Cornucopia and the Grapes of Wrath: A SocialPhilosophical Perspective on the Regulation of Risks and Side-Effects of Food and Drink

Based on a taxonomy of inherent risks and side effects of foodstuffs and beverage, this article analyses, from a social and philosophical perspective the limits of regulation of and responsibility for these risks and side-effects. To what extent does (legal) responsibility apply to consumers, producers, government and other actors? The harm principle of John Stuart Mill, and its meaning in the 21st Century as an organisational principle for the justification of freedom limiting measures, forms the modern frame of reference in our consumption society in the age of liquid modernity. The preliminary conclusion is that law, considering its foundations, is not yet equipped to take justified action against lawful products and services that have potentially adverse consequences. The foundations referred to offer insufficient points of reference if and when we seek to hold on to the lawfulness of these products and services, food and drink stuffs in particular. A way out of this dilemma in the risk society is to think differently about law and its function in liquid modernity in a structural way. It starts with a reflexive attitude towards law as a whole and its foundations of contemporary society. Such an attitude may enable us to come to a readjustment of our mutual expectations for the sake of a new normative framework.The notion of ‘libertarian paternalism’, hailed as a possible solution, proves to be problematic from a legal point of view.