Abstract
Food security encompasses access to nutritious and safe food and sufficient calories, these being the key elements of the human right to adequate nutrition. However, not every person has the same dietary needs, despite the 2200-kcal minimum intake suggested by the Food and Agriculture Organization (FAO). After all, food intake depends on region, culture, religion, work and education—to name but a few of the many salient factors. It is thus imperative that consumers are aware of the specifics of what is in the food they consume, so they can make informed decisions. The ‘right to information’ and its concomitant ‘obligation to inform’ thus play an important role in the effectiveness of the general human right to adequate food. This chapter therefore details the interrelations between food security, consumption and the right to information, addressing in particular the labelling of food items and its role in helping consumers choose their groceries properly, as well as how it may assist sustainable consumption patterns more generally.
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Notes
- 1.
Cerri (2013).
- 2.
Salzman (1997), p. 1246.
- 3.
Brazilian Ministry of Environment (n/d).
- 4.
Sachs (2009), p. 35.
- 5.
Kuhn (1970), p. 146.
- 6.
Squeff (2016), pp. 11–25.
- 7.
United Nations (1992a).
- 8.
Brundtland (1994), p. 62.
- 9.
United Nations (1987).
- 10.
- 11.
Sanz (2018).
- 12.
Maluf et al. (1996), p. 74.
- 13.
- 14.
Thrupp (2000), p. 275.
- 15.
Valente (2003), p. 53.
- 16.
Jonsson (1986), p. 50.
- 17.
Castro (1957), pp. 90–91.
- 18.
Beurlen (2009), p. 23.
- 19.
- 20.
- 21.
Mackerron and Sow (2011), p. 117.
- 22.
On the different approaches to behavioral economics, see Korobkin and Ulen (2000), pp. 1071–1074.
- 23.
Roberts (1997), p. 161.
- 24.
- 25.
Pinheiro and Saddi (2005), p. 168.
- 26.
For a critical approach, see: Sen (1977).
- 27.
Friedman (1953), pp. 15, 22, 31.
- 28.
Thaler and Sustein (2009), p. 3.
- 29.
- 30.
- 31.
According to Grère and Rao (2007), pp. 51–52: ‘[d]uring the last ten years, more than 40 countries have adopted labelling regulations, but the characteristics of the regulations and their degree of implementation vary greatly. While a large majority of countries belonging to the Organization for Economic Cooperation and Development (OECD) have implemented some type of labelling policy, only a few developing countries have introduced labelling laws, and even fewer have implemented them.’
- 32.
Brazil (2003), Art. 2: ‘In the marketing of food items and food ingredients intended for human or animal consumption containing or produced from genetically modified organisms with a presence above the limit of 1% of the product, the consumer shall be informed of the transgenic nature of that product.’
- 33.
It is imperative to highlight that this order altered the prescription established by Decree No. 3871 of 18 July 2001, which prescribed that consumers be alerted to the existence of GMOs only if the content exceeded 4% of the product. See Brazil (2001), Art. 1.
- 34.
For bioethics, ‘risks relate to future damage and are estimated by a scale of probability by which they succeed’ (Junges 1999), p. 48.
- 35.
Uncertainties are related to the risk society, where there is an increased increase in technical options entailing the incalculability of its consequences so that the effects are unknown and unexpected (Beck 1992, p. 22).
- 36.
Beck et al. (1997).
- 37.
In this context, one can quote Warat (1994), who asserts that ‘with modernity a cycle of questions and answers was finalized. And what is called postmodernity is a time interval in which the questions are not known, but in which, on the other hand, we will have to be prepared to construct answers’ (p. 84).
- 38.
Benjamin (2012), p. 235.
- 39.
Currently, as noted by Efing et al. (2008), the collectivity of individuals is day after day more ‘unconscious[ly] manipulated by forces like the market and the big corporations, that in search of the profit guide the wills of the people’ (p. 10). Therefore, the State must act to impede such obscure future that tends to violate human dignity.
- 40.
For a discussion regarding choices and human dignity, especially addressing the idea that choices are not directed to gain advantage over the others, but to preserve one’s well-being, see Nussbaum (2013), p. 248.
- 41.
Braga and Piovesan (2016), p. 319.
- 42.
Other important prescriptions in comparative law can also be pointed out, such as the inclusion of the right to information in the ‘EEC Preliminary Program for a Consumer Protection and Information Policy’ as one of the rights consumers in the EU have since 1975. See Fellous (2003), pp. 102–106.
- 43.
Kennedy (1963), pp. 235–243.
- 44.
Cavalieri Filho (2016), p. 6.
- 45.
Miragem (2010), p. 65.
- 46.
Marques (2006), p. 147.
- 47.
See the excellent study by Lorenzetti (2000), who advocates for the existence of a new fattispecie, characterized by an increase in social complexity. This would give rise to a new conceptual and legal technique for legal relations that are different from consent—as for personal ties—and adhesion—to mass relations; namely, an offer based on appearance and acceptance based on trust. He formulates a new form of binding for the parties—in this case, a contractual one, applicable only to what he calls ‘complex contracts’—based on their factual behavior, generating a situation of appearance and trust, which must be protected by law. This new form of linkage would be grounded in what the author calls ‘expert systems’, into which contemporary society would be inserted. On expert systems, or what he also refers to as ‘abstract systems’, see Giddens (1991). The author states: ‘[b]y expert systems I mean systems of technical excellence or professional competence that organize large areas of the material and social environments in which we live today’ (Giddens 1991, pp. 35–37, 87–91).
- 48.
Trust acts as a true mechanism for reducing social complexity. On the function of trust, see Luhmann (2000), pp. 27–38.
- 49.
Lapeña (2005), p. 158.
- 50.
It is important to highlight that on 2 July 1890, the ‘Sherman Act’ was enacted in the United States, which not only sought to promote free competition and restrict market monopoly, but also set the basis for other laws implemented worldwide regarding fair market competition. See Gloria (2003), pp. 61–62.
- 51.
See the now classic description of the meaning of the ‘strict good faith’ made by Claudia Lima Marques: ‘Strict good faith means, therefore, a ‘reflected’ performance, an action of consideration, thinking about the other, the contractual partner, respecting her legitimate interests, their reasonable expectations, her rights, acting with loyalty, without abuse, without obstruction, without injuring or causing excessive disadvantage, cooperating to achieve the good end of the obligations: the fulfillment of the contractual objective and the realization of the interests of the parties’ See: Marques (2006), pp. 181–182.
- 52.
Expressly provided for in Article 4 of the CPC.
- 53.
Tomasetti Jr. (1992), p. 53.
- 54.
Lôbo (2001), p. 61.
- 55.
In a complementary sense, Barbosa understands that the right to information (in the sense of enforcing a provision) is a fundamental (constitutional) consumer right, implicitly foreseen in the Federal Constitution, deriving from the principle of human dignity, and from systematic interpretation of the Constitution itself in harmony with the CPC. See: Barbosa (2008), pp. 45–54.
- 56.
Lôbo (2001), p. 62.
- 57.
Fabre-Magnan (1992), pp. 4–5.
- 58.
See Bruno Miragem’s statement on the matter: ‘It should be noted that […] the right of information presents its co-respective effectiveness when imposing on suppliers in general the duty to inform’ (Miragem 2010, p. 121).
- 59.
The application of the principle of good faith in obligation transactions has transformed its own conception, and is no longer considered as a simple static relation, represented only by the duties of provision and consideration, but one that should be conceived as a complex (made of other duties of conduct, besides those duties of provision) and variable (from which its conception as a process derives) structure. Regarding the transformation of the obligation relation through the influence of good faith, see: Larenz (1987, p. 6 et seq). On Brazil, see Silva (1976); Stiglitz (1997), pp. 11–12. Stiglitz specifically refers to the new duties of the obligation relations, which will be called as ‘secondary rules of conduct’, namely ‘[those] manifestations of contractual good faith, which translate into generic categories such as cooperation and loyalty, and specific directives that operate as detachments from the previous ones, such as information, fidelity, commitment, capacity of sacrifice, aid to the other part, etc.’
- 60.
According to Larenz, obligation relations (mainly those of contractual origin) consist of performance duties (giving, doing or not doing) and other duties of conduct. Performance duties have their content determined from the beginning of the relation, and the provision should result in the achievement of a specific outcome. They are divided into primary provision obligations (which determine the type of the obligation relation) or secondary provision obligations (that derive from default). Those would even include a further subdivision into a primary type (which determine the features of the provisions) and a secondary type (regarding other agreed duties). The other duties of conduct, in their turn, reflect, in a general sense, the duties of protection and loyalty; they are not related to a specific type of obligation, being content determined and developed throughout the relation, and which may vary in its intensity. They mean that the parties must behave as the situation requires to avoid harm and to the extent of achieving the purpose of the obligation; thus, it does not seek an exact result, but it only requires a certain behavior (Larenz 1987, pp. 6–15).
- 61.
Rubén S. Stiglitz says that ‘[t]he pre-contractual duty of information seems to integrate a broader one, that of cooperation, even if one and another are necessary derivatives of good faith’ (Stiglitz 1997, p. 13). On the matter of cooperation, Wilhelmsson warns that it is now a new way of approaching the contractual relation, replacing the traditional antagonistic approach. According to him, ‘the contract is seen and evaluated more as a form and tool of cooperation, with the objective of achieving results according to the purposes of the contract’. see: Wilhelmsson (1996), p. 11.
- 62.
Stiglitz states that ‘[t]he duty of information constitutes a legal obligation, based on an accessory rule of conduct, whose content consists of cooperating, from the negotiations stage, with who is in a weakened position in relation to the person who provides the information’. Stiglitz (1997), p. 12 (emphasis added).
- 63.
Lôbo states that ‘[T]he duty of information is not only the realization of the principle of good faith. In the evolution of consumer law, it took on an increasingly ‘strict’ nature in relation to the licit activity of supplying products and services. … The development of consumer law went even beyond, transforming it into the co-respective of the right of information, as a fundamental right, and ascending it to the level of a legal constraint and of a decisive guide to the content of the supplier’s main provision. It is not just an attached duty’ (emphasis added) (Lôbo 2001, p. 67).
- 64.
Likewise, in Canada, where, according to Nicole L’Hereux, both federal and provincial legislators have imposed on the supplier an obligation of contractual information. See: L’Hereux (2000), pp. 273–275.
- 65.
Tomasetti refers to sufficient information, and states that ‘[t]he transparency model implies not only the diffusion of information, but also the efficiency of the informational message. Efficient information can be said to appropriately (wholly or highly satisfactory) achieve the objective of transparency, enabling the consumer to act in accordance to the weighting and ordering of the five behavioral rationality variables considered.’ The five variables proposed by the author are: ‘(a) critical awareness of the desires of consumption and the prioritization of the preferences that concern them; (b) the possibility of being ascertained, in accordance to technical and economic criteria accessible to the layman, the qualities and price of each product or service; (c) creation and multiplication of opportunities to compare the variety products and services; (d) knowledge of the subjective and proper legal positions that manifest themselves in the contextuality of the endless series of consumer situations and; (e) expedite and effective preventive presence of the State, as in mediating or deciding over the conflicts in the consumer market’ (Tomasetti 1992, pp. 57–58).
- 66.
See Brazil (1990), Art. 31: ‘The offer and the presentation of products and services must include correct, clear, precise and ostensive information that is published in the Portuguese language [...]’ (emphasis added).
- 67.
See Brazil (1990), Art. 46: ‘Contracts governing consumer relations shall not oblige consumers if they are not afforded the opportunity to have prior knowledge of their content or if their instruments are worded in such a way as to make it difficult to understand their meaning and scope’ (emphasis added). Furthermore, Article 54, paragraph 3, stipulates that: ‘Written adhesion contracts shall be written in clear terms and in clear and legible characters, in order to facilitate its understanding by the consumer’ (emphasis added). Besides, Article 54, paragraph 4, establishes that: ‘Clauses that imply limitation of consumer rights should be drafted with prominence, allowing their immediate and easy understanding’ (emphasis added).
- 68.
Lôbo (2001), p. 74.
- 69.
The following conclusion was unanimously approved at the Fifth Brazilian Congress of Consumer Law promoted by BRASILCON: ‘It is the duty of the supplier in the consumer relation contracts to keep the consumer adequately and permanently informed of all aspects of the contractual relationship, especially those related to risks, quality of the product or service or any other relevant circumstance to its consumption decision throughout the period in which the contractual relation lasts’ (Benjamin et al. 2010, p. 69).
- 70.
Macedo Jr. (2000), p. 120.
- 71.
See Brazil (1990), Art. 37: ‘All misleading or abusive advertising is prohibited. Paragraph 1: Any type of information or communication of an advertising character, totally or partially false, or in any other way, even by omission, that is capable of misleading the consumer regarding the nature, characteristics, quality, quantity, properties, origin, price and any other data on products and services is misleading.’
- 72.
Lôbo (2001), p. 70.
- 73.
Marques states that the transparency of the market carried out through information ‘governs the pre-contractual moment, the eventual conclusion of the contract, the contract itself and the post-contractual moment’ Benjamin et al. (2010), p. 68.
- 74.
On re-insertion of rationality in the process of consumer decision-making and the autonomy of the rational will, see: Chardin (1988).
- 75.
This statement was made by Tomasetti Jr. (1992): ‘Information has a functional sense of rationalizing consumer’s options’. He continues: ‘The rationalization of business declarations and legal consumer relations is a result that is not obtained by the suggestion (advertising, in particular), which primarily acts by encouraging human senses’ (p. 53).
- 76.
Braga and Piovesan (2016), p. 321.
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Ramos, F.D., Squeff, T.C. (2020). The Importance of Labelling Food Items: Information, Food Security and Sustainable Consumption. In: Amaral Junior, A.d., Almeida, L.d., Klein Vieira, L. (eds) Sustainable Consumption. Springer, Cham. https://doi.org/10.1007/978-3-030-16985-5_14
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