February 2006
Volume 2, Number 2
Table of Contents

Selling Food in the European Union

(The following article is a summary of a project to provide advice to Illinois farmers wishing to engage in value added work by selling a ready to eat meal in the European Union. 1 The full article is available on Ostfeld’s web site at www.ostfeldlaw.com.)

For those looking for the information, the world has been battling during the last few years over subsidies to the agriculture industry. Not only are there issues over how much each country can subsidize its ag industry, or how much it should reduce these subsidies, but also what types of tariffs and prohibitions can be placed on the importation of food, whether it is ready to eat or on the hoof.

The United States has essentially won the right to export meat to the European Union, as well as Japan and other countries which try to keep it out for a variety of reasons. However, there have been little real signs of success in opening the markets there. Consumers continue to shy away from American meat, although hotels seem to be importing it, and new reasons are found to keep it out of the marketplace.

The sale of other products is subject to investigation as to whether they pass European standards developed to ensure the safety of the food. These can be onerous and time consuming.

But, the whole process of opening markets if fluid. While things look dark now, there is reason to think that restrictions may and will change in the future. The purpose of this article, and the underlying project, is to make the adviser to farmers and food producers aware of what is happening and where the resources are.

The battle over the use of crops from or involving genetically modified organisms (“GMO”) continues, although many countries accept the importation or planting of corn without being concerned that this is one of the original GMO crops. The battle is not over, however, because many farmers, and others, in the countries which restrict the importation and use of GMO crops, would like to be able to plant them. They recognize that certain GMO crops can increase their yield without any side effects. As do American farmers, the European farmers want to be competitive with the farmers in Brazil.

Unfortunately, the use of GMO crops or American meat is not politically popular amongst people who believe that their governments do too little to ensure the safety of what they eat. They have some history to support their fears, whether it be mad cow disease, listeria, or tainted blood transfusions. They hear stories about the content of American food and want to wait another generation, before freely accepting it into their marketplace.

To assuage their fears, and to avoid repercussions within the framework of the World Trade Organization, the European Union (“EU”) has adopted seemingly innocuous rules which effectively slow down American penetration of many food markets. Sales can be made but it takes knowledge of the rules and time to have the products evaluated and accepted by the administrative authorities.

The legislation, governing what food can be imported into the EU, comes about through the issuance of regulations, which completely bind the member states, directives, which bind the member states as to the results to be achieved but not as to the means, and decisions, which are intended to be uniform within the EU and not rendered independently on a case by case basis. (see, www.eseu.be/agri/customs.html, and www.eseu.be/agri). As a result, labeling requirements issued under a directive will be the same for all of the countries within the EU but the administrative procedures to be followed, and the agencies to be contacted, will be subject to individual country regulations. Help with this can be obtained from the United States Department of Agriculture through its Foreign Agricultural Service U.S. Mission to the European Union (FAS). (see, www.useu.be/agri/fairs.html).

A product entering the EU can be sent throughout the region without incurring further duties, as is the case in the U.S. However, there can be differences in time to process and fees to be paid depending on which port of entry is chosen. Again, the FAS, or even some state Departments of Agriculture, can be quite helpful with relevant information.

The seller has the normal labeling requirements, that he does here, which indicate the weight and content of the item and its shelf life. Attention needs to be paid to any claims, particularly health claims. The seller should not transform a food product into something approaching a medicine, by claiming too strongly its healthy attributes, or he will risk the product being regulated as a drug. The label needs to be in a language easily understood by the consumer. This means that it must be translated into one or more other languages in the EU, depending on the target market. There is a certain logic to this, if the seller wants the consumer in another country to understand what the product is.

 

Lynne R. Ostfeld is Chair, International Law Committee and Vice-Chair, Agricultural Committee, of the ABA General Practice, Solo & Small Firm Division)

1 This project was done by an L.L.M. level class in International Agri-Business Law, at The John Marshall Law School. It was organized and taught by adjunct professor, Lynne R. Ostfeld, a solo practitioner who has an “of counsel” relationship with a French law firm and is an accredited attorney to the French Consulate in Chicago. She was assisted by Professor Mark Wojcik of the John Marshall Law School, who taught a class on international legal research and the U.S. Court of International Trade; Thomas M. Keating (Hodes Keating & Pilon, Chicago) who taught a class on customs and treaties affecting agriculture; Nicole Coutrelis, (Coutrelis & Associés, Paris and Brussels) who taught a class on importing agricultural products and food into the European Union; Richard E. Schell (Law Offices of Kurt A. Wagner, Des Plaines) who taught a class on immigration and the need/use of foreign “guest” workers; Eugene F. Friedman (Friedman & Friedman, Chicago) who taught a class on intellectual property. The students who worked on the project were Juli Campagna, David Bickel, Adriana Casati, Daniel Meza, Bryan Moore. Ms Campagna deserves special commendation for her yeoman’s work in consolidating disparate parts, writing a significant portion of the memo, and editing the final product. Further information about this memorandum, or the program can be had by contacting Prof. Ostfeld at ostfeld@mindspring.com. The full article is available on Lynne Ostfeld’s web site at : www.ostfeldlaw.com.

 

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