Why separate the regulatory regimes applicable to food safety and product safety?

Legal Studies

Volumn 33, Issue 4, 2013, Pages 509-531

  Hyde, Richard ^a  

^a NORTHUMBRIA UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 84886286810     PISSN: 02613875     EISSN: 1748121X     Source Type: Journal    
DOI: 10.1111/j.1748-121X.2012.00261.x     Document Type: Article

References (112)

1. For example, T Prosser 'Regulation and social solidarity' (2006) 33(3) Journal of Law and Society 364 and T Prosser The Regulatory Enterprise: Government, Regulation and Legitimacy (Oxford: OUP, 2010
2. I Paulus The Search for Pure Food (London: Martin Robinson, 1974
3. Prosser 'Regulation and social solidarity,' above n 1, notes at p 364
4. That 'market failure' as a rationale appears to be 'inadequate either to explain or to normatively justify the range of regulatory tasks currently undertaken' by regulators.
5. See J Simon 'Risk and reflexivity: what socio-legal studies add to the study of risk and the law' (2005) 57 Alabama Law Review 119
6. Implemented in the UK by General Product Safety Regulations 2005
7. Another product class subject to more onerous regulatory regimes is toys (Directive 2009/48). Similarly, more onerous regulation applies to motor vehicles, and to cosmetics.
8. Paulus, above n 2.
9. Political drivers are returned to below n 93.
10. See Fitzpatrick v Kelly LR 8 QB 3371873
11. Roberts v Egerton LR 9 QB 494 (1874)
12. Paulus, above n 2, pp 39-40
13. See, inter alia, Regulations 852/2004 and 853/2004.
14. AI Ogus Regulation: Legal Form and Economic Theory (Oxford: Hart, 2004) p 151
15. GPSD art 3(1).
16. GPSD art 2(b).
17. Ogus, above n 12, p 151.
18. See eg Food Standards Agency 'Being a world class regulator' (Report to Board, 20 September 2007www.food.gov.uk/multimedia/pdfs/board/fsa070905.pdf
19. London Economics Consumer Detriment under Conditions of Imperfect Information (OFT Research Article 11) (London: Office of Fair Trading, 1997) p 38
20. JM Antle 'Economic analysis of food safety' in B Gardner and G Rausser (eds) Handbook of Agricultural Economics 1 (Amsterdam: North Holland Publishing Co, 1999) p 1085
21. See London Economics, above n 18.
22. S Henson and B Traill 'The demand for food safety: market imperfections and the role of government' (1993) 18 (2) Food Policy 152-157
23. Note that there are certain instances where food safety may be a search good, which means that the safety characteristics can be ascertained by inspection prior to purchase, such as where the product is visibly rotten.
24. Antle, above n 19, p 1100
25. See G Akerlof 'The market for "lemons": qualitative uncertainty and the market mechanism' (1970) 84 Quarterly Journal of Economics 488
26. S Breyer 'Typical justifications for regulation' in R Baldwin, C Scott and C Hood (eds) A Reader on Regulation (Oxford: Oxford University Press, 1998) p 68.
27. Henson and Traill, above n 21, p 159
28. For example, in England and Wales, Disability Living Allowance.
29. Eg a refusal to buy any poultry after an outbreak of avian influenza on one farm.
30. See eg R Cranston Principles of Banking Law (Oxford University Press: Oxford, 2nd edn, 2002) pp 66-67
31. DA Hennessy, J Roosen and HH Jensen 'Systemic failure in the provision of safe food' (2003) 28 Food Policy 7781
32. For a useful summary see Ogus, above n 12, pp 46-47.
33. Regulation 178/2002 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, Regulation 14(1), breach of which is made the subject of criminal penalty by the General Food Regulations 2004, reg 4(b).
34. T Wilhelmsson 'Consumer law and social justice' in I Ramsay (ed) Consumer Law in the Global Economy: National and International Dimensions (Aldershot: Ashgate, 1997) pp 222- 224
35. It should be noted however, that Wilhelmsson is also generally supportive of mandatory standards, 'general rules that make the prevailing standard obligatory' (p 255
36. WC Whitford 'The functions of disclosure regulation in consumer transactions (1973) Wisconsin Law Review 400
37. DD Troutt 'Ghettoes revisited: antimarkets, consumption, and empowerment' (2000) 66(1) Brooklyn Law Review 31-32
38. D Cayne and MJ Trebilcock 'Market considerations in the formulation of consumer protection policy' (1973) 23 University of Toronto Law Journal 396
39. H Collins Regulating Contracts (Oxford University Press: Oxford, 1999
40. See Paulus, above n 2, p 36
41. The protection of the. . working class consumer. . was given little consideration.' The difficulties for the poor in obtaining products that are as advantageous as better off consumers could obtain are detailed in D Caplovitz The Poor Pay More: Consumer Practices of Low Income Families (Free Press: New York, 1963
42. Antle, above n 19, p 1086
43. P Cartwright Consumer Protection and the Criminal Law: Law, Theory, and Policy in the UK (Cambridge University Press: Cambridge, 2001) p 38
44. G Dworkin 'Paternalism' in RA Wasserstrom (ed) Morality and the Law (Wadsworth: Belmont, 1971) p 108
45. See eg JD Wright 'Behavioral law and economics, paternalism, and consumer contracts: an empirical perspective' (2007) 2 (3) New York University Journal of Law and Liberty 470
46. See eg S Lichtenstein et al 'Judged frequency of lethal events' (1978) 4 (6) Journal of Experimental Psychology: Human Learning and Memory 551 and O Svenson 'Are we all less risky and more skilful than our fellow drivers?' (1981) 47 Acta Psychologica 143
47. D Kennedy 'Distributive and paternalistic motives in contract and tort law, with special reference to compulsory terms and unequal bargaining power' (1982) 41 (4) Maryland Law Review 563 at 563, proposing paternalistic decisions be based on 'empathy and love.'
48. Ogus, above n 12, p 53
49. JD Hanson and DA Kysar 'Taking behaviouralism seriously: the problem of market manipulation' (1999) 74 New York University Law Review 630-662
50. Kennedy, above n 42, at 627
51. G Howells 'The potential and limits of consumer empowerment by information' (2005) 32 Journal of Law and Society 349-360
52. ND Weinstien 'Unrealistic optimism about future life events' (1980) 39 (5) Journal of Personality and Social Psychology 806
53. See further examples of the over optimism bias at work in relation to the chance of divorce (LA Baker and RE Emery 'When every relationship is above average: perceptions and expectations of divorce at the time of marriage' (1993) 17 Law and Human Behavior 439) and in people's perception of their driving skills (Svenson, above n 41).
54. Kysar state 'individuals. . underestimate the extent to which a threat applies to them even when they recognise the severity it poses to others' Hanson and Hanson and Kysar, above n 44, at 657-658
55. Henson and Traill, above n 21, at 156
56. Buzby and Frenzen Suggest that there are between 6.5 million and 33 million cases of food borne illness in the US each year (JC Buzby and PD Frenzen 'Food safety and product liability' (1999) 24 Food Policy 637-637
57. Hanson and Kysar, above n 44, at 657
58. Henson and Traill, above n 21, 156
59. I Ramsay Consumer Law and Policy: Text and Materials on Regulating Consumer Markets (Oxford: Hart, 2nd edn, 2007) p 99
60. Antle, above n 19, p 1111
61. S Deakin, A Johnston and B Markesinis Markesinis and Deakin's Tort Law (Oxford: Clarendon Press, 6th edn, 2008) p 740
62. Deakin, Johnston and Markesinis, above np 741pp
63. HLA Hart and T Honoré Causation and the Law (Oxford: Clarendon Press, 2nd edn, 1984
64. Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428.
65. The Wagon Mound (No 1) AC 388.1961
66. Buzby and Frenzen, above n 50, at 641.
67. WK Viscusi 'Towards a diminished role for tort liability: social insurance, government regulation and contemporary risks to health and safety' (1989) 6 Yale Journal on Regulation 65-69
68. [2003] 1 AC 32
69. Barker v Corus 2 AC 572, which restricted the scope of the decision.2006
70. [2009] PIQR P7 [56]-[64].
71. N Coutrelis 'Product liability in the food sector' (2000) 28 International Business Lawyer 222-226
72. See R Martin 'Public health and the scope of potential liability in tort' (2005) 21 Journal of Professional Negligence 56-57
73. JM Williams 'Setting up the variant CJD trust - operations and lessons for the future' (2004) Journal of Personal Injury Law 39-44
74. Coutrelis, above n 224
75. Lord Woolf Access to Justice Final Report (London: Lord Chancellor's Department, 1996
76. See generally Civil Procedure Rules, Part 27, and in particular Part 27.14, which relates to costs.
77. Courts and Legal Services Act 1990
78. Jackson Review of Civil Litigation Costs: Final Report (London: The Stationary Office, 2010
79. Buzby and Frenzen, above n 50, at 641
80. AA Leff 'Injury, ignorance and spite - the dynamics of coercive collection' (1970) 80 Yale Law Journal
81. Civil Procedure Rules Part 19, Section III and Practice Direction - Group Litigation. Lord Justice Jackson (ed) Civil Procedure Volume I (London: Sweet and Maxwell, 2012) ('The White Book') 19.10.0 cites personal injury arising from defective products as an area that could benefit from the use of Group Litigation Orders.
82. Western Canadian Shopping Centres Inc v Dutton [2001] SCR 534 at [27]-[29] per McLachlin CJ. Note however that the facts of cases and the harms caused must be sufficiently similar to allow consideration together.
83. Although see the McDonalds Hot Drinks Group Litigation Orderhttp:// www.hmcourts-service.gov.uk/cms/150_552.htm
84. P Rozin 'Food is fundamental, fun, frightening and far reaching' (1999) 66 (1) Social Research 9-28
85. Toy Safety Directive, Directive 2009/48/EC Annex II Part V, s 1 provides that 'toys must be designed and manufactured in such a way as to meet hygiene and cleanliness requirements in order to avoid any risk of infection, sickness or contamination.'
86. See eg Medicines Act 1968
87. EU Cosmetic Products Regulation 1223/2009, which contains a similar general safety requirement to the General Product Safety Directive, but goes beyond this, governing eg nanomaterials.
88. See eg Medical Devices Regulations 2002
89. JL Watson and ML Caldwell 'Introduction' in JL Watson and ML Caldwell (eds) The Cultural Politics of Food and Eating (Malden, MA: Blackwell, 2005
90. U Sinclair The Jungle (London: Penguin Classics, 1985
91. Sinclair quoted in K Hillstrom and LC Hillstrom Industrial Revolution in America: Mining and Petroleum (Santa Barbara, CA: ABC-CLIO, 2006) p 260
92. See JH Young 'The pig that fell into the privy: Upton Sinclair's The Jungle and the meat inspection amendments of 1906' (1985) 59 Bulletin of the history of Medicine 467
93. 'Germans quote Sinclair: use statements in "The Jungle" against American meats' Washington Post (Washington DC, 3 June 1906) p 6
94. J Jordana and D Levi-Faur 'The politics of regulation in the age of governance' in J Jordana and D Levi-Faur (eds) The Politics of Regulation: Institutions and Regulatory Reform for the Age of Governance (Cheltenham: Edward Elgar 2004) p 9
95. MA Echols 'Food safety culture in the European Union and the United States: different cultures, different laws' (1998) 4 Columbia Journal of European Law 525 -528
96. H-C von Heydebrand und der Lasa notes that 'consumers have, to one degree or other, certain expectations as to the quality of a foodstuff and they want the government to ensure that their expectations are not frustrated. They expect a certain amount of paternalism.' (H-C von Heydebrand und der Lasa 'Free movement of foodstuffs, consumer protection and food standards in the European Community: has the Court of Justice got it wrong?' (1991) 16 European Law Review 391-402
97. See further Barry's discussion of rational paternalism in BM Barry Political Argument (New York: Humanities Press, 1965) pp 226-227
98. Cartwright, above n 38, p 36
99. Governmental approaches of this sort may be seen from a market perspective as a coordination solution to market failure allowing consumers to benefit from economies of scale and reducing their transaction costs.
100. International Covenant on Economic, Social and Cultural Rights, art 11(1).
101. Article 51 obliges EU institutions to 'respect the rights, observe the principles and promote the application' of the Charter.
102. In the late 1990's Commissioner Bonino stated 'The consumer has a fundamental right to safe food, and I intend to do everything in my power to ensure that this right becomes a reality.' See Press Release 'Launching of the "European food safety campaign" ' 15 October 1998http://europa.eu/rapid/pressReleasesAction.do?reference=IP/98/900format= HTMLaged=1language=ENguiLanguage=en
103. See above n 24, text. Hennessy, Roosen and Jensen, above n 29, at 86 states that without confidence in the market the consequence of a food safety breakdown may be that 'a whole line of products, whether or not of suspect quality in the eyes of the experts, may be tarred in the marketplace.'
104. H Ritvo 'Mad cow mysteries' in JL Watson and ML Caldwell (eds) The Cultural Politics of Food and Eating: A Reader (Malden, MA: Blackwell, 2005
105. See Henson and Traill, above n 21, at 156.
106. L Carson and R Lee 'Consumer sovereignty and the regulatory history of the European market for genetically modified foods' (2005) 7 (3) Environmental Law Review 173-174
107. Ritvo, 101, p 300
108. Other examples of confidence building policies from the BSE period detailed by Rivto included banning the sale of certain cuts of beef that included the spinal cord and the widening of the list of by-products of the slaughtering process that could not be reintroduced into the human food chain.
109. Schedule 1A (now repealed and replaced).
110. Products that are particularly likely to impact on vulnerable consumers may be regulated beyond the requirements of the General Food Regulations. See eg Directive 2006/141/EC which contains special rules which apply to infant formulae and follow on formulae.
111. Directive 2009/48.
112. Directive 2009/48 Annex II(V)(1).