Will the chickens come home to roost? The response of criminalizing the endangerment of public health
in the food industry
This contribution offers an analysis of the offence provisions in the Belgian Penal Code used to qualify
wrongful acts committed in the food chain. On the one hand, it entails an examination of acts that
result in ‘harm to persons’ while on the other hand discussing acts that only result in ‘economic harm’.
For the first type of acts, it is demonstrated that the assault and battery and poisoning offences have a
scope that does not always fit the more recurrent wrongful acts in the food industry. These offences require
both proof of harm and a causal link to the wrongful act. As a result many of the wrongful acts currently
afflicting the security of the food chain are not covered by these provisions. In the absence of an
endangerment crime that seeks to criminalize the creation of a mere danger or risk to harm rather than
the harm itself, judges are often left with the economic offences to qualify wrongful acts in this field.
After the analysis of the economic offences, this contribution therefore turns to examine the possible
introduction of such an endangerment crime. By means of a Standard Harm Analysis test it is examined
whether the severity of possible damage; the social value of the possibly damaging act and the effect
of an incrimination of that behaviour, justify the introduction of an endangerment crime. It is further
considered whether the introduction of such a crime does not go against the subsidiarity principle in
criminal law and whether the fair imputation of the ‘creation of risk’ to certain actors is possible. This
theoretical framework can assist the legislator in a future discussion on the need for an endangerment
crime in the Belgian penal system.