Food Diversity Between Rights, Duties and Autonomies

Preserving agro-biodiversity can contribute to the broader goal of protecting and enhancing biodiversity. Acknowledging and managing the complexity of values connected to agro-biodiversity, translating them in coherent practices, is the key to its conservation and valorisation. These processes may take place at different stages of agro-biodiversity management and interact with other factors, dynamics and processes that intervene in it.

This study presents the EU funded DIVERSIFOOD project as an exemplification of the comprehensive approach that is needed to effectively preserve and enhance agro-biodiversity. The main objective of the project is to deepen the factors and processes of various nature that can support the reintroduction of biodiversity in cropping systems, improve its management and promote a social and economic valorisation of final food products. To that end, the project explores the processes underlying the re-shaping of practices according to the objective of agro-biodiversity enhancement in all the stages of the food chain.

The need to consider the different perspectives on values and ways of preserving agro-biodiversity, together with the development of new shared knowledge and practices underlies the adoption of participatory, multi-actors approaches to each of these stages. Similarly, an inter-disciplinary approach, aimed at combining natural sciences and social sciences characterises the work of researchers.

The balance between environment, profitability and social needs that distinguishes the agricultural system of integrated food production has led Europe to a rethinking of the current parameters of agricultural sustainability. Such a rethinking, which became mandatory with respect to a minimum standard for all producers, may affect the level of food diversity in two different ways: one positive, because integrated production (IP) represents a different way to produce food and feed oneself, so with the setting of the standard it will be protected like any other production system; one negative, because, in representing a “goal to be reached”, it may result in losses in terms of the plurality of types of supply chains, now protected through the application of the principle of coexistence. In another area, and more specifically in Italy, this balance has also imposed changes in the administrative organisation, particularly in the coordinating bodies, assigned by the Ministry of Agricultural, Food and Forestry Policy (MIPAAF) to develop the regulation of IP. Now, the balance is expressed through the strong technicalisation of the aforementioned bodies, made necessary by the nature of the object of the regulation, which requires the presence and collaboration between experts from long-time sectoralised fields, such as the natural sciences and the social sciences.

The development of biotechnology and agrobiodiversity and food diversity influence each other mutually. In this contribution the development of (agro-industrial) biotechnology is analyzed as being shaped and shaping the social conflict on the emergence of agro-industrial food chains. It is argued that biotechnology is related to a spatial transformation of agro/food production, strengthening three historical processes of separation and establishing new techniques of governing human and particularly scientific workers (immaterial labor). It is argued that biotechnological products—seeds, enzymes, biocatalysts and microbiological produced food components—are politicizing products creating new social relations in global food systems and establishing a new biopower system, shifting politics from policy-makers to the domain of science and technology.

However, it is also argued that the emergence of this new system of biopower through the politicization of biotechnological products embedded in the spatial reorganization of food production is challenged, it is suggested, by the development of a space to maneuver with multiple practices of resistance, transforming the politicizing products of biopower into catalysts for multiple, location-specific developments. The contribution concludes by reflecting on these practices of resistance and rewriting the embodied political content of agro-industrial biotechnology and to transform it into tailor-made biotechnologies related to the perspectives of agrobiodiversity and food diversity. Conversely, the contribution focuses on the question whether and in which ways a critical-reconstructive approach can be applied to agro/food biotechnology.

Agro-ecology and Geographical Indications (GIs) share the underlying assumption that traditional agriculture, as opposed to agro-alimentary industry, is the most effective production paradigm to keep balanced levels of production while preserving economic value, culture, traditions and the environment. The EU and some DCs and LDCs promote GIs at the WTO (TRIPS Council) as cultural and environment-friendly marketing tools to foster sustainable development and traditional agriculture, also protected as ‘cultural expression’ and ‘intangible heritage’ by the UNESCO Conventions. US, Canada, Australia and some DCs oppose this view claiming that GIs effectiveness as ‘cultural guardians’ and ‘income generators’ or ‘environmental tools’ is unproven. GIs did not prevent in the 1990s both the abandonment of traditional grapes in Tuscany to align local wines to international taste (‘Supertuscans’) and the rise of Australian wine exports at the expense of the European ones. However, a rigorous legal and economic assessment shows that GIs are designations used in global markets to distinguish ‘niche’ products with an essential link with the terroir and that they command an ‘extra-price’ from consumers in exchange for ‘quality’. Thus, economic success and, eventually, traditions and biodiversity preservation are not a legal automatism but depend on public recognition. The decrease in EU world wine exports of the 1990s might be also related, more than to the failure of GIs provisions, to the surge of new wine-producing countries and the wave of Wine Trade Agreements signed by the EU (Australia, Chile, South Africa), providing for the prohibition of free-riding on EU famous names and forcing the use of local designations. A sample review of ‘quality regulations’ of selected EU GIs provides evidence of some excellent standards designed to protect traditions and the environment, but this is not always true. As the normative demand for traditional and environmental standards appears not to be strictly binding in EU GIs law but rather a ‘non easily enforceable’ invitation to act, CSR incentives at EU or Member States level may enhance voluntary adoption of best practices, so as to increase cultural, social and environmental added value in GIs quality regulations (but also geographical collective marks), together with greater coordination of public policies that have a bear on GIs earning potential. This may prove effective also in exceptional cases as part of the policies to face plant epidemics (such as the ‘Xylella’ bacterium in the South of Italy), environmental accidents or excessive urbanization and depletion of agrobiodiversity and as a tool to ease coordination and restructuring of production to face increased competition on the global markets, while counterbalancing negative perceptions by the public.

On 14 December 2012, Reg. (EU) 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs (the “Quality Schemes Regulation”) was published in the EU Official Journal. The adoption of the Quality Schemes Regulation places itself in the context of a broader revision regarding the entire quality policy for European agri-food products to enhance this policy’s potential contribution to achieving the objectives of the CAP (Common Agricultural Policy). Enhancing the agri-food quality policy, which is one of the major strengths of European agriculture, permits the emergence of a more competitive economy. The European agri-food sector, thanks to the high quality of its products, enjoys an excellent reputation in the international community. For this reason, it is necessary to improve the way in which this quality is communicated. The Quality Schemes Regulation covers the provisions on PDO, PGI and TSG schemes. This Regulation has introduced several changes, aimed at strengthening the quality schemes for European agricultural products and foodstuffs, such as: the mandatory requirement for Member States to put in place administrative and judicial procedures to prevent or stop ex officio the unlawful use of a protected geographical indication, new rules on the TSG scheme, the introduction of the optional quality terms as a new quality scheme. However, there are serious doubts that the quality system, as devised by the Quality Schemes Regulation, can ensure to all the registered PDOs, PGIs and TSGs the visibility they deserve, as well as the protection they need at the international level (especially in view of the FTA US-EU).

There are significant differences between the systems of rural development and local food promotion within the United States and the European Union. Focusing on their various levels of government, namely the overarching US federal government and the supranational EU level, US states and EU Member States, and local level initiatives, there is a need to explore the various types of local food promotion: on-farm, off-farm, public procurement, etc. Some of the laws and policies to be assessed for their contribution to local food system promotion are: the Rural Development Programmes under the EU Common Agricultural Policy, the US Farm Bill, EU quality scheme regulations, and the Know-Your-Farmer Know-Your-Food program and Farmers Market Promotion Program in the US. This comparative analysis can demonstrate that the US is generally more focused on providing financial incentives to promote local food, while in the EU a regulatory approach alongside financial mechanisms is utilised. Both systems use technical assistance, awareness raising, local procurement and tailored food processing requirements for small local producers to promote local food, but with the LEADER programme emphasising local collaboration and development, the EU is also found to take more of a cooperative approach than the US.

This chapter intends to highlight how the emergence of EU and Italian interest in local food plays an important role in changing the criteria for choosing which forms of the “short supply chain” will be incentivized in the agro-food system.

The fact that the “short supply chain” has become an instrument of policies aimed at promoting local food consumption is the result of various reasons, which overlap those that have traditionally driven economic sector studies and supported initial national legislation on the direct sale of products by farmers. The nature of the “new” reasons are both environmental, such as the reduction of transport emissions or food waste, and socio-economic, such as the development of local production and recovery of the direct citizen-farmer relationship with implications also for food safety.

This is evident at European level, as evidenced by the rural development policy for 2014–2020 and the European Commission report on the adoption of a new local farming and direct sales labelling scheme, and at an Italian level in recent regional measures.

The strong action of the European legislator in the field of food safety leaves only a small space of autonomy to the national and regional levels. The same cannot be said for the protection of food quality. Indeed, National authorities can create food quality promotion and protection systems, alternative and complementary to those of the European Union (Regulation 1151/2012). But, being managed by public bodies, the national certification schemes cannot entail restrictions based on the national origin of producers or otherwise impede the single market. Moving from these considerations, this chapter deepens the issue of compatibility between European law and national and regional schemes for the promotion of typical and local food products, such as those that introduce public geographic trademarks with the aim of highlighting the typicality of the product or specific features linked to its place of origin. After a brief overview of the events that led Member States to repeal many national and regional laws establishing origin trademarks this chapter focuses on the recent positions of the European Commission and of the Court of Justice on this issue and on the characteristics of regional marks and labels considered to be compatible with EU law. Finally, using Italy as an example, this chapter describes some regional quality labels and focuses on the difficulties in finding solutions that strike a balance between the needs of producers and consumers and the principle of the free movement of goods.

There are no doubts that typical foods (and traditional popular dishes) are part of the cultural heritage of a place and of a people. As Massimo Montanari says, food and above all typical and quality foods constitute culture. But can typical dishes and above all the Mediterranean diet, which is made up of typical dishes, be considered cultural heritage and as such be subject to the same forms of protection that apply to material cultural heritage?

Although being part of the intangible cultural heritage, the Mediterranean diet is much more than a cultural asset: the regional laws (Campania 6/2012 and Calabria 45/2013) that deal with this matter embrace a series of tangible elements that range from the promotion of multifunctionality in agriculture to the protection of the landscape, of natural historic and cultural heritage, sustainable tourism, healthy diets, health protection and cultural activities. If there is any sense in keeping the regions, some matters must necessarily be of exclusive competence of such autonomous bodies. This is undoubtedly the case of intangible cultural assets that arise from the local reality and that deserve adequate promotion and appreciation by such local entities.

The chapter aims at analyzing, both under a sociological and an economic perspective, the growing importance of gastronomy and typical food in the tourism experience. In this context, it will discuss the three main approaches to describe the role of food at tourist destinations. The chapter will then critically consider the reasons to choose typical foods or to rely on food that is very similar to the one consumed in everyday life. Lastly, it will analyze the role of globalization on local food consumption by tourists.

Starting from the concept of “invented traditions” coined by E. J. Hobsbawm and T. O. Ranger in 1983, this contribution examines how the misrepresentation of national histories can be prejudicial. An analysis of how this term may be applied to Ancel Key’s invention of “the Mediterranean diet”, after his 1952 journey to Italy, follows. According to Keys, a Mediterranean diet prevents heart disease, because of the appropriate combination of vegetables, carbohydrates, natural proteins and olive oil, thus explaining the low cholesterol rates in the Mediterranean area compared to those of people living in the US.

However, although Keys’ intuition may be correct from a clinical point of view, his all-encompassing historical reconstruction reveals itself to be an imaginary description of a world that has never existed. This perspective proves to confound classical antiquity with a modern way of life, based on exotic and orientalistic view of the Mediterranean area. While this reconstruction strongly contributed to the declaration of the Mediterranean diet as intangible cultural heritage by UNESCO in 2010, it is worth underlining that this decision was made at a time when globalization is widely menacing local communities with well-defined cultural identities.

The authors’ reflection develops from the consideration that the growth of the world population along with the more than proportional increase in food consumption (an effect of the increase in incomes) will determine a consistent increase in cultivated products demand. It will be then necessary, at a global level, to increase the number of cultivated surfaces, and to introduce technological innovations that will allow for an increased production.

The World Population Prospects 2014 shows that the world population increase of more than 2 billion expected by 2050 will not be uniform. In fact, such increase will be more concentrated in the less developed countries, that is exactly where food demands will grow more than proportionally. This undesirable trend in population and consumption distribution represents since now a crucial issue for international actors.

The food security objective—while theoretically achievable through a significant increase in the production of cultivated products—would have dramatically negative effects on environmental equilibriums. A further, irreversible loss of biodiversity and the definite damage of the ecosystem are among such effects. The international community is still far from adopting a global strategy to deal with these issues: food security is one of the most important challenges that such community must face in the near future.

Within the wider and more general debate on food diversity, the specific subject of food security and safety, in its twofold meaning—quantitative of security and qualitative of safety—is the crucial and at the same time problematic key point.

This subject that involves assets, the fundamental interests and values typical of modern societies and systems, is also an important objective whose enforcement depends on concept and actions, partly complementary and partly different, such as the right to adequate food, food sovereignty and a free market.

Thus, a relational system follows, also from the legal standpoint, which is multi-dimensional by nature and consistence—or, rather, we find various and distinct, competitive and not always communicating groups—where interaction between different realities is continuous and constant.

Hence, a fairly articulated and complex reference framework appears, often difficult to reduce to units. From this emerges, as the most aggregating and urgent linking feature, a communal sense of duty about food security and safety to which everyone is called to contribute.

Without claiming of exhaustivity, this work aims at verifying the possibility to consider food as a common good from a juridical perspective. In fact, it seems that so far, the Italian constitutional doctrine has not covered this particular aspect—anything but irrelevant—in the studies dealing with these theories.

Therefore, I will try hereafter to make some short reflections from a constitutional perspective, with the purpose of showing the quantity of difficulties that can be encountered if one considers this hypothesis, i.e. if one places the right to food not only beyond the “private”, but also beyond the “public” dimension provided by the Constitution.

Ultimately, after identifying some critical aspects of the doctrines of common goods, I will try to examine the possibility to guarantee all people the fundamental right to access to food by using the “public utilities made available by the local government”. Otherwise, if we let the laws of the market be the ones that can guarantee food, we risk legitimizing a “juridical paradox” that the constitutional order (at least the Italian one) by no means can tolerate.

The new constitutions of Latin America have important insights regarding the protection of agro-biodiversity, the right to food and the protection of nature. Specifically, countries like Ecuador and Bolivia, have tried to summarize and institutionalize all these ideas in the form of rules or basic principles, concepts belonging to indigenous cultural tradition, expressing the idea of harmony between self, others and the cosmos, representing the first attempts of a concrete movement. The central focus of this essay is to highlight the importance of the so-called Andean “nuevo constitucionalismo” identified by the Constitutions of Ecuador in 2008 and Bolivia in 2009 that claim the primacy of “Mother Earth”. The right to food is an inclusive right. It is not simply a right to a minimum ration of calories, proteins and other specific nutrients. Andean constitutions are ecologically oriented to guarantee respect for the right to food, i.e. the right to adequate food that refers to quantity, quality and appropriateness, considering cultural aspects, as well as the physiology of the individual.

This chapter examines the impact of biofuels production on the enjoyment of the human right to food and the right of everyone to be free from hunger. It therefore explores whether and to what extent biofuel production has prejudiced or is likely in the future to prejudice the access to human food and whether there are any essential ethical concerns that can justify biofuel production even if it harms access to adequate and sufficient food to avoid hunger. The conclusions are that the biofuel production has indeed contributed and is soon likely to continue to weaken the access to adequate food or to the resources by which people, especially vulnerable people, can feed themselves.

The Italian Constitution refers to the alimentation in the third paragraph of Art. 117, qualifying it as a matter under the concurrent legislative power of the State and Regions. In fact, the alimentation is related to agriculture matters, industry and commerce matters, which fall within the residual competence (and therefore, as a rule, exclusive) of the State; but also, with the matter of competition, which is the exclusive competence of the State, and finally with the matter of health protection, also regarding competitor matters under the same Art. 117 of the Constitution. It is an interlacement of competence titles of which, in this work, are in relief in particular two: the protection of health and the protection of free movement of goods, in the belief that the higher-level of interest between the two matters is expressed by health protection. Moreover, the legal framework analysed could change if the referendum scheduled for the autumn of 2016 confirms the project of the constitutional reform under discussion, which foresees the elimination of shared power mentioned in the third paragraph of Art. 117 of the Constitution in favour of a clearer division of matters between the State and Regions.

Through labelling and marketing claims, açaí berries appear to be a purchase consumers can make to support biological diversity and rural development in the Amazon while uniquely meeting their nutritional needs. Accordingly, açaí berries seem ideal for consumers seeking to promote food diversity including biological and dietary diversity. This is supported by the popular notion that consumers can “vote with their forks” for a more sustainable and just food system. Yet the type, accuracy and form of information conveyed, as well as the standards that must be satisfied before such claims can be made, have been pre-determined by regulators and açaí companies. Using a “backwards mapping” methodology, this chapter identifies and critiques the common marketing claims on açaí products relevant to food diversity. Ultimately, the chapter reveals some of the problems with the notion that consumers can facilitate food diversity using their purchasing power.

Food diversity, although not fully protected by positive law, could be considered indirectly protected by business management oriented towards sustainable development. Management, that is, where the company makes a commitment to the care and protection of the society in which it operates. Such management requires the use of instruments such as codes of conduct, adopted on a voluntary basis, and the social reporting of the same.

Positive law thus far has not recognized food diversity as a single and autonomous legal value that transcends its individual dimensions, nor has it prescribed systematic provisions for its general protection. This contribution sets forth the thesis that food diversity, in legal terms, must be considered a synthesis of multiple diversities, meaning, a “value system” where numerous legal values of primary legal status protected at the international, European and constitutional levels converge and are contained as a whole: the environment and biodiversity, local autonomy and territorial differentiation, tangible and intangible cultural landscape and heritage, human health, personal and religious freedom, and the family and its educational choices. The strengths of these basic values aggregate organically, conferring to food diversity, in the writer’s judgement, the highest position in the legal order especially given its close ties to the supreme value of life. Food, in fact, is noteworthy in its dimension as a “binder” that connects the different levels—the individual, the social and the ecological—of biological life. The reciprocal involvement between life and diversity, and between food and life, forcefully exposes the necessity for the safeguard of food diversity as a preconditional and overriding “value of values” that must be legally preserved in its qualitative integrity and passed on to future generations. From this perspective, should an irreconcilable conflict arise between food diversity and economic interests linked to the protection of competition, free enterprise and the market, and should balance not be possible, predominance must be given to the protection of food diversity from threats—deriving from socio-economic dynamics—that can lead to its depletion or disappearance, with a consequent regression of antagonistic interests.

This chapter deals with the relevance of food diversity in international law from the perspective of culture as a fundamental value protected at the international level, by addressing the legal concepts of intangible cultural heritage and culture diversity. Particularly, it investigates whether the concept of food diversity could serve a proper legal function in the context of international cultural law.

The right to food is a complex right. It is a human right, closely connected to the right to life, but it is also an economic and a cultural right. This complex nature influences its legal protection, even at a constitutional level, especially with reference to the cultural aspect involving not only the quantity (a sufficient level of nutrition) but also the qualitative perspective (an adequate level of nutrition). The protection of the right to food, even under the cultural profile, refers to two different concepts, that some consider complementary, but others consider alternatives: RtAF (the Human Right to Adequate Food) and Food Sovereignty. The first one dates to the Universal Declaration of human rights that declares in Article 25 that it is a fundamental human right, instrumental to a dignified life. It implies the possibility for every person to have access to healthy nutrition, safe and adequate in terms of both quality and quantity. The second one can be synthesised as the right of people, communities and countries to define and to determine their own (national) food and agricultural system, as well as to carry out policies that include agricultural production for the local market. This is clearly stated in certain constitutions or national legislative provisions (Venezuela-2008, Senegal-2004, Mali-2006, Nicaragua-2009, Ecuador-2009, Nepal-2009, Bolivia-2009). In the light of both these concepts, the right to food—even in terms of quality and hence culture—appears to be a human right (and, therefore, indefeasible) more than an economic right.

The cultural value of the food, in its multiple forms and dimensions (agricultural products, cultivation and production techniques and traditions, recipes, diets, etc.) is recognized by the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (Paris, 17 October 2003), referred to in the Italian Code of Cultural Heritage and Landscape (Legislative Decree 22 January 2004, no. 42). The Convention calls for national systems protecting cultural heritage to be adapted to address three essential issues: the notion, which should include both material and immaterial cultural heritage; the organization, for enhancing the role of private actors and local institutions in the policies related to cultural heritage; the concept of protection, to be broadened to cover the identification, documentation, research, preservation, promotion, enhancement, and transmission, particularly through formal and non-formal education, as well as the revitalisation of the various aspects of such invaluable heritage.

The analysis of the relationship between food diversity and protection of Made in Italy allows to demonstrate the legal relevance of the concept of food diversity and opens to an alternative interpretation of the traditional concept of Made in Italy.

The apposition of the label Made in Italy on a food product contributes to meet information rights that are constantly recalled by the latest European legislation, and aids both health protection and the customer security and economic interest. Traditionally and linked to the product image, the safeguard of Made in Italy has been included among the institutions to protect competition, as a tool to give value to the product original area, and with the aim to achieve a market competition. Even when the discipline of the customer protection has been strengthened, it was conceived as a protection of the food manufacture and marketing rather than the right to feeding. However, today the safeguard of the food market receives a legal acknowledgment only when the general disposals for human health are respected. The close connection between food and area of origin contributes to ensure feed security, a free although protected movement of goods on the market, a selection and adequate amount of food, which allows to put the person and his needs at the center of the market.

This paper, then, analyzes what is entailed by the duty of the Republic with respect to the right in question. Particularly, the concept of “food solidarity” implies a commitment by the public authorities as to ensure the right to food (with instruments such as the “vital minimum”), but also to protect it.

Interesting, therefore, the analysis, as much, de jure seasoned, of the legislation that State and Regions are producing to protect food diversity, as, de jure flavoring, of the principles that the various bodies of the Republic must follow for the valorization of heritage identity of food and territory.