The Concept of Unsafe Food – A Critical Reflection on the Tenet of EU Food Law

Ten years of General Food Law and of reconstruction of food law in the EU inspire me to zoom in on the provision I consider containing the hard core of food law; its very essence so to speak: the ban in placing unsafe food on the market. Most of the rest of food law elaborates on this basic notion. This rest deals with questions such as: What distinguishes safety from risk? What must be done to achieve the objectives of safety? Who has which responsibilities in the case of … Et cetera. This ban is enshrined in Article 14(1) of Regulation 178/2002 (the co-called General Food Law – hereinafter: GFL) stating: Article 14(1) GFL 'Food shall not be placed on the market if it is unsafe.' In this contribution, I want to take the analysis back to the literal text of the provision. Much has been written on the meaning of Article 14 GFL some of which seems difficult to reconcile with the text of the provision. This does not necessarily mean that such interpretations are incorrect, but interpretations that advocate a meaning departing from the text should at least be based on some other solid reasoning. My research question is straightforward: what is the essence of Article 14 GFL; that is to say: what are the conditions for application of the different rules contained in Article 14 GFL, and what are the consequences that this application entails? To answer this question, I will confront my reading of the text with the interpretations proposed by others. I will not address all the scattered sources and opinions. The three most important systematic comments on the General Food Law that I am aware of are the Guidance on the Implementation of Articles 11, 12, 14, 17, 18, 19 and 20 of Regulation (EC) N° 178/2002 on General Food Law, of the Standing Committee on the Food Chain and Animal Health (SCFCAH) and two books in German language: Alfred Hagen Meyer and Rudolf Streinz, LFBG – BasisVO; Kommentar (the comment on Article 14 is by Meyer) and Dietrich Gorny, Kommentar Basis-Verordnung (EC) No. 178/2002. Grundlagen des europäischen Lebensmittelrechts.