I. Introduction

If the European Union, since the signing of the Maastricht Treaty in 1992 and the ensuing consolidating of a unified economic community, has attempted to further strengthen the common governance of the European Union under a legal umbrella¹ while attempting to define the identity of “food” within the EU by way of promulgation of the Novel Food Regulation (NFR) in 1997, it is undoubtedly a concrete manifestation of the EU’s intention to strengthen its “soft border” through intervening with Member States via administrative rules.

However, the NFR seems to be full of controversy since it was enacted, or even at the first date its idea was proposed. On the one hand, externally, the NFR caused harsh conflicts with international economic and trade agree­ments, such as the World Trade Organization (WTO) or General Agreement on Tariffs and Trade (GATT), and caused trouble between the EU and other economic communities in the world on the issue of fairness related to trade; on the other, the European Parliament, which has always been a supplemen­tary institution under the skepticism of the democratic deficit,² was also disap­pointed with the final version of the NFR that was agreed on in 1997, believing that the NFR provides no protection to EU citizens through its neglecting “the right to know”³ of the public.

The formulation of the NFR was originally set by the EU in response to both foods imported from outside the borders of the EU and all new foods

1 J. Henderson, “Michel Foucault: Governmentality, Health Policy and the Governance of Childhood Obesity” in F Collyer (ed.), The Palgrave Handbook of Social Theory in Health, Illness and Medicine (New York, Palgrave Macmillan 2015), pp. 324-39.

2 A. Follesdal & S. Hix, “Why There Is a Democratic Deficit in the EU: A Response to Majone and Moravcsik” (2006) 44(3) JCMS.

3 C. W. Kirkham, “Legislative Developments: Novel Foods and Food Ingredients” (1997) 3(2) CJEL. 317-19, available at http://cjel.law.columbia.edu/print/1997/leg-dev-novel-foods-and-food-ingre- dients/ (last accessed July 22, 2020).

DOI: 10.4324/9781003271918-13

Revisiting Novel Food Regulation 147 developed from new technologies, such as genetic modification and nanotech­nology.^[538] The primary purpose is not only to regulate the commercial opera­tions of food but also to ensure people in the EU won’t suffer health damage from eating foods that have not been used in the EU traditionally.

Historically, the formulation of the NFR was the most time-consuming one of the EU’s various food-related regulations. Moreover, the attributes of the regulated subjects, apart from its arbitrary design by taking time and geo­graphical boundaries as the watershed, have repeatedly changed over the years. The most obvious example is the removal of genetically modified food (GMF), which was once included but then exclusively regulated by the tailor-made Regulation (EC) 1829/2003; as for food provided by cloned animals, which has been continuously mentioned in the debate through the legislative process ever since 1992, it stands as another candidate for would-be exclusion. While observing even further, the NFR, just like the transitional border control estab­lished through customs, is to provide the EU institutional means for the iden­tification of food passing through.

II.