ACADEMIA Letters Food Law in Lebanon: Overview and Analysis Maria El Gemayel, Al Jad Abstract It is argued that ‘[ Lebanon does not] need new laws and regulations concerning food safety as [it needs] better trained people to implement them.’ The statement is scrutinised in this article, which takes a closer look at the provisions of the Lebanese Food Safety Law 2015 in an attempt to determine how it can contribute to a better implementation of legislative instruments. I. Introduction In November 2015, the Lebanese Parliament passed the Food Safety Law (FSL).[1] The FSL was long overdue, representing a definite step up from the dispersed bits and pieces the Lebanese food sector was governed by, which were no longer compatible with modern commercial and technological developments. Before then, food safety legislative instruments were gradually, if not erratically, passed as part of wider frameworks addressing other issues.[2] As a result, many governmental agencies across different ministries were dealing with food safety issues.[3] These agencies’ authority was somewhat lost between their limited administrative and technical resources, and lack of coordination between each other,[4] resulting in a loose regulation.[5] The FSL principally promotes the establishment of the Food Safety Lebanese Commission (FSLC),[6] whose primary role is to draft legislative instruments for the implementation of FSL provisions.[7] The law does however come with its challenges, the main one relating to the complexity of its implementation. Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 1 II. The 2015 Food Safety Law The long awaited FSL came as a solution to a chaotic arrangement that could not keep up with modern developments in the food industry. The FSL encompasses in its framework several ministries, the main ones being the Ministries of Public Health, Agriculture, and Economy and Trade. It mentions that the inclusion of these ministries is essential since all three are already involved in the provision of safe food through previous legislation that is still in force and complementary to the FSL.[8] The difficulties arising from such an entanglement cannot be ignored, mainly because of its resulting complicated enforceability. This fact puts a question mark as to the implementation of these (sometimes outdated) instruments. It also questions not only the efficiency, but also the feasibility of monitoring food businesses when the regulations governing them are entangled as such. It is argued that ‘[Lebanon does not] need new laws and regulations concerning food safety as [it needs] better trained people to implement them.’[9] In this context, a closer look is cast on the provisions of the FSL, in an attempt to determine how it can contribute to a better implementation of these legislative instruments. Food law in the European Union (EU) is chosen as a reference point, at the core of which is the General Food Law (GFL).[10] 1. Main Elements of the FSL a. Scope of application and definitions The FSL includes in its provisions the main elements that are found in modern food law. The FSL starts by delimiting the scope of its application, which spans the totality of the food industry by adopting the farm to fork structure.[11] The FSL focuses on defining safe[12] and unsafe[13] food,mainly considering the effects on public health in its definition. It considers food as safe if it meets national standards, and in the absence of those, international standards which are adopted and recognized in Lebanon, i.e. Codex Alimentarius.[14] According to the FSL, an FBO’s obligations related to food safety are to take the necessary precautions to prevent food contamination during its import, manufacture, transformation, etc.[15] These precautions are however not determined. It is unusual for legislative instruments to determine such safety standards in detail, e.g. the flow of operations in a kitchen to avoid cross contamination between raw meats and vegetables. Although HACCP principles are found in the FSL, their implementation is however not legally binding as the FSL rather suggests the application of the concept but not specific principles. Third party companies are thus called upon by food business operations for training, certifying, and auditing the application of HACCP. This however remains a voluntary procedure. Many more principles of Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 2 modern food law which are found in the FSL are mainly delegated to the FSLC which will be responsible for implementing them. In this regard, the FSLC’s establishment status and expected activities are considered. 2. Food Safety Lebanese Commission The FSLC is a financially and administratively independent governmental organisation, over which the Prime Minister exercises guardianship authority.[16] It holds many responsibilities; these include but are not limited to approving or drafting by-laws that implement FSL provisions,[17] implementing a monitoring system to enforce regulations,[18] coordinating between relevant ministries for implementation of FSL provisions,[19] preparing technical rules and specifications relevant to the food industry,[20] assessing safety risks and setting standards accordingly,[21] preparing studies, research and statistics related to food safety,[22] establishing a rapid alert system,[23] monitoring and tracking each step from farm to fork, to control violations of FSL provisions,[24] sample analysis,[25] follow up inspections,[26] receiving complaints from consumers,[27] establishing and managing a network between various Lebanese Governorates,[28] and educational and awareness campaigns.[29] Needless to say, the SFLC has many hats to wear. Although it has been described as the Food and Drug Administration (FDA) of Lebanon,[30] or the equivalent European Food Safety Authority (EFSA), the all-inclusive package of responsibilities that were assigned to the FSLC go far beyond that, when there is no structure that supports the implementation of these tasks. Even if as stated above, Lebanon is presumably not in need of new food laws, what it also is not in need of, is to throw more complication into its food safety structure, if there were one to begin with. The idea is not to have legislative instruments scattered among several ministries and one single governmental organisation running the show, but rather to gather all the legislative instruments under a unified structure, and have smaller, efficient organisations focusing on specific tasks. What does not help is that years after the FSL was enacted, the SFLC has still not been established, and the current structure has not changed, as many decisions related to the food industry were issued after the FSL was approved; these are also issued by several different ministries, further questioning the FSL’s ability to provide the much needed legislative unification that it promises, when no change in the chaotic structure is observed. Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 3 III. Our Analysis: How Can Food Law Be Accessible for a Better Implementation? Although widely acclaimed, and the main argument for the need of a food safety law being a non-system of scattered instruments, the fact remains that without the FSLC, the FSL is not very efficient, especially when new laws and decisions are still issued as before across different ministries. Determining whether the FSL is successful in its mission is thus still impossible at this point since it has so far failed in its main objective. Even at this preliminary stage, and before being established, the long list of responsibilities assigned to the FSLC casts a shadow of doubt as to whether it will be successful in fulfilling its role. Before the comprehensive approach to EU food law became what it is today, it was more of a cluster of endless provisions than a structured and efficient system.[31] This image is not unlike what it is today in Lebanon. Although built at an academic level, the EU approach to a complicated and complex food law tackled all instruments in alphabetic order, and was surprisingly met with great success.[32] Legislative instruments were reportedly organised based on ‘what, who and how’ questions relating to how each provision deals with issues related to the food sector.[33] The most singular aspect of this structure is that it creates a framework in which researchers, students and practitioners can understand both the provisions at a small scale and the functioning of the law in general.[34] On the one hand, such deep understanding of the system provides professionals with the right tools to research it, and as a result contribute to future reforms and improvements. On the other hand, professionals (lawyers and researchers) are also able to appropriately understand the functioning of the system and the law itself, with proper application in legal practice. Lebanese law, structured as it is today, is inaccessible to many professionals who do not get their information straight from the source, i.e. the many involved ministries. Asking questions like ‘what, who and how?’ are not often met with clear and concise answers. The law does not only have to be well structured for authorities to implement it; it also has to be accessible and understandable by researchers and practitioners. As a result, the scope of reforms that the FSL has to bring about suddenly appears much broader than originally thought. While awaiting FSL-related developments to concretise, the Lebanese consumer currently relies on protective agencies which ensure that basic consumer rights are met. Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 4 IV. Protective Organisations 1. Directorate of Consumer Protection The Directorate of Consumer Protection is the governmental body that addresses consumers’ complaints in case of fraud, food poisoning, or other transgressions. It is affiliated with the Ministry of Economy & Trade.[35] The Directorate acts in the framework of governmental regulation and interventions, meaning that the actions it takes are legally-binding. The Directorate does not only provide consumer protections, but it also focuses on prevention through awareness campaigns regarding food safety. This includes but is not limited to publicised advice about handling food at home, storing food, and shopping advice (e.g. not buying cans which are damaged or rusty, choosing foods in the right order with nonrefrigerated items first and fresh perishables last, not mixing meat, dairy, and vegetables in the cart to avoid cross-contamination),[36] etc…Although commendable, one downside of the Directorate’s work is that it does not focus on food safety, but rather encompasses in its list of responsibilities all consumer goods.[37] 2. Consumer Lebanon Organisation Consumers Lebanon is a non-governmental organisation has for main objective the assessment of basic rights related to food safety, and their impact on the local population. The organisation heavily underlines in its communications the deep corruption, which the country continually finds itself a victim of, and which seems to be the greatest barrier to the development of a basic and much needed food law. Although this political bracket falls outside the scope of this paper, it would appear that there is no way around it when it constitutes the biggest impediment to the development of a legislative food law framework. The organisation indeed states that ‘to date, there are 34 indispensable laws that have not been issued regulatory decrees and have been pending for over 10 years. One of which is the Consumer Protection Law. Even the Food Safety Law is still pending in the Chamber of Deputies; as well as the Competition Law.’[38] Consumers Lebanon’s work is certainly admirable and much needed. It however is important to point out that like the Directorate of Consumer Protection, its scope of work includes all types of consumers, and not just the food consumer. For this reason, and while the organisation relentlessly encourages consumers to reach out for complaints, the fact that these activities are simply not enough cannot be overlooked, if there is no strong legal backbone to support them. Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 5 3. Voluntary Control and Third Party Auditing The implementation of hygiene and safety practices are required by the FSL.[39] While practices aim to cover the totality of the food chain, there however is a segregation between the different stages, and what practices need to be applied at what stage. For example, the farmer’s practices are separated from the rest of the food chain, and use of pesticides is even included in relevant provisions[40] when it is not relevant to the FSL’s purpose, and should rather be left to another legal instrument which treats on the subject. The FSL aims to be holistic by following the ‘Farm to Fork’ approach, but its provisions are too general, which might cause confusion at the application level. Although the FSL covers the HACCP principles in the recommended steps, as well as the role it assigns to the FSLC, these are not listed as mandatory. For this reason, HACCP certification and application remains voluntary. Although most big restaurants are willingly getting a HACCP accreditation and following the procedures, this remains a self-promoted effort that they market in order to gain the consumer’s trust. Third party companies, which are required by the FSL to be themselves certified,[41] are responsible for the training, accreditation, and auditing. V. Conclusion The original earnestness accompanying the enactment of the FSA has long faded, as some consider that the structure is solid, and what only needs to be done is implement it, and others which are in charge of implementation are simply not delivering. The only hope, although meagre, is that the Consumer Protection Association understands the futility of the FSL when standing by itself, without complementary instruments further developed to carry its mission. ‘The commission will have to develop standards virtually from scratch, […] meaning it could take years before the full gamut of precautions and regulatory measures reach the consumer.’[42] After the devastating Beirut Port explosion of August 4, 2020, coupled with the effects of the COVID-19 pandemic on a country that was already torn down by severe economic and political crises, Lebanon finds its food-related issues relegated to the backseat. The country is therefore as far as ever from the legislative reform it desperately needs. As a result, since national standards are either absent or vague in many features relating to food products, perhaps the most important provision of the FSL is that in the absence of national standards, international standards are to be adopted and recognised in Lebanon, namely Codex Alimentarius.[43] The fact remains that Codex recommendations are not legally binding for international agreements that rely on them[44] (e.g. WTO’s SPS Agreement).[45] They still Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 6 are, however, often used in the development of national legislation,[46] and would certainly provide valuable input to the development of a more adequate Lebanese food law. VI. References [1] Food Safety Law (FSL), Law No. 35-2015, OG No. 48, pp. 3191/11 et sqq. [2] Adel Cortas, ‘The Food Safety Law in Lebanon: What Is Next?,’ Advanced Techniques in Clinical Microbiology, August 2017, vol 1, no 3, p. 15, https://rb.gy/ctz4ja, last accessed 5 March 2021. [3] An example is The Ministry of Industry’s LIBNOR (Lebanese Norms Organization), which had difficulties covering the agricultural sector mainly due to agricultural companies being based in remote rural areas that were unreachable by the limited resources. The Ministry of the Environment was also involved; however food safety issues are rather unrelatable in this context. [4] FSL, preamble. [5] ibid (n 2). [6] Article 22 FSL. [7] Article 29(1) FSL. [8] FSL, preamble. [9] ibid (n 2). [10] Regulation (EC) 178/2002 of the of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ L 31/1 – General Food Law (GFL). [11] Preamble (1) FSL. [12] Article 4 FSL. [13] Article 3 FSL. [14] Article 5 FSL. [15] Article 7 FSL. [16] Article 22 FSL. [17] Article 29(1) FSL. [18] Article 29(2) FSL. [19] Article 29(5) FSL. [20] Article 29(6) FSL. [21] Article 29(7) FSL. [22] Article 29(8) FSL. [23] Article 29(11) FSL. [24] Article 29(14) FSL. [25] Article 29(15) FSL. [26] Article 29(16) FSL. [27] Article 29(17) FSL. [28] Article 29(18) FSL. [29] Article 29(19) FSL. [30] ibid (n 2). [31] Bernd Van der Meulen, ‘The Structure of European Food Law,’ Laws, April 2016, vol 2, pp. 69-98, at p. 70. [32] Ibid. [33] Ibid. [34] Ibid. [35] See Consumer Protection Law of 2014, https://www.economy.gov.lb/ en/what-we-provide/consumer-protection/legislation/, last accessed 21 March 2021. [36] Republic of Lebanon, Ministry of Economy and Trade, https://www.economy.gov.lb/en/services/ consumer-protection/awareness-campaigns, last accessed 13 February 2021. [37] Republic of Lebanon, Ministry of Economy and Trade, ‘Consumer Protection’, https://www.economy.gov. lb/en/what-we-provide/consumer-protection/, last accessed 14 June 2021. [38] Zouhair Berro, Who We Are, Consumers Lebanon, https://www.consumerslebanon.org/HomePage, last accessed 13 February 2021. [39] Articles 7-17 FSL. [40] Article 8 FSL. [41] Article 6 FSL. [42] ‘Consumer protection advocates are waiting for the government to implement the provisions of the new food safety law, which they say will improve public health,’ The Daily Star, https://www.dailystar.com.lb/GetArticleBody.aspx?id=323334&fromgoogle=1 last accessed Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 7 14 June 2021. [43] Article 4 FSL. [44] Commission of the European Communities, White Paper on Food Safety, Brussels, 12 January 2000, at p. 15. [45] World Trade Organization, The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), January 1995, Articles 11-12, https://www.wto.org/english/tratop_e/sps_e/spsagr_e. htm, last accessed 15 June 2021. [46] About Codex | CODEXALIMENTARIUS FAO-WHO’ (Fao.org, 2018), http://www.fao.org/fao-who-codexalimentarius/about-codex/en/ last accessed 15 June 2021. Academia Letters, September 2021 ©2021 by the author — Open Access — Distributed under CC BY 4.0 Corresponding Author: Maria El Gemayel, maria.el.gemayel@gmail.com Citation: El Gemayel, M. (2021). Food Law in Lebanon: Overview and Analysis. Academia Letters, Article 3593. https://doi.org/10.20935/AL3593. 8
