Nature, substance and quality

Perhaps capitalising on public interest in sports, engendered by the Greek Olympics, the omnipotent EU is currently consulting on a new draft directive aimed at regulating "sports foods", the consultation on which is due to end this week.

Needless to say though, the EU could not possibly be content with such a simple, easy to understand term. The name of the proposed law is "Commission Directive on Foods Intended to Meet the Expenditure of Intense Muscular Effort (Sports Foods)".

Aimed, as always, at creating a "high level of consumer protection", what this draft directive actually does is demonstrate in a particularly vivid way that we have a mad legislative machine, totally out of control. It also illustrates a conflict of philosophy on how to achieve effective consumer protection, which makes the draft directive an ideal subject for this Blog.

The idea of the draft is, of course, admirable, in that it seeks to ensure, in its own terms "that foods that are marketed on the basis that they address nutritional requirements associated with the expenditure of intense muscular effort are safe for use, are labelled clearly and adequately and provide guidance on healthy consumption".

The result, however, is a dire, unreadable 11 pages of legislation, to add to the many thousands of legislation already produced, comprising excruciating technical detail of what precisely can and cannot go into foods for which claims are made in relation to sporting activity.

No doubt its advocates – not least the worthies on the EU"s Scientific Committee on Food – who will have spent many thousands of hours discussing and formulating the standards, believe that they have done a good job but the central problem is that a new law is unnecessary. Furthermore, it does not add to consumer protection, as we have had a perfectly adequate law in place since 1875.

The law in question was the Sale of Food Act 1875, which established for the first time a particular offences in respect of sale to the prejudice of the purchaser a food not of the nature, substance or quality demanded. This was re-enacted in the Food & Drugs Act 1955 and again in the Food Act 1974 and currently survives unchanged in current UK food legislation. Furthermore, similar – and in some cases identical – law applies in most if not all EU member states.

Clearly, if a manufacturer makes specific claims of a food, in terms of it being "Intended to Meet the Expenditure of Intense Muscular Effort", and it does not conform with what would be considered reasonable expectations for such a food, then an offence would be committed.

The advantage of this approach, apart from enabling law books to be kept slim, it that the provision applies for all time and in all circumstances, dealing with current formulations but also allowing for changes in science and knowledge, without having to produce new legislation. In other words, it is a highly responsive, economic and effective way of producing law – and ultimately highly flexible.

However, one can see why it would be unpopular with the EU. Such simple economy would not keep the thousands of scientists, advisors, lobbyists and legislators in work, and would deny the EU a role in demonstrating how hard its was working to provide its "high level of consumer protection".

So, for the sake of the EU ambitions, we are to be saddled with this law, and thousands of others like it when, in fact, our own legislators were making perfectly adequate laws before even many EU member states were even countries. That is the measure of the parlous state in which we find ourselves.