EU at a Crossroad: Don’t Waste the Chance for a Systemic Approach to Food Loss and Waste

The campaign against food waste that has spread across Europe and the world in the last years seems close to formal recognition by the European authorities. After the first regulatory experiments by local administrations and the first (failed) attempt to engage the European Commission in 2014 by a European Member of Parliament, the legislative interventions in France and Italy, broad public support and a resolution by the European Parliament seem to have caught the attention of the Commission and the Council. In the last year, two digital multistakeholder platforms were launched (Food Loss and Waste Platform and Refresh),a set of EU guidelines for food donation were issued, and the trilogue around an updated version of the Waste Framework Directive is about to be finalized.

As highlighted by the EU Health and Food Safety Commissioner Andriukaitis at the EU Platform on Food Losses and Food Waste, the combination of national accounting and monitoring, European guidelines for food donations, optimization of use of food in feed, promotion of better understanding, the implementation of circular economy principles, and the use of date marking, as well as the establishment of online platforms would serve as evidence of the EU’s desire to ‘fight food losses and waste at each stage of the food value chain’.

At first glance, the multiplication of forms and spaces of intervention against the waste of edible food and the intervention of the European Union in the reform of the transnational food system that has so far been left to individual legislators seem to give cause for hope. It seems to recognize that the fight against food waste cannot be concentrated at one point of the chain and cannot be limited to redistribution. Food chains cross several borders in the EU, and food losses (including post-harvest) often occur in different jurisdictions and reasons that exceed one state’s authority. Who better placed than the European Union, one might ask, to effectively coordinate a holistic approach capable of dealing with the multiple locations of food loss and food waste (from production to post-consumption), encompassing the necessary modalities of monitoring, data production, awareness raising and fostering cooperation through multinational and accessible stakeholder platforms? After all, one might argue that any actions aimed at tackling food waste and finding a remedy to the hypocrisy of the food system should be welcome. In such a reading, attacking a measure that aims to reduce food waste, especially if it involves the redistribution of food to those who do not have the economic capacity to purchase it, would seem both unconstructive and politically incorrect.

However, all that glitters is not gold, and unfortunately not all actions targeting food waste are inherently positive. The statement that the EU will fight at each stage of the food value chain must be assessed according to whether its individual elements tackle the systemic issues that produce food waste rather than treat the symptoms of the disease. In brief, and continuing the belligerent metaphor used by the Commissioner and several campaigners who have identified food waste as an enemy to be defeated, allies can decide to act together and win this battle, or they can storm around the battlefield individually and with little coordination, a situation that can easily degenerate into inefficiency and frustration. But above all, we should question who the common enemy is. Is it food loss and food waste or those who produce them? Do we target the wasters or the waste?

With the trilogue agreement about to be finalized, it is urgent to review the main measures proposed by the European Commissioner. How do they respond to citizens’ desire to drastically reduce food waste? And do they live up to the European Parliament’s call for a “coordinated policy response at EU and Member State level, in line with the respective competences, that not only takes into account policies on waste, food safety and information, but also elements of economic, fiscal, financial, research and innovation, environment, structural (agriculture and fisheries), education, social, trade, consumer protection, energy and public procurement policies”? In particular, we must ask whether the Guidelines on Food Donations that were released in October 2017 and the revised version of the Waste Framework Directive that is under discussion would be capable of creating a space for dialogue, cooperation and control among the different EU actors that can reverse the EU’s poor record in the area of food waste.

We should assess whether the new commitments to reduce food waste at the European level will fulfill the promise of Sustainable Development Goal (SDGs) 12.3 to “halve by 2030 the per capital global food waste at the retail and consumer levels and reduce food losses along production and supply chains, including post-harvest losses”. In a recent tweet, Commissioner Andriukaitis displayed his optimism by promising to jump into a dumpster full of food waste if we don’t reach our ~SDG123 target by 2030. However, the author of this paper is less certain, if not altogether pessimistic. There are at least three reasons.

Firstly, despite the apparent commitment of the Commissioner, a recently leaked version of the text of the directive reveals the recent exclusion of a mandatory target for food waste reduction in the Waste Framework Directive. Similarly, DG Health and Food Safety stated that the Commission would want to cooperate with the SDGs and other global players rather than to align with them. Under the pretext of respecting the existence of different standards among Member States, the commitment made in 2015 before the General Assembly of the United Nations is presented as a burden rather than an opportunity to trigger effective change. The SDGs have certainly been criticized and have inherent limits, yet they offer a clear and legitimate target that could be transplanted in the Directive and transform regional, national and local interventions from a matter of benevolence into an urgent obligation. Moreover, the lack of common methodologies in Europe (?) should be an additional reason to adopt binding requirements and work for their introduction, rather than serve as an excuse to shy away from binding targets.

Secondly, the desire of a coordinated effort between Brussels and States does not seem to be mirrored by the 2017 Guidelines on Food Donations. On the contrary, the document provides a grim vision of European law (in particular the 2002 General Food Law Regulation) as an obstacle to ongoing and future attempts at combining the uptake of food waste and the reduction of hunger, including the recent Italian and French legislative changes. The Guidelines categorize charities and third sector’s actors who distribute food on a regular basis (even for free) as food business operators and therefore subject to the same requirements of information, transparency and hygiene, as well as the same provisions in terms of liability and responsibility that Article 17 of the General Food Law applies to ‘traditional’ (and for profit) food operators.

Such an inflexible (?) position in the Guidelines triggers at least three considerations that must be assessed with urgency and concern: a) is a stringent system of controls and potential liabilities compatible with the reduction of food waste, as the Guidelines state, or does it merely scare businesses, charities and the third sector away? b) The Guidelines are right in stating that food donations should provide recipients with food that is equally safe, properly stored, in date and clearly labeled (because there are no second class citizens that can be fed second class food), but the cost of logistical burdens and arrangements must not be ignored; c) if less food will be distributed because of the high standards, there are only two possibilities left to Member States: they could follow the French example and introduce a sanctioning mechanism against the professional producer of food loss and waste – at all levels of the food chain under their jurisdiction – so that those who produce food losses and waste (and not the planet) will suffer the economic consequences of their business strategy; or Member States could decide to change their national regulations in the area of food health and hygiene so that they are still compatible with the Directives, but significantly redefine the regime of liabilities and responsibilities when it comes to donations made in good faith. Unless these issues are addressed, the rigid application of the EU standards would guarantee safety between food producers and paying consumers, but would hardly reduce the overall amount of food losses and waste.

Finally, the focus on distribution, the circular economy, expiration dates and multistakeholderism appears to miss the fact that food loss and waste are inherent and systemic to a conventional food system. Moreover, as discussed below, there are other areas that must be addressed and where the intervention of the EU may be crucial, but that are kept at arm-length from any conversation around food loss and waste. Of course, the Commission is clear in reminding that the area of criminal and civil sanctions is of national competence and there is nothing that can be done at the Union level, not even to set a question mark the criminalization of skip diving and the legal prosecution of gleaning. However, if the European Union was to properly answer the call of the European Parliament to deliver a coordinated and systemic response, it should go beyond the current proposals.

First of all, EU bodies should agree on the introduction of clear targets for food loss and waste reduction in the Waste Framework Directive and reconsider the EU General Food Law. But that is not all. The EU is about to approve the new Common Agricultural Policy, it produced European standards for green public procurement, it oversees and controls the internal mobility of food and the possibility of stockpiling, it is in charge of assessing anticompetitive conducts (isn’t the fact of not paying for the cost of food waste and free-riding on the environment and people’s lives a form of unfair competitive advantage), and – more importantly – it curtails States’ possibilities to adopt expansionary fiscal policies that may be introduced to increase the purchasing power of the most marginalized European citizens and decrease their dependence on donations and charity.

There is little doubt that the European Union and its Member States must do more than scratch the surface of the problem. This is required by its citizens, but also part of the obligations contained in the Lisbon Treaty, in the international conventions recognizing the fundamental rights of every human being, and in the Paris Agreement on Climate. The EU could lead the way with a clear recognition of mandatory targets in the revision of the Waste Framework Directive (or even set more ambitious ones). The road to zero food waste is certainly steep and full of obstacles, but the European Union should make sure to take the right path and wear the most appropriate shoes. If we find ourselves unable to halve food waste by 2030, then the entertainment value of seeing Commissioner Andriukaitis dive into a bin full of food waste would not make up for the missed opportunity.

Dr Tomaso Ferrando, University of Bristol Law School 

Twitter @ferrandotom

Picture @Floriane Charles: Commissioner Andriukaitis promised to jump into a dumpster full of food waste if we don’t reach our SDG12.3 target by 2030.