EFSA, enforcement powers: de facto, but de jure?

By Béla, Beatrice & Vesela

“Food is Essential to life, therefore make it good.”, a quote from S. Truett Cathy that reaches every social level and makes anyone nod in confirmation. EFSA, the EU Agency that looks after us, the consumers, ensures that all food and feed products that end up on the EU single market comply with all possible safety standards. One might notice a slight resemblance to the famous US-counterpart, the FDA, but unlike the latter, EFSA lacks any kind of normative power and enforcement tools.

A strictly de facto enforcement power might not be sufficient to completely restore consumer trust. We believe that an expansion of EFSA’s powers would be welcomed, conferring on it a similar authority as the FDA holds in the United States. As we will broaden in a subsequent section, the current arguments that stand as obstacles for this expansion can easily be overruled.

Should this change?

“What is the point of this Agency if its opinions are not binding?’, one might wonder. Well, the Commission, together with the Member states, take up the role of risk managers. They follow them in practice, since the Commission lacks EFSA’s specialized expertise. Not following the decisions has to be substantiated with good reasons. The scientific evidence that has to be relied on in not following the opinion of EFSA has to be of an equivalent level to that of EFSA.

A possible risk of purchasing salmonella infested meat or wine contaminated with antifreeze poison doesn’t exactly strengthen consumers’ trust in the single market.

In its White Paper, The Commission did not expressly exclude the possibility of expanding EFSA’s competencies in the future. With all the latest outbreaks, the idea of granting EFSA the powers of a European FDA does not seem so unrealistic anymore.

Answers…or more questions?

On our quest for answers, a brief look at a different agency might provide us with some points: the FDA, a Federal Agency established in the US, with wider scope and powers than EFSA. Similar to the latter, this entity had been granted the power to supervise and regulate in the area of food safety.

The FDA is being closely supervised by various NGO’s and governmental organizations. The reason for this might be that, as competences and powers increase, so does responsibility, as well as the opportunities to abuse said competences and powers.

A new interpretation of the quote “With great power comes great responsibility”? Most probably. On various occasions, the US Agency had been criticized for corruption and accused of abusing its powers.

Considering this, if EFSA is being granted more power, would we be risking creating a ‘monster’ within the EU, that will be repeating the same faux pas as the FDA? We believe the answer has to be negative. The EU legislature is able to make an empowered EFSA subject to strict accountability mechanisms.

Interestingly, EFSA and the FDA share a Confidentiality Arrangement, marking the first formal step in cooperation between the two agencies. The goal of this agreement is to share non-public information regarding FDA/HHS (Department of Health and Human Services) regulated products as part of cooperative law enforcement or cooperative regulatory activities. Consumers can rest assured now that the best scientific minds from across the world are focusing on ensuring the safety and wholesomeness of food. Some argue that maybe the FDA should take a page out of EFSA’s book and require companies to back their health claims with adequate scientific facts.

The risk managers…

In its White Paper, the Commission (contrary to the wishes of the European Parliament) expressly rejected the idea of giving EFSA control over risk management in the first place for a few reasons.

First, the Commission considered that giving EFSA a mandate to also manage food and feed risks may ‘lead to an unwarranted dilution of democratic accountability’. The Member States, in particular, were reluctant to give up full control over risk management and the accompanying decision-making powers.

However, the internal market and the lack of borders naturally favor a harmonized approach towards food risk management and regulation at the EU level. This appears to be consistent with the principle of subsidiarity, as enshrined in article 5(3) TEU, a principle designed to protect national governments. It also keeps governments as close and accountable as possible to the citizens.

It is not clear why extending powers would necessarily lead to a dilution of accountability. After all, the EU legislature is the one setting up or amending the legal framework governing EFSA. As such, nothing prevents it from imposing strict accountability mechanisms within that framework on EFSA vis-à-vis (democratic) institutions, and circumscribe its competencies in detail to accompany an expanded mandate. Finally, as Moravcsik points out, even on the national level, technical tasks are often executed by bodies with delegated power, with relatively little democratic decision-making or control involved.

Finally, the Commission argued that entrusting such regulatory powers to EFSA would be contrary to the Court’s jurisprudence, in particular the Meroni and Romano line of case law. This argument is also unconvincing, as the competences of any agency can be strictly circumscribed and its discretion limited so as to be compatible with those rulings. The Commission’s relative unwilling approach to handing over power to EFSA in a very technical field is quite surprising, given its willingness to entrust considerably far-reaching decision-making, regulatory and sanctioning powers to other agencies operating in similarly technical areas of regulation, such as the European Securities and Markets Authority (ESMA).

Member States did not want to make EFSA an ‘oracle of Delphi’ spelling out the “truth” in all scientific matters. Rather they wanted to preserve the right of their national food agencies to carry out scientific studies, thus expressing their specific perception of a certain risk. One might consider that Member States fear that if EFSA is granted an extended mandate, the obliteration of local traditions led by the multinational producers of processed food might occur.

Food for thought…

Given the rise of anti-EU sentiments and populism, it may perhaps seem unlikely that EFSA’s competences would be increased in the near future. The fact that the Commission in practice frequently follows and, indeed, only under specific conditions may depart from EFSA’s advice, may raise the question of whether there is any need for an EFSA expansion at all.

At the same time, we believe that entrusting some decision-making power in a technical field to the body with the relevant expertise seems only natural from an efficiency perspective. Increasing its institutional credibility, consumer trust can also be expected to rise. An expansion of EFSA’s competences would in no way raise constitutional challenges which have not already been settled, contrary to what the Commission suggests. The EU legislature is free to make an empowered EFSA subject to strict accountability mechanisms. In fact, the FDA could even provide useful lessons for that purpose. All that remains is the necessary political will.