Dis-moi ce que tu manges, je te dirai ce que tu es. Brillat-Savarin’s words describe how what we eat and how we prepare it forms part of our identity. The Bolognese tortellini, the Swabian Spätzle and the Polish Łazanki are very much different from one another. What they have in common, however, is that they do not represent merely a dish, but an essential part of regional heritages. Under the nationalist slogan of ‘food sovereignty’, the Italian government presents itself as the protector of Italian culinary identity with a ban on cultivated meat. From an EU law perspective, the ban is a largely ineffective ‘talk show law’. Nevertheless, it puts on the table the politics underlying food regulation and the room left for national differentiation within harmonised areas of the internal market.
Increasingly globalised markets for food and technological progress allow us to taste not only local flavours but also those of the furthest areas of the world, affordably and safely. The plurality of food cultures, however, is often perceived as under existential threat due to the industry’s preference to rely on uniform standards that allow market access.
The interplay between differentiation and harmonisation is also reflected in EU law. On the one hand, EU law recognises the value of protecting regional culinary specialities, for example by introducing geographical indications. On the other hand, the EU’s internal market relies on harmonised criteria for food safety to ensure free movement. EU food law is based on the premise that safe products can be freely marketed throughout the internal market and what is safe is determined by uniform, evidence-based criteria.
The evidence-based approach underlying EU internal market policy, as vividly demonstrated in GMO-related debates, does not preclude politicisation. Food, in particular, provides ample fodder for right-wing identity politics. This is exemplified by the nationalist Italian Government led by Giorgia Meloni, who infamously complained about Brussels technocrats depriving Italians of their right to choose the length of their zucchine di mare (sic). Right after entering office, the Meloni Government declared its intention to take back control of food policy and introduced ‘food sovereignty’ as a political slogan, now adorning what was previously the mundane Ministry of Agriculture. The thrust of the rhetoric is clear: the nation state is being promoted as the patron saint of internal, regional cultural plurality against the perceived threat of homogeneity posed by Europeanisation and technologisation. Hence, the new ‘Ministry of Food Sovereignty’, headed by Meloni’s brother-in-law Francesco Lollobrigida, has followed the call for help uttered by Italian agricultural and food producers and put its name to action. The threat supposedly requiring urgent action comes, as it did in the case of GMOs, from the laboratory: cultivated meat.
The Ministry’s response is an outright prohibition. In the Draft Bill n. 651, approved by the Senate on 19 July 2023, the use, sale, import, export or distribution of food produced from cell cultures is prohibited on the grounds of health protection with reference to the precautionary principle. The draft, as approved by the Senate, will soon be voted in the Chamber of Deputies.
A punch in a fight where the opponent has not shown up yet
What is alternatively referred to as ‘cultivated’, ‘cell-based’ or ‘cultured’ meat describes meat derived from cell cultures grown not as a living animal on a farm but behind the closed doors of a laboratory. This innovation carries significant potential for the future. Not only could it contribute to animal welfare, but cultivated meat could also have positive implications for climate protection, given that animal farming is a major source of greenhouse gas emissions.
Ten years ago, the first cultivated burger was cooked in London. Since then, important steps towards commercialisation have been taken in Singapore, U.S., Israel and Switzerland. Through the REACT-EU and Horizon programmes, the EU has granted €9,000,000 to research projects. In quantitative terms, this still falls well short of the €60,000,000 investment made by the Dutch Government.
Despite these efforts, until now, cultivated meat has not reached the shelves of European supermarkets, and comparative studies examining its consistency and taste remain rare. Whether and when cultivated meat will end up on European tables is anything but foreseeable. If it becomes market-ready in the future, it will fall within the scope of the Novel Foods Regulation (NFR). Read in conjunction with the General Food Law (GFL), the NFR renders the free circulation of novel foods conditional upon the Commission’s authorisation. Such an authorisation follows a scientific opinion of the European Food Safety Authority (EFSA) and a comitology procedure. Comitology is precisely the forum that Union law envisages for Member States’ participation within authorization procedures. While EFSA has recently increased its attention to cultivated meat, no application for market authorisation has been submitted so far. Before the authorisation is granted, placing cultivated meat on the market is prohibited anyway. The Italian ban, for now, remains a punch in a fight where the opponent has not shown up yet.
Differentiation instead of harmonisation?
The crux of the matter therefore lies in Italy’s prospects of maintaining such a ban even after a future authorisation of cultivated meat by the Commission. A constitutional concession to differentiation is enshrined in Article 114(4) and (5) TFEU, allowing Member States to opt-out from harmonisation measures. In particular, Article 114(4) TFEU applies to national measures already in place when the harmonising measure is adopted and when the Member State seeks to maintain its national measure. Whilst it can invoke Article 114(5) TFEU if it intends to adopt restrictive measures where harmonisation is already in place. Opting-out comes with considerable limitations under both alternatives; under the latter more stringent than under the former.
Even assuming that an opt-out from a future Commission implementing act amending the Union list of authorised novel foods would be feasible, such an attempt is in all likelihood doomed to fail. Article 114(4) TFEU allows only national measures serving the protection of the interests laid down in Article 36 TFEU as well as the protection of the environment or working environment. The only possibility for the Italian ban to stand any chance of survival is thus scientific evidence demonstrating the alleged health risks posed by cultivated meat. The Commission and the Court of Justice have set a high threshold for the Member States to prove the legality of their opt-outs. The case-law of the Court shows that ‘[t]he role that scientific evidence plays in the derogation procedure is crucial’: national authorities will have to provide scientific evidence that will be subject to the scrutiny of the Commission. After all, ranging back to Sandoz and Reinheitsgebot, in its free movement of goods jurisprudence, the Court has repeatedly rejected mere insubstantial assumptions.
Although the precautionary principle, invoked in the Italian draft bill, may broaden the regulator’s discretion, it cannot give carte blanche for regulatory arbitrariness. The evidence-based imperative of EU law is upheld even under circumstances of uncertainty: the Member State must prove that the risk is not merely hypothetical and conduct risk assessment where and to the extent possible. Only where the Member State provides sufficient evidence of a risk to human health, the national measure can be justified under EU law.
The Italian government would have to be able to provide reasons why the authorised food should not be or have been regarded as safe. To do so, it would have to counteract the assessment performed by EFSA in the course of the authorisation procedure by citing aspects the Authority failed to (sufficiently) consider or that only came to light after the scientific opinion was issued – arguably not the easiest task.
Differentiation within harmonisation?
Where the requirements for an opt-out are not met by the Member State, it remains in principle bound by the harmonising measure. Within the framework of the GFL, the Member States are given responsibility for enforcement, but their discretion is limited in particular by uniform food safety requirements. Even seemingly internal measures restricting the marketing of the food in question have to comply with the principles of EU food law, in particular those of risk assessment and the precautionary principle.
As a last resort, Italy could adopt an emergency measure once the food is authorised. This would follow the infamous example of some Member States’ appeal to so-called safeguard clauses to prevent authorised GMOs from accessing their markets and meadows. As the NFR does not contain specific rules for safeguard measures, the GFL applies in this respect. Under the GFL, responding to emergencies is primarily a competence of the Commission and national powers are limited to the adoption of interim measures. Although the respective clauses are precautionary in nature, they maintain the evidence-based character of decision-making. That is, the alleged emergency must be scientifically substantiated. Ultimately, any interim measure will trigger a comitology procedure leading to a Commission decision whether or (more likely) not to adopt an emergency measure. Once the Commission has taken its decision, there is no more room for manoeuvre for the Member States.
The politics of food law
As cultivated meat approaches European markets, the debate is likely to keep us busy in the future. It touches on two central issues of internal market policy. First, harmonisation inherently requires a certain degree of uniformity. Nevertheless, local peculiarities are worth protecting even in a harmonised market. Second, internal market law follows an evidence-based regulatory approach. Adhering to the guiding voice of science, though, does not affect the necessity to consider and respond to legitimate fears and concerns, provided that this happens within the existing procedural framework.
The Italian ban on cultivated meat makes little legal sense, if any, as it cannot produce any effect until a product is actually authorised at EU level. If and when it is authorised, upholding the ban would be an almost-impossible-to-win battle. The ban is an act of ‘hyper-politics’, not a constructive contribution to the dialogue on a sustainable future.
Concerns and fears about technological innovation are being misused to endorse the nationalist narrative of the State as a shield against technological development and globalisation of food markets. If anything constructive can be gleaned from the proposed Italian law, it is the reminder of the need, in all scientific correctness, not to forget other legitimate factors and to reflect on the balance to be struck between harmonisation and differentiation. In times of a pan-European shift to the right, it is not only about legal containment of fragmentation along national lines. It is also about finding a convincing political response to the nationalist rhetoric of ‘food sovereignty’.