Food Labelling Regulations (Amendment) Bill

Debate between Richard Bacon and Edward Leigh

Friday 1st April 2011 Commons Chamber

[Mr Bacon]

I hear what my hon. Friend says, and I will set out a précis of the arguments for his benefit and for that of other Members. I do not want to dwell on them at length, however, because I also need to explore the aspects of European law that are unjustifiably held to be fatal to the Bill.

I was saying that the Food Labelling Regulations (Amendment) Bill that I introduced in 2009 is worth some attention, particularly because of its sponsors. I reiterate that that Bill is identical to today’s Bill, save for the names of the sponsors. My 2009 Bill had a range of sponsors from different parties, including my right hon. Friend the Member for South East Cambridgeshire (Mr Paice) and my hon. Friend the Member for Newbury (Richard Benyon), who I am delighted to see sitting in his place today. It is a great pleasure for me to be able to introduce a Bill that I know has the support of two people who are now Ministers in the Department for Environment, Food and Rural Affairs.

I do not wish to detain the House by talking about the cheating that goes on, but I will briefly summarise the problem. The current rules do not do the job adequately, and consumers continue to be misled. In the case of certain foodstuffs, no indication need be given that the product is made with imported meat. Examples include the Tesco chicken dinner in its range of children’s meals, which simply states “Produced in the UK”, although the chicken actually comes from Thailand. Sometimes a phrase will be used to imply the country of origin. For example, items from the Bird’s Eye Great British Menu range turn out, on closer inspection, to contain imported meat. At present, producers of imported meat can lawfully use the Union flag on packaging to imply that a product is British, even when it is not, and they do so. They can, and do, import meat from overseas, package it here and say that it has been produced in the UK.

There are not many people out there who disagree with what I am saying about the need to address the problem. An ICM poll for the Honest Food campaign showed that 87% of consumers in the survey believe that the Government should ensure that the country of origin is clearly shown on food products. The survey also showed that 89% believe that when a product such as sausages or bacon is labelled as “British” or “produced in the UK”, it should mean that the sausages or bacon are from an animal reared in Britain.

The right hon. Member for Newcastle upon Tyne East (Mr Brown) is a sponsor of the Bill. When he was an Agriculture Minister 12 years ago in 1999, he told us:

“I want to give clear unambiguous information on the real place of origin, not place of processing or place of slicing; I want to clamp down on misleading place of origin descriptions”.—[Official Report, 28 October 1999; Vol. 366, c. 1126.]

In the last Labour Administration, the then Secretary of State for Environment, Food and Rural Affairs, the right hon. Member for Leeds Central (Hilary Benn) said:

“A pork pie made in Britain from Danish pork can legitimately be labelled as a British pork pie”.

He added:

“That’s nonsense, and it needs to change.”

I agree, and so did the farming Minister at the time, Jane Kennedy, who was then the right hon. Member for Liverpool, Wavertree—and she is, I might add, very much missed. She appeared on the excellent Channel 4 programme, “Jamie Saves our Bacon”, and told Jamie Oliver that misleading labelling was “a disgrace”. Once again, I agree.

Some progress has been made with voluntary codes, but they are voluntary. As I said in seeking leave to bring in this Bill, significant concerns persist about the effectiveness of voluntary agreements, while the demand for mandatory country-of-origin labelling continues to grow. Helen Ferrier, the chief science and regulatory affairs officer for the National Farmers Union said of the guidance from the British Retail Consortium:

“Unless all companies sign up and then consistently stick to their promises, some consumers will still be misled.”

Alice Barnard, chief executive of the Countryside Alliance also welcomed the guidance and urged food organisations to sign up to its standards, but she also lamented:

“The code is not mandatory, which would offer further protection still.”

At the annual general meeting of the National Federation of Women’s Institutes in 2010, a resolution calling for the mandatory, clear labelling of food with its true country of origin was passed unanimously. The Minister might like to reflect that this is an organisation not to be trifled with, as a former Prime Minister found out to his cost. The chair of the Women’s Institute, Ruth Bond said:

“We know that consumers want to make informed choices, and surely it is not right that consumers remain dependent on the goodwill of retailers signing up to a voluntary scheme. Without legislation there is no guarantee that consumers will get the choice and information they are demanding.”

Let me turn to deal briefly with the Bill. It is a very short Bill of two clauses, including the “Short title and commencement”, so I suppose it is what most of us would call a one-clause Bill. It provides definitions of meat products under the rubric of “Country of origin labelling”. More extended provisions explain in more detail the definition of “Meat component” and the circumstances in which the word “British” can be used—or where it cannot:

“No meat product may be labelled ‘British’ unless the animal from which the meat was derived was born, reared and slaughtered in the United Kingdom.”

The key issue I want to devote most of my time to exploring is whether there are fatal flaws in the Bill because of European Union law. Some people believe that to be the case, but I am not sure that it is. Let me start by pointing out the terms of the EC directive—the original directive 2000/13/EC. It states in paragraph (6) of the preamble:

“The prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer.”

Paragraph (8) continues:

“Detailed labelling, in particular giving the exact nature and characteristics of the product, which enables the consumer to make his choice in full knowledge of the facts is the most appropriate”—

and now we come to the most interesting bit—

“since it creates the fewest obstacles to free trade.”

More detailed labelling means fewer obstacles to free trade. Paragraph (14) of the preamble continues:

“The rules on labelling should also prohibit the use of information that would mislead the purchaser”.

Moving on from the preamble to the articles, article 2 states quite clearly in the first paragraph:

“The labelling and methods used must not…be such as could mislead the purchaser to a material degree”.

All over the directive, it is perfectly clear that the purpose is to protect the interests of consumers.

It is not at all obvious therefore that what I am doing—it could easily be argued that I am simply trying to transpose into UK law, albeit more effectively than hitherto, the requirements of this directive—is in any sense contrary to European law. However, I accept that there is an argument to be had. My contention is that this is about consumer choice, not about restricting markets in any way.

In order to make the point in more detail, let me turn to the leading text on the free movement of goods. It is the fourth edition of “Free Movement of Goods in the European Community: under Articles 28 to 30 of the EC Treaty”, by Mr Peter Oliver. As it makes clear, an extant jurisprudence offers a considerable opportunity for complex discussion. It states:

“Article 28 (formerly article 30) provides: ‘Quantitative restrictions on imports and exports and all measures having equivalent effect shall…be prohibited between Member States…the concept of measures of equivalent effect to quantitative restrictions differs from quantitative restrictions themselves in that it is considerably wider and more complex.”

In other words, it is quite possible that even if someone was not trying—as I am not trying—to restrict the imports of goods by providing that meat sold here must be accurately labelled, that could be the equivalent effect although it was not the intention, and article 28 prohibits measures that have the effect of quantitative restrictions.

[Mr Edward Leigh (Gainsborough) (Con)]

I strongly support my hon. Friend’s Bill, but I wonder what other countries in the EU do. It is difficult to imagine the French, for instance, tolerating the position that exists in this country, and they are better at protecting their own meat market. Perhaps my hon. Friend can enlighten the House.

[Mr Bacon]

I will. I shall be citing a number of cases that have been heard in the European courts, which illustrate that not just the French but many other countries have come up against these issues and that there is a developed jurisprudence.

As Peter Oliver says in his book,

“in determining whether a particular measure falls under Article 28…it is imperative to proceed in two stages. The first question to ask is: does this measure restrict imports (or exports) so as to be caught by Article 28…? If so, then the second question arises, namely: is the measure nevertheless justified in Community law and thus lawful?”

Mr Oliver examines explicitly the question of the obligation to make a declaration of origin. He makes it clear that in “certain circumstances”, case law has held—in the past—that

“the requirement that the importer make a declaration of origin is contrary to Article 28. This was laid down in the Donckerwolke judgment, already discussed”

—earlier in his book, that is—

“where the Court held:

‘the requirement by the importing Member State of the indication of the country of origin on the customs declaration document for products in free circulation…does not in itself constitute a measure of equivalent effect’”

—in other words, one that would produce the equivalent of quantitative restrictions—

“‘if the goods in question are covered by measures of commercial policy adopted by that State in conformity with the Treaty.’”

The judgment went on to say, however—and this is the point—

“‘such a requirement would, however, fall under the prohibition contained in Article [28] of the Treaty if the importer were required to declare, with regard to origin, something other than what he knows or may reasonably be expected to know’”.

I would say that meat suppliers should

“reasonably be expected to know”

where the meat that they are supplying comes from.

On the face of it, the requirement would not fall under the prohibition in article 28. Unfortunately for that line of argument, however—as Mr Oliver goes on to say—

“At least since January 1, 1993, when Article 14”

—the former article 7A—

“of the Treaty took effect, all obligations to make a declaration of origin constitute measures of equivalent effect. The qualifications in Donckerwolcke, which related to the now moribund Article 134…no longer apply.”

It might be thought that that constituted “Game, set and match”, or “I am done middle stump”—depending on whether a tennis or a cricketing analogy is preferred—but even then it is not as simple as that, because the treaty also contains article 30. Mr Oliver’s book is devoted almost entirely to article 28 and article 30. The main exception, as he describes it—article 30—includes the subject of mandatory requirements. Article 30 states:

“The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of”—

and a whole laundry list follows—

“public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.”

We could drive a pyramid through that group of exceptions. That makes plenty of work for lawyers, of course, but it also shows that the issue is not quite as clear as some might try to make us believe.

Mr Oliver goes on to say:

“The wording of this provision shows that it applies both to quantitative restrictions and to measures of equivalent effect. Furthermore, it covers that latter whether they are ‘distinctly’ or ‘indistinctly’ applicable.”

He continues:

“it is also clear from the wording of Article 30 that, subject to certain limits, it merely entitles the Member States to exercise certain powers: it does not oblige them to do so.”

We must bear in mind that I am not trying to impose any restrictions on imports. I am merely trying to ensure that the consumer has clear information. Therefore, my proposals should receive the lightest possible interpretation in respect of these rules.

Mr Oliver goes on to point out that as the European Court of Justice

“held in Bauhuis v Netherlands, Article 30 ‘constitutes a derogation from the basic rule that all obstacles to the free movement of goods between Member States shall be eliminated’”.

In other words, such derogations are possible. Mr Oliver continues:

“To be justified under Article 30, national provisions”—

which is what mine would be—

“must fall within one of the grounds of justification covered by the first sentence of Article 30”.

I think mine do that. Public policy says there should be better information for consumers so they can make informed choices, and public policy is one of the justifications under article 30.

As Mr Oliver points out, to be justified under article 30 national provisions must also

“not constitute arbitrary discrimination nor a disguised restriction on trade between Member States and must be justified.”

I am not trying to put any disguised restrictions on trade between member states. I simply want information for consumers, and what I am trying to do is certainly not arbitrary.

To continue:

“the Court in ‘Cassis de Dijon’”—

one of the most famous cases in European jurisprudence—

“has recognised a series of ‘mandatory requirements’ in addition to the grounds of justification expressly set out in Article 30.”

As is clearly set out in the book,

“the better view is that the ‘mandatory requirements’ fall under that provision”—

article 30—

“despite the Court’s traditional view that they were subsumed within Article 28.

The ‘mandatory requirements’ recognised so far are: the prevention of tax evasion, consumer protection, the prevention of unfair competition, the protection of the environment, the improvement of working conditions, the maintenance of press diversity”

and so forth.

To continue:

“One questions left open by ‘Cassis de Dijon’ was the relationship between the ‘mandatory requirements’ laid down by that judgment and Article 30, which is not mentioned at all in the judgment. Two schools of thought evolved on this matter:

(a) According to the first view, the ‘mandatory requirements’ are to be weighed up within Article 28, not Article 30. Moreover, only ‘indistinctly applicable’ measures may qualify, so that ‘distinctly applicable’ measures may only be justified on the grounds expressly set out in Article 30. On this view, therefore, ‘indistinctly applicable measures’ are granted more favourable treatment in that the ‘mandatory requirements’ apply to them alone.

(b) According to the second view, the ‘mandatory requirements’ are regarded as being subsumed under Article 30, on the grounds that they constitute additions to the list of grounds of justification expressly set out in Article 30. On this view, the mandatory requirements are subject to precisely the same tests as the latter grounds.”

Mr Oliver continues:

“In support of the first theory, it should be said that the Court has repeatedly held that Article 30 must be interpreted narrowly since it constitutes an exception to a fundamental principle of Community law.”

He adds:

“Yet it is submitted that that is outweighed by the following considerations:

(a) The second view avoids the undue harshness resulting from the first theory with respect to ‘distinctly applicable’ measures necessary on such grounds as consumer protection. According to the first theory, even though they are necessary, such measures are quite simply prohibited. According to the second theory, they are considered to fall under Article 28, but may be justified under Article 30. Since the Court has now accepted that consumer protection may justify restrictions otherwise prohibited by Article 28, does it make sense to approach it differently from, say, plant health merely because in 1957 (when the Treaty of Rome was first drafted) consumer protection did not yet arouse much passion?”

Mr Oliver continued:

“It always seemed clear that the ‘mandatory requirements’ have the same properties as the grounds of justification in Article 30. As van Gerven”—

the then advocate-general—

“remarked in Aragonesa de Publicidad v Departamento de Sanidad ‘…the conditions governing the applicability of the Cassis de Dijon doctrine and of Article [30] are the same”.

He continued:

“For these reasons, the second approach has been firmly and consistently advocated in this book since its very first edition, which appeared in 1982. This is despite the fact that…the Court had already chosen to follow the other approach, which was also backed by most commentators for many years.”

Mr Oliver’s point in this text, which is one of the leading reference books on the free movement of goods, is that the second approach is gaining favour. He continued:

“What is more, the Court has on occasion had recourse to some far-fetched—not to say exotic—devices so as to maintain the façade that the ‘mandatory requirements’ apply only to ‘indistinctly applicable measures’. Thus the Court has been driven to holding the following measures to be ‘indistinctly applicable’ so as to be able to consider the ‘mandatory requirements’ at all: a German statutory provision to the effect that only wines from certain specific regions of Germany could be marketed in bottles of a particular shape; legislation prohibiting the importation and marketing of meat products containing non-meat ingredients; and a measure prohibiting the use of the letter R in a circle (which indicates that a name constitutes a registered trade mark) unless such registration had occurred in the Member States in question.

Perhaps the most striking example occurred in Commission v Belgium (waste disposal), which concerned a blatantly discriminatory ban on imports of waste into Wallonia from other Member States.”

Mr Oliver goes on to talk about a “most welcome” move made by advocate-general Jacobs, whom I sat next to at lunch once in Luxembourg and I found to be a thoroughly excellent chap. Mr Oliver describes how Mr Jacobs

“has criticised the Court’s traditional approach on at least two occasions. In Chemische Afvalstoffen Dusseldorp v Minister van Milieubeheer”—

I think that that is Dutch, rather than German—

“referring to the last edition of this book, he acknowledged that the Court had been ‘obliged to adopt rather tortuous reasoning’ in the cases just mentioned and most particularly in the Walloon Waste case. In PreussenElektra v Schleswag, the same Advocate General went further, saying that ‘the reasoning in Walloon Waste is flawed and that ‘it is desirable that even directly discriminatory measures can sometimes be justified on grounds of environmental protection’, the latter being a ‘mandatory requirement’. He then added: ‘In view of the fundamental importance for the analysis of Article 30 of the Treaty of the question whether directly discriminatory measures can be justified by imperative requirements, the Court should, in my view, clarify its position in order to provide the necessary legal certainty’.

Mr Oliver goes on to say:

“Without expressly renouncing its earlier position, the Court has grudgingly moved in this direction…first…in Konsumentenombudsmannen v De Agostini”.

That case basically considered whether an outright ban on advertising certain products on television, which was held to have a greater effect in some member states than in others, could be justified.

He continued:

“Likewise, in Decker v Caisse de maladie des employés privés, the Court considered a ‘distinctly applicable’ Luxembourg rule requiring the prior authorisation of the purchase of glasses from another Member State…in PreussenElektra, blatantly discriminatory legislation on wind energy was held to be justified for the protection of the environment (a mandatory requirement).

Mr Oliver continued:

“Although these developments must surely be applauded, it is a pity that the Court has not yet shown the courage to disown its earlier approach expressly, as this would undoubtedly be in the interests of legal certainty.”

His fundamental point is as follows:

“In short, the view consistently espoused in all the previous editions of this book has been gaining ground in recent years.”

Why trouble the House with all this jurisprudence, especially as a non-lawyer? The reason is extremely simple: I want to make it clear there is an argument to be had. Indeed, having listened to what the Prime Minister has said on the subject of food labelling, I venture to suggest that he agrees with me. He said at the Oxford farming conference:

“Food can be imported to Britain, processed here, and subsequently labelled in a way that suggests it’s genuinely British. That is completely wrong. I cannot overstate the importance of enabling informed consumer choice. Effective marketing can only be achieved if labelling is accurate and clear.”

He went on:

“I know that this may raise issues with the European Union. But the role of a Government that cares about British farming is not to sit on its hands and say ‘there’s nothing we can do’, but instead to test these rules and if necessary challenge and change them.”

That is exactly what my Bill is designed to do and would accomplish, and I hope that the House will read it a Second time.