Towards the 2nd half of this year, the European Commission will consult the general public and stakeholders in the context of its ongoing attempts to find out whether the Nutrition and Health Claims Regulation (NHCR) has proven to be “fit for purpose” with regard to “nutrient profiles” and what is routinely described as “health claims on plants and their preparations used in foods.”
Although the consultation and evaluation focus on just two aspects of the NHCR, the fitness check should also serve as a moment of reflection to reconsider the obscure premises on which the NHCR was erected. These underlying premises served the ulterior motive to permanently and radically disable all members of the food industry to communicate with their European consumers. This goal was accomplished by the sleight of hand usurpation of the legal position and inherent fundamental rights of each individual business operator, including those situated in jurisdictions outside the realm of the European Union.
One doesn’t need a public consultation to establish that the consequences of the Regulation’s effects that are visible to the naked eye are bad enough. Millions of consumers are short-changed when it comes to truthful information regarding the potential and traditional health effects of food-products. This type of – truthful – information fell by the wayside, because the NHCR’s proponents enshrined in their Regulation the disproportionally strict and inappropriate Standard of Scientific Truth. They never bothered to assess or even consider the risk to human health posed by the total elimination of information concerning potential and traditional health effects of foods.
But the consequences of the Regulation’s unseen effects are even worse, because they concern the covert abrogation of some of our fundamental freedoms, namely the fundamental freedom of speech and the principle of presumption of innocence.
The presumption of Innocence
In November 2013, the European Commission launched a proposal for a Directive “on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.” The presumption of innocence is a fundamental principle of law. It is also a fundamental human right, laid down in Article 6.2 of the European Convention on Human Rights (“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”) and in Article 48 of the EU Charter of Fundamental Rights (“Everyone who has been charged shall be presumed innocent until proved guilty according to law.)
In Recital 14 of its “strengthening” proposal, the Commission explains that the European Court of Human Rights (ECtHR) has held that Article 6(2) of the Convention encompasses three key requirements:
* the right not to be publicly presented as convicted by public authorities before the final judgment,
* the fact that the burden of proof is on prosecution and
* that any reasonable doubts on guilt should benefit the accused and the right of the accused to be informed of the accusation.”
The Commission adds that the ECtHR “also recognises the existence of a clear link between the presumption of innocence and other fair trial rights, in the sense that when such rights are breached, the presumption of innocence is inevitably also at stake: the right not to incriminate one-self, the right not to cooperate and the right to silence and the right to liberty (and not to be placed in retrial detention).”
Article 6 of the Convention does not mention or allude to any restrictions which authorities may apply to curtail or abrogate the presumption of innocence. The principle does not depend on any duties or responsibilities on the part of the defendant. The principle is absolute and may be derogated only “[i]n time of war or other public emergency threatening the life of the nation,” and such only “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”
Liberty and the fundamental freedoms
In its Presumption of Innocence proposal, the Commission unconditionally agrees with the ECtHR that there exists a “clear link” between the right to liberty and the presumption of innocence. Therefore, the curtailment or prohibition of fundamental freedoms cannot take place unless a prohibitee has been proven guilty in a judgment reached according to law. The judgment must be final, i.e. not open to appeal, challenge or revocation. The presumption of innocence is fractured when liberties are restricted or annulled before guilt has been established beyond any reasonable doubt in a fair trial.
Still, although the presumption of innocence principle is absolute, except in times of war and public emergencies threatening the life of the nation, the Convention provides that the allied fundamental freedoms of thought, conscience, religion, expression, assembly and association may be subjected to limitations “as are prescribed by law and are necessary in a democratic society.” The limitations must be proportionate to interests of public safety, national security, territorial integrity, the prevention of disorder or crime, the protection of public order, health or morals, the rights and freedoms of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary.
The requirement that the limitations must be prescribed by law implies that the legal basis, subject, scope, field of application, necessity and proportionality of such restrictive laws must be precisely defined and substantiated by unequivocal case-related evidence. Such laws shall go no further than “strictly required by the exigencies of the situation” and they should not survive the situation. According to the ECtHR a mere “legitimate aim” forms insufficient ground for limiting the exercise of a fundamental freedom, no matter how desirable that aim may be.
The other unpassable requirement, namely that the restriction on freedom of expression must be “necessary in a democratic society,” was interpreted by the Court as implying the objective existence of “a pressing social need.” In this connection, the Court stated:
“Where there has been an interference in the exercise of the rights and freedoms [of expression] guaranteed in paragraph 1 of Article 10 [of the Convention], the supervision [by the Court] must be strict, because of the importance of the rights in question; the importance of these rights has been stressed by the Court many times. The necessity for restricting them must be convincingly established.”
Hate Speech
In a Factsheet about “Hate Speech,” [i] the Court explains that “freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”
Such a legitimate aim, so continues the Court, concerns for example the protection of “[t]olerance and respect for the equal dignity of all human beings [which] constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.”
Here are a few examples of what the Court saw as “hatred based on intolerance”:
– authoring and publishing a series of articles portraying the Jews as the source of evil in Russia, calling for their exclusion from social life and accusing this entire ethnic group of plotting a conspiracy against the Russian people and ascribing fascist ideology to the Jewish leadership. [ii]
– denying crimes against humanity, racial defamation of Jews and of incitement to hatred of them. Disputing the existence of the holocaust for the purpose of rehabilitating the National Socialist regime and accusing its victims of falsifying history. [iii]
– displaying in one’s window a poster supplied by the British National Party, representing the Twin Towers in flame and accompanied by the words “Islam out of Britain – Protect the British People.” [iv]
Punishing Racism and Xenophia
According to the Council of Europe in a 2008 Frameworks Decision, “[r]acism and xenophobia are direct violations of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles upon which the European Union is founded and which are common to the Member States.” [v] In an attempt to “harmonize” the penalizing of these violations, the Council defined “a common criminal-law approach in the European Union […] in order to ensure that the same behaviour constitutes an offence in all Member States and that effective, proportionate and dissuasive penalties are provided for natural and legal persons having committed or being liable for such offences.” [vi]
In Article 3.2 of the Frameworks Decision, the Council determined that a natural person found guilty of hate speech “is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.” Article 6(1) provides that when a legal entity (company, association, political party, etc.) is found guilty of hate speech, each Member State shall take the necessary measures to ensure that such a legal person “is punishable by effective, proportionate and dissuasive penalties, which shall include criminal or non-criminal fines and may include other penalties, such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of commercial activities;
(c) placing under judicial supervision;
(d) a judicial winding-up order.”
Prohibiting Truthful Health Speech
This should remind us of Article 10.1 of the Nutrition and Health Claims Regulation, which provides that “[h]ealth claims shall be prohibited unless they comply with the general requirements in Chapter II and the specific requirements in this Chapter and are authorised in accordance with this Regulation and included in the lists of authorised claims provided for in Articles 13 and 14.” Article 1.2 of the NHCR provides that “[t]his Regulation shall apply to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods to be delivered as such to the final consumer.” The combination of prohibition & authorization laid down in Article 10.1 in the field of commercial communication means that the NHCR sanctions and prohibits all forms of commercial, i.e. “unauthorized,” expression which concerns a relationship between a food and human health.
The NHCR is the sanction. It is the final judgment. It isthe penalty, since it permanently disqualifies all food business operators from the practice of the commercial activity of informing consumers about the health effects of their products. This commercial activity is placed under permanent judicial/legal supervision. The judicial supervisor is the European legislature, which usurped this activity by prohibiting commercial operators from practising it and by replacing it by a Prohibition & Authorization System that sparingly produces a legalized health claim for use in, not as, commercial communication.
The sanction, i.e. the NHCR, concerns all health claimsex ante their evaluation. It indiscriminately prohibits misleading and truthful health claims. The European Commission is quite conscious of the unjustness of such a sanction. In 2000, it filed a complaint at the European Court of Justice to stop Austria from applying an NHCR-type “Verbotsystem mit Erlaubnisvorbehalt.” [vii] In that complaint, the Commission argued, while referring to the relevant case law of the Court, that such a general prohibition “is not justified as this also includes truthful declarations that are not suitable to mislead consumers.” [viii] While the case was going on, the Commission drafted the European version of Austria’s “Verbotsystem mit Erlaubnisvorbehalt” system, a Regulation that would do precisely what the Commission considered “not justified”: prohibit truthful health speech.
In and of itself, this forms a clear demonstration of the fact that the EU legislators’ principle aim was not the establishment of a system to prohibit misleading health speech. The principle aim and ulterior motive were the usurpation of the position and rights of individual food business operators. For this plan to succeed, the European legislature had to present all food business operators as convicted by public authorities, as guilty because of what they are, not of what they do or did. By turning the presumption of innocence into a presumption of guilt, no individual food business operator had to be informed of an accusation of having used a misleading health claim. No specific accusations had to be filed. Instead, all business operators were presented as guilty. On the basis of no more than vague allegations of guilt, they were convicted. All of them.
Otherwise, the NHCR would collapse
The NHCR is a perfect example of how the presumption of guilt can serve as the false and unjust premise that “justifies” an honorable piece of EU’s food law. When all health claims are presented as misleading unless authorized after scientific, political, ideological and legal inspection, all food business operators making them must have been guilty unless proven innocent. By skipping a proper accusation and fair trial, the reasonable benefits of doubt no longer benefit the accused. The burden of proof of innocence is on the prohibitee. It is no longer on the prosecuting prohibitor to prove guilt, in casu to prove, case-by-case, the misleadingness of a health claim. To the contrary, when the prohibitee attempts to prove his innocence, he must do so beyond any doubt. The health speech he proposes for public use shall be evaluated by applying a scientific assessment of the highest possible standard.
Still, even if a health claim proposed by an “applicant” passes the scientific and political assessments, the applicant does not regain his legal position and inherent rights. He remains guilty, because the health claim he “applied for” will never become his private property. By authorizing the claim, the European Union takes possession of it and turns it into public property. The applicant’s initial, pre-NHCR, position and rights remain abrogated, since he may only use the State-authorized claim in, not as, his commercial communication. Private ownership of health speech is lost forever. Food business operators will never again be the source of health speech. They must remain guilty forever and a day, so that their products shall serve as conduits for Union-authorized health speech. Should they be allowed to prove their innocence, the whole NHCR would collapse.
Scientifically justified claims
Was the life of the Union threatened because consumers weren’t making the dietary choices promulgated by officialdom? Was organized food industry waging a misleading information war against the European populations? Was it trying to resurrect a Nazi-type regime by all criminal means ? What was going on? In the introduction of the NHCR’s Fitness Check Roadmap the Commission sheds light on what it perceived as the clear and present danger that made the NHCR necessary: “While certain food business operators invested in research and development to substantiate the nutrition and health claims they made on their foods, others used nutrition and health claims as a marketing tool without ensuring that their claims were scientifically justified. This situation led to unfair competition and jeopardized the trust that consumers could have in scientifically justified claims.”
Lack of scientific justification? How did the European legislature establish a lack of scientific justificationbefore asking EFSA to develop and formulate a standard for “scientific justification” and before having asked EFSA to inspect the specific health claims suspected of lacking such justification. In the absence of a scientific standard, how could the legislature determine which claims were sub-standard and whether such claims were genuinely misleading per the criteria set in the European Court of Justice’s case law? And, lacking a standard for “scientific justification” and consumers’ understanding of such a standard, how could the legislature have established which claims consumers trusted as scientifically justified and which claims they distrusted.
According to the Commission, certain food business operators invested in research and development. Is there a pre-NHCR list of these operators ? What research? Is there a pre-NHCR report that exhaustively describes the state of industrial research and development in the field of nutrition and health ? What development ? How did the European legislature determine whether the research was up to EFSA’s or other authoritative bodies’ standards before having such standards? What was the standard for “development.” And, why make the insidious association between “marketing tools” and unsubstantiated claims, implying that justified claims aren’t marketing tools and that marketing tools are by definition unsubstantiated.
Health claims cannot pose a risk to health
In Article 1 of the aforementioned Frameworks Decision, the European Council defines hate speech as intentional conduct that publicly incites to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin. When the prohibition of such abject conduct doesn’t warrant the abolition of the principles of the presumption of innocence, due process, fair trial and establishment of facts beyond any doubt, what on earth made it necessary to indiscriminately exclude the group defined as “food business operators” from these principles and act as if all the extensive and detailed pre-NHCR European and national laws and case law that prohibited the use of misleading information concerning health speech did not exist.
Could misleading health speech be that dangerous ? In the abovementioned case that was brought before the European Court of Justice by the European Commission to obtain from the Court a declaration that would declare null and void Austria’s general prohibition of health-related information on the labelling of foodstuffs for general consumption and subjecting the display of such information to a prior authorisation procedure, [ix] both the Advocate General and the Court assessed the potential risk posed by misleading health speech.
In its Judgment, the Court held that, since the EU’s Food Labelling regulation [x] already “prohibits […] misleading statements relating to health, it is clear that the protection of public health, assuming that risks relating thereto are nevertheless conceivable in a particular situation, cannot justify a system as restrictive of the free movement of goods as that which results from a procedure of prior authorisation for all healthrelated information on the labelling of foodstuffs, including those which are manufactured lawfully in other Member States and are in free circulation.” Therefore, “[l]ess restrictive measures exist for the prevention of such residual risks to health, such as, for example, an obligation on the manufacturer or distributor of the product in question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned on the labelling […]. [xi] (emphasis added)
Fraud …? Public health …? Unfair competition …?
In this Commission v Austria case, the Court also held that inasmuch as Austria’s “Verbotsystem mit Erlaubnisvorbehalt” could be classified as a national non-harmonized measure that, going beyond the well established harmonized – European – measures that prohibit misleading health speech, aimed at the prevention of fraud, the protection of public health and/or the prevention of unfair competition in Austria, the system still went “beyond what is necessary to attain the objective pursued by that national legislation, and therefore does not comply with the principle of proportionality.” [xii] [xiii]
When, according to EU’s Court of Justice, the risk to health posed by misleading health speech on foods is residual, meaning: negligible, and when a national Prohibition & Authorization measure is disqualified as overreaching the objectives of preventing fraud, protecting public health and preventing unfair competition, the NHCR must be qualified as equally disproportionate. And the abrogation of the fundamental freedom of speech and the presumption of innocence principle and related fair trial rights on which the NHCR rests must be qualified as doubly disproportionate.
The NHCR’s other stated purpose is the famous level playing field that requires the removal of “differences between national provisions relating to such [nutrition and health] claims [that] may impede the free movement of foods and create unequal conditions of competition.” What differences could have existed when misleading health speech was expressly prohibited by harmonized European regulations? In the Court’s pre-NHCR case law, we find ample directions and criteria that can and could have been used to distinguish misleading from correct information. In various European regulations, the EU legislature had laid down clear legal definitions of the terms “misleading” and “fraud.” How could national authorities still have had different non-harmonized provisions relating to nutrition and/or health claims?
The question is rhetoric. There were no differences. And even if there would have been differences between some non-harmonized national provisions, the impact on the functioning of the internal market would have been residual, meaning: negligible. There never was and there still is no legitimate aim prescribed by law and necessary in our democratic Union that can serve as a justification for the NHCR.
A fitness check is overdue
The natural and legal persons accused of hate speech and xenophobia, of inciting violence and hatred against groups defined by reference to race, colour, religion, descent or national or ethnic origin, are still presumed innocent until proved guilty according to law. They enjoy the fair trial rights related to that presumption. The Courts must establish and weigh all the facts and any reasonable doubts on guilt should benefit the accused.
The question why the European legislature indiscriminately treats food business operators as trash that is inferior to hate speakers and xenophobics can only be answered in the context of examining the ideology, philosophy, psychology and political thought that has erupted in the past 2 centuries in the form of a deep seated and almost existential “racist”-type hatred against the group defined by reference to the legitimate activity of operating a business.
The presumption of innocence implies the right not to incriminate oneself. Stripped of that presumption, food business operators are led to believe that they can obtain a “not guilty” by following the procedures laid down in the very Regulation designed to irrevocably accomplish the stripping. By following these procedures, those who seek a “not guilty” inevitably incriminate themselves as “nocent” of an offence they did not commit. Still, an authorization of a health claim does not produce innocence. The guilt must remain, or else the NHCR would collapse. This is the pernicious yet unseen aspect of the NHCR. It deserves serious attention now that a fitness check is on the table.
Bert Schwitters
[i] Factsheet – Hate Speech – ECtHR – November 2015
[ii] ECtHR – Application no. 35222/04 by Pavel IVANOV against Russia.
[iii] ECtHR – Garaudy v. France – Application no. 65831/01.
[iv] ECtHR – Application no. 23131/03 by Mark Anthony Norwood against the United Kingdom.
[v] Recital 1 of Council Frameworks Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.
[vi] Recital 5 of Council Frameworks Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.
[vii] Case C-221/00; Commission of the European Communities v Republic of Austria.
[viii]Paragraph 14 in the Commission’s Complaint filed in Case 221/00.
[ix] Case C-221/00; Commission of the European Communities v Republic of Austria.
[x] The Court referred to Article 2(1) of Directive 79/112. On 20 March 2000, this Directive was replaced by Regulation 2000/13/EC. On 25 October 2011, Regulation 2000/13/EC and other related regulations were replaced by the Food Information Regulation (EU) No 1169/2011. The measure that concerns the prohibition of misleading statements survived the replacements in tact and is still in force as Article 7 in Regulation 1169/2011.
[xi] Case C-221/00; Judgment of the Court of 23 January 2003; paragraphs 48 and 49.
[xii] Case C-221/00; Judgment of the Court of 23 January 2003; paragraph 54.
[xiii]The provision that Member States may adopt national measures that go beyond the harmonized measures concerning the prohition of misleading food information was first introduced in 1979 in Directive 79/112 and is still in force as Article 39 of the current Food Information Regulation 1169/2011/EU.
