EJRR 4/2014



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Issue 4/2014

Table of Contents
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Alberto Alemanno

Editorial
European Journal of Risk Regulation 4/2014: pp. 433-434
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The European Journal of Risk Regulation closes the year by hosting a wealth of risksignificant and original research articles. Olga Schenk, Michelle Lee, Naveed Paydar, John Rupp and John Graham open the issue by providing an insightful study examining the significant interstate variation as to the level of development of unconventional gas (UGD), such as tight gas, shale gas and coal bedmethane, in the United States. Given themounting pressure against shale gas by public opinion, this article offers some food for thought to EU policymakers. After identifying the major factors responsible for it, the authors examine – through their quantitative and semi-quantitative assessment – the explanatory power of each of the factors they previously identify as responsible for such a variation. They conclude that three pre-conditions for the success of UGD – availability of reserves, infrastructure and supportive regulatory environments – are generalizable to other geographical contexts, including that of the European Union.

Olga Schenk, Michelle H.W. Lee, Naveed H. Paydar, John A. Rupp and John D. Graham

Unconventional Gas Development in the U.S. States: Exploring the Variation
European Journal of Risk Regulation 4/2014: pp. 436-458 [Article]
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This article examines the large interstate variation in levels of unconventional gas development in the U.S. states. The following hypotheses are advanced to predict whether a state will be predisposed toward development: (H1) the availability of unconventional gas reserves; (H2) the availability of infrastructure to support development; (H3) a recent history of conventional oil and gas development; (H4) Republican party control of the Governor’s office and state legislature; (H5) relatively low sensitivity to environmental issues; (H6) regulatory systems that treat UGD as a variant of conventional gas development; (H7) a pressing need for economic benefits as indicated by state and local measures of household income, unemployment and poverty; (H8) and public opinion supportive of development. To various degrees, each of the hypotheses is supported but important exceptions and surprises are uncovered in the qualitative and semi-quantitative analyses. Future research should continue the effort to explain the variation of development by expanding the geographical scope of inquiry and enlarging the sample of jurisdictions.

Aidan Robertson

Minimum Unit Pricing for Alcohol in the Court of Justice
European Journal of Risk Regulation 4/2014: pp. 459-468 [Article]
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This article examines the questions referred by Scotland’s appeal court to the Court of Justice of the European Union concerning the legality of Scotland’s legislation, adopted in 2012, to impose a minimum price per unit of alcohol sold in Scotland. The first instance court had rejected in 2013 a challenge to the legislation brought by three trade associations representing the interests of wine and spirits producers on EU law and other grounds. In 2014, the appeal court referred a number of questions and is awaiting Luxembourg’s answer before deciding the appeal. The author considers the issues of EU law raised by the questions and respectfully concludes that the questions referred do not raise any ground on which the Scottish legislation may be declared incompatible with EU law and that the producers’ appeal should be dismissed. Other parts of the United Kingdom are awaiting the outcome of the Scottish proceedings before deciding whether to propose similar legislation to tackle what is widely regarded as a serious health and social problem throughout the UK.

Ignacio Carreño and Paolo Vergano

Uses and Potential Abuses of “Negative Claims” in the EU: The Urgent Need for Better Regulation
European Journal of Risk Regulation 4/2014: pp. 469-490 [Article]
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“Negative claims” can be defined as claims indicating that certain ingredients, nutrients or substances are not present in a foodstuff. Legitimate uses of regulated negative claims in the EU include some nutrition claims and “gluten-free” claims. Some EUMember States have legislated on “GM-free” claims. The article describes inmore detail some cases (i.e., BPA-free, MSG-free, Aspartame-free and palm oil-free), where negative claims are used with an implied message that whatever is used instead of the often “demonised” substance is safer, healthier or greener. The article argues that EU and EU Member States’ legislators and regulators should ensure that consumers are not misled by astute marketing techniques that have no informative agendas, but simply aim at denigrating certain products in order to promote “free-from” products. This issue is particularly timely and important given the imminent application of the EU’s Food Information Regulation and the additional costs that it will impose on the industry in the name of providing complete, reliable and evidence-based information to consumers.

Wieke Huizing Edinger

Food, Safety and the Behavioural Factor of Risk
European Journal of Risk Regulation 4/2014: pp. 491-504 [Article]
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This paper aims to demonstrate that the current application of the concepts of risk and unsafety in Regulation 178/2002 (GFL) results in a grey area within EU food safety regulation. By means of the food safety risk assessment of aspartame it is illustrated that “grey area foods”, although not “unsafe” according to legal definition, could compromise human health because of, i.e., their nutritional composition. It will be argued that the grey area emerges from a narrow focus of food safety risk assessment within the ambit of the GFL, which disregards certain types of hazard and causes an information gap with respect to how food consumption, eating behaviour and health are interconnected. At the same time, the scope of food safety in the GFL is restricted to what is considered “normal” consumer behaviour in view of the information provided on food labels or generally available in society. In doing so, the legislator has set rather high standards for what may be expected of the average consumer in terms of the understanding and avoidance of behavioural risks. As a result, the consumer bears the responsibility for the consequences of the information gap.

Neil Gunningham and Darren Sinclair

The Impact of Safety Culture on Systemic Risk Management
European Journal of Risk Regulation 4/2014: pp. 505-516 [Article]
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Notwithstanding impressive gains in occupational safety across the Australian coal mining sector, this research reveals that even within the same company, some mines substantially outperform others in terms of safety outcomes, raising questions as to why, notwithstanding the introduction of sophisticated and systemic risk management mandated by government, such variation still exists. Potential contributory variables are considered (technology, physical environment, management systems), and discarded, before examining the role of safety culture. Drawing on qualitative (interviews) and quantitative research (safety statistics and audit results) it was found that distinctive patterns of site and context specific cultural factors align to safety performance. The article provides insights as to whether, to what extent or in what circumstances site specific cultural variables, served to undermine or reinforce the effectiveness of the company’s overall risk management strategy.

Maria Elvira Méndez Pinedo

Iceland’s New Plan for Debt Relief: Jubilee or Waiting for Godot?
European Journal of Risk Regulation 4/2014: pp. 517-530 [Article]
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Despite Iceland´s economic recovery, nearly 48% households continue to struggle to make ends meet. This study argues, first, that the main reason behind over-indebtedness in this country is a loan system without parallel in Europe, based on a triple cost of credit (fix/variable interest, indexation of credit to inflation and negative amortization). Second, the problem is examined in the context of European law as some alleged malpractices of indexation have been referred to the EFTA Court. Third, the focus shifts to the debt-relief programme presented by the Icelandic government in 2013/2014 after the relative failure of previous debt-relief measures. It is argued that this plan will fail in the long run as long as the indexation of credit to inflation is not abolished. The private pension system in Iceland relies indirectly on indexed mortgage credit issued by the public Housing Financing Fund. Since a ban on indexation and a holistic pension reformare not expected soon, all present debt writeoff benefits will surely be eaten up by higher inflation. As long as indexation of credit is legal, the future scenario resembles less a debt-relief jubilee and more the theater play “Waiting for Godot “.

Blanca Salas and Bruno G Simões

Food: The European Commission Initiates Infringement Proceedings against the UK over its ‘Traffic Light’ Nutrition Labelling Scheme
European Journal of Risk Regulation 4/2014: pp. 531-534 [Report]
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I. Introduction On 1 October 2014, the European Commission (hereinafter, Commission) announced that, with a formal letter of notice, it had initiated infringement proceedings against theUKover its so-called ‘traffic light’ nutrition labelling scheme. TheUK’s scheme is a hybrid front-of-pack (hereinafter, FoP) food labelling scheme that includes ‘percentage reference intakes’1 and colour coding to indicate whether a product is high,mediumor low(i.e., red, amber or green) in fat, saturated fat, sugar and salt.2 The scheme is, in principle, voluntary, but it was recommended in June 2013 by the UK Food Standards Agency (hereinafter, FSA) and the Department of Health.

Adam Burgess

Lifestyle Risks: Interesting Evidence on Public Support – or not – for Behavioural Intervention
European Journal of Risk Regulation 4/2014: pp. 535-536 [Report]
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Behavioural intervention has emerged as a key focus for policymaking and regulators, following themassive impact of books such as Sunstein’s and Thaler’s, Nudge.1 A key part of its appeal is its very practical, even technocratic character. These are not fanciful or utopian schemes but practical solutions to everyday problems, as Sunstein’s book ‘Simpler: The Future of Government’ emphasized last year.2 Further, it is based upon, oftenextensive, psychological study, and this is a key part of its appeal as an ‘evidence-based’ approach.

Lukasz Gruszczynski

Trade, Investment and Risk: FCTC’s COP6 Meeting and Its Implications for Tobacco Control Polices
European Journal of Risk Regulation 4/2014: pp. 537-542 [Report]
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I. Introduction The sixth meeting of the Conference of the Parties (COP) of theFrameworkConventiononTobaccoControl (FCTC)1 took place in Moscow on 13 – 18 October 2014. This report is intended to summarize the outcomes of the COP6, analyzing inmore detail three specific issues that were addressed and/or discussed during the meeting: (i) the relationship between international trade regime and the FCTC; (ii) the guidelines for the implementation of Art. 6 of the FCTC (price and tax measures); and (iii) the treatment of electronic nicotine delivery systems.

Ignacio Carreño

Food: Energy Drinks: Stricter Health Warnings on Caffeine Content in the EU and Sales Bans to Minors and New Excise Taxes
European Journal of Risk Regulation 4/2014: pp. 543-547 [Report]
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I. Introduction Regulation (EU) No. 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers1 (hereinafter, FIR) introduces changes to existing legislation on food labelling. The FIR establishes not only new rules, such as the mandatory nutrition information on processed foods (as of 13 December 2016), the mandatory origin labelling of unprocessed meat from pigs, sheep, goats and poultry (as of 1 April 2015, according to Implementing Regulation (EU) No. 1337/2013) and the mandatory declaration of the vegetable origin of vegetable oils in the list of ingredients (as of 13 December 2014), it also provides for stricter healthwarnings in relation to the caffeine content in energy drinks.

Joasia Luzak

Synthetic Marijuana Not a “Medicinal Product”
European Journal of Risk Regulation 4/2014: pp. 548-552 [Case Note]
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Joined Cases C-358/13 and C-181/14, Markus D. and G. Substances which produce effects that merely modify physiological functions but which are not such as to have any beneficial effects, either immediately or in the long term, on human health, are consumed solely to induce a state of intoxication and are, as such, harmful to human health do not fall within the scope of the definition of a “medicinal product” in the Directive 2001/83 (official headnote). Consumer safety and medicines control legislation is not suitable to penalise the introduction of new psychoactive substances on European markets (author’s headnote). Art 1(2)(b) Directive 2001/83

Elaine Fahey

EU Foreign Relations Law: Litigating to Incite Openness in EU Negotiations
European Journal of Risk Regulation 4/2014: pp. 553-556 [Case Note]
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Case C350/12 P Council of the European Union v. Sophie in ’t Veld Judgment of the Court (First Chamber) of 3 July 2014

Emily Reid

Environmental Liability Directive – A Commentary, by Lucas Bergkamp and Barbara Goldsmith (eds.), Oxford University Press
European Journal of Risk Regulation 4/2014: pp. 557-559 [Book Review]
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In this book David Hornsby brings his background in science and expertise in trade politics to bear in ananalysis of the roleplayed by science intheprocess of engagement with trade conflict surrounding risk regulation. In the introduction, he clearly sets out the intersection between risk regulation and trade, and explains the concernwhicharises fromthis, thatmeasures presented as risk regulationmay be, in fact, disguised trade restrictions.

Joseph Huggard

Environmental Liability Directive – A Commentary, by Lucas Bergkamp and Barbara Goldsmith (eds.), Oxford University Press
European Journal of Risk Regulation 4/2014: pp. 559-562 [Book Review]
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In his introduction, Hans Lopatta, of DG Environment, points out that “more than eight years after its entering into force and five years after its application [...] it seems the right time to look again at some theoretical and practical issues arising under the Environmental Liability Directive” (ELD).

Marcus Klamert

Die Novellierung der europäischen Tabakproduktrichtlinie – Grundfragen der Vereinbarkeit mit EU- und WTO-Recht, by Udo di Fabio, Christian Pitschas and Werner Schroeder, Deutscher Fachverlag
European Journal of Risk Regulation 4/2014: pp. 562-565 [Book Review]
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This is not the first book to critically assess the Commission Proposal for the New Tobacco Products Directive1. It examines a draft that has in the meantime become law.


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