Dr. Jaime Lindsey, Lecturer in Law at the University of Essex has a new article published in the Journal of Law and Society. The article is entitled ‘Capabilities, capacity, and consent: sexual intimacy in the Court of Protection’ and is co-authored with Professor Rosie Harding of the Birmingham Law School.
The article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity.
The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation.
Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.
The article is published Open Access and is available here.
In recent years cross-border exchange of electronic information has become increasingly important to enable criminal investigations and prosecutions. As I have discussed in depth in my study “Rethinking Criminal Justice in Cyberspace: The EU E-evidence framework as a new model of cross-border cooperation in criminal matters” the use of technology has transformed the nature of crime and evidence leading to ‘crime without borders’ and ‘globalisation of evidence’. An increasing number of criminal investigations rely on e-evidence and this goes beyond cyber-dependent and cyber-enabled crimes. From an evidential point of view, today almost every crime could have an e-evidence element as often offenders use technology, such as personal computers, notepads, and camera phones, where they leave traces of their criminal activity, communications or other pieces of information that can be used to determine their whereabouts, plans or connection to a particular criminal activity.
Crime today often has a cyber component and with it an increasingly prominent cross border dimension because electronic information to be used for investigative or evidentiary purposes is frequently stored outside of the investigating State. The borderless nature of cyberspace, the sophistication of the technologies and offenders’ modii operandi pose specific and novel challenges for crime investigation and prosecution that, in practice, may lead to impunity. In 2018 the European Commission found that in the EU “more than half of all investigations involve a cross-border request to access [electronic] evidence.” Yet, alarmingly, “almost two thirds of crimes involving cross-border access to e-evidence cannot be effectively investigated or prosecuted”. Challenges to accessibility relate inter alia to the volatility of e-information, availability and the location of data, as well as the legislative barriers and shortcomings that must be overcome to enhance cross-border access to electronic evidence and the effectiveness of public-private cooperation through facilitated information exchange.
Cross border access to e-information is currently conducted through traditional judicial cooperation channels and requests are often addressed to specific states which are hosts to many service providers (SP). In the EU these include Mutual Legal Assistance requests and European Investigation Orders according to Directive 2014/41/EU which provides for the acquisition, access and production of evidence in one Member State (MS) for criminal investigations and proceedings in another Member State. The nature of the existing judicial cooperation instruments, actors and procedures involved, and the ever-increasing number of requests have resulted in delays and inefficiencies, posing specific problems for investigations and prosecutions that are exacerbated by the volatility of electronic information.
In the EU, there is no harmonised framework for law enforcement cooperation with service providers. In recent years, Member States have increasingly relied on voluntary direct cooperation channels with service providers, applying different national tools, conditions and procedures. Service providers may accept direct requests from LEAs for non-content data as permitted by their applicable domestic law. However, the fragmented legal framework creates challenges for law enforcement, judicial authorities and service providers seeking to comply with legal requests, as they are increasingly faced with legal uncertainty and, potentially, conflicts of law.
Cross border access to electronic information requires legal instruments that are capable of efficiently supporting criminal investigations and prosecutions and that, at the same time, have in place adequate conditions and safeguards that ensure full compliance with fundamental rights and principles recognised in Article 6 of the Treaty on European Union, the EU Charter of Fundamental Rights and the European Convention on Human Rights, in particular the principles of necessity, legality and proportionality, due process, protection of privacy and personal data, confidentiality of communications, the right to an effective remedy and to a fair trial, the presumption of innocence and procedural rights of defence, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence.
In order to achieve these objectives and overcome difficulties present in the existing mechanisms of cross-border cooperation, in April 2018 the EU Commission proposed an important legislative package referred to as “E-evidence”, aimed at facilitating the access to e- evidence by European law enforcement agencies (LEAs). The framework contains two legislative measures: a Regulation which provides two new mechanisms for LEA’s cross border access to e-evidence: European Production Order and European Preservation Order which are to be addressed directly by LEAs of the issuing MS to a service provider, and a Directive which requires every online service provider “established” in or that has “substantial connection” to at least one EU Member State to appoint a legal representative in the territory of an EU MS of choice as an addressee for the execution of the above Orders.
On 7 December 2018 the Council adopted its own draft (known as Council’s “general approach”) and after two years of delays caused partially from the EU parliamentary elections and the Covid-19 pandemic, on 11 December 2020 The EU Parliament adopted its position. On 10 February 2021 the ‘trilogue’ procedures amid the EU Parliament, the Council, and the Commission started in order to agree to a common text. In the study cited above, I have analysed in depth the key legal provisions contained in the Commission’s proposal, the Council’s draft and the report of the LIBE’s rapporteur Birgit Sippel, presented to the EU Parliament in 2020. Considering that the E-evidence framework is currently being negotiated, the study’s analysis and findings aim to contribute to achieving the best version of the forthcoming instruments.
The EU E-evidence framework is of particular importance in shaping the future of similar instruments and the terms of cooperation between countries all over the world. To a certain extent, it follows the US CLOUD Act 2018 that in itself marks a major change in how cross-border access to e-evidence may develop in the rest of the world. The EU E-evidence framework shall influence and at the same time needs to conform to a number of new agreements currently being negotiated. In 2019 the EU Commission received a negotiating mandate to achieve an agreement between the EU and US, as well as to shape the second amending protocol of the Cybercrime Convention (CCC). Both these instruments need be negotiated from the perspective of the forthcoming E-evidence framework, therefore it is important that the latter offers provisions that increase the efficiency of investigations and prosecutions by surpassing challenges in cross-border cooperation, while maintaining safeguards to fundamental rights of individuals.
The E-Evidence legislative package lays down the rules under which, in a criminal proceeding, a competent judicial authority in the European Union may directly order a service provider offering services in the Union to produce or preserve electronic information that may serve as evidence through a European Production or Preservation Order. This framework will be applicable in all cross-border cases where the service provider has its main establishment or is legally represented in another Member State. The framework aims to complement the existing EU law and to clarify the rules of the cooperation between law enforcement, judicial authorities and service providers in the field of electronic information. The new measures for cross border access to e-evidence will not supersede European Investigation Orders under Directive 2014/41/EU or Mutual Legal Assistance procedures to obtain electronic information. Member States’ authorities are expected to choose the tool most adapted to their situation. However, authorities of the Member States will be allowed to issue domestic orders with extraterritorial effects for the production or preservation of electronic information that could be requested on the basis of the e -evidence Framework.
Despite expected improvements in the efficiency of investigations and prosecutions by simplifying and speeding up the procedures, the necessity of having a new legal framework to organize cross-border access to electronic evidence has been questioned. The proposed e-evidence framework is perceived as adding another layer to the already complex tableau of existing, multiple channels for data access and transnational cooperation. While alternative approaches have been considered and could have been taken by the Commission, as I have argued in depth elsewhere, a specific framework dedicated to improving access to e-evidence is more suitable to help achieve that goal than amendments to existing procedures and instruments that are general in scope and do not provide for the specific e-information related challenges. Procedural improvements to existing cross border cooperation instruments are necessary, but not by themselves sufficient to overcome the present difficulties and inefficiencies. It is not possible to adequately respond to novel challenges with old mechanisms embedded in lengthy procedures and bureaucratic complexities. The answer is to provide adequate safeguards that protect fundamental rights and the interests of all stakeholders, suited to the new type of instruments created by the e-evidence framework, albeit not identical to the ones found in existing mechanisms of transnational cooperation.
The E-evidence model builds upon the existing models of cooperation yet is fundamentally different. The extraterritorial dimension of the framework affects the traditional concept of territorial sovereignty and jurisdiction. It departs from the traditional rule of international cooperation that cross-border access to electronic information requires consent of the state where the data is stored. Most importantly, jurisdiction is no longer linked to the location of data. According to the new approach, the jurisdiction of the EU and its MSs can be established over SPs offering their services in the Union and this requirement is met if the SP enables other persons in (at least) one MS to use its services and has a substantial connection to this MS. In this way the framework avoids the difficulties in establishing the place where the data is stored and the “loss of location” problem. E-evidence framework is a clear example of the development of the concept of territorial jurisdiction in criminal law and the evolvement of connecting factors that establish it, in line with the requirements of legal certainty.
The extraterritorial reach of judicial and state authorities’ decisions in the E-evidence framework introduces a new dimension in mutual recognition, beyond the traditional judicial cooperation in the EU in criminal matters, so far based on procedures involving two judicial authorities in the issuing and executing State respectively. This important aspect of the e-evidence framework entails a fundamentally different approach that demonstrates the (need for) development of the EU law traditional concepts in order to respond to the new challenges with adequate mechanisms. From the perspective of the proposed e-evidence framework, the scope of article 82 (1) TFEU requires further clarification from CJEU or an amendment (albeit difficult). Reliant on the principle of mutual trust, the debates surrounding the e-evidence framework reveal that in today’s European reality this principle is still an objective to be achieved. For as long as disparities in the standards and protections provided by MSs still exist, the way forward should include innovative mechanisms that allow for the control, improvement and maintenance of those standards within each MS as opposed to fostering lack of trust, prejudicial treatment and unjustifiable differentiation between MSs within the EU.
The e-evidence framework generally achieves what it sets out to do: i.e. to increase the effectiveness of cross-border access to e-evidence. The application of the same rules and procedures for access to all SPs will improve legal certainty and clarity both for SPs and LEAs which is currently lacking under the existing mechanisms of cooperation. In several aspects the framework serves as a model to be followed in the international arena. However, further improvements can be recommended:
There should be only an exceptional involvement of the enforcing MS as proposed by the Council, so that the framework does not replicate the existing judicial cooperation models.
The wording of Article 7a in the Council draft could be amended to allow for the enforcing MS to raise objections on behalf of any affected state.
Service Providers should maintain their reviewing powers of production and preservation orders, given the unique position they are in to understand the data. A productive dialogue and close cooperation between SPs and the issuing authorities should be promoted in the earliest stages.
The framework should specify the definition of e-evidence and should provide for its inadmissibility in cases of breaches of the requirements specified therein.
The data categories need to be better defined and brought in line with other EU and international legal instruments, as well as the jurisprudence of CJEU and ECtHR. The draft presented by EU Parliament is a positive step in that direction.
Judicial validation of orders issued by non-judicial authorities should be imperative for all types of data as a form of control and safeguard against abuse or overuse.
A classification of investigating authorities by means of a schedule in the proposed framework would help to better define the permitted activities within the scope of the Regulation.
A provision that clearly prohibits the production or use of e-evidence in cases contrary to the ne bis in idem principle should be included in the final draft.
The final instrument should adopt the approach proposed by the Commission regarding confidentiality and subject notification with an obligation for the issuing authority to inform the person whose content or transactional data are sought in all cases (even though delays should be permitted).
The right to exercise legal remedies should be extended to the enforcing MS and/or the MS of residence of the suspect.
There should be provisions that enable defendants or other parties in the criminal proceedings to access or request e-evidence. The accessibility of electronic data to the suspects / defendant’s lawyer should be ensured in order to assert their rights effectively.
If implemented, these recommendations would improve the e-evidence framework by ensuring a balance between effective criminal investigations/prosecutions and respect for fundamental rights. A balanced and principled approach should be at the core of any existing or forthcoming instruments concerning cross-border access to electronic information.
In the cover article of The Nation’s 8-15 February issue, Dr. Tara Van Ho, Lecturer in Law at the University of Essex, asserts that businesses operating in Kenya should have predicted that the 2007 national election would result in violence and taken appropriate measures to protect ethnic minority workers.
In ‘Blood on the Tea Leaves,’ author Maria Hengeveld details the story of ‘Anne,’ a worker at a tea plantation in Kenya. The plantation is owned by a subsidiary of London-based Unilever, a multinational purveyor of household goods. Anne, her husband, and her daughters were raped in their home on the plantation. Her husband was one of 11 plantation residents killed. Those who were tortured and killed were members of minority ethnic groups that were believed to have opposed the politician favoured by the population in the area surrounding the plantation. Anne and her co-complainants have argued that Unilever had a responsibility to ensure their safety in light of the severity of the harm posed to them from election-related violence. Dr. Van Ho concurs.
After a tort case against Unilever was dismissed by the English Court of Appeal, the Kenyan claimants wrote to the UN Working Group on Business and Human Rights. The Working Group has a mandate to receive complaints that either a state or business (and sometimes both) has failed to meet the standards set out in the UN Guiding Principles on Business and Human Rights, currently the most authoritative statement on the responsibilities of businesses and states when the former harms human rights. The Working Group can intervene to encourage businesses to abide by their responsibilities, and to correct misinterpretations or misapplications of the Guiding Principles.
In The Nation article, Dr. Van Ho indicates that Unilever’s efforts to prevent Anne and others from accessing an adequate remedy run afoul of what the Guiding Principles expect of businesses.
Dr. Van Ho, her Essex Business and Human Rights Project (EBHR) co-director Dr. Anil Yilmaz Vastardis and Lisa Kadel (then an Essex LLM student and EBHR frontrunner), have previously criticized the English Court of Appeal decision.
The article examines how the regional organizations in Europe and Southeast Asia have redesigned the global regime on human trafficking established by the United Nations Palermo Protocol to suit the dominant regional agendas in the European Union (EU) and the Association of Southeast Asian Nations (ASEAN).
Map indicating locations of European Union and ASEAN | Source: Wikimedia Commons
In seeking to consolidate and coordinate the implementation of the global anti-trafficking action across their respective member states, these regional actors have shaped and promoted fundamentally different understanding of the phenomenon of human trafficking and the actions needed to address it.
These findings challenge general assumptions about the universality and coherence of the growing international legal framework on human trafficking and show the capacity of regional actors to redefine international treaties in line with their specific mandates, pressing concerns and dominant agendas.
Dr. Jovanovic’s article can be accessed through the publisher’s website here.
On 24 September and 8 October 2020, the Information Commissioner’s Office (ICO), the United Kingdom’s independent body established to uphold information rights, imposed fines on two companies for sending thousands of nuisance marketing texts and unlawful marketing emails at the height of the current pandemic.
In September 2020, Digital Growth Experts Limited (DGEL) was issued with a monetary penalty of GBP 60,000 in relation to a serious contravention of Regulations 22 and 23 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). The PECR provide for specific privacy rights in relation to electronic communications. They include rules on marketing calls, emails, texts and faxes; cookies (and similar technologies); keeping communications services secure; as well as on customer privacy in relation to traffic and location data, itemised billing, line identification, and directory listings. Under the 2003 Regulations, ICO has the power to impose a monetary penalty of up to GBP 500,000 on a data controller.
The Commissioner found that between 29 February and 30 April 2020, DGEL had transmitted 16,190 direct marketing texts promoting a hand sanitising product, which was claimed to be “effective against coronavirus”. The company came to the attention of the Commissioner after several complaints were received via the GSMA’s spam reporting tool (the GSMA is an organisation that represents the interests of mobile operators worldwide).
In the course of the investigation, DGEL was unable to provide sufficient evidence of valid consent (as required by PECR) for any of the messages delivered to subscribers over the relevant period. The company’s explanations for its practices and the means by which it had obtained the data used for its direct marketing were found to be “unclear and inconsistent”.
DGEL had also used data obtained via social media ads which purported to offer free samples of the product to individuals, to automatically opt them into receiving direct marketing without advising them that their data would be used for this purpose, and without giving them (at the point the data was collected) a simple way of refusing the use of their contact details for direct marketing.
In October 2020, ICO again took action against a London-based software design consultancy, Studios MG Limited (SMGL), which had sent spam emails selling face masks during the pandemic. The company was fined GBP 40,000 for having transmitted unsolicited communications by means of electronic mail for the purposes of direct marketing, contrary to Regulation 22 of PECR.
More specifically, on 30 April – in the midst of the pandemic – SMGL sent up to 9 000 unlawful marketing emails to people without their permission. SMGL did not hold any evidence of consent for the individuals it had engaged in its one-day direct marketing campaign. ICO held that SMGL’s campaign had been made possible by using “data which had been scraped from various vaguely defined sources”.
ICO’s examination also found that SMGL’s director had decided to buy face masks to sell on at a profit, despite the fact that the company bore no apparent relation to the supplying of personal protective equipment (PPE). Moreover, it was impossible in SMGL’s case to determine the total number of individuals whose privacy had been affected, as the company had deleted a database with key data evidencing the full extent of the volume of emails delivered.
During the pandemic, ICO has been investigating several companies as part of its efforts to protect people from exploitation by unlawful marketing-related data processing activities. The ICO Head of Investigations said in a statement that DGEL “played upon people’s concerns at a time of great public uncertainty, acting with a blatant disregard for the law, and all in order to feather its own pockets.” A hard line was also taken in relation to SMGL. The Head of Investigations stated that “nuisance emails are never welcome at any time, but especially when people may be feeling vulnerable or worried and their concerns heightened.”
This article first appeared on the IRIS Merlin database of the European Audiovisual Observatory and is reproduced here with permission and thanks. Read the original article here.
In doing so, the book reveals common experiences despite different legal and cultural systems, with victims identifying how businesses have failed to conduct appropriate due diligence and how existing legal structures are inadequate for ensuring victims can access appropriate remedies when their human rights are harmed.
In her own chapter, Dr. Van Ho examines how a mining company upended the lives and communities surrounding the village of Cajamarca, Colombia, by planning to exploit resources without consultation and in a manner that threatened the water safety and security of an entire region.
While many books briefly feature the experiences of victims, this book is intended to place victims at the centre of their own story. In response to the reported experiences, the editors draw important conclusions and make a series of proposals for international and domestic policymakers. When Business Harms Human Rights: Affected Communities that Are Dying to be Heard is available from Anthem Press (260 pages; £80.00, $125.00).
Recent reports that the government of China has been forcing members of the Muslim minority Uyghur community to labour in the supply chains of western companies have raised a series of questions for other governments and individual businesses about how to respond to such an egregious violation of international human rights law standards.
Annachiara Biondi from Vogue Business has covered the story with a focus on the cotton supply and fashion retailers, and they have turned to Essex Law School’s Dr. Tara Van Ho for guidance on the appropriate standards to be employed.
In a September 2020 article, Dr. Van Ho helped explain the differences between the EU and US approaches to the revelations. In a January 2021 article, she considered the legitimacy and adequacy of the UK’s new controls.
As Dr. Van Ho explains in the January article, the severity of the alleged violations in Xinjiang call for a strong response to ensure that UK companies are not contributing to the violations by using forced labour in their supply chains. Measures announced by the UK government last month, Dr. Van Ho concludes, are not yet strong enough.
Dr Birsha Ohdedar, Lecturer in Law, University of Essex, has published a new chapter, co-written with Steven McNab (Partner, Cleantech Cadre) on Climate Litigation in the United Kingdom. The chapter is published in M. Weller & W. Kahl (eds.) Climate Change Litigation: A Handbook (CH Beck 2021).
Ohdedar and McNab examine both the history of climate litigation and emerging trends in the United Kingdom. As they point out, the Courts in the United Kingdom have kept away from the global spotlight in many ways, not producing high profile cases that have grabbed headlines like those in the Netherlands or Pakistan. However, there has been a growing suite of climate-related jurisprudence in the United Kingdom covering a breadth of different areas of law. In fact, by some measures, the United Kingdom has the third most recorded climate litigation cases in the world.
Analysing the emerging trends of climate litigation in the United Kingdom, Ohdedar and McNab identify and discuss three types of litigation:
public/administrative law litigation against the government’s climate targets and standards;
litigation stemming from a transition to a low-carbon society (that is, litigation against fossil fuel intensive projects, such as fracking and airport runways, and for low carbon projects, such as renewable energy development); and
criminal litigation that targets climate activists and climate protests.
The chapter provides a bird’s eye view of many cases in these three categories linking back to broader themes of climate litigation globally.
The chapter is a valuable resource for practitioners, researchers and students and complement the comparative approach of the Handbook.
The book offers a cutting-edge analysis of the relationship between law, armed conflict, gender and peace. This book, which is the first of two volumes, focuses on the interplay between international law and gendered experiences of armed conflict. It provides an in-depth analysis of the key debates on collective security, unilateral force, the laws governing conflict, terrorism and international criminal law.
While much of the current scholarship has centered on the UN Security Council’s Resolutions on Women, Peace and Security, this two-volume work seeks to move understandings beyond the framework established by WPS. It does this through providing a critical and intersectional approach to gender and conflict which is mindful of transnational feminist and queer perspectives.
The European Commission published its Farm-to-Fork Strategy on 20 May 2020. In this, the Commission declared that to ‘empower consumers to make informed, healthy and sustainable food choices’, the Commission will propose harmonised mandatory front-of-pack nutrition labelling (FoPNL) by the fourth quarter of 2022.
In this post, Dr Nikhil Gokani, whose research explores the regulation of FoPNL, which was also the topic of his PhD, briefly sets out his views on how the EU should proceed with the regulation of FoPNL. To further develop the understanding of the regulatory issues involved, and bearing in mind the Commission’s target for legislative proposals, Dr Gokani and Prof Amandine Garde (Law & Non-Communicable Diseases Unit, University of Liverpool) are organising a conference on FoPNL – to explore the national, EU and international regulatory issues – which is provisionally scheduled for September 2021.
Back-of-pack nutrition labelling (BoPNL) does not sufficiently contribute to informing consumers, promoting healthier diets or tackling the rise in overweight, obesity and diet-related non-communicable diseases.
Evidence is clear that consumers find BoPNL confusing. They do not perceive nor understand BoPNL well, and they are unable to use this type of labelling effectively to help them make healthier food purchasing and consumption decisions. This is particularly so for consumers of lower socioeconomic groups.
Interpretive front-of-pack nutrition labelling (FoPNL) is an evidence-based intervention to inform consumers, help them make healthier food purchasing and consumption decisions, whilst encouraging manufacturers to reformulate products to make them healthier.
Effectively presented FoPNL is better perceived relative to BoPNL. Surveys have shown high levels of use, and research on various FoPNL schemes has shown improved trolley outcomes. FoPNL has a statistically significant effect in steering consumers’ choices towards healthier products, whilst encouraging product reformulation.
Interpretive FoPNL has consistently been shown to be most effective in improving health-related understanding, reducing processing time and improving purchasing intentions, with simpler schemes generally being better understood.
The EU should introduce a mandatory, interpretive EU-wide FoPNL scheme.
To be most effective, FoPNL should be mandatory for all food products. Any exceptions should be limited and only permitted where there are clear evidence-based justifications. The introduction of a mandatory pan-EU FoPNL scheme in the EU would help ensure a high level of consumer protection and public health while improving the functioning of the internal market. Moreover, this would be consistent with the EU’s obligations to protect consumers and their health, and to comply with fundamental rights as mandated by the EU Treaties and the EU Charter.
FoPNL should be: developed in a transparent manner; based on effective stakeholder engagement with conflicts of interest managed; effective in improving outcomes for all population sub-groups; supported by well-resourced education campaigns; encourage product reformulation; permit the comparison of products within and between food categories; monitored and evaluated for effectiveness; and reviewed periodically.
The presentation of EU-wide FoPNL
The evidence base supports the introduction of a mandatory, interpretive pan-EU FoPNL scheme. Hence, the EU should not move forward with FoPNL option 0 (“Baseline” ie business as usual) nor FoPNL option 1 (“Nutrient-specific labels – numerical” eg NutrInform). With FoPNL option 3 (“endorsement logos” eg Keyhole), consumers tend to over-estimate the healthiness of products, and there is insufficient research on the effectiveness of this type of FoPNL. By contrast, research has shown that option 2 (colour coded eg Traffic Light Labelling) and option 4 (graded indicators eg Nutri-Score) are effective in meeting public health objectives of increasing salience, improving understanding and improving purchasing intention as well as actual purchasing decisions.
Relative to other schemes in use in the EU, Nutri-Score presents a number of advantages which favour its adoption across the EU. Firstly, Nutri-Score is widely supported by a broad range of stakeholders, including many public health organisations and consumers themselves. Secondly, Nutri-Score has been evaluated in several large-scale studies evaluating perception and comprehension in French populations. It has been shown to improve understanding and lead to better basket outcomes, particularly with consumers from more vulnerable populations. Thirdly, the scheme has been adopted by several Member States, which would facilitate its extension to other EU Member States.
The nutrient profiling model underlying EU-wide FoPNL
It is a prerequisite that the development of interpretive FoPNL is based on an evidence-based nutrient profiling model. This model should encourage consumption of fruit, vegetables and wholegrains and other health-promoting food categories and ingredients; and discourage the consumption of fat (especially trans and saturated fatty acids), sugar (especially free sugar) and salt. Smaller portion sizes, energy density, level of processing and artificiality of ingredients may also be reflected in the model. The model, and the way FoPNL displays the classification derived from the model, should permit meaningful comparisons in order to encourage healthier substitutions both within and between categories. The model should classify food based on a scoring system which provides continuous gradations of healthiness of the food in order to encourage continuing reformulation. It should be based on uniform reference values (100g/ml)
Nutri-Score is based on a nutrient profiling model which was originally developed in the UK and was found to be largely consistent with French nutrition recommendations. A diet, which is consistent with recommendations derived from the model, was found to result in improved health markers amongst the population. There is evidence that the Nutri-Score nutrient profiling model would also be effective for diverse European populations.
However, the model would need to be altered to address certain criticisms. To this end, EFSA should be tasked with developing an objective, evidence-based model free from undue industry interference. Alternatively, noting the Commission’s failure to adopt nutrient profiling for the purposes of Article 4(1) of Regulation No 1924/2006, the development of this nutrient profiling should be tasked to a scientific committee of independent experts from across the EU.
In the absence of a mandatory pan-EU FoPNL scheme, the EU should not prohibit mandatory national schemes.
The nutrient profiling model should also be used to regulate the use of health and nutrition claims more effectively, as mandated by Regulation No 1924/2006.
The use of health and nutrition claims is a marketing tool intended to encourage consumers to purchase certain products. As claims lead to an increase in consumption and overall energy intake, it is important that they do not mislead consumers and, in particular, that they do not mask the overall nutrition profile of food products. Under Article 4 of Regulation No 1924/2006, the Commission should have adopted an EU-wide nutrient profiling model to restrict the use of food claims on unhealthy products by 19 January 2009. The Commission should finally fulfil this obligation as a priority to ensure that businesses operate within a level playing field and consumers are finally protected from the most misleading forms of commercial food information. It would be logical for FoPNL and food claims to be based on the same underlying nutrient profiling model.
The EU should extend mandatory back-of-pack and mandatory front-of-pack nutrition labelling to alcohol.
It is extremely concerning that alcoholic beverages containing more than 1.2% by volume of alcohol are exempt from the requirement of displaying a nutrition declaration. Even when such a declaration is provided on a voluntary basis, it can be limited to an energy-only declaration in a non-tabular format.
There is increasing evidence that there is a deficit in consumer knowledge and understanding of the nutritional content of alcoholic beverages and the consequences of their consumption. Moreover, consumers are interested in alcohol nutrition labelling across Member States. In any event, the exemption is illogical bearing in mind that EU consumer law, and the EU Alcohol Strategy of 2006 more specifically, aims to ‘provide information to consumers to make informed choices’.
Essex Law Research Blog 