A Disadvantageous Dichotomy in Product Safety Law – Some Reflections on Sense and Nonsense of the Distinction Food–Nonfood in European Product Safety Law

Abstract: This paper researches a number of similarities and differences between European legal regimens with regard to food and non–food product safety, based on the assumption that these regimens may have overly diverged. A tentative conclusion is that there are enough similarities to justify an effort to reconcile the two regimens. The point of departure for this research (Section 1) is an overview of sources of law laid down in the EC Treaty for drawing up legislation in the area of product safety (food and non–food). In Section 2, the Product Safety Law acquis is presented; this is the cumulative body of European law implemented so far, based on these sources. EC–Treaty articles constitute the legal basis for the Product Safety Law acquis, which in turn forms the legal basis for policies. Therefore, Section 3 deals with the Commission’s current policy intentions: indications of what can be expected in this area in years to come.

A core characteristic of the Product Safety Law acquis is the precautionary principle (Section 4), which refers to safety risk management, intended to prevent the marketing of defective products. Should preventive risk management measures fail, the producer’s ability to trace already marketed hazardous products is crucial in order to limit liability, as explained in Section 5. Section 6 highlights an important legal presumption in non–food safety law. The safety of non–food products is presumed if production took place according to standardised norms. A long term European law–reform programme is introduced in Section 7. This so–called Better Regulation programme is a perfect opportunity to adjust the Product Safety Law acquis to new insights. Section 8 summarizes our observations and findings. Section 9 discusses the utility of the Confident Consumer concept. Because it seems disadvantageous to focus on the differences between food and non–food safety rules, the possible advantages of a policy and law reform are assessed. Therefore Section 10 concludes to attune both parts of product safety law to the similarities instead of focusing on differences. Maintaining the dichotomy is disadvantageous to progress.