Food online : PhD thesis on food legal and civil law requirements for digital contracts regarding food purchases by consumers in the Netherlands

In this thesis the research focuses on the legal rules and regulations in the Netherlands that apply in the context of food purchases by consumers that are concluded 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. In four research Chapters (chapters 2-5) the relevant topics are addressed. In Chapter 1 the legal context to the research is presented leading up to the formulation of the central problem statement and the research questions. The Chapter also provides the theoretical framework and the in this research applied methodology. Chapter 2 ‘'Real Food from Virtual Shops: the situation before 2014’ reports on research performed before the entry into force of the national implementation of the Consumer Rights Directive and of the Food Information Regulation. This chapter provides the historical baseline to this research. The research in this chapter shows that the instruments handed to the 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. In Chapter 3, ‘Food Online, Radical Changes to the Digital Shop Window after 2014’ the argument is continued by addressing in detail the implementation of the Consumer Rights Directive in the Netherlands and the entry into force of the Food Information Regulation. 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 his attempt to ensure that consumers are only bound to purchase contracts they actually want, the European legislator has chosen a far more draconic instrument. The consumer has been given the right to withdraw from the contract altogether after the etailer has already fulfilled his side of the agreement. The legislature has preferred this instrument over elaborate information requirements regarding the product to be purchased. The available data do not show that the legislature balanced these two instruments. Whatever these reasons have been, they seem to have been less compelling in the case of food products. The vast majority of foods is exempted from the consumers' right to withdraw. This leaves a considerable gap in the civil law protection of consumers of food online. This gap has recently been filled by the Food Information Regulation. 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 Food Information Regulation places on the food industry, is placed with the etailer as well. In Chapter 4 ‘Product Liability for Online Food Suppliers’ the increased risks for the etailer of foods to become product liable is 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 Consumer Rights Directive 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 Consumer Rights Directive and the Food Information Regulation 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. In Chapter 5 'The Lucky Bag for Meals' 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 retailers 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. The chapter shows that 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. In Chapter 6 the findings of the research are presented. Besides the answers to the research questions a new series of questions emerge. These openings to further exploration show how the legal field of food online in legal development and legal scholarship is just as young as the technology that sparked its emergence.