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Enforcing compliance with food regulation: Modalities in the relationship between public
enforcement agencies and private parties
Tetty Havinga and Frans van Waarden
Draft paper prepared for the ECPR General Conference, Science Po, Bordeaux 4-7 September
2013
Panel Public and Private Food Governance: Politics of Labelling and Food Certification
Standards in the section Food Governance.
Dr. Tetty Havinga Institute for the Sociology of Law, Radboud University Nijmegen PO Box 9049, NL 6500 KK Nijmegen, Netherlands T.Havinga@jur.ru.nl, T +31-24-3615915
Prof. Frans van Waarden University College, Utrecht University F.vanWaarden@uu.nl
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Enforcing compliance with food regulation Modalities in the relationship between public enforcement agencies and private parties
Tetty Havinga and Frans van Waarden
Abstract
The past decades have shown two important transitions in food governance in Europe. First, the
increased role of private actors in global food safety regulation and the development of retail
driven private food safety regulation from the 1990s onwards. Second, the increased role of the
European Union and transnational governmental organisations. These transitions pose
challenges for national food safety authorities. In the Netherlands, the public food authority is
also confronted with limited resources available for enforcement. Food governance is
characterized by multiple regulatory arrangements involving multiple public and private actors
at multiple levels. The past decade we observe new emerging relationships between public
enforcement authorities and private parties. In this paper we will discuss different modalities of
cooperation and collaboration between public food authorities and private parties such as food
firms, certification and auditing bodies and industry associations. We will analyse various forms
of collaboration of the Netherlands Food and Consumer Product Safety Authority (NVWA) with
food businesses and certification industry. This includes public recognition of private norms and
control systems, inclusion of public prescriptions in private food schemes and controls, and
agreements between the public authority and private firms or sectors of industry regulating
reciprocal obligations with respect to compliance and controlling compliance.
1. Globalisation, food scandals and developments in food regulation
In 2013 we were startled by the news that horsemeat was being sold as beef in meat products
like sausages and lasagna. Other recent food scandals involved eggs that were inaccurately
claimed to be organically produced and frozen fish and seafood that were made heavier by
adding water. Some revelations are unfounded, such as the claim that Spanish firms had used
the meat of abandoned cats and dogs in the production of animal feed and meatball. More
serious, however, are food safety incidents where human health is at risk. Well-known incidents
in recent decades include the BSE crisis, the EHEC bacteria, melamine in Chinese milk and
several contaminations with dioxin and aflatoxin. Media reports on these incidents result in
consumer concern about adulteration, food safety and the credibility of both the regulatory
regime and food business operators.
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Food adulteration which can sometimes create human health risks is an age-old phenomenon.
The Romans suffered from water added to wine and the Bavarians from water added to their
beer. The Dutch added water to milk and cheese, and margarine to more expensive butter. The
temptation to add cheap ingredients to more expensive products and to profit from the
adulteration is an age old impulse. And time and again, creative ways to cheat the consumer
have been discovered, with the potential to create not just larger profit margins, but also
greater human health risks.
In response to these adulteration, authorities have attempted to regulate product safety,
quality, and honest trade. So the Romans, the Bavarians and the Dutch created laws against
adulteration such as the 1516 Bavarians Beer Purity Law (‘Reinheitsgebot für Bier). Originally,
food was often regulated by religious laws, e.g. of the Jews and Muslims. Religious authorities
had powerful religious instruments at their disposal to enforce such food standards. Eventually
also secular organizations of civil society got involved. In the medieval period European guilds
mobilized to govern and regulate the safety and quality of food and agricultural products (Hart
1952). Such self-organized and self-regulated private associations disseminated, monitored, and
enforced standards for specific areas of trade and manufacturing, including the oversight of
food safety and quality in order ‘to protect consumers and traders from food products risks and
unsafe commercial practices.’ (Braudel 1982, Carruth 2006, Van Waarden 2006). Public
oversight of this policy sphere ‘blossomed late’. Nevertheless, between the fourteenth and
fifteenth century, regulation by guilds was gradually substituted and complemented by local
ordinances and state laws as the scale and geographies of commerce expanded (Scheuplein
2009). Food scandals fueled such public intervention. As indicated, adulteration of wine had
already induced the Romans to enact quality standards, while beer adulteration led to the
Bavarian Reinheitsgebot for beer.
By the end of the eighteenth century, rampant adulteration of food stuffs by the newly constituted food industry led to consumer demands for increased public oversight. The increasing geographical distance between food production and food consumption provided opportunities for adulteration and the erosion of trust in the food chain. Governments responded with general nationwide legislation prohibiting adulteration, attaching penalties to violations and establishing public enforcement agencies. (Hart 1952, Lyon 1998:744, Scheuplein
1999).1 From here, the nation-state assumed a monopoly over food safety and quality regulation. Thus the Dutch dairy scandals of the early 20th century led to statutory minimum quality standards for dairy products. Yet guild-traditions persisted as well. Enforcement and oversight were delegated to butter- and cheese-control stations run by private trade associations. In the US, John Sinclair’s 1906 widely read novel about the shocking situation in the meat industry ‘The Jungle’, led to the creation of the US Food and Drug Administration FDA.
1 France passed its first general food law in 1851; England passed the Adulteration of Food and Drink Act
in 1860 (see Paulus 1974); the German Empire passed its first general food law in 1879; the United States passed the Pure Foods and Drugs Act in 1906 (see Barton Hutt 1984) and the Netherlands Warenwet was passed in 1919.
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The last decades have seen a growing public concern about food. Better informed and critical
and assertive consumers expect their government to secure safe and healthy food and
protection against all risks. We could speak of a revolution of rising expectations: as food
becomes safer and as knowledge about food risks increases, consumers expect a maximum level
of food safety. Information about potential risks and incidents travels fast around the world
through mass media, social media and internet.
Paradoxically, governments are on the one hand confronted with higher expectations and
demands regarding the safety, quality, and reliability of food product on markets. Yet on the
other hand, the powers of national governments to protect citizens have decreased because of
the globalization of food chains, invisibility of risks and political pressure to reorganize and slim
down inspection organizations. The high expectations for public food authorities and their
limited possibilities to be in full control lead to the need for public actors to rely also on private
food regulation and inspection. Can such public regulatory agencies rely on private actors? The
answer depends on the availability of private controls and on the reliability of private controls.
2. Various modalities of food regulation: public, private, hybrid
In the context of the outlined developments new forms of food governance have emerged,
notably new European Union food law, private food standards, corporate social responsibility
initiatives, and transnational regulation. The current landscape of food governance is rather
crowded and contains a growing diversity of regulatory arrangements: public, private and
hybrid. Actors involved in food regulation can be characterized by their position in food
production and trade. We distinguish four main types (Van Waarden 2011; Havinga & Van
Waarden 2013): First party, second party, third party and fourth party regulation.
1. First party regulation is self regulation of an organization. Most organizations have some
internal quality norms and quality control. All food businesses have an internal food quality
control system. These systems vary strongly in comprehensiveness and structure, from the
company-specific food safety management system (integrated into the quality management
system) of a multinational food manufacturer to the Dutch industry guide to good hygienic
practice for gas stations. One of the main drivers for first party regulations is the commercial
need to protect the company’s reputation. Food safety incidents may damage the firm’s
reputation and cause considerable loss. However, the establishment of internal food safety
management systems is not completely voluntary. All food business operators in the
European Union have to ‘put in place, implement and maintain a permanent procedure
based on Hazard Analysis and Critical Control Point (HACCP) principles’2. So these food
2 Article 5 of Regulation (EC) No 852/2004 of the European Parliament and of the Council
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safety management systems are partly a form of enforced self-regulation (Braithwaite
1982).
2. Second party regulation involves product and process norms and controls imposed by a
customer on the business partner. In particular international supermarket chains are
important second party regulators. Since the 1990s private retail standards have expanded
dramatically. Food retailers joined forces to harmonize supplier standards. Regulation of
food safety by retailers using quasi legislation as an instrument to force trade partners to
take food safety measures, evolved from one supermarket regulating the own supply chain
to regulation of the united supermarkets, monitored by independent certification and
inspection organizations. National private certification schemes have crossed borders and
became global or transnational. Currently dominant transnational retail-driven standards
are British Retail Consortium (BRC), International Featured Standard Food (IFS), Safe Quality
Food (SQF) and GlobalGap (Fuchs cs 2011; Van der Kloet 2011). Although second party
regulation imposed on suppliers is the most common form in food regulation, some
examples of a food firm imposing standards and controls on buyers do exist. For example in
the context of a franchise relationship, such as the Quality, Service and Cleanliness concept
of the fastfood chain McDonald’s (Love 1995). Supplier audits performed by food
manufacturers or supermarkets are also a form of second party regulation. The second party
is just as first parties motivated by prevention of reputation damage.
3. Third party regulation includes imposing and controlling quality norms by a private party
that is not involved in the transactions in the production chain. First and second parties may
turn to a third party for at least three reasons. A third party can specialize in auditing and
control and develop expertise and acquire (the necessary) experience. A third party auditor
can work more cost efficient by combining audits for several standards and because an audit
report may be valuable for several transaction partners. Moreover, a third party audit is
perceived as being more reliable and legitimate; organizational independence should lead to
objectivity and neutrality. An extra advantage for a second party is that it is cheaper: the
costs of the audit system are being transferred to the first party; because it is common
practice that the audit costs are being paid for by the company that is being audited
(whereas the costs of second party controls are usually beared by the second party). There
is an expanded market for auditing, certification and accreditation services, some of them
specialized on the food sector others more general. This auditing industry includes
organizations that set the rules (standard owners), organizations that perform audits,
organizations that issue certificates and organizations that offer assistance and advice in
developing food safety systems or complying with such a system. Many of these
organizations are commercial, some are not for profit.
4. Fourth party regulation is regulation and oversight by national and international public
authorities. Governmental organizations are a special type of third party. The provision of
sufficient and safe food is a public interest. Already in ancient times governments tried to
on the hygiene of foodstuffs.
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control the supply of food. People hold the government responsible for protection against
all types of risks including food borne illness, contaminated food and fraud.
Next to the four main types of regulation we also see many hybrid forms of regulation:
partnerships mixing actors from two or more of the above main types. Public and private forms
of food governance coexist. They operate mainly as separate regulatory regimes next to each
other. This may result in duplication of controls and inefficiency. However, some coordination
between private and public regulation already exists. For example, private regulatory
arrangements may incorporate and adopt public regulations. Many private auditors check
compliance with state laws as part of their auditing work. One of the general requirements of
almost all private food safety standards is compliance with all applicable state laws and
regulations. Non-compliance with legal obligations counts as non-conformity in most schemes.
Furthermore, legal food safety requirements such as regarding the food safety management
system, personnel hygiene, constructional requirements, pest control, traceability and allergens,
are incorporated and implemented in the requirements of the food safety standards such as
GlobalG.A.P., BRC, and IFS. The third party certifiers performing the audits against these
standards are thus controlling compliance with the governmental regulations (as implemented
in the standard).
The history of industry guides to good hygienic practice is an example of a more hybrid form of
food governance in which public and private actors as well as national and international actors
are involved. It all started with some food firms that developed a food safety management
system based on the principles of HACCP (Hazard Analysis and Critical Control Points). In 1993,
the Codex Alimentarius Commission of the World Health Organization endorsed the HACCP
system for ensuring the safety of food.3 Several supermarket chains adopted the system and
required from some of their suppliers to have implemented a HACCP food safety management
system (Havinga & Jettinghoff 1999:612). Next, a HACCP food safety management system
became a statutory requirement in several countries and in the European Union. All food
business operators have to ‘put in place, implement and maintain a permanent procedure based
on Hazard Analysis and Critical Control Point (HACCP) principles’4. A food safety system based on
the principles of HACCP is also legally prescribed in the United States (Spriggs & Isaac 2001; Ten
Eyck et al. 2006, Lytton 2013: 141-143)5 and in many private food safety schemes (Van der
Meulen 2011: 93).
To comply with this requirement of European Union law a food company may adopt an
applicable Guide to Good Hygienic Practice (whether or not specially adapted) or develop and
implement their own company-specific food safety management system (integrated into the
quality management system). The procedure to develop a food industry guide to good hygienic
3 http://www.who.int/foodsafety/fs_management/en/intro_haccp.pdf (last consulted 24-5-2013)
4 Article 5 of Regulation (EC) No 852/2004 of the European Parliament and of the Council
on the hygiene of foodstuffs. 5 The Food Safety Modernization Act 2011 requires that all FDA regulated food companies implement a
written hazard analysis and risk-based preventive control plan unless specifically exempt.
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practice has to be initiated by a sector of the food industry and involves cooperation and
consultations with the competent national food enforcement agency. The Guide has to be
approved for by the competent governmental authority (Minister, agency or the European
commission). In The Netherlands 35 Guides currently are recognized by the Minister, for
industries such as bakeries, butchers, supermarkets, food transporting, catering industry, gas
stations.6 In the UK up till now 8 industries have developed a FSA recognized national guide to
good hygienic practice (for bottled water, flour milling, mail order food, retail, sandwich
manufacturing, vending, whitefish processing and wholesale distributors).7 Five Europe wide
guides are approved so far by the European Commission (bivalve mollusk, wholesale, packaged
water, natural sausage casings, non-ready-to-eat egg-products).8 These guides to good hygienic
practice are a form of enforced self-regulation (Braithwaite 1982). Particularly small and
medium sized food businesses are using these industrial guides. As the industrial association is
drawing the guidelines and the government has to approve the guidelines, the rules are a form
of co-regulation.
Where a food business is using a recognised guide the enforcement authority must take this into
account when assessing compliance with hygiene requirements. National food enforcement
agencies such as the Netherlands NVWA and the UK FSA are responsible for controlling the
compliance with the guidelines. Some private firms in the Netherlands are offering food
companies the service of assistance and auditing against an industry hygiene guide to help the
firm to comply with legal obligations and to maintain a high level of food safety. This brings us to
a third example of coordination between public and private regulation.
Public agencies may take high-quality private controls into account or delegate controls. An
example of delegation of official controls to a private auditing organization are the officials
controls on organic food. In countries such as the Netherlands and Sweden, the task of auditing
and certifying organic food is delegated to a private organization (Stichting Skan and KRAV)
(Boström & Klintman 2006; Arcuri ?). Another, more recent example is that public authorities
are increasingly considering the possibility of taking the results of private controls into account.
We will discuss this form of coordination in the following sections.
3. Can public authorities rely on private actors?
6 VWA Infoblad 48, Hygiënecodes. Februari 2008 (www.vwa.nl, 12-09-2012).
7 http://www.food.gov.uk/business-industry/guidancenotes/hygguid/food-industry-guides (consulted 24
May 2013). See also FSA Guidelines for the development of national voluntary guides to good hygiene practice and the application of HACCP principles in accordance with EC food hygiene Regulations, April 2013. The UK Food Standards Agency also has developed a range of food safety management packs for different sectors of the food industry to help food business operators manage their food safety management procedures. The Netherlands NVWA left this to the industry sectors. 8 http://ec.europa.eu/food/food/biosafety/hygienelegislation/good_practice_en.htm . See for a complete
list of recognised guides in the European Union and its member states: http://ec.europa.eu/food/food/biosafety/hygienelegislation/register_national_guides_en.pdf
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As we have seen, governmental food regulation has become under pressure because on the one
hand the limits of what government institutions can do have becomes visible, while at the same
time we notice an increased level of requirements and high expectations towards the state.
National governmental food authorities are balancing in a minefield of private regulation, global
trade, life style risks and cutbacks. Coordination and cooperation between public and private
enforcement could strengthen both public and private control systems. Private certification and
control systems could complement governmental regulation and allow public enforcement
authorities to concentrate on high risk sectors and controlling ‘bad apples’. Currently many
private control arrangements are available. However, can public authorities trust such private
regulation and inspection? The reliability of private governance systems depends on their
capability and their willingness to perform adequate controls. Relying on private controls might
imply various risks: conflicts of interest, capture, a race to the bottom (lenient interpretation of
norms; tolerant controls), forcing firms to buy services, public authorities might lose all track of
the situation.
What lessons can be learned from historical experience? Public oversight relying on private
inspections is not new. Take for example the history of the accountancy and auditing profession.
Commercial organizations have controlled, inspected, and certified the financial books of
corporations for quite a while. However, there also have been scandals at times such as
Anderson controlling Enron. So, under what conditions can one ‘entrust others’?
The concept of trust has two main dimensions. Trust in the capability (and capacity) of others
(‘can they do it well, reliable?’) and trust in the willingness of others (‘will they do it well,
reliable?’). Trusting implies that one does not quite know, one is not for 100 percent sure. In
other words, there is some uncertainty on the ability of the other and/or on the motives of the
other.
As to the capability of private actors to regulate and control the food chain this includes their
access to sites, their skills and expertise, and their organizational capacity. Food producers (first
parties) have the best access and in many cases a high level of relevant expertise. Organisations
purchasing food such as supermarkets and restaurants (second parties) usually have access and
knowledge. Second parties are in a powerful position towards food producers: they can decide
to stop doing business. In particular large branded firms (both first and second parties) are
capable of adequate control of safety and quality of food. Third parties such as certification
bodies are knowledgeable and specialized in performing audits. However, both second and
third parties may be deceived by food producers presenting perfect paperwork or showcases to
inspectors.
The highest risks however are not in the availability or capability of private actors to deliver high
quality food control, but in their willingness to do so (and to share their findings with public
authorities). The honesty and integrity of private actors involved in food governance depends on
what are their motives to do a good job, what is their incentive pro and/or con? An important
incentive could be the care for their reputation. This means that in particular firms that are
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highly dependent on a good reputation have an interest in avoiding involvement in a food
scandal and in showing they took all possible care. This includes A-brand food manufacturers
such as Unilever or Danone, large supermarkets chains such as Tesco or Metro and ideational
NGOs such as MSC. These organizations will take great trouble to avoid damage their good
reputation with customers (final or BtoB) (‘below’), with colleagues in the sector (‘next to’ own
sectoral community), with oversight (‘above’) (inspectors, politics); or with the ‘general public,
the media, foreign countries (pride on reliable national product). A private actor may have a
strong interest in doing a good job in order to avoid sanctions. Sanctions may vary from loosing
market, fines, negative media attention. However, food business are not just acting as a model
‘rational actor’ driven by ‘interests’. Social norms may also be important.9
Can and will public agencies rely on private ones? They may have to do so for various reasons:
enormous size of the task to control long global food chains; their inaccessibility from one small
country (like NL) in these long chains; financial cutbacks due to lack of political willingness to
devote public finance facilities resulting in lack of manpower capacity. In addition, due to
technological advances, specialised scientific knowledge is sometimes only available in industry.
The capability of public authorities to rely on private control may be hampered by legal
obligations and responsibilities (such as the mandatory inspections in the meat sector in the
European union). It also depends on new technologies of sampling and new possibilities to
control (distant) private inspections with modern ICT-technology.
In the end the willingness depends on whether public agencies trust private actors to do a good
job. This depends again on the estimation of - and experience with - the trust of public actors -
the principal - in both the capability and willingness/incentives of the private organizations - the
agents.10 And these depend in turn on the position of the private actor in the market
transactions: as First Party (producer, seller), Second Party (buyer), Third Party (external private
- commercial (e.g. auditing firm) or non-commercial (idealistic NGO-certifiers like MSC)
controller), and Fourth Party (other public agencies from the same country; foreign public food
inspection). Thus a distinction should be made between these four types of ‘agents’ (in the
relation with public authorities as the ‘principal’) as to capability of the others.
Are private food regulators capable and able to do a good job? The answer is largely yes. They
have quite some expertise, and serious sanctions as to back up conformity to food standards of
their suppliers. However, the willingness of private food regulation to do so is less certain. But
private actors involved in production and distribution of food need to care for their reputation;
also as have become more visible - they have increased in size, nurture names and trade marks-
, and should care about that reputation. A blemish can cost a lot of money or even decline of
private organizations in the competitive struggle. ICT and new media spread easily rumors about
bad reputations. The public has gradually ever higher demands about safe food, honesty in
trade, and the existence of critical watchdogs like newspapers, but also organizations like
9 reference to James March on Rationality in Policy Making and Deborah Stone’s ‘Policy Paradox’ books
10 I.e. refer to principal-agent theory here.
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foodWatch, and the general Consumer Associations. But in the end intermediate and final
buyers are not only interested in safety and quality, but also in price. And there can and has
been a trade-off between these. A producer or retailer can nurture a reputation of cheapness,
or of quality. The fierceness of competition on either one of these criteria in the respective
vertical or horizontal subsector of the food chain will also be important.
Both the capability and willingness will in turn depend on the nature of the private regulatory
agency. Important dimensions here are: its position in the market (1st to 4th party) and its size or
fame and hence usually resulting from that the visibility for the relevant audience that can
sanction (by a variety of punishments, varying from buyers’ strike to fines and statutory closure).
On the basis of these criteria, the following table distinguished types of ‘other’ (i.e. private but
also foreign public) regulators, with which national public food inspections may/could have to
deal with, can be distinguished. It also includes each one’s likely capability, willingness and
hence trustworthiness, facilitating or allowing reliance of a public food regulating agency on
their food safety and quality controls and judgments.
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Typology of possible trustworthiness of private regulators:
Position in the Market and Size Visibility, importance reputation, Potential interest by the media?
Capability, Skill, Knowledge
Willingness, Interests
Trustworthiness
1st
Party: Producers
Large, international branded manufacturers (Unilever, FrieslandCampina)
High High High High
Medium, national/specialized manufacturers Medium Could be high medium Medium
Small, snackbars, shoarma, SME food Small (but could be high local) Low Low Low
2nd
Party: Buyers
Large: supermarket chains, fast food rest.chains (McDonald’s) High Medium High High
Medium: restaurants Medium Medium Medium Medium
Medium: specialized food retailers High in own subsector? High ? ?
Small: Final Consumers Low (via social networks higher?) Low High Low to medium
2nd
Party: Facilitators: Intermediate traders in food value chain
Wholesalers, in between B-to-B traders (e.g. case in Horsemeat scandal)
Low Medium Low Low
Large Packers and Transporters (important for cooling, freshness, halal separation)
Low medium Low
Smaller Packers and Transporters Low low low Low
Insurance Companies (?) ??
3rd
Party: Certifiers and Auditors
Commercial; large corp./chains of auditors Medium (in specialized chains: High) High Medium Medium
Commercial: small, local Low Medium Medium to high
Medium
Ideational NGOs, like MSC or foodwatch, Other Consumers Associations
Higher Medium High High
4th
Party: Public Regulators/Inspectors
National or local regulators, same state Medium to High High Medium (if competing)
Medium-High
Foreign Public Regulators/Inspections Low, unless important export ctry Depends on ctry Depends Depends
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4. New PPPs and experiences in the Netherlands
The Netherlands Food and Consumer Product Safety Authority (NVWA) has adopted a new
enforcement philosophy in line with the enforcement pyramid connected to the concept of
responsive regulation (Ayres & Braithwaite 1992, Mascini & Van Wijk 2009). The current motto of the
NVWA is: ‘Gentle whenever possible, though when necessary’. Starting from the idea that most food
firms are willing to comply with food laws and regulations, the NVWA wants to approach them with
trust. The NVWA also aims at agreements with industry associations, food manufacturers and private
consultancy and auditing firms about reduced supervision by the NVWA because of the use of private
controls, certification or self-regulation. This is a shift from repressive control towards
communication, assistance and meta-control, from control to in control.
The NVWA is aiming at establishing compliance, sanctioning non compliance is not the main
objective. The usually cooperative and encouraging attitude towards food firms is linked to a policy
of stringent enforcement against firms that ignore the regulations. These firms (with colour code red
or orange) are supposed to be forced to comply by means of strong sanctions, including damages
imposed on a daily basis in case of continued non-compliance and (temporarily) closing down the
site. The agency (NVWA) aims at risk based controls and categorized food firms in four colour codes.
August 2013, the Netherlands NVWA has acknowledged 11 systems of ‘self control’11. Besides, the
NVWA concluded agreements with 9 firms or industry associations; the agreement says that the
NVWA will reduce controls and the industry will provide for an operating adequate risk control
system and reports on this system to the NVWA. This cooperation involves different types of
partners: food manufacturers, industry associations, franchisors, consulting and auditing companies,
and industry commodity boards. All cooperation partners are Netherlands organizations, most of
their activities are confined to the Netherlands. The NVWA is currently not taking into account that a
food firm is certified against an international food safety standard. Although a new initiative has
been started in 2013: the accredited certifying organization ISACert is offering a plus certificate in
addition to the certificate for one of the GFSI recognized food safety schemes. Participating firms
should allow exchange of information (control results) with the NVWA and accept unannounced
inspections; when the pilot is successful, the NVWA will reduce controls for firms without non-
conformities.
In the UK, Canada and France the food authorities are also considering or trying this kind of
cooperation. ‘The UK Food Standards Agency (FSA), for example, has
instructed enforcement authorities to take account of membership of a ‘recognised’
farm assurance scheme in determining the frequency of inspection of production
facilities’ (Henson & Humphrey 2010: 1641). The Canadian Food Inspection Agency (2012) is
developing guidelines for the recognition of ‘third party delivery providers’. Rouvière & Caswell
(2012:252) investigated co-regulation in the import of fresh vegetables and fruit in Perpignan. In this
project the enforcement agency relied on data from the import firms participating in ‘Demarché
Qualité’ in stead of laboratory analysis of samples taken by inspectors.
We will discuss some examples of the public reliance on private controls in more detail.
11
Welke Engelse term?? Riskplaza website gebruikt ‘self-auditing systems’
13
BDW (Bureau de Wit) is a medium sized commercial business organization offering consultancy and
auditing services to hotels, restaurants, health care institutions, catering, retail and traditional food
businesses.12 BDW is one out of six agencies auditing businesses for compliance with the applicable
Guide to Good Hygienic Practice that is acknowledged by the NVWA. Customers with a BDW hallmark
are not inspected by the NVWA anymore. The NVWA relies on the inspections by BDW. The process
of getting acknowledged by the NVWA took two years. The NVWA required at least one
unannounced inspection every year checking compliance with all requirements of the Hygienic
Guide, a report of shortcomings, a plan of action from the inspectee and a reinspection within 6
weeks by BDW and permission from the inspectee to exchange inspection reports between BDW and
the NVWA. The NVWA did a system audit and a survey of BDW customers to see whether the BDW
auditsystem met their requirements.
Quite another example of an acknowledged selfcontrolsystem is RiskPlaza.13 RiskPlaza is initiated by
organisations from grain growers and bakeries and is meant to guarantee the safety of ingredients.
RiskPlaza is a database based on European and Dutch legislation with concrete information on
possible risks; these detailed norms are made up by the NVWA, experts from industry and
certification bodies. RiskPlaza stores information about the hazards which may be associated with
ingredients and the control measures which can be taken to control these hazards. The database is
an example of co-regulation. In addition to the database, firms supplying ingredients can be audited
for the involved risks (RiskPlaza audit+). Firm manufacturing or trading ingredients may choose to be
audited for RiskPlaza-audit+. In a RiskPlaza audit+ a certifying body performs an additional audit at a
participating company on top of the existing food safety certificate (HACCP, IFS, BRC, ISO 22.000,
FSSC 22000 or an approved hygiene code). This additional RiskPlaza audit+ is aimed at assuring the
food safety of ingredients. During the audit a company must be able to demonstrate that the
possible hazards of ingredients are controlled. Audits can be performed by 4 certification bodies
recognized by RiskPlaza. August 2013 the website lists 51 RiskPlazaAudit+-companies, most in the
Netherlands, some from Belgium or Germany. Businesses in the bakery industry, confectionary industry,
meat products industry, snacks industry, vegetables and fruit industry, poultry processing industry, the coffee
& tea industry, that purchase ingredients from a RiskPlaza-audit+-supplier do not need to verify the food
safety of raw materials at this supplier. The NVWA will not include these issues in inspections. This
means that NVWA inspections are partly replaced by private audits.
5. Evaluation and Conclusion
Public and private food regulation parties may need each other. The degree to which they trust each
other depends on the variables mentioned before. Depending on those, there has been a gradual but
increasing development of new PPPs (public-private-cooperation) in food regulation. What are the
risks of such forms of cooperation between the public food authority and private parties? Can they
12 The case descriptions for Bureau de Wit and RiskPlaza are taken from Verbruggen & Havinga
forthcoming.
13
See on RiskPlaza also Garcia Martinez cs 2013 and their website https://www.riskplaza.nl/riskplaza/pagina/100048/home.aspx
14
become forms of ‘cooptation’? And if so: who might co-opt whom? I.e. is there a risk of ‘capture’?
Especially if political support of public agencies dwindles (financial cutbacks, mergers, lay offs, etc)
the agency could turn to the private sector for moral, financial, or organizational support (as it may
do when de facto ‘delegating’ regulation or inspection to private sectoral organization). See the older
US literature on capture of regulatory agencies by the (private organizations of the) sector they are
supposed to control.
Private control systems such as BDW include more frequent and more full inspections than the public
authority could perform. BDW inspects all relevant elements of the food safety system at least twice
a year, whereas the NVWA would normally only inspect the sites once in 1-5 years and not inspect all
element. Private control systems are also able to work in global food chains whereas the jurisdiction
of the NVWA is limited to the Netherlands. This advantage does not apply to the BDW case, and in
particular to international accepted food safety certification schemes such as BRC and IFS (until now
the NVWA does not rely on these certifications). Market driven private systems are very powerful
because the loss of market is a strong sanction and because regulatees will accept rules and
instructions as part of a business transaction more easily than from a governmental organization. On
the other hand, third parties do not have a direct interest in transactions although they are directly
interested in keeping the customer satisfied. This points to one of main weak points of private
regulation: the controlling organisation almost always has a financial interest: first and second
parties are involved in transactions, third parties are paid for by the firm under supervision. Another
potential weak point is the lack of transparency and the opportunities for misrepresentation. So far
certification is not always a guarantee for compliance with all regulations: some standards and some
certification bodies seem to be very lenient and not very reliable. Finally, when a public authority
does rely on voluntary private control systems there might be a free rider problem. In the Dutch
cases described this could be the case. Firms that participate in these schemes do pay for controls
and for better performance while firms that do not participate are not confronted with frequent and
vigorous controls by the NVWA.
We conclude with some conditions for public reliance on private governance systems:
- Agreement on minimum norms and requirements between involved public and private
actors
- Knowledge and training of professional staff in both auditing firms and in food industry
- An industrial culture in private auditing firms and in food industry that highly values food
safety
- A system of reputational damage for both auditing firms and food industry in case of bad
performance (a precondition seems to be transparency and public available information
about performance coupled with competent ‘watchers’ (public authority, consumers
organizations or other NGO’s, competing firms and consumers)
- Economic context that enables the promotion of long-term interests such as food safety (in a
highly competitive market where food safety is not valued in money there is always an
incentive to reduce costs by lowering standards or even fraud)
- Free rider-problem could be a problem in case firms that do not voluntary participate in
private certification schemes gain considerable advantages (no costs for auditing and for
adapting to requirements) whereas there are no (or less costly) disadvantages. Because of
this, public enforcement authorities should have the capacity to vigorously control these
15
firms, sanction non compliance and make control results publicly available. The costs of
participation in the voluntary systems of BDW and RiskPlaza are rather high, whereas the risk
that non-compliance is detected by NVWA is rather low.
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