricultural Law Update is published by the American ciple has been invoked to ensure health able. In 2004, a new Regulation was passed
Agricultural Law Association, Publication office: County
Line Printing, Inc. 6292 NE 14th Street, Des Moines, IA protection in the Community, thereby giv- prohibiting any “food business operator” in
50313. All rights reserved. First class postage paid at Des ing rise to barriers to the free movement of the European Union from accepting raw
Moines, IA 50313.
food or feed.” The Regulation crafted to materials (other than live animals) “if they
This publication is designed to provide accurate and address the potential conflict between pre- are known to be, or might reasonably be
authoritative information in regard to the subject matter
covered. It is sold with the understanding that the
caution and free trade in food offers this: expected to be, contaminated with para-
publisher is not engaged in rendering legal, accounting, or “For the purposes of this Regulation, [the sites, pathogenic microorganisms or toxic,
other professional service. If legal advice or other expert definition of] ‘food’ ... shall not include ... decomposed or foreign substances to such
assistance is required, the services of a competent
professional should be sought. residues and contaminants (emphasis added).” an extent that, even after the food business
It goes on to establish traceability require- operator had hygienically applied normal
Views expressed herein are those of the individual
authors and should not be interpreted as statements of ments for what is considered ‘food’ and sorting and/or preparatory or processing
policy by the American Agricultural Law Association. makes precautionary restraints on food procedures, the final product would be unfit
Letters and editorial contributions are welcome and
trade subject to the requirement that the for human consumption.”21
should be directed to Linda Grim McCormick, Editor, 2816 restraints prove to be science-based and Since regulation of insect fragments,
C.R. 163, Alvin, TX 77511, 281-388-0155. do not have a disproportionate effect on animal hair, etc. is prohibited, the “unfit for
Copyright 2007 by American Agricultural Law trade.15 human consumption” standard can be no
Association. No part of this newsletter may be reproduced There is ample precedent for European more than a subjective assessment of con-
or transmitted in any form or by any means, electronic or
mechanical, including photocopying, recording, or by any action against national food purity laws sumer acceptability. The Regulation en-
information storage or retrieval system, without permission which impede the free flow of trade among courages the use of HACCP (hazard analy-
in writing from the publisher.
member states. Perhaps the world’s most sis and critical control point) principles by
famous purity law is the German Purity Law food processors to “help food business
(Reinheitsgebot), which dates to 1516 and operators attain a higher standard of food
requires that beer be made with only a very safety,” but adds that the use of HACCP
Cont. on p. 3
Tolerance/Cont. from p. 3 pean Union,” American Soybean Association press re- Modified Organisms, 9 Ind. J. Global Legal Stud. 187, 196
Statutory Instrument No. 401 of 2001 amending the the lease (May 15, 2003), http://www.soygrowers.com/news- (2001).
36
Food Safety Authority of Ireland Act, 1998 (No. 29 of room/releases/2003%20releases/r051503.htm See notes 13-22, supra.
34 37
1998), http://www.irishstatutebook.ie/ “Questions and Answers on the Regulation of GMOs “Hivos Partnerdatabase,” HIVOS (n.d.), http://
ZZSI401Y2001.html in the European Union,” Memo 05/104 (March 22, 2005), www.hivos.nl/english/english/cooperation_in_the_south/
25
See “Food Safetynote,” German Federal Ministry for h t t p : / / e u r o p a . e u / r a p i d / who_are_our_partners
38
the Environment (October 2005), http://www.bmu.de/ pressReleasesAction.do?reference=MEMO/05/ “Rice: a first analysis for exporting to the EU” (CREM/
english/food_safety/general_information/doc/5720.php 104&format=HTML&aged=1&language= HIVOS) (February 2004), http://www.dgroups.org/groups/
and “Food & Nutrition Guide,” European Food Information EN&guiLanguage=en hivos/ppp-rice/docs/crem_eu_rijst_rapport_mei_04.pdf
35 39
Council (June 2006), http://www.eufic.org/jarticle/en/ “Are Biotech Crops And Conventional Crops Like European Communities - Measures Affecting the
food-nutrition-guide/agriculture/expid/basics-agriculture/ Products? An Analysis Under GATT,” Wong, Julian. Duke Approval and Marketing of Biotech Products, Dispute
26
“Canadian Exporters’ Guide to Food Labelling & Law & Technology Review (2003 Duke L. & Tech. Rev. Settlements DS293 (Argentina); DS292 (Canada); and
Packaging Requirements of the European Union” (Up- 0027), http://www.law.duke.edu/journals/dltr/articles/ DS291 (United States) (September 29, 2006), http://
dated March 2000), http://ats.agr.ca/europe/ 2003dltr0027.html citing Stephen Tromans, Promise Peril, docsonline.wto.org/gen_home.asp?language=1&_=1
e1429001.htm Precaution: The Environmental Regulation of Genetically
27
“Barriers to Agricultural Exports from Developing
Countries: The Role of Sanitary and Phytosanitary
Requirements,” Henson, S. and Loader, R., World Devel- Federal Register/cont. from page 1
opment Vol. 29, No. 1, pp. 85-102 (2001), http:// owners and contract growers (not both for Foods on the voluntary labeling claim ³natu-
www.cours.ecn.ulaval.ca/cours/ECN-64021/ same livestock) for certain livestock deaths; ral² and on the broader question of how to
texte%203.pdf The paper notes that “these data are only (3) the Citrus Disaster Program will provide define this claim. The original comment pe-
systematically collected and publicly available for the benefits to citrus producers who suffered riod closed on January 11, 2007. 72 Fed. Reg.
United States,” and to date this seems not to have citrus crop production losses and associated 2257 (Jan. 18, 2007).
changed. fruit-bearing tree damage, including related ORGANIC FOOD. The AMS has issued
28
Commission Regulation (EC) No 2073/2005 of 15 clean-up and rehabilitation costs; (4) the Fruit revised guidelines for submitting petitions to
November 2005 on microbiological criteria for foodstuffs, and Vegetable Disaster Program will pro- amend the National List of Allowed and Pro-
http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/ vide benefits to producers who suffered fruit hibited Substances. The guidelines also in-
2005/l_338/l_33820051222en00010026.pdf and vegetable crop production losses, in- clude new commercial availability evaluation
29
“Guidance Document of the Scientific Panel on
cluding related clean-up costs; (5) Tropical criteria to be applied during the petition re-
Genetically Modified Organisms for the Risk Assessment
Of Genetically Modified Plants and Derived Food and
Fruit Disaster Assistance Program will pro- view of non-organic agricultural substances.
Feed,” European Food Safety Authority (May 2006), http:/ vide benefits to producers of carambola, 72 Fed. Reg. 2167 (Jan. 18, 2007).
/www.efsa.europa.eu/etc/medialib/efsa/press_room/ longan, lychee, and mangos who suffered PINE SHOOT BEETLE. The APHIS has
publications/scientific/1497.Par.0005.File.dat/ tropical fruit production losses; adopted as final regulations that amend the
gmo_guidance%20gm%20plants_en.pdf (6) the Nursery Disaster Assistance Pro- pine shoot beetle regulations by adding coun-
30
Regulation (EC) No 1830/2003 of the European gram will provide benefits to commercial ties in Illinois, Indiana, Iowa, New Jersey, New
Parliament and of the Council of 22 September 2003 ornamental nursery and fernery producers York, and Ohio to the list of quarantined areas
concerning the traceability and labelling of genetically who suffered inventory losses and incurred and by designating Michigan, Minnesota, and
modified organisms and the traceability of food and feed clean-up costs; (7) the Tree Assistance Pro- Pennsylvania, in their entirety, as quaran-
products produced from genetically modified organisms gram will provide benefits to producers who tined areas based on their decision not to
and amending Directive 2001/18/EC, http://europa.eu.int/ suffered tree, bush, or vine losses for site enforce intrastate movement restrictions.
eur-lex/pri/en/oj/dat/2003/l_268/ preparation, replacement, rehabilitation, and The interim rule also added Connecticut and
l_26820031018en00240028.pdf pruning; and (8) the 2005 Catfish Grant Pro- Rhode Island, in their entirety, to the list of
31
“Activity Report of the European Network of GMO gram will provide assistance in the form of quarantined areas based on projections of
Laboratories,” European Commission Joint Research grants to states having catfish producers the natural spread of pine shoot beetle that
Centre (2004), http://ihcp.jrc.ec.europa.eu/docs/b&gmos/ who suffered catfish feed losses. 72 Fed. Reg. make it reasonable to believe that the pest is
engl.pdf 6435 (Feb. 12, 2007). present in those states. 72 Fed. Reg. 1912 (Jan.
32
Commission Regulation (EC) No 2073/2005 of 15 FOOD SAFETY. The FSIS has announced 17, 2007).
November 2005 on microbiological criteria for foodstuffs,
that it is re-opening and extending the com- --Robert P. Achenbach, Jr., AALA
supra.
33
“ASA Supports WTO Biotech Case Against Euro-
ment period on a petition submitted by Hormel Executive Director