On the 3rd of November 2017, Lomme van der Veer defended his PhD thesis: Food Online.
This research addresses the legal rules and regulations in the Netherlands that apply when consumers purchase food products online. Sale of food via the Internet takes place in the area of Civil Code requirements on distance selling and public law requirements on food labelling. The thesis first reports on research performed prior to the entry into force of the national implementation of the Consumer Rights Directive (CRD) and of the Food Information Regulation (FIR). This historical part of the study shows that the instruments handed to consumers to compensate their weakened position as online buyers, cannot function as intended in case the merchandise is food. It is argued that consumers derive more bite from general provisions of contract law than from the provisions specifically addressing distance contracts. After the implementation of the CRD in the Netherlands and the entry into force of the FIR, the differences become visible between civil law and public food legislation in the manner in which they envisage to protect the consumer. Civil law turns out to be rather scarce in requiring information provision to consumers. In their attempt to ensure that consumers are only bound to purchase contracts they actually want, the European legislators have chosen a far more draconic instrument. Consumers have been given the right to withdraw from the contract altogether after the etailers (the retailers online) have already fulfilled their side of the agreement. The legislature has preferred this instrument over elaborate information requirements regarding the product to be purchased. Whatever the reasons have been that prompted the legislature to make this particular choice, they seem to have been less compelling in the case of food products. The vast majority of foods is exempted from consumers' right to withdraw. This leaves a considerable gap in the civil law protection of consumers of food online. This gap has been filled by the FIR. This regulation does put in place a considerable obligation to supply the consumer online with information prior to the purchase decision. The etailer has to provide online all the information which the producer is required to provide on the food label. In one small provision the entire and complex burden the FIR places on the food industry, is placed with the etailer as well.
Further the increased risks for the etailer of foods to become product liable are addressed. Due to the wide scope of the definition of ‘producer’ in product liability law, the risk for the etailer to be considered the liable producer is rather high. Due to the CRD and its implementation in national law, of all the players in the chain the etailer is easiest to identify for the consumer. Etailers have to push their claims further up the hill without any recourse to facilities regarding burden of proof or liability. Both the CRD and the FIR have been designed to reinforce the consumers’ position with a view to ensuring that consumers will no longer be the weakest link in the value chain.
Finally the emerging market for food-boxes is discussed. Food-boxes embody the dream of every etailer. Not the consumers decide what they buy, but the etailers decide what they supply. Business economic advantages of this model in terms of stock management, logistics and marketing are obviously enormous. Apparently an important marketing proposition in this modern day ‘lucky bag’ is the surprise. It appears that consumers want to be surprised. Despite all requirements regarding transparency and information provision imposed by legislators upon the etailer with a view to protecting consumers, a part of the market seems to prefer to be kept uninformed. In fact, a relevant group of consumers is actually willing to pay a price premium to businesses for infringing upon their legal obligations and for being kept out of their rights.
The defence - in Dutch language - can be seen here.
This research addresses the legal rules and regulations in the Netherlands that apply when consumers purchase food products online. Sale of food via the Internet takes place in the area of Civil Code requirements on distance selling and public law requirements on food labelling. The thesis first reports on research performed prior to the entry into force of the national implementation of the Consumer Rights Directive (CRD) and of the Food Information Regulation (FIR). This historical part of the study shows that the instruments handed to consumers to compensate their weakened position as online buyers, cannot function as intended in case the merchandise is food. It is argued that consumers derive more bite from general provisions of contract law than from the provisions specifically addressing distance contracts. After the implementation of the CRD in the Netherlands and the entry into force of the FIR, the differences become visible between civil law and public food legislation in the manner in which they envisage to protect the consumer. Civil law turns out to be rather scarce in requiring information provision to consumers. In their attempt to ensure that consumers are only bound to purchase contracts they actually want, the European legislators have chosen a far more draconic instrument. Consumers have been given the right to withdraw from the contract altogether after the etailers (the retailers online) have already fulfilled their side of the agreement. The legislature has preferred this instrument over elaborate information requirements regarding the product to be purchased. Whatever the reasons have been that prompted the legislature to make this particular choice, they seem to have been less compelling in the case of food products. The vast majority of foods is exempted from consumers' right to withdraw. This leaves a considerable gap in the civil law protection of consumers of food online. This gap has been filled by the FIR. This regulation does put in place a considerable obligation to supply the consumer online with information prior to the purchase decision. The etailer has to provide online all the information which the producer is required to provide on the food label. In one small provision the entire and complex burden the FIR places on the food industry, is placed with the etailer as well.
Further the increased risks for the etailer of foods to become product liable are addressed. Due to the wide scope of the definition of ‘producer’ in product liability law, the risk for the etailer to be considered the liable producer is rather high. Due to the CRD and its implementation in national law, of all the players in the chain the etailer is easiest to identify for the consumer. Etailers have to push their claims further up the hill without any recourse to facilities regarding burden of proof or liability. Both the CRD and the FIR have been designed to reinforce the consumers’ position with a view to ensuring that consumers will no longer be the weakest link in the value chain.
Finally the emerging market for food-boxes is discussed. Food-boxes embody the dream of every etailer. Not the consumers decide what they buy, but the etailers decide what they supply. Business economic advantages of this model in terms of stock management, logistics and marketing are obviously enormous. Apparently an important marketing proposition in this modern day ‘lucky bag’ is the surprise. It appears that consumers want to be surprised. Despite all requirements regarding transparency and information provision imposed by legislators upon the etailer with a view to protecting consumers, a part of the market seems to prefer to be kept uninformed. In fact, a relevant group of consumers is actually willing to pay a price premium to businesses for infringing upon their legal obligations and for being kept out of their rights.
The defence - in Dutch language - can be seen here.