We live in a world of unprecedented challenges, one of which concerns the governance of our food systems. While our lives depend on the availability and healthy consumption of food, the ways in which we currently produce, sell and consume food are the subject of considerable criticism. The food system is in urgent need of transformation, particularly within the world’s largest and most impactful market: the European Union. A number of proposals for how such transitions should take place have been brought to the table. They include the Commission’s recently launched ‘farm to fork’ strategy. One major stepping stone towards the Commission’s strategy is formed by the preliminary reports developed by its scientific advisors: Scientific Advice Mechanism (SAM). One of these important reports was prepared by the Group of Chief Scientific Advisors, entitled ‘Towards a sustainable food system’ (hereinafter ‘the report’). Because of its importance, we evaluate this report carefully with regard to its underlying assumptions, potential impact on the food system and possibility of implementation. We argue that the report unfortunately falls short on each of these aspects.
We start by summarising what we regard as the content and main take-away from the report. We then assess the report’s proposals. Finally, we argue for a more nuanced approach to the existing governance of food systems, as the proposals from the SAM report both metaphorically and literally risk biting the hand that feeds us.
The SAM Report ‘Towards a Sustainable Food System’: Why the SAM argues for the de-commodification of foods
The report was drafted in anticipation of the then forthcoming European Commission strategy for introducing a more sustainable food system as part of the Commission’s ‘Green Deal’. The objectives of this ‘Green Deal’ are to ‘boost the efficient use of resources by moving to a clean, circular economy’ and to ‘restore biodiversity and cut pollution’. The report is devoted primarily to the food-governance system in the EU, in which—according to the authors of the report—food is framed as a commodity. The report recommends changing policies, governance styles and laws concerning one of the most important markets in the EU. It attempts to specify ‘how the social sciences could be used to bring about a more sustainable food system’. The report represents the scientific opinion of the seven members of the Group of Chief Scientific Advisors to the European Commission—all of whom are highly ranked professors of biology, sociology, material sciences, microbiology, nanomaterials, political science and physics. The three lead authors are a political scientist, a nanomaterials specialist and physicist. The report is based on the results of a scoping review and two studies by Science Advice for Policy by European Academies (SAPEA), as well as on consultations and discussions with the European Commission, scientific experts, and a stakeholder meeting.
The report’s core claim is that food should be viewed as a common good rather than as a consumer good (pp. 7 and 31). To this end, the authors advocate the adoption of an active, systematic policy transition towards incorporating the notion of a sustainable food system thinking into all existing EU policies (p. 7). The first step towards achieving this aim would be to ‘mainstream’ the sustainable food-system approach into existing and planned sector policies (p. 8). They further call for the Commission to make full use of its capabilities in all areas in which it can legislate and adopt binding acts (p. 8).
In the analytical part of the report, the scientists observe that the EU food system has been highly successful in achieving its past objectives—food security and food safety—while offering a wide range of consumer choice (p. 13). The Common Agricultural Policy (CAP) and the Common Fisheries Policy (CFP) are presented as having played a central role in shaping this system (p. 13). The report further claims that food-related policies have tended to focus on primary producers and consumers (p. 13). In addition, the authors appear to report as news the observation that contemporary food systems are heavily globalised and interdependent (p. 13). They further point out that the EU imports large quantities of food and feed from countries outside the Union, while also being a major exporter of food products (p. 13), thus implying that the current system of food governance is not suited to these purposes. The authors continue to advance several legal propositions, including the notion that the domain of agriculture is the almost exclusive competence of the EU, thus implying that the sustainability of agricultural production can best be addressed at the level of the EU (p. 23). The authors further argue that the areas of food-safety governance that would be covered by the EU General Food Law are also important with regard to food systems, which cover regulations on plant and animal health, as well as food information that is provided to consumers. Public health and other dimensions of the food system would remain largely the competence of individual member states (pp. 24-25).
At the international level, the report states that, in principle, bilateral agreements could enable the EU to diffuse its relatively high environmental, food-safety and other standards internationally (p. 25). The report closes with the strong statement that it should be ‘clear that feeding people healthily is just a subordinate goal in this framing, and that viewing food mainly as a commodity is not compatible with a sustainability focus’ (p. 31).
Our Criticism: Why the findings of the report finding should be interpreted with caution
We share the view that the current food system is under stress and that major improvements are needed with regard to governance and regulation in order to improve sustainable production and consumption. We are not convinced, however, that the medicine proposed by the report is the right cure for the disease. We argue that, in many ways, the proposed solutions are likely to result in less-sustainable food systems, with many undesirable side effects.
The pitfalls of moving away from food as a private good
The major problem with the report has to do with its main message: that food should be framed as a common good, given that ‘…viewing food mainly as a commodity is not compatible with a sustainability focus’. We would like to stress that, with regard to achieving the proposed aim of the report—the governance of a more sustainable food system—such a view is problematic from an economic, legal and regulatory perspective.
From the economic perspective, the authors of the report derive their view from the narrative in which food is framed as a ‘commodity’ and reduced to its value, ‘which is determined by its market price’. We agree with the authors that food is more than merely a ‘commodity’. It has different meanings to different people. The meanings that people attach to food depend primarily on contextual framing. For example, such contexts can be determined by culture (as with food that is served at a Greek wedding), by situations (as with food that is bought for lunch in the canteen or consumed as a snack between meetings, or even the question of whether enough food is available) or by the manner in which the food has been produced. The meanings that people attach to food determine the value that they attach to food. Hence, food is a private good, such that willingness-to-pay depends on the value that individuals attach to the food based on their individual values and the contextual framing. A more sustainable food system must take this reality into account, perhaps considering framings that stress sustainability issues, in order to have an impact on individual values.
From a legal perspective, the application of the majority of regulations concerning foods in the EU is based on the provision of the free movement of goods. In other words, all regulations concerning the trade in foods, including those concerning the environment, sustainability and consumer protection, require foods to be characterised as commodities or consumer goods. Any deviation from this characterisation is likely to result in a pyrrhic victory by disabling the tools that enable the regulation of food systems with a view to sustainability, health and environmental protection at the EU level. For example, under Art. 168 TFEU the regulation of ‘health’ in the EU is, by default, usually possible only for non-harmonisation measures (e.g. an action plan on child obesity), while the regulation of health as a by-product of trade in goods (e.g. healthy packaging requirements or maximum residue levels), can be realised in the EU at any level of harmonisation.
From a regulatory perspective, one strength of the EU ‘food system’ is that it treats food as a tradeable commodity embedded within harmonised EU standards, including sustainability. Shifting the approach from consumer preference to ‘food as a common good’ with a view to realising only one of many conflicting regulatory goals has the potential to trigger undesirable side effects. In the past, the realisation of a specific predefined regulatory purpose (e.g. sustainability) have been exercised with a view to enforcing the safety of products within the EU. Such practices have resulted in major drawbacks to the European integration project. Given that the EU is characterised by a variety of socio-economic settings, disconnecting food from the diversity of consumer preferences and business requirements could potentially result in the creation of uniform ‘Eurofoods’, thereby satisfying the requirements of only a few consumers and businesses at the expense of others. A standard example has involved the discussion concerning the introduction of an EU-wide prohibition of cheese made from non-pasteurised milk. While justified by sound scientific reasons, such a measure would primarily affect small Southern cheese manufactures in Europe, to the benefit of Northern cheese producers. It would also deprive consumers who have been enjoying these kinds of cheese for centuries, and who may wish to eat them in full knowledge of the potential health effects. Ultimately, such practices risk the imposition of a single food standard on EU citizens, while neutralising a major characteristic of Europe: its rich cultural diversity of food.
A more sensible approach would be to govern food systems in a way that retains the commodification of food as a default, in order to preserve diversity, but linking such commodification to sustainability aims. Such an approach has been proposed in the past (e.g. in the case of seafood) in the form of ‘sustainable commoditisation’. Interestingly, compared to most other systems in the world, the governance of food systems in the EU is much better equipped to meet this standard. As we argue below, however, the report unfortunately falls short in acknowledging this strength.
Several elements in the report that have already been established
The report’s claim of moving towards a systemic policy of incorporating sustainability into all policies related to food has been a legal reality in the EU since 2008. More specifically, Art. 37 of the Charter of Fundamental Rights and Art. 11 Treaty on the Functioning of the European Union (TFEU) requires the implementation of sustainability in all existing policies. Moreover, Art. 3 (3), sentence 2 of the Treaty on European Union even mentions sustainability as the first goal to be achieved when establishing the internal market. Ironically, however, these provisions are applicable to foods only if they are regarded as a commodity. It is for this reason that most food laws in the EU are fully harmonised (including their health and environmental aspects) within the EU. This calls into question the report’s claim that the design and development of such policies are largely up to the Member States. This is particularly true in the case of health. Contrary to what is claimed in the report, the EU enjoys very broad EU-level powers within this context, under the condition that food is categorised as a consumer commodity. In addition, it was as a result of these very broad powers that the EU adopted the principle of chain responsibility in 2002, Art. 17 (1) of the EU’s General Food Law. According to this principle, food-related obligations are addressed to and impose requirements on all parts of the food system at equal level, at least in theory. Likewise, policies that are not directly related to food have been applied directly to the food market. Contrary to the report, therefore, the food-related policies of the past two decades have not focused on primary producers and consumers, but rather on the system as a whole, thereby contributing to improving the sustainability of the food system.
Despite these developments, the report could give the impression that EU food policies are directed exclusively towards primary producers and end consumers. By focussing on the CAP and the CFP, and by attributing to them a central role in shaping the food system, the report reflects a very narrow view on food and the EU food policy. First, these two policies cover only agricultural products, as defined in Art. 38 (2) of the TFEU and, for the CAP, Art 38 (3) of the TFEU. The definition of ‘agricultural products’ for application in the CAP, as stipulated in Annex I of the TFEU and shaped by the Court of Justice of the European Union, covers only a small share of all food products. The CAP and the CFP thus have a major impact on agricultural production, but they have comparably little direct impact on food. Second, outside of the CAP and the CFP, the majority of regulations already cover a wide range of facets of food relating to health, nutrition and sustainability, including health, environmental and policy aspects. Finally, the food trade is obviously global, and many existing food regulations in the EU exist specifically to address this characteristic.
EU external relations: Why the preference for bilateral solutions?
With regard to the external dimensions of the report, the authors express a preference for bilateral agreements as a means of exporting the EU’s standards across the world. Two observations are in order. First, bilateral agreements already constitute the most common mode of governance exercised by the EU. Second, the report fails to mention the vast body of literature that has expressed criticism of these agreements. For example, the authors do not discuss the reasoning behind their preference for bilateral agreements over multilateral agreements or the framing of private standards. Bilateral solutions are arguably subject to many disadvantages, including the constraints imposed on them by WTO law. Moreover, the report does not address why or under which conditions the export of EU standards would be desirable at all. This is particularly notable with respect to the existing rich literature on the potentially devastating impact of such an export of standards on local economies and food diversity abroad.
In summary, the report proposes how serious problems in the food system that have been identified by other studies should be addressed. The problems and their proposed solutions presented should nevertheless be approached with considerable caution. Many of the solutions that the authors suggest are already in place; they may lack proper enforcement. The report’s major recommendation, that food should be regarded as a common good rather than as a consumer good, undermines the cultural diversity inherent in the meaning of food, while depriving the EU of possibilities for legislative intervention into EU food systems in order to improve sustainability, ignoring the economic, legal and political reality in the EU and other parts of the world, and, ironically, jeopardising the sustainability of the EU food systems. It is precisely for these reasons that we argue that food should not be addressed as a common good, but rather as a private good.
 McGee and Weatherill, ‘The Evolution of the Single Market: Harmonisation or Liberalisation’, 53 The Modern Law Review (1990) 582.
 Purnhagen, ‘Beyond threats to health: May Consumers’ Interests in Safety Trump Fundamental Freedoms in Information on Foodstuffs? Reflections on Karl Berger v Freistaat Bayern’, European Law Review, 2013 p.711-719.
 See F. Schauer, Profiles, Probabilities and Stereotypes (Belknap Harvard Press, 2003) 279 et seq.