Food Safety Regulation under National and International Law: Integrating Consumer Regulators in Proliferating Standardisation Projects

[The following is a longer and un-footnoted draft of a fourth Policy Digest prepared for a Sydney Southeast Asia Centre joint research project and an ASEAN Secretariat project on harmonising consumer protection law.]
1. Introduction
Public regulation of food safety is typically an early and major priority for law reformers at the national level, given potentially high risks and degrees of harm from unsafe foods. For products that present lower risks, for which it is more difficult to mobilize political resources to regulate, product liability regimes can also incentivise manufacturers to consider food safety – especially if potential harm is extensive, liability is strict, and court systems work effectively. Further incentives can come from reputational effects, in the context of growing (social) media coverage of food safety concerns. Nonetheless, as outlined in Part 2 below, serious food safety failures continue to occur in both developing and developed countries.
General food laws have been enacted in ASEAN Member States (AMSs). As shown in a recent comparison of Indonesia, Malaysia, Thailand and Singapore, they generally impose criminal and/or administrative sanctions for food adulteration, foods injurious to health, food unfit for human consumption, insanitary facilities, and false labeling or deceptive advertising. (Indonesia’s Food Act 1996 further provides specific civil remedies for consumers harmed by unsafe food.) Yet enforcement is problematic: “Food quality and safety standards are usually strictly followed for exportable food commodities, but not always enforced for food destined for the domestic market”.
In addition, such food laws tend to fall under the jurisdiction of ministries of agriculture and/or health. To minimize conflicts of interest, namely agriculture ministries favouring suppliers rather than consumers, there is a tendency to establish independent food agencies, as in the United States (US, although the agriculture department still regulates some products) or Myanmar (within the Health Ministry). This is especially true for risk assessment functions, as in the European Union (EU) since 2002, and Japan since 2003 (for risk management if harm eventuates, Japan’s agriculture ministry still regulates farm safety while the health ministry deals with the subsequent supply chain).
However, other government departments are also increasingly involved in food safety regulation. On the one hand, ministries of commerce or trade get involved because international treaties now require science-based, proportionate regulation of import safety, preferably based on internationally agreed standards, as outlined in Part 3 below. On the other hand, there is existing and potential scope for consumer affairs regulators to become (more) involved in food safety regulation, even though they may constitute smaller and more recently created public authorities, because:
• they often have or share responsibility for enforcing food standards set by other departments (as seen in the Consumer Protection Laws enacted in Vietnam in 2010 and Myanmar in 2013);
• consumer regulators may also be given a coordinating role, or “back-up” powers to regulate if a harmful food product falls outside the jurisdiction of other agencies (eg konnyaku jelly snacks in Japan until the Consumer Affairs Agency was established in 2009);
• consumer regulators may have powers to bring representative actions (as in Thailand) or order compensation (as in Myanmar) on behalf of consumers harmed by non-compliant foods.
Consumer regulators also develop helpful expertise in consumer behaviour and risk communication more generally, which is valuable for law-making related also to food nutrition (i.e. “healthy eating”) – a broader contemporary policy concern than food safety (i.e. avoiding food-borne illnesses). As explained by the Consumers International regional representative at the inaugural ASEAN Consumer Protection Conference, held in Vietnam over 8-9 November 2014, promoting healthy diets is a priority because adverse health effects associated with obesity are now spreading to Southeast Asia. In addition, consumer regulators can assist other government authorities in developing effective schemes for oversight of “food safety auditing” by private inspectors, already widely used in global food supply chains and likely to be further facilitated through international agreements on trade in services, yet potentially creating conflicts of interests for the auditors which may impact adversely on consumers.
Accordingly, there is a need to expand capacity in food-related health issues among consumer regulators in AMSs. They need enhanced opportunities to engage with other national regulators (with shared or primary responsibility for food safety regulation) as well as the growing numbers of international, inter-governmental or public-private partnership organisations involved in generating shared food safety standards in the region. This is especially important given that the ASEAN Economic Community (AEC) project, promoting free trade in goods and services by 2015, includes harmonisation of agri-food standards as a priority action item (as elaborated in Part 3).

2. Persistent challenges for food safety globally and in ASEAN
Expanding participation in modern agri-food value chains offers great potential to lift the world’s farmers and intermediaries out of poverty, but food-related safety issues remain a major problem globally. In developing countries, food and waterborne diseases are leading causes of illness and death, killing some 2.2 million people annually – mostly children. The South-East Asia Regional Office of the World Health Organisation (WHO) recently called for food safety to be made a more widespread priority as around 700,000 children die every year in the region. The WHO also highlighted emerging threats associated with climate change, environmental contamination, new technologies and infections, and antimicrobial resistance.
Even in a developed country like the US, there are around 50 million episodes and 3000 deaths annually from foodborne illnesses, and progress in improving food safety outcomes has stalled over the last decade. Common problems are that “multiple pathogens from different sources cause food-borne illness; multiple individuals and entities handle food products before they reach end users; and consumers often do not handle food safety”. In addition, “data are difficult to collect and analyze due to under-reporting”, the food industry is now very large in many economies (generating political pressure for less burdensome regulation), and the globalization of food production highlights weak regulation anyway in some exporting nations. Major safety failures in the US related to spinach, peanut butter, eggs, E Coli (originating in Europe) and melamine in milk products (from China) have heightened public concern, leading to enactment of the FDA Food Safety Modernization Act in 2011 – enhancing the Food and Drug Administration’s powers to prevent food contamination (eg through better inspection measures) and to conduct mandatory recalls. The Act also requires US importers to verify the food safety practices of their suppliers, allows the FDA to inspect foreign facilities, and includes capacity building to allow it to assist non-US regulators. In 2011, the EU enacted Regulation (EU) 1169/2011 on the Provision of Food Information to Consumers, extending nutrition labeling requirements (with full effect from 13 December 2016). The EU and Japan also comprehensively revised their approach to food safety risk assessment after outbreaks of BSE (mad cow disease) more than a decade ago, and Japan expanded its risk management capacity when it established an independent Consumer Affairs Agency in 2009.
In ASEAN, there is also strong interest in both expanding the agri-food industry and improving food safety, in the shadow of some ongoing product safety failures. Impacting directly on food exporters, Thailand temporarily banned export of 16 herbs and vegetables to the EU in order to pre-empt an import ban after EU inspections had repeatedly found excess pesticide residues. Also in 2011, Japanese authorities identified dangerous chemicals in seafood imports from Vietnam. In 2013, lead and other contamination was reported in some rice imported from Vietnam and Thailand. Local news reports about such health risks highlight the potential impact on local consumers as well. In addition, consumers in ASEAN have faced health scares from imported goods. For example, the Philippines ordered the recall of nearly 70 brands of Taiwanese “bubble tea” and other products suspected of containing dangerous plasticizers. Also in 2013, Thailand recalled imported dairy products associated with a raw material supplied by a major New Zealand manufacturer, although subsequent tests found that the material was not in fact contaminated with deadly bacteria.
3. Expanding cross-border agri-food trade while maintaining safety standards
Anticipating and managing food safety issues involving consumers or suppliers within ASEAN and counterparts outside the region can potentially be facilitated nowadays by a growing network of Free Trade Agreements (FTAs), such as the ASEAN-Australia-New Zealand FTA or the ASEAN-Japan FTA. Inside the region, the ASEAN Economic Community (AEC) Blueprint, adopted in November 2007, envisages and promotes a single market and production base by 2015 that includes food, agriculture and forestry as important components. Priority action areas include harmonisation of “the safety and quality standards for horticultural and agricultural products of economic importance in the ASEAN region, in accordance with international standards/guidelines, where applicable”. At the same time, ASEAN should be “mindful that consumers cannot be precluded in all measures taken” to achieve economic integration through the AEC.
One reason for seeking to expand agri-business and food supply chains within Southeast Asia is that exports of agro-based products from AMSs within the ASEAN region were less than 15% of AMSs’ total exports in 2010, with the share of such intra-ASEAN exports having only increased slowly since 2003 (11%). This is despite the large contributions to GDP from agriculture in many developing countries (eg 50% in Myanmar in 2010) and/or from food processing (ranging from 3.5% of GDP in Indonesia to 13.5% in the Philippines). Food Industry Asia, established in 2010 in Singapore mainly by large multi-national food and beverage suppliers, therefore seeks to expand cross-border trade through more harmonized food regulation based on shared principles of: (i) good governance (including transparency), (ii) rigorous impact assessment (of costs and benefits of regulation), (iii) scientific basis, proportionality and non-discrimination, (iv) open consultation, and (v) minimal restrictiveness. In promoting such harmonisation, Food Industry Asia interacts mainly with ASEAN bodies under the leadership of the ASEAN Economics Ministers.
Harmonising food product safety standards is also the primary focus for an older industry-based association, the International Life Sciences Institute (established in Washington DC in 1978), which has 15 branches including one for the Southeast Asia Region centred in Singapore since 1993. The latter worked with the WHO and the Food and Agriculture Organization (FAO) from 2001 to establish a Working Group on ASEAN Food Safety Standards Harmonisation, which generated from 2003 the ASEAN Food Safety Standards Database – currently listing food additive standards for all AMSs.
The AMSs can also be involved in food regulation harmonisation through the inter-governmental APEC (Asia Pacific Economic Cooperation) Food Safety Cooperation Forum, established in 2007 under the APEC Sub-Committee for Standards and Conformance. Bringing together food safety regulators and co-chaired by Australia and China, the Forum aims to assist APEC economies to achieve:
• Transparent information-sharing and communication networks that provide accurate and timely information to consumers and producers on food safety.
• Food safety regulatory systems within economies, including food inspection/assurance and certification systems that are consistent with members’ rights and obligations under the Sanitary and Phytosanitary Measures (SPS) and the Technical Barriers to Trade (TBT) Agreements of the World Trade Organisation [WTO]; and are harmonized, to the extent possible, with international standards (such as Codex [Alimentarius, etc]).
• Enhanced skills and human resource capacities to enable the development of national food safety regulatory frameworks that are harmonised, to the extent possible, with international standards.
In 2008, APEC’s Forum established the Partnership Training Institute Network to engage the food industry and academia with the regulators to strengthen capacity building in food safety, especially risk analysis, supply chain management, food safety incident management, and laboratory capacity. Capacity-building has been enhanced through a Memorandum of Understanding signed in 2011 with the World Bank. The latter built on this initiative to launch in 2012 the public-private Global Food Safety Partnership to improve the safety of food in developing and middle-income countries more generally. Since 2012, APEC, ASEAN, FAO and WHO also work together through the Food Safety Cooperation Working Group.
The major emphasis of this wave of cooperative activity on food safety, at regional and global levels, has traditionally been on harmonising regulations in light of international obligations, beginning with those set under the WTO Agreements in force since 1994 (including for all AMSs). Its General Agreement on Tariffs and Trade provides for National Treatment or non-discrimination between local and imported goods (Art III.4). This is subject to the importing state’s capacity to introduce consumer protection measures “necessary” to preserve human health as long as these are not a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade (Art XX(b)) aimed instead at protecting local producers. The WTO’s more specific SPS Agreement provides further guidance. It encourages harmonisation of food, animal and plant safety standards, especially by presuming that national measures on imports are compliant if they conform with specified international standards (notably, the Codex Alimentarius for foods: Art 3.2). The importing state can impose more stringent measures if it can show they are justified scientifically (Art 2.2), after a risk assessment (Art 5.1) based on scientific evidence (Art 5.2). The importing state can then set an appropriate level of protection (ie undertake risk management: Art 5.3), including discriminating against imported products as long as this is not more trade restrictive than necessary. An importing state must accept other members’ SPS measures as equivalent, even if differing from their own or other states’ measures trading in the same product, but only if the exporting state “objectively demonstrates” that its measures achieve the importing state’s appropriately-set level of SPS protection (Art 4).
Similar provisions apply for non-SPS measures imposed by importing states, eg on manufactured goods, under the WTO’s TBT Agreement, but there is no presumption of conformity from adhering to standards set by specified bodies. Arguably this is because many countries both import and export foods, making it easier to agree on uniform international standards through the Codex Alimentarius process, which remains relatively depoliticized and dominated by scientists or other food experts.
Despite Art 4 of the SPS Agreement providing for WTO member states to conclude further bilateral or regional agreements actively acknowledging equivalence in national standards and therefore mutual recognition, until recently this has happened only rarely. However, as bilateral and regional FTAs have begun to proliferate (especially from the late 1990s), more treaty provisions that promote such mutual recognition arrangements, as well as other technical and institutional cooperation measures related to human health and safety, including:
• product control, inspection and approval procedures;
• enhanced transparency around SPS measures;
• identification and early resolution of SPS-related problems among treaty partners;
• recognition of pest- of disease-free areas;
• encouragement of bilateral coordination on SPS issues discussed in multilateral fora (such as the Codex Alimentarius standard-setting mechanism); and
• exchange of information and personnel or capacity building for regulators.
4. Conclusions
Food safety regulation has emerged quite early in many national economies, and shares many common features including across AMSs, but there are problems with enforcement. It has also tended to remain a quite self-contained field. However, agriculture and health departments have begun to share responsibility in policy-making and implementation particularly with trade ministries, partly due to new disciplines associated with international treaty regimes like the WTO. Other international bodies like the World Bank, FAO and WHO, and regional entities like APEC and ASEAN, are also increasingly working on initiatives to unify food safety standards. The main emphasis remains on trade liberalization and greater market access for imported foods. Consumer regulators in AMSs should be also aware of and involved in these proliferating cooperative activities to ensure that consumer concerns are being heard, and to build up further “whole of government” capacity in food safety risk assessment, management and communication.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.