Abstract: Focusing on the interests of the end-consumer, and using the emergent 'nanofood' sector as the primary reference point, this paper provides a commentary on the efficacy of Community food safety law. Looking behind the public relations patter that peppers both industry and institutional commentaries, this investigation considers the particular challenges presented by food-related applications of new technologies - specifically nanotechnology. The aim of the analysis is to distinguish the rhetoric of ostensibly precautionary food safety law from the reality of market-led regulation in order to evaluate the consumer-protective value of 'economic precaution' in the uncertain world of contemporary food risks. Introducing the concept of'ethical precaution', the discussion concludes with a comment on the need for a more holistic and consumer-centric approach to the assessment and management of (uncertain) technological risks.
INTRODUCTION: FROM GM FOOD TO NANOFOOD -THE REVOLUTION CONTINUES
Although the European GM menu remains limited in comparison to that of the US and other ardently pro-GM states, GM soya and maize, at least, are now thoroughly integrated into European cuisine - so well integrated, in fact, that regulators have already been driven to formally accommodate low-level 'adventitious and technically unavoidable' contamination of conventional (non-GM) supply chains and products with genetically modified material.' Over the course of little more than a decade, and despite widespread public opposition,2 GM food has mutated from the 'novel' to the mundane so that now none but the most diligent of consumers can hope to avoid the routine consumption of genetically engineered material with their daily bread.
As we move towards the end of the first decade of the 21st century, the next stage in the corporate-led agricultural and food revolution is already gathering steam. It seems that we are now swiftly moving from the era of the genetically engineered into the era of the atomi-cally engineered. 'Nanotechnology', 'perceived by many as synonymous with the dawn of a new age of technology similar to that of the Industrial Revolution of the 17th century in terms of its impact upon society',4 is now gaining ground as the new buzz word in agri-food technology. Although the European Food Safety Authority (EFSA) has recently concluded (on the basis of information from EU food industry organisations) that 'there is currently no food ready for marketing which is produced with the use of nanotechnologies or from ENM', it seems that the position is less certain so far as other food-related applica-tions, including food contact materials (FCMs), are concerned.5 Whatever the current state of affairs may be, major industry players certainly have high hopes for nanotechnology. Their expectation is that over the course of the next few decades, 'nanotechnology will transform the entire food industry, changing the way food is produced, processed, packaged, transported, and consumed'.6 And so a new debate begins....
Focusing on technological risks and food safety, this paper considers the extent to which ostensibly precautionary Community food law is equipped to respond effectively to the (uncertain) risks that may flow from food-related applications of nanotechnologies. In particular, the analysis presented herein seeks to distinguish the rhetoric of precaution from regulatory realities and to comment on the inevitable tensions that arise in the context of European Community governance of the food sector. The first part of the discussion provides a brief introduction to, and explanation of, nanotechnology and a general overview of the current state of play as regards commercialisation and EU policy development in this fast-moving field. Then, moving on to the more substantive legal analysis, the latter half of the paper explains and evaluates the precautionary value of some of the key Community legislation governing the emergent nanofood7 sector. The conclusion offers some reflective comments on the priorities and efficacy of Community food safety law and, finally, the value of the concept of 'ethical precaution' as a modification of (or successor to) regulatory precaution in the context of this core, life-sustaining, market sector.