Persistent Arguments and Conflicts

Judging from the past, the nNFR involved lots of legal and social issues that cover a wide range of levels within and outside the EU. Whether the amend­ments can really make the nNFR attain the goals of effectively ensuring food safety for people in the EU, improving and lowering trade barriers, and pro­moting the development of emerging food technology industries remains to be confirmed by the implementation experience after 2018.

NFR, both the original and revised version, caused so many formidable socio- legal problems? Perhaps, taking food neophobia as an observed benchmark can make the consideration of sociolegal issues clearer and provide a direction for further revision of the nNFR in the future.

According to the definition, the food neophobia is defined as the unwilling­ness or refusal to eat or the tendency to avoid new foods^[554] based on three rea­sons, danger, aversion, and disgust.^[555] In other words, “one of the major sources of resistance to novelty lies in the attitude of the consumer, who in many cases may be suspicious or hostile as a result of specific ideologies, overly attached to tradition, or affected by neophobia.”^[556] Under this understanding, whether the content of the nNFR is feasible, a clearer image can be obtained.

From the perspective of social needs, except basic functions to manage busi­ness affairs, the formulation of regulation must take the will and compliance of various actors into account at the level of enforceability.^[557] Therefore, within the multi-level governance of the EU,^[558] the implementation of the nNFR will inevitably touch on other issues outside the commercial considerations that the public is highly concerned about.

The causes of rejection of new foods are extremely complex.^[559] Research suggests, compared with other areas, the EU public’s acceptance of new foods, such as whole insects as food,^[560] is inherently low.

Revisiting Novel Food Regulation 153 In other words, even if, based on existing scientific proof, the new food is safe and sound, whether it makes consumers feel disgust or involves personal unac­ceptable moral violations are still important determinants. Does the design of the NFR, even the nNFR, really consider the interests and rights of the people in the EU? Apart from security, how much influence do the other two consid­erations have on the persistence and compromise of legislative considerations? It is the social and legal issues triggered by the nNFR that must be addressed and discussed.

A. Traditional Foods Outside the EU: The Paramount Battlefield in the

Name of Security

Since the purpose of NFR is mainly to regulate new technologies, traditional exotic foods, such as foreign fruits, have not been registered as an issue in its drafting provisions. For a long time, third countries outside the EU have firmly determined that this type of traditional food does not belong to so-called novel food by definition^[564] and should be regarded as part of the abolished provisions of Article 1.2(e), “for foods and food ingredients obtained by traditional propa­gating or breeding practices and having a history of safe food use.”

It seems reasonable, because if there is any product that could be spared the burden of proof of authorization, then traditional foreign foods that have been used by the local people for centuries, especially crops, are legitimate candidates. However, since there is not a formal expression of the legal basis for its position provided by third world countries, the European Commission and Member States still tend to place these products under the jurisdiction of the NFR.^[565] Besides, due to political considerations, the EU arbitrarily restricts the “history of safe usage” to within the EU market.^[566] In the impact assess­ment report, the EU legislature also pointed out that traditional food should be resolutely treated as a new type of food to ensure the safety of people in the EU.^[567]

This approach, on the one hand, is undoubtedly strengthened by the pre­vious unfavorable experience of dealing with foreign products,^[568] and, more

importantly, on the other hand, it reflects the cautious attitude of the EU peo­ple toward foreign foods in the name of safety.

Correspondingly, in view of the expanded interpretation of the defini­tion of novel food by the EU agencies and the impact of the overwhelming import trade procedures accompanying this “novel” categorization, proving a food’s identity as “novel,” rather than proving its safety, has become the utmost commercializing strategy. However, in practice, this behavior, although nearly 20 years have passed since the NFR was promulgated and implemented, is not easy for most foreign food because of the absence of available data that would quantitatively^[569] support it in meeting the ill-defined criteria “consumption by the people within the EU prior to 1997 to some extent” to prove its legitima­cy.^[570] Therefore, how to attain the requirements of EU regulators in the name of safety is not only a source of confusion for businessmen raised in foreign cul­tures but also a special burden of proof for third world countries and therefore, becomes an excuse for appeals in the WTO.

In addition, whether to define “novel’ identities based on a politically assumed date is another matter at issue in international trade. For a long time, the recorded names of these foreign traditional products registered in EU cus­toms have been vague, and after entering the border, they are often transported to specific immigrant communities. Even the importers cannot accurately locate them, let alone the local administrative agencies. In other words, for importing merchants, the expedient process in the past has now become a nightmare.^[571] Furthermore, the requirement that the information provided must be traced back to May 1997 empowers any Member State to doubt and challenge the claimed “non-novel” status of these exotic foods. What further causes trouble is that Member States differ in their reviews of the same food due to different local epistemology.

Simply put, the fate of any individual product varies in different Member States and communities,^[572] while a common and consistent operating proce­dure is inaccessible.

Revisiting Novel Food Regulation 155 and insurmountable obstacle for their products to be imported into the EU market.^[573]

Regarding these difficulties, although the content of the nNFR 2015/2283 can be technically improved to speed up the efficiency of reviews and reduce the risk of international trade disputes, from the perspective of sociology of law, the EU legislature, after this revision, still failed to fully realize the right to define the novel identity of “food” imported under EU governance. Instead, it continues, through a centralized and dedicated review mechanism, to hold the power firmly in hand to strengthen the EU’s legal borders while simultane­ously weakening the sovereignty of the Member States. Therefore, how much can such an amendment led by the promotion of commercial interests really protect the well-being of the people in the EU? Will the relatively wealthier countries in the EU really become more interested in the traditional foods of the third world because it is easier to enter the EU market? This is still left to be observed.

B. Cloned Animals as Food: An Issue Haunted by Moral Considerations

Although animal cloning is obviously a new technology, the food it produces is equivalent to traditional food. Scientifically, it doesn’t fit squarely into a clas­sification as a typical novel food. According to Grahame Bulfield, the former director of the Roslin Institute who was responsible for the production of the first replicated animal, Dolly the Sheep, using the concept of “new” to treat meats manufactured from cloned animal is meaningless.^[574] Furthermore, whether food produced with the offspring of cloned animals is “novel” brings the issue into endless disputes.

Based on scientific evidence, meat produced from cloned animals and their progeny does not show any difference from the counterparts bred by tradi­tional natural techniques.^[575] Moreover, with existing scientific development, in terms of practical operation, there is no generally recognized reliable bio­tagging tool that can be used to distinguish between cloned and non-cloned animals.^[576] However, in terms of public opinion, taking cloned animals as food has encountered great difficulties in the EU.

According to a public opinion survey,^[577] due to ethical considerations, people in the European Union generally oppose the application of clone technology to produce meat for human consumption. In a proposal submitted at the end of 2013,^[578] more than 80% of EU citizens showed a wide range of negative perceptions about cloning animals for food production.

Viewed in terms of practical benefits, meat manufactured directly from cloned animals show no advantage in the food supply chain.^[581] Therefore, for consumers, the focus of controversy is shifted to the identity of the offspring of cloned animals. This generation-skipping means the relevant administration encounters the dilemma of whether to intensively control the manufacturing process or allow the market to decide their fate.^[582] Furthermore, within the global arena, the situation is even more harsh because five major agricultural and husbandry countries, led by the United States, held a seminar for graz­ing animals in Buenos Aires in March 2011 and gave a statement that clearly intends to exclude meat produced by the offspring of cloned animals from the definition of the “novel” type.^[583]

In terms of legislative design, it is obvious that the NFR was not originally intended to provide a platform for the debate on the issue of cloned animals.

Revisiting Novel Food Regulation 157 Hence, when cloned animals are included in the regulated subjects, everything seems out of place and full of controversy. Although this issue was indeed mentioned during the consultation meeting before the proposal, the Execu­tive Committee neither included cloned animals as food in the impact assess­ment of the proposal nor mentioned this technology in the original legal text. However, based on the tendency and pressure of public opinion, the European Parliament requires comprehensive labeling of cloned animal meat sold in the EU to ensure the rights of people in choosing food.

It is inevitable that the differences originating from people located in various countries may cause trade conflicts once the regulation is deliberated under varied moral values. The gradually more stringent labeling requirements for food in the EU, especially those related to animal welfare based on the moral values of the global north,^[584] is very likely to lead to conflicts between the nNFR and the content of GATT or WTO because, regarding the welfare of animals, there is no firm and consistent universal value among the WTO mem­bers on which level should be considered “rational.”

According to the nNFR, the EU grants the “novel” status to cloned animals and further requires importing merchants to fully label the prod­ucts produced from them. Obviously, it must be a meaningless and for­midable trading barrier for some husbandry countries that export animal meat as their economic support. Meanwhile, practically, the concept of the “consumer’s right to know,” which is commonly cited by the European Parliament, even if is explained in terms of absolutes, should still be given limitations.^[585] In other words, it is debatable whether the right to know can extend its boundaries endlessly until a trade barrier is formed. For example, regarding the issue of cloned animals or their offspring as meat, Hungar­ian Prime Minister Sandor Fazekas once pointed out sarcastically that it is impossible to pursue practically unless you “draw a family tree for each slice of cheese or salami” and expressed dissatisfaction toward the European Parliament’s making use of public opinion as an excuse in the process of revising the law.^[586]

So, when the debate is still focusing on labeling requirements, how can the EU hold a sturdy stance of such insistence? Obviously, the difficulty still exists because it will eventually increase the cost of goods, whether for importers or uncaring consumers, which in turn will create a heavy burden on inter­national trade. Moreover, even if the EU can clarify its moral values, there is

no guarantee that WTO’s arbitration committee would accept these morally oriented legal definitions.^[587]

If the right to know is absolute, then one pragmatic approach that might deviate from free trade is comprehensive labeling requirements. But this will inevitably impact the primary goal of the economic community for which the EU was initially established. On the contrary, if the purpose of labeling is just to give those consumers who pay special attention to technology the right to choose, then a universal voluntary labeling approach outside the legal requirements, which symbolizes the governing right, may be a viable alterna­tive.^[588] However, this approach will inevitably lead the function of the nNFR to degrade into a commercial handbook of promoting economic development. As for the moral persistence and preference of the people in the EU, it will no longer be a topic of concern.

C. Yuck Factor: Insects as Food

Although insects were considered a delicacy in ancient Roman times, they are not part of typical European eating habits,^[589] even though around 2.5 bil­lion people around the world eat insects currently. Although research suggests edible insect species are surely candidates to rescue people from food short­ages, containing higher levels of some polyunsaturated essential fatty acids and minerals than traditional meats and comparable protein levels,^[590] insects are still unlikely to elicit appetite among EU citizens.^[591]

According to the definition, the cause of food neophobia stems from safety considerations; moral values; and whether the food causes unpleasant emotion, that is, the “yuck” factor. As food, whole insects at least inevitably involve two. Although, on the one hand, safety considerations can be resolved by scien­tific endorsements issued from recognized authorities, such as United Nations Food and Agricultural Organization^[592] and EFSA, and this provides excellent support for the importers, on the other, the “yuck” factor, which results from innermost psychological rejection, remains a determinant for whether whole

Revisiting Novel Food Regulation 159 insects would be accepted as food (the author believes that very few people are currently reluctant to eat insects for moral reasons).

Broadly taking insects as a human food may be a plausible option to relieve the food shortage, though^[593] this trend could be jeopardized by the aversion that people show, especially in western countries, towards insects as food.^[594] Accord­ing to media reports, the acceptance and legitimacy of this “new” type of food vary greatly among EU Member States.^[595] For example, though compared to other countries outside Europe, it is not considerable, the acceptance of whole insects as food in the United Kingdom, Netherlands,^[596] and Belgium^[597] is rela­tively high and has a promising future,^[598] while the Nordic countries also show great variance. Finland is the forerunner in promoting insects as food,^[599] but the Swedish have relatively lower acceptance, and the relevant domestic adminis­tration has made contradictory moves toward the issue through simultaneously strictly reviewing the “novel” status of whole insects as foods^[600] while encour­aging enterprises to develop their potential.^[601] As for Italy, the limits are set at only accepting insects as food supplements,^[602] while countries in the central European region show the least acceptance.^[603]

Of course, legally the EU can consolidate its sovereignty further by draw­ing on administrative power to concretize the boundaries of its centralized and generalized governance. However, the foreseeable implementation might ultimately be varied among the Member States in compliance with local public opinion, even though the law, that is, the nNFR, provides a unified legitimate basis within the EU. Different from the situations in which foreign traditional

food will cause trade barrier arbitration within the WTO institutions and the debate surrounding whether abandoning mandatory labeling of cloned animals will collide with public moral values, the introduction of whole insects to the EU market through the nNFR would inevitably challenge the administra­tive capacity of various countries. No matter if the nNFR paves a broad road for emerging innovative industries to commercialize whole insects as food, it seems that there is still a long way to go before meeting the interests of the people in the EU.

V.