Sustainable (production and) consumption

Interestingly enough, there is a global trend which may one day call into question the present state of affairs in EC consumer law. This is the initiative on sustainable consumption which was launched by the United Nations in 1992, in the framework of their “Agenda 21” initiative.¹⁷This is an attempt to reconcile economic development and environmental concerns. It starts from the assumption that development always means production, and production implies consumption. Therefore, in order to change methods of production, it is also necessary to change methods of consumption.

The OECD, following the Norwegian government in 1994, defines sus-tainable consumption as “the use of goods and services that satisfy basic needs and improve quality of life while minimizing the usage of natural re-sources and toxic materials, as well as the generation of waste and pollutants during the whole life-cycle of the product or service, in order to satisfy the needs of future generations.”¹⁸ While this definition puts the emphasis on environmental aspects, the interesting thing is that it mentions products and services. This matches quite well with an initiative by the United Nations Environmental Programme (UNEP) together with the United Nations De-partment for Economic and Social Affairs (DESA), proposing that sustainable consumption should be considered in relation to the following twelve areas :

– food – mobility

– water – new technologies

– eco-design – advertising

– energy – lifestyle

– housing – textiles

– leisure – tourism.

17 Agenda 21, adopted by the United Nations Conference on Environment and Development, Rio de Janeiro, 14 June 2002, www.un.org/esa/sustdev/documents/agenda21/french/action0.htm

18 OECD, Towards sustainable household consumption. Trends and policies in OECD member states.

Paris : OECD 2002.

The European Union, Consumption and Consumer Law It may be noted that only one of these twelve topics (eco-design) deals directly with environmental issues. All the others are certainly of direct con-cern to consumers, but one may well wonder whether the consumer in the European Union is different from consumers elsewhere, since the great ma-jority of these topics (food, water, eco-design, energy, housing, leisure, mo-bility, new technologies, lifestyle, textiles) do not appear to be part of (EC) consumer policy – nor, consequently, of consumer law.

It might be objected that while EC consumer policy and law do not deal with these topics, they are of course part of Member States’ consumer poli-cies. To this the answer is that EC consumer policy has from the beginning been perceived as a joint venture with national consumer policies. The first step, therefore, is to define, where the consumer problems exist and why they exist. The next step may then be to decide whether the subject-matter should be addressed at EC or at national level or both. Furthermore, two thirds of the topics listed are currently being addressed and regulated at EC level,¹⁹albeit without significant input from consumer law or policy interference.

In what follows I shall briefly survey what work is being done at EC level on each of the twelve topics mentioned, defining potential areas of consumer concern. I cannot go into much detail, as this would require the publication of a book on (un)sustainable consumption within the European Union. My objective is much more modest : to invite consumer lawyers to ask themselves whether they really have cut the cake of consumer law right, or whether the integration clause of Art. 153(2) EC Treaty, together with con-sumer needs and problems, do not require a broader approach than is being taken at present.

4.1 Food

In a more recent publication on the twelve topics, destined for the public at large, UNEP²⁰mentioned the following problems afflicting industrialised countries : obesity ; over-exploitation of natural resources by intensive agri-culture ; the widespread use of chemicals in agriagri-culture which are responsible for serious environmental harm ; loss of biological diversity and soil fertility ; water pollution ; food contamination. To this one might add the use of geneti-cally modified organisms, growth promoters and additives in meat and food and animal feed generally, the problems of organic food, etc. All of these is-sues appear to be of direct and immediate concern to consumers.

19 Food, water, energy, eco-design, mobility, new technologies, textiles and tourism.

20 UNEP, Sustainable consumption and production, Paris 2003.

Ludwig Krämer

The hormones saga is worth mentioning. In 1980, the Italian government prohibited the serving of veal in kindergartens on the grounds that it con-tained too many hormone residues and was causing precocious breast de-velopment in small children. When the same phenomenon was discovered in France, the Union Française des Consommateurs called for a consumer boycott of beef which was soon taken up in Belgium, Italy, the Netherlands and Denmark. Sales of beef in the European Union fell by 60 percent. Con-fronted with this situation, the EC Council of Ministers, after considerable hesitation, banned the use of artificial growth promoters in meat throughout the European Union. More than ten years later, the USA cited the European Union before the World Trade Organisation (WTO), arguing that the ban on artificial hormones in meat was illegal under WTO rules. In 1999 the US won the case, as it turned out that the EC had not made a proper risk assessment before imposing the ban. Since then the EC has continued to ban the importing of meat with hormones, but is also paying over 115 million dollars compensa-tion annually to the US. Having made a risk assessment and revised its leg-islation, in November 2004 the European Union asked the WTO to overturn the earlier decision. The case is pending at present.

From the consumer law perspective, it is hard to ignore the impact of growth promoters in meat on consumers’ health. Allergies and other food-related health problems are on the increase everywhere in the European Union. The question of organic food is becoming more and more important politically. To give an example, it would be feasible to subsidise organic farm-ers so they could market their products at the same price as traditional ag-ricultural products. But the organic lobby is too weak, and the mainstream argument is that food law and agricultural issues are not even part of con-sumer law or policy. British concon-sumer organisations have been demanding reform of EC agricultural policy for decades, but they are a minority in the consumer movement. Must we conclude from this that consumer organisa-tions merely echo their master’s (or government’s) voice ?

Whether the arguments against hormones apply mutatis mutandis to ge-netically modified (GMO) food and animal feed is a question worth asking. It seems clear that the vast majority of European consumers do not want GMO food. With big agricultural surpluses in the EC, it is pertinent to ask whether this technology is really needed in agriculture : it helps industry more than the individual farmer and certainly has a considerable impact on the envi-ronment. The European Commission is in favour of bringing this technology into the shops and on to consumers’ tables. The argument that the consumer can freely choose between GMO food and GMO-free food is a farce, in view of the millions of consumers who eat in restaurants, canteens and other com-munal places, where no information whatsoever is available. Is consumer law really entitled to ignore the ongoing battle to introduce GMO foods in Europe and worldwide ?

The European Union, Consumption and Consumer Law There are more problems in food and feed which cannot all be discussed here, such as animal welfare and livestock rearing and transport, the causes of obesity, the use of pesticides and chemicals by the agro-food industry, and even such banalities as the labelling of alcoholic drinks. Consumers and food laws are a problem that is of day-to-day relevance and must not be set aside and left to technicians.

4.2 Water

Water quantity issues have hardly ever been addressed by the EC until now, and yet there are growing problems of water supply, not only in Southern Europe but also in some of the new Member States. Consumer organisa-tions show very limited interest in this question, even as regards cost : they have not asked for prices to be adjusted to consumption, and show little con-cern about the facts that about seventy percent of available water is used in agriculture ; or that soil erosion and desertification are on the increase in Southern Europe ; or that a golf course consumes as much water as a town of 10,000 people. Nor, of course, does anybody care that in third world coun-tries, big European and other companies are profiting from the privatisation of water supplies to increase prices by 500 percent or more.²¹There is little input from consumer lawyers or consumer organisations to the growing international demand for access to (clean) water at reasonable prices to be considered a human right, and little interesting in exploring how the law can contribute to making this a reality.

As for water quality, consumers all over the European Union use drink-ing water every day. For more than 25 years EC legislation on the quality of drinking water has required tap water to be of specific quality, but the Eu-ropean Union has not managed to publish a single report on the quality of drinking water in the EC. Consumers who travel to Southern Europe in sum-mer are still frequently advised not to drink tap water. Why is that so, after 25 years ? Are coastal zones, river and lake water quality really not a concern of consumer law ?²²The discharge of untreated urban waste water into rivers

21 Recently the media reported that some twenty United States universities were boycotting Coca-Cola because of its water use practices and the social standards it applies in developing coun-tries (see Süddeutsche Zeitung, 11 January 2006, p.11 : “Zynische Realität. US-Universitäten mobilisieren gegen den Coca-Cola Konzern”). These students appear to be more (third world) consumer-minded than European consumer organisations.

22 EC Directive 76/160 on the quality of bathing water has been in existence for thirty years : OJ 1976 L 31 p.1. It is about to be reviewed. It raises numerous legal problems about the sampling of bath-ing waters, measurbath-ing techniques, their frequency and quality, the use and abuse of (private) quality labels, transparency, consumer information etc. Most recently the European Commission expressed public concern about Spain’s way of applying the Directive to inland bathing waters : see Commission, Press Release No. 105/03 (25 November 2003).

Ludwig Krämer

or the sea is a practice that many European cities, including Brussels, have still not yet completely abandoned. How can consumers not be concerned by such practices and how can consumer lawyers think that this is irrelevant to consumer law ?

4.3 Housing

The riots in the French suburbs and cities in autumn 2005 made it starkly clear how important town and country planning is to citizens and con-sumers. The inhabitants of suburbs and inner city areas which lack commu-nication infrastructures and urban cohesion are likely to feel isolated, to say the least.²³The violation of cities by cars, the ghettoising of minorities (are they not consumers too ?), the problems of integrating new arrivals and the over-emphasis on outsize consumer outlets make town planning a very diffi-cult political, economic, social, diffi-cultural and legal challenge. Affordable flats, apartments and houses are part of any reasonable government’s policy and have been so in Europe for more than 100 years. To call people who do not own their own accommodation “tenants” instead of “consumers” is a mere semantic quibble.

Inside individual dwellings, heat- and sound-proofing affects people’s quality of life. Heat insulation is thought to have the greatest energy-saving potential with regard to the emission of greenhouse gases and climate change. Access to water, energy and a waste collection system is vital for individuals,²⁴and all have to do with the management of natural resources.

These services are still not metered everywhere in the EC, in direct contradic-tion to principles such as transparency and payment by the user/consumer rather than the taxpayer.

4.4 Energy

Consumers obtain warmth and electricity from energy. However, in an oli-gopolistic market energy prices, contracts and consumer choice are hard to keep track of ; in an internal EC energy market, for instance, consumers who

23 Helmut Berking-Marina Löw : Wenn New York nicht Wanne-Eickel ist. Über Städte als Wissens-objekt der Soziologie, in : H. Berking-M. Löw (eds) Die Wirklichkeit der Städte, Baden-Baden : Nomos, p. 9 : “In den Städten verweilt das Gedächtnis der Menschheit. Städte sind Weltanschau-ungen, Lebensformen, Philosophien, Räume des Begehrens, Arenen der Macht und ihres Ver-falls.” (“Human remembrance lingers in the cities. Cities are a world view‚ a way of life, a philoso-phy, a focus of desire, an arena of power and its downfall.”)

24 Germans use the word Daseinsvorsorge, which has no equivalent in other languages but might be translated as “concern for existential needs.”

The European Union, Consumption and Consumer Law vote against nuclear energy in referendums may unknowingly be getting nuclear electricity from other countries. Alternative energy technologies which also favour the autonomy of the individual consumer find it hard to get access to markets in the teeth of powerful vested interests such as petrol and gas suppliers, coal producers and the nuclear industry. The law is there to protect the weak against the strong. Consumer law is urgently needed to assist energy consumers.

4.5 Advertising and marketing

UNEP considers that advertising and marketing encourage over-consump-tion and have been responsible for a 400 percent increase in personal expen-diture over the last forty years, quite apart from the visual pollution of cities, landscapes and even works of art, such as television programmes or movies.

National standards become obsolete when television crosses frontiers. The phenomenon has not yet appeared on the agenda of European consumer law or policy and at present comes under the heading of “consume and be silent.”

There has been hardly any research into the right of humansnot to have to listen – to muzack or advertisements in buses, metros and trams, shops etc.

Other consumer-relevant aspects concern the use and abuse of words such as “bio” or “natural” in advertisements or on labels, the lack of a “GMO-free”

label, the proliferation of eco-labels and the standards which underpin these labels and which are not always ecological.

4.6 Eco-design of products

Eco-design tries to minimise the negative impact of a product on the environ-ment throughout its life-cycle, including the use of natural resources, energy and water during the production process, the packaging, transport and use/

consumption stage, and the generation of waste requiring treatment or safe disposal. Consuming more and more at less cost leads to the overexploitation of natural resources, air and water pollution, waste generation and the loss of natural habitats.

EC ideas in this area – or the lack of ideas – were published in commu-nications of 2001 and 2003²⁵which favoured non-legislative action and life-cycle considerations. A recent directive,²⁶unconnected with these reflections, established an EC-wide framework for better eco-design of products, though

25 Commission, Green paper on integrated product policy, COM(2001) 68 ; Communication on inte-grated product policy, COM(2003) 302 of 18 June 2003.

26 Directive 2005/32 on energy-using products, OJ 2005, L 191 p. 29.

Ludwig Krämer

limiting itself to energy-using products. This legislation gives a concrete example of what a modern European ecology-oriented, consumer-friendly product policy might look like one day, though it was actually drafted in the EC’s energy department in response to the ongoing climate-change debate.

4.7 Textiles

Textiles can be produced more cheaply in the Third World than in Europe.

Until recently, the EU prevented the liberalisation of textile imports from third world countries in order to protect its own textile industry and workers.

In the Third World, production methods are often seriously sub-standard.

When South Africa applied apartheid in the mid-eighties, the EC publicly denounced it, advised its companies which were active in South Africa not to practise apartheid and took a generally positive view of consumer boycotts of South African products. We have seen no trace of any similar reactions to child labour, slave labour, unfair contract terms with sub-contractors or pro-duction methods for textiles that are grossly polluting (pesticide use, water and energy consumption, use of dangerous substances for dyeing, etc).

4.8 New information technologies

While new technologies and techniques (internet, mobile phone, comput-ers etc) increase the democratic potential of societies by giving large parts of the population access to communication and information, there is also a negative side. Computer addiction among the young is one aspect ; the use of raw materials (the making of a mobile phone that weighs about 85 grams requires about 75 to 100 kg of raw materials), the content of heavy metals and other harmful substances and the huge generation of electrical and electronic waste are others. While the EC has introduced legislation on electrical and electronic waste, it is not yet fully operational in all 25 Member States. New national provisions will be measured against that legislation, though it is doubtful that the Directive will really lead to cleaner products containing fewer hazardous substances.

4.9 Mobility

Some of the consumer problems linked to mobility have already been men-tioned. Others concern mobility in cities, the provision of cycle lanes and the need to do more than pay lip-service to the promotion of public against private transport. I cannot understand why consumer lawyers do not even

The European Union, Consumption and Consumer Law comment on the deliberate EC policy of leaving it up to individual airports to solve the problem of aircraft noise affecting the surrounding population, when it is obvious that for reasons of competition, restrictions on night flights etc. require EC-wide solutions.²⁷Whether they live next to Madrid-Barajas, London-Heathrow, Frankfurt am Rhein/Main, Zurich-Klothen, Amsterdam-Schiphol, Brussels-Zaventem or Lisbon-Portela, consumers everywhere are told that their requests for night flight restrictions cannot be met because the airlines would then go to another airport.

Why do consumers have to wait for EC legislation made under environ-mental auspices to require noise maps for roads, railways, airports or other places potentially subject to noise restriction measures, where more than sixty percent of the population in the fifteen countries of the previous EU were already complaining of too much traffic noise ? Why does EC legislation on noise emissions for cars, motor-cycles and airplanes alwaysfollowand not precedetechnical developments ?

4.10 Tourism

Though there is no full-fledged EC jurisdiction over tourism, there is EC

Though there is no full-fledged EC jurisdiction over tourism, there is EC