Food Safety Policy: Transnational, Hybrid, Wicked
Summary and Keywords
According to the World Health Organization, between 2010 and 2015 there were an estimated 582 million cases of 22 different foodborne enteric diseases. Over 40% people suffering from enteric diseases caused by contaminated food were children aged under five years. Highly industrialized livestock production processes have brought along antibiotic resistances that could soon result in an era in which common infections and minor injuries that have been treatable for decades can once again kill. Unsafe food also poses major economic risks. For example, Germany’s E. coli outbreak in 2011 reportedly caused US$1.3 billion in losses for farmers and industries. Food safety policy ensures that food does not endanger human health—along the entire food chain through which food is produced, stored, transported, processed, and prepared. In an interdependent world of globalized trade and health risks, food safety is an extraordinarily complex policy issue situated at the intersection of trade, agricultural, and health policies.
Although traditionally considered a domestic issue, bovine spongiform encephalopathy (BSE) and other major food safety crises before and around the turn of the millennium highlighted the need for transnational regulation and coordination to ensure food safety in regional and global markets. As a result, food safety has received ample scholarly attention as a critical case of the transboundary regulation of often uncertain risks. The global architecture of food production also gives food safety policy an international and interactive character. Some countries or regions, for example, the European Union, act as standard setters, whereas newly industrialized countries, such as China, struggle to “do their homework,” and the poorest regions of the world strive for market access. Although national regulatory approaches differ considerably in the degree to which they rely on self-regulation by the market, overall, the sheer extent of the underlying policy problem makes it impossible to tackle food safety solely through public regulation. Therefore, private regulation and co-regulation play an influential role in the standard setting, implementation, and enforcement of food safety policy.
The entanglement of several interrelated policy sectors, the need for coordination and action at multiple—global, regional, national, local—levels, and the involvement of actors from the public and private, for-profit and nonprofit fields, are the reasons why the governance of food safety policy is characterized by considerable hybridity and also requires both vertical and horizontal policy integration. Scholarship has increasingly scrutinized how the resulting multiple, sometimes conflicting, actor rationalities and the overlap of several regulatory roles affect effectiveness and legitimacy in the decision-making and implementation of food safety policy. By highlighting issues such as regulatory capture and deficient enforcement systems, this research suggests another implication of the hybridization of food safety governance, namely, that the latter increasingly shares the characteristics of a wicked problem. Next to complexity and both high and notoriously uncertain risks, the multiple actors involved often diverge in their very definitions of the problem and strategic intentions. The major task ahead lies in designing recipes for integrated, context-sensitive, and resilient policy responses.
Ensuring food safety is a complex regulatory challenge in times of globalized food production and trade and often uncertain health risks, touching on manifold sectors, such as health, trade, agriculture, and environment. One example of this is the spread of bovine spongiform encephalopathy (BSE) in cattle, a disease that can be transmitted to human consumers of beef, which challenged food safety in the European single market before the turn of the millennium. This crisis originated in the United Kingdom in the 1970s, when feed producers were insufficiently sterilizing meat-and-bone meal for cattle to save energy costs. Even though the United Kingdom was quick to prohibit the use of meat-and-bone meal for ruminants in 1988, compliance with the ban was insufficiently monitored and enforced, and new cases of BSE were also increasingly reported in other countries. Though European governments reacted with a variety of measures, it was not until the European Union (EU) prohibited both the use of meat-and-bone meal and the export of beef from the United Kingdom that the disease could be stopped from spreading. Although these bans were lifted ten years later, since 2001, all EU member countries have been obliged to perform rigorous countermeasures and controls against BSE. It is estimated that by 2005, more than 150 persons in the United Kingdom had died from the consumption of products contaminated with BSE. At the peak of the crisis, 750,000 cows had to be killed every year because of the disease.
This article introduces different aspects of policies seeking to protect the public from such food safety risks, describes recent developments, and sketches ways ahead, focusing mainly on regulatory efforts to reduce the risk of microbial contamination of human food (Doyle & Erickson, 2008; Forsythe, 2010). It does not directly address other food safety issues, such as pesticide residues, genetically modified organisms (GMOs), and bioterrorism (e.g., Alink et al., 2008; Deshpande, 2002; Juneja & Sofos, 2010; Nestle, 2003). To answer the question of what food safety policy is (Stranks, 2007), it is necessary to look at the problems, processes, and stakeholders involved in food safety policy; recent challenges and new governance structures in a globalized world; and the EU as an example of public food safety regulation. In response to several food crises, food safety policy around the globe has undergone major changes and advances. Public regulation, such as in the EU, has drawn on new regulatory structures, risk-based approaches, and integrating of food safety goals and measures into diverse policy sectors.
Concurrently, we are increasingly witnessing both border-crossing food safety regimes, made up of networks of producers, and a general shift toward reliance on private, retail-driven regulation where food corporations have the power to impose procedures and standards on primary food producers. These developments have fundamentally altered the existing power structures between public and private actors and created new opportunities for, but also asymmetries between, importing and exporting countries. One result is that there is competition between different regulatory spheres—for example, between public food safety laws and the requirements of private supermarket chains. This way, the transnationalization of both public and private food safety regulation has also led to new modes of accountability: from at-the-border public control to a direct responsibility of suppliers for safe food, enforced through on-site inspections by retailers and third-party certifiers.
The plurality of actors and regulatory approaches involved and the shared regulatory authority at the global, regional, national, and local levels give food safety policy a high degree of hybridity. This hybridity triggers challenges that give food safety policy the character of a wicked policy problem. Its wickedness stems specifically from, first, high degrees of complexity (e.g., coordinating U.K., other national and EU authorities, and private feed and food producers to prevent BSE contamination); second, extraordinary uncertainty (e.g., the causes and cures of new zoonotic diseases are often unknown, e.g., the avian flu); and inherently diverging perceptions and interests of the involved actors (e.g., producer vs. consumer interests). However, there is also evidence that regulatory techniques can improve the capacity of food safety governance structures to deal with multiple frames (reflexivity), adjust actions to uncertain changes (resilience), and respond to changing agendas and expectations (responsiveness). More research is needed to understand food safety regulation in practice (not just on paper) and identify the conditions under which transnational, private, and hybrid regulation effectively protects food safety.
What Is Food Safety Policy?
Food safety policy is defined as the goals, rules, and structures that are designed to ensure food quality and address the risk of food contamination in order to promote and protect the health of humans, animals, and plants (Ansell & Vogel, 2006; Cafaggi, 2012; Redman, 2007; van der Heijden, Younes, Fishbein, & Miller, 1999). Food safety is widely recognized to be crucial to effective health protection (Schmidt & Rodrick, 2003; Ugland & Veggeland, 2006). The Human Rights Council of the United Nations (UN) has recently devoted specific attention to the right to, first, enough and second, safe food (Cafaggi, 2012). Yet, the World Health Organization estimates that between 2010 and 2015, there were 582 million cases of 22 different foodborne enteric diseases (see Griffiths, 2005). According to the United States Centers for Disease Control and Prevention (CDC), 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths result from foodborne diseases each year in the United States. Over 40% of the people suffering from enteric diseases caused by contaminated food are children aged under 5 years. Food safety problems in developed and developing countries contribute to 1.5 billion cases of diarrhea in children and over 3 million premature deaths each year. In developing countries, approximately 1.8 million children die yearly of foodborne diseases caused by contaminated food and water (Fleckenstein, Bartels, Drevets, Bronze, & Drevets, 2010; Lin, 2014).
The globalization of economic activities, advancements in food science and transportation technology, the multinationalization of the food industry, and the advent of the World Trade Organization (WTO) have transformed the production, transportation, trade, and consumption of food. Population growth and distortions in the commodity markets have contributed to the growth of industrial livestock production, where strong pressures for low-cost and efficient production prevail, and antibiotics and synthetic growth hormones are commonly used (Davies, 2011). Industrialized food production generally increases the availability of food, but also public health risks (Hayaski, 2009), including a dangerous increase of antibiotic-resistant bacteria and environmental concerns, such as waste, air pollution, water and soil contamination, energy inefficiencies, pesticide use, and the decline of biodiversity (Muller, Tagtow, Roberts, & MacDougall, 2009). Unsafe food also poses major economic risks (Richards, Nganje, & Acharya, 2009; Scharff, 2012): Germany’s 2011 E. coli outbreak, for instance, reportedly caused US$1.3 billion in losses for farmers and industries.
Processes and Stakeholders
To tackle these policy problems, food safety policies govern the entire production and supply chain for food, including production, harvest, processing, storage, transportation, trade, retail sale, and preparation—commercially, in restaurants and school cafeterias, and in private homes (Phillips & Wolfe, 2001; Robson, 2013).1 These governance structures comprise a set of normative objectives and standards (standard setting), processes for detecting deviations thereof (monitoring), and mechanisms for correcting noncompliant behavior (enforcement). They involve the public or private regulators responsible for these functions, and the regulated entities (regulatees) whose job it is to adopt the rules and comply with them (Verbruggen, 2016). In an interdependent world of globalized trade and health risks, food safety is an extraordinarily complex policy issue situated at the intersection of various sectors, such as health, agriculture, fisheries, industry, and trade and competition policy (Ugland & Veggeland, 2006). Additionally, all stages of the human food supply chains leave an impact on the environment. Therefore, food safety policy includes diverse tasks such as preventing foodborne and microbial diseases (Labbé & García, 2001; Lund, Baird-Parker, & Gould, 2000) and the environmental contamination of food from pesticides on the farm, commercial or industrial chemicals, and hazardous waste (Hayaski, 2009; Hui, 1994; Robson, 2013).
Food safety policy involves and targets consumers, producers, and governments the world over (Havinga, 2015). Agri-food policymaking has become less predominantly concentrated on the interests and needs of farmers over time (Daugbjerg & Feindt, 2017; Tosun, 2017). Havinga (2006) distinguishes three important institutional actors: (a) the state (governmental agencies involved in rule-making, monitoring, or enforcement, states, and international governmental organizations—IGOs), (b) the food industry and farmers, and (c) third parties (private auditing and certification organizations, retailers, and consumer organizations). On the one hand, public food safety regulation is administered by state actors and developed through legislative processes and administrative decision-making. These standards are monitored by (different) governmental organizations that can legally sanction noncompliant behavior, such as regulatory agencies. The archetype of a public regulator can set its own standards and has legal powers to monitor and enforce the compliance of regulatees (Verbruggen, 2016). This classical model would reserve rule-making to the legislature, monitoring compliance to an inspectorate, and enforcement to the criminal and administrative justice system.
In addition to public regulation, the food sector has a long history of quality control by manufacturers, trade associations, and corporatist organizations, particularly for perishable foods. Hence, systems of certification of producers, manufacturers, traders, controlling laboratories, and products are common. Private and semipublic organizations carry out controls and formulate rules and standards (Havinga, 2006).
Challenges in a Globalized World
Around the turn of the millennium, a series of crises concerning human food and animal feed rendered food safety a major public concern (Ugland & Veggeland, 2006). The BSE crisis was only one of them, but it illustrates that as globalized food supply chains amplify the seriousness, scale, frequency, and impact of food safety incidents, the latter have become extremely challenging to cope with (Jackson, 2009; Lin, 2014; Newell et al., 2010). From 1986 to 2008 about 190,000 bovine cases of BSE occurred in 21 countries, and more than 200 human cases were reported in 11 countries. Other food safety issues also gained salience, for example, the contamination of animal feed by dioxin, alongside varied risks from the use of pesticides, hormones, and chemicals as animal food additives, and GMOs. In 2008, melamine-contaminated dairy products from China affected 46 countries, causing more than 50,000 cases of infant hospitalization and six reported deaths (Lin, 2014). The crises were accompanied by the globalization of food supply chains, the growing concentration of economic power among food retailers, and new concerns among consumers about animal welfare, dietary habits, the environment, and fair trade. Serious weaknesses in the established design and application of food legislation were exposed in many countries (Verbruggen, 2016). These developments heightened consumer awareness and concerns over food safety, distrust of government oversight, and amplified associated reputational costs on branded food suppliers (Lin, 2014).
As Lin (2014) outlines, a general perception of failing public regulation forced governments and the industry to review and reform existing mechanisms to regulate food safety. Many countries revamped their food laws and restructured their regulatory systems, for example, by enhancing border inspections and implementing import restrictions and integrated food-chain controls. For example, in China, the new Food Safety Law of 2009 replaced the old Food Hygiene Act. Still, numerous problems plague national food law regimes. For example, the existing public infrastructure and financial and technical capacities are often insufficient to ensure food safety, especially in in developing countries. Also in other countries, jurisdictional overlap between different agencies can create inefficiencies in the handling of routine food safety surveillance tasks and in responding to crises of foodborne hazards. Other problems include ineffective law enforcement (see Thomann, 2015b), a lack of cooperation between the agencies and local and central levels of government, and fragmented regulations in the different sectors that relevant to food safety.
Such systemic limitations undermine the ability of public institutions to provide efficient and effective food safety governance. With globalized food production and consumption, national or regional regulatory failure, such as happened in the case of BSE, can cause food safety problems that spill over to other countries and have far-reaching economic, health, and environmental implications. Unilateral national policies alone are simply insufficient to effectively cope with food safety problems in a highly interdependent world. Marks (2016) noted that
today, supply chains are long and diffuse and most of the qualities that consumers demand cannot be tested once the product has been placed on the grocery store shelf. . . . as consumers search for a range of attributes and assurances, governments struggle to ensure the safety of foods coming from a massive and growing food industry. Ultimately governments realize that they need additional resources to manage and certify the broad range of industries and certifications. (p. 937)
New Governance Structures
All this has led to dramatic changes in the governance of food safety since the 1990s. First, national systems of food governance have been increasingly subject to transnational influence. The establishment of international regulatory bodies, such as the World Trade Organization or the EU, transferred regulatory power from domestic to international actors. Second, private governance has challenged, complemented, or at times superseded public food governance. The increased influence of food safety standards set by private bodies illustrates this: Major retail and trade associations nowadays take a leading role in defining required product characteristics and process standards about how food is produced and how this process is managed. Third, and related, the diversification of players within the private sphere has brought about competition between the standards set by different private regulators (Cafaggi, 2012; Verbruggen, 2016).
The resulting changes in regulatory techniques concerned a broad range of both command-and-control and risk-based strategies (Thomann, 2017). Risk-based strategies are systematized decision-making frameworks and procedures to prioritize regulatory activities and deploy resources based on an assessment of the risks that regulated firms pose to the objectives of the regulator. For example, food safety inspectors could use data about food safety incidents to identify livestock farms that should be inspected more regularly than others. Modern food safety policies also range from public to private and from low-interventionist to highly prescriptive obligations (Havinga, 2006). We can find both public (e.g., national food law) and private food safety standards (e.g., private certification schemes), as well as both direct regulation with the government directly supporting or limiting certain activities (e.g., public regulation) and indirect regulation, where third parties are responsible for delivering on regulatory goals (e.g., product liability laws; Buzby & Frenzen, 1999; Havinga, 2006). Examples of indirect regulation are the liability and due diligence provisions of the United Kingdom’s Food Safety Act of 1990, later adopted by the EU, which make suppliers responsible for ensuring the safety of all foods (Marks, 2016).
Indeed, a general and important characteristic of new food safety policies is that they emphasize the primary responsibility of food producers for food safety. For example, Good Agricultural Practices (GAP) and Good Manufacturing Practices (GMP) serve to improve food production. Traceability schemes and food safety standards address food safety risks, such as microbiological hazards (Fuchs & Kalfagianni, 2010). Firms are required to work with a system of risk assessment based on the principles of Hazard Analysis Critical Control Points (HACCP)—a typical case of “enforced self-regulation” (Antle, 1999; Wallace, Sperber, & Mortimore, 2010). Under enforced self-regulation, the regulator compels the regulatee to write a set of rules, and the regulatee internalizes the costs and duties associated with their enforcement (Thomann, 2017). The HACCP standard requires all food businesses along the supply chain except primary producers to set up self-assessment systems that are tailored to their business processes, so that they can identify the (potential) hazards within their individual operations, implement and monitor controls, and document the process (Verbruggen, 2016).
Public Regulation: The Example of the EU
The European Union (EU) has undertaken comprehensive reforms in its approach to food safety (Ugland & Veggeland, 2006). In response to several food crises, the EU issued regulation 178/2001/EC, which currently provides the general legal framework for food safety regulation in the EU (for detailed descriptions, see MacMaoláin, 2015; Ugland & Veggeland, 2006; van der Meulen, 2014). EU secondary legislation details the obligations of Member States and their authorities to implement and control food safety (Thomann, 2015a). The European Food Safety Authority (EFSA) was created to provide EU institutions and member states with scientific and technical opinions on food policies and the resolution of food safety incidents (Abels, Kobusch, & Träsch, 2016; Verbruggen, 2016). The EFSA plays a key role in EU food governance (Fuchs & Kalfagianni, 2010, p. 19). The Health and Food Audits and Analysis Directorate, which resides under the Directorate-General for Health and Food Safety (DG SANTE) of the European Commission, carries out inspections in member states to ensure that effective official control systems are in place and evaluate the compliance of member states with EU food safety legislation. DG SANTE drafts and proposes EU laws on product and food safety. The European Forum of Food Law Enforcement Practitioners (FLEP), founded in 1990, is an informal network of national food-law-enforcement practitioners for exchanging information, fostering learning and cross-border cooperation, and developing mutual trust in the resolution of practical control problems.
In the member states, national ministries and departments and food safety agencies set and administer food safety rules. The national food safety agencies are either independent regulatory agencies or the executive service of a ministry (Abels & Kobusch, 2015; Verbruggen, 2016). They interact with each other either formally through EFSA or informally through FLEP (Abels et al., 2016). The enforcement of food safety laws is done by agencies or ministries, and sometimes by local enforcement officers at the state, city, or commune level (Verbruggen, 2016). Member states notably differ in how they implement, enforce and complement EU food safety requirements, which results in “customized” domestic solutions. Member states also place different emphasis on indirect and private regulation for putting EU law into practice (Thomann, 2015a). Hence, the EU example illustrates how international coordination coexists with local diversity in food safety policy. Despite this diversity, however, it is clear that the scope of food safety regulations no longer ends at national borders.
Transnational Food Safety Regulation
Economic globalization has made national boundaries permeable to the flow of goods, services, humans, investments, and information. As the global sourcing of food ingredients has become feasible, global food-supply chains emerged. The significantly industrialized and globalized patterns of food production and consumption in regional and global single markets have placed food safety problems beyond the scope of traditional state-centric regulation. Because contaminated food outbreaks respect no national boundaries, the unilateral measures adopted by national governments cannot effectively address the global food safety problem (Lin, 2014). This makes food safety a critical case of the transnational regulation of often uncertain risks (Barlow & Schlatter, 2010). With food safety becoming a global regulatory issue, divergent forms of public, private, and hybrid food safety global regulation have recently emerged as a multilevel system where different co-regulatory modes operate (Cafaggi, 2012; Kobusch, 2015). In these co-regulatory modes, the regulator and the regulatee share the responsibility for the design and the enforcement of food safety regulations (Thomann, 2017).
Transnational Public Food Safety Regulation
On the public side exists a well-established body of regulations by international organizations (IOs), such as the EU, the Food and Agriculture Organization of the United Nations (FAO), the World Health Organization (WHO), and the Codex Commission, a global standard-setting organization responsible for setting thousands of standards and guidelines to protect health and ensure fair trade practices (Cafaggi, 2012; Figuié, 2014; Millstone & van Zwanenberg, 2002; Skogstad, 2001). The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is the principal, and only, multilateral treaty that regulates trade and thereby indirectly monitors and regulates food safety (Stanton, 2012). Under the “SPS-default” standard, countries adopt the standards promoted by the WTO, which are the Codex Alimentarius Food Safety Standards (“Codex standards”) that run parallel with the rest of the WTO Agreement. The Codex Alimentarious was formed in 1963 by the FAO and the WHO and contains purely voluntary numerical standards (food safety limits, such as maximum residue limits for pesticides and veterinary drugs and maximum levels for contaminants and food additives), as well as process standards (e.g., hygienic practices used in food-production operations and establishing compliance procedures). Its 159 members cover 99% of the world’s population, it promulgates 336 standards and guidelines that are used to resolve trade disputes and to draft national legislation. Some countries adopt higher (“SPS-plus”) food safety standards into bilateral or regional agreements that include more detailed or demanding provisions than the SPS Agreement, or that contain other regulatory or cooperative elements (Marks, 2016).
It has been noted that these public institutions, despite their international scope, have difficulty efficiently and effectively addressing the policy problems surrounding global food safety issues. For example, the SPS Agreement does not require governments to take positive steps to ensure food safety, but mainly seeks to create exceptions and facilitate food trade. Also, the scientific basis of the Codex standards, the legitimacy of its substantive and procedural rules, the accountability of its structure and operations, and the transparency of its decision-making process face challenges. Indeed, Codex holds a legal status as a quasi-legislator whose standards are de facto mandatory for WTO members. Especially in contentious food safety issues, the backing of the WTO dispute settlement system incentivizes Codex member states to use the Codex platform as a means of pursuing their trade interests instead of food safety. When it comes to politicized, controversial disputes over issues like beef growth hormones (BGH) and GMOs, the Codex faces problems because of its frequent use of majority votes, poor developing-country participation, and potential conflicts of interest over scientific authority. It is symptomatic of these problems that the WHO, the United Nation’s special agency mandated with global health issues, has refrained from adopting any binding legal instruments on food safety for over 65 years (Lin, 2014).
Transnational Private Food Safety Regulation
Given these drawbacks, a transnational system of private regulation has emerged. This system complements the international public regulation of the food sector, is strongly retail-driven, and cuts across commodities. Agri-food and retail food corporations are powerful and increasingly legitimate political actors in global private food governance (Fuchs & Kalfagianni, 2010). In this system, rules are made at the transnational level by combining international soft law, private codes, and guidelines. This entails a shift from product to process standards, which no longer directly target the product and its quality, but rather the process of producing the product. Because it includes all the nodes in the production process, this shift has increased the need for a supply-chain approach. This entails private initiatives mainly designed through inner supply contracting, promoted by often multinational retailers, and involving the whole chain up to the farmers (Cafaggi, 2012).
In this vein, a minority of countries—for example, the United States, Canada, the Netherlands, and the United Kingdom—are adopting a novel standard (“SPS-plus plus”) that achieves higher standards by means of third-party certification and other private practices found in supply chains, supermarket programs, grocery standards, and voluntary codes and guidelines (Marks, 2016). Additionally, as Cafaggi (2012) highlights, “today, contracts for exchanges within the food supply chain . . . are meant not only to complement State and international public regulation, but also to ensure the enforceability of . . . international soft law, the Codex Alimentarius provisions and transnational private regulation” (p. 7).
A telling example of transnational private food safety regulation is the Global Food Safety Initiative (GFSI). GSFI was formed in 2000 by food industry leaders as an international food safety and traceability benchmarking effort to provide a global food safety certification for suppliers. The GFSI seeks to strengthen consumer confidence in the food bought in retail outlets. It provides a simple set of rules of standards, harmony between countries, and saves money for suppliers (Havinga, 2006). GFSI recognizes private food safety schemes, such as GlobalGAP, BRC, SQFl000, SQF2000, and PrimusGFS.1, by assessing the food safety standards of the scheme and the governance and management structure of its owner. Suppliers certified against a GFSI-recognized scheme know that it conforms to a global scheme standard and meets internationally recognized minimum food safety requirements developed by multiple stakeholders. In recent years, food processors, retailers, and food-service entities have increasingly turned to GFSI standards (Havinga, 2006). Walmart, for instance, began requiring suppliers to comply with GSFI-benchmarked schemes, with some success: two years later, it found a 34% reduction in the number of recalls the company had executed across the same supplier base (Marks, 2016).
New Accountability Modes
The trend toward transnational food safety regulation, and especially its private forms, has affected how accountability is exercised (May, 2007). Power has shifted from states to transnationals and from the public to the private sphere. Multinational liability often requires that due diligence requirements extend beyond corporations into contractual relationships with suppliers along the chain. The move from at-the-border public control to direct suppliers’ responsibility for on-site inspections by retailers and third-party certifiers means that control over compliance is ever more in the hands of the supply-chain management and firms in importing countries. Retail-driven regulation has burdened producers, mainly located in exporting countries, with higher costs for safety monitoring procedures. Civil liability regimes remain more centered around the supplier or the importer. For instance, in the U.K. legal system for food safety control, food business operators are held responsible for producing food that has caused food poisoning even if they have not caused the poisoning.
Private monitoring in international regulatory contracts often includes third-party rather than first-party monitoring. This means that it strongly relies on the intervention of third parties: certifiers, but sometimes also NGOs and the media. Especially in food safety-related social and moral issues, such as animal welfare, the environment, labor conditions, and ethical trading, sanctioning system are increasingly directed at deterring, blaming, and shaming infringers instead of compensating consumers for losses suffered. In such settings, civil society and other market actors play a significant role in ensuring proper monitoring and nonjudicial enforcement, for example, through reputational mechanisms (e.g., websites; Cafaggi, 2012). In Germany, for example, consumer-oriented NGOs have used media channels to uncover the noncompliance of supposedly “organic” egg producers with the corresponding welfare and hygiene standards.
Notwithstanding this, conventional consumer protection devices remain in place, such as adjudication by national courts, administrative regulation, criminal liability, product liability, and sales law provisions for unsafe products. This coexistence of public and private, transnational and domestic regulation affects both the design and the enforcement of contracts and eventually, the shape of the food chain itself. Domestic contract laws fill gaps when regulatory contracts do not explicitly regulate matters, and many other fragments of domestic legislation also affect international regulatory contracts (Cafaggi, 2012). Overall, however, Cafaggi (2012) argues that the consolidation of transnational, retail-focused private regulation calls for closer coordination and a new conceptual framework: the unit of regulatory analysis should become the supply chain rather than the single multinational firm. As a consequence, new regulatory instruments should capitalize on multiparty contractual networks (horizontal among farmers or vertical between farmers, processing food firms, and retailers).
Asymmetries Between Importing and Exporting Countries
The global architecture of food production also gives food safety policy an interactive character. In this global order, some countries or regions, like the EU, act as standard setters, whereas some newly industrialized countries like China struggle to “do their homework” (Li, Qi, & Liu, 2010), and the poorest regions of the world have no choice but to comply (Otsuki, Wilson, & Sewadeh, 2001; Unnevehr & Hirschhorn, 2000).
In developing countries, one food retailer is often the sole purchaser for a given type of product. For example, in Guatemala, Chiquita Brands (United Fruit) has historically maintained a monopoly. Market control grants these retailers the power to govern. They are able to place demands on producers and producing countries that are difficult to avoid. Compliance with these standards is certified through independent auditors and controlled through yearly auditing. If suppliers do not comply with the standards, they are ultimately excluded from the supply chain or export market (Fuchs & Kalfagianni, 2010, p. 14; see Tosun & de Moraes, 2016, for a case study of Brazil). Along global food supply chains, when there is an economic power asymmetry between the procurer and supplier, transnational private food safety standards are therefore effectively binding requirements (Lin, 2014). Many suppliers and exporters in developing countries are generally unaware of the public or private nature, source or process of “law” in an importing country. All they know is that to sell their product in a developed-country market, they are required to comply with and inspected against certain rules and standards.
On the one hand, this creates potentially competing public and private regulatory spheres at the transnational level, a crucially important phenomenon that is still underresearched. Cafaggi (2012) points out that suppliers in developing economies must meet many different standards to be able to access distribution systems in multiple regional areas. Often, large retailers develop their own regimes in order to put competitive pressure on rivals. This fragmentation of standards makes it extremely hard for the producers to comply with common principles in order to manage risks, for example, to prevent outbreaks and pandemics. It can improve the quality of products, but it also creates transaction costs in producing countries that pose barriers to market access. The costs of compliance and certification present a hurdle for developing export-oriented schemes, especially for small producers in developing countries (Stanton, 2012).
On the other hand, Henson and Jaffee (2008) point out that research has a one-sided focus on the potential impact of food safety standards as “barriers” on the access of developing countries to markets for high-value food products, given their typically weaker food safety and quality management capacities. However, in an ever-changing and increasingly complex standards environment, producing countries develop strategic responses to food safety standards. These responses vary across countries and between exporters, depending on their capacities and perspectives on emerging requirements. “Reactive” responses by governments reflect a culture of “stonewalling” until threats become “real,” which will then require the—often lacking—capacity to swiftly implement the changes necessary to achieve compliance.
Conversely, some leading exporting firms that have the foresight and necessary resources and see a potential “first-mover” advantage also develop more proactive responses. For these larger, more diversified firms, emerging standards can be “catalysts” for upgrading their capacity and competitive repositioning. The responses of the Indian fishing industry to EU food safety requirements illustrate this. As a result of the problems it faced with meeting hygiene standards for exports, many Indian processors have spread their risks by diversifying their market base between the EU, the United States, and Japan and increased sales to “less challenging” markets, such as China, the Middle East, and Singapore. Although transnational standards do pose a threat of market exit for smaller firms, they may create positive gains for larger firms. These responses can provide lessons for the direction of programs of technical assistance and support to guide the responses of developing country exporters more generally (Henson & Jaffee, 2008).
In summary, the effects of transnational standards in developing countries are complex and evolving, some being more negative and others more positive (for comprehensive discussions, see Henson & Humphrey, 2010; Maertens & Swinnen, 2012; Stanton, 2012). Key to understanding the local welfare implications of increasingly high-standards food trade is the way in which supply chain structures and governance systems respond to these developments. There is also robust evidence for positive employment effects, productivity, and welfare gains, increased household incomes, reduced volatility of household income and poverty, and technology spillovers especially for smallholders in developing countries. A comprehensive assessment of these effects is difficult because often, the data for precisely identifying these effects is lacking (Maertens & Swinnen, 2012).
Hybridity in Food Safety Regulation
We have seen that overall, the sheer extent of the underlying policy problem makes it impossible to tackle food safety solely through purely public regulation. Accordingly, the growing influence of the private sector in food safety implies that the focus on the state in providing food safety is no longer accurate (Marks, 2016, p. 929). Although national regulatory approaches differ considerably in the degree to which they rely on self-regulation by the market, private regulation and co-regulation play an influential role for the standard setting, implementation, and enforcement of food safety policy (Martinez, Fearne, Caswell, & Henson, 2007). The entanglement of several interrelated policy sectors, the need for coordination and action at multiple—global, regional, national, local—levels, and the involvement of actors from the public and private, for-profit and nonprofit fields, are the reasons why the governance of food safety policy is a paradigmatic case of hybrid regulation.
Private Food Safety Governance
All the developments described here, together with changing consumer attitudes, the need for commodity-specific regulations, and the adoption of an integrated food chain approach, led to the emergence of private modes of food safety governance involving supply chains and trade associations (Holleran, Bredahl, & Zaibet, 1999). Traditional public command-and-control regulation was increasingly replaced by more flexible complementary market-oriented mechanisms. Examples include codes of conduct enacted by trade associations at the national and global levels, supply-chain agreements, and framework contracts. Retailers such as Carrefour, Tesco, and Walmart emphasized their responsibility to food safety in their Corporate Social Responsibility (CSR) reports and established the HACCP and traceability systems (Lin, 2014; Unnevehr & Jensen, 1999; Verbruggen, 2016).
There are two main types of private food safety standard. Legally mandated private standards are developed by the private sector and then made mandatory by public bodies; examples include some International Organization for Standardization (ISO) or fair trade standards. In turn, voluntary private standards are developed and adopted by private bodies—for example, Tesco’s Nature’s Choice/Nurture and Carrefour’s Filières Qualité (Henson & Humphrey, 2010). In this latter vein, purely nonstate or voluntary market-based regimes are driven by private actors, such as firms, associations, or NGOs, and free from active state involvement (Verbruggen, 2016). Multinational food companies, supermarket chains, and nongovernmental organizations (NGOs) employ private standards, certification protocols, third-party auditing, and transnational contracting practices.
Private actors’ motives to develop such standards include reputational-cost concerns (such as in the aftermath of the BSE crisis), which led private actors along the food-supply chains to engage in games of product differentiation and marketing strategies (Lin, 2014; Loader & Hobbs 1999). Globalization created a demand among multinational food companies and retailers for contracts that could allow them to increase efficiency and coordination, streamline operations, reduce transaction costs, and harmonize standards and, at the same time, also offer foods with attributes beyond food safety (environmental, social, and animal welfare dimensions). This also means that new private standard setters—most importantly, large Western retailer groups—are emerging, moving away from traditional coalitions of trade associations. Especially since the advent of food safety crises, these private governance systems help avoid shirking and maximize collaboration by effectively sharing risks among the enterprises belonging to the chain (Cafaggi, 2012).
Private food safety governance may involve the creation of industry codes of conduct that are monitored by peers and enforced through reputational (market) sanctions (Verbruggen, 2016). An example are the food safety requirements that Dutch supermarkets impose on their suppliers: “Several respondents and documents from supermarket organizations stress that food safety is a non-competitive issue. Their message is: all food in each supermarket (in The Netherlands) is safe” (Havinga, 2006, p. 528). Accordingly, what Cafaggi (2012) calls “contractual governance” is often promoted by retailers and drafted together with producers. Audit service providers (auditors, certifiers, consultants) are another important actor category. They monitor how the private standards adopted under transnational certification schemes are implemented at the national and local level (Lytton & McAllister, 2014). Finally, individual companies in the food industry may design firm-specific systems of food safety control (HACCP systems), that in turn can be enforced by national food safety agencies (Verbruggen, 2016).
Private Food Safety Schemes
A highly institutionalized form of private food safety regulation are the so-called private food safety schemes that include a set of standards plus a governance structure for certification and enforcement with these features—including accreditation, certification, standard setting, adoption, implementation, conformity assessment, and enforcement (Marks, 2016, p. 930). Prominent food schemes include the Global Good Agricultural Practices (GlobalGAP—the most widely implemented transnational food safety standard for agri-food in the world), the British Retail Consortium (BRC) Global Standards, International Featured Standards (IFS), Safe Quality Food (SQF), and Tesco’s Nature’s Choice (Fuchs & Kalfagianni, 2010, pp. 8–9). Some transnational schemes, such as GlobalGap, also have national spin-offs or accept equivalent national standards. Such national standards include ChileGAP, ChinaGAP and KenyaGAP, the “Red Tractor Farm Assurance” scheme in the United Kingdom, the Qualität und Sicherheit (Quality and Safety) scheme in Germany, and the Dutch IKB Varken (IKB Pigs) scheme. Major retailers govern the schemes (e.g., Ahold/Delhaize, Carrefour, Tesco, Walmart) together with multinational brand-name manufacturers (e.g., Kraft, Nestlé, Unilever) and global audit-service providers (e.g., Bureau Veritas, Lloyds). In addition, national assurance schemes are administered by national trade associations or audit-service providers, such as the American Institute of Baking in the United States and RiskPlaza in the Netherlands (Verbruggen, 2016).
Changed Power Structures
In the United States, the five largest supermarket chains almost doubled their market share between 1997 and 2005, and in the EU, the top five retailers control more than 70% of the groceries retail market. Concentration is even higher in individual countries. In Latin America, the top five chains in each country control 65% of the supermarket sector. High retail concentration implies a high degree of economic power. In addition to the ability to dictate prices, their oligopolistic or even monopolistic position allows retailers to impose their own standards on suppliers (Fuchs & Kalfagianni, 2010). As more and more consumers are shopping in retail stores and express demand for certain product attributes, a large number of buyers in global agri-food markets now require their suppliers to meet private requirements; for example, in Europe, over 85% of all Western European retailers require GlobalGAP certification (Lin, 2014; Marks, 2016). Quality and safety directors of major food retailers in OECD countries estimated that between 75% and 99% of all food products supplied were certified on the basis of the private food standards part of the schemes (Fulponi, 2006; Verbruggen, 2016).
Although private standards are, in theory, not mandatory for suppliers, given the enormous market and economic power of multinational food companies, many have a de facto mandatory status (Lin, 2014). In fact, whereas public regulation has moved from detailed input to broad output standards, private regulation often entails detailed prescriptions leaving little or no discretion to suppliers. This way, large food producers and retailers gain full technological control of the manufacturing process (Cafaggi, 2012). As Cafaggi (2012) highlights, private contractual food safety arrangements differ in how they reallocate regulatory power between farmers, producers, and retailers. He argues that the structure of the market, the value created in the supply chain, and the latter’s degree of integration affect the choice of private instruments for regulating food safety.
The GFSI was established to ensure more coordination among these schemes and reduce the costs of multiple (and partly overlapping) audits for food business operators. It assumes a meta-regulatory role: the GFSI benchmarking against the GFSI guidelines has resulted in a growing convergence of and coordination between the major private food safety schemes. GFSI also provides a global platform for the promotion of the “GFSI system” and exchange of information on the safeguarding of food safety. It also contributes to the continuous improvement of private food safety schemes because it forces actors to discuss and include requirements related to, for example, auditor integrity and training, the prevention of food fraud, and the prevailing food safety cultures in firms. Still, retailers and brand-name companies continue to impose their own food safety assurance systems, mainly through CSR strategies (Verbruggen, 2016).
Hybrid Food Safety Governance
In practice, however, food safety regulation is rarely purely public or purely private; rather, it almost inevitably is the outcome of a process involving different sites of regulation and different kinds of actors in relation to one or more regulatory functions, which interact with each other (Verbruggen, 2016). Transnational and national governments, the food industry, and retailers are currently exploring new ways to regulate Food Safety by involving both public and private organizations (second- and third-party actors, such as firms, associations, and NGOs) active in rule-making, compliance monitoring, and enforcement (Havinga, 2006). For example, U.S. regulatory agencies let industry and NGOs participate in decision-making, by means of notice and comment, public consultation, and negotiated rule-making, in order to strengthen the scientific and technical expertise. Similarly, robust and effective regimes of private self-regulation often use the threat of government action (Verbruggen, 2016). For example, the United Kingdom’s Responsible Use of Medicines in Agriculture Alliance, or RUMA, has issued comprehensive and apparently widely observed guidelines for the responsible use of antimicrobials in livestock production. Livestock farmers comply with these guidelines, not least in order to avoid violating EU standards for drug residues in food.
Hybridity has several dimensions (Verbruggen & Havinga, 2017). First, it means that actors from distinct—public and private, for-profit and nonprofit—societal spheres are involved into regulation, with diverging rationalities (i.e., motivations, interests, and preferences) and problem definitions. Second, hybrid regulation distributes regulatory authority and tasks to different levels (e.g., territorial) using functional, hierarchical, or path-dependent criteria, where actors can simultaneously take on several regulatory roles. For example, in Switzerland, for-profit veterinarians are both the targets of food safety provisions and help to enforce them vis-à-vis livestock owners (Sager, Thomann, Zollinger, van der Heiden, & Mavrot, 2014). Third, hybridity sometimes refers to the combination of several regulatory approaches. Although hybrid arrangements have emerged to overcome problems associated with state, industry, or NGO-driven food safety governance, empirical research on the added value of hybrids is still scarce (Verbruggen, & Havinga, 2017).
An example of hybrid food safety regulators are the accreditation bodies that are functionally public but have a semipublic legal status. Accreditation is the attestation that a certification body meets the requirements to carry out specific conformity assessment activities. Accredited third-party certification is now the industry standard. Global audit-service providers who provide audit and inspection services across the globe are effectively national-transnational hybrids. This industry consists of multinational firms, such as the Bureau Veritas Group, Det Norske Veritas, Lloyds, Registro Italiano Navale, SGS, and the TÜVs (Technischer Überwachungsverein). They have national subsidiaries or contracted auditors and inspectors on all continents. Although these actors are all incorporated into national legal orders, they provide services across borders. Finally, the ISO is a meta-organization of national (public or private) standardization bodies that sets transnational voluntary food safety standards that are available on payment of a fee. The ISO 22000 standard “Food Safety Management Systems: Requirements for Any Organisation in the Food Chain” serves as a baseline for other standards in the domain. ISO also provides private, widely used standards for certification and accreditation services. ISO itself, however, is a private association under Swiss civil law whose members are national public, quasi-public, or private standardization bodies (Verbruggen, 2016).
Verbruggen (2016) outlines the synergizing effects of combining transnational and hybridized regulation, a phenomenon that he calls “regulatory enrolment.” One first possible combination is that of transnational public and national public regulators. For example, the EU and ESFA rely on resources such as information, wealth, strategic positioning and organizational capacity to ensure uniform and coherently applied food safety rules by national governments and food safety authorities. The Commission has established a “Rapid Alert System for Food and Feed” for information-sharing that enables swift, collective, and efficient strategies for addressing food incidents (see also Ugland & Veggeland, 2006). An example of the combination of transnational public and private regulators is the interplay between Codex standards and transnational private certification schemes. Both states, private certification scheme owners around the globe, and GFSI have based their schemes on the HACCP and related standards for Good Agricultural Practice (GAP) and Good Manufacturing Practice (GMP) because they are promoted by the Codex International Code of Practice General Principle of Food Hygiene (Verbruggen, 2016).
A case of enrollment of national private actors by a transnational public actor is the promotion of the “Guides to Good Hygienic Practice” in Regulation 852/2004/EC, which lays down the general hygiene requirements (Soon, Baines, & Seaman, 2012) to be respected by food business operators in the food supply chain based on HACCP principles. The design and implementation of a HACCP system demands great expertise and financial resources, which small and medium-sized enterprises (SMEs) typically lack. Therefore, Regulation 852/2004/EC offers SMEs the choice between either their own company-specific food safety management system or a Guide to Good Hygienic Practice adopted and implemented by the food industry or a specific subsector, subject to approval by a national competent government authority. In 2015, over 400 national guides provided cost-efficient alternatives for food business operators to design individual company HACCP management systems (Verbruggen, 2016). Another example are retail traceability standards. The EU General Food Law explicitly states that food business operators should have the primary legal responsibility for ensuring food safety and that they should actively participate in implementing food law requirements by verifying that the requirements are met (Fuchs & Kalfagianni, 2010, p. 12).
The fact that public food safety authorities enforce compliance with the privately established HACCP systems illustrates the interplay between national public authorities for food safety enforcement and national private food business operators. National public actors also increasingly enroll transnational private actors, as public enforcement agencies in Canada, the Netherlands, the United Kingdom and the United States (Stewart & Gostin, 2011) have designed various collaborative regulatory arrangements with private assurance schemes to deploy their resources more efficiently and innovatively. Although these assurance schemes have been primarily national in scope, public food safety controls are also being coordinated with transnational, private certification schemes. For example, the Dutch Food and Consumer Product Safety Authority (NVWA) uses information from private systems of food safety control for its own enforcement activities. Compliance under private regulatory systems leads to a reduction in the frequency of official inspections. NVWA thereby enrolls the information, wealth, strategic position, and organizational capacity of these schemes (Verbruggen, 2016).
Finally, transnational and national private actors may mutually strengthen their capacity to achieve their respective regulatory goals. For example, GlobalGAP provides for a benchmarking process through which national schemes are recognized to be equivalent to GlobalGAP certification. As a result, farmers certified by the benchmarked national schemes benefit from the worldwide acceptance by GlobalGAP in markets for fruit, vegetables, dairy, beef, poultry, pigs, and plants. The strategic positioning, organizational capacity, authority and legitimacy of GlobalGAP gives them access to global supply chains for primary produce and the most profitable markets (EU, North America, Australia; Verbruggen, 2016).
Food Safety: A Wicked Problem
The transnationalization and hybridization (i.e., the process of becoming increasingly hybrid) of food safety policy are not only a response to insufficient prior responses in addressing food safety and public regulation. Indeed, they also create new and important problems. Hamm (2009) has pointed out that food safety is best understood as a “wicked” policy problem. Wicked policies are characterized by the high complexity of their different elements, subsystems, and interdependencies between them; an extraordinary uncertainty regarding the prevailing risks, the consequences of actions addressing them, and constantly changing patterns; and a high divergence and fragmentation of the viewpoints, values and intentions of the actors involved (Head, 2008, p. 103). As a consequence, attempts to solve a problem often create new problems, which are each unique and require tailor-made solutions. Multiple stakeholders diverge in their perceptions about what the problems and their causes are. Their judgments influence which solutions are adopted (Hamm, 2009; Tosun, 2017).
The global and interconnected dimension of food safety policy results in a high degree of complexity. One consequence is the coexistence of multiple multilevel regulatory regimes and actor structures, whose rules and goals can compete with each other. As a consequence, bilateral agreements may not achieve higher food safety levels. For example, the Transatlantic Trade and Investment Partnership (TTIP) was found to erode EU food safety standards because the latter could create unfair advantages for trade partners that are not bound by them (Marks, 2016, p. 925). At the national and subnational levels, multiple agencies are typically responsible for coordinating and enforcing different food safety laws, labels, and standards. For example, in the United States, food additives and pesticide residues are regulated at the federal level, although local health departments and health commissions are responsible for enforcing laws regarding the cleanliness of food preparation areas, expiration dates, and storage of milk products and eggs (DeWaal, 2007; Robson, 2013; Stewart & Gostin, 2011; Zweigenbaum, 2011). Coordination thus becomes a key issue.
More generally, the complex interdependencies between socioeconomic and policy forces in the food system create a wide array of poorly understood drivers and policy options for advancing public health. The fact that so many variables are at play makes it particularly challenging to identify the public health outcomes of particular policies. Additionally, one policy can negate the effectiveness of another policy. For example, the benefits of local community incentives to have organic products in convenience stores could be overwhelmed by federal policies that create a favorable business environment for the production of highly processed foods. For individual professionals implementing and enforcing food and agricultural policy, it is particularly hard to understand and consider the numerous policy drivers that impact the food system, ranging from agricultural commodity policies to local food safety ordinances. Confronted with this complexity, these actors often focus on narrow objectives, disregarding for the larger system, rather than considering the full range of interdependent policies that affect the system from a systems-based perspective (Muller et al., 2009).
Finally, whereas private modes of food safety regulation have effectively resulted in tailor-made governance tools along the complex food chain, they have also created losers in this process. As mentioned earlier, the evidence about the impact of private food safety standards on developing countries is inconclusive (Henson & Humphrey, 2010; Stanton, 2012). On the one hand, GFSI schemes and other private food safety schemes and standards reinforce existing, unjustified, and unnecessary barriers to international trade for developing countries (Marks, 2016, p. 965). The high implementation costs of such private certification schemes also tend to push small farmers, especially landless and female-headed households, out of the market in favor of large agribusinesses and food processors. These developments demonstrably contribute to the ongoing rural exodus and hence, the building of urban slums in countries with long-term economic maldevelopment. The benefits in terms of food safety and diversity accrue disproportionately to a small segment of the global population. Conversely, “the majority of the global poor (also representing the majority of global population) gain little—and many may lose—from retail authority in global food governance” (Fuchs & Kalfagianni, 2010, pp. 9–10). On the other hand, in some sectors and regions smallholders have maintained or even enhanced their roles in export value chains. Private standards can also act as catalysts of processes of upgrading and competitive positioning in international markets for developing countries (Maertens & Swinnen, 2012). More generally, private standards represent a new form of value chain governance that will not disappear but further evolve in the future (Henson & Humphrey, 2010).
But even in developed producing countries, the shift in responsibility to the producer and the scientification of regulations has been detrimental to some small food processors. For example, many small producers in the United States lacked the expertise and resources to invest in adapting their plant equipment to the HACCP. For them, potentially insurmountable challenges posed by HACCP regulations eliminated the viability of particular products and forced some of them out of business. Hence, HACCP reliance on science has not only limited the participation of a particular kind of small actor; it has also precluded the possibility that the regulatory system might learn from their experience. The HACCP thus produced a particular kind of stakeholder that can viably exist in the system, though it eliminated others (Wengle, 2016).
Uncertainty is an inherent feature of any attempt to ensure the safety of food. The emergence of new and previously unknown threats to food safety, as well as their perception in the public discourse, have played a key role in the emergence of contemporary modes of food governance (Figuié, 2014; Scallan, Griffin, Angulo, Tauxe, & Hoekstra, 2011). These threats frequently present situations in which the relationship between activities and their potential hazard cannot be established before the risk arises. However, uncertainty may lead to conflicts among policymakers who have different perceptions, which can lead to a high politicization of the issue. For this reason, the precautionary principle, driven by a “serious suspicions of danger,” is key. This is an abstract legal principle that enables policymakers to take regulatory action before risks materialize in order to prevent unnecessary harm. Typically such policies impose constraints on the actions of target groups (e.g., bans on the production or sale of certain products). For example, the poor management of food scandals has led to a politicization of food safety issues, which led EU policymakers to address these risks on the basis of the precautionary principle in an effort to restore the public’s trust and the policymakers’ legitimacy (Tosun, 2013).
Uncertainty affects policymaking, but also both public and private implementation and enforcement practices. For example, given the enormous number of production sites, risk-based sampling inspection procedures are a promising and increasingly popular method for performing food safety inspections in primary production (Starbird, 2005). However, they also require that data about prior risk behavior is available, which is best achieved through data sharing between public and private regulators. Hence there is a close interaction between complexity and uncertainty in food safety policy.
Divergence and Fragmentation
The hybridization of food safety governance has created a fragmented actor landscape. The multiple actors involved often diverge in their very definitions of the problem and strategic intentions (rationalities). On the one hand, the food industry, the retail industry, and government share an interest in guaranteeing the safety and quality of food. Major food safety issues and recalls affect retailers, manufacturers, and governments, even if they are not to blame for the problem (Havinga, 2006). On the other hand, the hybrid nature of food safety governance results in actors having multiple and sometimes conflicting interests and goals. It can also create an overlap of several regulatory roles that affect effectiveness and legitimacy in the decision-making and implementation of food safety policy.
As Cafaggi (2012) highlights, contractual networks can result in conflicting goals and interests. On the one hand, there is the private dimension represented by the food safety and quality supply management. On the other hand, there are states and regional (European) liability and regulatory systems requiring networks to provide organizational responses to meet the goals of public regulation. As a result, there are often divergent public and private logics in the practice of food safety governance. By involving both public food safety interests and market interests, hybrid structures tend to multiply the regulatory actors’ social roles and resulting accountabilities, which are often difficult to reconcile (Thomann, Hupe, & Sager, 2017; Thomann & Sager, 2017).
The literature provides many examples for such divergences. For instance, when private auditors are paid for by their auditees, their lack of independence prevents an objective audit. Auditors have a financial interest in getting (re)hired by suppliers. As profit maximizers, suppliers naturally opt for the cheapest certification they can obtain. Simultaneously, auditors also have a professional obligation to report food safety risks. This can lead certifiers to lower their standards of inspection to avoid losing the customers whose activities they are supposed to assess and monitor (Marks, 2016). In Switzerland, private veterinarians monitor the livestock producers’ compliance with food safety regulations for profit. This can lead to situations in which their own economic dependency on the farmers impede the effective enforcement of the rules (Sager et al., 2014). Lytton and McAllister (2014) document similar problems for private third-party auditing in the United States.
Marks (2016) documents other perils associated with third-party certification. For example, overreliance on the “checklist” mentality and auditor incompetence were crucial factor in the deadly 2011 Colorado Listeria outbreak that was ultimately sourced to Colorado-based cantaloupe farmers. Additionally, the absence of a requirement to disclose can be problematic: when systems, auditors, and inspectors are not required to advise and alert the public agency of situations involving major noncompliance and serious risk to public health and safety, noncompliant firms may slip through the system.
The multilevel structures through which food safety policy is implemented additionally create diverse and fragmented policy outcomes. In the EU context, member states “customize” EU food safety rules to adapt them to their local contexts, interest constellations, and regulatory styles. Although this “legitimate diversity” is an intended aspect of the European experience, little is known about its causes and consequences for jointly ensuring food safety in the European single market (Thomann, 2015a). Havinga (2014) highlights “that in order to understand what happens on the ground it is important to look beyond transposition or direct effect and also to investigate the implementation of regulations and to dig deeper than just their transposition” (p. 51). For example, the practical application of industry guides for good hygienic practice is quite different in the Netherlands and Scotland. This is because their different food governance networks used the flexibility of EU regulation either to maximize or to minimize the use of industry guides (Havinga, 2014). Thomann (2015b) also finds striking differences and a general deficit in the subnational implementation of Swiss food safety inspection requirements. Taken together, this kind of findings suggests that much more attention needs to be paid to how food safety policy is implemented in practice and what the implications are.
We have seen that wicked problems pose specific challenges that require new processes and thinking. This includes the ability to work across agency boundaries, a debate on the appropriate accountability framework, engaging stakeholders and citizens in understanding the problem and identifying possible solutions, skills in communication, big-picture thinking, and the ability to work cooperatively. Policymakers need to develop a better understanding of behavioral change, a comprehensive focus or strategy or both, and ultimately accept uncertainty and the need for a long-term focus (Head, 2008; Yiannas, 2010). Using the example of the sustainable food production of the Common Agricultural Policy, Termeer, Dewulf, Breeman, and Stiller (2015) identify reflexivity, resilience, and responsiveness as essential governance capabilities.
Reflexivity is the capability of dealing with multiple frames (Termeer et al., 2015). The challenges for the capacity of individual national, international, and public and private regulators to devise effective and legitimate food safety governance systems have triggered increased levels of bottom-up coordination between regulatory activities across borders (Verbruggen, 2016). For example, Ugland and Veggeland (2006) illustrated that the EU has engaged in increased policy integration. Policy integration enhances policy consistency, meaning that normative and behavioral structures are coupled and the various policy activities are coherent with some common objective. Policy integration capitalizes on policy interdependence, where various policy components are interlinked and causally linked with official objectives. It also takes into account structural connectedness, when policy is made within a context of a network of actors and institutions. Integration happens in policy sectors (intrasectoral policy integration) and across policy sectors (intersectoral policy integration). In the EU, the food safety policy issue first had to be dealt with independently and in an integrated fashion within policy sectors before it could be successfully spread across different policy sectors.
The shift toward transnational private regulation has generally brought about a tighter linking of food safety and environmental and social policies. Commercial contracts along the supply chain now include clauses on all of these aspects (Cafaggi, 2012). Similarly, countries such as the United Kingdom, Norway, and Finland have reformed their food safety systems by linking policy areas and drawing on a new ecological public health approach. More joined-up approaches to public health and a sustainable food supply provide integrated policy advice. Institutional reforms to U.K. food policy reflected a bounded approach to policy integration. At the local and community levels in the United Kingdom, local food initiatives advanced policy alternatives in an ad hoc fashion (Barling, Lang, & Caraher, 2002).
The local and national food policy councils are an example of this; they have proven effective in developing comprehensive food systems policies that can improve public health. These councils reflect a holistic approach to food production, land use, agricultural development, livestock management, food distribution, retail, and food assistance. These councils examine the existing food system and the correlation to public health indicators; determine assets, gaps, and inconsistencies; and identify policies or programs to advance public health and local food economies. Although facing viability and endurance challenges—specifically, funding, staffing, and government support—food policy councils can provide the breadth and synergy to address dynamic and complex issues. They close the gap among stakeholders and policy-makers. Conversations and networking among diverse councils afford a productive and creative venue to advance policies (Muller et al., 2009).
Another strand of literature emphasizes the role of competitive framing for food safety policy change (Figuié, 2014). Using the example of raw milk sale, Rahn, Gollust, and Tang (2016) show that a frame emphasizing consumer choice and food freedom can be more effective than a frame emphasizing public health risks. Their study highlights the advantages of considering psychological and policy processes simultaneously to understand policy change.
Resilience refers to the capability to adjust actions to uncertain changes (Termeer et al., 2015). Generally, the precautionary principle increasingly characterizes food safety regulation. It illustrates a preference for an ex ante preventative approach over a regime of the ex post detection of violations. This minimizes risks and improves the effectiveness and efficiency of control at the source of the hazard. One example of this are traceability systems that have heightened the transparency of the regulatory process and the allocation of tasks along the chain. Traceability increases consumer confidence, ensures competition by differentiating products, decreases costs when product recalls are necessary, and improves risk management when hazards emerge (Cafaggi, 2012).
Experimentalist and network governance also increase resilience. Experimentalist governance is a recursive process of provisional goal-setting and revision based on learning from the comparison of alternative approaches to advancing them in different contexts (Sabel & Zeitlin, 2010). The EFSA and its scientific cooperation with the Competent Authorities in the member states is an interesting example. These authorities are jointly responsible for risk assessments. Three factors determine the success of such a cooperation: a strategic vision, wider institutional structures fitting the daily work, and mechanisms to facilitate and enhance cooperation among the partners. This experimentalist governance model represents a carefully designed architecture of networking between the national and European levels that incorporates national capacities into European science making (Abels et al., 2016, pp. 91–92).
The now commonly adopted HACCP technique is another example of resilience, designed to detect hazards at the optimal point of the food chain (Cafaggi, 2012). According to Wengle (2016), it bears central features of experimentalist governance: a new form of regulation that is flexible, responsive, and involves stakeholders in iterative and direct democratic deliberation. Although producers are required to design and implement HACCP plans according to a particular methodology, they are free to decide the particular steps and processes. The criteria that are used to justify a HACCP plan are based on food science. HACCP is based upon self-regulation because responsibility for guaranteeing food safety lies wholly with producers. Its scientific approach to controlling food-born hazards means that every regulatory decision and every plant-level procedure has to be justified with scientifically valid studies. This system facilitates that rules can be challenged with new studies, and innovations can be validated with new research.
Responsiveness means the capability to respond to changing agendas and expectations (Termeer et al., 2015). Green parties in particular proactively push for the consideration of the needs and interests of a diverse set of stakeholders dinuring agri-food policymaking in Europe (Daugbjerg & Feindt, 2017; Tosun, 2017). In the food safety sector, policy learning reflects responsiveness (Sabel & Zeitlin, 2010). Havinga (2006) effectively describes a process in which Dutch retailers emulated the British food safety assurance scheme (British Retail Consortium standard) in 2001. It was less expensive than developing an own standard, and it had proven to function well. Similarly, in 2003 the American Food Marketing Institute acquired the Australian food safety standard, the SQF.
Arguably, food safety regulation has generally become more responsive. Modern food safety laws in the EU, the United States, and Canada build on private systems and provide the flexibility for national governments and for food business operators to adapt the regulations to local circumstances. This flexibility is another feature of experimentalist governance (Zeitlin, 2015). In particular, private food safety schemes are able to react immediately on new problems. Conversely, adapting public regulations takes much more time—even if public authorities can take immediate measures where public health is in danger. For example, after the horse meat fraud in 2013, in which foods advertised as containing beef were found to contain undeclared or improperly declared horse meat, private food safety schemes immediately stipulated to obtain certification a policy of authenticity checks had to be in place. Finally, private schemes and GFSI have responded to various criticism (for example, about the reliability of audits and certification, difficulties for smaller businesses and farmers in developing countries, and insufficient motivations of food business operators) by developing special programs or including new requirements.
Toward an Effective Governance of Food Safety
Food safety policy is witnessing a new regulatory paradigm defined by privatization, decentralization, public participation, horizontal coordination, experimentation, and a solution-oriented focus, orchestrated by governments to engage other public, private, and nongovernmental entities in co-regulation. The state incorporates a decentralized range of actors and institutions, both public and private, into the regulatory system, and relies on these actors for regulatory expertise. An orchestration of public and private actors and institutions is favored over a direct promulgation and enforcement of rules, and “soft law” complements or substitutes for mandatory “hard law” (Marks, 2016, pp. 940–941).
Food safety can be seen as a wicked policy problem. First, the complexity of new modes of food safety regulation has resulted in competing regulatory regimes that can cancel each other out and require high levels of coordination between actors. It also makes it difficult for individual actors to understand what actions they have to take to improve food safety. By being closely tied to specific modes of production, these new modes have created winners but also losers around the globe. Second, uncertainty is often attached to food-related health risks; it affects both food safety-policy decision-making and enforcement and is augmented by complexity. Third, the fragmented actor landscape in food safety policy has important implications for how actors behave when putting it into practice. The resulting diversity goes hand in hand with inherent trade-offs between different, competing actor rationalities and goals.
In response to this “wickedness,” some new forms of food safety governance also show an increased capacity to deal with multiple frames, by involving policy integration, joined-up and local initiatives, and (competitive) framing. Traceability systems, experimentalist and network governance, and HACCP plans help to adjust actions to uncertain changes. To respond to changing agendas and expectations, actors engage in policy learning and build flexible private systems of governance, schemes, and GFSI.
More research is needed to identify the conditions under which such regulatory structures ensure an effective protection of food safety (e.g., Bazzan, 2017; Scharff, McDowell, & Medeiros, 2009). Evidence suggests that the conditions for effectively protecting public interest through industry self-regulation include overlapping between the norms, objectives, and interests of public and private regulation; effective monitoring and enforcement; the potential for self-evaluation; compliance with due-process standards; and information management and data sharing (Havinga, 2006; Verbruggen, 2013). Lytton and McAllister (2014) have highlighted the importance of buyer vigilance and other mechanisms to ensure adequate accountability structures, including tort litigation, liability insurance, accreditation, benchmarking, media coverage, and network configurations. This way, public, private, and civil society actors can jointly provide adequate solutions to the wicked and border-spanning problem of food safety (Havinga, van Waarden, & Casey, 2015; Head & Alford, 2015).
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